L’irragionevole esclusione dello “spaccio di lieve entità” dall’ambito applicativo della messa alla prova. Riflessioni a margine della questione di legittimità costituzionale sollevata dal Tribunale di Padova

The Criminal Court of Padua has recently raised a question of constitutional legitimacy in relation to the exclusion of the crime of "minor drug dealing" (art. 73, para. 5, Presidential Decree no. 309/1990) from the scope of the probation. This exclusion stems from Law Decree no. 123 of September 15, 2023, known as the “Caivano Decree”, which raised the maximum penalty for this crime from four to five years, thereby indirectly preventing access to this special procedure. The paper critically analyzes the decision, focusing in particular on the disparity in treatment between the crime in question and another considered “homogeneous”. It also proposes, by emphasizing the constitutional rationale of probation, a possible reshaping of the constitutional issue based on the principle of intrinsic reasonableness.