Italian Juvenile Justice: Tolerance, Leniency or Indulgence?
| Author | David Nelken |
| Published date | 01 August 2006 |
| Date | 01 August 2006 |
| DOI | http://doi.org/10.1177/1473225406065561 |
| Subject Matter | Articles |
j:yj065561 16-6-2006 p:19 c:0
A R T I C L E
Copyright 2006 The National Association for Youth Justice
Published by SAGE Publications (London, Thousand Oaks and New Delhi)
www.sagepublications.com
ISSN 1473-2254, Vol 6(2): 107–128
DOI: 10.1177/1473225406065561
Italian Juvenile Justice: Tolerance, Leniency or
Indulgence?
David Nelken
Correspondence: Professor David Nelken, Via Audinot 35, Bologna 40134, Italy.
Email: SEN4144Viperbole.bologna.it
Abstract
This paper offers a critique and further development of points made in Scalia’s account of
Italian juvenile justice as a ‘lesson in tolerance’, published in an earlier issue of the journal.
It discusses tolerance as a value and as a fact, the supposed sources of tolerance, and the
stages at which tolerance can be displayed. It then re-examines quantitative and qualitative
evidence of tolerance in Italy, paying special attention to comparing like with like, and
considers the relevance of the wider conditions that may help shape Italian patterns of
tolerance. It concludes with some brief cautions about how far lessons can be drawn from
Italian practice.
Keywords: comparative criminology, punitiveness, tolerance
Introduction
Many of the leading writers on criminal justice are currently seeking to map and explain
what they call the rise and spread of ‘penal punitiveness’ (Garland, 2001; Pratt et al.,
2005). On the other hand, an important (and not unrelated) older tradition of
comparative criminal justice research set out to identify the characteristics of those
places that managed to avoid an obsession with crime (Clinard, 1978; Adler, 1983).
Ideally, of course, we would want to be able to explain what lies behind both
punitiveness and leniency (Whitman, 2003; Nelken 2006b). It is to this task that the
research that I shall be drawing on in this paper hopes to contribute.
Initiated six years ago, the first stage of this research project on youth justice, which
was financed by the Ministry of Education as well as by University of Macerata funds,
was dedicated to studying differences in the delivery of juvenile justice within Italy. The
second stage of the project, supported by further finance from the ESRC in the UK,
then set out to compare similarities and differences between juvenile justice in Italy and
in England and Wales. For the Italian side 700 case-files from the Youth Tribunals of
Bologna, Milan, Naples, Ancona, Palermo, and Catania were analysed, and numerous
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Youth Justice 6(2)
participants at these Tribunals as well as elsewhere in Italy were interviewed. Essential
research assistance was provided by Dr Vincenzo Scalia (principal research officer), Dr
Michele Mannoia, Dr Roberta Rao, Dr Francesco Ranci, Dr Letizia Zanier and Judge
Pietro Merletti. The second and continuing phase of the enquiry, about which less will
be said here,1 is being pursued in collaboration with Dr Stewart Field (the principal
investigator) and Professor Mark Drakeford. For most of the case summaries and a
large part of the interviews we benefited from the valuable research assistance of Ruth
Holgate. As well as re-analysing the Italian case-files, we have so far examined 208
offence files from eight Youth Offending Teams in South Wales, and carried out
extensive interviews with all involved. Amongst the methods we employed was to
present magistrates in Italy and in Wales with carefully-drawn vignettes of crime cases
asking them to explain their likely disposal decisions.
This paper is concerned with one of the key issues thrown up by this comparative
exercise. What does it mean to claim that the Italian juvenile justice system is one which
is particularly tolerant, and what lesson if any can it teach us? I shall frame my
discussion in the form of a commentary on an interesting paper by Vincenzo Scalia
recently published in this journal (Scalia, 2005a). Scalia’s data is drawn from research
he carried out under my direction at the Bologna Youth Tribunal when he worked with
me at the University of Macerata.2 Scalia argues that in many parts of the world
neo-liberalism and globalization is producing a drive to zero tolerance in criminal justice
policies, including those dealing with youth crime. But, in Italy, a culture of ‘refusal of
punishment’ serves to block any such development. Illustrating his argument from the
case-file evidence he offers the Italian approach as a ‘lesson in tolerance’.
I share many of Vincenzo Scalia’s larger concerns and agree with much of what he
has to say on the basis of his case sample.3 The point of the project was indeed to try
and understand how two relatively similar Western societies could have such apparently
different reactions to youth crime. My aim was to try and produce a reasonably faithful
‘snapshot’ of the current strengths and weaknesses of the Italian system ‘in action’
which could help to forestall future political demands for greater severity which I feared
the system might have to face. I also hoped that it might provide a valuable contrast
when examining other systems of juvenile justice. Most important, I would not wish to
deny that the Italian system is in many respects a lenient one, especially as compared
to England and Wales (though how far leniency is necessarily an index of tolerance will
need to be clarified).
On the other hand, when I came to read Scalia’s paper in Youth Justice4 I also felt
that it did not provide a completely satisfactory interpretation of what these research
projects have discovered. As I shall seek to show, there are some crucial matters that
Scalia’s argument leaves out, as well as some problems with some of the points he
asserts. My account aims to go beyond Scalia’s paper in three respects. Firstly, to
provide a clearer picture than Scalia does of the larger comparative project to which
his arguments about Italian tolerance relate. Secondly, to show that relying on a small
number of illustrations of cases from the Bologna Tribunal could give a partial and
possibly misleading impression of how Italian juvenile Justice in general actually
operates. Finally, to say more than Scalia does about how the Italian juvenile justice
system fits into and is shaped by its wider context, given that an understanding of
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Nelken – Italian Juvenile Justice: Tolerance, Leniency or Indulgence?
109
context must be an essential part of learning from another system. My conclusion is
that if the Italian system is to serve as Scalia says, as a ‘lesson in tolerance’5 for England
and Wales, we shall need to know the answer to a lot more questions than could be
answered or even raised in his admittedly brief but stimulating paper. In addition to
what my discussion has to say about Italy, I also hope that it may prove useful for other
comparative enquiries that seek to learn from other systems of justice.
In what follows I shall begin by asking what could be meant by describing the Italian
juvenile justice system (or any other juvenile justice system) as a tolerant one. I discuss
tolerance as a value and as a fact, the supposed sources of tolerance, and the stages at
which tolerance can be displayed. I then re-examine quantitative and qualitative
evidence of tolerance in Italy, paying special attention to the need to be sure we are
comparing like with like. I go on to consider the relevance of the wider conditions that
may help shape patterns of tolerance in different societies and conclude with some brief
cautions about how far lessons can be drawn from Italian practice.
The Meaning of Tolerance
Scalia is not the first to claim that the Italian juvenile justice system is one which is
relatively tolerant, although he is the first to provide detailed case descriptions. Outside
observers, such as John Pitts and John Muncie in the UK, have looked to Italy for
inspiration. And many local commentators also see it that way. Duccio Scatolera, for
example, has recently spoken of ‘the ‘‘benevolent tolerance’’ that often accompanies the
view taken of small-scale criminality by young Italians’ (Scatolera, 2004: 400, my
translation.) He argues that the willingness to show such tolerance has increased in
recent times because the authors of such behaviour no longer belong exclusively to the
marginalized classes at risk (Scatolera, 2004). Even insiders who are critical of the
system complain about its tolerance, which to them appears as over-indulgence. As
Riccotti, an academic critical of the new code, puts it, ‘in simple terms, with respect to
crimes when committed by youngsters it is now thought appropriate to respond no
longer with the penal sanction or a thought-through exercise of mercy but only with
an offer of help which the subject may even refuse’ (Ricciotti, 2001: 56, my translation).
For him ‘the legislator of the 1988 code had in mind in certain fundamental choices
only one type of criminal actor, the occasional deviant under the influence of adolescent
swings of mood, the sort of person who really would be damaged by being exposed to
prison. He did not take account of the perverse delinquent whose freedom of
movement represents a threat to the collectivity and especially for the persons most at
risk and weakest sectors of the population.’ (Ricciotti, 2001, my translation).
Given this consensus, when writing for an English-speaking audience, it does seems
‘natural’ that what needs to be explained is how juvenile justice in Italy succeeds in
being so lenient. But if we were to compare the Italian system to other Continental
European or Scandinavian...
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