Serial thefts: the risk of reoffending is not enough to warrant a prison sentence for the pregnant mother

The general risk of reoffending is not sufficient to deny a suspension of sentence to a pregnant mother with a child under the age of three. The Court of Cassation has thus upheld the appeal lodged by a woman of Roma origin, who had a significant history of thefts, against the decision of the Rome Supervisory Court to order, following her conviction, that her sentence be served in a low-security facility formothers in custody. The judges had, in fact, rejected the applicant’s request for a postponement of her sentence, which she had sought on the grounds of her pregnancy and the fact that she was the mother of a child under the age of three. The reason for the refusal lay in the “particular level of danger to society posed by the woman (numerous previous convictions for predatory offences committed over a long period and up to the present time)”. Such a ‘record’ meant that a deferral was not applicable, not even in the form of home detention, because the measure did not guarantee constant supervision of the convicted woman.

The woman’s defence team, however, finds the key to winning the appeal precisely in the provision, decidedly harsher provision for female prisoners who are mothers, introduced by Decree-Law 48 of 2025, the so-called Security Decree, which made deferral of sentence optional rather than mandatory for female prisoners who are mothers with children under the age of three. However, this tightening of the rules requires the Supervisory Court, in the event of a refusal to grant deferral, to cite ‘a situation of danger, of exceptional significance, regarding the commission of further offences’. And, according to the Supreme Court, a generic reference to the risk of reoffending does not fall within the concept of ‘exceptional significance’ of the risk that further offences may be committed.

The Court of Cassation clarifies, in fact, that ‘with this expression, the legislator has struck a complex balance between the needs of protecting pregnant women, the unborn child and infants (on the one hand) and those of the community (on the other), requiring – as the judges state – the supervisory judge, in the event of a refusal to grant a deferral (including in the form of house arrest), to provide ‘substantiated’ grounds going beyond the ordinary risk of a repeat of deviant behaviour’. Whilst, in general, the existence of a condition of subjective dangerousness may be inferred from the mere observation of the ‘serial nature’ of unlawful conduct, in the case of a pregnant woman with a very young child, this is not sufficient. The judge who refuses the deferral, in this particular circumstance, must, in fact, provide specific grounds regarding an extremely high probability of the unlawful conduct being repeated, even in a context characterised by obvious vulnerability on the part of the woman. The decision is therefore set aside and the case remitted for a new hearing.