One
of the most prominent countries in the criminal justice field with regards to
changes made and philosophy written is Italy. With some of the greatest minds
throughout the medieval times and enlightenment calling Italy home, the country
has always been on the forefront of understanding criminology and criminal
procedure. While they do not have the most formidable or “bulletproof” system,
and still considered to be in its infancy, there are a multitude of aspects
about it that can rival our own.
Italy
can arguably be called the birthplace of classical criminal justice, when the
socialist philosopher Cesare Beccaria published his treatise On Crimes and Punishments. This happened
during the Enlightenment Period and was written of the mindset that punishment
above all would be the tool most useful in gaining the compliance of the peoples.
Beccaria believed that people chose every action that they committed, and the
fear of punishment would be the ultimate deterrent. He believed that there was
a “despotic spirit” that resides inside of every person and that this spirit
had to be suppressed during decisions that chose whichever result did not end
in punishment.
Cesare Beccaria, "Father of Criminology"
Beccaria’s
main principles held that,
“…people choose all behavior, including
criminal behavior; their choices are designed to bring them pleasure and reduce
pain; criminal choices can be controlled by fear of punishment; and the more
severe, certain, and swift the punishment, the greater its ability to control
criminal behavior.”
This
was an interesting philosophy at the time because although he was a big
advocate for punishment, he did believe that the punishments and routine
torture of the time were too severe and also inappropriate. Punishment needed
to be tailored to the individual crime and not too harsh, as this
counterbalance will deter the pleasure received from committing the crime.
Classical
criminology was beginning to take shape throughout Europe, and one of its main
tenets held that every single person had free will, which is a stark contrast
to one of the beliefs prior in that some things were determined by the divine.
It also stated that criminal actions were often justified to the criminal
because there were large payoffs for a seemingly small amount of work, which is
why punishments need to be swift and severe without being overbearing to show
criminals that crime doesn’t pay. This is the basis formed for other countries
to adopt what the United States would consider the “cruel and unusual
punishments” clause in their respective constitutions.
During
the same time period, life in Colonial America was just gaining a foothold, and
with it, court systems and a criminological system that closely resembled
England at the time. During the 1700’s, there was no clear-cut system in place
in the Americas, and policy varied greatly from colony to colony.
By
the end of the 1800’s, classical criminology would be slowly replaced by a
focus on external and internal factors, like class, race, IQ, poverty, and
other environmental or genetic factors. Classical criminology was still
responsible, however, for the way the court systems, process, and punishments
worked, it was being rejected by most mainstream criminologists in both the
United States and in Italy.
During
the 1970’s and 1980’s, both Italy and the United States would begin a vast
reform in their respective systems, with Italy choosing to ultimately do away
with their inquisitorial system and opting for a much more streamlined system
where the respective parties, and not the judge, was responsible for conducting
the investigations. The problem Italy faced was in how rooted their system was
on civil law. Like most western countries, Italy’s backlog of cases was too
cumbersome for the inquisitorial system to handle.
During
the system laid out in the 1930’s known as the 1930 Code of Criminal Procedure,
the judge was responsible for gathering the evidence and conducting the
investigation, in which the investigative function dominated. Next, a public
trial phase would occur, in which the evidence was developed and laid out. What
ultimately ended up happening, however, was the examination phase taking the
brunt of the process and the trial merely happening as a formality in a lot of
cases. One of the biggest problems with this system is that the examination
phase was conducted in private with the defense not being able to see any of
the evidence or being notified of key findings during the investigation.
According to the Yale Journal of Law, “Without the presence of the defendant or
defense counsel at the examination, interrogators could put considerable
pressure on witnesses who appeared before them.”
The
system was again reformed throughout the years to allow the defense more power
during the examination phase but did nothing to curb the overbearingness of
this phase to allow for more participation in the trial. Finally, in 1989, the
new Code of Criminal Procedure was adopted and completely restructured criminal
trials along adversarial lines and took the burden of the investigation off of
the judge. While an adversarial system helped Italy with their enormous backlog
of cases, there are drawbacks seen in the American system such as jury
selection and the observance of complex evidentiary rules, which the Italian
adversarial system has no counterparts.
Another
big difference in the systems is the way the United States relies on a full
public trial while the Italian system seeks to include special procedures put
in place to avoid this. There is more of an emphasis on plea bargaining in the
Italian system to avoid a trial altogether, something that it has in common
with the American system, with more emphasis placed on it possibly due to the
backlog of cases. The plea-bargaining system currently enjoyed by both
country’s criminal justice systems is an important aspect because it
de-clutters the court calendar, frees up prosecutorial resources, gives the
opportunity of an easier sentence or charge, and may serve to keep prisons from
overcrowding when used effectively. The drawback to this procedure lies in an
innocent person choosing to plead guilty in order to escape a perceived worse
punishment for something they did not do in the first place.
Another
huge difference between the Italian adversarial system and the United States’
adversarial system is the way in which we afford Miranda Rights to an
individual being arrested. In the Italian system, police questioning, and
statements gathered from it cannot be admissible in court, period. The only way
a statement can be used in a trial is if the defendant has his legal
representation available to them at the time of questioning and they are
present.
This
is a better system then the United States has currently because police can say
anything in order to extract a confession. According to the National Registry
of Exonerations, with regards to offenders under the age of eighteen, 44% were
found to have falsely confessed to a homicide. This number rises to 81% when
taking mental illness into consideration (all ages.)
Italy
also has a system in place called a “udienza preliminar” which would be called
a preliminary hearing in the United States, with the main difference being the
process by which it occurs. During this phase of the pre-trial process, the
prosecutor can send the judge the entirety of their case collected during the
investigation. When the hearing begins, no witnesses are called to the stand in
lieu of the documents and results of the investigation being outlined. The
defendant may be examined by the judge, but they cannot be cross-examined by
the prosecution. Following this procedure, the judge decides to move forward
with the case, or to dismiss it entirely. Usually a dismissal only occurs if
the judge believes that the defendant did not commit the crime at all.
At
the actual trial, the prosecution begins the statements, with witnesses
appearing in the same order for both parties, and the defense always given the
closing statements and final word. This is a stark difference from the United
States’ trial system as usually the prosecution has the last word.
The
appeals court in Italy works very differently from ours. Acquittals can be
appealed, and Italy has five different acquittals that can be given following a
trial. They are:
“1)
that no crime was committed;
2) that there was a crime, but the defendant did
not commit it;
3) that the defendant is innocent of the crime, because evidence
was insufficient to convict him; 4) that there was no crime, because the
defendant had a justification for his action (such as self-defense or
necessity);
or 5) that it was not possible to decide the case due to a
procedural fault.”
The
defendant can always appeal an acquittal to receive a better (lower number)
ruling. The United States’ appeals system is hampered by only being allowed to
appeal certain characteristics of the case, such as an unfair trial. The
Italian system has no such problem, and anyone involved in the case can appeal
anything in it, including bringing new evidence to light.
The
Italian system has been around for a lot longer than our system, but the huge
reformation it had in 1989 was a testament to how sensitive the legal process
is and how much it must encompass. No system is perfect, but other systems
should be scrutinized to gain an understanding of how ours can perform better.
In such a huge field with a plethora of studies conducted since the medieval
times, the system worldwide should be functioning close to perfect, and while
no country has a perfect system, the United States is arguably on a lower rung
with how we treat our defendants and convicted criminals.
Sources pulled from:
Davide Arcidiacono, S. C. (2015).
Criminal justice system responses to intimate partner violence: The Italian
Case. Criminology and Criminal Justice Vol. 15(5), 613 - 632.
Diana Kapiszewski, ,. G. (2013). Consequential Courts : Judicial Roles in Global Perspective. Cambridge: Cambridge University Press.
Law Library. (2019). The Early Years of
American Law. Retrieved from Law Library:
https://law.jrank.org/pages/11900/Early-Years-American-Law.html
Montana, R. (2014, February 3). Explainer:
how does the Italian criminal justice system work? Retrieved from The
Conversation:
http://theconversation.com/explainer-how-does-the-italian-criminal-justice-system-work-22678
National Registry of Exonerations. (2019). AGE
AND MENTAL STATUS OF EXONERATED. University of Michigan: NATIONAL REGISTRY
OF EXONERATIONS.
Siegel, L. J. (2015). Criminology. Stamford, Conn u.a.: Cengage Leaning.
Vitiello, J. C. (2016). Public Justice and
the Criminal Trial in Late Medieval Italy. Leiden, Netherlands: Brill.
William T. Pizzi, L. M. (1992). The New Italian
Code of Criminal Procedure: The. Yale Journal of International Law Vol.
17:1.