Anti-Mafia in Italy: the 41-bis prison régime

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Details: Parent Category: Comment; Category: In brief; Last Updated: Tuesday, 20 August 2019 18:52; Published: Tuesday, 20 August 2019 18:03; Written by Martina Indelicato; Hits: 8058

During the 1960's, Sicily experienced a period of social changes which gave birth to the first primitive anti-Mafia initiatives on a territorial level and originated anti-Mafia discourses on a national level. This article will focus on the most recent anti-Mafia initiatives, developed mostly after the Maxi-Trial. Specifically, the "41-bis"^[1] prison regime will be analysed to show the rationale behind its development and how the system has succeeded or failed in disrupting Mafia associations and controlling related crimes.

The historical context leading to the Maxi-Trial

The 1980's were very difficult years both for Sicily and for the Mafia itself. These years were characterised by strong organisational or internal conflicts which affected the bond between some men of honour and Cosa Nostra, pushing some of them to cooperate with the police in the following years. For instance, Tommaso Buscetta was arrested in 1984 and decided to become a pentito (informer). He revealed the structure and modus operandi of Cosa Nostra ^[2], providing the anti-Mafia pool with the information needed to set up the so-called Maxi-Trial (Bjarnadottir 2013). The Maxi-Trial took place near the Ucciardone prison in Palermo between 1986 and 1987, in a high security courtroom set up with bullet-proof glass. The total number of men of honour charged in the trial amounted to 1,400 and the trial was characterised by a series of difficulties, such as the recurrent absence of attorneys and a number of defendants pretending to be sick or pleading insanity (Archivio Antimafia 2012). Nevertheless, the proceeding concluded with 342 people condemned representing the most effective Mafia trial in Italian history, despite the fact that a number of men of honour managed to abscond. This event symbolically marked the end of the legal ‘immunity’ that the organisation had accumulated over the years (Bjarnadottir 2013) and officially defined Cosa Nostra as a unique and hierarchical criminal organisation (Dickie 2007; Bjarnadottir 2013).

Cosa Nostra harshly reacted to this event, organising a series of open attacks towards state figures, such as magistrates Giovanni Falcone and Paolo Borsellino. The attacks deeply shocked most of the Italian peninsula, leading to a number of initiatives both on a state and civic level. The greatest consequence of the Maxi-Trial is to be found in the introduction of the Article 41-bis into the Italian penal system. This Article was developed on the basis of the principle of punishment and reward, separating Mafia associates into two categories: those who are still linked to the organisation and those whose bond with Cosa Nostra has been effectively disrupted. As such, those people who cooperate with the police are believed to ‘prove’ the rupture of such bond (due to their breach of the code of silence) and are hence allowed to serve their sentence in accordance with the regular penitentiary system (Zunino 2016). Conversely, men of honour who are ‘loyal’ to Cosa Nostra and refuse to become informers are subject to a system of imprisonment within prison, due to the highly incapacitating character of the Article 41-bis (which renders it the most punitive intervention on behalf of the state).

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41-bis prison régime and its characteristics

The Article was first introduced in 1975 but it only applied to situations of emergency or revolt within penitentiary institutions. In 1992 it was extended to Mafia associates with the Anti-Mafia Law Martelli-Scotti, which allowed the Ministry of Justice to suspend the regular treatment provided by the penitentiary system in case the detainee was part of a Mafia-type association (Zunino 2016). It should be noted that rather than being an emergency legislation to deal with revolts, Article 41-bis, as used here, can be more easily identified as a unique tool used by the Italian state to prevent the development of a state within a state and to disrupt the associational bond within the organisation. Upon arrest, the detainee is transferred into a penitentiary – or a section of it – which is specifically devoted to the treatment of offenders who are under the 41-bis regime and logistically separated from the other sections of the prison. He is registered, undressed and deprived of his personal belongings, searched and assigned some standardized clothes and basic objects (for personal care). The detainee is subsequently visited by a doctor and (if requested) by a counsellor, to be then accompanied into a single cell containing a bed, a toilet, a sink and a small cupboard (Romice 2017).

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The rules concerning daily life within the prison are very strict: the detainee is allowed only two hours of outdoor time, assigned by the director of the penitentiary. Every movement within the institution is controlled and only allowed for a specific reason (i.e. family visit or meeting with a doctor/counsellor/educator), as well as constituting the opportunity for searching the detainee. The cell shall remain tidy and any electronic device, aside from a television, is banned. The detainee is not allowed to have pictures or posters, medications, wall clocks or more than one set of clean apparel within the cell, which is regularly searched (thus removing any semblance of privacy). The television is state property and is subject to censorship, similarly to newspapers and personal letters. (Romice 2017).

Regarding contacts with the outside, family visits are only allowed once a month and do not involve physical contact. The detainees and his visitors are separated by a protective glass and every visit is short, as well as audio and video taped. Legal meetings were regulated by the same procedure, but their recurrence has recently been increased to allow the detainee his right to defence. Phone calls are only granted to the detainees who do not receive prison visits and are limited to ten minutes a month, under surveillance. Additionally, objects or gifts coming from the outside are strictly inspected and, in some instances, prohibited (Romice 2017). Detainees are not allowed to work outside the institution, cannot be assigned days of leave and are considered not suitable for early release.

Article 41-bis: between maximum security prison and criminal school

Following on from this description, the prison institution could be identified as a ‘total institution’ (Goffman 1961; Zunino 2016), which is specifically designed to protect the community from dangers and whereby the life spheres of sleep, play and work are carried out within the same space, with the same cohort of people and strictly regulated by an authority. These surveillance techniques and features are primarily put in place for the safety of the law-abiding community; the welfare of the institutionalised individuals is not considered to be a priority and is thus overlooked in favour of the benefit of the ‘free world’ (Goffman 1961). The fundamental goal of Article 41-bis is the prevention of further illegal activities and thus aims at avoiding contacts between incarcerated bosses and free mafia 'soldiers' or family members, who may bring their criminal activity forward. The extremely punitive nature of this prison regime was also developed to serve as a deterrent so that the certainty of the punishment and the level of deprivation might push individuals to refrain from mafia-type activities or decide to cooperate (Zunino 2016).

This over-surveillance of mafia members can be seen as an example of the deviance amplification theory, whereby acts of deviance/criminality and their motivations are amplified by the exaggerated way they are reported and punished. This process renders deviant behaviour glamourised, or normalised, and pushes the individuals subject to the process to continue with such behaviours and commitments (see the critical summary in Sumner 1994, ch.9).

A comprehensive analysis of the 41-bis prison regime however requires the use of two criminological perspectives. On one hand, in fact, it is important to reiterate that – if the 41-bis prison regime is ‘correctly’ implemented – the application of such regime effectively reduces the rights of the detainee and it neglects the rehabilitative purpose of imprisonment (Zunino 2016). The Italian constitution defines a set of rights that detainees maintain upon incarceration and which should not be violated (Ministero Della Giustizia 2018). Amongst these, the right to maintain relations with the family and the right to education and work are systematically violated by the 41-bis through the reduction of family visits, phone calls and prohibition to work. The right to education is also partially violated due to detainees’ limited access to the prison library and the lack of re-education projects.

More importantly, the right to silence has been essentially neglected by the principles of the 41-bis itself. Indeed, the 41-bis requires that the detainee proves the rupture of the associative bond with the organisation in order to avoid the strict rule of the maximum security regime. This 'normalizing' process is often facilitated by the prisoner’s decision to cooperate with the police, thus undermining (or even violating) the right to silence. Additionally, some other rights – i.e. to vote, to health and to profess one’s own religion – can be said to be partially damaged by the general characteristics of the 41-bis prison regime itself. Furthermore, it should be noted that the reduced level of socialisation and increased deprivation of such regime violate another set of rights, namely the right to have adequate space in the cell and possibly also the right to health.

These concerns regarding the rights of prisoners could be brought back to Sykes’ analysis on the pains of imprisonment where the deprivation of liberty causes frustration and depression. These could be mitigated in two ways: physical or psychological withdrawal. Due to the nature of maximum security prisons however, most prisoners fail in both types of sublimation and are thus faced with a number of challenges. Firstly, the double deprivation of freedom caused by the confinement to and confinement in the institution; secondly, the material deprivation of a number of goods and services; and finally, the deprivation of autonomy due to their dependence upon the guards and the limited extent to which they can make independent decisions (Sykes 1958). Within the 41-bis prison regime, these do not constitute part of the original punishment (i.e. imprisonment), nor are they dictated by the compliance of the individual with the guards, but are instead to be regarded as unjust and illegitimate means of worsening the psycho-physical condition of the detainee.

On the other hand, if the Article 41-bis is not implemented in accordance with its basic principles and norms, it presents a range of relatively neglected concerns. For instance, the proximity of numerous high-risk individuals may increase the likelihood of violence within the prison walls. This may represent a threat to both guards and prisoners, as well as representing a crucial problem when considering that many of these detainees come from rival Mafia families who may be seeking revenge (DeLisi, Berg and Hochstetler 2006).

Additionally, the detention of several men of honour within the same institution, without the correct implementation of seclusion norms, could offer some inmates the possibility to be ‘educated’ into being better Mafiosi. This eventuality can be put in context using Sutherland’s association theory (1939), which rests upon the belief that “criminality is learned in interaction with others in a process of communication” both with regards to criminal actions and criminal motives (Cressey 1955, p. 29). Hence, it can be hypothesised that if detainees are incorrectly separated or poorly controlled, the prison regime may constitute a valuable opportunity to learn mafia-like criminal behaviour through the interaction and socialisation with older and more experienced inmates. As well as that, in relation to the mens rea, detainees may absorb a new set of motivations to strengthen their bond with the Mafia upon release through the acquisition of other men of honour’s rationalization discourses and criminal narratives.

Conclusions

Summarising, it may be asserted that the increase in the deprivations forced upon detainees in accordance with Article 41-bis are to be carefully implemented and may not necessarily represent the best solution to the problem posed by Cosa Nostra. In light of the difficulties Italy experienced in dealing with this type of criminal associations, the 41-bis prison regime is a surely valuable instrument (Zunino 2016). However, it would be more proper to analyse this associative phenomenon by tackling Cosa Nostra and its mentality on a number of levels. An all-round approach, which acknowledges the collusion of the state, as well as the neglected needs of locals, may be twice as effective when compared to a prison regime which dangerously resembles torture, focusing on the risks and failing to recognise the needs of such cohort of prisoners.

Footnotes

[1] Articles within the Italian law are generally referred to using numbers. In this case, Article 41 of the Italian Penitentiary Law deals with the use of force as a means of coercion in prison settings. Article 41-bis (essentially being an amendment to the existing Article 41) deals instead with emergency situations such as revolts or the incarceration of Mafia members.

[2] Cosa Nostra is not just any type of Mafia organisation or organised crime group: the basic difference between Cosa Nostra and other organised crime groups is the relationship it has with the people and the territory within which it operates. The reciprocal nature of such relationship - where Cosa Nostra provides services and protection, while people support or passively accept the organisation as an alternative rule to that of the state - is what renders the Sicilian Mafia almost unique. The only organisations resembling Cosa Nostra are the 'Ndrangheta in Calabria and the Camorra in the area of Naples. These however substantially differ from the Sicilian Cosa Nostra in respect of two aspects. Firstly, their structure is less hierarchical and, secondly, their recruitment strategies are generally less strict (given that Cosa Nostra accepts predominantly family members or highly trusted friends of its members).

References

Archivio Antimafia (2012). Documentario sul Maxi Processo a Cosa Nostra [online] Retrieved from: https://www.youtube.com/watch?v=4tTQyOei8iU [13th February 2019]

Bjarnadòttir, K. S. (2013). La Mafia Siciliana, Cosa Nostra. Uno Studio sulle Origini, la Storia, L’Attualità [online] Retrieved from: https://skemman.is/bitstream/1946/14980/1/Krist%C3%ADn%20Sveina%20Bjarnad%C3%B3ttir.pdf [7th November 2018]

Cressey, D. (1955). ‘The differential association theory and compulsive crimes’, The Journal of Criminal Law, Criminology and Political Science, 45(1), pp. 29 – 40

DeLisi, M., Berg, M.T. and Hochstetler, A. (2006). ‘Gang members, career criminals and prison violence: further specification of the importation model of inmate behaviour’, A Critical Journal of Crime, Law and Society, 17 (4), pp. 369 – 83

Dickie, J. (2007). Cosa Nostra: A History of the Sicilian Mafia. London: Hodder and Stoughton

Goffman, E. (1961). Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. New York: Doubleday

Ministero Della Giustizia (2018). Diritti dei Detenuti [online] Retrieved from: https://www.giustizia.it/giustizia/it/mg_2_3_0_7.page [22nd February 2019]

Romice, S. (2017). ‘Brevi note sull’Art. 41-bis O.P.’, Giurisprudenza Penale [online] Retrieved from: http://www.giurisprudenzapenale.com/wp-content/uploads/2017/12/Romice_gp_2017_12.pdf [ 20th February 2019]

Sumner, C. (1994/2012). The Sociology of Deviance: An Obituary. Buckingham: Open University Press, and CrimeTalk Books.

Sykes, M.G. (1958). The Society of Captives. A Study of a Maximum Security Prison. Princeton: Princeton University Press

Zunino, R. (2016). L’Art. 41-bis Ord. Penit.: Il Regime di “Carcere Duro” in Equilibrio tra Istanze Securitarie a Tutela delle Garanzie Costituzionali [online] Retrieved from: http://www.giurisprudenzapenale.com/wp-content/uploads/2017/02/tesi_41_bis.pdf [20th February 2019]

Written by Martina Indelicato. Martina is an Italian student who has just achieved her BA Criminology with first class honours from University College Cork, Ireland. She has a particular interest in organised crime and the effect of social phenomena on criminality. The article is based on her BA dissertation "Cosa Nostra: A Study on the Sicilian Mafia".