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Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the ...

United States and Italy: Comparing the Criminal Justice Systems

One of the most prominent countries in the criminal justice field with regards to changes made and philosophy written is Italy. With some of the greatest minds throughout the medieval times and enlightenment calling Italy home, the country has always been on the forefront of understanding criminology and criminal procedure. While they do not have the most formidable or “bulletproof” system, and still considered to be in its infancy, there are a multitude of aspects about it that can rival our own.

Italy can arguably be called the birthplace of classical criminal justice, when the socialist philosopher Cesare Beccaria published his treatise On Crimes and Punishments. This happened during the Enlightenment Period and was written of the mindset that punishment above all would be the tool most useful in gaining the compliance of the peoples. Beccaria believed that people chose every action that they committed, and the fear of punishment would be the ultimate deterrent. He believed that there was a “despotic spirit” that resides inside of every person and that this spirit had to be suppressed during decisions that chose whichever result did not end in punishment. (Siegel, 2016)

Cesare Beccaria, "Father of Criminology"

            Beccaria’s main principles held that,

 “…people choose all behavior, including criminal behavior; their choices are designed to bring them pleasure and reduce pain; criminal choices can be controlled by fear of punishment; and the more severe, certain, and swift the punishment, the greater its ability to control criminal behavior.”

This was an interesting philosophy at the time because although he was a big advocate for punishment, he did believe that the punishments and routine torture of the time were too severe and also inappropriate. Punishment needed to be tailored to the individual crime and not too harsh, as this counterbalance will deter the pleasure received from committing the crime.

Classical criminology was beginning to take shape throughout Europe, and one of its main tenets held that every single person had free will, which is a stark contrast to one of the beliefs prior in that some things were determined by the divine. It also stated that criminal actions were often justified to the criminal because there were large payoffs for a seemingly small amount of work, which is why punishments need to be swift and severe without being overbearing to show criminals that crime doesn’t pay. This is the basis formed for other countries to adopt what the United States would consider the “cruel and unusual punishments” clause in their respective constitutions.

During the same time period, life in Colonial America was just gaining a foothold, and with it, court systems and a criminological system that closely resembled England at the time. During the 1700’s, there was no clear-cut system in place in the Americas, and policy varied greatly from colony to colony. (Law Library, 2019) During the mid-1700’s, a reform system was taking shape and was solidified after independence from England was finally achieved. This system greatly favored individual rights and protections under the constitution. The following years would prove to lay the foundations through court decisions and policy shaping.

By the end of the 1800’s, classical criminology would be slowly replaced by a focus on external and internal factors, like class, race, IQ, poverty, and other environmental or genetic factors. Classical criminology was still responsible, however, for the way the court systems, process, and punishments worked, it was being rejected by most mainstream criminologists in both the United States and in Italy. (Siegel, 2016)

During the 1970’s and 1980’s, both Italy and the United States would begin a vast reform in their respective systems, with Italy choosing to ultimately do away with their inquisitorial system and opting for a much more streamlined system where the respective parties, and not the judge, was responsible for conducting the investigations. The problem Italy faced was in how rooted their system was on civil law. Like most western countries, Italy’s backlog of cases was too cumbersome for the inquisitorial system to handle.

During the system laid out in the 1930’s known as the 1930 Code of Criminal Procedure, the judge was responsible for gathering the evidence and conducting the investigation, in which the investigative function dominated. Next, a public trial phase would occur, in which the evidence was developed and laid out. What ultimately ended up happening, however, was the examination phase taking the brunt of the process and the trial merely happening as a formality in a lot of cases. One of the biggest problems with this system is that the examination phase was conducted in private with the defense not being able to see any of the evidence or being notified of key findings during the investigation. According to the Yale Journal of Law, “Without the presence of the defendant or defense counsel at the examination, interrogators could put considerable pressure on witnesses who appeared before them.” (William T. Pizzi, 1992)

The system was again reformed throughout the years to allow the defense more power during the examination phase but did nothing to curb the overbearingness of this phase to allow for more participation in the trial. Finally, in 1989, the new Code of Criminal Procedure was adopted and completely restructured criminal trials along adversarial lines and took the burden of the investigation off of the judge. While an adversarial system helped Italy with their enormous backlog of cases, there are drawbacks seen in the American system such as jury selection and the observance of complex evidentiary rules, which the Italian adversarial system has no counterparts. (William T. Pizzi, 1992)

Another big difference in the systems is the way the United States relies on a full public trial while the Italian system seeks to include special procedures put in place to avoid this. There is more of an emphasis on plea bargaining in the Italian system to avoid a trial altogether, something that it has in common with the American system, with more emphasis placed on it possibly due to the backlog of cases. The plea-bargaining system currently enjoyed by both country’s criminal justice systems is an important aspect because it de-clutters the court calendar, frees up prosecutorial resources, gives the opportunity of an easier sentence or charge, and may serve to keep prisons from overcrowding when used effectively. The drawback to this procedure lies in an innocent person choosing to plead guilty in order to escape a perceived worse punishment for something they did not do in the first place. (William T. Pizzi, 1992)

Another huge difference between the Italian adversarial system and the United States’ adversarial system is the way in which we afford Miranda Rights to an individual being arrested. In the Italian system, police questioning, and statements gathered from it cannot be admissible in court, period. The only way a statement can be used in a trial is if the defendant has his legal representation available to them at the time of questioning and they are present.

This is a better system then the United States has currently because police can say anything in order to extract a confession. According to the National Registry of Exonerations, with regards to offenders under the age of eighteen, 44% were found to have falsely confessed to a homicide. This number rises to 81% when taking mental illness into consideration (all ages.) (National Registry of Exonerations, 2019) This means that if police in Italy are not able to question the individual at all before their representation is present, a lot of the problems with false confessions that the United States faces would be eradicated.

Italy also has a system in place called a “udienza preliminar” which would be called a preliminary hearing in the United States, with the main difference being the process by which it occurs. During this phase of the pre-trial process, the prosecutor can send the judge the entirety of their case collected during the investigation. When the hearing begins, no witnesses are called to the stand in lieu of the documents and results of the investigation being outlined. The defendant may be examined by the judge, but they cannot be cross-examined by the prosecution. Following this procedure, the judge decides to move forward with the case, or to dismiss it entirely. Usually a dismissal only occurs if the judge believes that the defendant did not commit the crime at all.

At the actual trial, the prosecution begins the statements, with witnesses appearing in the same order for both parties, and the defense always given the closing statements and final word. This is a stark difference from the United States’ trial system as usually the prosecution has the last word. (William T. Pizzi, 1992) Another vast difference in the Italian trial system is that the defendant can challenge anything said at any time by a witness. This is in keeping tradition with the civil law system used by the country prior to undergoing the change to the adversarial system. The defendant must also present any mitigating factors during the trial as well. Following the trial, the court has thirty to ninety days to draft the opinion of the court.

The appeals court in Italy works very differently from ours. Acquittals can be appealed, and Italy has five different acquittals that can be given following a trial. They are:

“1) that no crime was committed;
2) that there was a crime, but the defendant did not commit it;
3) that the defendant is innocent of the crime, because evidence was insufficient to convict him; 4) that there was no crime, because the defendant had a justification for his action (such as self-defense or necessity);
or 5) that it was not possible to decide the case due to a procedural fault.”

            The defendant can always appeal an acquittal to receive a better (lower number) ruling. The United States’ appeals system is hampered by only being allowed to appeal certain characteristics of the case, such as an unfair trial. The Italian system has no such problem, and anyone involved in the case can appeal anything in it, including bringing new evidence to light. (Montana, 2014)

            The Italian system has been around for a lot longer than our system, but the huge reformation it had in 1989 was a testament to how sensitive the legal process is and how much it must encompass. No system is perfect, but other systems should be scrutinized to gain an understanding of how ours can perform better. In such a huge field with a plethora of studies conducted since the medieval times, the system worldwide should be functioning close to perfect, and while no country has a perfect system, the United States is arguably on a lower rung with how we treat our defendants and convicted criminals.


Sources pulled from:

Davide Arcidiacono, S. C. (2015). Criminal justice system responses to intimate partner violence: The Italian Case. Criminology and Criminal Justice Vol. 15(5), 613 - 632.

Diana Kapiszewski, ,. G. (2013). Consequential Courts : Judicial Roles in Global Perspective. Cambridge: Cambridge University Press.

Law Library. (2019). The Early Years of American Law. Retrieved from Law Library:

Montana, R. (2014, February 3). Explainer: how does the Italian criminal justice system work? Retrieved from The Conversation:

National Registry of Exonerations. (2019). AGE AND MENTAL STATUS OF EXONERATED. University of Michigan: NATIONAL REGISTRY OF EXONERATIONS.

Siegel, L. J. (2015). Criminology. Stamford, Conn u.a.: Cengage Leaning.

Vitiello, J. C. (2016). Public Justice and the Criminal Trial in Late Medieval Italy. Leiden, Netherlands: Brill.

William T. Pizzi, L. M. (1992). The New Italian Code of Criminal Procedure: The. Yale Journal of International Law Vol. 17:1.