RECLUSION. - It may be considered either as preventive custody (v. CARCERE) or as a retributive punishment for a crime.
I. RECLUSION AS A PENALTY IN CANON LAW
Considered under the second aspect, from the historical point of view, the prison penalty arrives rather late in the evolution of criminal law. In Roman law the prison was not regarded as a penalty, because the State did not intend to feed idle people (I, 8, § 9, D. 48, 19; I, 35, D. 48, 19; I, 6, C. 9, 47). The same happened in barbarian law (A. Pertile, Storia del diritto italiano, V, Storia del diritto penale, Turin 1892, pp. 279, 287). Wernz, on the other hand, claims that r. was already in use among the Germanic peoples, when it was judged opportune to introduce it into the ecclesiastical forum (P. X. Wernz, Ius Decretalium, IV, Prato 1913, p. 107). According to Vacandard, r. is of exclusively ecclesiastical origin (cf. E. Vacandard, L'inquisition, Paris 1907, p. 39).
Documents of the 6th century speak of enclosed places, called decaneta, for the relegation of guilty clerics with the aim not only of custody pending trial, but also of emendation and penance (cf. Council of Agde [a. 506], can. 50; Council of Epsano [a. 517], can. 22; First Council of Mâcon [a. 581], cann. 5-6; Eleventh Council of Toledo [a. 675], can. 6; Council of Germania [a. 742], can. 6). As for clerics, out of respect for the clerical state, detention in monasteries was preferred (Council of Narbonne [a. 589], can. 6; Fourth Council of Toledo [a. 633], cann. 29, 45). The widows of subdeacons and of lower clerics, if they entered into second marriages, were also to be sent to monasteries (Second Council of Mâcon [a. 583], can. 16). Monasteries moreover had a section set aside as a prison also for punishing their own monks or their own nuns (if they were female monasteries), in the case of crimes. Over time, laypeople too were subjected to the penalty of imprisonment, reserved for clerics and religious, above all in order to remove them from more ferocious and cruel corporal punishments. In Gratian's Decretum, in the Decretals and in the Sixth of Boniface, mention is often made of this penalty (4, D. 50; 13, D. 55; 8, X, V, 37; 15, V, II in 6e; 12, 18, V, II in 6e), which lasted throughout the Middle Ages; it is recalled among the ordinary penalties in the Council of Trent (sess. XXV, cap. 6, 14 de ref.) and in the period that followed, being continually applied and adapted, especially in the 16th-18th centuries, by the various States. Throughout this time the Church exercised a valid influence in humanizing the prison and giving it a regenerative purpose, and on its own account gave the example (v. CARCERE). Even today, after the CIC, one cannot say that the penalty of r., albeit mitigated and reduced to an internment in monasteries, has entirely disappeared. The carrying out of the penalty is, however, often rendered difficult, if not impossible, by the opposition of civil laws.
II. RECLUSION IN ITALIAN CRIMINAL LAW
In the old Italian Penal Code (1889) there was a distinction between r. and detention, a distinction which, since it had no practical significance, no longer exists in the new Penal Code (1930). Under art. 23 the penalty of r. extends from fifteen days to twenty-four years and is served in one of the institutions designated for that purpose, with the obligation of work and with night-time isolation. A person sentenced to r. who has served at least one year of the penalty may be admitted to outdoor work. The provisions of the last two paragraphs of art. 2 of the Penal Code apply to the penalty of r., that is to say, the Minister of Grace and Justice may arrange for the penalty to be served in a colony or in an overseas possession (today, politically, the situation has changed) and may order that the convicted person be admitted to outdoor work, even before he has served one year of the penalty. These provisions are all inspired, besides by a sentiment of humanity, also by the advisability of reforming the convicted person, by making him capable of re-entering, once the penalty has been served, into social life. Provision is therefore made in the Penal Code for the institution of conditional release (art. 176).
Art. 21 of Royal Decree No. 1404 of 20 July 1934 on juvenile courts lays down particular rules more favourable with regard to the granting of conditional liberty for convicted persons under eighteen years of age. A sentence to r. for an intentional or ultra-intentional crime, perpetrated by a person over eighteen years of age, produces by operation of law certain accessory penalties. If the r. is imposed for not less than five years, perpetual disqualification from public offices follows. The disqualification is temporary if the r. is for a period of less than five years. Furthermore, a person sentenced to r. for a period of not less than five years, until the penalty has been served or otherwise extinguished, is in a state of legal disqualification and is also subject to suspension from the exercise of parental authority and of marital authority, if the judge does not consider it appropriate to exclude such effect. Another accessory penalty to r. is that of supervised liberty (art. 229). This is mandatory when reclusion has been imposed for not less than ten years and is discretionary in the case of a sentence to r. for a period of less than ten years. Supervised liberty may not last less than three years and applies when there is no occasion for certain measures of security. As regards the manner of imposing the penalty of r., v. PENITENCIARIO.