Italy’s Penitenciary Order: art.41 bis OP. Juridical and criminological profiles

The introduction in our penitentiary system of differentiated regimes for the execution of the sentence is based on some fundamental principles underlying our system that mainly concern the social danger and the treatment of the convicted person. Both concepts are strongly oriented on the person of the condemned because the social hazard is configured, according to the same normative dictate (art.203 cp), as quality of the person and treatment as a tool for re-education and re- socialization and, therefore, modification of the behavior of the person. On these principles is based the reform of 1975. The introduction of differentiated regimes, which seems to contradict the principles established by the reform, however, takes on a political significance as it corresponds to historical periods of particular social alarm determined, in a first phase, from the phenomenon of terrorism and, in a second phase, from the increase in the mafia phenomenon. The text traces the historical development of the legislation in its evolution and subsequent changes, identifying some aspects that have been criticized regarding the principles of protection of the rights of prisoners and the possible violation of constitutional principles. However, the possibility of differentiated regimes for detainees belonging to organized crime is reiterated, as an effective means of breaking the links between the convicted person with the criminal association, in a process of fight against the Mafia which continues even during the execution of the sentence. It ends with the presentation of the most recent modification proposals.