Problems and Perspectives of the Regulatory Provision for the Execution of Criminal Punishment in the Form of Imprisonment

The resilience of the norms and regulations contained in the legal framework of places of detention (penal institutions and remand centres) to reproduction in real-life situations depends on the extent to which the positive, officially-written regulations correspond to the categorical content of the social life of places of confinement. It is precisely for this reason that content, which has been recorded in the many years of practical experience of staff collectives in penal institutions and pre-trial detention centres, is used by them in accordance with its instrumentality — its clarity and its ability to reflect and influence the phenomena that actually exist in conditions of imprisonment.
The interrelation of such phenomena forms, in specific collectives of penitentiary staff, a certain culture of punitive-educational influence on the special contingent, which ultimately mediates the application of regulatory norms through its categorical content, thanks to which the staff understands the social context of places of confinement.
In this case, it is not the problem of the relationship between professional culture and a specific branch of law that is being raised. Instead, the question is about the expediency of distinguishing and positively fixing the categorical content of social life in conditions of imprisonment, where the professional culture of penitentiary staff acts as a separate issue in terms of the effectiveness of bringing the norms of law closer to specific social problems.
We must agree that the categorical content of social life in conditions of imprisonment is for the most part a taboo sphere for positive law, and therefore the legislator does not even resort to the usual technique of generalisation here — they primarily exercise a system of euphemisms and ambiguous transitions. For example, when the discussion concerns the labour employment of the special contingent, it is sufficient in law to use the phrase "must work" instead of the category "obliged to work" to cast doubt on the entire system of labour-legal relations with convicts. And it is no longer possible to say whether this is a right of the convict or a duty. Meanwhile, the entire system of rhythms of functioning of penal institutions is built upon the duty of convicts to work. The bulk of convicts are turned away from the negative influence of the consistently criminogenic element not only through a complex of operational-preventive measures, but also through the broad implementation of industrial and economic tasks that accumulate the activity of the special contingent in a socially acceptable way.
The practice of the domestic penal service has unequivocally shown that a convict is obliged to work. The lack of ambiguity in the answer to this question is explained by the objective-historical conditions of the formation and development of domestic places of detention, which were mostly formed as industrial and agricultural enterprises.
Returning to the main topic, we emphasise that precisely such fundamentally important issues, for which there is no unambiguous answer in the legal regulations of places of confinement, should become key points of convergence for positive norms of law and specific social problems. Otherwise, the social capital (norms and prescriptions) of the legal regulation will never attain the proper resistance (ability to be reproduced) in the conditions of real legal enforcement.
Apparent reality is subjective. It is subjective even when we speak about generally accepted principles.
This thesis belongs to a cycle of questions, denoted in the 19th century by the common name "Who thinks abstractly?". Let us explain. If all convicts are to be equal in their legal status, is the institution of senior orderlies an exception to this rule? While the bulk of convicts must only comply with the requirements of the detention regime, the senior orderlies chosen from among the convicts are additionally assigned the function of ensuring that other convicts comply with the requirements of the detention regime. To this end, senior orderlies are granted the necessary supervisory powers: monitoring the contents of convicts' personal belongings, organising access to the dining room, etc. At the same time, senior orderlies are exempt from a number of legal restrictions characteristic of the rest of the convicts. As an example, they have the right to move alone outside the local sectors.
In fact, anyone who continues to claim that all convicts should be equal in their legal status thinks more than abstractly, because to implement the indicated idea, one would have to destroy the existing mechanism of control over socio-group processes among the special contingent. Then the outlined abstractness of thinking, supported by the allegedly generally accepted principle of equality of convicts, will result in destructive posturing, subjective in its content.
Law must resort to resolving real, existing relations, encouraging or prohibiting them. The creation of standards in a certain sphere of legal relations concerns, rather, socio-philosophical problems. And when we hear that it should be so, we must ask: is it possible?
The law cannot be a hostage to narrow political-ethical considerations; it must untie society’s hands in the matter of multiplying social capital. The practical side of the question is revealed here in the possibility of certifying the instrumental role of positive norms, where categories of law correspond to the categories of the real social context created in the practical activity of a human being.
The logic is simple. Life will change, and with it the context of social relations in places of confinement, and then one should raise the question of replacing the legal regulation of the execution of criminal punishments, preferably with a more resilient one. Otherwise, the aforementioned paradoxes will be encountered, where the norms of law will have only a hypothetical colouring.
The resilience of norms of law to reproduction in a certain social context can only be achieved through the study and consolidation of its categorical content.
For domestic places of detention, the cornerstone category is the "brigade-detachment system of detention", in which the historical, socio-cultural and political-economic content of the existence of the penal system is concentrated. Note that for the North American model of correctional institutions, such a category is "dynamic security". The difference between these two cornerstone categories will be discussed later.
The current legal regulation lacks the category "brigade-detachment system of detention". Instead, the legislator has resorted to a non-trivial interpretation of the social-domestic conditions outlined by the indicated category — convicts "are placed in living quarters with local shared living of the members of the unit". In this case, there is an obvious desire to avoid any mention of the barracks principle of keeping the special contingent, which is characteristic precisely of the brigade-detachment system. However, that same principle remains the driving force that effectively formats socio-group relations among the special contingent in a way contrary to that defined in the legal regulation. And the paradox here arose when positive law neglected the realities of penal institutions, thus leaving the competence of solving problems of actually existing social relations in conditions of imprisonment mostly to negative prescriptions.
The legal regulation has not yet been able to create real competition for the negative but resilient principles of informal interaction due to its extreme detachment from the convicts' understanding of problems regarding the deficit of goods, personal safety, and mental stress — that is, everything that the brigade-detachment system of detention produces.
This thesis proceeds from the fact that the legislator should not exercise themselves in banning informal prescriptions, which are objectively a derivative of specific social conditions, but must put forward decisive requirements for the organisation of the daily life of the special contingent, where, for example, the local placement of convicts would be determined by a specific number of persons and would not constitute a profanation in the form of plasterboard partitions, but would represent an effective system of block detention with proper engineering and technical support.
Otherwise, when the requirements for the organisation of the social life of the special contingent are minimised, and the list of duties and prohibitions for each individual convict constitutes the starting point in understanding the requirements of the detention regime, a common "fight against windmills" unfolds, that is, against the indiscipline of convicts — people often recognised by a court verdict as chronically undisciplined in terms of socially acceptable norms of behaviour. Such a background is far too favourable for various speculations and abuses.
It is precisely here that the phenomenon of prison justice is born, where too much depends on the authority and respect for the head of a penal institution for a matter of state importance — combating crime. Such dependence would be acceptable for a pedagogical process, but for an institution where, along with punitive-educational influence on convicts, there exists a series of other highly complex integral processes (operational-preventive, financial-economic, communal-domestic, medical-social), such a dependence is extremely dangerous. This has been proven repeatedly by the practice of the domestic penal system, when the moral and business qualities of the head of a penitentiary institution influenced even such an element of the operational situation as the sanitary-epidemiological state.
One can get rid of such a flawed dependence and at the same time increase the resilience of the legal regulation of the procedure for serving criminal punishments in one way. It is necessary to legally consolidate the goals and tasks of the activity of each penal institution as a procedurally unified subject, at the level of which punitive-educational influence is carried out. The simultaneous definition of clear requirements for the organisation of the activities of institutions as a whole, rather than of personnel according to various official categories, will ensure the transparency of relevant intentions in the matter of protecting the interests of the state, society, and the individual.
There must be a single, essentially nation-wide approach in assessing the results of the activities of any penal institution. And here, preempting a professional interpretation of the effectiveness of the indicated activity through categories of financial-economic and socio-preventive kinds, we note that society can judge this effectiveness only by the state of recidivist crime in the country, and not by the internal order in penal institutions.
Recidivist crime of persons released from penal institutions is in many cases a consequence of stereotypes fixed in conditions of restriction or deprivation of liberty regarding the permissibility of social parasitism.
Conditions of detention in modern penitentiary institutions of Ukraine create a coarse system of socio-group pressure, where each convict daily determines the tactics of their behaviour, defending in this way their status, behind which lies a share in access to (distribution of) material goods and the level of oppression from the multi-directional socio-group environment.
It is the brigade-detachment method of detention, the skeleton of every penal institution, that makes it impossible to counter such a system of oppression, at the root of which lies an artificial deficit of safety. The antisocial orientation of the convict objectively provides an advantage in compensating for the deficit of personally significant goods — material, communicative, etc. In fact, convicts who have a pronounced antisocial orientation go through the period of adaptation in closed-type institutions most easily.
This is conditioned by the creation of a special local environment for convicts, where the shortcomings and problems of convicts who are on the surface of shared life are often viewed by the administration of penal institutions from the point of view of only production or operational-preventive expediency. Instead, convicts with an antisocial orientation always see sense in studying and subsequently speculating on the individual characteristics of convicts already on a socio-group level.
Objectively, the administration cannot prevent convicts from exploiting each other's shortcomings due to the equality of convicts among themselves within the framework of a localised unit of the SPS (a group of 100-150 people). And therefore, the process of social parasitism eventually draws in, with the help of the mechanism of social learning, all convicts, who through joint efforts create for themselves a deficit of safety.
In fact, this is a direct consequence of the Soviet system of collective re-education of criminals. Now, when reorienting the punitive-educational process to individual forms, it is impossible not to abandon the barracks elements of the brigade-detachment system in order to actually achieve the goals of punishment.
The convict must clearly see that there are alternatives to social parasitism for a stable existence in an environment of equals.
Pro-social modelling of convict behaviour remains outside the attention of the regulation of the procedure for serving criminal punishments, although it is mentioned in a number of provisions by which the legislator outlines the desired result of such modelling — resocialisation.
The possibility of achieving socially acceptable behaviour among convicts is shattered by the paradox of the methods of correction and resocialisation defined in the legislation, none of which stands in direct contradiction to the brigade-detachment system of detention ("local shared living"), and which, therefore, enables the continued existence of a system of socio-group oppression of convicts.
It must now be determined whether the domestic penitentiary doctrine, which is to interpret the fundamental provisions of legislation in this sphere, will rely on meaningful pro-social modelling of convict behaviour, or whether it will remain half a step away from the North American model of "dynamic security".
In the first case, the conditions of organising the social life of convicts will require revision, so that the means of correction and resocialisation can gain a clear object of their integral influence and criteria for the success of this influence. We are talking about the normative consolidation of the concept of a primary collective of persons deprived of liberty, within the framework of which the conducting of punitive-educational influence on a certain category of the special contingent is optimal and pedagogically justified.
The criteria for success in applying the means of correction and resocialisation can be both the personal achievements of the members of the primary collective of convicts (in particular in education, in production), and integral indicators of socio-group processes in the collective as a whole (for example, disciplinary practice).
When leaving amorphous social formations as the prevailing feature of the cohabitation of the special contingent in the conditions of the brigade-detachment system of detention, it should be understood that neither by technical means (video surveillance, audio control, etc.), nor by psychological techniques (identifying and working with leaders of a positive orientation) will it be possible to overcome the mechanism of social control created in a large, self-organised group of 100-150 people under the influence of external prohibitions, who have experience of antisocial behaviour. This mechanism is a priori directed at the wholesale reproduction of negative prescriptions of cohabitation.
This has long been realised in the North American model of "dynamic security", which does not attempt to surprise the world by levelling the prescriptions of prison subculture. This model incorporates the principle of direct interaction with the special contingent, which is intended to secure penal institutions against extraordinary events. And although the category "dynamic security" includes separate elements of the concept of "pedagogy of cooperation", it is still more of an operational-preventive character, devoid of the sense of pro-social modelling.
And such a doctrinal approach has the right to life, because it is not a logical continuation of the theory of multiplying social capital, but primarily stems from an understanding of the proper organisation of the system of retribution for a crime.
The domestic model of execution of criminal punishments, legislatively relying not only on a repressive but also on a restorative function, must also obtain a corresponding doctrine of social rehabilitation of criminals. Otherwise, the penitentiary institutions of Ukraine will move further and further towards the "dynamic security" model, which is, indeed, useful in the conditions of the brigade-detachment system of detention, but is devoid of content within the framework of a pro-social modelling system.
KRAVCHUK P.P.
(Head of the Sector for Social-Educational
and Psychological Work of the State Department of Ukraine for the Execution of Punishment in Zaporizhzhia Region)