Italian
With the final approval by Parliament of the reform of D.P.R. 309/1990 (which introduces articles 94-ter and 94-quater), the Italian legal system embraces the new “therapeutic home detention.” The law raises the limit of remaining sentence from 6 to 8 years for requesting placement in a facility or at home, excluding crimes that, due to their severity and nature, prevent the applicability of the new law.
The legislative intervention aims to achieve a dual purpose. To deflate the prisons by reducing the inadmissible and chronic overcrowding of Italian penitentiary institutions. And to guarantee the right to care, by recognizing the need for a healthcare pathway for individuals suffering from substance or alcohol dependence. However, despite the validity of both objectives, the measure faces the harsh reality of the country’s system, bringing to light deep critical issues both structurally and conceptually.
The law assumes the management of a potential audience estimated at over 14,000 inmates, but it does not sufficiently consider the state of public health, currently overwhelmed by a serious efficiency crisis. The Addiction Services (SerD) and the Psychiatry and Mental Health Services have been suffering for years from a dramatic shortage of medical and nursing staff, in the face of excessive and often inappropriate access requests.
Transferring thousands of positions from the criminal jurisdiction to the health jurisdiction risks producing a simple effect of communicating vessels: the cells are emptied, but hospitals and territorial structures, already lacking the necessary means to manage such volumes, become overloaded.
Beyond the numbers, a fundamental conceptual inconsistency emerges in the very definition of “therapeutic detention.” Detention is never therapeutic, and therapy, to be such, requires voluntary and free consent to treatment.
Drug addiction — like gambling addiction or pathological gambling and other addictions — is primarily a behavioral addiction. When the condition takes over, the individual is inevitably drained of all material and moral resources. In order to obtain the substance or meet their debts in the criminal market, the person is willing to commit any crime against property or individuals.
In this context, the very nature of addiction makes spontaneous adherence to a rehabilitation program within a coercive framework extremely complex. One must consider the chronic nature of the addiction disorder, which leads the individual to face the possibility of relapses in an obstacle-laden path, where the social decline that the patient experiences plays a predominant role.
Often, they no longer have a home or a job. A family and social support network, due to the behavioral characteristics and conduct style of the patient, has become inconsistent over time. It is precisely the family and social context that has tried to distance the patient due to their behaviors. The work of reintegration and re-entry becomes quite problematic. It is easy in words to idealize a therapeutic project, which all too often clashes with the patient’s resistance to treatment.
In light of the new regulations, the operational and legal uncertainties for operators are multiplying.
Placement and motivation: where to concretely place these individuals and how to persuade them of the real need to take care of themselves?
Abandonment of care: what to do if the person decides to voluntarily withdraw from the therapeutic process?
Exploitation of illness: how to prevent the condition from becoming a convenient cover to consider oneself “not punishable” or to evade criminal responsibility?
Supervision: who should monitor individuals undergoing treatment?
This last point represents the true ethical dilemma: healthcare workers cannot and must not become custodians. The concrete risk is that of triggering a dangerous institutional “passing the buck” that starts with the legislator, passes through the supervisory judiciary, and places the final link in the chain on doctors and nurses.
Doctors and health professionals must be able to practice their care activities freely, serenely, and in accordance with their ethics. To safeguard, punish, and redeem are the three existential and legal paradigms that institutions must seriously reflect on again, without confusing the role of punishment with that of medicine.
