During 4th-5th April 2020, the Thailand Institute of Justice (TIJ) and the United Nations Office on Drugs and Crime (UNODC) jointly organized a Workshop on Non-Custodial Measures in Thailand. This workshop was conducted as part of the collaboration between TIJ and UNODC to promote the use and application of UN standards and norms including the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules).
This workshop was held with an aim to build awareness and understanding of the implementation of non-custodial measures across relevant agencies and organisations within Thailand, as well as to facilitate the sharing of best practices and experiences for current and future implementation of different non-custodial measures. It was designed from a gender-perspective and included a focus on gender-responsive non-custodial measures and the specific needs of women in conflict with the law. Multiple panelists and speakers brought with them a wealth of knowledge and experience of the implementation and impact of the use of non-custodial measures from a diverse range of jurisdictions globally.
Dr. Phiset Sa-ardyen, Executive Director of the Thailand Institute of Justice, stated that “This training constitutes a sharing of knowledge, best practices, and institutional experience across all parts of the criminal justice system. The focus of this workshop rests with participants who will play a key role in promoting the greater implementation of non-custodial measures which are tailored to the challenges facing Thai society”.
The introductory speaker, Mr. Sven Pfeiffer, Crime Prevention and Criminal Justice Officer, UNODC, introduced attendants to the rationale for why it is imperative to promote the acceptance, implementation and gender-responsiveness of non-custodial measures in criminal justice systems and highlighted international good practices and evidence about the effectiveness of alternatives to imprisonment, as an introduction to the topic.
Dr. Nathee Chitsawang, Advisor of TIJ, provided a comprehensive overview of the regional situation in relation to the use and implementation of non-custodial measures within ASEAN. Of particular interest was the robust Yellow Ribbon Program in Singapore, while additionally helpful was the emphasis on the importance of a front-end mechanisms to reduce pre-trial detention and the overall pressure and need to incarcerate, as well as other stages at which non-custodial measures could be implemented to reduce incarceration.
A different perspective was provided by M.L. Supakit Charoonrojn, Secretary of the Nitivajra Institute, whose background with the Office of the Attorney General explored the question of prosecutorial discretion, particularly to not prosecute a case when it is not in the public interest, as well as interesting developments in a draft bill on suspension of prosecution allowing deferred prosecution, which offered a possibility for prosecutors of the OAG to implement non-custodial measures at the pre-trial stage, particularly by exercising discretion to delay prosecutions that are not in the public interest.
The first of the afternoon sessions, The Implementation of Non-Custodial Measures and Sanctions in the Post-Sentencing Stage, began with a presentation by Dr. Yossawan Boriboonthana showcasing the current state of implementation of non-custodial measures such as probation, non-money bail, and broader use of electronic monitoring equipment as a replacement for custodial sentences. Also discussed were issues, particularly the intransigent problem of social perceptions of offenders and prisoners as needing to be punitively sanctioned. Finally, Dr. Yossawan emphasized the need to address wider societal causes of criminality, the development of the Justice Safety Observation ad hoc Centers (JSOC) to support the safe implementation of non-custodial measures on a larger scale, and the pressing need to address the continual problem of recidivism within the justice system through more holistic reforms and a perspective towards criminal justice that is intersectional.
This was followed by a more in-depth look at one aspect of non-custodial measures, namely the use of early release and probation. Mr. Stephen Pitts gave attendees much to think about with his presentation, which brought to light the use of probation and community-based approaches as a preventative tool for desistance to crime, showing the four domains of probation (pre-trial, community supervision, and two different stages of the prison sentence) and how desistance can be shaped and used to best effect within those four domains. He also gave attendees a wide selection of case studies of best practices in utilizing a women-centered approach in multiple jurisdictions for them to consider, including Japan, Singapore, New Zealand, Kenya, the US and the UK.
The particular experience in Japan provided a perfect jumping point for the next segment with Ayaka Takai, Professor at UNAFEI, who elaborated on the role of the community in the effective administration of probation, beginning with the positives of the idea; such as the benefits in terms of cost-effectiveness and harm reduction, a reduction in reoffending, better tailoring of punishments by the court, and others. This was further reinforced with reference to the specific provisions within the Tokyo Rules on the importance of community involvement in the implementation of non-custodial measures. Attention was paid to the challenges of such an approach in practice, such as a shortage of resources, particularly human resources, insufficient research, a shortage of capacity, and most importantly, negative attitudes towards ex-offenders. The session was then rounded off with a detailed look at Japan’s Hagoshi system of volunteer probation officers, including its details, successes and failures, and method of implementation, which proves a most interesting point to consider.
Grounding the participants with a presentation on a study in Thailand was Prof. Peter Tak, TIJ Consultant, with his work on an assessment of the implementation of NCMs in Thailand. Prof. Tak began by stating the background situation, that being of rising incarceration not matched by a rise in crime, insufficient parole, a lack of discretion or initiative at various levels, and multiple other problems. To move forward, Prof. Tak did provide a number of valuable recommendations and insights for the Police, OAG, and Judiciary; ranging from reforms to the allocation of police resources, the provision of guidelines on the broader use of prosecutorial discretion, and the expansion of judicial discretion on providing tailored sentencing solutions.
The first day closed with a group exercise on alternatives to incarceration and the current initiatives for non-custodial measures within Thailand. The exercise proved to be highly productive as participants from a broad array of backgrounds and agencies such as the OAG, the Judiciary, the Department of Corrections and the Department of Probation provided a number of encouraging ideas and information on current efforts. This ranged from wider usage of pre-trial solutions, guidelines from the President of the Supreme Court, and the current system of non-custodial measures already in use for juvenile and family cases, as well as solutions during and post-sentencing from the DOC and DOP such as community sentencing or electronic monitoring equipment.
Day 2 began with a recap by Sabrina Mahtani, UNODC Lead Consultant, on the previous day's conclusions, recommendations, and discussions. Ms Mahtani then shared with the attendees a number of key findings from the assessment report on the usage of non-custodial measures in Thailand, highlighting a number of issues such as the importance of non-custodial measures to women, the impact of Covid-19 on female prisoners, the lack of discretion at multiple levels for involved agencies to use non-custodial measures, and the underlying causes of criminality and incarceration in the female population. Positives were also acknowledged, such as the growing interest within the justice system for non-custodial measures, as evidenced by previous speakers and also during the group discussions, as well as a commitment to working towards meeting minimum standards. The section was then closed with a number of recommendations for improvement, greater resources, early release mechanisms, investments in research and data-gathering, increasing social awareness and outreach efforts, all of which were rapidly becoming common themes throughout the sessions.
In a pre-recorded video interview, a woman who had been convicted of a criminal offence provided participants with a primer for discussion on the experiences of a person who was in contact with, and had been processed by, all sectors of the criminal justice system. The ensuing discussion provided a highly engaging exchange of ideas among the participants.
The participants were then shown “A Different Door”, a video produced by the organization Women in Prison, which highlighted the difference a properly funded and mindful system of non-custodial measures can make to women offenders, and the positive effects that can occur as a result of their appropriate implementation.
With such a tone set, the session was then opened by Genevieve Higgins, Manager of the Community Justice Program, Jesuit Social Services Australia, on the topic of Restorative Justice in Young Women. The presentation brought to light the concrete and insightful experiences of restorative justice work with young women aged 13-17, highlighting their issues of previous victimisation, trauma, and powerlessness, especially given the preponderance of women with a history of broken families or a history of abuse. Her well-argued case emphasized the importance of a holistic approach towards justice and focusing on resetting relationships for the future and allowing for better integration into society.
Adding the knowledge to the seminar was fellow Australian Amanda O’Neill of the Restorative Justice Unit (RJU), in Canberra, Australia, who shared with the participants the perspectives from Australia’s governmental organisations, including on the applicable legislative framework, and the kinds of cases handled by the RJU. Of benefit to the seminar was the types of persons that RJU handled; namely women who have been socially isolated, often suffering from PTSD, drug use, or trauma related characteristics, and the need for a tailored solution that can address these underlying issues, which custodial sentences will exacerbate rather than solve, while also acknowledging the need for closure and reconciliation with the needs of the victims in question. This proved to be of great benefit in providing a comparative context for that also faced by the participants in the Thai legal system.
The morning’s panel of speakers was then rounded off by Aisya Humaida, Legal Aid Lawyer with LBHM Indonesia, whose work focused on the necessity and need for a gender-responsive approach to the issue of female incarceration, and shared with the participants information on the measures advocated by, and adopted in, Indonesian prison context, particularly the strategies implemented to adopt more non-custodial measures, information which offered interesting synergies given the similarities within the ASEAN context.
The morning session was then finished by a group exercise, utilising a case study to brainstorm solutions for the implementation of NCMs. A number of possible solutions were discussed, including the use of non-monetary bail, proposals for complete diversion from a custodial sentence, community sentencing, and calls for a holistic approach.
In the afternoon, the participants were then briefed on the current state of efforts to promote gender-responsive non-custodial measures in Thailand by Dr. Sutatip Yuthayotin, Judge of the Central Intellectual Property and International Court of Thailand. Dr. Sutatip’s presentation provided much encouragement as to the direction and seriousness with which the judiciary was tackling the issue of non-custodial measures. Indeed, it was revealed that there were ongoing efforts to promote wider use of non-custodial measures, including preparation and production of guidelines on sentencing and temporary releases, as well as judicial discretion, efforts which were supported by the promising results in the number of temporary releases. However, this was tempered by a lack of resources and also a need to spread understanding and awareness in the society.
Two experts brought to participants experiences and knowledge from a very different jurisdiction; Kenya. Deputy Director John Kennedy Odipo of the Probation and After Care Service of Kenya shared promising practices from Kenya, such as the centrality of using women-specific policies rather than adapting traditionally male-focused policies, the construction of halfway houses, alignment with the Bangkok Rules, and ensuring tailored solutions with social and community conditions while also partnering with international organizations such as Penal Reform International. An equally important perspective was shared by Teresa Njoroge of Clean Start Kenya, an NGO which supports the reintegration of women into the community, who shared highly informative wisdom on the practices adopted by Clean Start in centering the community and taking into account the personal histories and commitments of women, as well as tailored solutions to their needs for reintegration into society. Particularly touching to many participants was the personal experience of Miss Njoroge as a former offender and how this influenced the approach taken by Clean Start with its community-centric approach.
Completing the panel of experts for the seminar was Dr. Anthea Hucklesby of the University of Birmingham, who brought attention to the issue of gender gaps in the implementation of electronic monitoring, including the physical restrictions arising from the discomfort of electronic monitoring equipment designed for men fitting women poorly, to stigmatization due to clothing and prominence in most social settings for women, as well as limitations of technology and the inability of the technology to factor in the needs and behavioural patterns of women prisoners, not to mention the failures in operational policy to leverage existing flexibility.
The last of the training activities of the seminar then closed with a group exercise considering another case study, featuring a gendered scenario of non-compliance with a non-custodial measure in relation to a prostitution-related offence. The day was concluded with closing remarks by the UNODC representative and TIJ Advisor Dr. Nathee Chitsawang.
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