SENZA CENSURA n.9
Italy, october 2002

THE PRESENT ORGANIZATION OF ITALIAN PRISON SYSTEM AND THE 41bis ACT

Taking as introduction a previous article on Senza censura n°5, we are trying to focus on the prison system's organization, analysing some provisions given by the Prison Management Department about "prisoners management" and prison circuits differentiation, deepening in the second part the analysis about the circuit assigned to prisoners under the 41bis act.
The 20 years experience on differentiation and individualization of jail treatment in the 90s allowed to put in order the material relative to prison circuits correlating it to the jail law (the so called jail reform of 1975 renewed in 1986) and to the law decree Scotti-Martelli , which added to the previous 41-bis another paragraph to "suspend the normal regulation of jail treatment towards those who have been imprisoned because of mafia association, kidnapping with extortion aim, traffic in drug, terrorism, homicide, robbery, extortion. At the moment jail circuits are classified by jail administration in this way:

1) First level (High Safety) , to which belong institutions and sections destined to the 41-bis. The first level circuit is destined to prisoners accused or convicted of crimes as mafia association, kidnapping to make extortion, drug traffic ass.
"The differentiation of those prisoners is justified by their dangerousness, linked to the kind of crime and the ability of proselytism or overpowering, and also by the peculiarity to be excluded from alternative measures and jail benefits.
The circuit provides for a strict separation of them from other prisoners, and for very sure structures with electronic and mechanical devices, that is the best safety. To manage those prisoners they are established some regulations:
1. First level prisoners have to be assigned or transferred only to High Safety institutions. The most dangerous prisoners have to be assigned to High Safety institutions far from their region.
2. First level prisoners cannot go out from their sections. This means that all their activities (walk, talk, school, sociality...) have to be done inside the section without they occupy or use other parts of the institution and without they meet prisoners belonging to another level.
3. Inside all High Safety sections and into all activities with their presence, it has to be done a very careful control, adequate to their dangerousness
4. (...)
5. Safety exigencies have to be more important than treatment . Nevertheless they are desirable school, work, cultural, religious, sport activities, within the respect and safety, order and discipline. These activities have to be done inside the section, and the number of first level prisoners taking part to activities has to be limited for safety exigency.
7.First level prisoners are excluded from benefits of external work, permissions and alternative measures, unless they leave their criminal choose and they collaborate with justice. Instead they are admitted to early liberation on condition that they have given prove to take part to re-education. This kind of participation cannot be identified absolutely with a formally regular behaviour typical of mafia prisoners, that is only a pretence which does not mean intention or will to mend one's way, while it hides the keeping of the criminal chose and an high level of dangerousness.

In 1998 a new paper explains better what categories of prisoners have to be assigned to different levels or circuits , and it introduces another classification for those "dangerous prisoners called "common", and also for terrorist or subversive prisoners not considered by the 1993 paper though assigned to severe sections which represent the continuation of those sections to which it was
applied the abrogated act. n.90".
For these prisoners it is regulated the circuit called E.I.C.V., that is a high control circuit and it is part of the first level.
"Prisoners belonging to these sections are interesting for public opinion because of their famous crimes or the alarm they create with terrorist crimes.

2)Second Level (Medium Safety)
This circuit is destined to prisoners which don't belong to the first and the third level, that is the greatest part of prisoners. This circuit needs an equilibrium between safety and treatment. It has to be granted safety, that is order and discipline into the Institute, but they have also to project and to realize all possible school activities, and for this aim they have to develop a better relationship with regions and municipalities , with all institutional and social sectors, favouring the contribution of external community and volunteers.
After a period characterized by an opposite tendency to the authentic spirit of the penitentiary reform, it is absolutely necessary to encourage treatment and social activities, to create the ideal jail of the Italian penitentiary administration.

3)Third Level (Attenuated Detention)
This circuit is destined to not very dangerous toxic prisoners, more recoverable. While in the first circuit safety is more important than treatment, here the treatment prevails , because toxic prisoners have not to be punished, but for them it is necessary a rehabilitation; for this reason there is the oblige to cooperate with the mutual system.


As we can see reading these provisions, since 1993 it is used the experience done with the experimentation of special jails, regulating "prisoners' management", sharpening all instruments to differentiate the treatment.

The 41-bis act , introduced in a particular period as a temporary law to face the mafia emergency, has become the principal instrument of jail repressive system, because it does not represent the expression of a particular moment of clash, but it is the greatest instrument of repression against who struggles and organize.
Let's see what it provides for, to whom it is applied, what conditions of life are imposed to those prisoners.

The 41-bis act states:
"When there are serious reasons of order and public safety, even by request of the Home Secretary, the Minister of Justice has got the power to suspend totally or partially towards prisoners for each crime described by the 4-bis act, the application of treatment regulations provided by the present law, which could be in contrast with order and safety exigencies".
This means that for a specific category of prisoners (accused or condemned for mafia, kidnapping, traffic in drug), they are not applied regulations of ordinary treatment because there is presumption of absolute dangerousness, based on the observation of the prisoner.
People detained in these sections are 600. Here it has been applied the mechanism of "penalty into penalty". These prisoners can make only an hour a month of talk through a dividing glass, and they talk with relatives through interphones.
Many of them, having not money, have a talk every four months and so they see their relatives three hours a year because, differently from other prisoners, they can't accumulate hours of talk.
If during the month the prisoner has not a talk, he can make a recorded call , but he can't call home; the call has to be done in a jail near his relatives' house. his relatives have to go into a jail to be identified and waiting hours to speak.
Prisoners can't receive more than two packs a month.
They can't cook and they have to buy only products or food decided by the jail administration. In many sections it is prohibited to buy bananas or jam.
It doesn't matter if one is ill, if needs a particular diet or if he is vegetarian. it is granted only boiled pasta without any seasoning. In many prisons they are not observed decrees regarding food, which is poor for quantity and quality.
They can organize cultural, recreational or sport activities, but concretely they cannot even participate because into many sections there are not structures destined to sociality.
This is in contrast with the Constitutional Court which has declared that the 41bis act is not illegitimate, if they are granted reforming activities provided for other prisoners(!).
They can't do any craft, so they can't paint, carve wood, or other activities helping them to forget where they are for some moments.
A letter is given the prisoner 7-10 days late, because of control; if only one word cannot be understood, the letter is sent to the judicial authority, even if it has been written by a child.
There are other restrictions decided by the institute's director, or better, by the responsible for the mobile operative group, that is the special corps of jail police which control these sections. So, into many of these sections it is prohibited to use gloves or a wool hat, other times it is allowed to use hat if it doesn't cover ears (we have to think that many prisons are situated in North Italy...); prisoners cannot use more than two blankets; it is limited the number of photographs to keep into the cell, the number of books or journals.
Every day prisoners have the same obsessive rhythm of life. Often time for shower coincides with that of outdoor walk, so they can do only one of these things. prisoners can go outside to walk in turn, four-five persons every time, ever with the same people, without the possibility to decide for groups.
Though there it is not prohibited to work inside sections, in many jails jobs are removed from prisoners under 41-bis and they are given to prisoners belonging to other sections, which do their job under a severe control, and for them it is prohibited to talk with prisoners under 41-bis.
There are other limitations against the right to defence: these prisoners cannot take part in trials in which they are accused. For them it has been invented the distance trial, with the so called videoconference.
We have said that this limitation to the right of defence was necessary to avoid the "jail tourism" and in particular meetings among co-accused prisoners. In reality those accused in a trial are destined to the same institute and those who are in other prisons are transferred every day with exhausting trips to see trials in videoconference. They can talk with lawyers only through telephones, without any privacy.
So, the situation is this: into courtrooms they stay only judges and lawyers, while accused, which had not to meet , are put into the same room of a jail to look at TV a trial where they accused are absent!
Talks with lawyers are regulated as for relatives, that is through a glass. Their talk is recorded, and in many prisons it is prohibited to bring notebooks, making futile the defence.
All measures applied to these prisoners have nothing to do with dangerousness, or with the "exigency of order and safety".
We can't understand what is different if prisoners have two hours of talk than one, or how they can attempt to safety if in January they dress wool gloves, they eat bananas bought by prison administration, or if they change a newspaper during the outdoor walk, or if they keep in the cell more than ten photographs.
It's clear that the aim of this special regime instituted by the 41-bis act is not to protect the community , but to use all instruments of psychic and physical compulsion to induce prisoners to collaborate.

The new bill
On 25th September the Senate Committee for Justice has passed unanimously the new bill which modifies the 41-bis act and the 4-bis act of the Jail System.
It is decided the stabilization of the 41-bis act which, since now, has been at least formally, a temporary regulation, even if in substance , through many adjournments, it is applied to hundreds of prisoners since more than ten years.
It is increased the period of application, from six months (indefinitely adjourn able) to a period between one and two years of detention.
This means that the applicatory provision of 41-bis cannot be grasped every six months as now, but every year or two years.
We have to remember that it seems to be an iron pact between Minister (as organ applying provisions) and Surveillance Courts (territorial organs for claims), because during last ten years accepted claims have been few; Surveillance Courts affirm only that the provision is lawful and that jail life under 41-bis is not an "inhuman and degrading treatment".
The fact that it is applied for a period longer than "from six months to six months" is alarming, but it allows to appeal to the Court of Cassation, while during these years the Supreme Court has never pronounced because the claim was made at the time limit , and it was declared inadmissible for lack of interest, even if the same subject were again subjected to the 41-bis because of a new provision identical to the previous.
Other restrictions are relative to the number of people (three) to have a social relationship, and to the outdoor walk (max. two hours).
The greatest novelty is relative to the exclusion of any benefit provided by the jail code for terrorism or subversion of the jail code, and also for slavery, slave trade, alienation and slave buying); it is applied the 41-bis also to those crimes.
Only with repentance or collaboration with the State, it is possible to enjoy alternative measures as half-freedom, outdoor work, premium-permissions.
The 41-bis regime can be applied mostly to revolutionary prisoners imprisoned since 15-20 years because the law is retroactive, and it is not applies only to whom yet enjoys alternative measures.
Certainly it is going to be applied to members of revolutionary organizations, but in general to whom organize on an antagonist level; it is going to be the principal instrument against clandestine immigration thanks to the condition about slavery, which will hit not taskmasters, but "slaves".