TENDENCY TO OFFEND. – The Italian Penal Code currently in force, departing from the conception of the classical school, which regarded the crime as an abstract entity, and embracing the more modern teaching that connects crime with the human being, has taken a decisive step toward the subjectivization of crime, which must be studied and considered in a direct and concrete relationship with the person of its author.
Within this process of subjectivizing crime stands the figure of the habitual offender by disposition: according to Art. 108 of the Penal Code, this is one who, “although not a recidivist or a habitual or professional offender, commits a non-negligent crime against life or individual safety … which, considered in itself and together with the circumstances indicated in the second paragraph of Art. 133, reveals an inclination toward crime having its cause in the particularly wicked nature of the culprit. The provision of this article does not apply if the inclination toward crime originates in the illness contemplated by Arts. 88 and 89.”
In the habitual offender by disposition, the lack of moral sense neither derives from nor is associated with any psychological disorder in the intellectual or volitional sphere: “These are individuals,” we read in the report of the Minister of Justice, “who, while possessing a lucid intellect and a normal will, lack moral and social feeling. Often extremely intelligent and shrewd, they are nevertheless devoid of even the minimum ethical and social capacity required to live within human society; wicked and dangerous, they possess a disposition, an inclination, a tendency toward crime ready to erupt …” The habitual offender by disposition is therefore characterized by amorality, by the wickedness of his nature, and by particular dangerousness; his tendency toward crime, however, must not originate in pathological causes of any kind that affect his capacity to understand or to will.
The identification of the figure of the habitual offender by disposition has given rise to heated disputes. It has been said that one who is irreparably driven to crime by his nature is irresponsible. The tendency toward crime would be nothing other than an element or a consequence of mental illness. This is not correct: the lack of moral sense does not signify a lack of the capacity to understand and to will; and awareness of the morality or immorality of the action committed has no bearing, in the agent, on his capacity to understand and to will.
In laying down a practical rule serving to define these cases as they occur in everyday reality, the Code has made it clear that a declaration of a tendency to offend may be pronounced by the judge only when the culprit’s immorality and wickedness do not originate in a state of illness. It is the judge who, in the conviction judgment, must declare the culprit to be a habitual offender by disposition. In grounding this declaration, he must take into account the brutality of the crime committed (it must be a non-negligent crime against life or individual safety) and the personality of the offender, his nature, and his particular inclination toward crime, having regard, in addition to the nature and manner of commission of the crime, to the motives for the criminal act, the character of the offender, his criminal record, his life before and after the offense, and the environmental conditions in which the culprit lives. When, upon examining all these elements, the judge becomes convinced of the culprit’s dangerousness and his particular inclination toward crime, he must include, in the conviction judgment, a declaration that he is a habitual offender by disposition.
(from O. Baggi, Della Vita e delle Opere di P. Tenerani, Firenze 1888, p. 28)
TENERANI, PIETRO - Genietti della pesca e della caccia (1825). Proprietà Tenerani.