Juvenile Justice in Italy

In Italy, juvenile courts were established in 1934, and their structure and responsibilities in the field of juvenile justice remained unchanged until 1956, when elements of a rehabilitative approach were introduced. In 1962, in accordance with the 1956 reform, a national social service was set up. Responsible to the Ministry of Justice, this service was intended to assist judges in assessing cases brought into the system and in implementing the measures imposed by the courts themselves in the penal, civil, and administrative fields.

The composition of the juvenile court has remained unchanged since its foundation. The court is made up of four individuals who include an appeals court judge (who presides over court proceedings), a court judge, and two lay magistrates—one man and one woman, chosen from among experts in the fields of biology, psychiatry, criminal anthropology, education, and psychology who have distinguished themselves in social work and are at least 30 years of age (Art. 2, R.D. N°1404/1934).

The responsibilities of the juvenile court covered three fundamental sectors: (a) the penal sector; (b) civil jurisdiction regarding minors born out of wedlock, parental authority and its limitations in the event of improper exercise, and provisions connected with adoption (to which placement with foster families was added in 1983); and (c) the administrative sector. The latter concerned “wayward” minors, as they were defined in the original 1934 formulation, or, from 1956 on, those who were “irregular in conduct or character,” in addition to minors who had committed crimes but who had not yet reached the age of penal responsibility and minors between 14 and 18 years old who had been judged incapable of understanding and willing.¹

Indeed, from the outset, the Italian system considered minors to be responsible for their antisocial behavior only if they were deemed “capable of understanding and willing,” and the courts were endowed with ample discretion in making such evaluations in that they were not bound by specific technical methods of investigation. However, after a long process of interpretation of the law, a minor’s capacity to understand and will was taken by the courts to mean the presence not of a pathological condition but simply of a condition of inadequate physical or psychological development, that is, a condition of “immaturity.” Very soon, this concept was broadened to include conditions of social backwardness.

The situation was not, however, homogeneous throughout the country. Indeed, some courts in in the north of Italy frequently acquitted minors on the grounds of immaturity, while others applied this provision very sparingly (Lanza, 1982). Today, the application of “immaturity” is very limited, given that the 1988 reform of juvenile penal procedure made a wide range of new solutions available to the courts.

While minors under the age of 14 years are not responsible and are automatically acquitted (though either a “security measure” or an “administrative order” can be imposed), minors judged responsible and convicted receive a custodial sentence, which is reduced to two-thirds of the sentence that would have been imposed on an adult offender.

The evolution of the Italian juvenile justice system can be summarized as a shift from a mainly retributive approach (before the 1956 reform), in which juvenile courts judges mainly made use of penal measures (though tempered with rehabilitative elements), to a rehabilitative approach, which was intended to integrate punishment with education—what has been called the “re-education” of juveniles. The administrative jurisdiction of the courts constituted the main means of achieving this objective, which was pursued by placing minors in facilities already envisioned by the 1934 law, the number of which was increased after the 1956 reform. The internal organization and the environment of these institutions (“re-education facilities”), however, were not very different from those of penal institutions (Senzani, 1970). Indeed, minors confined to these facilities were segregated and isolated from the rest of society; bonds with the family and the community of origin were severed, and the fact that the institution was often far from the minor’s home created a particularly negative effect of uprooting. Moreover, the utilization of administrative measures tended to have a criminogenic effect, in that needy minors who already had problems of social adaptation were exposed to the negative influence of more-delinquent peers. Betti and Pavarini (1985) defined this organization as a correctional continuum, which, though cloaked in the guise of rehabilitative objectives, substantially achieved the aims of social control, even beyond the commission of crimes by the minors involved.

In addition, in the name of the rehabilitative ideal, minors were often placed in antiquated, inadequate institutions (convents, boarding schools, etc.) run by staff who were totally unprepared to undertake the educational tasks that constituted the stated objective of the intervention. At the end of the 1960s, however, in the wake of the general wave of protest that characterized the social climate of the period, juvenile justice institutions also came under scathing criticism similar to that leveled at mental health institutions, which would subsequently lead to the closure of psychiatric facilities in Italy. The juvenile justice system reacted to this criticism on the one hand by reforming and opening up some institutions to the communities in which they were located and, on the other, by increasing the application of penal measures.

Thus what characterized the first phase of the development of the Italian juvenile justice system was the particular backwardness of the facilities in which minors were placed. Indeed, from the standpoint of both logistics and personnel, these institutions displayed a markedly lower quality than those of other European countries. This seems paradoxical for a country such as Italy, which has a rich history of criminological thought and justice reform (Martin, Mutchnick, and Austin, 1990).

In 1977 a new law on administrative decentralization (DPR N°616, 24/7/1977) was approved. Under this new legislation, many of the responsibilities for social services for minors were transferred from the state to the local authorities, including the system of welfare for families and minors. The juvenile courts therefore found themselves obliged to work closely with the local authorities in the handling of cases of conviction that required the imposition of measures that were not strictly punitive. Prior to this, minors upon whom rehabilitative measures were imposed by the juvenile courts had been dealt with, as mentioned, by social services and rehabilitative institutions (re-education facilities) responsible to the Ministry of Justice. By contrast, the new legislation entrusted minors to the municipal social services created for the general public, thereby effecting a radical transformation. Indeed, many municipalities, especially in the more advanced areas of the country, under the influence of the reformatory wave that had surged at the end of the 1960s, refused to pursue the customary logic of control and stigmatization. Instead, they promoted the creation of new facilities for minors and of new modes of intervention that were linked to the territory, open to the community, and aimed at helping rather than controlling. Thus, albeit patchily and late, Italy saw the introduction of some fundamental innovations that had characterized social policies for minors in more advanced nations (e.g., the Children and Young Persons Act 1969 in England and Wales).

This new situation gave rise to a certain conflict between many juvenile courts, which adopted the measures, and the social services of the municipalities (Gatti and Verde, 1988), which actually applied them. Indeed, while judges favored greater control over minors (Ricciotti, 1982), the local authorities insisted on implementing intervention that was less repressive, more open, and directed toward the development and well-being of minors.

The conflict between the judicial authorities and the municipalities was finally settled in favor of the latter when a pronouncement of the Constitutional Court (N°174/1981) upheld the autonomy of the local authorities in deciding the nature and organizational features of the services for which they were responsible. However, one drawback to the newly gained autonomy of the local authorities was that it gave rise to considerable differences in the quality of the services provided by the municipalities, which were far more advanced and efficient in the north and in parts of the center of Italy but somewhat backward and underfunded in the south of the country.

In 1988 a substantial change was brought in by the introduction of Presidential Decree N°448/1988 (which came into force on 24 October 1989). As a result of this new legislation, the reform of penal procedure introduced in those years was applied to the juvenile field, giving rise to important changes in the juvenile justice. While the shift from an inquisitorial to an accusatory model, which was a characteristic of the reform, was maintained, the new law introduced a new education concept into the penal process for minors.

In accordance with the general reform, the penal process for minors was also divided into three phases: the first, the so-called preliminary investigation (which is not really a judicial phase at all), is conducted by the public prosecutor and the criminal investigation department of the police, though it is still possible to refer to the Giudice per le Indagini Preliminari (Judge in Charge of Preliminary Investigations) for the most important decisions, such as those concerning preventive measures. A preliminary hearing (udienza preliminare) then follows, during which the judge assesses the investigations carried out and, after hearing the arguments put forward by the public prosecutor, the defending attorney, and the defendant, decides whether to dismiss the case or order a trial; this latter constitutes the third phase, during which the evidence is scrutinized and debated and a decision is made (as in every continental criminal justice system, the sentencing process develops inside the trial).

This procedure is similar to that of the general criminal justice system. Nevertheless, many norms of juvenile criminal procedure have undergone a series of adjustments in order to endow the trial itself, in a rather paradoxical way, with an educational, rehabilitative character while still guaranteeing the juvenile defendant’s rights, such as the presumption of innocence and the right to legal assistance. In this framework, plea bargaining is not admitted in the juvenile penal process, while other general provisions are, such as the option of requesting the following:

Under the terms of Presidential Decree N°449/1988 (which contains the rules of application of Presidential Decree N°448/1988), the preliminary investigation is headed by a judge of the juvenile court, while the preliminary hearing is carried out by one professional judge and two lay magistrates (one man and one woman), and the trial takes place in the juvenile court in its ordinary composition.

The judge in charge of preliminary investigations is responsible for ensuring that the investigations are carried out in a proper and timely manner, as well as safeguarding the freedom of the person under investigation. In the preliminary hearing, the court can decide to commit the minor for trial, find “no grounds for prosecution,” place the youth on probation, or apply alternative sanctions to detention. During the trial, which is not public, the accused is questioned directly by the presiding magistrate (and not by the public prosecutor); in order to avoid any trauma, the minor is not cross-examined. A verdict is then reached.

Considerable changes have also been introduced into the norms regulating the arrest and detention of minors. A minor can be arrested in flagrante if caught in the act of committing a crime eligible for preventive detention (Art. 16 subsection 1, Presidential Decree N°448/1988). In any case, a minor may be “sottoposto a fermo di indiziato di delitto” (taken into custody as a person suspected of a crime) if suspected of having committed a willful offense that carries a prison sentence of a minimum of 2 years (Art. 17, Presidential Decree N°448/1988). After being arrested, the minor is sent to a special reception center (Centro di prima accoglienza)—a small institution different from prison—pending the hearing for the validation of arrest (and for a maximum of 96 hours). In the remaining cases of flagrancy concerning willful offenses carrying a prison sentence of not more than 5 years, law-enforcement officers may entrust the minor to his or her parents. If they are absent or deemed to be unreliable, the public prosecutor may order the minor to be taken to a reception center or to a public or private group home (Art. 18bis DPR N°448/1988).

Although DPR N°448/1988 sought to limit the use of pretrial detention for minors as far as possible, this option was subsequently extended by a new legislative decree, Presidential Decree Nº12/1991: the original ruling had been deemed not to safeguard the community sufficiently. The measure can now be applied in cases of willful crimes punishable by imprisonment for life or for which the maximum length of imprisonment is more than 9 years.

Apart from the aforementioned cases, pretrial detention may be ordered in cases of aggravated theft, robbery, rape, extortion, and weapons- or drug-related offenses. Detention can be ordered only if there is grave risk of subversion of evidence, the accused attempts to escape, or the nature of the crime is considered to represent a serious risk to society or the individual’s safety. The magistrate can, nevertheless, impose other preventive measures (misure cautelari) but only in the case of an offense punishable by imprisonment for life or for which the maximum prison sentence exceeds 5 years. Such measures (Art. 19-22, Presidential Decree N°448/1988) are ordered hierarchically within what has been defined as a correctional continuum (Gatti and Verde, 1991). The offender can shift from one level to another in the event of noncompliance (the harshest measure being pretrial detention in prison for a maximum of one month). These measures are constituted by prescrizioni (prescriptions), which involve ordering the minor to carry out study or work activities, “confinement to home or other place of private abode,” placement in a group home, and the afore-mentioned pretrial detention.

Concerning the decisions that the court can impose, the penal code states that the ordinary orders and sentences applicable to adults may also be applied to minors (e.g., suspended sentence, nonregistration of the conviction in criminal records, rehabilitation, alternative sanctions) with considerable latitude and reductions; moreover, Presidential Decree N°448/1988 also makes provision for particular orders specifically designed for minors:

For young offenders, including those under the age of 14 years, a provision is made for the application of a special measure (misura di sicurezza) involving confinement to a judicial reformatory (riformatorio giudiziario) or a sort of control in the community (libertà vigilata). Such measures are applied when the individual, whether below or above the age of criminal liability, is regarded as “socially dangerous” (i.e., when the youth is deemed likely to commit further crimes), even if he or she has been judged to be nonresponsible. The provisions can also be imposed either after the custodial sentence has been served (in the case of diminished responsibility for reasons of insanity) or, in the case of absence of responsibility owing to total mental insanity, as an alternative to punishment. The new code provides that control in the community (libertà vigilata) be applied in conformity with Articles 20 and 21 (which refer to prescrizioni and confinement to home), while placement in a reformatory is to be applied “in conformity with Article 22,” which refers to prescrizioni and placement in a group home and only in cases concerning crimes punishable by imprisonment for more than 12 years as a maximum term (Art. 36, subsections 1 and 2). The judicial reformatory is therefore replaced de facto by the group home.

With the implementation of this new important act, the administrative jurisdiction of the juvenile court, which tended to be legalistic in orientation and did not readily embrace the notion that young deviants were “wayward in behavior or character”—beyond social control (irregolarità della condotta o del carattere) (Art. 25 RD N°1404/1934, as modified by law N°888/1956)—has progressively fallen into disuse and finds rare application.

The civil jurisdiction of the juvenile court concerns the various forms of supportive intervention (e.g., adoption, limitation or withdrawal of parental authority, and fostering) invoked in cases of absence of the family, maltreatment, or moral or material abandonment of the minor. Moreover, with a view to discouraging the exploitation of minors by criminal organizations or by adults in general, law N°203/1991 recently reformulated Articles 111 and 112 of the penal code. These articles made provision for increasing punishment for anyone who induces a nonresponsible or nonpunishable person to commit a crime.

Analysis of the data on juvenile delinquency in Italy is hindered by many limitations. While some of the obstacles are similar to those encountered in other countries, several are unique to the Italian context. First, officially based statistical analyses of delinquency often reflect the action of social control agencies rather than the real numbers and features of delinquent behavior. Second, the system for gathering crime figures in Italy has worked rather poorly until recently, often being unreliable and invariably out of date, as is partially reflected by the data presented in the tables here. Furthermore, at the beginning of the 1990s, Italy began to adopt alternative methods, such as self-report studies and victimization surveys (Gatti, Fossa, Marugo, and Materazzi, 1991; Gatti, Malfatti, Marugo, and Tartarini 1991; Gatti et al., 1994; Gatti, Gualco, and Traverso, 2010; ISTAT, 2000).

Notwithstanding these limitations, it is worth examining the judicial data, both because they provide a measure of the judicial reaction with respect to minors and because the data on some serious crimes are not sufficiently representative of the actual situation.

From a qualitative standpoint, the highest percentage of juvenile delinquency is constituted by property offenses, while violent crimes account for a small part of the total (Figure 1). In 2007, out of a total of 38,193 cases of minors reported to the public prosecutor, some 11,839 concerned theft; 2,910 receiving stolen property; 2,217 robbery or extortion; and a very small number kidnapping. Regarding offenses against persons, 3,981 reports were regarded lesioni personali volontarie (malicious wounding, a sort of aggravated assault); 682 violenza sessuale (comprising rape and sexual harassment); and 33 voluntary homicide (murder). The number of reports concerning the production or sale of drugs was high (3,666).

A further issue must be addressed if one wants to compare delinquency in different countries through the analysis of official statistics: the data on reports, prosecutions, and convictions of minors are known to be heavily influenced by the attitudes of citizens and judicial systems, which operate in extremely diverse manners in different national contexts. First, a crime victim may or may not report the crime; nonreporting therefore adds to the so-called “dark number” of crimes. Moreover, in some countries, such as Italy, the police are obliged to press charges, while in others both the police and the public prosecutors have the freedom to choose whether to intervene in the case of an alleged crime. Subsequent entry into the justice system is also strongly conditioned by the legislation in force, which in many situations allows the individual to exit the system, either with or without intervention by the welfare system. Apart from the legal aspects, we must also consider the actual operating of social control institutions, which may adopt a more or less permissive stance in different contexts or periods. Furthermore, the numbers that appear in the tables of judicial statistics are the fruit of successive filters, which markedly affect the results, above and beyond the number of illicit behaviors enacted by minors.

The actions of some extrajudiciary institutions, particularly those of welfare systems, may also have a considerable impact. Indeed, in some countries, minors are preferentially subjected to intervention by the social services, while in other countries or periods, punitive instruments may be utilized more frequently. Thus official statistics, especially in the field of juvenile justice, may well reflect the operating conditions and the punitive or permissive orientation of the different systems rather than the true level of juvenile delinquency.

In order to overcome the unreliability of the official statistics in evaluating the level of antisocial behaviors of minors and circumvent the selectivity barrier of social control, investigative tools have been designed. Specifically, criminological research has attempted to reconnoiter the vast area of hidden crime through the application of particular instruments aimed at ascertaining crimes directly, by questioning both potential offenders and potential victims. These tools have been used to measure the true extent, intensity, trends, and distribution of crime. Admittedly, this approach presents methodological drawbacks, in that there is always the possibility that the replies obtained may be deliberately false or distorted by imprecise memories of events. Moreover, it is difficult to construct sufficiently large representative samples. Nevertheless, self-report studies are increasingly utilized precisely because they are the only possible means of studying the true dimensions of delinquency. This explains why the number of self-report studies has steadily grown since the research conducted in the United States in the 1940s and 1950s (Porterfield, 1946; Wallerstein and Wylie, 1947; Short and Nye, 1959) and why this approach is currently being adopted internationally (Aebi, 2009).

The analyses presented here, and concerning Italy, are based on the second wave of the International Self-Report Delinquency Study (ISRD-2); the first wave (ISRD-1) was implemented in 1992 in 13 countries, having been set up by the Research and Documentation Centre of the Dutch Ministry of Justice (Wetenschappelijk Onderzoek- en Documentatie Centrum;Junger-Tas et al., 2010). The main aims of ISRD-2 were to analyze differences in the rates of delinquency and victimization of youths aged between 12 and 16 years (corresponding to school grades 7, 8, and 9) among industrialized countries, to develop and standardize the methodology of self-report questionnaires, and to test the generalizability of different theories, such as self-control theory and lifestyle theory (Junger-Tas et al., 2010). The survey questions pertaining to delinquency were fairly similar to those used in the National Youth Survey and the Denver Youth Study (Aebi, 2009).

The ISRD-2 survey was conducted in 30 countries (mainly European) between November 2005 and February 2007. Most participating countries constructed an urban sample based on a minimum of five cities/towns, while some countries used national samples selected randomly from registers of all the school classes in the country, with oversampling in at least one city. For the purposes of the analysis, in order to make a comparative evaluation, the sample was restricted to European countries and, in order to facilitate comparisons among the countries, two selections were made. Only seventh-, eighth, and ninth-grade students and only classes from medium-sized towns (120,000 inhabitants ± 20 percent) and large cities (about 500,000 inhabitants) were considered; the total sample comprised 33,566 students from 51 cities in 25 European countries. The respondents were asked to answer questions regarding 12 crimes: 6 property offenses (shoplifting; theft of a bicycle, moped, scooter, motorbike; theft of a car; theft from a car; breaking into a building with intent to steal; and selling drugs) and 6 violent offenses (assault, robbery, bag-snatching, vandalism, carrying a weapon, and group fighting). The samples selected were not representative of each country as a whole but only of a few cities, and the comparisons regarded only large and medium-sized cities in 25 countries; thus it was not possible to compare the different countries or draw up rank-order lists. Another limit of the research stems from the fact that the samples were made up of students and did not include minors not attending school, a feature that might give rise to some distortion. Indeed, while in some countries all, or almost all, young people in the age groups considered attend school, in other, less organized, countries, a certain percentage of subjects of mandatory school age do not.

Despite these limitations, it is interesting to compare the rates of juvenile delinquency in the Italian cities with those recorded in the other 24 European countries.

Figure 2 reports the percentages of minors who admitted having committed at least one of the 12 offenses considered in the year prior to the interview.

As can be seen, the percentage recorded in the Italian cities (25.5 percent) was slightly above the mean value, in the sixth position on the list after Ireland, the Netherlands, Germany, France, and Hungary. Clearly these rates are influenced by the frequency of less serious crimes, such as shoplifting. The figures that follow show the rates of relatively more serious crimes. Figure 3 reports the prevalence rates of violent crimes of a certain gravity, specifically the percentages of youths who admitted having committed at least one of the following violent crimes: assault, bag-snatching, robbery.

In this case, too, the frequency recorded in the Italian cities (3.8 percent) is slightly above the mean value (3.3 percent), in the eighth position. With regard to property offenses (cf. Figure 4) of a certain gravity (car theft, theft from a car, burglary) Italy seems to be in a worse position, in that 3.6 percent of youths admitted committing a crime of this kind, in comparison with a mean value of 2 percent, thus coming in second place after Ireland.

On the basis of these data, it can be concluded that self-reported juvenile delinquency is slightly higher in the Italian cities surveyed than in the other European cities and that serious property offenses appear to be particularly frequent.

Regarding the evolution of official juvenile delinquency in Italy over time, a preliminary assessment can be derived from the absolute number of minors reported to the police in each year considered. Although classified in the judiciary statistics as “reports to the public prosecutor,” this number includes many cases in which no judicial proceedings ensued, either because the offender was not yet 14 years old at the time of the offense and therefore not liable to prosecution, because the judicial authority did not deem the reported behavior to constitute an offense, because the victim did not make a formal complaint (in cases requiring a formal complaint), or for other reasons. Thus in 2011 penal action was undertaken against 20,458 of the 37,440 minors reported to the public prosecutor.

The data regarding reports to the public prosecutor therefore provide a preliminary indication of the number of offenses indicated as being of penal relevance, even if no further action was taken.

The overall number of minors reported to the public prosecutor (see Figure 5) can be examined in parallel with the number of minors for whom penal action was initiated. In the latter case, the minors (age at least 14 years but who had not yet turned 18) were deemed by the public prosecutor, after a preliminary examination, to be liable for prosecution.

Figure 5 reports both series of data. Because the data on reports to the public prosecutor from 1976 to 1986 are missing, a long-term historical analysis of these numbers cannot be made; this can, however, be done with regard to prosecutions up to 2011.

With regard to the number of minors against whom penal action was initiated, the graph shows a relatively stable trend from 1971 to 1978, followed by a sharp drop. The lower values remained fairly steady until 1987, when they began to rise again. The marked reduction in the number of minors prosecuted between 1979 and 1987 can be attributed to a change in the reaction of the institutions dealing with young delinquents rather than to a decline in criminal behavior. Specifically, these lower statistics coincide with the enforcement of the aforementioned legislative decree N. 616/77 (Presidential Decree N°616/1977), which transferred many of the responsibilities for social services for minors from the state to the local authorities, leading to a reorganization of social services, greater investment in this sector, and a shift in the ideology and practices of preventive and rehabilitative intervention. As a result, a range of problematic cases were transferred to the juvenile social services that were organized by the municipalities and hence were dealt with outside the penal system.

Moreover, it can be hypothesized that this new perspective influenced all the other social control agencies, thereby leading to a new “style” of intervention and reducing the implementation of penal action in many cases in which the application of welfare instruments was deemed possible.

By the end of the 1980s, however, this substantial process of penal “decompression” had run its course. Indeed, from 1987 on, a steady increase was seen both in the number of reports to the public prosecutor—which stabilized at far higher levels (between 43,000 and 45,000 between 1991 and 1999) than in the previous period—and in the implementation of penal action. Both of these trends were probably facilitated by new laws regulating penal procedure for minors, which came into force in 1989 and aimed at modernizing and rationalizing the system of juvenile justice. As can be observed, however, the rise began a couple of years before the new legislation came into effect (October 1989); it may therefore also be attributed to the difficulties of local authority social services in handling problem minors outside the judicial setting. Nevertheless, the sharp upsurge confirms that the reorganization of juvenile justice facilitated, and in some way “promoted,” both reporting (which almost doubled) and penal proceedings (which increased by about one-quarter). From that time on, reporting rates remained about twice as high as prosecution rates, as indeed they are today, even if, since the end of the 1990s, reports are slowly descending, while penal proceedings remain stable.

This increase also reflects a particular situation that has arisen in Italy in recent years and that is linked to the phenomenon of immigration. From 1990 on, prosecutions displayed a substantially stable correspondence with oscillations in the number of reports to the prosecutor, accounting for about 60 percent of all cases reported from 1991 to 1999 and subsequently declining to about 50 percent from 2000 to 2011. Moreover, on examining the data on reports in general, it emerges that the percentage of foreign minors rose from 18 percent of the total in 1991 to 27 percent in 2007 (see later discussion). In addition, more of the foreign minors reported were less than 14 years old (20 percent vs. 16 percent of Italians in 2007) and were therefore not liable to prosecution. The steady increase in the number of reports of foreign minors under 14 years of age may partially explain the great divergence that has arisen in recent years between the total number of minors reported and those prosecuted. This divergence, however, is also attributable to the reorganization of the system following the reform of juvenile justice (e.g., a specialized section of judicial police was instituted in every prosecutor’s office in the law courts, which probably facilitated the reporting of minors even for offenses that were not followed by penal action).

Some important features of the Italian justice system can also be deduced from the data on placements in juvenile penal institutions (reception centers, group homes for juveniles from the penal system, and juvenile prisons). In interpreting the overall figure for juvenile imprisonment, data regarding the whole of such institutions must be taken into account, since reception centers and group homes play an important role as filters.

Figure 6 shows the number of minors who have entered these institutions since data became available. Some caution is necessary here, in that the data on admissions to the three institutions cannot be summed because the reception center, as mentioned earlier, is the place where juveniles are taken after being arrested; they stay there for no more than a few days, after which they can be released or sent to a group home or a juvenile prison. For example, in 1990, about one-quarter of the minors taken into reception centers subsequently proceeded to preventive detention (De Leo, Patrizi, Donato, and Scali, 1993). Figure 6 shows that the number of minors entering juvenile prisons fell markedly at the end of the 1980s and reached an all-time low in 1990, the year when the new procedural norms came into effect. These provisions markedly reduced the option of imposing preventive detention. In the following year, however, as mentioned, these provisions were modified in order to permit a broader use of such measures. Subsequently, the number of admissions to penitentiary facilities increased, as is shown by entries to reception centers, which rose to about 4,000 per year from 1991 to the end of the century and then began to decline gradually, though not uniformly, to about 2,000 in 2013. A similar trend can be seen in admissions to juvenile prisons, which rose from about 1,000 per year in 1990 to about 2,000 throughout the rest of the decade and then declined to slightly more than 1,000 in 2009. At the same time, however, admissions to group homes increased after 1998 (the first year for which these data are available), doubling from a level of about 1,000 per year to about 2,000 between 2004 and 2013.

The reduced utilization of custodial and/or residential facilities was also made possible by the afore-mentioned introduction (in 1989) of the new options of acquittal on the grounds of insignificance of the offense and juvenile probation. In particular, implementation of this latter option steadily increased, from the 788 measures imposed in 1992 to 3,368 in 2012. It is also noteworthy that probation was sometimes implemented even in cases of serious crimes. Acquittals on the grounds of insignificance of the offense rose from 970 in 1991 to 5,846 in 2011.

In general, the application of the differential instruments available has taken a fairly high percentage of cases out of the juvenile justice system. For instance, in the most recent year for which data are available (2011), 9 percent of cases were dismissed because of the age of the offender (under 14 years), 29 percent were dismissed on the grounds of insignificance of the offense, 2 percent were dismissed on the grounds of immaturity (a little-used option that has now evidently worn out its utility), and in 14 percent a judicial pardon was granted. If the number of minors placed on probation (about 16 percent of cases) is added to these figures, it emerges that about 70 percent of the cases in which prosecution was initiated were removed from the system.

Given such premises, we can say that custodial sentence as punishment, in the strict sense, is inflicted on an extremely limited number of minors. On March 31, 2015, for example, the number of minors serving a custodial sentence in juvenile prisons (prigione-scuola) was 418 (Dipartimento per la Giustizia Minorile, 2015). One feature that conflicts with the substantially nonpunitive nature of the system and with the evident attempt to deal with the problems of minors through a psychological and educational approach is the slowness of trials. Indeed, trials are often held long after the offense ascribed to the minor has been committed. This clashes with the objectives set by legislators and is due to a range of organizational and financial problems. If these issues are not tackled, the efforts made so far will have been in vain.

The presence of foreign minors within the juvenile justice system deserves particular attention. For more than a century after its foundation as a unified state in 1861, Italy was a nation from which many emigrated in search of work and prosperity to economically more advanced countries (United States, Latin America, Australia, Germany, Belgium, etc.). By contrast, immigration is a relatively recent phenomenon. Toward the end of the 1970s, the number of immigrants began to rise and has since grown steadily, placing Italy in a similar position to that of other large European countries. In 2012 Italy had the third highest number of foreign residents in Europe—4.8 million, accounting for 7.9 percent of the population—after Germany (7.4 million) and Spain (5.6 million) and ahead of the United Kingdom (4.8 million) and France (3.8 million; European Social Statistics, 2013). In addition to the number of regular foreign residents, the presence of illegal/undocumented immigrants also needs to be considered. According to research conducted in 2008 by the ISMU foundation, these latter numbered 650,000 (17.9 percent of the number of regular immigrants; ISMU, 2009).

Foreign residents in Italy are significantly younger than Italian citizens. Indeed, 9 to 10 percent of pupils in Italian schools do not have Italian citizenship; these are distributed nonhomogeneously throughout the country and are more numerous in the north and in urban areas. While foreign students come from both European and non-European backgrounds, almost half are from just three countries: Romania, Morocco, and Albania (in decreasing order). It is noteworthy that half of the foreign students were born in Italy to immigrant parents who have not yet obtained Italian citizenship (MIUR, ISMU, 2013). The economic conditions of foreigners are worse than those of Italians; indeed, almost half (49.1 percent) of families composed only of foreigners are at risk of poverty, as opposed to 17.4 percent of families composed only of Italians (ISTAT, 2011).

These figures provide a clear indication of the fact that the phenomenon of immigration in Italy has assumed considerable importance from a social, economic, and political point of view and that the justice system in particular, including the juvenile sector, has had to tackle this problem; indeed, foreigners are markedly overrepresented among those charged with offenses, tried and convicted, and, especially, imprisoned.

This is also true of minors. A very approximate idea of the deviance of foreign minors can be deduced from the number of minors without Italian citizenship reported to the public prosecutors of the juvenile courts; in 2007; these accounted for 27 percent of the total (10,390 out of a total of 38,139). With regard to this marked overrepresentation of foreigners among those reported, opposing hypotheses have been formulated. Some authors, such as Barbagli (1998), claim that foreigners commit more offenses than Italians due to their difficult economic and social conditions; others, such as Dal Lago (1999), claim that the large numbers of foreigners in the justice system are essentially the result of a discriminatory enforcement, which impacts more heavily on the weaker strata of the population and therefore on many immigrants, who come in for selective attention on the part of law-enforcement officers. What is certain, however, is that the juvenile courts tend to impose harsher sentences on foreigners, who are more often deprived of their freedom than Italians. In 2007, for example, while foreigners made up 27 percent of the minors reported, they accounted for 54 percent of admissions to reception centers and 52 percent of admissions to juvenile prisons. Similarly, foreigners are less likely to have their cases dismissed or to be placed on probation; in 2007 only 16 percent of these provisions were granted to foreign minors (Dipartimento per la Giustizia Minorile, 2015). This constitutes a clear example of what has been defined as bifurcation, or the tendency of the justice system to treat different categories of subjects in different ways only because of their national origin. In this perspective, measures that avoid punishment and placement in institutions are more likely to be imposed on youths from a better social and family background, while more deprived youths, many of whom are foreign minors, find themselves at a disadvantage and are more likely to be placed in institutions.

From a sociodemographic standpoint, the characteristics of foreign minors subjected to judicial measures vary greatly. Nevertheless, some common features have been observed. Specifically, foreign minors who enter the penal system tend more often to be behind in their schooling and to have few professional skills. Moreover, they display a peculiar gender mix, in that the predominance of males over females is less marked than among Italian youths, especially in the younger age classes. In addition, foreign youths are more often involved in property offenses and display higher rates of recidivism. Finally, the territorial distribution of foreign minors reported and sentenced is not homogeneous, in that there are far more foreign youths in northern and central regions of Italy than in southern areas of the country.

A particular problem concerns nomadic youths, who accounted for about 9 percent of foreign minors in the care of the juvenile justice social services in 2012. These individuals mainly come from Romania, Bosnia-Herzegovina, Croatia, and Serbia; many are girls, and they are almost exclusively involved in theft, robbery, and receiving stolen goods (Mastropasqua, 2013; Mastropasqua, Bracalenti, and Leogrande, 2013).

Another particularly problematic issue regards unaccompanied foreign minors, who arrive alone in Italy. They are sent abroad by their families in order to escape from poverty and marginalization and to seek better prospects for themselves and for the rest of their families, to whom they send cash. In 2012 unaccompanied minors accounted for 8 percent of the total number of foreigners in the care of the juvenile justice social services. Unlike nomadic minors, few of these subjects are females. Most unaccompanied minors are from African countries, particularly Egypt, Gabon, Senegal, and Tunisia (Mastropasqua, 2013); they are mainly between 16 and 17 years old and are at high risk of becoming involved in organized crime, particularly in the field of drug-selling, given their poor economic conditions.

In the light of the data reported, the massive presence of foreigners in the juvenile justice system is the most important new development seen in this sector in recent years. The resulting problems that those who work in the juvenile justice system are faced with are complex and variegated. Indeed, this population displays diverse features in terms of culture, juridical status, migratory routes, and personal and family history; there are marked differences between first- and second-generation immigrants (Melossi, de Giorgi, and Massa, 2008), between unaccompanied minors and those who are part of relatively stable families, and between European and non-European youths. In general, the staff of the Italian juvenile justice system are not sufficiently well prepared to tackle these complex problems, and they themselves invoke reforms and innovative interventions in a system that was originally designed and organized to deal with Italian minors (Mastropasqua, 2013).

Based on these points, it seems reasonable to wonder whether the Italian juvenile justice system has any peculiar characteristics and, if so, what these are.

We should start from a social datum that, thanks to Garland (2001) in particular, has finally been recognized: that is, the “dual” ambivalent tendency that is widespread throughout the population—the desire both to punish and to treat offenders. The juvenile justice system has not eluded this nemesis, even though the process of maturation underway has always paid lip service to the need to prioritize educational and rehabilitative aspects in the treatment of minors. Thus, for minors in particular, the paramount necessity to treat and rehabilitate has always been invoked, though in the case of particularly serious crimes more restrictive solutions are adopted. In the 1950s and 1960s, the treatment model prevailed. This was followed in the 1970s by a return to punishment, while the current trend sees so-called “alternatives” and “restorative justice” alongside increasingly punitive measures (cf. Junger Tas, 2009).

Today, therefore, juvenile justice systems continue to be characterized by the synchronous co-presence of punishment and rehabilitation, of sanction and treatment. Long rejected, the punitive orientation has reemerged and is openly involved in all Western countries. From the suppression of the vindictive element, as seen in the 1950s and 1960s, we have shifted to a split conception, in Garland’s sense (2001), which does not bother to invoke psychoanalysis to point out the schizophrenia of the punitive function. Other authors, too, such as Bortner (1988) and Gatti (1993), have described the “two-faced” nature of the justice system, particularly the juvenile system, which, like Janus, shows offenders two versions: the “open-door” version, which promotes social inclusion, and the “closed-door” version (with the offender “inside,” naturally), which represents the exclusion and expulsion of those who do not fall within the criteria of admissibility proper to the rehabilitative sector of the system.

All this is happening to a greater or lesser extent in Western countries and in a way that is somewhat difficult to conceptualize in detail. We may, however, briefly say that North American and Anglo-Saxon northern European systems are more punitive, while Scandinavian and southern European countries are less so, though with many exceptions in one direction or the other; in Australasian countries, for example, the European tradition has been seasoned with practices of restorative justice derived from contact with “other” cultures, such as those of the Maoris and the Australian aborigines. According to Muncie (2005), the trend toward the globalization of systems, though present, tends to meet with the strong resistance that derives from local cultures and the jealous conservation of the powers of individual states, which are unwilling to give up sovereign prerogatives linked to profound cultural differences.

How does Italy fit into this context? In this perspective, it surely stands out from many other European countries. Indeed, as already pointed out by Lemert (1988), the importance of family ties and the strength of informal systems of control explain why juvenile justice in Italy is mild.

As has been seen, juvenile justice in Italy was reshaped at the end of the 1980s through the introduction of measures that brought educational features to penal procedure. The guidelines of the new code openly envision the possibility to remove the minor promptly from the penal procedure (see previous discussion) and to prohibit publicity of the fact in order to avoid stigmatization. Moreover, they recommend detention, whether preventive or punitive, as a residual measure to be used as little as possible. The objective is to reduce the institutionalization of minors as far as possible through the provision of support for the individual’s family, as envisaged by international conventions. As already mentioned, a mainstay of the new system is the option to suspend the penal procedure and to put the minor on probation, the aim being to avoid the untoward effects inherent in the penal response and to favor support and education.

Nevertheless, the system is not free from ambiguity, as is acknowledged by many juvenile judges (most recently, Pazé, 2013). However, this seems to be inevitable when the educational design is located within a framework that is globally constrictive.

In general, most of the Italian scholars who have examined juvenile justice in Italy consider, in agreement with Lemert (1988), that the system is, on the whole, mild (Scalia, 2005), oriented mainly to educational demands, and far removed from the punitive excesses typical of the systems in force in Anglo-Saxon countries. It is also claimed that this orientation, which is generally benevolent toward minors, is enabled by the fact that social alarm in Italy has never been directed toward juvenile delinquency; rather, it has focused on “enemies” of other kinds, such as terrorists and drug addicts in the past, and immigrants (sometimes also toward professional politicians!) in the present.

In contrast with the prevailing opinion, Nelken (2006) has proposed a more complex view that questions the true mildness of juvenile justice in Italy. In Nelken’s opinion, it is not really a matter of tolerance as an explicitly value being pursued but rather the combined effect of poor organization, the lack of resources, and the inconsistency and distortion of repression and control with respect to the various categories of minors. Thus, in Italy, forgoing punishment might be the consequence of a system that works poorly rather than the result of a clearly pursued option.

In our view, however, the Italian system certainly aspires to principles of tolerance and benevolence, even though the constraints placed upon welfare and the scarcity of resources do not always allow interventions in keeping with these principles to be implemented.

Two main criticisms may be leveled against the system. First, it makes little distinction between punishment and help and brings help forward to a phase in which guilt has not yet been established; moreover, the length of trials is such that any type of response is jeopardized. Second, intervention of an educational nature involves Italian minors to a far greater extent than foreign minors. Indeed, as mentioned earlier, the treatment received by the latter is far less educational or rehabilitative and far more punitive; this confirms the two-faced nature of the response of the Italian juvenile justice system to the extent that two categories of “users” can be distinguished.