In 2015, with Law 81/2014, judicial psychiatric hospitals were closed – Opg. It was the outcome of a long battle, which began in the 1980s, after the approval of Law 180.
«We started from the idea that the psychiatric hospital was not therapeutic», says the psychiatrist Peppe Dell’Acqua. “If it wasn’t for those who hadn’t committed the crimes, why should it be for those who had committed them?”. The criminal asylum was a remnant of the past, a now archaic instrument, born towards the end of the nineteenth century and structured with positivist psychiatry. «From 1995 to 2015 there were many conferences, studies, publications», recalls Dell’Acqua, «with which jurists together with some psychiatrists reflected a lot on this condition». Already in 2010, a series of visits carried out by the parliamentary commission on the effectiveness and efficiency of the national health service (the so-called “Marino Commission”, from the name of the senator who chaired it), had brought to light the seriousness of the conditions of life and care within judicial psychiatric hospitals, in which people often remained locked up for an indefinite number of years. In fact, internment could be extended if the need for it had been identified with an expert opinion that confirmed the permanence of social danger .
«It is said that the then President of the Republic Giorgio Napolitano, when he was shown the video from the Pozzo di Gotto judicial psychiatric hospital in Barcellona, was unable to hold back his tears», recalls Dell’Acqua. The process of closing the Opg – there were six at the time, in Aversa (Caserta), Barcellona Pozzo di Gotto (Messina), closed after being seized in December 2012, Castiglione delle Stiviere (Mantua), Montelupo Fiorentino (Florence), Naples and Reggio Emilia – it wasn’t easy. It was a long journey, made up of extensions and negotiations, which however led to the formulation of a law, which sanctioned the divestment of these institutions and established that the execution of the security measure could no longer take place far from the place of life. and it could not, necessarily, be carried out inside a closed place in prison conditions.
For this reason, each Region had – or should have – included offenders with mental disorders within the mental health services on a departmental basis, through treatment according to new and varied methods. The so-called Residences for the execution of security measures. Rems were gradually established to meet the most intense care needs and to contain the most marked social danger. These realities should not be understood as small-scale copies of judicial psychiatric hospitals, but should become – thanks to a renewed sharing of health policy guidelines between the judiciary, mental health department and social services – places in which to start an individual therapeutic rehabilitation project . And, above all, they should be intended only for those who actually cannot remain within the social fabric of origin, without a path of high therapeutic intensity and aimed at rehabilitation and full reintegration into civil and social life.
At this point, however, it is necessary to take a step back. How did we end up in judicial psychiatric hospitals in the past and how do we end up in the Rems now? Thanks to the so-called “double track”, inserted into the penal code in 1930. Therefore, anyone who commits a crime in a state of infirmity, without really realizing the consequences of what he is doing, cannot be held accountable. Now this approach is starting to be questioned by several parties: in the XVII Legislature a Commission (Pelissero Commission, from the name of the criminal law professor who presided over it) was established to redefine the entire regulatory scope of security measures for the not attributable, but due to the dissolution of the Chambers those solutions were not approved and did not come into force.
Some scholars and exponents of movements – especially in the radical area as well as certain liberal orientations – maintain that non-imputability no longer has any reason to exist: if we are all the same, even those who experience a significant mental disorder must be tried like the others and serve a sentence. This thesis is also supported by sectors of procedural-criminal science and criminology: for them, in this way, among other things, the problem of complacent diagnoses would be resolved, which presented itself in the past as an expedient to lighten the sentences of people linked to the mafia and to other criminal organizations. From this perspective, however, the problem that cannot be resolved upstream must be resolved downstream: how should people who find themselves in this situation of serious psychological distress, almost always incompatible with life in a penitentiary, serve their sentences?
Another position is what is defined as reformist. According to this orientation, there actually exist particular situations in which the crime is committed without awareness and perfect volition. For this reason it would be conceivable to maintain areas of non-imputability. Those who support this thesis criticize the weakness of one point of the Italian system: it is not the concept of non-attributability in itself that causes damage, but the conception of social danger. «To solve this problem, the definition “socially dangerous” should be replaced with “in need of care”», claims Daniele Piccione, constitutionalist and author of several studies on the problem. «This first element of change would allow people to be started on a path of treatment and rehabilitation, relying on the network of mental health services».
Many psychiatrists, however, do not consider it appropriate to take care of people considered “problematic” who have experience with criminal justice and state that psychiatry should not solve problems of public order and criminal policy.
«This is a complex and partly ambiguous topic», continues Piccione, «because if these people are sent to prison there apparently no longer exists the problem of their potential dangerousness which is thus neutralized in a punitive manner; but they certainly cannot be expected to leave the penitentiary circuit with an experience useful for rehabilitation. The real problem is that if one chooses one of the three models – leaving things as they are, eliminating the double track or maintaining it only in some extreme cases – the issue remains of how offenders with psychiatric diagnoses and who do not derive no benefit from the execution of the intramural sentence”.
There aren’t enough places in the Rems, and it’s true. But the judiciary maintains a high tendency to send people with mental disorders to these facilities, where it is hoped they can at least receive treatment and at the same time be controlled to a certain extent. Moreover, the magistrates themselves find themselves in a difficult position. «If a magistrate has to judge a person because, for example, he stripped himself naked in public, damaged a telephone booth and hit those who were trying to calm him», explains Piccione, «or establishes that he is attributable, therefore susceptible to access the criminal circuit sentences, or orders a psychiatric evaluation, with which he checks whether he is really unwell and what his horizon for non-criminal treatment is. Then the magistrate declares him not attributable and hopes that he can find positions in the Rems for a few months. Very often, however, he finds the facilities full. At this point he experiences a legitimate fear, because he considers the risk that the person could commit another crime; However, there are quite a few magistrates who, taking a risk and focusing on the response capacity of the local services, declare non-imputability and establish the non-custodial security measure, entrusting the person to the Mental Health Departments, outlining, with the services, a project integrated therapy based on rehabilitation continuity”.
How to get out of this stalemate?
First of all, it is good to underline that by dismantling the Opg – in reality there is still one in operation, that of Castiglione delle Stiviere, albeit under a different name – a decisive step has been taken in the right direction. It is then necessary to improve an element that is now still fragile, the constructive dialogue between the judiciary and local services.
«The magistrate who is oriented towards having the person followed by the therapeutic community must be able to see that the services in the area work and are able to follow the life evolutions and difficulties of the person», concludes Piccione, «there must be strong relationships, constant dialogues, with mental health centers and with the varied galaxy of human resources of the Third sector, family members, mutual help; the system of home visits and interviews should be nurtured and revitalized. If all this works, then the mental health protection system can be relied on and integrated responses can be offered. The point remains that of defending Law no. 81: the Rems are not substitutes for the Opg, they must be understood as solutions for particularly complex cases, but always as temporary and never final fragments of a complex plan of care and rehabilitation programmes”.