Rethinking Ukrainian Probation: An Essay on Institutional Change and Risk Management

‘It was by no means our intention to praise the probation system with lyrical enthusiasm. Rather, we wanted to examine it sensibly and critically’ (Whitfield 2009).

Ukrainian probation – we must be brave enough to say – is going through difficult times today. And, of course, this primarily concerns the impact of the war on well-established organisational structures, formal culture and institutional subculture, and, of course, on material support.

But at the same time, it is no secret that in the summer, a fairly significant institutional revolution took place in the probation system, which led to a new approach to the structure of probation, the principles of probation work, and the relationship between probation clients and probation officers. Therefore, there is an urgent need to talk about probation in the context of what has already been achieved over the last decade and what changes can be expected from the probation system in Ukraine.

Of course, the work that was done between 2004 and 2014, which resulted in the adoption of the Law of Ukraine ‘On Probation’, was a significant step forward. I would like to remind you that at one time, a UNICEF expert working group developed a concept for a probation service that was initially focused on children, but it was later decided to reform it to include adults (or, rather, adults with specific characteristics for children). We can also mention the various draft laws on probation that were submitted by various members of parliament, and, in fact, the law itself, which was largely based on the provisions of that very concept from 2007.

RETROSPECTIVE AND PRESENT

As a co-author of both the Concept and the Draft Law, I feel obliged to express my opinion on the results of almost twenty years of developing the probation system in Ukraine: how it all began and, in fact, what stage the probation system is at today.

To be specific, there are many questions about probation, and first and foremost, they are related to the completely inadequate representation of probation work in Ukraine. It can be said that probation has been hidden behind a large screen: a screen of conferences, presentations, and large events that have concealed the main answers to the main questions: what exactly has the creation of the probation service instead of the criminal enforcement inspection achieved?

Of course, one could say that the criminal enforcement inspectorate is a Soviet model, while probation is a world-leading practice that has been developed over more than two centuries in many countries around the world and has convincingly proven its effectiveness. But, in fact, this is only part of the questions that will provide only a small part of the answer to the current problems of probation work in Ukraine.

Of course, probation was the driving force, and the people behind this reform really did push this driving force towards transforming the criminal justice system as a whole and the penitentiary system in particular into a truly social organisation. And, in fact, the reduction in the number of prisoners in both absolute and relative terms in Ukraine is something that many countries around the world (not only in Europe) can envy.

THE PROBLEM OF RECIDIVISM: REALITY VERSUS MYTHS

But harsh reality demands specific answers to specific questions. And in the modern era, when managerialism is knocking very insistently on the door, we need to speak more directly and more openly, without shying away from sometimes uncomfortable moments. What exactly is modern probation in Ukraine, apart from the change of name, what has it led to, what is its current state and what are its prospects?

We have talked a lot about the first indicator, which is obvious – the issue of recidivism among probation clients after probation supervision. And here, of course, we have talked about this repeatedly and extensively in various sources: Ukrainian probation is based on a completely flawed methodology for assessing probation clients, which consists of assessing recidivism only on the basis of sentences that have become final. And given that there are only a few such sentences, this has led to the creation of a myth, very useful for probation officials, “1%” or even “less than 1%” or “around 1%”. Therefore, from this perspective, Ukrainian probation is the best in the world.

But there is a big ‘but’. The fact is that measuring the indicator specifically by the criterion of final convictions does not reflect the real state of affairs in the probation system at all. Throughout the world, the indicator used for this purpose is what we can call, using modern Ukrainian terminology, the number of reports of suspicion. And here I would like to emphasise for those who will talk about the presumption of innocence: I am not talking about violations of the presumption of innocence of specific individuals. I am talking about the assessment of the entire system.

Given that the percentage of acquittals in Ukraine is very low (0.5% – 2%), this means that even if we assume the application of this principle to probation clients who have been notified of suspicion of committing crimes, the recidivism rate can reach several tens of percent. And this is absolutely normal, because in most countries around the world, the recidivism rate among probation clients ranges from 20% to as high as 70%. In contrast to the Ukrainian approach, which is completely artificial, bureaucratic and beneficial to probation officials, the rest of the world uses the rate of notification of probation clients of suspicion of committing certain criminal offences.

Moreover, this indicator is not limited to probation supervision but continues to be assessed for approximately 3-5 or even more years after the end of supervision. This is the main idea: the client tries to behave in a formally law-abiding manner because they know that violating the rules threatens them with a real prison term. The essence of probation (genuine rehabilitation, resocialisation) lies in whether, after the removal of this ‘muzzle’ of probation supervision, the person has actually ceased to commit offences for a long period of time.

RISK ASSESSMENT AND PRE-TRIAL REPORTS

Separately, it is necessary to mention risk assessment, which has become a ‘religion’ of probation work not only in Ukraine but throughout the world. Technocrats actively promote this concept, but for some reason they forget the ‘good old grandfather’ Cesare Lombroso and the followers of neopositivism, which was based on the idea of a dangerous state of a person that needs to be assessed constantly.

This injection of positivism into classical Ukrainian criminal law makes probation very vulnerable to criticism. On the one hand, what is presented as a brilliant toolkit (risk methodologies, calculations) takes up most of the officers’ working time. On the other hand, probation officers are turning into technocrats whose job is to submit reports rather than to create real accountability in the event of a repeat offence. The very idea of risk assessment (determinism) essentially contradicts the idea of free will, which is declared by Ukrainian law.

Pre-trial reports are the ‘showcase’ of the probation service, as Whitfield said. Twenty years ago, when I was writing academic articles about this, I was full of ‘probation idealism’ about involving officers as full-fledged players who would be listened to. Are they listened to today? This question must be answered by every judge, lawyer and probation officer. My main concern was that pre-trial reports would not turn into the traditional characterisation from the film Seventeen Moments of Spring: ‘Nordic character, excellent athlete, no harmful connections observed’. From the point of view of a practising lawyer, it can be said that probation officers have not become independent players in Ukraine.

PROBATION NARCISSISM AND THE CHALLENGES OF WAR

Speaking in general about the last 10 years, probation has been implemented within the framework of a divided model (the creation of a Probation Centre, autonomous from the prison system). However, it seems that in its pursuit of autonomy, the Probation Centre has gone too far, creating its own ‘separate kingdom’ with strong borders that does not tolerate outside interference.

The main problem has been ‘probation narcissism.’ Against the backdrop of a lack of clear indicators and answers regarding recidivism, the promotion of the idea itself has outpaced the idea itself. The new team needs to pay attention to this.

INSTEAD OF CONCLUSIONS

What will post-war probation be like? It is extremely difficult to say. It will depend on how the war will affect the system. People who have seen death and been on the front line will appear on probation. This creates a huge burden that was unimaginable 10 years ago. Staff must be prepared for this.

What unites today’s probation with yesterday’s is the need to clearly present its results to society. And no matter how much we would like it to be otherwise, the global and acceptable indicator remains recidivism within five years of supervision, which should be based not only on convictions but also on reports of suspicion. This will allow us to assess the effectiveness of the system as a whole.