On May 18, 2016 the Cabinet of Ministers of Ukraine approved at first glance unremarkable decision, which subsequently caused a wide resonance. This decision will be of great importance for the national criminal justice system because of the onset of effects, which apparently the team of reformers is not even be aware of.
Previously the State Penitentiary Service of Ukraine (the SPS) was a public service responsible for implementing the national prison police while the MoJ was responsible for shaping the prison policy. The SPS had a broad operational independence even being under the “roof” and operational control of the MoJ.
According to this decision, the SPS was abolished as an autonomous public service. The Ministry of Justice (the MoJ) took direct and full responsibility over the Ukrainian prison system.
As a result, the MoJ had acquired the status of a monopoly player in the penitentiary field and take over the burden of both shaping and implementing prison and probation policy.
On the State Penitentiary Service of Ukraine
Considering the governmental decision on liquidation of the SPS and those hypotheses, which relied as the basis for this decision, we can confidently say that the SPS has a large share of responsibility for its liquidation.
This can be explained as follows.
For a long time the national Ukrainian prison service (the State Department for Execution of Sentences, later – the State Penitentiary Service) existed in its autonomous status (even under the “roof” of the MoJ, which had a duty of shaping the national penal policy”).
As a result, a unique situation had appeared.
Against the background of maximum external formal openness, international contacts and a huge amount of international projects, which had been implemented within the SPS, the latter remained (and remains) a closed conservative organization, which has not significantly changed the priorities of its activity. The SPS is still an example of the Soviet-style bureaucratic organization.
The Ukrainian penitentiary system functioned (and is still functioning) mostly for the systems’ needs (not for needs of prisoners), providing an example of a very strange mix of professionalism and dedication, formalized prosecutorial supervision, subculture, corruption and formal transparency, efforts to ensure human rights and contemporary version of forced prison labor. The system naturally wants to operate under the old rules but at the same time it wants to look attractive from the outside, almost “like in Europe”, almost demilitarized and almost pro-socially oriented. The key word here is “almost.”
The “closed system” does not mean that it is no external access to it. On the contrary, the prison institutions in Ukraine are literally affected by the number of internal audits, visits of prosecutors, officers from the Omdurman’s Office and international experts. The majority of Ukrainian prisons are over-inspected. Sentenced prisoners are allowed using the Internet and cell phones. A lot of restrictions for lawyers, concerned with access to their clients in prisons, which that existed previously, disappeared.
In short, the system has changed due to a significant expansion of rights of prisoners and activities of powerful international actors.
It seems that Ukrainian prison has never been so close to the first penitentiary ideals and international prison standards, which Ukraine could allow at this stage, having survived after the revolution and being involved in the war with Russia and sponsored pro-Russian gangs.
However, there is a one important aspect that allows speaking of extreme controversy of the Ukrainian prison service. The problem lies not least in the methods of management thinking and style of many prison officers. The Ukrainian prison officers often forget that their task is carrying out the punishment, not making justice. That is why implementing of rehabilitation paradigm is often encountered with hidden resistance.
On the other hand, there is no reason to say that the MoJ officials’ thinking will get much more rehabilitation component having subordinated the prison service directly to the Ministry of Justice. Moreover, comparison of the “bad cop” (represented by the SPS) and “good policeman” (represented by the Ministry of Justice) creates a fear that the MoJ officials do not know the actual living Ukrainian prison. It seems that the MoJ officials are flying in theoretical bright ideas of prison reforms.
The Ministry of Justice represents the State Penitentiary Service in an extremely negative light, leading hypothesis (but alas, not facts nor arguments), while forgetting that the MoJ over a long time had been responsible for shaping and evaluating the Ukrainian prison policy. Therefore, the MoJ had all chances and possibilities to influence implementing prison policy.
One the one hand, the Ukrainian society is being saturated with information about punitively oriented prison service officers (extreme negative information). On the other hand, the society is being saturated with information about socially oriented officials from the Ministry of Justice, who know best how to protect the prisoners’ rights and to rehabilitate offenders (brightly positive information).
In other words, for some reason the Ministry of Justice decided to shape an extremely negative symbol of the State Penitentiary Service of Ukraine, and this negative radicalism is not suited for the reform.
Speaking generally, one can argue that, on the one hand, the liquidation of the SPS was not something, which could not be justified for powerful players who wanted to do so. The question is whether the MoJ had decided implementing the prison reform that really aims at solution of real problems of the prisons system (improving human rights protection, social support and protection for the prison staff, changing the prison system from punitive approach towards rehabilitation).
Moreover, the question is whether real problems of the prison system are identified correctly by the MoJ officials and proper solutions are proposed.
I can guess no.
The SPS had a task of implementing penal policy, which in turn had been formed the Ministry of Justice. Does it really mean out that the liquidation of the SPS was the result of situation when awkward, closed, conservative Penitentiary Service was simply unable to implement that pro-social, elegant, jewelry, rehabilitation policy, which had been formed the Ministry of Justice for a long time?
I can guess no.
On the prison reform
Reflecting on the extremely rapid and not transparent reform of the Ukrainian prison system and broad negative consequences of this reform, and most importantly – the already implemented steps, it would be useful to remind reformers a bright the Michel Foucault’s thesis that from the beginning the birth of modern (so-called “correctional“) prison itself, its reform, and the failure of the reform were pre-conceived scenario that assumed from the very beginning of the initiators of this reform.
I would also like to remind reformers a very simple idea that so called “correctional” prison, which appeared in the XIX century, almost immediately showed obvious inaccessibility of high and probably really noble goals that even today influence the romantic politicians and which are cynically used by pragmatic politicians.
Meanwhile romantic actors do not hear and pragmatic actors do not want to admit the obvious thing: the idea of traditional “correctional prison” was introduced and implemented more than two hundred years ago (not taking into account previous medieval European working houses). Therefore, it is not good to “try on” this “correctional” “rarity” for the needs of the modern electronic society with its specific social relations.
We must emphasize that today we are living in a very different social and economic conditions where traditional “rehabilitation of offenders through ________” is already in the past. The history of so-called “correctional” prison should be described with changing modulations of criminal punishment during XIX – XX centuries and radical transformation of the rehabilitative ideal.
In short, taking into account the MoJ declarations it can be said that the government decision to liquidate the SPS was absolutely deprived of a clear rational explanation of the problems, goals, resources and perspectives.
The Ukrainian prison reform took place not in the result of negotiations and discussions between the MoJ, the SPS, independent experts and the society. The prison reform has not relied on any sociological and criminological research. The reform was implemented after the long-term war between the MoJ and the SPS, where the latter tries to struggle for its autonomous status.
Each of the two leading actors in this battle very carefully (and sometimes even not) provided (and continues to) arguments for maintaining an existing situation or a radical change of the model of prison administration with reference to certain “European standards” that, according to well-established in our tradition, represented in mythological light without clear rational evidence and logical arguments.
According to the MoJ presentation (February 2016) on the reform of the penitentiary system, “prison standards have not changed for 75 years”.
It is extremely difficult to guess why “1941” was the turning point in the history of the national prison system. Just like that, which “standards” existed before 1941 (if such a phenomenon could exist at all). Authors of the MoJ presentation kept silent about it.
The MoJ notion that the structure of the prison service has not changed since independence is at least controversial (if not more). The initiators of the reform for unclear reason did not mention the new managerial structure the correctional service of the Ministry of Interior (1992), the Department of Corrections of the Ministry of Interior (1998), a separate State Department for Execution of Punishments as an autonomous public service (1999), the creation of the State Penitentiary Service of Ukraine (2010). For unclear reasons the team of reformers forgot to mention more than numerous programs, strategies and concepts of reforming of the penitentiary system reform prepared with the participation of the Ministry of Justice.
Regarding the announced priorities of the reform, they are very bright. At the same time, they are supported with no sociological and criminological researches. The directions of the prison reform are being driven by myths.
Thus, reference to the fact that the pilot projects, which had been opened by the Canadian partners and had lead to almost zero level of recidivism, is spectacular. However, the MoJ presentation said nothing about the recidivism rates of those offenders who are supervised by “usual” Ukrainian probation services. Therefore, I would like to recall for the teams of reformers that recidivism rate of offenders under probation supervision in 2013 – 2016 was accordingly 1,4 – 1,06 – 1,05 – 1,46. I can guess that that sounds impressive as well. In general, the authors of the reform should not have transformed the probation reform into theatric mythologization of the probation concept.
Narrowing “demilitarization” to simple reducing of number of the uniformed staff on the central level also raises questions. Moreover, complete elimination of the national prison service does not correspond to declared priorities that were associated only with a reduction in the SPS staff.
Unclear and too broad references to “offender rehabilitation” in the MoJ presentation allow talking about very strange ideas of the reformers about the nature of offender rehabilitation. Moreover, it seems that reformers from the MoJ totally ignored transformation of this concept in the American and the European penology since the early XX century.
As for the “new people in the system”, the authors of the reforms decided to put in the basis of the reform an “axiom” that every second Ukrainian citizen wants to be a junior prison inspector but “conservative closed prison system” does not allow “young hot hearts” to make reforms. In other words, it should be recalled Jaroslav Hasek with his “Brave Soldier Schweik” that “those, who prepared this directive in Vienna, imagined front line such that abounds with carrots and cauliflower.”
Absolutely declarative and fantastic character of the MoJ presentation (as well as mythology of the reform priorities) is more than obvious. “The rules of the EU”, “Council of Europe standards”, “a conservative prison system”, “new people in the system”, “demilitarization” and so on – all this and more, unfortunately, cause reasonable fear concerning the success in its future implementation. After the Governmental decision on liquidation of the State Penitentiary Service of Ukraine, such fears intensified because in the attempts to make a “conservative and opaque system” more open, the MoJ had resorted to non-transparent methods on the background to declarative.
On subordination of the prison system
During the time, what has passed, my opinion on this subject has not changed. The essence of the problem is as follows: the Rule 71 of the European Prison Rules emphasizes that prisons shall be the responsibility of public authorities separate from military, police or criminal investigation services.
The Committee of Ministers of the Council of Europe has recommended that “there shall be a clear distinction between the role of the police and the prosecution, the judiciary and the correctional system” (Recommendation Rec(2001)10, the European Code of Police Ethics).
This standard was met by Ukraine that established the State Penitentiary Service under the roof of the Ministry of Justice.
Because of the monopoly status of the MoJ as a body responsible for shaping the national prison policy, the Ministry of Justice had all the necessary capabilities to perform as assessment and implementation of such policy for a long time. The MoJ had all the leverage in the situation in the system, but for unknown reasons had never used it.
Against the background of what the SPS was completely under the political ‘roof’ of the Ministry of Justice, who dare say that Ukraine violated this fundamental standard? Therefore, I am sure that laying all responsibility for the systemic problems in the prison system solely on the SPS is at least unjustified.
On prison labor and privatization
Special attention should be paid to prison labor, which plays a leading role in the MoJ presentation of the reform. According to the MoJ presentation, the reformers aim at significantly increase the motivation of prisoners on prison labor.
I will limit myself to Michel Foucault: “All that you can talk about the economic results of the prison labor, it is about producing mechanized individuals who could meet the general standards of industrial society.”
Today we can point at the absence of clear evidence how prison labor influences on recidivism rates ” – from Chubyns’ky to Martinson what the reformers did not take into account: “Payment for prison labor is a legal fiction, which is considered an effective method of rehabilitation” (Foucault).
In addition, we can only recommend the reformers to take into account different opinions concerning the nature of prison work (first of all, Alexander Solzhenitsyn and Varlam Shalamov). I can guess they knew a real nature of the prison labor.
Summarizing the above, I should note that the MoJ penitentiary reform, launched in February and implemented in May 2016 was largely based on myths, hypotheses and imaginary facts.
- The prison reform was conducted in not transparent manner without any consultation with the public and experts.
- In the process of reforming the Ministry of Justice used a hidden negative and stigmatic characters on other subjects;
- In the process of reforming the Ministry of Justice did not conduct any study on the effectiveness of new management structure which should be implemented after the abolition of the SPS.
- The prison reform did not consider the issue of prison inspections, which is unacceptable taking into account the fact that he Prosecution Service of Ukraine will lose the function of supervision over prisons (according to the Amendments to the Constitution of Ukraine).