The Legal and Illegal Use of Force by Prison Officers in Ukraine

Introduction

Some prisons are more violent than others. Even so, research since Sykes’s (1958) persuasively demonstrates that in prison work, force is most effective when available, but used sporadically (Cheliotis, 2014; Crewe, 2009; Sparks, Bottoms, & Hay, 1996). Prison officers rely on a panoply of means to secure prisoner compliance and prevent escapes, with each prison and prison officer developing a style and method to maintain order (Crawley, 2004; Kauffman, 1988; McDermott & King, 1988). How prisons and officers deploy power largely depends on the legal framework, institutional culture, and the sensibilities of the wider society, not to mention individual differences (Hepburn, 1985; Liebling, 2004; Liebling & Price, 2001; Sparks et al., 1996). To date, much of our understanding of the role of force in the routine maintenance of prison order ¹ comes from research in the “West”; we know very little about the situation elsewhere, apart from human rights reports and media headlines. However, expanding the focus to non-“Western” contexts is critical if we are to ascertain whether what we currently understand about power and order in prisons is merely “local truth” (Nelken, 2010) or is valid in different cultural settings. For example, non-“Western” prisons often have less external oversight and a wider disconnect between legal safeguards and their practical observance than prisons in the “West” (Birkbeck, 2011; Martin, 2014). Responding to the calls by Birkbeck (2011) and Wacquant (2002) to assemble cross-cultural descriptive and ethnographic data, the objective in this article is to redress this lack of knowledge by introducing the case of Ukraine following the collapse of Soviet Communism. Analyzing data from a semiethnographic study in a medium-security prison for men, I argue that even though availability of force was central to preventing escapes and securing prisoner compliance in this particular prison, its deployment was relatively rare and often resulted from officers feeling disempowered.

To support this argument, I first review the literature that points to the need for power sharing and negotiating order to reduce reliance on force. In the next section, I explain the Ukrainian prison system, describe the prison in which I conducted my fieldwork, and explain the research methodology. Finally, I present and discuss my findings on the officers’ use of legal lethal, legal nonlethal, and illegal force.

Force and Negotiated Prison Order

In this article, force means purposeful physical actions with an immediate impact on another person’s body either via direct contact or through devices, such as batons, handcuffs, restraining clothes, or, in extreme cases, a bullet. Often in the public’s view and in academic literature, social control in prison rests on force (Crawley, 2004; King & Elliott, 1977; Liebling & Price, 2001). A plethora of studies highlight that both officers and prisoners favor or actually use violence to control or resist each other (Fleisher, 1989; Marquart, 1986). Many researchers stress that prison social order draws on manifold factors, such as measures and routines, whereby force is not necessarily systematic or excessive (Bottoms, 1999; Crawley, 2004; Karklins, 1989; Sykes, 1958). Even so, the possibility of the use of force forms the core of the organization and operation of imprisonment (Crewe, 2009; Sparks et al., 1996; Stojkovic, 1986; Sykes, 1958). Nonetheless, Sykes (1958) and subsequent commentators have argued, convincingly, that exercising force can be effective as a short-term measure and to control a limited number of people (e.g., Foucault, 1975; Hepburn, 1985; Karklins, 1989; Kauffman, 1988).

Leaving “supermax” prisons aside, many prisons around the world entail staff–prisoner face-to-face interactions (Cheliotis, 2014; Crewe, 2009; Liebling, 2004; Mathiesen, 1965; Piacentini, 2004). In such prisons, officers have to rely, to a greater or lesser degree, on relationships and cultivate social order with prisoners (Bandyopadhyay, Jefferson, & Ugelvik, 2013; Crewe, 2009; Liebling, 2004; McDermott & King, 1988; Sparks et al., 1996; Sykes, 1958; Symkovych, 2018a). This proximity and interdependency militates against the sustained, excessive, or indiscriminate use of force. This does not imply that officer violence and “sheer thuggery” (Crewe, 2009) are rare in the “West” (Marquart, 1986) or elsewhere (Slade, 2016). Nonetheless, although the public imagination, fuelled by media reports, seems to envision prison officers as all too eager to use force against prisoners, studies underscore that many officers are wary of deploying force (Bottoms, 1999; Liebling, 2004; Sparks et al., 1996).

Ukraine’s Prison System

On October 1, 2018, Ukraine’s prison system consisted of 29 remand, 11 minimum-, 59 medium-, and seven maximum-security prisons, as well as 11 women’s prisons, six minors’ prisons, and 21 correctional centers, holding 55,901 people, including 11,991 on remand (Ukrainian Penitentiary Service [UkrPS], 2018). ² Since 2000, the Ukraine’s prison population rate has drastically decreased from 443 to 157 per 100,000 population—compared with Poland’s 194 and Russia’s 402 (Institute for Criminal Policy Research, 2018). Ukraine continuously introduces new legal safeguards for those in custody, although their implementation in situ always lags behind, and allegations of ill-treament and torture are not unusual (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [CPT], 2015). Prisoners have rights to lodge complaints to prison authorities and other governmental bodies and to file suits in national and extranational courts. The office of the Parliamentary Human Rights Ombudsman, overseeing prosecutors, NGOs, as well as international monitoring bodies, such as the Committee Against Torture (CAT), regularly visit prisons and receive individual prisoners. Although some anachronistic Soviet prison regime restrictions remain, many have been lifted or relaxed (Symkovych, 2018a, 2018c).

Most Ukrainian prisoners have underprivileged backgrounds. In 2018, 2.27% of prisoners had tuberculosis and 6% had HIV (Prison Portal of Donetsk Memorial, 2018). This contributed to the CAT’s (2014) concern with health conditions and mortality rates in Ukrainian prisons. More than half are convicted of property crimes; 16% are convicted of murder, 7% of grievous bodily assault, and 1.6% of rape (UkrPS, 2018).

The UkrPS, which currently encompasses prison and probation services and de jure constitutes a department within the Ministry of Justice, employs 37,000 staff, chiefly uniformed (UkrPS, 2018). General understaffing of 13.6% led the CAT to urge the Ukrainian government to increase the prisoner/staff ratio to tackle interprisoner violence (CAT, 2014, para 19.b).

The Study

Method

The fieldwork comprised almost daily visits over 5 months, during which I conducted observations and had informal conversations with prisoners and officers; I also attended various meetings, including daily staff briefings. At the outset, I had to accompany an officer, but later, when the anxieties of the prison commander and officers abated, I managed to move relatively freely (albeit without keys). I spent time on weekdays and over holidays, during the day and at night, in all parts of the prison: in the dormitories (“barracks”), workshops, trans-zone checkpoint (vákhta), allocation unit, medical ward, kitchen, and a segregation unit.

The explorative nature of this study called for purposive sampling. After 3 months of observation and informal conversations with all officers (including managers) and about one third of prisoners (not just the most social or eloquent), I selected 21 officers and 20 prisoners for semistructured interviews lasting 2 to 6 hr. The selected rank-and-file and senior grade officers (managers) included each prison corps (such as patrols and social-educational) and represented a diversity of age and prison experiences (novices and seasoned staff, career officers and those who joined the UkrPS after being laid off from previous jobs), work styles (such as laissez-faire, formal or withdrawn), and reputation (e.g. “pedants,” “fair,” “unreliable,” “good officer”). Whereas the interviews served only to expand and triangulate the data collected through informal conversations and observations, the selected purposeful quota sample in effect reflected the diversity of the prison staff, while comprising the majority of the daily available staff. In addition, I interviewed five officers in the Training Academy (three men and two women), although over the 5 months of living in the Academy, I conversed informally with hundreds of officers from across Ukraine.

My prisoner interviewees represented different ages, incarceration histories, squads, and all categories in the informal prisoner hierarchy: one “illicit guard” (smotryáshchy), one prisoner adhering to the “criminal traditions” (blatný) but without a high status (without “a briefcase”), three outcasts, four collaborators, and 11 lads (see Symkovych, 2018b). Selecting these prisoners, I aimed to augment the material collected during the initial 3 months of informal conversations and observations. Striving for representation, apart from my personal judgment in selecting interviewees, I utilized snowball sampling. I considered prisoners’ recommendations when inviting prisoners for long, semistructured interviews that served, inter alia, to increase the data saturation. In fact, I could not interview certain prisoners without first getting a “green light” from gatekeepers. For example, a prisoner from the informal stratum of the criminal-elite consented to an interview 3 months after my initial request. Our interview was subject to my getting a favorable recommendation from the prisoners he trusted. In the end, I had only two refusals: by the prisoners in command of respectively outcast-prisoners and criminal-elite.

We held interviews mostly in private. The majority of research participants consented to voice recording, although we arranged beforehand that I would pause recording upon request. I had an ethical clearance from the Cambridge Institute of Criminology and the UkrPS Deputy Head, UkrPS Scientific Council and other UkrPS departments. I explained to my interviewees that they could withdraw from the research at any time, assuring them that all responses would remain confidential.

To minimize my ad post factum rationalizations (Berg, 2001), witnessing a certain situation, I tried to discuss with those present the meanings we attached to it, as well as our emotional reactions (Christie, 1997; Liebling, 2014). Observations served to contextualize research participants’ subjectivity, as well as to triangulate the data obtained through informal conversations and formal interviews. The formal interviews strengthened and helped to confirm the picture that had emerged from the initial ethnographic work through informal conversations and observations. These methods were complementary and inseparable. Similarly to other prison researchers, I strove to minimize social distance, and avoided hierarchies within research. At times, though, I had to resist being drawn into the prison’s power relations or discriminatory practices (Liebling, 2014). I regularly reasserted my position as a researcher by refusing cooption into conducting searches, acting as a witness for disciplinary reports, or assisting prisoners in a manner that would violate prison rules.

I attribute the good relationships with the majority of officers and prisoners to our mutual curiosity and genuineness. They also appreciated my interest in their lives and work, as well as numerous obstacles I overcame during 2 years of fighting the UkrPS for research access. The access quest included numerous letters, telephone calls, and visits to the UkrPS headquarters, “pulling various strings” in high offices, going public on television, and being subjected to humiliation and even being told to secure an international grant to refurbish Ukrainian prisons in exchange for research access.

Even when the UkrPS headquarters eventually authorized my fieldwork, the prison commander twice suspended my access, and I had to obtain de novo a more detailed authorization letter from the UkrPS Deputy Head, as well as visit the area manager’s office to further secure two authorization letters. Despite having this bureaucratic armory, I remained vulnerable to the caprice of the prison commander, who occasionally denied my entry into the secure compound with little, if any, explanation. The prisoners and officers sympathized with my frustration and anger and could easily relate to the arbitrariness and measure of powerlessness I experienced. I believe this facilitated rapport, acceptance, and the eventual success of the fieldwork.

The content analysis of observation and postconversation notes, interview transcriptions, notes, and recordings was thematic. The categories emerged equally from preconceived themes produced through the literature analysis and from those that evolved naturally during this qualitative fieldwork and open coding. Both the themes’ frequency and intensity, that is, their deduced salience to research participants gauged through the participants’ choice of words, tones, and other signifiers, drove the analysis (Berg, 2001). Thus, this thematic analysis was predicated on categorization of content areas. I constantly interchanged examination of identified themes and found patterns while grasping the entire picture of collected data to avoid fragmentation and decontextualization.

As an explorative case study of a single, model institution, this “near data” research (Christie, 1997) counsels caution against any generalization. To address this limitation, over 5 months of living at the UkrPS Training Academy, I had sustained conversations with officers from all Ukrainian prisons; in addition, prisoners offered comparisons of their experience in other Ukrainian institutions. Thus, I have some confidence in my ability to gauge the situation elsewhere. To augment internal validity, I employed a range of strategies—from combining methods, to being self-reflexive, to relaying my preliminary findings and analysis back to my research participants and discussing this material with my colleagues. Furthermore, where available, I use official data from the UkrPS website, prisoners’ files, and various prison log registries to substantiate my findings.

Findings

Corroborating the extant literature from the “West,” my findings demonstrate that force in this particular Ukrainian prison was always available, yet officers used it judicially. In what follows, I examine force in three forms: (a) lethal force as a special subtype of legal force, (b) nonlethal legal force, and (c) illegal force. Legal force is the force used by prison officers on prisoners in situations prescribed by the law and in accordance with official protocols. Lethal force constitutes legal force in the form of the deployment of deadly weapons, for example, guns. Illegal force is force prison officers apply outside legally authorized situations or in violation of legally sanctioned forms.

Discussion and Conclusion

In this article, I explain the place of lethal and nonlethal legal, as well as illegal force in the daily work of Ukrainian prison officers. In the prison where I did my fieldwork, force, while always available, was exercised more or less judicially. Consistent with the extant literature, my findings affirm that power can be effective even if unexercised—as long as the parties in power relations are clear about its availability and another party’s readiness to deploy it (Kauffman, 1988; Scott, 2001; Wrong, 2004). In this Ukrainian prison, the option of lethal force and other legal avenues was a prime example, although the threat of illegal force in the form of “masquerades” or “hot stuff” also affected prisoners and arguably helped officers to maintain control. Even so, both prisoners and officers agreed that exercising force of any type had limited long-term effect, again echoing previous studies (Hepburn, 1985; Karklins, 1989; Kauffman, 1988; also Foucault, 1975; Scott, 2001; Wrong, 2004).

Despite the efficacy of withholding power and using only the threat of power as a deterrent, on occasion the prison officers resorted to force. Moreover, although legally vested with official powers, including the right to legal force, some officers preferred informal and illegal power. I identified three main reasons for this. First, while the law gives Ukrainian officers considerable powers, some of my interviewees felt disempowered (see Hepburn, 1984, 1985; King & Elliott, 1977; Liebling, 2004). As the important decisions were the prerogative of the prison commander and, to a lesser degree, squad supervisors, some patrol officers reacted to their marginalization by “taking justice into their own hands” and deploying illegal force when they expected the commander’s decision to be unfair (as they perceived it). Some blamed the post-Soviet sociolegal transformations in Ukraine (broadly known as “democratization,” “Europeanization,” and “humanization”) for their “need” for illegal force as a counterbalance to what they saw as a “failing” society, the “eroded” capacity of formal punishments, and the “laxity” of their superiors vis-à-vis prisoners (see Stojkovic, 1986).

Second, some officers rationalized their use of illegal force by arguing for its “rehabilitative,” “didactic,” or “deterrent” properties. These officers regarded formal powers and official structures as inadequate in “correctional” work. In an attempt to legitimize illegal force, they alluded to “traditional” Ukrainian discipline and “mentality.” Their use of “correction” included denying agency to and infantilizing prisoners. This was by no means universal: other officers expressed strong views against illegal force, regarding it as unprofessional, illegitimate, and dangerous.

Third, some officers framed illegal force as a token of “benevolence.” Formal punishment might lead to the forfeiture of a visit or a delay of parole, things considered very serious by staff and prisoners alike. Wrong (2004) argues that “there are psychological pressures from both sides of power relations to convert coercive into legitimate authority” (p. 113). Rulers may be uncomfortable with their role as controllers and inflictors of pain. Therefore, they may self-legitimate by rationalizing that their use of force is “intended to help” (Christie, 1978). The prisoners accepted some forms of illegal force, but did so with an important caveat—they saw it as a lesser evil not a “benign” or “humane” act. “Hot stuff” enjoyed a measure of legitimacy at both ends of the power spectrum, provided the semblance of prisoner consent was manifest and the procedure conformed to the established protocol. In fact, this implied acquiescence, absent in the case of legal force, could explain some variations in the prevalence of illegal force versus legal force.

I found prisoners were not completely powerless vis-à-vis officers and, physical resistance aside, could rely, prima facie, on official complaints. This finding highlights that endowing prisoner rights and grievance procedures with meaning can be a useful strategy to eliminate illegal force (see Behan & Kirkham, 2016). However, for the time being, my own access struggle demonstrates how impenetrable the bureaucratic wall can be and how it may make even somebody in a much more advantaged position than most prisoners feel powerless and discouraged (see Liebling [2014] on the relationship between research access to prisons and the state of penal politics and practices).

In a more general sense, my findings evince the dynamic nature of illegal and legal force in prison work. Change in one or in the interaction of several of the identified dimensions, notably those outside prisons, is likely to affect the acceptability of, and the readiness to deploy, legal and illegal force. For example, the dramatic sociolegal transformations in Ukraine following the restoration of independence have enhanced prisoner status to a degree, endowing prisoners with rights and recognizing their humanity. As a result, officers were not confident that in the case of a prisoner’s official complaint or a security report, the prison commander or an overseeing prosecutor would automatically exonerate them. This finding furnishes support to the thesis that the stance of senior managers greatly affects the institutional culture (DiIulio, 1987; Marquart, 1986; Useem & Piehl, 2006). I found that in their deployment of force, officers considered both the legal ramifications and the stance of the prison commander, as well as the potential reaction of the prisoners. They were conscious of the illegality and possible repercussions of illegal force and thus used discretion. Even so, the reported use of illegal force, along with the commander’s micromanagement style, suggests that the institutional culture and practice still accommodate illegal force, despite Ukraine’s sociolegal reforms. Of course, the scale of illegal force pales when compared with Soviet prisons (Karklins, 1989; Khlevniuk, 2004; Piacentini, 2004). The punitive and conservative views of some senior managers could have contributed to the general toleration of illegal force, provided it was not too excessive and, more importantly, did not attract attention and external intervention (see Symkovych, 2018c on negative visibility). In other words, officers (and managers) weighed the cost of using force before taking action.

A combination of understaffing and awareness of prisoner resistance sometimes prevented officers from deploying legal force when the situation warranted it. Over the 5 months of my fieldwork, I did not witness the use of lethal or nonlethal legal force, nor did I find a report on their use. First, understaffing minimized the odds of officers observing rule infringements and thus deploying legal force. Second, the post-factum official investigation and the requirement to log each instance of legal force potentially acted as a deterrent. Furthermore, most officers did not appear particularly fit, and deploying forceful measures might have been difficult. As staffing levels in Ukrainian prisons are unlikely to rise in the foreseeable future, the adoption of the type of control and restraint procedure now used in England and Wales remains unlikely. This procedure requires three officers, provides clear guidance on conflict de-escalation, contains fewer gray areas and, hence, may alleviate officers’ wariness of deploying official powers in appropriate situations.

As it was limited to a single institution, and given the inherent challenge of defining and measuring violence (Bottoms, 1999), this study does not claim to paint a holistic picture or measure the use of force in the Ukraine’s expansive penal system. I fully appreciate that in prisons with a different administration–prisoner balance (e.g., in so-called “black zones”) or different governance philosophy (see CPT, 2015, paras 35, 36, 40), officers behave differently. Notwithstanding the effects of a different prisoner population (for example, women), prisons with alternative management styles are likely to generate quite different officer–prisoner relations with another balance of legal and illegal force (although see Hepburn, 1985). Whereas this matter deserves a fuller exploration in future research, in this “near data” study, I have aimed only to elucidate the rationale for the use of illegal force by a particular set of prison officers and the reasons why, at times, officers failed to deploy legal force, even though it was their prerogative.