Jan Douwe Krist and Leon Woudstra investigate how desirable the introduction of the Italian 41-bis prison regime in The Netherlands is.

Italy has known mafia crime and violence for over a century, but in 1992 the so-called Second Mafia War reached a boiling point. Prolific mafia prosecutor Giovanni Falcone was driving in a convoy on the Sicilian highway A29 when 400 kilograms of explosives were set off, killing Falcone, his wife and three escorting police officers. The bombing made clear that the Sicilian mafia, who ordered the attack, had succeeded in creating a state within a state. The country retaliated unprecedentedly by introducing the 41-bis prison regime, also known as carcere duro: hard regime.

It is this extremely strict prison regime that appears in the coalition agreement of Rutte IV, The Netherlands’ recently inaugurated government. It serves as an inspiration for the Dutch maximum security penitentiary facility (Extra Beveiligde Inrichting or EBI, in Dutch). The coalition wants “to take lessons from Italy” and “to compare the maximum security prison in Vught with the Italian regime.” However, this Italian regime is not undisputed. The European Court of Human Rights (ECHR), among others, has criticized 41-bis for breaching the EU’s laws against torture. Still, the new coalition hopes to thereby prevent criminal organizations from being directed from inside prison.

“We have seen this before,” says Hilde Wermink, associate professor at the Institute for Criminal Law and Criminology at the Leiden University. She refers to other instances where governments were quick to draft new laws in response to an unanticipated, dramatic event. “Here,” she says, “what seems to have led to the coalition’s plan is the case of Ridouan Taghi’s lawyer.”

Late last year, suspicion grew that Taghi had been able to instruct the criminal organization, “Angels of Death”, that he is believed to be the leader of, from inside the EBI. His cousin, and lawyer, is suspected of using an iPad to photograph hand-written messages. Those messages included plans to bust Taghi out “navy seals-style”, kidnapping prison guards and spilling 1500 liters of oil on the roads around the prison to make chasing cars slip.

Decapitating the Mafia

Before Italy introduced 41-bis, mafiosi did not really mind going to prison. “Imprisonment was an ordinary event that did not prevent them from continuing their business,” explains Angela Della Bella. She is an associate professor in criminal law at the University of Milan and is specialized in problems regarding the prison system. “I think we can say that 41-bis works,” she says. “However, we must ask ourselves: at what cost?”

The strict isolation of 41-bis is aimed at cutting the ties between mafiosi in prison and the organization outside. But the severity of the regime led to criticism from the ECHR. Also Amnesty International has stated before that 41-bis can “sometimes amount to torture.” A report commissioned by the Italian ministry of justice from 2019 concluded that the harshness of the regime not only conflicts with prisoner’s rights but can also hinder their rehabilitation.

Danilo Morelli does not deny the criticisms of 41-bis. He has worked in the police force of Emilia-Romagna for 35 years and currently heads its drug enforcement department. “It is very hard to judge the gravity of organized crime from outside of Italy,” he says. “The assassinations on the magistrates were seen as a declaration of war against the state.”

While 41-bis might not have solved Italy’s mafia problem, “it was the best tool Italy has ever had to counter organized crime,” he says. “Organized crime of a scope as big as it is over here in Italy, is difficult to combat with ordinary measures.”

By putting mafia bosses in extremely isolated prisons, you effectively “decapitate the mafia,” explains Morelli. “And in that moment of instability, you can hit the organization.”

A Balancing Act

The Dutch EBI was introduced in 1993 after The Netherlands witnessed a period of notorious prison escapes. In 1991, a prison escape with the help of a helicopter made international headlines. The EBI in Vught was built as a prison within a prison, making it unique in The Netherlands. The main goal of the EBI is to prevent escapes and staff being taken hostage. In that regard it has proven to be successful: there have been no escapes nor have staff been taken hostage.

“There is a difficult balance there,” says criminologist Wermink. “Little interaction with the outside world can lead to less opportunity for an inmate to escape. On the other hand, what possible effects does a lack of social contact have on an inmate? It might lead to increased reoffense.”

Wermink’s research, and the work of other criminologists, show that the more severe a sentence is, the more likely reoffense is to occur. For example, prisoners who regularly receive visitors are better able to maintain their roles within their families and communities. This makes resocialization easier once they are released from prison. It must be said that both the Dutch EBI as well as the Italian 41-bis prisons hold a very specific type of prisoner, which is rarely researched.

When Jaap Brandligt, head of the (ex-)prisoner interest group Bonjo, is asked about what his thoughts are on introducing an Italian prison regime in The Netherlands, he lets out a deep sigh. “I’m not enthusiastic about the focus on repression, but I cannot deny that for some people a heavy sentence is justified.”

Harsh retaliation of criminals is something the public wants, to which politicians and certain media respond, says Brandligt. Introducing an Italian regime in The Netherlands is therefore “political bullshit,” he says. Prisoners continuing their illicit business from prison happens very sporadically, according to Brandligt. “Yes, we know about Taghi. But can you name me another example? What are we talking about?”

Even some of those incarcerated in the EBI will one day return to freedom. And the more isolated they were in prison, the harder it will be for them to reintegrate into society. This is of concern to Italy as well.

A Tilted Comparison

Criminologist Della Bella’s main critique of 41-bis is that there is no clear end to it. Technically, after the first four years the sentence is reevaluated every other year. But in practice, 41-bis is only suspended once a prisoner cooperates with the authorities. Della Bella: “Prisoners end up spending 15, 20 years in isolation.” According to her, there should be a limit to how long prisoners can be subjected to this regime.

For Della Bella, abolishment of article 41-bis seems unimaginable. “We cannot afford that,” she argues. Nevertheless, she acknowledges that the system is worthy of criticism. Throughout its existence, the ECHR and the European Committee on for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have scrutinized the regime on suspicion of breaching fundamental human rights. 

“It must be said that the ECHR has always been very cautious. It has never openly declared that 41-bis is contrary to the convention [on human rights]. It has acknowledged that 41-bis is among the harshest regimes in Europe. Still, it always considered that isolation is justified for serious reasons of prevention,” Della Bella explains. 

These criticisms by the ECHR and CPT encountered a lot of resistance in Italy. “People living outside of Italy are unable to understand how grave the situation is and why these measures are necessary. This is solely an Italian phenomenon,” says police chief Morelli.

In The Netherlands, nobody denies that phones, drugs, and improvised weapons are smuggled into prisons. But it is unclear to what extent prisoners manage to run their business from inside the confines. Just like it is unclear how The Netherlands compares to the situation in Italy of the early 90s.

Wermink: “Whether the situations are comparable in terms of severity is something I would not know. What I do know, however, is that the people [in the EBI] do really pose a threat to our society.”

Something we can look at to compare the severity of crime are the murder rates of Italy and The Netherlands. In Italy, during the Second Mafia War more than three times as many murders were committed as in The Netherlands. These numbers also show that The Netherlands continues to have a relatively low murder rate, being lower than it was for all of the 90s and most of the 2000s.

Of course, the number of murders is not the only way to assess the severity of organized crime in a country. The assassinations of crime journalist Peter R. de Vries and lawyer Derk Wiersum shook The Netherlands as new lows in its fight against organized crime. As disruptive as these crimes were, the frequency of assassinations like these was higher during Italy’s Second Mafia War of the 90s.  In total it is estimated that more than 3,000 people died during those years, among whom many politicians and law enforcement officers.

“41-bis is an instrument that is still useful in Italy, because we have a specific reason,” says Della Bella. But: “The fact that an instrument is useful, does not automatically make it legitimate. There are human rights and principles that are beyond dispute. Even against the most terrible criminals. The question is to find the right balance between a defense mechanism and the protection of fundamental human rights.”

“We should avoid that [41-bis] is a form of inhumane punishment,” she argues. “It is an instrument that must be used only where strictly necessary. It is tailored to combatting specific types of mafia criminal association, characterized by the stability of the bond between the prisoner and the organization. Only in this case is 41-bis justified.” 

According to Della Bella that means that the restrictions of the regime should be effective in cutting inmates’ ties with their criminal organization. “Prohibitions on, for example, keeping photographs and books in the cell or on cooking certain kinds of food are not at all useful,” she concludes. 

Walking the Line

In Italy, there is no doubt that the regime works. But one of the main reasons for its success is that it is so tailored to the severity of organized crime in Italy. This makes it nearly impossible, and maybe even useless, to compare it to the Dutch case, 30 years after its introduction. If Rutte IV wants to “take lessons from Italy,” the main lesson should probably be that the 41-bis prison regime was a very specific solution to a specific problem.

If The Netherlands does choose to implement a regime like 41-bis, it will face the same balancing act as Italy. In the meantime, it is unclear what the new Dutch prison regime will look like, as representatives of the coalition partners did not answer our request for a statement.

Della Bella thinks such strict forms of punishment like 41-bis should always be sentenced by a judge, and not the minister of justice, as is now the case in Italy. A prison regime should serve to minimize a real risk, and not be a political measure that plays into the public’s need for retaliation.

Morelli concludes that “with 41-bis, we are walking the line. And we should not cross that line.”

Picture (header): Leon Woudstra