RECLUSION. — It may be regarded either as preventive custody (v. CARCERE) or as a retributive punishment for an offense.
I. IMPRISONMENT AS A PENALTY IN CANON LAW
Considered under the second aspect, from the historical point of view, imprisonment as a penalty appears rather late in the development of criminal law. In Roman law, prison was not regarded as a punishment, because the State did not intend to feed oriosi (I, 8, § 9, D. 48, 19; I, 35, D. 48, 19; I, 6, C. 9, 47). The same was true in barbarian law (A. Pertile, Storia del diritto italiano, V, Storia del diritto penale, Torino 1892, pp. 279, 287). Wernz, on the other hand, maintains that imprisonment was already in use among the Germanic peoples when it was deemed appropriate to introduce it into the ecclesiastical forum (P. X. Wernz, Ius Decretalium, IV, Prato 1913, p. 107). According to Vacandard, imprisonment is exclusively of ecclesiastical origin (cf. E. Vacandard, L'inquisition, Parigi 1907, p. 39).Documents from the sixth century speak of enclosed places, called decaneta, for the relegation of guilty clerics, intended not only for custody pending trial, but also for amendment and penance (cf. Council of Agde [a. 506], can. 50; Council of Epsano [a. 517], can. 22; Council of Mâcon I [a. 581], cann. 5-6; Council of Toledo XI [a. 675], can. 6; Council German. [a. 742], can. 6). As regards clerics, out of respect for the clerical state, detention in monasteries was preferred (Council of Narbonne [a. 589], can. 6; Council of Toledo IV [a. 633], cann. 29, 45). The widows of subdeacons and minor clerics were likewise to be sent to monasteries if they entered into a second marriage (Second Council of Mâcon [a. 583], can. 16). Monasteries also had a section intended as a prison, including for the punishment of their own monks or nuns (in the case of women’s monasteries) when they had committed crimes. In time, laypeople too were subjected to imprisonment, which had been reserved for clerics and religious, above all in order to spare them more savage and cruel corporal punishments. In the Decretum of Gratian, the Decretals, and the Sext of Boniface, this punishment is frequently mentioned (4, D. 50; 13, D. 55; 8, X, V, 37; 15, V, II in 6e; 12, 18, V, II in 6e); it continued throughout the Middle Ages; it is listed among the ordinary penalties in the Council of Trent (sess. XXV, cap. 6, 14 de ref.) and in the period thereafter, being continually applied and adapted, especially in the sixteenth to eighteenth centuries by the various States. Throughout this period the Church exercised a powerful influence in humanizing imprisonment and giving it a regenerative purpose, and for her part she set the example (v. CARCERE). Even today, after the CIC, it cannot be said that the penalty of imprisonment, although mitigated and reduced to confinement in monasteries, has entirely disappeared. The implementation of the penalty is, however, often rendered difficult, if not impossible, by the opposition of civil laws.
II. IMPRISONMENT IN ITALIAN CRIMINAL LAW
In the old Italian Penal Code (1889), a distinction was made between imprisonment and detention, a distinction that, since it had no practical significance, is no longer found in the new Penal Code (1930). According to Art. 23, the penalty of imprisonment ranges from fifteen days to twenty-four years and is served in one of the institutions designated for this purpose, with compulsory labor and nighttime isolation. A person sentenced to imprisonment who has served at least one year of the sentence may be admitted to outdoor labor. The provisions of the final two paragraphs of Art. 2 of the Penal Code apply to the penalty of imprisonment; that is to say, the Minister of Grace and Justice may arrange for the sentence to be served in a colony or an overseas possession (today, politically, the situation has changed) and may order that the prisoner be admitted to outdoor labor even before having served one year of the sentence. These provisions are all inspired not only by a sentiment of humanity but also by the desirability of reforming the prisoner, by making him capable of returning to social life after serving his sentence. The institution of conditional release is therefore provided for in the Penal Code (Art. 176).Art. 21 of Royal Decree No. 1404 of 20 July 1934 on juvenile courts lays down special, more favorable rules concerning the granting of conditional release to persons convicted before reaching the age of eighteen. A sentence of imprisonment for an intentional or preterintentional offense committed by a person over eighteen years of age automatically entails certain accessory penalties. If imprisonment is imposed for not less than five years, perpetual disqualification from public office follows. The disqualification is temporary if the imprisonment is for less than five years. Furthermore, a person sentenced to imprisonment for a period of not less than five years remains, until the sentence has been served or otherwise extinguished, under legal interdiction and is likewise subject to suspension from the exercise of parental authority and marital authority, unless the judge decides to exclude this effect. Another accessory penalty to imprisonment is supervised liberty (Art. 229). This is mandatory when imprisonment has been imposed for not less than ten years and is optional in the case of a sentence of imprisonment for less than ten years. Supervised liberty may not last less than three years and applies when certain security measures are not to be imposed. Regarding the manner of imposing a sentence of imprisonment V. PENITENCIARIO.