Il «gelo metallico dello Stato»: per una critica della crimmigration come nuda forza

Abstract

After outlining certain features of the phenomenon of «crimmigration» (the intertwining of criminal law and migration law), this paper notes two main issues. First, the fact that the condition of social exclusion in which crimmigration places the unwanted migrant — a condition that, being pro- dromic to the foreigner’s expulsion, should in principle be temporary — becomes stable in the many cases in which expulsion does not occur; as a result, large portions of the population that de facto fall within the State’s jurisdiction suffer long-term discrimination — in conflict with various consti- tutional principles, not least those enshrined in Articles 2 and 3 of the Constitution. Second, crimmigration is radically devoid of authority in relation to the foreigner, as it merely aims to exclude him or her, while authority is, by its very nature, inclusive: this, on the one hand, makes crimmigration illegiti- mate with regard to its main addressees (the excluded foreigners) and, on the other hand, also makes the use of criminal law within this practice illegitimate, because criminal law, as required by the Italian Constitution (Article 27(3)), should seek to re-socialize the person convicted for a crime.