Following “sentencing guidelines” creates prison overcrowding

In June, a conference on measures to avoid pre-verdict detention, held at the Miracle Grand Hotel by the Department of Corrections, Ministry of Justice. The participants were Pol. Gen. Wanchai Srinualnad, former member of the National Human Rights Commission; Narong Jaiharn, Faculty of Law, Thammasat University; Dol Bunnag, Chief Judge of the Intellectual Property Court; and Namtaee Meeboonsalang, Provincial Prosecutor, Office of the Department of People’s Rights Protection and Legal Aid, Kanchanaburi Province.

350,000 prisoners: administrative measures suggested as alternatives to prison for petty crimes

Pol Gen Wanchai said that the 2017 Constitution determines criminal penalties only for serious crimes, but also states that justice agencies may change penalties or determine different penalties. Offences carrying light penalties are those that do not meet the criterion for imprisonment since they are not a serious crimes. Imprisonment is the second most severe criminal punishment in Thailand, after the death penalty.
The facts at present have 350,000 prisoners, 180,000 of them first-time offenders, 60,000 second-time offenders and 15,000 third-time offenders. Solutions in the past have been to enlarge the prisons, which is not correct since there are limits to managing prisons according to international standards, resulting in negative consequences for prisoners and society outside prison. Therefore, what the state must do is to determine strategies using administrative measures instead of criminal punishment.
In particular, the over 800 criminal laws should be linked to a central law. Administrative penalties should be applied in petty crimes and not criminal penalties, For example, driving without a helmet or petty crimes may be punished with a fine and state officials may consider the penalty themselves without needing to enter into the judicial process.

The court has secret “sentencing guidelines” for every article

Dol said that the there are many punishment alternatives to imprisonment. Many countries specify middle-level penalty measures, between imprisonment and a fine followed by release, such as intermittent imprisonment, imprisonment on holidays, house arrest, bans on entering certain places, curfews after 6 o’clock, bans on being close to a victim’s house, and daily reporting, which can be done at the police level, and is called cautionary sentencing.
However, in practice only traffic offences can be given cautions. Defamation or cases of bodily assault cannot be given cautions. In other countries, exposure is also a type of penalty. For example, as a punishment for stealing letters, the court orders the display of a sign; in a case of running a red light, the court sentences the offender to carry a sign and stand at the intersection for 2 hours in the morning and 2 hours in the evening, which is not a violation of human rights but a method of punishment to prevent further offences.
Dol also stated that Article 56 of the Criminal Code hides middle-level punishments, such as having the defendant make a payment to a foundation, aid the victim, and many other measures. It is just that the court doesn’t know that Article 56 contains middle-level punishments because the court has a punishment table or secret “sentencing guidelines”. There are sentencing guidelines for every article. For example, the penalty for theft is not more than 3 years’ imprisonment; if theft by no more than 2 accomplices, 2 years.
For felling timber of so many cubic metres, the punishment can be suspended. For the sale of 1 methamphetamine tablet the penalty is no more than 4 years, a sentence which can be suspended. He himself has suspended sentences. His friends looked him in the face because they don’t do it, and it risks instigating an inquiry. If you don’t want to risk it, then you must sentence according to the sentencing guidelines.
Dol said further that the courts are part of the reason for prison overcrowding. Cases of felling Siamese rosewood attract severe punishment. Most prisoners are scapegoats because capitalists do not cut down trees themselves. They should be punished by fines and orders to plant 5 Siamese rosewood trees, and be monitored to take care of the trees for 5 years and not let them die. The court has to accept new approaches to punishment, but they only have Article 56 to use to suspend sentences.
But the conditions have to be strict. Germany, France and Netherlands closed down many prisons. Imprisonment is only for a few years while Thai laws have penalties that are greater than necessary. In foreign countries prisons are used to confine people that are dangerous to society, where if they leave jail they’ll commit an offence and cause society great damage, whereas Thai laws severely punish people that don’t deserve to be severely punished.
‘Will measures that differ from imprisonment succeed? Preparations have to be made for them to be put into actual practice and there must be a common understanding that measures replacing imprisonment are punishments that can prevent further crimes and heal victims, and society must be satisfied at a certain level. The important thing is we must have measures to check that alternatives to imprisonment are not abused. We don’t want to see the rich or influential escape because of the alternative punishments, so there must be investigations as to whether it is appropriate to use alternative penalties to imprisonment,’ Dol said.

Examples of alternatives in foreign countries

Namtaee said that the real problem causing people to be charged is the economic and political situation. They must all be corrected. If only the Department of Corrections or the judicial process are fixed, the results will not succeed. Consideration of detention during a case must return to the initial procedure of whether they should be arrested or confined or not, because if they are imprisoned, the right to contest their case becomes very bad. If in the end the court dismisses the case, detention will have been unjustified, or if they were actually found guilty of a minor offence that does not warrant imprisonment.
When the level of punishment is considered, one in three are confined during the case, which is a great loss of humanity. In America, imprisonment is considered as the last choice and only if really necessary. In other countries the procedures to bring a case have to be quick and transparent. Public prosecutors and related people have to be at the scene of the crime immediately at the same time, allowing everyone to see the evidence from the start. Evidence cannot be destroyed or tampered with and prosecutors can bring charges even if there’s only 10 days or 3 hours left.
While detention has to be considered from the likelihood of flight or tampering with evidence, the person must be sent to the prosecutor along with all arresting evidence. In the case of former Buddha Isara, police requested an arrest warrant and opposed bail by claiming that there were 30 other witnesses they have yet to interrogate, which raises the suspicion of why they didn’t interrogate them before requesting the arrest warrant.
Namtaee also stated that in America for the arrest of suspects, prosecutors must make charges within 72 hours and the issue of an arrest warrant must have a request from the prosecutor stating whether there is sufficient evidence or not. After the arrest warrant is issued, the prosecutor will have 30 days to file charges. That is considered to be enough time to consider filing the case, while Japan sets a detention limit of 10 days for the prosecutor to draft charges.
All countries use a shorter period of time for the judicial process than Thailand. In Europe there are also alternative measures to imprisonment. What is interesting are limits to movement or meeting a certain person because of the danger just to that person.
‘While Thailand will solve the issue in a Thai way, that is, immediate confession and not listening if there is no other evidence. When justice is not served, send a complaint to the media. This causes the prosecution procedure of our land to disappear. When the reform was done, I heard that Thai law is suitable for Thai society. The law must be according to international principles. There must be separation of the criminal code and the code of criminal procedure, not Thai-style law,’ Namtaee said.

200,000 drugs prisoners should be treated, not confined in prison

Narong said that what worries the Department of Corrections is the management of limited personnel in limited places. The 200,000 prisoners in drug cases should undergo treatment not imprisonment. For the other 60,000 prisoners detained during investigation or trial, if we use measures of temporary release or EM bracelets, it may reduce the numbers, or we may consider amending laws to delay charges instead of just sending the case to court, so prosecutors can use behaviour monitoring measures instead of filing charges in, for example, drug cases. It may help to filter cases.
To use measures to wait in determining punishments, the subsequent mechanisms need a strong community that will help look after offenders so that they don’t become a danger to the community, by having to participate in monitoring their behaviour with the community. Nevertheless, he personally thinks that imprisonment is still necessary because certain people show signs of escaping or tampering with evidence. If they are left outside prison it will become a problem.
Narong also said that he agrees with the suggestion of Pol Gen Wanchai. Penalties for non-violent criminal offences should be replaced with administrative penalties. We have to analyse the new constitution carefully to see what serious crimes require imprisonment and what is the penalty, something which no one can yet answer. For the penalties we currently have, the only options are imprisonment and fines.
For cases of selling CDs, the minimum fine is 200,000 baht. If no fine, then you wait in jail. This law will need to be reviewed to see if measures to determine punishments can be used or not. In addition, mechanisms in law, especially in court, are limited by the penalty tariff or sentencing guidelines. If discretion is used to punish not in accordance with sentencing guidelines, there may be a risk that a committee will be set up to investigate whether the court knew the defendant personally and therefore set a light sentence.

Concerning the arrest and defrocking of monks

Near the end of the conference, ML Panadda Diskul, former Minister of the Prime Minister’s Office with oversight over the Ministry of Justice, raised a question concerning the case of the arrests of senior monks, asking if the arrests were lawful. Namtaee said that, most recently, there was evidence that the monks knew nothing and it was a question of the budget allocation of the National Office of Buddhism.
Money really was transferred into the account for religious purposes, so the truth is that it is not money returned to the temple. So for this case we’ll have to wait and see that when the facts reach the prosecutor, how clear the evidence is. If the prosecutor does not file charges, the serious damage caused to the monkhood will result in having to reform the arrest and investigation procedures.
Dol said that monks who ordained when they were children are different from those who ordained because of bereavement. When they have to leave monkhood they may feel indifferent, but if we become monks disrobing is destroying our lives. Monks who do not make a declaration to disrobe have not, according to the teachings, disrobed.
Dhamma problems are spiritual problems, but to pursue legal proceedings, monks’ robes must be removed before they enter the prison. Personally he thinks that cases concerning monks or search procedures should be clearly specified. The court should have many standards because if there is only one standard then a computer can make decisions, with no need for the court.
The reason why there need to be many standards is because people are different. The equal enforcement of law is not wrong, but not right. Discretion should be used appropriately. In a case where the police have an arrest warrant, when the police arrive and the suspect willingly allows the arrest, then maybe the warrant does not have to be used.
80 percent of Thai inmates are convicted for drugs offences (Photo from Posttoday)