In this chapter I discuss judicial contributions to Italian penality. I look at the penal incentives produced by interactions between judicial and political classes, and ask whether judges and prosecutors have been forces for punitiveness or moderation. I discuss the relevance of the Italian case for broader analyses of Western penality.
My chapter offers a political-sociological account of judicial contributions to punishment. I analyse the penal incentives created by different national institutional set-ups, specifically addressing judicial contributions to penality using a framework developed by Joachim Savelsberg and Nicola Lacey. The framework examines judicial structure in the institutional context looking at the penal implications of bureaucratisation of the judiciary and the capacity for co-ordination between judges and politicians. I include judicial legitimacy as an additional dimension in this framework.
I conclude that the Italian judiciary have been forces for punitiveness and moderation. Their contributions can be systematised by looking at the waxing and waning of judicial legitimacy, and the consequent expansion and contraction of judicial powers. I claim that judicial legitimacy is also relevant to other (‘non-Italian’) analyses of judicial contributions to contemporary Western penality.
By adding legitimacy to investigations of judicial contributions to penality I provide an organising principle with which to analyse the penal role of Italian judicial actors. I thus allow Italy to be kept in conversation with existing comparative models, without assuming that it either conforms to the models entirely, or that the models should otherwise be eschewed. I use the Italian case to demonstrate the relevance of legitimacy when analysing judicial contributions to Western penality, arguing that changing legitimacy affects the terms and effect of interaction between judicial and political classes.
Many thanks to Jeremy Horder and Nicola Lacey for their comments on earlier drafts, and to Sean Deel for his insightful advice. My thanks also to The European Society of Criminology panel who listened to, and commented on, my argument when I first presented it in September 2013. All responsibility for the contents of this chapter and any errors it may contain are my own.
Gallo, Z. (2014), "Legitimacy and Punitiveness: The Role of Judicial Actors in Italian Penality", Punishment and Incarceration: A Global Perspective (Sociology of Crime, Law and Deviance, Vol. 19), Emerald Group Publishing Limited, Bingley, pp. 1-29. https://doi.org/10.1108/S1521-613620140000019001
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