Minors, even under 14, increasingly enlisted by organized crime, baby gangs structured, armed and ferocious as clans, drug dealing experienced as “school-to-work alternation” and group sexual violence as teenage exuberance, criminal patterns as sung and acted out lifestyles.
Juvenile delinquency is becoming increasingly “normalized,” inscribed as part of a generalized “juvenile malaise” rather than deviance in the strict sense, a symptom of a changing society, but also of inadequate institutions and instruments of prevention and counteraction. The city of boys is a world now inhabited by the ghosts of frustrations and pain, of unattainable dreams, anesthetized by alcohol and drugs, with a frightening increase in addiction among younger and younger youth. A city abandoned by adults, always busy with something else, inadequate and disoriented, ready to flee from parental failure and bent on blaming schools and institutions, frightened and now resigned.
In the face of a society increasingly alarmed by a youth experienced as deviant, dangerous and out of control, Italy’s juvenile justice system (the result of multiple legislative interventions, layered but not organic) manifests the chronicity of its inability, not only to achieve its original purposes but, above all, to be perceived as a bulwark of juvenile protection and juvenile crime prevention.
In recent decades, the population of juvenile defendants in Italy has undergone significant changes, reflecting social, cultural and legislative dynamics that have shaped the juvenile justice environment in the country.
One of the most obvious transformations concerns the perception of criminal responsibility for juveniles. Over the years, there has been a shift in approach from a strict-paternalistic view to a paradigm more oriented toward individual responsibility. This change was most evident with the 1988 reform, which introduced the institution of suspended trial with probation for the juvenile defendant, aimed at actively involving the juvenile in his or her own reeducation.
With this in mind, there has been a growing awareness of the importance of avoiding the systematic use of imprisonment for juveniles. This has led to the implementation of programs and initiatives aimed at providing reeducational and preventive solutions, thereby reducing the number of incarcerated youth. Suspension of trial, the institution of “irrelevance of the fact,” judicial pardons, and other measures aimed at the juvenile’s rapid exit from the juvenile justice system (considered afflictive and stigmatizing in itself) have, however, often gained ground as deflective tools for court workloads and the dramatic shortage of resources for juvenile social services. An approach that has also reduced, if not eliminated altogether, confrontation with victims (who are almost always absent in juvenile proceedings) and which, moreover, proves totally inadequate in the face of the exponential increase in group crime phenomena. The result is that the juvenile not only does not confront the punishment (regardless of the nature of the punishment), not even in terms of the fear experienced, but also does not confront the process and the victims: elements, the latter, that constitute pathways that are nonetheless empowering.
The phenomena of greatest alarm: baby gangs
In 2022, there were 14,221 juveniles in the juvenile welfare service’s charge in criminal proceedings for the most serious offenses, including 6,400 from Campania. There were 400 juveniles detained at the 17 Juvenile Correctional Institutions, of whom 201 (50 percent) were foreign minors, mainly Romanian, followed by Moroccan and then Albanian.
Alongside the phenomenon with greater diffusion in the south of Italy and in particular in Campania and the metropolitan cities of Sicily and Apulia, of the enlistment by the mafias of young boys for activities of transportation and drug dealing, the juvenile criminal phenomenon that has been of greatest concern in recent times is represented by the so-called “baby gangs,” groups composed of minors and sometimes young adults, who make themselves the protagonists of particularly alarming crimes: fights aggravated by the consequences and use of firearms, murders, robberies and extortion.d. “baby gangs,” groups composed of minors and sometimes young adults, who become the protagonists of particularly alarming crimes: fights aggravated by the consequences and use of firearms, murders, robberies and extortion, organized drug dealing with widespread and capillary networks, and group sexual violence.
According to data collected in the area by the Police and Social Services, the most distinctive features of baby gangs are the severity and repetitiveness of the crimes committed[1]. Groups often differ in common socio-anagraphic characteristics of members, type of social media activity, and an attempt to operate forms of control over their territory.
It is particularly difficult to operate an analytical data collection activity to identify the number of youth gangs in the territory and the incidence of these on the total number of crimes committed by juveniles. However, there are a number of indicators that can at least provide a picture on the growth of the phenomenon.
A 2022 research conducted in collaboration with the Ministry of Justice showed that there has been a noticeable increase in press articles containing references to “juvenile gang” or “baby gang” over the past few years. Specifically, it rose from 612 in 2017 to 1909 in 2022.
Although the extent of this increase may in part be due to increased public awareness of the issue, the Provincial Carabinieri Commands and Police Headquarters state how cases of fights, beatings, injuries, thefts or robberies on public streets and disturbance of the public peace attributable to baby gangs are on the rise during the same period.
Another relevant fact is the composition of these groups: the majority of the teens are Italian and about half do not come from socio-economic hardship situations, with a prevalence of teens between the ages of 15 and 17.
There are different types of baby gangs, some of which are inspired by homegrown or foreign organized crime groups, but the most prevalent are groups of unorganized teens with weak social ties and without defined hierarchies or specific criminal aims, devoted mainly to occasional violent or deviant activities.
According to data from the USSM (Juvenile Social Service Offices), only 3 percent of boys involved in juvenile gang-related crimes end up in juvenile correctional institutions. Most, however, are involved in reeducational programs: the institution of probation is applied to about 50 percent of these minors.
However, it is shown that alongside the albeit commendable activities of study, work, socially useful or mediation with victims, there are very few (around 15 percent) prescriptions regarding compliance with schedules or prohibitions to frequent certain places and people.
This aspect, on the other hand, should assume primary importance for defendants for crimes committed with other minors. In fact, during the adolescent period, the major influencing factors on a person’s personality formation are family support and relationships with one’s peers[2].
According to some studies, adolescents with prosocial friendships or groups would be less likely to engage in antisocial behavior (so-called peer pressure[3]) and would also be better able to cope with any adversity from the family unit[4]. In fact, peer disapproval of criminal behavior would reduce the commission of violent crimes.
In contrast, hanging out with deviant peers is very often the most significant predictor of antisocial behavior[5].
The problem of youth gangs has been addressed in various ways in foreign legal systems, with the approach taken often influenced by the severity and prevalence of the phenomenon in each nation. In the United States in particular, baby gangs have been a major focus of public debate. In fact, the phenomenon has had a significant impact especially in urban communities, giving rise to coping strategies that have evolved over time. In the 1980s and 1990s, some U.S. cities implemented more aggressive approaches, using particularly strong“law and order” policies and increasing penalties for gang-associated crimes.
However, in recent decades, there has been a transition to more prevention- and rehabilitation-oriented approaches. Prevention programs, social service interventions, educational opportunities and reintegration programs have been developed to provide alternatives to gang life and reduce youth vulnerability to such involvement.
The approach varies greatly according to local specifics and the perception of the problem. While some jurisdictions in the United States continue to emphasize law enforcement, many are trying to balance public safety with programs that address the underlying causes of gang involvement, such as poverty, lack of opportunity, and family challenges.
In fact, interventions used include community mobilization, involving local citizens, including former gang members, community groups and agencies, and coordination of programs and staff functions within and across agencies. Opportunities are also sought: development of various specific education, training and employment programs aimed at the young people involved.
There is no shortage of widespread social intervention, involving youth-serving agencies, schools, grassroots groups, faith-based organizations, law enforcement and other youth/criminal organizations in “reaching out” to gang-involved youth and their families, connecting them with the conventional world and needed services.
Of course, this is accompanied by suppression tools, from formal and informal social control procedures (including close supervision and monitoring of gang-involved youth by youth/criminal system agencies) to school interventions[6].
The question posed with respect to the phenomenon in our country, then, concerns the ability of the current juvenile system to deal effectively with rather complex phenomena, which are not resolved exclusively in the deviant behavior of an individual boy, but often-and increasingly-must be framed and resolved within a broader social context.
Complexities that often lead the debate, especially in public opinion and in the superficial political response to some particularly serious incidents, to call for a lowering of the chargeable age and greater use of prison.
The evolution of juvenile trial principles
The punitive segregation of deviant minors (and the overcoming of equalization with adults in the case of criminal conduct) began as early as the 18th century, stemming from the separate institutionalization of poor minors. The Catholic Church previously dealt with vagrant, delinquent or abandoned youths, following a pedagogical-punitive approach. Throughout the history of Italian legislation, there have been different ways of handling juvenile justice. In 1703, Pope Clement XI founded the first specialized institutions for the reeducation of convicted juveniles.
In 1890 the Zanardelli Code came into force in the Kingdom of Italy, introducing imputability as early as age 9 and establishing reformatories for reeducation. Under Fascism, the Rocco Code raised the age of presumption of non-indictment from 9 to 14. This was followed by the establishment of Juvenile Courts in 1934.
In 1956, the Juvenile Procedural Code was introduced, marking a clear breakthrough in the field, and then arrived at the current structure with the 1988 reform (by Presidential Decree No. 448), thanks to which the juvenile criminal justice system was completely reformed, taking on its current founding characteristics, focusing on the responsibility of the juvenile and introducing the institution of suspended trial with probation.
At the international level, the recognition of children’s rights has spread following the evolution of the affirmation of human rights and slowly finding its own autonomous space, especially since the early 1900s, with specific rights and special protection requirements.
In 1913, the International Conference for the Protection of Children[7] was held in Brussels, and in 1919, the ILO (International Labor Organization) set the minimum age for children employed in the work of industries at 14 and banned night work for children under 18[8]. However, the child was first considered a subject of rights only with the “Declaration of the Rights of the Child,”[9] which was approved in 1924 in Geneva and by which the child assumed the dignity of a citizen.
Subsequently, the “Declaration of the Rights of the Child”[10], signed in New York in 1959, affirmed that the child, given his or her physical and intellectual immaturity, needed legal protection that was appropriate to his or her condition and that “the best interests of the child”-a primary interest for the whole of society-should be constantly borne in mind; it also enshrined the right to a free compulsory elementary education.
In the specifics of juvenile deviance and the administration of juvenile justice, the “Minimum Rules for the Administration of Juvenile Justice” (also referred to as the ‘Beijing Rules’) are of fundamental importance[11], approved by the 6th UN Congress in 1985, which are the international source from which most modern juvenile procedure codes have been inspired. Our Presidential Decree no. 448 of 1988 embraced the most innovative principles of these rules.
Various application models have been inspired by this evolution of the juvenile justice system. Some of these are still considered a staple for scholars around the world.
The most innovative model, an alternative to institutionalization, is precisely the so-called “probation” system, which was first introduced in England in 1907 and later spread throughout the world. It consists of a form of suspended sentence, provided that the person does not commit any other crimes during the period of the measure, under the supervision of a “probation officer,” who monitors and supports the juvenile. In aggiunta il servizio “Aftercare”[12]si prende cura dei minori prima, durante e dopo l’esecuzione della condanna, allo scopo di favorire la riabilitazione e la risocializzazione dei ragazzi.
At the community level, Recommendation no. 87/20 of the Council of Europe, concerning social responses to juvenile delinquency, listed education and social reintegration as the goals of juvenile justice, and reiterated that prison sentences should be thelast resort, to which “sentences suitable for juveniles” should be preferred.
With the 1989 “Convention on the Rights of the Child.”[13], then, the UN intervened to protect children under the age of 18. On juvenile justice, it stipulates that neither capital punishment nor life imprisonment should be applicable to juveniles, and again advocates the need to use deprivation of liberty only as a last resort when nothing else can be done. In addition, juveniles deprived of their liberty must receive treatment appropriate to their status as developmental agè subjects, such as maintaining contact with the family, while the purpose of juvenile justice must be the education of the juvenile aimed at the promotion of the juvenile’s person.
In 1990, the General Assembly of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Delinquents approved two key documents: the “Riyadh Guiding Principles on the Prevention of Juvenile Delinquency” and the “United Nations Minimum Rules for the Protection of Juveniles Deprived of their Liberty.”[14].
In the “Guiding Principles,” the need for all of society to strive for the harmonious development of childhood and adolescence is affirmed, as the prevention of juvenile delinquency is essential to the prevention of delinquency in general. Regarding procedure, it is recommended that governments pass laws that protect minors, taking into account their specific condition, and avoid harsh and degrading means of correction.
Even in the “Minimum Rules,” it is stated that deprivation of liberty for juveniles should be a last resort, applied only in exceptional cases, and that juvenile justice should promote the physical and moral well-being of juveniles.
In particular, Art. 40 of the U.N. Convention on the Rights of the Child (ratified by Italy through Law 176 of 1991) contains the guiding principles for the application and interpretation of the juvenile criminal trial discipline, enshrining “the right of the juvenile suspected, accused or found guilty of having committed a crime to be treated in such a way as to foster his or her sense of dignity and personal worth, to reinforce his or her respect for human rights and fundamental freedoms, and to take into account his or her age as well as the need to facilitate his or her reintegration into society and to enable him or her to play a constructive role in it“.
Thus, they have taken their place in our juvenile penal system:
- The purpose of recovery through reeducation and social reintegration;
- the “principle of adequacy” (Art. 9 Presidential Decree 448/1988) according to which the criminal process must adapt “to the personality of the child and his educational needs,” for the realization of which the work of the Social Servants and interdisciplinary work between all operators is fundamental;
- the “principle of minimum offensiveness,” which aims to protect juveniles from the risks that may arise to their still-forming personalities due to early entry into the criminal justice circuit. Entry which should therefore be avoided wherever possible, favoring the closure of the process and the fastest possible exit of the juvenile from the criminal circuit;
- “destigmatization” (Art. 13), aimed at stemming as much as possible the harmful repercussions that can affect the child even from the mere news of being subjected to judicial proceedings, through maximum protection of confidentiality and anonymity with respect to any outside parties.
- the “residuality of detention“, that is, the conception of all criminal intervention with regard to juveniles, and a fortiori the measure of detention, as extrema ratio. Thus, detention is justified only in cases of serious risk to social defense, and only in the absence of alternative measures that could lead to the same protection. For this very reason, new alternative measures to prison custody have been devised, which have a greater empowering value with less coercive impact;
- The “self-selectivity principle” of the juvenile criminal process, which makes the juvenile’s educational experiences take precedence over the process itself, based on the investigation of each juvenile’s unique and individual personal condition, through forms of self-restraint and even closure of the process itself.
In deference to these principles, various institutions have been introduced, the basis of which is always the assessment of the child’s personality, such as judicial pardon or suspension of trial with probation.
Rivolgendo uno sguardo in Europa, invece, in Francia sin dal 1945 ha luogo la c.d. “education surveillée”, con cui si mira a coinvolgere la famiglia nel processo educativo del minore autore di reato, cercando quanto più possibile di mantenere il minore nel suo ambiente[15].
In the 1980s, alternative sanctions, called ‘work-projects ‘ and ‘ training-projects,’ were developed in the Netherlands, as in other Northern European countries, for the purpose of empowering and socializing minors, who must participate in work and training projects, supervised by a coordinator[16].
These systems operate, however, only after the juvenile has entered the criminal justice system and received a sanction. Un sistema di misure alternative che, invece, intervengono ancor prima dell’ingresso del minore nel sistema giustizia (o durante le prime fasi del processo) è nato negli Stati Uniti e si indica con il termine inglese “diversion”[17]. It is based on the discretion of the judge, who bases his decisions on the criterion of expediency instead of formal legal criteria.
The Italian juvenile trial: the interventions of the Constitutional Court
In the development of juvenile justice, the Constitutional Court has played a central role. In fact, the Court’s rulings have adapted the standards to the specific needs of juvenile justice, inspiring their interpretation by Article 27, third paragraph[18] and 31, second paragraph[19] of the Constitution. Moreover, by lending authority to the demands of much of the doctrine in this area, they constituted a fundamental point of departure toward the 1988 reform of the juvenile criminal justice process.
As early as the 1960s, the Constitutional Court upheld the need for the specificity of juvenile justice, to be considered an autonomous sector from that provided for adults and aimed primarily at reeducation. In ruling no. 25 of 1964[20], in particular, in deference to Art. 31, second paragraph of the Constitution, established that “juvenile justice has a special structure in that it is directed specifically to the pursuit of the most suitable forms for the reeducation of juveniles.”
Later, ruling no. 49 of 1973[21] pointed out the existence of a “peculiar interest-duty of the state in the recovery of the child,” to which the realization or non-realization of the punitive claim must be subordinated. This was followed by no. 222 of 1983 placed “protection of minors” among the constitutionally protected interests; and the Juvenile Court among the institutions “whose development and operation the Republic must foster thus fulfilling the constitutional precept committing it to the protection of youth.”
Judgment no. 16 of 1981[22], on the other hand, included the provision of the exception to the publicity of the hearing among the means prepared by the legal system for the achievement of the purpose of protecting minors, considering that the publicity of facts may result in negative consequences to the spiritual development and material life of the minor.
According to the Constitutional Court, the principle expressed in the second paragraph of Art. 31 of the Constitution requires the adoption of a juvenile justice system based on judge specialization and the goal of juvenile recovery, which must be pursued “by means of his reeducation and social reintegration, in harmony with the goal pointed out in Paragraph 3 of Article 27 of the Constitution, as well as by Article 14(4) of the International Covenant on Civil and Political Rights (adopted in New York on December 19, 1966 and whose ratification and execution was arranged by Law No. 881 of October 25, 1977).”
The reference to the principle of minimum offensiveness, which constituted one of the fundamental principles of the new juvenile criminal trial in 1988, was made by Judgment No. 206 of 1987[23], which pointed out that the purpose of juvenile justice must be the recovery of the deviant juvenile through his reeducation and social reintegration; this purpose can also be pursued through the mitigation of the offensiveness̀ of the process.
Thus, the principle that the child is a subject to be protected as such and the state is bound by this obligation even if the child has committed a crime has been strongly affirmed. Hence, an interest-duty was configured in the recovery and reeducation of the juvenile itself, to be pursued through the juvenile courts.
In this way, the juvenile criminal trial has become an opportunity for the juvenile’s social recovery, rather than an affirmation of the state’s punitive claim. And from the indication of the need for individualized prognoses for the juvenile’s recovery, emerges the position of centrality in the process assigned by the Court to the juvenile defendant. This is because in relation to minors the re-educational principle takes on a very special meaning and importance, as their educational process is not complete, but is evolving, as is their personalitỳ. The entire juvenile criminal justice system is, therefore, marked almost exclusively by reeducation, which is considered an interest-duty of the state, and to which the punitive claim itself is subordinate, as is also evident from the aforementioned ruling no. 49 of 1973[24].
Presidential Decree 448 of 1988 itself explicitly states that the juvenile criminal process “must not interrupt ongoing educational processes” and therefore regulates interventions aimed at not hindering the unfolding of the educational-evolutionary-relational process, to prevent its interruption from destabilizing a personality in the process of structuring.
Thus in the juvenile criminal trial we go beyond the reeducational function of punishment provided for in the third paragraph of Art. 27 of the Constitution, in that the purpose of social defense is subordinate to the main purpose of educating the child, as for the legislature, prevention would implement greater social defense.
The juvenile judge: the role of honorary components
In the juvenile justice system, the most critical point is a lack of judge’s third party status in certain evaluations, a state that can undermine its necessary impartiality at the root[25]. In fact, in the Juvenile Courts, the typical decision-making functions of the judiciary are commingled with and often outclassed by the social welfare functions, which, while necessarily present, should, however, be separate and distinct in a “due process” including juvenile. In fact, for the Judge to be third and impartial, it is necessary that his role in the process be limited to the definition of the case in accordance with the existing and applicable regulations and not to be predominantly entrusted with the management of the situation submitted to his decision-making power from a social welfare perspective, resulting in the exercise of his powers in a non-decisional function.
This dangerous imbalance, on the other hand, is attested to and clearly represented by the origin of practically all honorary judges (i.e., non-tobacco components) from social services; an “adjudicative” presence that is not only anomalous, but in far greater numbers than that of the togal judges, and who return to the territorial social service of origin at the expiration of their judicial term.
The juvenile judge’s “subservience” to social workers, already so ingrained in the adjudicating panel itself, results in a further imbalance-almost a complete delegation-in favor of social services’ assessment of the situation. Such “information” is gathered outside any real adversarial process with the parties to the case, but to which alone reference is made in the exercise of the adjudicative function. Thus, the lack of third party status and recognition of equal importance to investigations and technical assessments brought by the parties, which necessarily succumb in this context before those of the social welfare services, also has repercussions on the level of evidentiary investigation. The latter are basically evaluated by the panel of judges as the only reliable instrument, as they are considered their own direct externalization, while also excluding the potential presence of party technicians in this context.
According to some, the only remedy would be to eliminate the anomaly of non-tobacco judges from the judging panel, thereby restoring competence and third party status to the juvenile judge and his or her functions, which should remain confined to the decision-making perimeter within the legal framework of reference.
Criminal execution in juvenile proceedings: the difficulties of reeducation
The failure to adopt a specific penitentiary order on the subject of criminal execution in juvenile proceedings is currently in serious conflict with the dictates of Articles 31, paragraph two and 27 paragraph three of the Constitution, especially in light of the substantial divergence of the purposes of criminal proceedings against juveniles from those of adults and given the specificity of the juvenile’s as yet unstructured and defined personality and identity[26].
In fact, the purposes of the juvenile criminal justice system aim to be an instrument of enhanced education, with the purpose of implementing a juvenile’s recovery, linking the sanction to the need to bring about a positive development of the juvenile’s personality. In contrast, the structure of the prison system for adults clashes with the purposes and institutions dictated for juveniles.
Fundamental to the training and education of the juvenile offender is-or should be-school.
Unfortunately, its role in juvenile correctional institutions loses its educational value because it often places the child in a heterogeneous and multiproblem group of minors. The classes are attended by children with enormous learning and attention difficulties, frequently coming from repeated failures.
Statistics show how recidivism is more frequent for juveniles released from IPMs (even where they have followed a positive path of study, work and contact with outside society during detention) than for juveniles undergoing alternative measures to detention, confirming their greater effectiveness in the education and resocialization of juvenile offenders[27].
The position of residential communities is also not simple[28], increasingly considered the main tool of extra-curricular criminal execution deputed to the care, treatment and change of the juvenile offender. To achieve this function, the community stands at the border between the normality of the outside world and the confinement of detention, and the coordinators and managers of facilities that house juveniles under criminal court order juggle the needs for containment and control of the juvenile guests of the facilities and the need to create for them spaces for relational experimentation and empowerment that are functional to their reeducation. This creates an obvious and equivocal ambivalence, since the procedural rules define community placement as a precautionary measure (thus characterizing it as a penal facility deputed to execute a measure limiting personal freedom, with a consequent intrinsic afflictiveness) but on the other hand allow the judge to authorize the minor to attend study, work or otherwise educational activities.
Also with a view to simplifying management and abating the difficulties and risks inherent in any removal from the structure of the juvenile placed in the community, outings and contacts of the children with the outside are penalized and avoided as much as possible. As a result, the afflictive dimension of the coercion of permanence is amplified as well as the community pedagogical self-referentiality itself; thus, the pedagogical value of building a relational life appropriate to the developmental needs and chronological age of the placed minors is put to nothing. These, in fact, no longer have any protected space for empowerment, to be managed independently, that can positively affect the treatment path, with the effect of exponentially increasing the reactions of conflict and opposition. Boys thus direct their resources toward a harmful exercise of power assertion and increase centrifugal drives toward escapism and transgression.
Moreover, not “training” the minor in a positive contact with the outside world through a return to a protected context where he can elaborate and reinforce the difficulties gradually encountered, and not building a valid alliance with the family (which can thus accompany and support him when he leaves the community path), mean that the period in the community becomes a parenthesis separated from the context of life, from that outside world to which the boy must return and with which he will not be able, therefore, to build a pedagogically correct relationship.
Thus, communities are often reduced to places without an effective focus on the path, but only on the present, given the incompatibility of the time allowed (a few months) with even a medium-term evolutionary planning. Moreover, the simultaneous presence, both in IPMs and communities, of minors, young adults, foreigners (moreover, without cultural and linguistic mediation), and adolescents with objective pathologies, almost inevitably leads to the failure of a model built around an individual who nevertheless finds himself immersed in a context that thwarts the very foundations of the educational development project that should enable his positive re-entry into the socio-familial fabric of belonging.
The unequal treatment of foreign minors
It should also be considered that the presence of foreign minors has gradually increased in recent years. In their case, however, for the same offense, custodial pre-trial measures (especially prison) are applied much more frequently, they remain there for longer and are more often sanctioned with a sentence, while very rarely they are recipients of measures in the housing community, in the family and at large.
Suffice it to consider how the institution of probation, the application of which has grown to affect about one-fifth of total proceedings, is accessed by 82 percent Italian boys and only 18 percent foreigners[29].
The detention measure, in these cases, is not justified by the failure of the application of alternative measures to detention, but by their objective inapplicability, since they are often irregular foreign minors in the territory and unaccompanied, usually lacking references and stable socio-familial contexts. In addition, the culture of origin, values, and language constitute often insurmountable difficulties for Italian practitioners, who are thus unable to activate interventions and develop educational projects for them. Already, just the reconstruction of the child’s family and personal history, which is placed at the basis of all decisions and judgments about the child, a history that finds its main sources in the narratives of family members, teachers and any social workers, is virtually impossible for the unaccompanied alien child to recover. This results in serious discrimination between Italian and foreign juveniles with respect to the possibility of taking advantage of paths that are not only less afflictive but, above all, more effective in the recovery and reeducation of the juvenile offender.
Thus, although the Supreme Court has affirmed the principle that alternative measures to detention can also be applied to the non-EU foreigner who entered the state illegally and without a residence permit[30], however, in juvenile proceedings it is objectively difficult, if not impossible, to ensure the educational purposes of punishment for foreign minors with the use of the special institutions provided, as it is not possible to involve the often nonexistent or clandestine family environment. At the same time, community placement is also often impractical or ineffective, given also the unpreparedness of facilities to handle ethnic diversity.
The difficulty of juvenile justice
In the face of the above, it is clear how a system that is very unbalanced-though rightly so-may find itself in crisis in the face of a juvenile crime phenomenon that is physiologically (and statistically) greatly influenced by the way in which juveniles at risk of committing crimes interact with each other.
However, attention should be turned to the dangerous mechanism that is being triggered in the reeducational/sanctioned treatment of young people who come into contact with the juvenile process. In fact, on the one hand, the most fragile and higher-risk individuals – such as foreigners or Italian youths with little or no family support – are more likely to fail re-education paths or not access them at all; on the other hand, the increase in defendants from favorable socio-economic backgrounds risks making instruments such as probation little more than a weak rebuke to the individual (even in the face of serious crimes), without actually removing him or her from the social dynamics that may have contributed to the initiation of deviant behavior.
Moreover, the priority pursuit of the quickest possible exit from the justice system does not adequately confront another shortcoming of our system: the lack of accountability in the criminal justice system for damages caused to the victim of the crime. Insufficient in this regard appears to be the use of mediation and restorative justice pathways, which are presented, instead, as useful tools to enable the juvenile to actively confront the consequences of his or her antisocial conduct.
Add to this the fact that the staffing levels of the USSMs, which are supposed to ensure the careful evaluation of pathways, are often portrayed as totally insufficient[31] To cope with the massive workload (17,341 minors and young adults in 2022[32]), a situation bound to worsen with the further strengthening of alternative rites following the Cartabia Reform[33].
In any case, data regarding recidivism rates are certainly comforting, whereby juveniles after probation return to commit crimes in a much lower percentage (22%) than those who have been convicted instead (63%)[34]. Although this figure is affected, as highlighted above, by the reference “statistical sample.”
Despite this encouraging element, these juvenile justice tools cannot be the only method of dealing with the difficulties of a youth population that seems to have changed in the ways they approach criminal behavior-no longer exclusively (or predominantly) as a result of socioeconomic hardship or marginalized conditions.
Rethinking intervention in the approach to juvenile deviance, on the contrary, should be the result of a choral sharing of contributions and experiences of the family (where possible), the school and all institutions in the area.
In fact, regardless of whether one prefers a response of a more reeducational or punitive nature, it seems necessary to put back at the center of the debate on juvenile crime the positive intervention of all proximate figures who can have a significant impact on minors, from a more preventive and participatory perspective, rather than seeking ever broader instruments of “reeducational pardonism” that often conceal alibis that deresponsibilize adults and institutions with regard to minors.
Avv. Giada Caprini
Avv. Marco Della Bruna
References
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[6] https://nationalgangcenter.ojp.gov/spt/Programs/53
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[8] The ILO and child labor., AIDOS.
[9] Declaration of the Rights of the Child (Geneva Declaration 1924)..
[10] Declaration of the Rights of the Child (New York Declaration 1959)..
[11] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)..
[12] Young offender aftercare., College of Policing.
[13] Convention on the Rights of the Child (New York, November 20, 1989).
[14] United Nations Guidelines for the Prevention of Juvenile Delinquency: The Riyadh guidelines.
[15] J. Bourquin, M. Gardet, Éducation surveillée, Enfants en Justice.
[16] P. van der Laan, Alternative Sanctions for Juveniles in the Netherlands., NCJRS Virtual Library, U.S. Department of Justice, 1993.
[17] Diversion programs., Youth.gov.
[18] “Punishments cannot consist of treatment contrary to the sense of humanity and must aim at the re-education of the convicted person.”
[19] “The Republic shall facilitate with economic measures and other provisions the formation of the family and the fulfillment of related tasks, with special regard to large families.
It protects motherhood, childhood and youth by fostering the necessary institutions for this purpose.”
[20] https://giurcost.org/decisioni/1964/0025s-64.html
[21] https://giurcost.org/decisioni/1973/0049s-73.html
[22] https://giurcost.org/decisioni/1981/0016s-81.html
[23] https://giurcost.org/decisioni/1987/0206s-87.html
[24] https://giurcost.org/decisioni/1973/0049s-73.html
[25] Gianfranco Dosi: My views on… Angels and demons: the responsibilities of juvenile justice., Lexicon of Family Law.
[26] Criminal execution in juvenile proceedings., States General of Criminal Execution, Table 14.
[27] Recidivism in the criminal pathways of juvenile offenders.o, Series “I NUMERI pensati,” edited by Isabella Mastropasqua, Maria Maddalena Leogrande, Concetto Zanghi, Maria Stefania Totaro, Luca Pieroni, Alessio Gili, Gangemi Editore, Rome – May 2013.
[28] A. Scandurra, Foster communities for minors and probation., Ragazzi Dentro, February 2020.
[29] The suspension of trial and placing on probation, (Article 28 Presidential Decree 448/88). Statistical data Year 2021, Ministry of Justice.
[30] Cass. SS.UU. 27.04.2006 n. 14500.
[31] New DGMC staffing plans., FP CGIL, UIL PA, CISL FP, February 28, 2023.
[32] Juveniles and young adults in the care of Juvenile Services. Statistical analysis of data, Ministry of Justice, 2022.
[33] D. Di Cecca, Alternative rites in the juvenile criminal trial and the “Cartabia Reform”., Boys Inside.
[34] Recidivism in the criminal pathways of juvenile offenderso, cit.
