It would certainly be reasonable to suppose that these ‘principles’ were unacceptable to conservatives of all hues, and even to some liberal-minded people who did not believe that prison warders or administrations could educate anyone and who were fearful that such measures might have negative consequences.
Other issues debated by specialists cannot be broached here. But one point that we have already discussed merits renewed emphasis: the basic premise that a prisoner remained a citizen. In itself, this challenged the deeply rooted Soviet tendency to repression. The very category of ‘enemy of the people’, and the special treatment meted out to those who fell under it, was implicitly – and often explicitly – condemned in numerous texts from the 1960s onwards. The provisions under which people were pursued for ‘counter-revolutionary crimes’ or as an ‘enemy of the people’ were removed from the criminal code, and the expressions disappeared from the terminology of law-enforcement. In 1961 they were replaced in the code by six paragraphs dealing with ‘the most dangerous crimes against the state’, which formed the basis for subsequent persecution of political opponents – unlike the furies of Stalinism, without providing for the death sentence. Several such crimes were punished by deprivation of Soviet citizenship and expulsion from the USSR (which was not in itself an atrocity). Guilt had to be defined in accordance with the Soviet codes. Sheer arbitrariness thus ceased to be the rule. But the very fact of pursuing political opponents, even citizens who were simply expressing criticism, was an embarrassment for the Soviet government, internationally and internally.
It is not easy to ascertain whether the letter and spirit of the legislation we have evoked were observed in practice. I have not come across a reliable monograph on the post-Stalinist prison system, except as regards the conditions of detention of political prisoners, particularly ‘dissidents’. The latter were invariably held in high-security colonies in Mordovia and the Urals, and subject to the ‘special’ regime. Conditions were very strict and relations between prisoners – some of whom were combative and unyielding – and a brutal prison administration helped make camp life particularly harsh. Comprehensive research would be required to know the true state of these camps: their number, the sentences served, casualties, and so on. We have some information courtesy of Amnesty International,[9] and many of the rights that we have cited from juridical sources are not mentioned in it. Amnesty International refers to the limitations placed on the presence of lawyers during investigations (which we knew about), but says nothing about access to lawyers once convicted persons were serving their sentences. We can surmise that, having been convicted of an ‘especially dangerous crime against the state’ and confined to high-security prisons with the strictest regime, political detainees had fewer rights than other inmates. For example, whereas a generally respected legal provision allowed most prisoners to be held in the region where their family lived, legal texts provided for the converse in the case of dissidents. In the absence of proof to the contrary, there is no reason to suppose that they were regarded as citizens with inalienable rights.
The situation of the broad prison population improved appreciably, but without additional information there is no way of knowing to what extent the reality corresponded to the new legislation. Because of the dispersal of the colonies over vast territories, the poor level of training of prison administrators, and the brutal habits of MVD prison staff – not to mention the obvious difficulty of handling hardened criminals – it is likely that actual conditions must have departed from legal provisions to varying degrees.
Even so, the existence of codes and powerful institutions responsible for enforcing them, public opinion, and prisoners’ considerable experience in working the system and using the relevant provisions to their advantage, make it reasonable to assume that the reforms created a system quite distinct from that in force under Stalin, including for political prisoners – a subject we shall return to. At all events, this is the conclusion pointed to by the enormous quantity of material we possess, whether the complaints, appeals to prosecutors and judges, and demands for reviews from prisoners or their families reaching party and state authorities; or the various investigative committees (whose documents are sometimes available to Western observers). Appeals procedures, and the intervention of prosecutors or higher courts exercising their powers to review the decisions of lower courts, were important correctives in legal procedures and improved the lot of prisoners.
Another significant development, bound up with the rationalizing (should we say modernizing?) trend in penal policy, was the strong pressure from legal circles and their political allies to moderate the system’s punitive bent still further, which – or so many argued – solved nothing and simply created new problems. W. I. Butler has studied the growing pressure for the application of types of sentence which, however harsh, were non-custodial. Thus he has analysed a whole range of ‘conditional sentences’, the harshest consisting in exile from a given place or banishment to some remote location. Others took the form of mandatory labour (convicted persons continued to work as before, but with a deduction equivalent to a large fine from their wages); aiding ex-prisoners with their reintegration; and sentences without mandatory labour (introduced into the legislation of the USSR and the republic by a decree of 15 March 1983 that regulated the status of such sentences, their supervision by prosecutors, and their execution). In addition to the fines that we have already mentioned, this type of penalty included proscription from holding certain posts or engaging in specified activities, confiscation of property, the loss of a military rank or a title, and public cautions in the workplace. Reforms in criminal justice in the 1970s and the early 1980s indicate that this was a growing trend, and non-custodial sentences became increasingly widespread among the judiciary.
It should be remembered that the number of political prisoners and dangerous criminals confined in prisons, or the two categories of colony with the strictest regimes, was relatively small. The great majority of prisoners served their sentences in the ‘milder’ categories, and this was the target population for the experiments defended among the higher judiciary, jurists and some government circles. The aim was a large-scale ‘de-penalization’ of a system traditionally inclined to impose predominantly custodial sentences. The fight to liberalize sentences had begun much earlier, in the immediate post-Stalin years or even before. But it became a serious – and largely successful – struggle in the early 1980s. The phrase ‘in search of de-penalization’, used by Todd Fogleson (from whom I derive this information),[10] perfectly encapsulates this period.
10
See Todd Fogleson, ‘The Reform of Criminal Justice and Evolution of Judicial Dependence in Late Soviet Russia’, in Peter H. Solomon, Jr, ed.,