The jurisprudence that pardons delinquents and has its origin in the mafia
The practice of reducing sentences in exchange for information was an emergency measure to break the Sicilian Mafia's pact of silence
BarcelonaDuring the last few weeks, the figure of the confessor has taken on absolute prominence in the Spanish judicial ecosystem. But the so-called reward law – the State's practice of granting benefits and sentence reductions in exchange for internal information – was not designed in Madrid's offices to combat political corruption. Some of its roots take us back to prisons in the United States and the streets of Palermo (Sicily), where the state had to accept a prior defeat in order to move forward: the only way to destroy a closed criminal organization is to buy the betrayal of its own members.
For more than a century, the Sicilian mafia operated as an impregnable structure thanks to the omertà, the pact of silence that punished denunciation with death. Until the eighties, investigators were blind. As Federico Varese, professor of criminology at the University of Oxford, explains to ARA, the main obstacle was that from the state apparatuses "there was no conception of the existence of the mafia". Varese details that "there was a great debate about whether the Sicilian mafia existed" and the idea of belonging to an organization "was not accepted" in the judicial sphere. John Dickie, professor at University College London (UCL) contacted by ARA, clarifies, however, that omertà was never an "absolute rule that was never broken". The historian reveals that, historically, mafia bosses leaked information to the authorities to eliminate rivals, but it was "an informal and underground dialogue" that had no validity in court.
The states' success in the eighties was to bring these confidences to light and "turn informants into state witnesses within a courtroom", says Dickie. The earthquake that changed this view came with the irruption of the pentito (the repentant one). In the United States, the crack was opened by Joe Valachi in 1963. In Italy, the final blow was delivered by Tommaso Buscetta in 1984. When Judge Giovanni Falcone sat Buscetta down, he understood that to dismantle the mafia he had to offer the confessors what the clan could no longer guarantee them: survival and future freedom.
This phenomenon did not affect all mafias equally. Varese highlights a clear "variation in the number of pentiti" between the Sicilian mafia and the Calabrian 'Ndrangheta. According to the professor, while the Sicilian one "recruits on the basis of merit", in the 'Ndrangheta "they are real families, blood families". That's why "you find that there are more pentiti in the Sicilian case than in the Calabrian one". The psychological barrier changes drastically: "If you are a pentito in the Sicilian case, you are effectively informing on your criminal colleagues", the expert points out, but in the 'Ndrangheta "you are also informing on your natural family".
The legal incentive
The incursion of informants changed the rules irreversibly and crushed the criminal cultural structure. The expert highlights that the legal incentive made loyalty a much less profitable option. This right of exception, however, was not born exclusively for the mafia. As Varese clarifies and María José Rodríguez Puerta, professor of criminal law at the Autonomous University of Barcelona (UAB), corroborates, legislation in Italy "began with terrorism" with a law approved in 1980 "which allowed the penalty to be reduced for those who collaborated if they disassociated themselves from the terrorist organization". Rodríguez Puerta explains that it was in 1982 when this clause "was transferred to the fight against the mafia", motivated by "the difficulty in discovering and investigating organized crime".
However, the ethical price paid was high. Varese emphasizes "two problems" that generate political and social rejection. The first is that "you end up rewarding people who are dangerous criminals" and this leads to murderers being released from prison early. The second lies in the protection itself: "These people are given a different identity, they are moved out of the country and also given money, which the public believes is a terrible idea". Dickie adds the problem of credibility and warns that the use of pentiti "has always been very controversial" due to the risk of encountering "fantasists". He gives the example of the Camorra case, where a false repentant accused the presenter Enzo Tortora and created a "massive scandal". The expert points out that this danger increases when investigating white-collar crimes, which are "more difficult to prove legally" due to the lack of "forensic evidence".
These debates have moved to Spain, where, as Rodríguez Puerta points out, the figure was also introduced "in the field of terrorism" with the Penal Code of 1973 and has gradually extended to drug trafficking until it reached "corruption, specifically the crime of bribery". The expert warns of the ethical reservations that this practice entails, as it "essentially benefits those at the top, those who have useful information". For the UAB professor, this calls into question "the functions of criminal law" and sends the dangerous message to society that "if you commit a crime, you may not be held responsible" simply for being the first to report.
