Overcriminalization and prison overcrowding: in search for effective solutions

Abstract

The purpose of this thesis is to analyze the problem of prison overcrowding in Italy, Europe and the United States and to offer some creative proposals for addressing this problem.

In chapter I, we will analyze the most recent statistical data on prison population growth and prison overcrowding in the United States (with particular emphasis on the case of California) and Europe (with particular emphasis on the case of Italy). As we will see, California and Italy have two of the most overcrowded prison systems in the United States and in Europe.

In chapter II, a comparative analysis of the most recent decisions on prison overcrowding by highest courts in the United States and in Europe will be conducted. As we will see, these decisions have indeed been taken against California and Italy. Then, in an effort to grant inmates a more meaningful protection of their human rights in prison, a new approach to prison overcrowding will be proposed for litigators and the courts. This approach, which will revolve around what we will identify as the European concept of "minimum living space" in prison, will be developed based on the most recent jurisprudence of the European Court of Human Rights.

In chapter III, IV, V and VI, some efforts will be made to address the problem of prison overcrowding at the source. First, in chapter III, we will provide a detailed analysis of the "criteria for criminalization" that have been identified by criminal law scholars in recent years, from both the European-continental and the Anglo-American literature. These are the criteria that should guide the legislator in the enactment of criminal offences. With a view to making them more comprehensible to legislators and policy makers, they will be summarized in a schematic, intelligible form. They will be provided to limit the dramatic expansion of the criminal law that has occurred in Europe and the United States over the last decades (so-called "overcriminalization").

Then, in chapter IV, we will define the possible "alternatives to criminalization" in theory. We will define "decriminalization" and "legalization", which are terms that often lead to misunderstanding in the debate on reforms. Also, we will analyze the role of decriminalization measures within the framework of the Council of Europe, and we will identify those areas of the law that are particularly good candidates for decriminalization reforms, according to several criminal law scholars. This chapter will provide the theoretical foundations for the case study that will follow.

In chapter V, we will analyze some "alternatives to criminalization" in practice, through case studies on best and worst examples of decriminalization. In particular, we will conduct a comparative analysis of the most recent decriminalization reforms that have been adopted by Italy and Portugal in the field of drug legislation. Drug legislation, as we will see, severely impacts on prison overcrowding in Italy and Portugal. More in general, it severely impacts on prison overcrowding in Europe and the United States. Thus, reforms in this area - though politically hard to enact - are very much needed to solve the problem of prison overcrowding at the source.

Finally, in chapter VI, we will make two policy proposals in the field of drug legislation, in light of the analysis and case study that will have been conducted in the previous chapters. The first policy proposal will be addressed to those legislators in Europe and the United States that at the moment still criminalize drug use and possession, while the second policy proposal will be specifically addressed to the Italian legislator. As we will see, what emerges from the most recent social studies and public surveys on the issue of drug is that ctiziens' attitudes are nowadays shifting from the acceptance to the refusal of the use of the criminal law in the field of drug, particularly for cannabis. Therefore, if the criminal law is to be respectful of the so-called Kulturnormen, there appears to be a compelling reason to reassess cannabis legislation.