The ‘inmate code’ in flux: A normative system and extralegal governance in a Ukrainian prison

Utility and legitimacy of extralegal governance

Although prisoner allegiance to the inmate code varied markedly, most recognised that without extralegal governance and its normative system, chaos and violence would consume the prison, making life dangerous and unpredictable. In line with the extant literature, these prisoners, like staff, desired predictable, acceptable and durable order (Morris and Morris, 1963; Skarbek, 2014; Sparks et al., 1996; Symkovych, 2017a; Trammell, 2012). Although the inmate code entrenched and legitimised discrimination through status stratification, it also brought a measure of peace to a place where conflicts were inevitable and the population did not hold official laws in high regard:

I wouldn’t say I live in accordance with the ponyáttya. Rather, I follow some principle of coexistence. We’re all humans and there are some rules, not exactly rules, but models of appropriate behaviour. If we don’t follow them, we would degrade to the state of animals, and it would spark a hell lot of conflicts. (Prisoner-collaborator)

Even though official rhetoric presented the prisoner self-governance system (‘criminal traditions’ in UkrPS parlance) as an obstacle to prisoner ‘re-socialisation’ and ‘correction’ and a threat to internal order, the inmate code and private justice proved central to the generation of prison order (see Nunes Dias and Salla, 2013; Skarbek, 2014; Trammell, 2012). Furthermore, the norms of the prisoner community generally corresponded to the values of wider Ukrainian society (see Clemmer, 1940). Accepted principles included, inter alia: a requirement to justify personal words and deeds, a prohibition of informing on, or stealing from, fellow prisoners, respect for mothers (but not women in general), and an adherence to informal rules and hierarchy (see Crewe, 2009; Kaminski, 2004; Moczydłowski, 1992; Oleinik, 2003; Sykes and Messinger, 1960). A traditional prison attitude of ‘mind your own business’ (Sykes, 1958) exemplified a respect for autonomy – something that the official prison structure, including ‘degradation ceremonies’ (Garfinkel, 1956), undermined (see Sparks et al., 1996). The inmate code, as in other jurisdictions, was intended to sustain peace and group cohesiveness, and guard its boundaries by maintaining the symbolic ‘us and them’ line between prisoners and authorities.

The power and legitimacy of the inmate code derived from its perceived reasonableness and universal and fair enforcement thus reducing the ‘unpleasant state of uncertainty’ (Tamanaha, 2004). Tamanaha (2004) argues, persuasively, that the rule of law comprises, inter alia, generality (universality together with constraints on the rulers) and predictability (that accommodates flexibility), whereas the law’s content, application and consequences withstand moral scrutiny whilst serving the public good. This contrasted with the unfairness, arbitrariness and unreasonableness of many official prison rules and the formal law in Ukraine in general (Symkovych, 2017a). Although official prison rules and practices were intended to provide the framework for maintaining order and ‘re-socialising’ prisoners, their content and application often undermined prisoners’ agency and dignity, causing the prisoners to question their legitimacy and to defy or resist them:

Why must cons have a name tag (bírka)? … Why must we do morning exercises? For health reasons? In this case, I bet not a single [prison officer – mládshy inspéctor] does it. … Why must I stand up and greet a [prison officer] when he deems me a piece of shit and I don’t have any grounds to respect him? – Have you ever seen a [prison officer] raising to greet a prisoner? [Laughs cynically] (Prisoner-criminal elite)

The prisoners I talked to perceived many prison rules as irrelevant or unnecessarily oppressive. The juristic concepts of the spirit of law and the moral principles within the law prove helpful in elucidating the power and legitimacy of the Ukrainian inmate code (see Meyerson, 2007). The spirit of the Prison Bylaws (2014) is maintenance of order and security whilst prisoners almost unanimously argued that the cornerstone principle of the ponyáttya, i.e. the set of informal principles, rules and mores, was to protect everyone’s well-being– order followed as a by-product (see Irwin and Cressey [1962] and Skarbek [2014] on utilitarianism of the ‘convict subculture’ and gang rule respectively). Moreover, the prisoners regarded these ponyáttya as principles rather than rigid rules – unlike the Prison Bylaws – although some informal precepts, as well as the prisoner structure in general, were nothing if not rigid (see Skarbek, 2014). In any case, in the prisoners’ view, the formalistic application of rules, i.e. the primacy of the letter of the law over the purpose and spirit of the law, gave way to a contextualised interpretation of principles (see Kaminski, 2004).

Furthermore, the smotryáshchi, i.e. illicit guards from the ranks of the criminal elite, who were responsible for interpreting and enforcing the informal principles and rules, as well as dispensing extralegal justice, possessed a ‘democratic pedigree’ (Sunstein, 1997), unlike formal administrators (see Symkovych [2017c] on informal prisoner organisation and argot roles in Ukraine). In other words, the prisoners deemed their informal adjudicators to be representative and accountable, although this was not always the case (see Narag and Jones, 2017; Skarbek, 2014). Unlike official bureaucrats, the informal prison adjudicator was not above the (informal) law and could lose his ‘office’ upon compromising his credibility (see Tamanaha [2004] on the ‘rule of law, not man’ and the judge as ‘the law personified’). The prisoner universe outlawed and severely punished arbitrariness (bespredyél) and its version of unfairness: discriminating against the lower castes was ‘fair’, as their place in the hierarchy reflected their ‘choice’ and ‘free will’ in failing to meet the expected masculine standard (Symkovych, 2017b, 2017c; see Kaminski [2004] and Moczydłowski [1992] on the self-division of Polish prisoners into ‘people’ and ‘suckers’).

The literature demonstrates that inter-prisoner violence frequently erupts from unresolved conflicts, annoyance and accumulated frustration, sometimes triggered by seemingly trivial disputes or mundane irritants, such as loud music or queue-jumping (Crewe, 2009; Sparks et al., 1996; Trammell, 2012). Indeed, I witnessed a crisis escalating in a medium-security London prison when an ounce of prisoner tobacco went missing; resolution required the intervention of the prison governor and Independent Monitoring Board. Unlike other jurisdictions, the Ukrainian inmate code outlawed theft from fellow prisoners, as well as inter-prisoner violence unless sanctioned by informal adjudicators (cf. Crewe, 2009; Einat and Einat, 2000; Kaminski, 2004). Thus, prisoners had to take all but minute disputes to the criminal elite and accept their verdict (see Nunes Dias and Salla, 2013; Skarbek, 2014; Trammell, 2012). Most acquiesced, as the application of informal rules appeared contextually ‘just’ and enjoyed procedural legitimacy (cf. Kaminski [2004] on experienced grypsmen abusing their prison acumen and ‘spinning an affair’ for personal gain). Being unrestricted by control and security priorities or the demands of official law, informal prisoner adjudicators could get comprehensive and more honest testimonies from the parties and witnesses involved (see Gambetta [1993] on the underworld’s often advantageous access to information and networks compared to the state institutions). Whereas Ricciardelli (2014) reports grotesque prisoner indifference and ignoring inter-prisoner violence and abuse in Ontario federal prisons, the Ukrainian inmate code required prisoners to report immediately to illicit adjudicators any infringement of informal rules.

The prison’s inmate code promoted solidarity and engagement, although its translation into practice was sometimes problematic (Crewe, 2009; Mathiesen, 1965). Being an elaborate normative framework with a kaleidoscope of expectations and ideals, rather than merely a set of fiats, only its most unequivocal precepts, such as prohibition of theft from fellow prisoners or arbitrary violence, were beyond negotiation and discretionary interpretation (see Kaminski, 2004; cf. Einat and Einat, 2000; Skarbek, 2014; Sparks et al., 1996). Other dictates rarely entailed strict enforcement (see Tamanaha [2004] on the rule of law accommodating a balance between, on the one hand, universality and predictability and, on the other hand, discretionary exception, especially in informal communitarian settings). For example, while the inmate code prohibited informing, supplying information to the administration was not uncommon. First, the caste of collaborators de facto possessed a licence to inform the authorities of serious transgressions, such as devising contraband schemes, engaging in illicit gambling or contemplating suicide because of prohibitive debt. Second, whilst discouraging prisoners from close association with officers, especially with the security department, the prisoner sociality accommodated the need to visit administrative offices. Although prisoners viewed such visits with suspicion and whenever possible tried to liaise with the formal authorities through prisoner-trustees (collaborators), the prisoner community appreciated that such visits had to occur, so parole would succeed (see Symkovych, 2017c).

Similarly, whilst prisoners had little option but to acquiesce, their normative commitment varied signally (see Trammell [2012] on prisoner acceptance versus approval of racial segregation in Californian prisons). For example, some inmates argued ardently that prisoners should not remain disengaged and individualistic like ‘passengers on a train’; they should care for the welfare of other prisoners and facilitate the rule of informal law, including relating transgressions to the criminal elite. Conversely, whilst the prisoners who staunchly adhered to the ideology and precepts of the inmate code denounced transgressors because of their moral convictions, others did so out of fear. Failure to report amounted to complicity and led to a beating and possible demotion in the hierarchy. The incessant mutual monitoring and self-censorship, amplified by the living and working arrangements of carceral collectivism, took an unregistered toll on prisoners (Symkovych, 2017b). None the less, it minimised the impunity that undermines formal law in wider Ukrainian society (Symkovych, 2017a) and strengthened the rule of informal law:

You know, [on the outside] I used to steal for four years before I was caught. I always got away with it. However, here, I stole once and I was black and blue. They [prisoners] beat shit out of me. I know here if I steal I’ll be punished for sure, and punished severely. (Prisoner-outcast)

All prisoners and officers with whom I spoke concurred that it was almost impossible to conceal something in the prison for very long (Kaminski, 2004). Everyone seemed quite clear that infractions of prisoner community conventions, if identified, would entail harsh punishment (see Gambetta [1993] and Skarbek [2014] on the fundamental role of reputation and ‘credible threat’ in the underworld’s extralegal governance). In wider society, general corruption and the omnipotent arbitrariness and impunity of the state apparatus undermines formal law, making it a coercive tool against the disempowered (see Symkovych, 2017a). However, in this prison, any deviation from expected conduct was penalised regardless of the status of the offender:

You are accountable [otvecháyeshy] for your every word, every step. If you say something, you must prove it. – You cannot just come and hit somebody, even an outcast, only because you don’t like their face. Any conflict you’ve got, you bring it to an illicit guard. If he finds that another con acted in violation of ponyáttya [informal rules], only then would that prisoner be punished. (Prisoner-collaborator)

The requirement to substantiate any statement and justify violence removed some of the typical tensions and altercations that incite social conflict in prisons (see Moczydłowski [1992] and Kaminski [2004] on ‘cursing duels’, ‘blasphemy’ and spreading rumours, or Crewe [2009] on ‘calibrated confrontations’). In Ukraine, this extralegal self-governance, institutionalised through the prisoner hierarchy and inmate code, as with other jurisdictions, curtailed excessive violence and reduced the volatility and unpredictability of prison life (Moczydłowski, 1992; Nunes Dias and Salla, 2017; Oleinik, 2003; Skarbek, 2014; Sykes, 1958; Trammell, 2012). The effectiveness of extralegal governance stemmed from the certainty of enforcement, including through violence, as well as the perceived legitimacy of informal substantive and procedural law. The state may have had a monopoly on the legal use of force, but here, prisoner sociality institutionalised violence, if sanctioned by the criminal elite, to enforce its principles and rules (see Antillano, 2017; Nunes Dias and Salla, 2017; Skarbek, 2014; cf. Austin, 1995; Weber, 1962). The extralegal governance model described, like any other governance system, entailed a high price. It discriminated against and dehumanised some people (‘outcasts’) and normalised regimented violence. Nonetheless, supporting Gambetta (1993) and Skarbek (2014), my research participants explained this institutionalised moral blindness by maintaining that the service of the informal governance system outweighed its costs because it restrained opportunistic and uncontrolled predatory behaviour for the benefit of the majority.

The ever-changing code

Whilst its regulatory and protective functions ensured the continuing dominance of prisoner extralegal governance, this prisoner power fixture has been evolving concurrently with liberalised penal policies, structural changes in wider society and new geopolitical realities (see Symkovych, 2017c). Whereas the underworld cultures in Poland, Russia and Ukraine developed similarly due to those countries’ past political integration, my research participants claimed that since the disintegration of the Communist bloc, the Soviet ‘thieves’ world’ had been growing apart and the emerging norms now differ in Ukraine. For example, a surge in drug use among prisoners led the prison underworld to introduce a new norm prohibiting the involvement of prisoners’ mothers in drug contraband specifically to avoid endangering these loyal women. The prisoners claimed that such prohibition existed only in Ukraine, although only further research can ascertain whether this is the case, and how universal and practical this new rule is even in Ukraine.

The liberalised penal policies, including the availability of parole and increased accountability of staff, have transformed Ukrainian prison cultures with an observable effect on daily practices. First, the prisoner normative system now values prudential ‘doing time’ with minimal suffering and discomfort over virulent opposition to the administration or dramatic martyrdom for the ‘criminal ideal’ of non-alignment and resistance (Symkovych, 2017b). Unlike in the 1990s, parole is now real: over the last decade, 15,000–30,000 prisoners per annum have been leaving on parole before the expiration of their custodial sentences. However, to get early release, prisoners must engage with and show a measure of deference to the administration (see Crewe, 2009). Thus, the prisoner sociality now de facto accommodates a degree of collaboration, even some judicious informing, despite professing non-alliance and opposition to the formal authorities. I noted fairly amicable staff–prisoner relationships in this prison and was given to understand this was a more recent situation – but not unique to the research prison. (Naturally, I did not observe earlier officer–prisoner relations first-hand and had to rely on my research participants to explain some of the post-Soviet changes and practices in this and other Ukrainian prisons.) Whereas staff–prisoner relationships and power negotiations in any prison often work to defy the official opposition, in this particular prison, the improved material conditions, liberalised regimes and increased accountability that curbed officer cruelty seemed to have reduced previous animosity. Staff brutality and power inequality have not disappeared, but all my research participants said today’s Ukrainian prisons are much less antagonistic and vindictive than they were in the 1990s, with an even more striking departure from prisons under communist authoritarianism (see Winfree et al. [2002] on deprivations and negative attitudes towards staff).

Second, the liberalised sentencing has resulted in many old-school criminal elite members ‘retiring’ from the elite to simply work their way through their sentences, thus leaving young and inexperienced prisoners with relatively short sentences and dubious moral standing to fill the void (see Symkovych, 2017c). Together with the liberalised sentencing and parole regime, an influx of drugs has corroded the legitimacy of the criminal elite and, by extension, the system of prisoner self-governance (see Tamanaha [2004] on the indivisibility of law and human agents). Many prisoners, as well as staff, expressed dissatisfaction with the new contingent of criminal elite:

You never trust a con. But before at least there was such a thing as ‘a con’s word’ [zékivsyke slóvo]. – Now they say whatever they want but you cannot trust it. They are not masters of their word, as they all are drug-users and alcoholics. Or homeless. (Prison school director)

Those prisoners, even in the lowest informal stratum, who witnessed first-hand the ‘moral degradation’ of the criminal elite in action, when their conduct was at odds with the criminal precepts they promoted (see Tamanaha, 2004), were quite critical of the entire concept of informal moral and legal norms and questioned the legitimacy of extralegal governance. The following vignette highlights the role of human agency in the endurance of structures (Giddens, 1984):

I do not follow the ponyáttya [informal norms]. And those who do – are fools. They do not realise that these are not the same ponyáttya as those in the past, [i.e.] the ponyáttya in the name of which people suffered. I used to work as a cleaner down in the ‘pit’ [segregation block]. In the DPK [a close supervision centre] bread and sálo [traditional Ukrainian lard] were getting mouldy. It’s a great sin to let bread get mouldy! They [criminal-elite] are so insolent. They are fussy and demand [from other prisoners] the best food, better cigarettes. – And they don’t give a fuck that muzhykí [lads] out there sometimes give the last pack [of cigarettes]. That’s how criminal-elite suffer in the name of the criminal idea! (Prisoner-outcast)

Although the metamorphoses of the prisoner normative and governance system are both fundamental and minute, UkrPS administrators are not always aware of its dynamic nature. For example, before I started my fieldwork, the Deputy Head of the UkrPS instructed me to take off an ear stud I was wearing so prisoners would not presume I was gay. She also warned me not to wear anything red, as this colour was taboo in the ‘thieves’ world’ for historically it symbolised communism and the unfair, repressive and inhumane state (see Moczydłowski [1992] and Kaminski [2004] on grypsmen and communism). I followed her advice, but eventually prisoners noticed my pierced ear. The ensuing discussions revealed that piercing no longer denoted homosexuality, nor did the colour red mean allegiance to officialdom. We all had a good laugh, and the prisoners told me that this advice would have been helpful about 20 years ago and perhaps still in some institutions for young offenders (YOIs). Reminiscing about their time in YOIs, my research participants told me that in those prisons, extralegal governance entails the more fundamentalist, cruel interpretation and enforcement of the inmate code than in prisons for adults (see Kaminski, 2004; cf. Winfree et al. [2002] on hard-core recidivists’ attitudes and Irwin and Cressey [1962] on less pronounced convict cultures in juvenile institutions). Additionally, being dynamic within individual prisons, the inmate code has variations and nuances across the Ukrainian penal landscape, although extralegal governance retains its general parameters.

Despite the changing profile of the criminal elite and the attendant discontent, the prisoners could not imagine life without a traditional hierarchy and institutionalised extralegal governance. Regardless of his views, even the prisoner-outcast cited above could not afford non-compliance with the informal rules, as every prisoner had a place in the hierarchy and had to obey the informal law or face severe punishment (Kaminski, 2004; cf. Clemmer [1940] on ‘ungrouped’ prisoners). As many inter-prisoner disputes arise from illicit activities and sub-rosa economy, such as gambling, these Ukrainian prisoners could not believe that English prisoners do not have the identical position of illicit guard:

Are you joking? So if two prisoners have an argument of some sort, they will go to otryádnik [officer in charge of a squad of prisoners] or whatever a member of staff is called over there? That’s fucked up! Really, they don’t have illicit guards or vóry [‘thieves’]?! (Prisoner-lad)

Thus, even though prisoners decried some of the changes in the prisoner normative system and the undermined legitimacy of the criminal elite, they, overall, vouched for the functional pertinence of the inmate code, underworld hierarchy and private justice. Indeed, the inherent legitimacy deficit notwithstanding (Sparks et al., 1996), the formal authorities lacked the resources, crucially staff, to offer adequate protection and arbitration to offset the utility of extralegal governance (Gambetta, 1993). Nothing suggests that the Ukrainian state entertains any plans of radical alteration of its role in prison governance, despite the drastically decreased prisoner population and official rhetoric (see CPT, 2017). As Skarbek (2014) argues, extralegal governance persists, despite its metamorphoses, as long as a need remains for extralegal protection and regulation. In response to cultural, organisational and political transformations in wider society and the new realities in Ukrainian prisons, these prisoners have adopted new norms and relaxed or abandoned some of the old traditions (see Kaminski [2004] on the decline of prisoner tattooing in Poland). For example, once a prisoner with a family or with military service experience could not become a member of the criminal elite. ⁵ However, the ‘thieves’ world’ now overlooks this prohibition to fill the void resulting from new penal policies and the changing demographics of prisoners. Nonetheless, whilst undergoing important transformations, the informal prisoner organisation with its normative and governance system remains crucial in maximising the relatively peaceful coexistence of these Ukrainian prisoners.