Salvatore’s story. The thirty-year correspondence between a lifer and the judge who condemned him to perpetual punishment

1.- The story of Salvatore

The thirty-year correspondence between a lifer and the judge who condemned him to perpetual punishment – suggests various reflections, the most immediate of which is the confirmation of how each individual (in this case the author of numerous serious crimes) it contains in itself the possibility of being profoundly different from the connotation that the crime assigns him; but next to it it suggests the existence and fecundity of a field of action different from that in which the law and its protagonists usually operate, that we could call the ground of the praeter legem, to distinguish it from the canonical dualism according to which the operator of the law thinks, accustomed to seeing the reality articulated by the couple secundum legem and contra legem.

Not only. The story in question is also characterized by another peculiarity. The two protagonists are the most diverse as it can be imagined, for social extraction, culture, age, conduct of life and institutional role, and inevitably they move in the orbit of their respective roles. Well, the story could have been born precisely because both – aware or not – in certain parts of the process have left their assigned role, they played another role, without denying their nature and (for the judge) without losing their duties: simply drawing fully from ​​the possible to integrate the rigidity of the due.


2.- Some examples.

The first deviation from the usual ritual resides in the structure of the so-called maxi-process, that is, that kind of process that assembles many judgeable people, and that procedure being active in the 80s, today repealed used to favour, especially in situations of crime of criminal association In the ordinary process the contact between the judge and the accused is usually brief and impersonal. The relationship vis à vis lasts the time of the interrogation and the judgment as a whole lasts a maximum of one day or a little more. Furthermore, the contact between judge and defendant is entirely procedural, that is, governed by ritual and depersonalizing rules. In the current rite, then, the judge does not even conduct the examination that is entrusted to the parties; and also in the rite in effect at the time of the trial in question, which entrusted the conduct of the interrogation to the judge, this was a procedure oriented by strictly legal objectives, it was not turned towards introspections or plumbs of the soul, but it was turned towards the verification whether the defendant was the author of what was attributed to him, and whether the conduct was fully settled in the model case.

The abnormal dimensions of that trial (242 defendants) imposed an equally abnormal celebration time (about twenty months), and therefore the contact between a judges-defendants it was not limited to a face to face, such as that of the interrogation or of any debate, but it extended to the compresence for hundreds of hearings, then to that physical proximity also made of gestures and improvised words, of unplanned and non-ritual attitudes, precisely for this reason even more expressive, in short, to splinters of non-ritualized life.

This leads to reflections and wishes that are as obvious as they are unrealizable, that is to think about how much greater wealth could have a process in which the relationship is less formalized, more extensive and more authentic: but the quantity of business to be treated is always immense and it restricts, against all willingness, the times of the treatment and the possible emergence of a compressed and mute humanity.


3.- The second role construction is offered by the quality of that specific process.

In the 1980s, the techniques and resources of the survey were much poorer than today’s.

The scientific evidence was in its infancy, we began to talk about DNA, the patrimonial investigations – initiated and solicited by Giovanni Falcone – were at the dawn, of satellite surveys and of other sophisticated technologies, not even the shadow.

The proof, especially in associative crimes such as in the case in question, was largely constituted by what in legal slang is called declarative evidence: someone, who had been part of the mafia association, was detaching himself for different reasons and offering the knowledge he had at his disposal. The uneasy objective comparisons to the statements, and the plurality of converging accounts represented the prosecution, alongside not many other sources of evidence.

The trial was therefore a clear and declared war between opposing fronts: on one hand, the small patrol of the collaborators of justice (or, inappropriately, the repentants), on the other side the expanse of the accused.  No mediation was possible.

Antagonism was not only a procedural confrontation, but a real war, including acts of violence, to the detriment, if possible, of the collaborators (normally protected) more often than their relatives or associates (in the trial there was a good number of dead and injured).

The war inevitably overflowed on the strictly trial ground and resulted in an obstinate obstructionism, in a losing rebelliousness, but that was always able to dilute until the exhaustion of a mechanism that already was heavy and pachydermic in itself.

In this context the idea of ​​the praeter legem was born in me, described in the first pages of “Fine penalty: now”. From the first few weeks I realized that, alongside my task as a conductor of the trial, the situation entrusted me in a completely informal way also a role of manager, for a long time, of a small community, which included not only the 242 defendants, but all their family and private surroundings, including the various problems of humanity that this entails.

I decided then to dedicate a small amount of time, after the formal closure of the hearing, to the listening of the family, or of the defendants themselves (these in the detention condition guaranteed by the courtroom-bunker and with the presence of the defender, if he wanted to) so that they could exclusively expose to me issues of the aforementioned type.

This innovation had an unexpected effect, because it suddenly wakened the aggressive atmosphere. Several defendants, even the most unruly, participated in those brief interviews, and in several ways made me realize that the process from then on would have had an orderly development, even in its inevitable hardships and contrasts.


3.a.- The fact, after many years, lends itself to some non-trivial reflection.

My decision was completely instinctive and not aimed at any specific goal. Someone, above all, some members of the local court (moved by the suspicion that the judge, in those tete à tete, could solicit or collect “off-the-bag” statements) raised doubts about his legitimacy, but in reality no one could say that initiative was illegitimate, at least because the defender’s presence was not only admitted but desired. It was therefore, if we want to make things simple, of a small invention in a little practiced land, that which is not regulated by any norm, and which for this reason may have unexplored productivenesses. The brain of the judge-operator of law is monopolized, from the beginning, by the binomial secundum legem / contra legem, which collects its universe, its attention, its action. Little space remains for that vast land which is the praeter legem, the expanse of things that are not regulated, but which are possible, often fertile, sometimes even resolutive, with the only condition that they are not contra legem. That unusual listening was beneficial. And it pushed the subjects of the naked processual rite to leave at least partially their respective roles. The judge was no longer just the celebrant of a rite, the defendants were no longer belligerent, the judgment returned to being a place of confrontation and assessment.

Nothing resounding, not even celebrable, just a reason of comfort for those who try to walk not traveled roads.


4.- The exit from the roles can be contagious.

In that process it was like this. Salvatore, the spearhead of the belligerent lineup, came to ask me for permission to visit his sick mother.

The characteristics of the subject required me certain caution in granting him permission, and he refused those methods with energy (I refer to the book).

The usual antithesis (the secundum / contra) led to modeling the permit in accordance with the prescription of the penitentiary order, and therefore as a matter of fact, would have forced Salvatore to refuse it and he would have stiffened and turned him nasty during the maximum trial degree. Without pondering much, I once again drew from the praeter legem a variant of some audacity, which rested on a convergent mutual trust.

The agreement was silent but clear. I took the risk, he did not profit. For a moment we both disavowed the formal constraints of our roles. My role required to give preference to caution against a “dangerous” subject; his role required the suggestion of making a profit by recovering a risky freedom. With today’s look, it was him who made the most expensive turn down. Seen today, the disposal of our respective clothes  it was the premise of an exceptional subsequent relationship.


5.- The emotional premise

There is another page that constitutes the most direct emotional premise to the birth of that long mailing: the informal conversation asked by Salvatore in the last lines of the process, when he showed to me the element of the lottery of life in an elementary language


(” … if your son was born where I was born, maybe at this time it would have been him in the cage … “).


In this case it did not follow any conduct, neither typical nor atypical. The defendant confined himself, even without being aware of it, to remind the judge that his gaze must essentially verify whether a certain conduct reproduces the legal model; but a broad look can not ignore that the same conduct can be heavily influenced by social conditioning. The law does not ignore it, and in fact mostly entrusts the judge with a discretion that allows him, not to not apply the sanction, but to modulate it also because of those conditions.But this does not happen in very serious crimes which, precisely because of their extreme gravity, they demand an extremely hard punishment, such as life sentence. Salvatore knew that this was his destiny. In this situation the praeter legem was silent. I did not see any practicality. When the judge is convinced that the defendant is the author of those crimes and he does not have margins of discretion, he can not be anything other than the bouche de la loi, that’s to say the perpetrator of a rule as far as severe it is.


6.- Praeter legem

However, even that conversation stirred the banks, it later yielded an instinctive intuition in the setting of the praeter legem. What is more anomalous than a judge, having just sent a young criminal to perpetual punishment, who writes him a letter of an almost impossible balancing act, like the one that initiated the thirty-year exchange? The judge could not avoid imposing that sanction (he had acted “secundum legem“); he could not even “apologize” for having imposed it without denying his duty (he would have acted “contra legem“): he could perhaps offer something uncoded, as a partial relief to a suffering of which he was objectively the inevitable creator. This – seen later, because at that time it was also an unreflected behavior – was probably the “praeter legem” to which the first letter from the judge drew. It was not a simple word of consolation, which would have sounded hypocritical; but the proposal for an agreement.

You must cross a vast expanse of days of imprisonment – said the letter without saying it.

Yours is a commitment at the edge of the human (in fact, many convicts do not hold it and take their own lives). But you can support it if you propose to look at the world through different eyes from those that have guided you until now, if you will do of you that new man to whom our prison civilization aspires, asking for the re-education of the condemned man; you can bear this test, above all, if someone will accompany you on this journey.

On this premise we can sign a pact. You will resist, I will accompany you. And you promise: I will resist, if you will accompany me.

Salvatore, the man who “never read books, only procedural acts“, understood the agreement, signed it and observed it. For thirty years.

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Elvio Fassone, was magistrate and Senator of the Republic. he is the author of various publications on procedural-penal and penitentiary matters; His latest publications are "Una Costituzione amica" and "Fine pena: ora" (2015)

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