Psychiatric and legal positivism created the figure of the “guilty fool”, a patient-offender, criminally irresponsible. Incapable of understanding and willing, not actionable, dangerous and to be interned in an ad hoc institution: the criminal asylum, then judicial mental hospital (in Italian “OPG”), encoded in the Rocco Code (1930), still in force in the field of security measures, acquittal, social dangerousness. While with the law 180/78 Italian psychiatry has made the anti-asylum choice and a choice of Community based mental health services, the criminal law, except the articles amended by the Corte Costituzionale, has remained unchanged until 2012, when Parliament decided to close 6 OPG and the opening of the REMS, a path not concluded, also strongly opposed. The path to the closure of OPG needs the Criminal Code reform and new relationships between psychiatry and judiciary.

Keywords: Guilty Fool; Penal Code; Mental Health.