La finalità rieducativa nel prisma delle pene sostitutive, fra discrezionalità del giudice ed esigenze di razionalità del giudizio
184-216
Abstract: The Reeducative Purpose of Criminal Punishment in the Prism of “Substitutive Sanctions”, Between Judge’s Discretion and the Demand of Rationality
This paper firstly dwells on the current and increasingly serious issues concerning jail detention as a re-educational punishment for offences of medium-low seriousness and on the advantages and limits of the criminal policies that have intervened to overcome the Italian mono-sanctioning system. In particular, Legislative Decree No. 150/2022 fits into this groove, taking a significant step forward. However, the regulatory framework governing the application of today’s “substitute penalties” could give rise to problems of effectiveness in the near future. In particular, with respect to the knot created over the broad scope of the judge’s discretion, which now intervenes in an essentially biphasic process, and to the use of the criteria for commensuration of the penalty.
The contribution attempts to outline the most problematic profiles, trying to offer some expedients, such as the use of guidelines, in an attempt to identify rational references for the exercise of the jurisdictional function of selecting an alternative resocializing sanction.