The Inner and Outer Dimensions of Rehabilitation

This article argues that the constitutional principle of re-education (Art. 27(3) of the Italian Constitution) cannot be understood, or even meaningfully conceived, apart from the fundamental rights of prisoners. Starting from the etymology of “re-education” as a leading out (ex-ducere), it reads the principle as an aspiration to free the convicted person from two kinds of “prison”. The first is outer: the physical prison and, by extension, the social isolation awaiting the person after release. As regards the physical prison, this generates a duty approaching an obligation of result and entails, in the author’s view, the unconstitutionality of perpetual punishment, life imprisonment included; the duties of social reintegration after release, by contrast, are not of equal intensity. The second is inner: the gap in personal development, stemming from the deficient realisation of inviolable rights, that led to the offence. Here the State owes only an obligation of means, which presupposes the voluntary and genuine adherence of the convicted person and excludes both “correctionalist” coercion and any bargaining over sentence reductions in the enforcement phase. The article then confronts this “ought” with the “is” of Italian prisons (overcrowding, degrading conditions, suicides), which it characterises, following Luigi Ferrajoli, as “system crimes”. It concludes that re-education cannot serve as a rhetorical device to legitimise the evil of punishment, but must be nourished by the actual implementation of constitutional principles.