Does the law still serve the common good?

Millions of people keep this country going by observing rules that often demand a great deal of them, every day. In return they ask the state for a simple promise: protect those who live honestly, make punishment effective for those who seriously break the civic compact, and have the courage to change rules that no longer work.

The country I recognise as mine is made up of people who rise early, work, pay their taxes, raise children, care for elderly parents, open shops and run businesses while facing difficulties that often go unseen. It is the country of those who obey the rules even when it costs them, even when a shortcut would be easier, even when they increasingly feel that others can break them without facing the consequences.

These are the people who hold our community together. They claim no medals and ask for no privileges. They ask only that the state keep the promise on which all civil society rests: if you respect the rules, the rules will protect you.

But are we still sure that promise is being kept?

Every generation inherits three legacies: the environment, public debt and the law. We discuss the first two constantly. The third is often treated like an ancient house one must approach with trepidation, as though altering it meant betraying those who built it. Yet the rules of coexistence are precisely what determine how free, protected and responsible we shall be.

The law must also defend us against our worst selves. Fundamental freedoms, due process and safeguards for the accused exist because the law must listen to the people without becoming their slave. The outrage provoked by a single news story cannot automatically become a new law. That is weather: it arrives, shakes things up and passes.

But there is also the climate. It is the slow, persistent distrust of those who see forgotten victims, interminable trials and sentences that seem progressively to lose substance between the offence committed and their actual enforcement. Dismissing all this as populism is not wisdom. It is the easiest way of refusing to listen.

Criminal justice is the first place where this gulf becomes apparent. A citizen reads that a serious offence carries a severe sentence and understandably assumes that this is the state’s response. But the sentence set out in the criminal code is only the initial framework.

Before judgment, grounds excluding punishment or extinguishing the offence may arise. The sentence may be affected by ordinary, general or specific mitigating circumstances, their balancing against aggravating circumstances, the rules on attempted offences, multiple offences arising from a single act, continuing offences, and cooperation, reparation or compensation. Alternative trial procedures may bring further reductions.

After conviction, the sentence may be suspended or replaced. Where the legal requirements are met, it may be served through probation under social-service supervision, home detention or partial release; during enforcement, early release credits, parole and other mechanisms may apply. Alternatives to custody do not amount to impunity and are ordered by the courts supervising sentence enforcement, but they allow part of the sentence to be served outside prison.

Each individual step may have its own legal rationale: tailoring the response to the particular case, rewarding compensation or genuine change, avoiding pointless imprisonment, encouraging rehabilitation.

The problem arises from their possible accumulation.

An initially severe sentence may be reduced when it is determined, cut further by the trial procedure, suspended or replaced before entry into prison, and then shortened or served largely outside it. The statutory sentence, the sentence pronounced by the judge and the time actually spent in prison may thus become three profoundly different quantities.

This is where punishment risks crumbling: not necessarily because of an unlawful decision, but through the sum of many decisions, each formally defensible. The state shows the victim one sentence but may end up enforcing another. And when the final outcome loses any intelligible relationship with the seriousness of the offence and the harm suffered, questioning the justice of the punishment cannot be dismissed as a thirst for revenge.

Hence a first proposal: the principle of transparency about the sentence actually served.

Every judgment should show, in immediately understandable terms, the statutory sentence for the offence, the sentence determined before reductions, all reductions applied and their reasons, and the final sentence. Every subsequent change to its enforcement should be equally transparent. Not to promise in advance what will depend on the convicted person’s future behaviour, but because a sentence pronounced in the name of the people should not become decipherable only by specialists.

The second proposal concerns all legislation. The state already has regulatory impact analysis and review, AIR and VIR [Italy’s ex ante and ex post regulatory impact assessments]: tools intended to assess the effects of new rules and to check, periodically too, whether existing ones have achieved their aims. VIR thus exists precisely to examine regulation’s usefulness and real effects.

But what today remains chiefly a technical procedure should become a political and civic principle: the principle of accountability of the legal order.

This does not mean subjecting fundamental freedoms to a popularity contest. It means demanding that rules, procedures, obligations, prohibitions and mechanisms designed to achieve a particular objective be judged periodically by their concrete effects on people’s lives.

Every day the state asks people to trust its rules. The time has come for the rules, too, to prove they deserve that trust.

Institutions do not demonstrate strength by declaring themselves infallible. They demonstrate it when they have the humility and courage to correct themselves.

Because rules do not deserve to be preserved simply because they exist. They deserve preservation when they continue to protect people and truly serve the common good.