TENDENCY TO DELINQUENCY. - The Italian Penal Code in force, departing from the conception of the classical school, which regarded crime as an abstract entity, and gathering up the more modern teaching that links crime to the man, has taken a decisive step toward the subjectivization of crime, which must be studied and considered in direct and concrete relation to the person of its perpetrator.
Within the framework of this process of subjectivization of crime, there arises the figure of the delinquent by tendency: such is declared, under art. 108 of the Penal Code, anyone who, "although not a recidivist or a habitual or professional delinquent, commits a non-culpable crime against life, or individual safety... which in itself, together with the circumstances indicated in the second paragraph of art. 133, reveals an inclination to crime that finds its cause in the particularly wicked disposition of the guilty party. The provision of this article does not apply if the inclination to crime originates from the infirmity envisaged by arts. 88 and 89."
In the delinquent by tendency the lack of moral sense does not derive from and is not associated with any psychological disturbance in the intellectual and volitional sphere: "These are individuals," one reads in the report of the Keeper of the Seals, "who, although having a lucid intellect and normal will, lack moral and social sense. Often highly intelligent and shrewd, they are nevertheless devoid of the minimum of ethico-social capacity to live in human society; wicked and dangerous, they have for crime a disposition, an inclination, a tendency ready to explode..." The delinquent by tendency is therefore characterized by amorality, by the wickedness of his disposition, by his particular dangerousness: the tendency to crime, however, must not originate from pathological causes, of whatever nature, that affect the capacity to understand or to will.
The identification of the figure of the delinquent by tendency has given rise to heated disputes. It has been said that one who is irremediably driven to crime by his nature is an irresponsible person. The tendency to crime would be nothing other than an element or a resultant of mental infirmity. This is not exact: the lack of moral sense does not mean lack of capacity to understand and to will; and the consciousness of the morality or immorality of the action committed has no reference, in the agent, to his capacity to understand and to will.
The Code, laying down a rule of a practical character that serves to define these cases existing in everyday reality, has well specified that the declaration of t. a. d. may be pronounced by the judge only when the immorality and wickedness of the guilty party do not originate in a state of infirmity. It is the judge who, with the sentence of conviction, must declare the guilty party a delinquent by tendency. In order to ground this declaration, he must take into account the heinousness of the crime committed (it must be a non-culpable crime against life or individual safety) and the personality of the offender, his disposition and his particular inclination to crime, having regard, besides the nature and the modalities of the crime committed, to the motives of the criminal action, the character of the offender, his criminal record, his life before and after the crime, and the environmental conditions of the guilty party's life. When, from the examination of all these elements, the judge becomes convinced of the dangerousness of the guilty party and of his particular inclination to crime, he must proceed, with the sentence of conviction, to the declaration of t. a. d.
This declaration produces very important effects, such as the subjection of the convicted person to the security measure of assignment to an agricultural colony or to a workhouse for a period of not less than four years and perpetual disqualification from public offices, in addition to the lesser penal effects, such as the serving of the sentence in special institutions, the inapplicability of amnesty and pardon, and the prohibition of the conditional suspension of the sentence.
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