1.
The authors of the draft “Concept for Reorganizing the Criminal
Executive system of the MVD of Russia (for the period until the year of 2005)”
(hereinafter, ‘the Concept’) affirm that "extended reforming of the system is
hindered by the current legal basis of criminal corrections as well as by insufficient
budget financing".
2.1.
We think this conclusion does not correspond to the actual situation in
our sphere of concern. Changes in the Russian penitentiary legislation have brought it to
a significant degree into compliance with international standards. The pace of legislative
innovations from 1992—1995 was quite high, perhaps, too high. However, the attached
documents and reports by the UN and Council of Europe experts show [4,5] that this
"paper" reform is merely a background for a very distinct tendency of increasing
deterioration in the human rights situation. These violations are of a widescale,
outrageous and systematic nature. It is by no means an exaggeration to describe the
situation in Russian pretrial detention centers as catastrophic. Detention conditions have
been described as torture and SIZOs present a menace to
the health and safety of the public.
2.2.
Therefore, the main problem not only for today but for the next
decade (the Concept covers this period) should not be to continue reforming the
"legal basis", but rather close the growing discrepancy between rights de jure
and de facto. That is why any plan for reforming the criminal corrections system
(hereinafter, CCS) should answer the following
questions: what explains the failure to implement current laws? How can the "legal
basis" be made to work? What methodology should be used during the period of reform?
Unfortunately, not only do the authors fail to give answers, they do not even pose these
questions (aside from making frequent references to the lack of "sufficient budget
financing").
3.1.
The Concept's authors and the GUIN
administration repeat the argument of "insufficient budget financing" throughout
the document, and it is, indeed, a cornerstone of all proposals of ‘radical reform’
and ‘widescale reform’. Hence, we believe it is, first of all, necessary to comment on
the criteria of ‘sufficiency’.
There is no doubt that Russia's penitentiary institutions operate in
very harsh (perhaps, catastrophic) financial circumstances, which partially explains the
lack of qualified medical help, financial means for sufficient nutrition of prisoners and
the shocking condition of buildings, and low and irregularly paid salaries. However, it is
senseless to consider the issue of "sufficient financing" of any department, we
do take into consideration the real capacity of the state and the issue of optimum
allocation of limited resources among all the departments involved in reform.
Let us give some figures to make the situation clear. The 1995 budget
has allotted 2.4 trillion rubles to CCS. This
represents more than 1% of the expenditure part of the entire budget (236 trln. Ru).
For the sake of comparison, in the same year, 1.4 trln. Ru were
allocated for the "prevention and liquidation of the consequences of emergency
situations and disasters"; 1.6 trln. Ru for "culture and art"; 4.5 for all
social programs and 6.4 for "fundamental research and promotion of scientific and
technical progress". While most of these programs did not receive all the money
budgeted to them (90% in average), allocations to the penal system exceeded the budgeted
amount by 5 trln . Ru (121% of the budgeted), accounting for 1.4% of actual expenditures
of the total budget.
The Concept provides for the implementation of quite a number of
programs that need large capital and financial investments. These include: rebuilding and
restoring the infrastructure of those penitentiary institutions that are in shambles (i.e.
about half of those currently in operation); providing colonies and SIZOs with modern security equipment; establishing new
support services and strengthening old ones (e.g. regional divisions of organized crime
units within Departments for Criminal Corrections, a unified communication system using
all types of communications, including satellite); establishing systems of penal
institutions of all types in every region of the Russian Federation (there are now more
than 30 different types of institutions); increasing the number of staff members and their
salaries; building houses for prison staff, creating a network of centers for training
personnel, etc.
The most pressing is, certainly, the program of building of new and
reconstruction of old pretrial detention centers. Its estimated cost is 13 trln. Ru (in
1995 prices). But this program also, if implemented, would hardly be
"sufficient" to resolve the problem of overcrowding in SIZOs. The program assumes increasing the number of beds up
to 180,000 by the year of 2000. However, there were 290,000 prisoners by the end of 1995,
and the MVD forecast for the end of 1996 is 350,000. Resources needed for programs that
the Concept envisages, by our estimates, are completely unlikely to be forthcoming from
the budget. At the same time, as the SIZO construction
program demonstrates, even these programs would be insufficient to bring prison conditions
into compliance with Russian legislation, not to mention international standards.
3.2.
In 1996 it is planned to triple CCS's
budget allocation to 7.3 trln. Ru (about 1.7% of total budget expenditures). This became
possible only by reducing expenses for other very important Russian programs. For example,
the share of the 1996 budget planned for education, culture and art, research and
promotion of science and technology, etc. has been reduced.
But in 1996, the budget allocations to CCS,
according to GUIN, make up only 60% of the needed amount
of 12.5 trln. Ru, and would cover far from all costs of the penitentiary system. For
example, other budget entries cover the maintenance of penitentiary institutions that are
not run by GUIN (IVSs,
special psychiatric hospitals, disciplinary battalions and others), costs of prison
personnel training, etc. Moreover, the Concept provides for enormous additional
expenditures needed for those extremely important and necessary programs listed above.
3.3.
In addition, insufficient financing of a number of other ministries and
departments directly affected the situation of the CCS,
and the amount of ‘sufficient budget money’ to be allocated to it. For example, under
the 1996 budget, the courts of general jurisdiction, currently in financial collapse, are
to be provided only about one-third of what they need (1.9 trln. Ru), as estimated by the
experts of Ministry of Justice and the Supreme Court [6—9]. As a result, important lines
of judicial reform will come to a halt, the courts will become even more inaccessible to
the public, and the length of proceedings (already very long) will further increase. And
this, in turn, will increase the overcrowding of SIZOs
and the necessity to increase expenditures for the CCS
in 1997.
This is only the most obvious example of the importance of considering
resource allocation in a more general, non-departmental context. One of the factors
affecting the number of prisoners in the near future is the effectiveness of social
programs, the work of investigators, courts and procuracies, and services involved in
crime prevention and socialization of prisoners after release.
Yet economic constraints (as all others) are absolutely beyond the
attention of the Concept’s authors. They construct their proposals in an unreal fairy
tale dimension, where the characters do not need to think of limited resources and real
circumstances.
It is interesting to note that the Concept’s authors do not even
mention such penitentiary institutions as IVS, since in
many Russian regions, institutions of this type hold 15—25% of all people under
investigation and on trial.
Under current legislation, an arrestee may be held in an IVS for up to three days, sometimes up to ten, and if the
nearest SIZO is located far from the site of preliminary
or judicial investigation, up to 30 days. In most of Russia, only regional capitals have IVSs. Since investigations and trials sometimes take up to
several months and even years, a great number of prisoners under investigation and trial
must constantly be transported from SIZOs to IVSs located at investigation or trial sites and back again.
This results in large transportation expenses, especially in the large regions.
For example, in the Krasnoyarski krai, whose territory is four times
larger than the territory of France, there are only three SIZOs.
Transporting prisoners from SIZOs to IVS and back sometimes requires the use of a plane. In
addition, some prisoners have to be put through this experience several times and every
time it is a very hard procedure for a human being to bear.
In the Nizhni Novgorod region there is only one SIZO (in Nizhni Novgorod) and 50 IVSs,
of which 48 are located in other cities of the region. The average IVS population in 1994 was 1598 people, SIZOs — 5,100—5,400. Therefore, people detained in IVS made up more than 23% of the total number of those
detained in custody during investigation and trial.
In order to bring conditions and security requirements in compliance with
standards prescribed by law, local MVD officials proposed long ago rebuilding the
functioning IVSs instead of building huge SIZOs. In addition, they proposed building small,
multi-functional penitentiary institutions (for detainees, those under investigation, on
trial, as well as for those sentenced to short-term custody). This would make possible,
within a short period, to reduce the number of people held in SIZOs,
reduce the length of investigations and trials, decrease expenses for transportation, etc.
However, the Concept’s authors took note neither of the existence of IVSs themselves (thus, a great number of prisoners were not
included in their statistics), nor of possible solutions to acute problems through the
introduction of institutions of this type into the sphere of reform. This oversight
happened due to one simple reason: although IVSs are under
MVD jurisdiction, they are not subordinate directly to GUIN.
3.4.
Thus, the Concept suffers from a narrow departmental approach and
does not touch the complex of problems as a whole. The Concept's authors also do not
envisage the most essential question: what will be the consequences for Russia, of
‘sufficient budget financing’ of the CCS, if the
Concept is implemented?
4.1.
Can we estimate those limits for a ‘sufficient’ prison budget
beyond which would spell catastrophe for the state and society?
According to information available to us, the share of the Russian
budget planned for the penitentiary system in 1996 is the highest in the world. For
example, for European countries this indicator is between 0.1 and 1.0%. But we know (see,
for instance [10, p.25] that comparing the share of budget expenditures for penitentiary
systems among different countries is not methodologically correct because of the different
structures of national budgets. Rather, a more useful indicator is expenditures for the
penitentiary system as a share of the Gross Domestic Product (GDP).
This, in particular, ‘makes it possible for us to estimate the comparative importance of
prison institutions for each country’ [10, p.25]. This seems to be quite logical,
because such an indicator (hereinafter, C) reveals the portion of all (not only budgeted)
resources a country is ready to spend to protect its citizens from criminals. Besides, the
C factor partly takes into account the fact that different countries have different
resources.
4.2.
Unfortunately, the exact figures at our disposal, date from the mid —
80. For France, C=0.056%, Belgium , C=0.087%, Netherlands, C=0.084%, Norway, C=0.106%,
Denmark, C=0.135%... In Russia, this indicator in 1995 was 0.177%. This figure is quite
high. But it should be taken into account that the C factor in most of European countries
has increased over the past 10 years by 1.1—1.5 times. For Kazakhstan C was close to
0.1%, but for the Baltic states and Moldova, it was even higher than in Russia (in Moldova
in 1994 C=0.24%).
Russia will spend approximately the same amount (0.24% of GDP) on the CCS in 1996. If we
base our calculations on the amount for the CCS
demanded by the MVD RF, the C indicator would rise to about 0.4%. This is significantly
higher than in most countries of the world, and about the same share of expenditures of GDP for the prison system in the U.S. In theory, CCS expenditures in Russia in 1994 —1996 does not seem
so threatening.
But the move from relative to absolute indicators changes this picture
radically. For the sake of comparison, let us consider Italy: it is quite close to Russia
in the total number of registered crimes and the share of expenses of GDP for the penitentiary system.
The daily cost of maintaining one prisoner in 1994 in Italy was 153,150
Liras or 460 thousand rubles; in Russia (1995) this figure was 56 times less: 8.2 thousand
rubles ($1.8). This fantastically low amount of money includes the costs of personnel (44%
[11,37]), utilities, current repair of buildings, medical service, food, etc. This amount
of money is completely insufficient to provide the very minimum of people' needs and
elementary conditions. Even if one were take into account the different resources
available to society, this gap between Italy and Russia seems impossible to explain. GDP per capita in Russia (an indicator that could be taken as
resource capacity) is 7.2 (!) times less than that in Italy. By sheer mathematical logic,
the money allocated for one prisoner in Russia has to be at least 7.8 times less than that
in Italy. This presents no enigma. The fact is that the relative (per 100,000) number of
prisoners in Russia (650 in 1995) is greater than that in Italy (88 in 1994) by the same
figure — 7.4.
We limit ourselves to only one illustration, but dozens of similar
examples can be listed here to confirm a quite simple conclusion: the basic problem of the
Russian CCS is not “insufficient budget
financing”, but a huge number of prisoners. Even those countries with more successful
economies could not provide “sufficient financing” for the penitentiary system to
maintain a comparable prison population in relatively appropriate conditions without
catastrophic consequences to their national budgets. Simple calculations show that with
such a level of prisoners as that in Russia (650 per 100,000), Italy would have to
allocate more than 6% of the national budget (2.5% of GDP).
But in order for Russia to provide the same relative level (adjusted for difference in GDP per capita) of financing of the CCS, it would have to spend (in 1995) about 21 trln. Ru,
or 9.5% of all federal budget expenditures (1.3% of GDP).
When estimating “sufficient budget allocations” by using other methods, we get even
larger figures (from 30 to 45 trln. rubles). While we do not insist on the absolute
correctness of these estimates, we do think it is necessary to conduct an independent,
non-departmental analysis of this (as well as any other) draft of the Concept of the
reform of CCS, that would evaluate the chances for
implementing any proposals in concrete financial conditions, and also forecast appropriate
social consequences of the suggested innovations.
4.3.
The annual drop in Russia's GDP (in
1991—1994) was 12—19% [22, p.68]. GDP in 1994 was 53%
of the 1990 level, but simultaneously, the prison population grew by 6—15% per year. By
1996, it has increased by 1.5 (in comparison to 1991). The growth of expenditures for the CCS as a percent of GDP
in these conditions is an objective process. However, this process creates an increasingly
dangerous situation, sharpens tensions in society and makes difficult the process of
reform in different spheres of Russian life.
The Concept's authors call for one of the main tasks of reform
to be ‘observance, in the criminal corrections system of the Russian Federation, of
international norms and standards for the treatment of prisoners” (p. 2, “Explanatory
notes” to the Concept), yet they simultaneously insist on the necessity of “sufficient
financing”. Meanwhile, the analysis described above shows that the real economic
capabilities of Russia (if the GDP continues to decline and the prison population
continues to grow) cannot provide, at the expense of the federal budget, not only
‘international standards’, but the very minimum everyday needs of prisoners. This
contradiction is neither resolved in the Concept, nor reflected in any clear way in it.
5.1.
As we can see, it is senseless to limit a discussion of CCS reform to only penitentiary problems (and especially
from a narrow departmental approach), since CCS
reform options are determined by the raw number of prison population. A concept of CCS reform can be developed only in a wide context
including the criminal justice system, judicial reform, and the like.
One of the possible solutions to the discrepancy mentioned in para.
4.3. is reducing the number of prisoners to some optimal level, allowing to guarantee
acceptable prison conditions in penitentiary institutions, provided budget expenses for
the CCS are within the limits of 0.1—0.2 per cent
of GDP. This is the pattern that countries of the former communist block and the former
USSR have followed. For example, during the first years of independence the prison
population in Lithuania decreased twofold [19, p. 21—24]; in Moldova it declined from
516 per 100,000 people in 1985 to 210 per 100,000 in 1995; in Estonia a governmental
program stipulating a 4-time reduction of prison population by 2000 was developed. In
Kazakhstan and Belarus, like in Russia, where there is similar tendency of a growing
prison population, the situation is critical (see section I).
5.2.
The authors of the Concept do not write directly about the necessity to
reduce (or retain at the current level) the prison population. But we may conclude that
they rather favor uncontrollable growth in the number of prisoners and share the opinion
of MVD authorities and scientists supporting departmental interests.
The authors of the Concept, for example, oppose the use of certain
punishments proposed in the draft of a new criminal code (ref. to Appendix). We mean here
obligatory labor and brief detention, which give some hope to diminish the prison
population, since their introduction will help to reduce the portion of those who may be
given long to average prison sentences. According to some estimates, an average length of
imprisonment currently exceeds 4 years and over 70 per cent of prisoners are sentenced to
terms from 2 to 8 years. Moreover, MVD researchers support the idea of abandoning short
sentences (up to one year) considering them inefficient. MVD authorities also call for the
extension of prison sentences. In particular, Deputy Minister Peter Mischenkov, monitoring
the GUIN, stated in October 1995 that prison sentences for
serious crimes should be reconsidered in order to make them longer. “We have space in
colonies", he said. It is incredible that an official who should have a clear view of
the situation in the CCS should make such a
statement. In early 1995, 25,000 places in colonies were already lacking. In addition, due
to poor financing of the overcrowded penitentiary system, prison staff of SIZOs were in a desperate situation; they did not receive
salaries for three or four months, nor did they receive money for their uniforms. In 1995,
many penitentiary workers committed suicide because of hunger (!) and inability to support
their families.
The position of the GUIN administration
and the Concept's authors is most likely based on hopes to revive the former profitability
of the labor camp industry. In particular, the Concept proposes ‘the use of incomes of
institutions and the profit of enterprises to improve prison conditions, engage them in
work, as well as develop the social sphere of criminal corrections institutions'. The
concept includes a long list of measures on providing CCS
enterprises with state orders for goods, ‘increasing the effectiveness of the use of the
industrial potential of CCS, ‘increasing
production’, providing economic benefits not only to enterprises but to business
partners as well... (section 9 of In serrate of a solution).
To what extent are such hopes realistic assuming we are not mistaken in
our estimates of the wishes of the Concept’s authors?
5.3.
An analysis of criminal and penitentiary policies of different
countries in the last century allows us to conclude that there exists some optimal,
ultimate level of prison population for the situation when they are held mostly at the
account of the national budget. The diagram given here demonstrates the level of prison
population in the 1990s. To this impressive picture, which outlines the gap between
countries of Western Europe and USA, on the one hand, and Russia (as well as China, some
countries of the former USSR) on the other, one should add the following. For almost all
countries of Western Europe and Scandinavia (excluding Finland) for the last century the
prison population sometimes exceeded 100 per 100,000. After rare and short periods of
increase (but not higher than 150) a period of decline necessarily followed. The growth of
the crime rate (in some countries by 2 and more times per decade) that began in the
1950s—60s changed little in this picture. To ‘support’ the optimum level of
prisoners, some countries reduced the terms of imprisonment, others — the use of
imprisonment as punishment. Undoubtedly, this was related to economic reasons: assuming
unchanged criminal policy, the increasing prison population would “eat” more and more
of GDP.
Exceptions to this pattern are the systems of criminal punishment in
communist countries and in the USA.
The maintenance of a huge army of prisoners in these countries can be
explained the way they have integrated their penitentiary systems into their respective
economies. Norwegian criminologist Prof. Nils Christi describes the method of including
prisons in the economy of the USA:
“Prison, then, solves several problems in highly industrialized
countries. It softens the dissonance in welfare states, between the idea of care for the
unemployed and the idea that the pleasure of consumption should be a result of production.
It also brings parts of the idle population under direct control, and creates new tasks
for the industry and its owners. In this last perspective, prisoners acquire a new and
important role. They become raw material for control. It is an ingenious device. Welfare
cheques provided money which could be used for questionable purposes. To prevent that,
welfare was sometimes given in goods, or as requisitions to buy specified necessities. But
some recipients would still cheat, and exchange the healthy products for drugs or drinks.
Prisons solve this problem”.
The material standards in some modern prisons are incredibly high. But
the consumption is under complete control, as raw material for parts of the very same
industrial complex which made them superfluous and idle outside the walls. Raw material
for control, or, if you like, captive consumers of the services of the control industry.
It would have been even more ideal if these prisoners combined being raw material for
control with efficient production. Then they would have provided both work for the guards,
and commodities for society in general. But this combination seems extraordinarily
difficult to get going in industrialized societies of the Western type. Business Weekly
reports that some 5,000 U.S. inmates are working for private industry. 5,000, —
out of 1.2 million. Prisoners are important for the economy of the U.S., but that is what
they need for keep and food, not for that they produce.” (7.7. Raw-material for
control.)The methods according to which Soviet corrective labor camps (since the end of
the 50s — colonies) functioned is described in detail in the literature: prisoners'
slave labor, with a low level of consumption, made it possible to send millions of people
to the GULAG. The number of prisoners was in no way
related neither to the crime situation, nor to the necessity to provide public security,
rather it was defined only by the needs and possibilities of the industrial bases of
camps. In the 1960—70s, labor camps regularly underwent an economic reform: the camp
industry was focused with the cooperation of large state-run enterprises. This required
establishing colonies of huge capacity (1500—3000). A significant portion of colonies
resembled large industrial complexes, with communication systems, warehouses, etc., and
living areas with barracks packed with a labor force.
When the economic reforms began in the USSR, the camp industry
declined, since it can function normally only in a strictly centralized economy and state
monopoly. Slave labor or forced labor cannot be competitive in a market economy, or in a
society with a sufficient level of development among the labor force.
5.4.
Taking into account all of these factors, it is understandable how
reviving camp production (as described in the Concept) is dangerous for democratic
developments in Russia. The first of these dangers is the strengthening of forces opposed
to the market, which, as the parliamentary elections showed, are quite strong already. The
temptation to solve the economic problems of the CCS
(and not only the CCS) by restoring the former
infrastructure and former methods around the unprofitable camp industry (with it's
millions of “idle” criminals), is a strong argument in favor of counter-reform.
If it is possible to escape this danger, it is because the enormous
resources invested will not turn the expected profit: large industrial complexes using
coercive labor, as noted above, in market conditions are unable to become competitive even
under the planned tax privileges. Colonies’ production, like unprofitable collective
farms, will permanently require additional financing in order to function. In addition,
this path of reform will deter the process of actual CCS
reforming, its demilitarization and the establishment of small capacity penitentiary
institutions (no more than for 500 people). This will also prevent the authorities from
realizing that the penitentiary system in its current form is too expensive for the
budget. Transferring some colonies in their present state to the balance of local budgets
does not solve the problem: merely changing the source of financing will not enlarge the
GDP.
Probably at present we are not threatened with the danger of
transforming the Russian CCS into “the GULAG of American type”, since in spite of market reforms
Russian economy does not have such investment possibilities as the U.S. However, a
possibility of “lending” cheap prison labor to private enterprises is not excluded. At
least, this practice is widespread in Ukraine.
5.5.
Undoubtedly, the problem of prisoners’ unemployment must be resolved,
but the solution should be found somewhere beyond the approaches of recent totalitarian
past, when prisoners’ slave labor was used for colossal state projects. Small
enterprises should be set up in correctional institutions, and they should not be aimed at
making profit, but rather at achieving basic goals of the penitentiary system, such as
reforming prisoner’s personality and securing his future rehabilitation.
6.1.
Major proposals relating to CCS
reform can be found in other documents. Unfortunately, we do not have the resources to
analyze the experience of reforms carried out in countries of the former USSR. Even so,
information about the criminal justice systems of some of these countries given in the
first section of this book, we believe, serve as a convincing proof of our basic
conceptual approach. A study of this experience also allows us to forecast possible
consequences of decentralization in the Russian CCS.
In our opinion, the reform method in Moldova is the most interesting.
December 1995
