LAUSR

The coronavirus disease 2019 (COVID-19) pandemic has affected all categories of citizens, but among the most affected are those who are detained in prisons. Overcrowding in Italian prisons is a problem that has resurfaced with the current health emergency. Of course, with overcrowded conditions, it is very difficult to implement all of the preventive measures that are needed to combat COVID-19. In addition, in the event of an outbreak of the epidemic within prisons, it will be almost impossible to reduce the risk of contagion to both prisoners and operators working within these settings. In this situation of serious overcrowding, the Italian Government, through the last decree aimed at managing COVID-19 (‘Decreto Cura Italia’), has ordered that detainees who have less than 18 months of their prison sentences left to serve are instead managed under house arrest. Although this government measure does not include prisoners who are serving sentences for mafia crimes, it has not prevented the release of some mafia bosses for health reasons relating to the COVID-19 pandemic. The reason for these releases is the state of health of the prisoners (e.g. elderly and/or sick) that could worsen in the circumstances of a possible infection with COVID-19. To date, exclusively on the basis of an alleged risk of worsening health status related to the COVID-19 pandemic, some judges have decided to release more than four bosses belonging to mafia associations of Cosa Nostra and ‘Ndrangheta. In addition to these notorious criminals, 376 detainees linked to mafia associations were put under house arrest. Due to this controversy, the Director of the Department of Prison Administration resigned, and the role was given to an anti-mafia magistrate. In this situation, a precise and in-depth medico-legal evaluation is essential. A medical doctor with expertise in legal medicine is best placed to review scientifically and assess critically whether underlying diseases are incompatible with imprisonment. Following analysis of the health of a prisoner, a medico-legal expert would then be able to assist judges with their decision making in this difficult area. Considering this potentially dangerous situation, the Italian government is considering a measure to make an evaluation of the national anti-mafia prosecutor mandatory in any case in which the possible release of a mafia boss is being considered. In any case, a careful assessment of the actual risk – not just the presumed risk – that the prisoner may contract COVID-19 and suffer a worsening of his health condition will be essential. This assessment will must be carried out by a medico-legal expert who can objectively review whether there is a serious risk that the prisoner may suffer unavoidable health damage during their detention in prison. This expert will also be able to identify alternative specific measures that may be introduced (e.g. the allocation of health services or treatment in prison).