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URCEMATERIAL I

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FUCHU,TOKYO,JAPAN December /1989 RE~SOURCE MATERIAL SE.:RIES No. 36

135660- 135679 U.S. Department of Justice National Institute of Justice

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UNAFEI

FUCHU, Tokyo, Japan December /1989 Hiroyasu Sugihara

Director United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) 1-26 Harumicho, Fuchu, Tokyo, Japan

ISBN4-87033-000-8 CONTENTS

Introductory Note by Hiroyasu Sugihara...... 7

Part I: Material Produced during the 8Ist International Seminar on Advancement of the Integration of the Criminal Justice Administration

SECTION 1: EXPERTS' PAPERS

O~;r~~;d~g~~a~~~~~~aa~~ .~~~~~e.r~~~~~r~~ ..... l.~ 5. ~. ~ t ... 13 The Advancement of the Fourth Generation of Sanctions in W:;~~~~J:~:: Paul Tak ...... \ 3.~.6.b.~ 21 Fair Administration of Police Responsibility and Provision of Services to the Public: The Basis for Public Cooperation \ 3 5 b by Cicero C. Campos ...... 6.9.. 37 Integration, Diversion and Resocialisation in German Crt;~:In;fc~c~:~hner ...... \.'?'?'~ .~.tf-. 56 Cl~~ne;: ~~:~~~ ~a.~ .~~~ ~~s. ~~c.e~:. ~~~~~~~~~~~ ... \ 3. .fS6. 6.5: 72 Investigation and Prosecution of Offences in . England and Wales l ':2 . J by John Wood ...... 0!S b .~(a 84

SECTION 2: PARTICIPANTS' PAPERS

Fair Administration of Police Responsibility in the Admi~istra~ion. of ~:iminal Justice. 135(P/P7 by Jzthakzrthze Wz}eratne Jayasunya ...... 100 The Police and the Prosecution in Criminal Justice Administration by Samuel B. Ong ...... , ...... 105 Judicial Independence in Thailand \ ~ t:'1 j by Niwet Comephong ...... ;.Q. .;,).~ rOo Q.. 109 Prison Overcrowding and Its Countermeasures ~ 3 £> b &" ~ by Pang, Sung Yuen ...... 116 The Development of Non-institutional Treatment for Crimin~l Offend~rs. in Japan ~ 3 5 b '7 () by Mztsugu Ntshznakama ...... '.' .... 124

SECTION 3: REPORT OF THE SEMINAR Summary Reports of the Rapporteurs

Session 1: Fair Administration of Police Responsibility and Provision of Services to the Public: The Basis of Public Co-operation ...... 131

Session 2: The Exercise and Control of Prosecutorial Discretion ...... 135

Session 3: The Independence of the Judiciary and Control of Judicial Discretion ...... 140

Session 4: Prison Overcrowding and Its Countermeasures 145

Session 5: Advancement of Non-custodial Measures in the Treatment of Offenders ...... 152

Part II: Material Produced during the 82nd International Training Course on Innovative Measures for Effective and Efficient Administration of Institutional Correctional Treatment of Offenders

SECTION 1: EXPERTS' PAPERS

Inmate C?rievanc~ Systems in the United State.s { '3 Ctb{ t by Clau' A. Cripe ...... r.'...... 159 Recent Managerial and Organisational Innovations \ 3 ~ I f7 P) by Gordon H Lakes ...... :? ~ J.I--. 186 Some Thought::; on Correction within Penal Institutions ~ 3 b '1 by Chan Wa-shek ...... S..... 3. 205 The Promise and Pitfalls of Classification for c~~e~~~::;1,;~~e~~'dinand ...... ,.~ ~ ~.7 4.. 213 Islamic Criminal Justice System-Legislation an~ ~!~~:t~fsaJaty ...... ~.P. .~~.7~ .... 227

SECTION 2: P ARTICIPAl"\fTS' PAPERS

Practical Measures to Alleviate the Problem of Overcrowdin~ . t3 ~0 rr0 by HJ Shardzn bzn Chek Lah ...... "..... 235 Cr~~~~~~~fi~~s:~~ ~~ .~~~~~ ~~~. ~~~~~~ .... JS .~.~ .7 7.. 247 Some Measures Trying to Alleviate the Problem of Prisoners Ov~rcr~wding in Thailand \ 9 5'b f(g by Prapun Nazgowzt ...... '. 252

SECTION 3: REPORT OF THE COURSE Summary Reports of the Rapporteurs

Session 1: The Extent of Prison Overcrowding, Causes and Feasible Measures to Cope with I 'rIG the Problems ...... ~ 3.56.. ~ ] 261 Session 2: The Development of Effective Alternatives to Imprisonment and Other Related Issues ...... 268 Session 3: Treatment Programmes for Specific Categories of Offenders ...... 277 Session 4: A Staff Training and Other Issues Regarding the Improvement of Corrections Administration ...... 286

Part III: Material Produced during Other UNAFEI Activities

Report of the Expert Group Meeting on Adolescence and Crime Prevention in the ESCAP Region ...... 301 Introductory Note

The editor is pleased to present No. 36 in the Resource Material Series including maierials from the 81st International Seminar and the 82nd Inter­ national Training Course. Part I contains materials produced during the 81st International Semi­ nar on "Advancement of the Integration of the Criminal Justice Adminis­ tration" which began on 6 February and ended on 11 March 1989. Section 1 of Part I consists of papers contributed by six visiting experts. Mr. Hetti Gamage Dharmadasa, Commissioner of Prisons in Sri Lan­ ka, in his paper entitled "Overcrowding in Prisons and Countermeasures," examines the causes of overcrowding in prisons and proposes practical coun­ termeasures to the overcrowding problem. Dr. Peter Johan Paul Tak, Professor in the Faculty of Law at the Cath­ olic University of Nijmegen in the Netherlands, in his paper entitled "The Advancement of the Fourth Generation of Sanctions in Western Europe," reviews historical development of sanction systems and discusses the new­ ly developed alternative measures to imprisonment in Western Europe. Dr. Cicero C. Campos, Chairman of the National Police Commission in the Philippines, in his paper entitled "Fair Administration of Police Respon­ sibility and Provision of Services to the Public: The Basis for Public Coop­ eration," analyzes the problems with respect to the administration of police responsibility, and seeks possible ways to solve them. Dr. Heinrich Kirschner, Director in the Federal Ministry of Justice with responsibility first for administration and subsequently for Criminal Law, Federal Republic of Germany, in his paper entitled "Integration, Diversion and Resocialization in German Criminal Procedure," introduces and exam­ ines German criminal justice system and its practice from the viewpoint of integration, diversion and resocialization of offenders. Mr. Yu Shutong, Advisor to the Commission on Internal and Judicial Affairs, the National People's Congress of the People's Republic of China, in his paper entitled "Chinese Criminal Law and Its Recent Development," introduces the current situation of and recent developments in the criminal justice system of the People's Republic of China. Mr. J ohn Wood, Head of the Serious Fraud Office, Great Britain, in his paper entitled "Investigation and Prosecution of Offences in England and Wales," introduces recent developments in criminal justice system with re­ spect to investigation and prosecution of offences in England and Wales. Section 2 contains papers submitted by five participants of the 81st In­ ternational Seminar, and Section 3 contains the Report of the Seminar. Part II presents materials produced during the 82nd International Train­ ing Course on Innovative Measures for Effective and Efficient Administra­ tion of Institutional Correctional Treatment of Offenders. The Course com­ menced on 17 April and ended on 6 July 1990. Section 1 of Part II consists of papers presented by five visiting experts. Mr. Clair A. Cripe, General Counsel of Federal Bureau of Prisons, U.S. Department of Justice, in his paper entitled "Inmate Grievance Systems in the United States," introduces and examines the development of adminis­ trative grievance mechanisms in the United States Prison System. Mr. Gordon H. Lakes, Former Deputy Director General of the Prison Service, England and Wales, the United Kingdom, in his paper entitled "Re­ cent Managerial and Organizational Innovations," describes recent impor­ tant changes and innovations in the prison service of England and Wales. Mr. Chan Wa-shek, Commissioner of Correctional Services, Hong Kong, in his paper entitled "Some Thoughts on Correction within Penal Institu­ tions," examines recent trends in the basic philosophy of correctional treat­ ment, and analyzes various conditions affecting the rehabilitation of offenders. Dr. Theodore N. Ferdinand, Professor, Center for the Study of Crime, Delinquency and Corrections, Southern Illinois University at Carbondale, the United States of America, in his paper entitled "The Promise and Pit­ falls of Classification for Correctional Systems," describes the recent de­ velopment of classification in correctional systems, and explores various methodologies being advanced in the field. Dr. Hassan EI-Sa'aty, Professor, Arab Security Studies and Training Center, in his paper entitled "Islamic Criminal Justice System-Legislation and Application," explains characteristics of Islamic legislation and its ap­ plication in criminal justice. Section 2 contains papers submitted by three participants of the 82nd International Training Course, and section 3 contains the Report of the Course. Part III presents material produced during other UNAFEI activities which contain the Report of the Expert Group Meeting on Adolescence and Crime Prevention in the ESCAP Region. The Meeting was jointly organ­ ized by the Economic and Social Commission for Asia and Pacific (ESCAP) and UNAFEI in co-operation with the Government of Japan, and was held at UNAFEI headquarters from 3 to 10 August 1989. The objective of the Meeting was to provide a forum for social development and criminal justice experts to discuss contemporary issues surrounding youth and crime pre­ vention in the ESCAP region. Twenty-one experts attended the Meeting and discussed the above-mentioned issues and formulated recommendations on the prevention of juvenile offences and the treatment of juvenile offenders. The editor deeply regrets that the lack of sufficient space precluded the publishing of all the papers submitted by the participants in the Course. The editor would like to add that, due to lack of time, necessary editorial changes had to be made without referring the manuscripts back to their authors. The editor requests their indulgence and understanding of this necessity which was required to meet editorial deadlines. In concluding the Introductory Note, the editor would like to pay trib­ ute to the contribution of the Japan International Cooperation Agency OICA) for providing indispensable and unwavering support for the UNAFEI Courses and Seminars from which these materials were produced. The editor also would like to express his gratitude and appreciation to all who so willingly assisted in the publication of this volume by attending to typing, printing, proofreading and in various other ways. The editor would also take this opportunity to express his deepest ap­ preciation to the continued financial and other support rendered by the Asia Crime Prevention Foundation (ACPF) for various UNAFEI projects including the publication of Resource Material Series,

December 1989

Hiroyasu Sugihara

The Editor Director of UNAFEI PART I

Material Produced during the 81st International Seminar on Advancement of the Integration of the Criminal Justice Administration ------~,----.

SECTION 1: EXPERTS' PAPERS Overcrowding in Prisons and Countermeasures

by Hetti G. Dharmadasa *

Prison overcrowding is a grave and press" tries. The developed countries use such cri­ ing problem facing the Criminal Justice Ad­ teria as minimum floor space, cubic content ministration in many countries both in the of air ventilation and other basic amenities developed and the developing world. In to measure overcrowding. In the developing many countries in the Asia Pacific Region, countries single cell accommodation with it has reached critical levels. In this regard, such specifications would be a luxury in it would be of interest to know how countries many instances. To them prison overcrowd­ measure prison overcrowding. Is there a ing means gross overcrowding-overcrowd­ common criteria as to what is the required ing that is very glaring and sometimes accommodation or floor area or other condi­ shameful. Overcrowding of prisoners in tions per prisoner? The United Nations some of these states is not merely a numeri­ Standard Minimum Rules for the Treatment calor spatial problem. It is a problem of of Prisoners stipulate certain standards in gross inadequacy of essential facilities such this regard. For example, Rule 10 stipulates as sanitary and bathing installations, medi­ that "All accommodation provided for the cal and recreational facilities. In these coun­ use of prisoners and in particular all sleep­ tries prison overcrowding is more a crisis ing accommodation shall meet all require­ than a problem. ments of health, due regard be paid to cli­ The problem of prison overcrowding could matic conditions and particularly to cubic be examined from two angles; overcrowding content of air, minimum floor space, light­ of convicted prisoners and overcrowding of ing, heating and ventilation." In keeping remand or under trial prisoners. Some coun­ with these rules many countries have includ­ tries in the region are faced with the prob­ ed in their Prison Legislation, rules regard­ lem of overcrowding of convicted prisoners ing accommodation for prisoners. For exam­ while some other countries are burdened ple, the Prison Law in Sri Lanka stipulates with the problem of overcrowding of remand that "no cell shall be certified which contains prisoners. Some countries in the region are less than 54 superficial feet of floor space and faced with the problem of overcrowding of 540 cubic feet of space and is not properly both categories. The major problem of the ventilated.' , Sri Lankan Prison System is it's heavily The above specifications are for a cell overcrowded under-trial or remand popula­ meant for a single occupant. However, there tion. The average rate of overcrowding has is no such specification laid down for dormi­ been over 500 percent. tory type or barrack type acommodation in In order to examine the reasons for over­ the Sri Lankan Prison Law. Overcrowding crowding of prison population and to find in prisons could have different meanings to possible solutions one has to study the prob­ developed countries and developing coun- lem by different categories of prisoners such as convicted, remand young offenders, etc. The problem of prison overcrowding was a subject taken up for discussion at the .. Commissioner of Prisons, Sri Lanka Eighth Asia and Pacific Conference of Cor-

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EXPERTS' PAPERS

rectional Administrators held in Kuala Lum­ crime. Courts resort to imprisonment of pur in 1987. One fact that all delegates offenders far too often even in cases which agreed was that crime was apparently in­ deserve lesser punishment. Far too many creasing, with the consequence of increas­ offenders are sent to prison for short terms. ing contacts between the Criminal Justice For example, in Sri Lanka, out of a total of System and offenders finally resulting in 13,355 persons convicted to prisons in 1987, pushing the prison population up. 61.16 percent or 8,169 were sentenced to less than 6 months. These persons easily Causes for Overcrowding in could have been given some other form of Prisons: Remand or punishment. This is the case with many Under-Trial Population other countries in the region. In some of these countries alternatives to The reasons for overcrowding of remand imprisonment have not yet been introduced prisoners are common in many countries. or adequately developed. In other countries One such common cause is the delays in where alternatives to imprisonment existed bringing the offenders to trial or, more com­ sentencers do not adequately utilise them. monly known as "laws delays': Laws delays Sri Lanka has introduced many alternatives result in many prisoners under trial having to imprisonment such as probation, suspend­ to wait in remand custody for long periods. ed sentences, community service, etc. How­ Excessive bail or inadequate use of bail pro­ ever, these alternatives have been sparing­ visions have also contributed to the increase ly used by the courts, for example, in the last in the remand population. In the Sri Lankan decade Sri Lanka has experienced a down­ Prisons, it is very common to see large num­ ward trend in the numbers placed on proba­ ber of persons lingering in jail for their ina­ tion orders. bility to furnish the bail ordered on them. Another reason for the increase in the pris­ There are also many instances where those on population is the large numbers admitted on remand are either too ignorant or too poor to Prison on nonpayment of fines. In Sri Lan­ to retain counsel to make applications for ka, the number of persons sentenced to im­ bail. In many developing countries remand­ prisonment for default payment of fines have ing of suspects is used as a punitive meas­ increased during the last several years. ure by the police. There is also unnecessary and excessive remanding of persons in these countries often abusing the power to remand. Year No. of Prisoners Percentage In Sri Lanka, we have experienced remand­ 1984 4,280 32.97 ing of ticketless travellers, petty thieves, 1985 8,316 62.67 vagrants, drunkards, persons of unsound 1986 10,977 mind, prostitutes and drug addicts, etc. keep­ 75.10 1987 10,470 ing such offenders in remand custody for 78.3 long periods is a total waste of human life and a crime in itself. You would, therefore, see that 78.39 per­ cent of persons convicted and admitted to Causes for Overcrowding of prison in 1987 were not serving sentences for Convicted Prisoners the offences they have committed but for their inability to pay the fines imposed on Many countries still carry prison sentences them. for far too many offences. The legal system Admission of convicted drug offenders to of these countries overemphasises imprison­ prison also contributes towards increasing ment as the most powerful weapon against prison population. Many countries in the

14 OVERCROWDING IN PRISONS

region have not developed proper rehabili­ ulation, crime has increased in most devel­ tation centres for drug offenders. The oping countries. Better and widespread Courts, due to lack of other alternatives, sen­ policing facilities have increased the rates of tence them to prisons, such is the case in Sri detection of crime resulting in more numbers Lanka. In the last few years, there has been sentenced to prison. However, the number a considerable increase in the admission of of corredional institutions and the accommo­ drug offenders to prisons as shown by the dations has not kept pace. So when most of following figures. these countries speak of overcrowding in pri­ sons they speak of overcrowding of a prison system which is 75 or 100 years old. Year Number Admitted Percentage to Prisons Effects of Overcrowding 1984 1,777 13.7 Increasing prison population and prison 24.2 1985 3,207 overcrowding are factors that create difficul­ 1986 3,722 25.5 ties in the observance of the Standard Mini­ 3,642 27.3 1987 mum Rules for the Treatment of Prisoners in many countries. Overcrowding causes se­ Unrealistically long prison sentences also vere strain on the already meagre essential contribute towarC3 overcrowding in prisons. services resulting in the deprivation of bas­ Although research studies conducted in var­ ic necessities for human living. It also ious countries have indicated that increase disrupts the rehabilitation and other in the length of prison sentences do not have programmes creating problems for the Pris­ a significant effect as a deterrent to crime, on Administration in providing a well sentencers in many countries continue to planned treatment package. Overcrowded pass very long sentences on offenders. prisons provide explosive settings where Many countries in the region have not con­ minor issues could escalate into major prob­ structed any new prison facilities for sever­ lems. al years. In Sri Lanka almost all the closed Apart from the difficulties and problems prisons ?xe over hundred years old. Built in created for the Penal Administrator prison the latter part of the 19th century when the overcrowding severely affects the lives of population of the country was less than 3 mil­ those inmates kept in overcrowded condi­ lion, the prison system cannot meet the de­ tions. Classification and segregation become mands of the present day. Construction of impossible in such situations. Very often modern prisons is an expensive proposition young and old, hardened criminals and mild to most Third World countries. Emphasis in offenders, convicted and unconvicted, long these countries is on economic and social de­ and short-termers are housed in the same in­ velopment and construction of prison would stitut~on. In Sri Lanka, the overcrowding of be a very low priority item. In most of Third remand jails became so grave that sections World countries politicians decide on the pri­ of prisons meant only for convicted offenders orities. They would go for the construction had to be set apart to house remand prison­ of school buildings, hospitals, factories which ers. Such conditions not only create adverse are "vote catching" but not prisons. There­ conditions for the inmates but also for the of­ fore, in most of these countries the prison ad­ ficers. maintenance of discipline becomes ministrators have to manage with archaic pri­ difficult with a low inmate-officer ratio, , sons. bringing down the morale of the prison offi­ , ' With the rapidly changing economic and cer. In some instances, it could result in the social conulLlons and the ever increasing pop- officer's position being insecure. Therefore,

15 EXPERTS'PAPERS one of the worst effects of overcrowding is of those remanded are finally convicted to the deterioration of staff-inmate relationship. prison. This would mean that a great num­ The damage done to a person when impris­ ber of these remand orders could have been oned is unmeasurable. Prisons must be avoided. Certain measures could be taken in judged by what they are and not what they this regard. One of these would be a proper ought to be. Prisons cannot prepare men for training for judges and magistrates. They social life. Repressive regimentation cannot must be made to visit the prisons regularly teach the prisoners how to exercise their ac­ and made aware of the problem of over­ tivities in constructive ways; outward con­ crowding in prisons. By these means it formity to rules repress all efforts at con­ should be possible to make them realise the structive expression. Work without the op­ importance of closely examining a case be­ eration of economic motives, motivation by fore ordering remand, and also granting bail fear of punishment rather than by hope of re­ on a larger scale. In Sri Lanka; the Prisons ward, cringing rather than growth in manli­ Law has made provision for magistrates and ness kill the spirit in man. The difficulties judges to visit and examine prisons. In prac­ in classification and segregations caused by tice, however, such visits are very rare. overcrowding make matters worse. Many of the crimes with which people are The celebrated Oscar Wilde has said. charged are minor. The potential exists to have many of these people remain in their "The vilest communities awaiting trial rather than im­ deeds like prison weeds prisoned. It can be done through the efforts bloom well in Prison Air, of either the police or judges or both. it is what is good in man State Criminal Jurisdictions should devel­ that waste and withers there." op a policy and seek enabling legislation where necessary, to encourage the use of Countermeasures to Overcrowding summons instead of arrest and detention. of Remand Prisoners This policy should make provisions for the enumeration of minor offences for which a The solutions to the problem of overcrowd­ police officer should be required to issue ing of prisons could not be found within the summons in lieu of making an arrest or de­ penal administration alone. It is a problem taining the accused, unless, that has its roots in government policy, courts, police, prosecutors and prisons. (a) The accused fails to identify himself or Therefore, solutions to the problem have to supply required information; be sought through an integrated approach in­ (b) It is a risk to the society to allow the volving all parts of the criminal justice ad­ accused to be in the community; ministration. (c) Arrest and detention is necessary for Policy decisions have to be made by gov­ further investigation: ernments regarding legal and administrative (d) That he has no fixed abode or has previ­ changes relating to remand and bail. It is ob­ ously failed to respons to summons, vious in many countries far too many persons etc. are remanded. For example, in Sri Lanka for every single person convicted there are more The policy also must give the discretion­ than five remanded. In the year 1987, there ary authority for police officers to issue sum­ were 13,355 persons admitted to prison as mons in lieu of arrest in all cases where the convicted offenders whilst there were 59,452 officer has reasons to believe that the ac­ persons admitted as remand prisoners. Our cused will respond to the summons and does studies also have shown that only 20 percent not represent a threat to himself or others.

16 OVERCROWDING IN PRISONS

When an arrest is made by a police offi­ set mandatory time limits in their statutes. cer, there must be provisions made authoris­ Time limits also could be set regarding the ing supervising officers to re-evaluate the de­ period that a person could be kept on re­ cision to arrest and to issue summons at the mand. police station in lieu of detention where The increased use of release on personal desirable. bond by the magistrates and liberalising the The state policy must also take similar bail facilities are also suggested as solutions steps encouraging the magistrates and iIi reducing remand population. In Sri Lan­ judges to issue summons in lieu of arrest ka, it is common to see large numbers of re­ warrants in all cases where the magistrate mand prisoners languishing in jails even af­ or the judge has reasons to believe that the ter they have been ordered bail, by the courts accused will respond to summons. A require­ because of their inability to furnish the bail. ment must be made that a judicial officer i&­ When ordering bail, judges and magistrates suing a warrant of detention and state his should consider not only the gravity of the reasons for doing so in writing. Implemen­ offence but also the offenders ability to fur­ taLon of such procedure will require that the nish the bail. Sri Lanka, in the recent past, judicial officer has a certain amount of basic introduced certain bail regulations under the information so that he can make an intelli­ Emergency Regulations. Under these regu­ gent choice between the alternatives. The lations, remand prisoners who have been in prosecutor or police official who applies for prison for over three months for their inabil­ such warrant of detention should be required ity to furnish the bail ordered by the courts to accompany the request with a brief report and remand prisoners who have been in pris­ on accused person's personal background on over one year (other than those coming and his stability in the community. under certain scheduled offences) were re­ Limiting the use of pre-trial detention leased from prisons upon their signing a would certainly result in a considerable re­ bond. On a study made it was found that 97 duction in prison overcrowding. However, percent of those released in such manner the success of such policy can only be accom­ have appeared in courts on due dates. plished through the full commitment and co­ Another method that could be adopted to operation of appropriate law enforcement reduce the remand population is to feed reg­ agencies. ular information to magistrate and other Measures also must be taken to speed up courts and the public prosecutor regarding the police prosecution procedure. As men­ the numbers on remand. By this means the tioned earlier. a major cause for the over­ courts and the prosecutors not only are crowding of Ye'nand prisoners is the inor­ reminded of the number kept on remand by dinate delays in the prosecution procedure. them but they are also made to check on the Delays in obtaining medical reports, analysts cases of those held for long periods. reports and experts reports essential for ev­ In most Third World countries many re­ idence, absence of key witnesses and at mand prisoners spend time in jail due to ut­ times officers assisting the prosecutors, law­ ter ignorance and their inability to retain yers requesting for dates on flimsy grounds, counsel. In such instances, arrangement heavy case loads in courts are very often the must be made to educate the remand pris­ causes for delays in disposing of cases, es­ oner of his right to bail, etc. Facilities for le­ pecially in the lower courts. Many experts gal aid must be made available to these cat­ who have examined this problem have sug­ egories of prisoners. A proper and well con­ gested setting up mandatory time limits for ducted Legal Aid System can help in a big the completion of investigations and prose­ way to reduce the remand population in pri­ cution. In fact, some countries already have sons. Very unfortunately, only a few of the

17 EXPERTS'PAPERS

Third World countries have properly or­ offences in the Penal Codes and other laws ganised legal aid systems. In Sri Lanka, and replacing them with fines or other suit­ though there is a Legal Aid Commission, its able alternative punishments will definitely functions are very limited due to lack of contribute in a big way towards reducing funds and committed lawyers. overcrowding of convicted prisoners. In this The problem of overcrowding of remand regard, it is necessary to create a climate of prisoners can, therefore, be effectively re­ political and public opinion that will not per­ duced if the different branches of the Crim­ ceive the use of imprisonment as the prima­ ninal Justice System work in co-operation ry corrective sanction appropriate for less se­ with each other. It is very essential that po­ rious offenders. lice, prosecutors, judiciary and prisons un­ At present, those in remand receive no derstand the gravity of the problem. The credit on their actual sentence for the time senior officers at the policy-making level in spent in remand. Some prisoners spend more the different branches of the Criminal Jus­ time in remand than the length of the sen­ tice Administration should meet regularly to tence for the offence. If the laws are changed sort out the problems that arise at various to give credit for the period spent in remand stages of the sYf.'tems. and set off against the sentence, it would reduce the period people have to serve in pri­ Countermeasures to Overcrowding of sons. It would also mean that some prison­ Convicted Prisoners: ers receiving short sentences of a few weeks Modification of Penal Sanctions or few months would have served sufficient time in remand that they could be released As mentioned earlier in this paper many after conviction. Those persons sentenced to countries carry prison sentences for far too short terms would not benefit by any further many offences. It is time that legislators re­ imprisonment. They have already been suffi­ thought about their Penal Codes. In fact, ciently punished by having been imprisoned some countries have already modified their on remand. In any event, there is little or no penal codes. For example, Cuba has modi­ possibility for the prisons to develop any con­ fied its penal Code in last April. In the proc­ structive rehbiIitation programme for such ess of modification several offences have short term offenders. Economically too, it been depenalised and in many other in­ would be an advantage to the government to stances fines have replaced the prison sen­ give credit on the sentence for the time spent tence. Speaking on the changes introduced on remand. to the Penal Code, Cuba's Interior Minister, Jose Abrantes, has said; Alternative Sentences

"I think we have to make our people Overcrowding of convicted prisoners could reflect on all these questions and per­ be reduced to a great extent by the creation suade (,!l1d convince them that this rec­ of a wider range of alternatives to imprison­ tification implies a change of attitude, a ment and the greater utilisation of existing consistant and profound political and alternative sentences. Resolution 16 of the ideological work, a change in the repres­ 7th United Nations Congress on the Preven­ sive notion and the tendency to look for tion of Crime and Treatment of Offenders solutions to all the problems, mistakes, advocates the use of noncustodial sanctions violations and law breaking through po­ to achieve a reduction in the prison popula­ lice intervention and courts." tion. The resolution emphasises that im­ prisonment should be imposed only as a Removal of prison sentences for certain sanction of last resort, taking into account

18 OVERCROWDING IN PRISONS the nature and gravity of the offences and are unable to pay the fines imposed on them. the legally relevant social conditions and Judges, before imposing fines on offenders, other personal circumstances of the offender. must ensure that fines are proportionate to Many nations in the Asia Pacific region the offender's ability to pay. If necessary, have introduced several traditional alterna­ laws must be amended to enable non­ tives to imprisonment such as suspended custodial sanctions instead of imprisonment sentences, community service and probation. for fine defaulters. However, studies in several countries have revealed that these alternatives to imprison­ Early Release Mechanism ment have rarely had an effective impact on the imprisonment rates. The reasons for this Expansion of early release mechanisms are the reluctance of the sentencers to uti­ such as work release and parole (release on lise these measures adequately and the prac­ licence) is an important countermeasure to tice of utilising the alternatives in addition reduce the overcrowding in prisons. These to imprisonment and not in lieu of imprison­ release mechanisms could be used on short ment. term prisoners as well as on long term pris­ There is always a public outcry about the oners. In Sri Lanka, selected long term pris­ increasing crime rates. The police, politician oners are released on licence, a system very and the public will criticise lenient sanctions much similar to parole. Work release intro­ as a major cause for the increase in crime. duced several years back for medium term sentencers respond quickly to such criticism offenders also work satisfactorily in Sri Lan­ and prison sentences are pas,:f' i on offenders ka. However, the difficulty in expanding this even in instances where an alternative could scheme is the scarcity of employment oppor­ have been utilised. To avoid such situations tunities in the community. not only the judges and magistrates but also the general public should be better informed Special Amnesties of the importance and advantages of non­ custodial sentences, compared with im­ Several countries in the region use the prisonment. The criminal Justice Adminis­ mechanism of granting special amnesties or trators must use the mass media and other remissions to reduce prison population. This means to educate the public and develop practice is commonplace in countries such as their faith in the non-custodial sentences. Thailand and Sri Lanka. The special amnes­ Governments must, in their criminal justice ties in Sri Lanka are granted under the policy, emphasise the importance of alterna­ prerogative power of the President, on spe­ tive sentences and discourage the imprison­ cial occasions of national importance such as ment of minor offenders. Not only the exist­ Independence Day. In general, under these ing alternative sentences must be utilised to special amnesties, the sentences of fine the maximum, the authorities concerned defaulters are remitted and a two week or must direct their ingenuity in finding more three week special remission for each year and better alternative ways of punishing or part of the year served in prison is given offenders. to long term prisoners. However, certain ex­ Several states in the region still have the ceptions are made in granting these amnes­ legal sanction for the imprisonment of fine ties. defaulters. In countries such as Sri Lanka, this has become a major cause for the in­ Conclusion crease in the prison population. Therefore, it is necessary to make every effort to avoid The problem of prison overcrowding (in the use of imprisonment on offenders who varying degrees) is common to many coun-

19 --- --~.------

EXPERTS' PAPERS

tries in the region. The problem has been dis­ Notes cussed at various international fora such as the Asia and Pacific Correctional Adminis­ 1. Report of the Seventh United Nations Congress trators Conference and the United Nations on the Prevention of Crime and the Treatment Congress on the Prevention of Crime and of Offenders. Treatment of Offenders. Solutions to the 2. Report of the Eighth Asian and Pacific Con­ problem are not easy or could not be found ference of Correctional Aministration. by the strategies adopted by the Correction­ 3. Cuba International Bulletin on the 30th An­ niversmy of the Cuban Revolution-1988. al Administrators alone. It requires the at­ 4. National AdvisOlY Commission on Criminal tention of all parties involved. what is impor­ Justice Standards and Goals-Report on tant and necessary is an integrated or a joint Corrections-U.S.A. 1973. approach by all the agencies of the criminal 5. Principals of Sentencing-D.A. Thomas. (Cam­ justice system. The understanding and the bridge Studies in Criminology) 1982. involvement of the community and the poli­ 6. Administration Report of the Commissioner of tician is essential in developing a system with Prisons for the Year 1986-Sri Lanka. greater emphasis on non-custodial sanctions. 7. Standard Minimum Rules for the Treatment of Offenders-'Cnited Nations. 8. Controlling the Offender in the Community. Todd R. Clear, Vincent O'Leary. Lexington Books-1984.

20 The Advancement of the Fourth Generation of Sanctions in Western Europe

by Peter Johan Paul Tak *

Brief Sketch of the Development of The Second Generation Sanctions Generations The deprivation of liberty was the most im­ portant sanction in the second generation of The First Generation sanctions. It is inconceivable that this pen­ Influenced by the ideas of the Enlighten­ alty could be removed from the sanctions ment as expressed by Beccaria, Voltaire and systems of West European countries but it Bentham, the deprivation of liberty had been occupies a much less prominent position than taken up into the penal codes of the West­ it used to. ern European countries as the main princi­ Most countries used to recognise different pal sanction. 1 It was then regarded as a kinds of custodial sentences of varying de­ promising alternative to the penalties in use grees of severity. Since World War II there at that time: the death penalty, corporal pun­ has been a strong trend toward developing ishment, forced labour and being sentenced one uniform prison sentence. The uniform to the galleys. Imprisonment was considered prison sentence has existed in Sweden since not only to be a humane and rational alter­ 1962, in the FRG since 1969, in Austria since native, but also a sanction that could make 1974 and in Portugal since 1983. a real contribution to the rehabilitation and Although most countries 6 still continue to improvement of the offender. All that re­ recognise different kinds of custodial mains of this first generation of sanctions is sentences-usually penal servitude, im­ the death penalty, and then only in a few prisonment and detention-when the sen­ countries (Belgium, Ireland, Greece and Tur­ tence is being implemented no differentiation key). The other countries either abolished is made based on the type of sentence but the death penalty as a sanction under ordi­ upon other criteria such as the length of the nary penal law long ago 2 (e.g. Portugal 1867, sentence, age and sex of the offender and his The Netherlands 1870, Norway 1902, Swe­ rehabilitation prospects. den 1921), or have done so relatively recent­ Until a hundred years ago the prison sen­ ly, whether or not prompted by resolution tence was the main sanction for all except 727 (1980) of the Council of Europe 3 (Fed­ the most trivial offences. By fixing a level eral Republic of Germany 1949, United for general and special minimum sentences Kingdom 1965, Spain 1978, France 1981)4. and for maximum sentences according to In the West European countries where the each offence type, a classification of the ab­ death penalty can still be imposed it is no stract seriousness of criminal offences was longer enforced but converted into life im­ created. This gave judges boundaries which prisonment by means of a pardon. 5 Against they could use when passing sentence. In this background it is safe to conclude that the principle the imposition of a fine was possi­ first generation of sanctions has died out in ble for some offences but this kind of penal­ Western Europe. ty was regarded as being in an entirely dif­ ferent class and was only considered appro­ priate for very minor offences. In practice * Professor of Law, Catholic University of Nijmengen, therefore, there was no alternative or sub­ The Netherlands stitute for imprisonment.

21 EXPERTS'PAPERS

Around the middle of the last century Eu­ period no sanction will be imposed (Proba­ ropean criminologists, alarmed by the in­ tion). Under the Franco-Belgian model, af­ crease in crime and above all in recidivism, ter the finding of guilt the judge does impose began to question the usefulness of depriva­ a penalty but simultaneously suspends the tion of liberty. The short term prison sen­ implementation of the sentence (sursis sim­ tence came in for particular criticism. The ple). Hybrid forms also occur. 8 Initially only essence of the criticism was that short sen­ first offenders could be given a suspended tences do not allow enough time for the sentence and only for offences which would offenders to be given any instruction or for have been punished with a short prison sen­ any moral improvement to be effected, but tence, but as the years have gone by the sus­ that they are long enough for moral corrup­ pended sentence has been applied more and tion and criminal contamination through the more widely in Europe. 9 Also the conditions association with other criminals. Also from which may be attached to a suspended sen­ the viewpoint of special deterrence short tence have become more and more far­ term imprisonment is deemed to be counter­ reaching so as to adequately express the pu­ productive, because prison damages a per­ nitive element of the suspended sentence. 10 son's self-respect, and self-respect is an im­ Where the treatment of the offender was portant factor in avoiding recidivism. A third considered unnecessary probation need not objection was the financial and social costs be used and a fine could be imposed instead. that imprisonment entails, and another was Two forms of fine are found in Western the discriminatory way the short term pris­ European sanctions systems: the fixed-sum on sentence works. fine and the day-fine. The majority of offenders who serve a In the systems which operate a fixed-sum short term prison sentence are people who, fine (e.g. The Netherlands and Belgium) min­ because they lacked financial resources, imum and maximum levels of fine are laid were not considered for a fine or were una­ down in the Penal Code. The maximum fines ble to pay it. are generally too low for the fine to be ac­ The most important changes to the Euro­ cepted as a universal alternative to imprison­ pean sanctions systems which came about as ment. This is why some countries introduced a result of this international activity were the the day-fine system (Finland, Sweden, Ger­ introduction of the suspended sentence and many, France, Austria and Portugal). The probation and the widening of the circum­ amount of a day-fine depends upon the con­ stances under which a fine could be imposed. victed person's financial circumstances, A third generation of sanctions was born out though the minimum and maximum levels of of the need to find alternatives to the short a day-fine are usually given in the Penal term prison sentence. Code. In Sweden, for example, one day-fine varies between a minimum of 10 and a max­ The Thi1-d Generation imum of 1,000 Swedish crowns. Around the turn of the century the sus­ The calculation of the level of the day-fine pended sentence was introduced into almost is based on the gross income for the year pri­ all West European countries,7 following or to the conviction less income tax, living either the Anglo-Saxon model or the Franco­ costs and the costs involved in earning the Belgian model. Under the first model, after income. The amount which is left over is the judge has declared a finding of guilt the used to calculate a day-fine which is fixed at imposition of a sentence is suspended. one thousandth part of it. The seriousness Provided that the offender keeps the condi­ of the offence is expressed through the num­ tions imposed by the judge and does not com­ ber of day-fines the convicted person has to mit another offence during the probationary pay, which in Sweden varies between a min-

22 4TH-GENERATION SANCTIONS IN EUROPE imum of one and a maximum of 180. 11 in the enforcement of the sanction which is Notwithstanding the aim behind the intro­ a particular feature of the community serv­ duction of the day-fine, there are indications ice order, and the rapidly developing empha­ that the fine is not yet fully accepted as an sis upon the position of victims which re­ alternative to the short prison sentence of six quires offenders to make some recompense months or less. In the federal Republic of for the injury, loss or damage they have Germany a prison sentence of less than six caused to individuals or the community. months may only be imposed if special cir­ Such reparation is already a feature of com­ cumstances to do with the offender or the pensation orders in the U.K. which are also offence dictate the necessity of a custodial currently under discussion in The Nether­ sentence either to make an impression upon lands. the offender or to uphold the system of law. The introduction of the alternative sanc­ Despite this the number of short prison sen­ tions has not completed the development of tences remains quite high. 12 It is probably new sanctions and new modes of implement­ true to say that in the Federal Republic of ing sanctions. New ways of implementing Germany only prison sentences of three sanctions are being developed such as months or less are substituted by fines. 13 tracking 15, curfew and the monitoring of per­ In France too the Act of 10th June 1983, in­ sons sentenced to non-institutional depriva­ troduced the day-fine as an alternative to tion or restriction of liberty by electronic short term imprisonment, but in practice it tagging 16 • All the available literature on elec­ is only used in a very small number of cases tronic monitoring suggests that so far it has as an alternative sentence. only been used in the United States on a There are countries, however, where the rather restricted scale. 17 There are no indi­ fine does seem to have taken the place of the cations that experiments with electronic short prison sentence. Greece is one such monitoring will be started in Europe in the country. In Greece, under section 82 of the short term. Penal Code, the general rule is that all cus­ The fourth generation of sanctions is in todial penalties not exceeding six months are fact the second generation of sanctions which converted into fines. The court may do the has aimed to provide non-institutional sub­ same with penalties up to 18 months if it is stitutes for short prison sentences. of the opinion that a fine will suffice to de­ Their development was born out of dissat­ ter the offender from committing new isfaction with the first group of substitutes offences. The courts make use of these op­ which were characterised by the treatment portunities in most cases so that, of all cus­ ideology which, in turn, has been severely todial sentences imposed, only about 4% are criticised since the middle of the 1960's. executed in prisons. 14 Evaluatory studies have shown that little was achieved in terms of rehabilitation 18 and The Fourth Generation that the treatment ideology carried with it When the possibility of extending the ap­ numerous pitfalls 19. plication of fines and suspended or condition­ al sentences had been exhausted, because a Which Penalties Belong to more extensive application would have en­ the Fourth Generation? dangered their credibility, new ways of avoiding the implementation of deprivation There are two well-known European in­ of liberty were invented, the so-called alter­ ventories which list all the sanctions which native sanctions. This is the fourth genera­ aim to reduce the use of imprisonment. The tion of sanctions. Very new elements of these first dates from 1975 20 and lists twenty-three sanctions are the involvement of the public sanctions, the second is from 1.985 21 and con-

23 EXPERTS'PAPERS tains twenty-two. has been introduced as a ferm of non­ Some, such as fines and suspended sen­ institutional treatment for persons misusing tences, had long formed a part of the penal alcohol or drugs and for persons where any legislation common to Western European other circumstances which have been direct­ countries. Others dated from more recently ly instrumental in criminal activity demand and had only been applied on a restricted care or treatment. If the offender agrees to scale e.g. intensive supervision and compul­ undergo suitable treatment in accordance sory attendance. with an individual treatment plan, and treat­ Still less was said about other alternatives ment is possible to arrange, this form of sanc­ such as compulsory confrontation with the tion shall be used. The court shall pronounce offender or compulsory vocational training, contract treatment as a form of regulation in­ except to note that they had been proposed. cluded in a probation sentence. Quite a number of the listed alternatives The period of treatment and subsequent are not replacements for the prison sentence supervision is limited to two years. Any se­ but alternative modes of implementing a rious breach of the conditions can lead to im­ prison sentence. prisonment. Somewhat similar possibilities, Semi-detention, weekend-detention, work but in a different legal framework such as release and permission to reside away from a conditional waiver of prosecution or a sus­ the prison in a therapeutic community, for pended sentence with conditions 24, are example, have as their object the alleviation provided for in the legislation of other Euro­ of the negative effects of imprisonment and pean countries such as Austria, France, Por­ the provision of the means whereby the pris­ tugal, Luxembourg, The Netherlands and oner can improve his personal situation. the Federal Republic of Germany. They are in fact not alternatives to im­ Since this sanction is so recent, very little prisonment but alternatives to institutionali­ information is available about its application sation. in practice. Of all the alternatives listed, only three ap­ pear to meet resolution 16 on the "Reduc­ Deprivations and Interdicts Concern­ tion of the prison population, alternatives to ing Rights or Licences imprisonment and social integration of offenders" passed at the seventh U.N. Con­ All European criminal legislation mal{es gress on the Prevention of Crime and Treat­ provision to punish offenders with a depri­ ment of Offenders. 22 Only these three can vation of rights or interdict. The most fre­ really be called alternatives to imprisonment. quently applied sanction of this kind is the They are: suspension of the driving licence. In a large number of countries, however, this sanction -contract treatment, is supplementary to the principal penalties -deprivations and interdicts concerning of imprisonment or a fine. rights or licences, and In some countries it is possible to use a -community service. deprivation or interdict of a right as a prin­ cipal penalty in place of imprisonment. Contract Treatment In France, for example, the Act of 11th July 1975 extended the range of alternative Contract treatment is the most recent al­ sanctions by allowing the judge to impose ternative sanction provided for in new Swed­ one or more of the following sanctions as a ish legislation which came into force on 1st principal sentence: January 1988, after being preceded by ex­ 23 periments since 1979 • Contract treatment -a complete or partial withdrawal of the

24 4TH-GENERATION SANCTIONS IN EUROPE

driving licence for up to five years; alties from sections 43.1-43.4 of the Penal -a prohibition from driving certain specified Code imposed. Withdrawal of the driving li­ vehicles for up to five years; cence as a principal penalty (sect. 43.3 PC) -a confiscation of one or more vehicles was given most often, and then almost ex­ owned by the accused; clusively for traffic offences. -a prohibition from being in possession of Measured over the whole of France the re­ weapons for up to five years; sults were even more disappointing. In 1976, -a withdrawal of a hunting permit and a pro­ 5,353 alternative sanctions were imposed hibition from applying for a new permit for which represented 1.04% of all sentences up to five years; and finally from tribunals and courts of appeal. In 1977, -a confiscation of one or more weapons there were 5,365 alternative sentences out owned by or at the disposal of the accused of a total of 543,697 sentences, which is (section 43.3 PC). 0.98%.29 The years since then have also wit­ nessed a very limited use of this regulation, The Explanatory Memorandum states that and until 1984 the percentage of alternative these sanctions are alternatives to short term sanctions had never risen above 3.1.30 imprisonment. 25 It is explicitly laid down (in It appears from these investigations that section 43.5 PC) that the judge may not im­ trial judges are not prepared to impose these pose a prison sentence or a fine alongside one sentences except in ~! very few cases. Like­ of these sanctions. wise defence lawyers rarely ask the judiciary However, he may impose certain alterna­ to impose an alternative sentence. There are tive sanctions cumulatively (sect. 43.3 PC). many reasons for the judiciary's poor Apart from this the regulations leave the response 31 and some of them are very plau­ judge entirely free in his choice of sanctions. sible, but the fact remains thal this group of It is not necessary for there to be a connec­ alternative sanctions have not really been a tion between the nature of the criminal success. offence and the type of sanction. So, for ex­ Out of the fourth generation of sanctions, ample, a simple theft could be punished with those sanctions that have been invented and a withdrawal of the driving licence. 26 If the developed recently solely to serve as non­ convicted person doesuot comply with a pro­ custodial alternatives or substitutes for short hibition or duty which has been imposed term imprisonment, only community service upon him, he may be punished with a prison is being used on a greater scale in an increas­ sentence of between two months and two ing number of countries in Western Europe. years, or if this is not his first offence with This justifies our looking at this sanction in a prison sentence of between one and five more detail. years. The legislator had high expectations in the Community Service effects of this new arrangement. It should have made a real contribution toward reduc­ Looking at the current state of affairs re­ ing short term imprisonment. garding community service it is possible to In practice, however, these new regula­ make a broad distinction between three tions have had very little effect. Shortly af­ groups of countries. ter this act came into force studies were car­ The first group includes the countries ried out on the application of these alterna­ which have definitely decided not to intro­ tive sanctions in the jurisdiction of the Court duce the penalty of community service or of Appeal of Aix en Provence 27 and the Paris whose enquiries into the desirability of do­ TribunaP8. They showed that, in 1976, in ing so are still in the embryonic stages. only 1.5% of sentences was one of the pen- The second group of countries have decid-

25 EXPERTS'PAPERS ed in principle to incorporate community penalty of community service. service into their legal systems, but have not There is only one country which has defi­ yet done so, because it was felt desirable to nitely rejected community service as an al­ go through an experimental phase first to see ternative to the short prison sentence, and whether the penalty would prove acceptable that is Sweden. The decision to reject com­ to the authorities who would have to impose munity service did not come about without and enforce it. a struggle though. Several committees exa­ Finally the third group of countries are mined in detail the question of whether such those which have already implemented com­ an alternative sanction was desirable and at­ munity service in their statutory sanctions­ tainable. 34 systems. The discussions went on from 1977 to 1984 and produced a wealth of theoretical I The Considering Countries and practical considerations on the subject. There are a large number of countries in Community service was eventually rejected the first group but in none of these countries as an alternative sanction for the following is the situation the same. In some of them, reasons: such as Greece and Turkey, the possibility of introducing community service has not "-there are scarcely any figures available on been discussed at all as far as we know. In the effects of the sanction, and such fig­ other countries the debate is fully in prog­ ures as do exist suggest that community ress. service is given as an alternative to im­ In Spain, for example, during the prepa­ prisonment in, at most, 50% of cases; ration of a bill for a new Penal Code which -community service orders assume that the dates from 1980 community service was dis­ person performing the work is in posses­ cussed at great length but it did not result sion of certain social skills. The majority in any legislative proposals. of the current Swedish prison population­ The most important reason why countries often drug addicts andlor alcoholics-do have not moved on to proposals to introduce not have these skills; this alternative penalty is that they did not -Swedish society is highly professionalised, have the necessary infrastructure, that is a so that the greater part of the available well organised probation service. It was also work is carried out by professional staff argued that considerable practical problems trained for the job. Because community could be expected, such as existing unem­ service tasks may not compete with paid ployment and where to draw the line be­ work, it can be expected that it would be tween community service and forced labour. difficult to find suitable community serv­ This in turn led to the assumption that com­ ice projects; munity service cannot develop into a worth­ -finally, it was felt to be questionable while alternative to the short prison sen­ whether work could be used as a sanction, tence. 32 now thar work is generally seen as a privi­ In Switzerland, on the other hand, the dis­ lege and forms an important part of social cussion has produced results. The godfather life. of Swiss penal law, Hans Schultz, professor at Bern, included community service in his Does this mean then that Sweden has done draft bill published in 1985, as a substitute nothing to reduce the number of prisoners? for prison sentences not exceeding one year On the contrary, Sweden has just been or for fines. 33 through a very radical reform of sanctions In Finland and Belgium too, draft legisla­ law in which the reduction of imprisonment tion is being prepared which includes the was central.

26 4TH-GENERATION SANCTIONS IN EUROPE

For example in, 1981, the statutory mini­ There are three countries in this group: mum prison sentence was reduced from one Norway, Denmark and The Netherlands. month to one week so that, in cases where In these countries the community service a prison sentence is unavoidable, judges are experiments are being conducted within the able to impose a very short sentence. juridical framework of the suspended sen­ Also the conditional release rules in Swe­ tence. den underwent a major change in 1983. In Denmark experiments with communi­ Before the change a prisoner could only be ty service were begun on 1st September released on parole after serving two-thirds 1982 in Copenhagen and 1st November in of his sentence with a minimum of four North Jutland. This followed several years months. of preparatory work by various committees Under the new rules parole may be grant­ which devised the rules for the experiments. ed after half of the sentence, with a minimum Community service can be imposed as a of two months, has been served. condition of a conditional non-imposition of Every year thousands of convicted a penalty. In principle, any offence can be offenders benefit from this very lenient reg­ considered for community service no matter ulation, and an annual saving of 450 prison how serious, and no matter how long a pris­ places is made out of a total capacity of 5,500 on sentence might have been imposed. The cells. preparatory committee specifically recom­ In addition, the sentence of probation su­ mended that community service be used in pervision has been improved to such an ex­ place of prison sentences up to 6-8 months tent that judges now accept it as an alterna­ long. Only one offence is excluded from con­ tive to a short term prison sentence. sideration for community service, and that Finally, and this is remarkable in Western is drunken driving. Europe, since 1983 Sweden ceased to imple­ The judge can only impose community ment fine default detention for unpaid fines. service after the "kriminal-forsorgen" -the Other countries which have not yet intro­ probation department of the Ministry of duced community service as a substitute Justice-has produced a social enquir.'\.~ report p~nalty have also taken statutory measures on the accused. to reduce the use of short prison sentences. The court cannot impose community serv­ For example, the Penal Codes of Germa­ ice without the accused's consent. ny (sect. 47 PC) and Austria (sect. 37 PC) lay The court decides upon the number of down that prison sentences of six months or hours c0mmunity service to be worked, with­ less should not be implemented in principle, in the statutory minimum and maximum lev­ unless there are special circumstances to do els of 40 hours and 200 hours. The court also with the offence or the offender which com­ lays down the period within which the com­ pel the judge to impose a prison sentence for munity service has to be completed. The reasons of general or special deterrence. maximum period is twelve months. The de­ In Belgium, to give another example, it has tailed content of the community service and been the practice since 1939 that prison sen­ the supervision is the responsibility of a spe­ tences of four months or less are not imple­ cial section within the "kriminal-forsorgen." mented. Non-fulfillment of the community service does not automatically lead to revocation of II The Experimenting Countries the suspended sentence and the fixing of a We now turn to the second group of coun­ penalty. The court also has the option of giv­ tries: those currently experimenting with ing a warning or altering the conditions of community service in preparation for future the sentence. legislation. The community service experiment had a

27 EXPERTS'PAPERS

slow start; in its first year only 43 communi­ wise impose is an unconditional prison sen­ ty service conditions were imposed. This in­ tence of six months or less, or, a part sus­ creased to over a hundred in the second year. pended part unconditional prison sentence of . The number of failed community service or­ which the unconditional part is not more than ders was around 10%. six months. Furthermore, a judge can only In June 1984, the Minister of Justice de­ impose this penalty in response to an offer cided to extend the community service ex­ from the accused who must also consent to periments over the whole of Denmark. the proposed sentence. The offer must state Since then 1,000 community service orders the nature of the work. The "compulsory have been imposed and the experience consent" was taken up in the bill to avoid looked promising. Parliament was to have contravening four international conventions taken a decision early in 1988 on the intro­ forbidding forced labour which The Nether­ duction of community service as a principal lands has signed. To ensure that the penal­ sentence 35, but this decision has not yet ty of unpaid work is only used as an alterna­ materialised. tive to an unconditional prison sentence the In Norway experiments with community judge has to state in his sentence the prison service were started in Stavanger and sentence he considered imposing for which Rogaland in 1984, and extended to the whole cOPlmunity service is a substitute. The sen­ country in 1987. The maximum number of tence also specifies the number of hours of hours of community service is 240, and the work to be carried out, the period within mCL'{imum prison sentence that it can replace which it has to be completed and the type is twelve months. The penalty of communi­ of work. ty service is primarily intended for property The prosecution service is responsible for offences. supervising the manner in which the work The first years of the experiment have is carried out. Information can be requested been evaluated by a committee and the re­ from individuals and organisations involved sults are so promising that a bill is currently in probation work for this purpose. If the being prepared in Norway to incorporate prosecution service considers that the con­ community service into the Penal Code. The victed person is not or has not been able to bill is expected to appear at some time dur­ complete the work entirely in accordance ing 1989. with the agreement then it can make changes The Norwegian Justice Ministry is work­ to the agreement without going back to the ing on the assumption that about 700 peo­ court. ple will be sentenced to do community serv­ Changes may be made to the completion ice every year and that this will. bring about period, the person or institution for whom 36 a saving of 200 prison places per year • the work is being done and the type of work In The Netherlands, after a six year exper­ being done. imental period and over 10,000 community The convicted person will be informed of service orders, a bill was presented to par­ these changes and may make his objections liament in September 1987 which would pro­ to the judge who imposed the sentence if he vide community service with an explicit wishes. statutory foundation. The main points of the If the judge feels that the convicted per­ statutory regulations are as follows. The son has not carried out the imposed work maximum number of hours of work that can properly, and if the prosecution service de­ be imposed as a penalty is 240, and the work mands this, he can actually impose the pris­ must be completed within six months. A on term mentioned in the sentence and or­ judge may only impose a community serv­ der that all or part of it be enforced. He does ice penalty if the sentence he would other- take into account that part of the work that

28 4TH-GENERATION SANCTIONS IN EUROPE

has been properly carried out. The prosecu­ For this reason we have found it necessary tion service has to make its demand within to subdivide this third group. three months of the end of the completion There are countries which have had a form period for the community service. of community service penalty in their penal When the prosecution service is satisfied legislation for almost a century. This was that the work imposed has been carried out used as an alternative to a judicially imposed properly it must inform the convicted person fine, or the default detention which can be as soon as possible. imposed when a convicted person fails to pay It may be expected that the act will come his fine. into force it. 1989. The oldest regulation is found in section Experience in Norway, Denmark and The 19 of the Italian Penal Code of 1889. Com­ Netherlands has shown that the many prac­ munity service could substitute for a fine tical and legal problems which existed at the default detention only at the request of the beginning of the experiments resulted in a convicted person and two days' community limited application of the alternative sanc­ service replaced one day's detention. The tion. In Denmark, for example, it is known public prosecutor was responsible for im­ that the trade union movement initially had plementing this alternative sanction. 37 fundamental objections to the CSO fearing Section 28 of the Norwegian Penal Code unfair competition. A problem that arose in of 1902 provided that the King might issue The Netherlands was the uncertainty sur­ regulations to allow fines to be substituted rounding whether an unemployed person en­ by work to be carried out for the benefit of gaged in community service would be enti­ the state or municipality. The King acted tled to unemployment benefits when he upon this and issued the Royal Decree of 3rd would not be available for work during the December 1904. 38 hours that he was working on his communi­ There has been a similar provision in the ty service. Considering that 620/0 of those German Penal Code since 1924. convicted to a CSO in The Netherlands were Finally, the Swiss Penal Code has, since unemployed the solution to this problem had 1942, provided that fine defaulters might to be given high priority. As soon as these avoid detention by carrying out work for the practical and legal problems had been re­ general good (sect. 49). solved many judges in these three countries There is nothing new in the idea that a fine were prepared to apply the alternative sanc­ imposed by a judge can be paid off by doing tion on a greater scale. work for the general good; it is cenhlries old. In his study of the history of this penalty III l~le Applying Countries the German criminal law scholar, Hans von 39 The third group of countries, those which Hentig , points to a number of German have implemented community service in towns whose municipal by-laws have, since their statutory sanctions systems, includes the middle ages, enabled people to avoid the United Kingdom, France, Portugal, Ita­ serving a default detention by doing work for ly, the Federal Republic of Germany, Lux­ the community such as helping construct the embourg, Norway and Switzerland. city wall. or cleaning the canal. That Norway and Switzerland are men­ The penal legislation of Bern (Switzerland) tioned again here points to the fact that the contained a similar provision in 1614 but also community service penalty does not only oc­ required the consent of the person con­ cur as a substitute for judicially imposed pris­ cerned. 40 on sentences, it is also used as a substitute We do not intend to go any further into the for other sanctions and consequences of historical background of this variant. This is sanctions. because we are far more interested in the

29 EXPERTS'PAPERS practical significance, if any, of this form of 1981, in response to this decision, convicted community service, the alternative to fine persons were given the opportunity to ask default detention. for their fine to be converted into a "lavoro This has been disappointing in a number sostitutivo" in sections 102 and 105 of the of countries. In Norway and Switzerland this Penal Code. For each 8 hour day worked the statutory provision has virtually remained a imposed fine is reduced by 50,000 lire. The dead letter. maximum number of hours community serv­ There are two wen-known studies of the ice that can be worked is 60 if one fine is in­ application of this provision in Switzerland. volved and 480 if there are several fines. No They show that between 1942 and 1947, more than 8 hours community service can be out of 388 people in the canton of Zurich who worked per week. could not pay their fine, only 5 took up the Between 1982 and 1985 only about thirty opportunity to pay through work. 41 A simi­ fines were converted into community serv­ lar study was undertaken in the period 1976- ice. The most important reason for this is 1980. Fourteen people who had not paid that a convicted person can also request con­ their fines were asked whether they would version of his fines into a "liberta controlla­ like to pay it off by doing community serv­ ta" (supervised liberty) which is seen as a ice. Thirteen did not reply at all and one much lighter sentence than "lavoro sostitu­ came to pay his fine immediately. 42 tivo. " In Germany the opportunity to avoid Given the choice, most convicted persons default detention was hardly ever used up prefer the "liberta controllata." 46 until 1981. This was mainly because there Community service does not only have a were no personnel to approach the non­ role as an alternative to default detention, but payers personally, and because community also as a substitute for a principal fine. At service could only take place with govern­ least that is the case in Portugal. 47 ment organisations and within normal office Under section 43 of the Portuguese Penal hours. 43 Code of 1982, prison sentences not exceed­ However, since 1981 the German federal ing six months (180 days) are substituted by states have decided to put the departments an equivalent number of day-fines unless there attached to the Justice Ministry in charge of is a very clear indication that a custodial sen­ preparing and coordinating the necessary tence is necessary to prevent the offender from work projects to allow community service to committing further crimes. Section 60 fur­ be put into operation. This had become nec­ ther provides that day-fines up to an equiva­ essary because the worsening economic sit­ lent of three months imprisonment can be sub­ uation had led to an ir.crease in default de­ stituted by a community service penalty. With tentions at a rate of several thousand per the consent of the accused a judge may con­ year. This in turn had resulted in serious vert up to 90 day-fines into a community serv­ overcrowding in the prisons. The German ice order, at a maximum rate of two hours policy was very successful. By 1985 over community service per day-fine. The maxi­ 7,000 persens convicted to fines were able mum number of hours of community serv­ to avoid a default detention by doing com­ ice therefore works out at 180. munity service. 44 Portugal is the only country in Europe with The situation in Italy is also worth men­ a legal system which explicitly provides for tioning. On 21st November 1979 the consti­ the conversion or principal fines into commu­ tutional court decided that the conversion of nity service. 48 If section 41 of the Swiss draft an unpaid fine into a nubsidiary detention bill is adopted unchanged, then Swiss law conflicts with the principle of equality before will also allow a fine to be converted into a the law and thus with the Constitution. 45 In community service order of between 10 and

30 4TH-GENERATION SANCTIONS IN EUROPE

240 hours. 43.3.1. PC) or as a condition of a suspended Finally we come to those legal systems sentence with probation supervision (sect. which make provision for community serv­ 747.1 CCP). As a principal sentence it can ice as a substitute for the short term prison only be imposed upon offenders who, in the sentence. In the past fifteen years five coun­ five years preceding the offence now being tries have adopted community service as a tried, have not been convicted for other substitute for imprisonment in their legal offences to an unconditional prison sentence systems, but the way it operates in practice exceeding four months. The principal sen­ varies very much from country to country. tence of community service can only be First there was England and Wales which, given for offences carrying a maximum in the Criminal Justice Act of 1972, provid­ statutory sentence of five years. When it is ed that offenders over the age of 16, convict­ imposed as a condition of a suspended sen­ ed for an offence punishable with imprison­ tence community service can be used for any ment, can be given a community service or­ offence. Although there are no further statu­ der if they consent (sects. 14-17 Powers of tory restrictions on the imposition of commu­ Criminal Courts Act 1973 and Schedules 12 nity service, it is clear from the parliamen­ and 13 Criminal Justice Act of 1982). The tary debate that it is only intended for non­ minimum number of hours of community grave offences. service is 40 and the maximum 240. It is Community service entails an obligation to clear from the parliamentary debate of the carry out unpaid work in the service of the Criminal Justice Act that community serv­ community, a public institution or a private ice was only intended to be used in place of society or foundation. The court fixes the a prison sentence, or as the Green Paper put number of hours between a minimum of 40 it again recently: "The community service and a maximum of 240 and the completion was designed for offenders who would oth­ period (maximum 18 months). Community erwise be at risk of custody." 49 In practice, service can also be imposed upon juveniles. however, it has become clear that the com­ They have to do between 20 and 120 hours munity service order is also imposed in cases unpaid work within a twelve month period. where previously a fine would have been Before imposing this alternative sanction the used. 50 About 35,000 community service or­ judge informs the accused that he has the ders are now imposed annually. right to refuse this type of penalty. In the Federal Republic of Germany, since The sentencing judge ("judge de l'appli­ 1975, it has been possible for an offender to cation des peines") works out the concrete be given a suspended prison sentence up to content of the community service and is repon­ two years in duration, to which a condition sible for its supervision. Non-fulfilment of the is attached that he carry out work for the principal sentence is a separate criminal general good (sect. 56 PC). Unlike England offence punishable with between two months and Wales, therefore, community service and two years of imprisonment, or, in the case cannot substitute for a principal fine. of recidivists, between one and five years. The Portuguese Penal Code of 1982 also Non-fulfilment of community service imposed includes community service as a substitute within the framework of a suspended sentence for a prison sentence up to three months can lead to its revocation. In the first three maximum. Under Portuguese penal law years (1984-1986) +15,000 convicted persons community service cannot be imposed as a started a community service penalty. The fail­ condition of a suspended sentence but only ure rate is around 40/0. as a principal sentence (sect. 105 PC). The most recent statutOlY regulc.tion of Under French law community service can community service is in Luxembourg, be imposed as a principal sentence (sect. where, since 1986, it has been a possible con-

31 EXPERTS' PAPERS dition of a suspended sentence or probation Such a discrepancy between two systems, (sect. 633.7 CCP). both of which operate the day-fine and recog­ There are also a number of European nise community service as a substitute for countries where a prison sentence imposed it, cannot be explained either theoretically by a judge but not yet enfofced can be re­ or for practical reasons. placed by a community service order via a We will give another example of such a pardon. This is the case in The Netherlands, discrepancy. In Denmark and Norway the Luxembourg, Norway and the Federal Re­ maximum number of hours of community public d Germany among others. 51 service is 200. In Denmark 200 hours com­ We can well imagine that your mind bog­ munity service substitutes for an 8 month gles at the quantity of different sentence mo­ prison sentence whereas in Norway it sub­ dalities within which community service can stitutes for a 12 month prison sentence, while playa role, but there are still more. in The Netherlands 240 hours community In Norway community service can theoret­ service is an alternative to a 6 month prison ically be imposed as a condition of a waiver sentence. of prosecution (sect. 69 CCP) and a condi­ The real reasons for these very consider­ tional release. In the Federal Republic of able discrepancies can only be guessed at. Germany it is possible as a condition at­ Nowhere have we been able to find an ex­ tached to parole (sect. 57 PC), a waiver of planation for the relationships which have prosecution (sect. 153a CCP) and an admo­ been fixed between the duration of a prison nition with a deferred sentence (sect. 59 sentence and a community service order. No­ PC) ... but ttere is no need for us to go on where have criteria been developed for with this list. judges to use when converting a prison sen­ It is sufficiently clear by now that commu­ tence into community service. The absence nity service regulations in Europe are by no of these criteria hampers the desired unifor­ means uniform and that it can be applied un­ mity of sentencing practice. der a great variety of different sentence mo­ Finally, on the subject of discrepancies, we dalities This has important consequences af­ would like to give one more example which fecting the nature of community service as occurs within one legal system, the French. a penalty. Non-fulfilment of community service im­ We would like to comment on this aspect posed as a condition of a suspended sentence now whilst making a comparison of the dif­ results in the convicted person having to ferent systems. serve the prison term which has already been fixed by the judge. Discrepancies in the Non-fulfilment of community service im­ Various Sanctions-Systems posed as a principal penalty is a separate criminal offence punishable with between We have seen that in both Germany and two months and two years imprisonment. Portugal community service can function as This sentence may possibly be suspended. an alternative to a day-fine. In Portugal it The consequences of failing to carry out replaces the day-fine as a principal sentence, a community service order imposed as a prin­ in Germany it is an alternative to fine default cipal sentence can be very different from detention. those which result from not carrying out a In Portugal a maximum of 180 hours com­ community service condition. In the latter munity service can be imposed instead of 90 case the convicted person knows exactly day-fines. In Germany 90 unpaid day-fines what term of imprisonment lies in store if he can be converted into 720 hours community does not meet his obligation: the judge has service. already fixed this in the sentence. With the

32 4TH-GENERATION SANCTIONS IN EUROPE principal sentence on the other hand, he only alty have serious reservations about its pu­ knows that he can be punished with a pris­ nitive character. If the characteristic feature on sentence of anywhere between two of a penalty is that it inflicts punishment, this months and two years in duration. Because aspect has been given very little exposure in the punishment is for a new offence (name­ legal and political discussions. This is all the ly non-compliance), and because the original more strange in view of the fact that the csa IJffence for which the community service was is a substitute for quite long prison terms in imposed has no bearing upon this sentence, many countries. Looked at in terms of the the offender stands a theoretical chance of severity of the punishment, is 240 hours getting a much heavier prison sentence than community service equivalent to six or eight that which would have been imposed for the months in prison? original offence. 52 The answer to this question must be no if It is unclear why the French legislator we only take the punitive aspect of the sen­ chose to make non-fulfilment of a principal tence into account. sentence of community service into a sepa­ If, however, we also look at the other pur­ rate criminal offence. There are indications poses of a penal sanction, for example, the that he was following the English system element of redress to society for wrong­ where non-fulfilment of a community serv­ doing, the rehabilitation aspect and recidi­ ice order is a contempt of court which is also vism rates, then the csa compares very well a punishable offence. However, there are im­ with the prison sentence. It would therefore portant differences. A contempt of court can be a good idea to investigate from time to only be punished with a fine up to a maxi­ time how far judges, public prosecutors, mum of £400 and the community service or­ councillors and convicted persons perceive der remains in force giving the convicted per­ community service as a punishment. son another chance to fulfil his community This should in turn reveal whether this service. penalty's level of acceptance among profes­ If he still fails to do this the community sionals is increasing, and if not, why not. service order is revoked and the offender is This kind of research has been conducted reconvicted for the original offence. 53 in The Netherlands throughout the experi­ mental phase and the findings have contrib­ Factors Negatively Affecting uted to the formulation of statutory regula­ the Court's Use of the CSO tions for community service. The most recent study showed that the As a relatively new sanction the commu­ rates of reoffending were significantly low­ nity service order has already made its mark er for persons convicted to community serv­ in the sanctions-systems of a number of ice than those who served short term prison countries, as a separate penalty alongside the sentences. 55 Studies like this stimulate the prison sentence and the fine or as a substi­ use of the alternative sanctions. tute penalty for short term imprisonment. Tl~e second risk is that the supervision of Nevertheless, there are sufficient grounds the execution of the community service work to fear that, in the long term, this new sub­ is too lax so that judges lose their confidence stitute penalty will pass into oblivion if noth­ in the sanction. In England, in particular, ing is done to avert the dangers which threat­ probation officers have felt that the supervi­ en it. 54 We shall now look at a few of these sion of a penal sanction is incompatible with threats. their professional principles. This has result­ Firstly there is the incomplete ideological ed in a situation developing whereby the base of this altemtitive penalty. csa no longer functions as a substitute for Many judges who could impose this pen- imprisonment in many cases, but as a sub-

33 EXPERTS' PAPERS stitute for a fine. United Nations ASha and Far East Institute The third threat to the success of this sanc­ for the Prevention of Crime and the Treat­ tion occurs where the necessary infrastruc­ ment of Offenders (UNAFEI) in initiating the ture is lacking. formulation of Standard Minimum Rules for The preparatory work and supervision de­ non-custodial measures. These rules, the To­ mand quite a major investment in manpow­ kyo Rules, will be presented for adoption to er and money. The community service order, the 8th U.N. Congress on the Prevention of though much cheaper than prison sentence, Crime and the Treatment of Offenders to be does not come free. held in 1990. For this alternative penalty to succeed, there have to be enough judges and proba­ Notes tion officers as well as adequate financing. The fiasco in Portugal where the CSO was 1. For the history of the prison sentence, see: introduced in 1983, but where since then it H.H. Jescheck, Die Freiheitsstrafe und ihre has been imposed in only thirty cases, can Surrogate im deutschen und auslandischen be attributed directly to the lack of support­ Recht, Nomos Verlagsgesellschaft, Baden­ ive structures: a chronic shortage of proba­ Baden 1984, pp. 1949-1974. tion officers and a shortage of money. 2. Some countries still have provisions allow­ Another factor which threatens the new ing the death penalty for grave war time sanction is its rather shaky statutory foun­ offences. 3. Resolution 727 appeals to the parliaments dation. The regulations governing the new of those member states of the Council of Eu­ sanction need to be as clear as glass. The rope which have retained capital punish­ regulations must be formulated in such a way ment for crimes committed in ti'1es of as to preclude any disputes about the respec­ peace to abolish it from their penal systems. tive responsibilities of the judge who imposes 4. Nine member states of the Council of Eu­ the sanction and the agency which has to im­ rope are parties to the Sixth Protocol to the plement it. Statutory guarantees need to be European Convention on Human Rights and built in to ensure that the work will be suita­ have therefore abolished the death penalty ble for the individual offender. for aU offences (including crimes under mil­ The act must also state clearly what the itary law or committed during wartime) (1. consequences of failing to carry out the com­ 1. 1989). 5. The death penalty, Traval.lx de la Confer­ munity service will be. ence Internationale tenue .a I'Institut Su­ Finally there is the danger posed by the ab­ perieur International de Science Criminelle, sence of Standard Minimum Rules for the Syracuse Italy 17 au 22 Mai 1987, Revue implementation of non-custodial alternatives. Internationale de droit penal 1987, pp. Rules relating to privacy, rules guaranteeing 285-821. the professional qualities of supervisors and 6. For example, the Spanish Penal Code recog­ the quality of work tasks, etc. will become nises at least six types of custodial sentence more and more important as the alternative (see sects. 30, 45, 46, 47, 84 and 85 PC), sanctions are used on a greater scale. The the Swiss three (see sects. 35-4J PC) and offender sentenced to a community service the Dutch two (sects. 10 and 18 PC). order also has the right to be protected 7. Luxemburg 1892, Portugal189~i, Norway 1894, Italy 1904, Denmark 1905, Sweden against possible abuse of power exercised 1906, Spain 1908, Greece 1911, The Neth­ under this sanction. erlands 1915, Finland 1918. For more de­ It is a good thing therefore that work is be­ tailed information, see: M. Ancel, Suspend­ ing done to draw up these rules at both in­ ed Sentence, Heinemann London ll,:)71, pp. ternational and supranational levels. A great 38-41. amount of work has been undertaken by the 8. For example, in Denmark, Norway and The

34 4TH-GENERATION SANCTIONS IN EUROPE

Netherlands. a unique signal in response to a telephone 9. In The Netherlands, since 1stJanuary 1987, call. The person or computer makirig the up to one year of a prison sentence not ex­ telephone call then knows that the tagged ceeding three years in total may be suspend­ person has responded. The tag cannot be ed. In Germany sentences between one and removed or tampered with by the person. two years can only be suspended if special This is called the passive system. There is circumstances relating to the offence or the also an active system in which the tag trans­ personality of the offender would justify mits a continuous signal to the telephone this. Under French law since the legislative terminal in the tagged person's home which changes of 1970 and 1975 sentences up to can communicate with a computer. The sig­ five years may be suspended. nal stops when the tagged person moves 10. See: Peter J.P. Tak, Standard Minimum further than a prescribed distance from the Rules for non-institutional treatment: an at­ telephone. tempt to respond to some basic questions, 17. See: Belinda R. MacCarthy, Intermediate Sixth International Colloquium of the Inter­ Punishments: Intensive Supervision, Home national Penal and Penitentiary Foundation, Confinement and Electronic Surveillance, 3-7 October 1987, Poitiers, France. Monsey New York, Willow Tree Press 11. The regulation of day-fines is far from uni­ 1987. The author estimates that by the tar­ form in Western Europe, as the following get date of 1st August 1988 five to six thou­ examples illustrate. In the Federal Repub­ sand individuals would be subject to elec­ lic of Germany the minimum level of the tronic monitoring over the whole of the day-fine is two marks and the maximum United States. 10,000 marks. The number of day-fines that 18. See: D. Lipton, R. Martinson, J. Wilks, The can be imposed varies between a minimum effectiveness of correctional treatment. A of five and a maximum of 720. In France survey of treatment evaluation studies, the maximum amount per day-fine is 2,000 Praeger Publ. New York 1975. French francs and the maximum number of 19. See: 1. Anttila, The Ideology of Crime Con­ day-fines is 360. In Portugal a fine may com­ trol in Scandinavian Current Trends, in: Se­ prise 10 to 300 day-fines and ~ach day-fine lected Issues in Criminal justice, HEUNI amounts to between 200 and 10,000 escu­ Publication Series, no. 4, Helsinki 1985, pp. dos. There are thus considerable differences 66-67. in the level of day-fines. 20. W. Rentzmann, Om alternativer til friheds­ 12. In 1982 46% of all prison sentences were straf, Nordisk Tidsskriftfor Kriminalviden­ less than six months. skab, 1975, p. 163. 13. See: J. Kurzinger in H.H. Jescheck op. cit., 21. Alternative measures to imprisonment. p, 1830 and p. 1996 ff. Council of Europe, Strasbourg 1986. 14. See: Anton M. van KalmthoutlPeter J.P. 22. A/Conf.121/22/Rev. 1 UN 1986, p. 84. Tak, Sanctions-systems in the Member­ 23. See: Anton M. van Kalmthout/Peter J.P. States of the Council of Europe, part 1, Tak, Sanctions-systems in the Member­ KluwerlGouda Quint Deventer 1988, p. 163. States of the Council of Europe, Kluw­ 15. Tracking is a term used broadly to cover er/Gouda Quint, Deventer 1988, pp. 298-299 various schemes which use ancillary proba­ and N. Bishop, Non-custodial Alternatives tion staff to maintain regular and frequent in Europe, HEUNI publication series, no. contact with offenders under supervision in 14, Helsinki 1988, pp. 72-74. the community. The tracker discusses with 24. See: Peter J.P. Tak, The legal scope of non­ the offender how he will spend his time and prosecution in Europe, HEUNI pUblication maintains contact with schools, clubs and series, no. 8, Helsinki 1986, pp. 67-72. other places where the offender intends to 25. Assemblee Nationale Doc. No. 1481 pp. go. See: Punishment, Custody and the Com­ 10-11. munity, Green Paper, July 1988, Dm 424 26. Compare: T-I. Bestard, Les substituts aux HMSO London, p. 11. courtes peines d'emprisonnement et l'appJi­ 16. A tag which is attached to a person gives cation de la loi du 11 juillet 1975, Revue

35 EXPERTS' PAPERS

penitentiaire et de droit penal, 1978, p. 305. 41. H.F. Penninger, Das Problem del' kurz­ 27. J.R. Syr, L'application de la loi du 11 juillet zeitige Freiheitsstrafe, Schweizerische Zeit­ 1975 modifiant et completant certaines dis­ schrift fur Strafrecht, 1949, p. 1875. positions du droit penal dans Ie ressort de 42. R. Bernhard, Die Bnssenvollzug gemass la Cour d'appel d' Aix en Provence, Revue Art. 49 StGB unter besonderer Beruck­ de science criminelle et de droit penal com­ sichtigung del' Praxis des Kt. Zurich, Dies­ pare, 1979, from p. 521. senhofen 1982, p. 59. 28. J. Delmas-Goyon, Application au Tribunal 43. D. Zimmerman, Tilgung uneinbringlicher de Paris pour l'annee 1976, dE's dispositions Geldstrafen durch freie Arbiet, Bewahrung­ de la loi du 11 juillet 1975 concernant les shilfe, 1982, pp. 113-126. substituts aux courtes peines d' emprisonne­ 44. H. Horstkotte, German Experience with ment, Revue de science criminelle et de community service, IPPF proceedings, droit penal compare, 1979, from p. 525. Bonn 1987, p. 93. 29. H. Bestard, op.cit., p. 308. 45. Corte Constituzionale, sentenz no. 131, 30. CompareJ. Larguier, Chroniquedejurispru­ Guistizia penale 1980 I, p. 129. dence, Revue de science criminelle et de 46. C.E. Paliero, Community Service in Italy, droit penal compare, 1981, p. 601, the cir­ op. cit.,Jrom p. 158. cular of 21st October 1981, Recueil Dalloz, 47. Compare: E. Correira, Community Service 1981, p. 374, and the figures issued during and the New Portuguese Penal Code, IPPF the parliamentary discussion of the propos­ proceedings Bonn 1987, p. 81 and L. Oliv­ als in the Bill on comunity service, Journal eira de Miranda Pereira, Community Serv­ Officiel, 1982, no. 84 AN, p. 4681, and the ice in Portugal, in: H.J. AlbrechtiW. Scha­ Annuaire statistique de La Justice 1985, dler (eds.), Community Service, Freiburg Paris 1987 p. 109 and subsequent pages. 1986, p. 139. 31. See: Anton M. van Kalmthout/Peter J,P. 48. See: Sanctions-systems, op. cit., p. 181. Tak, Sanctions-systems, op.cit., pp. 86-87. 49. Punishment, Custody and the Community, 32. See: Sanctions-systems, op. cit., pp. op. cit, p. 3. 258-263. 50. W.J. Bohan, Community Service as an al­ 33. See: Sanctions-systems, op. cit., pp. ternative to the Prison Sentence, Experi­ 341-361. ence in England and Wales, IPPF proceed­ 34. See: Sanctions-systems, op. cit., 11p. ings, Bonn 1987, p. 47 and G.C. Cartledge, 279-287. Community Service in England and Wales, 35. Anton M. van KalmthoutlPeter J.P. Tak, in: H.I. AlbrechtIW. Schadler, op. cit., from Sanctions-systems, op. cit., p. 67. p.15. 36. Justisdept's pressemelding no. 40/87 Nor­ 51. See: TaklVan Kalmthout, op. cit., p. 113 & disk kriminologi Nyhetsbrev no. 44, Novem­ p. 196 and P.J,P. Tak, Community Service ber 1987, p. 29. as an alternative to the prison sentence in 37. See: Carlo E. Paliero, Community Service The Netherlands, IPPF proceedings, Bonn in Italy-legislation and practice, in: H.J. Al­ 1987, p. 122. brechtfl.V. Schadler, Community Service, 52. P.J.P. Tak, A comparative survey on the Freiburg 1986, p. 151. use of alternatives to imprisonment in the 38. H. Rostad, Samfunnstjeneste Som Alter­ Member States of the Council of Europe, nativ til ubetinget fengelsstraff, Lov og Rett IPPF proceedings, Bonn 1987, p. 110. 1984, p. 3. 53. N. Walker, Sentencing, theory, law and 39. Die Strafe, Teil II, Die moderne Er­ practice, London 1985, p. 281. scheiningsformen, Heidelberg 1955, p. 408. 54. For more details on this, see: N. Bishop, 40. C. Stooss, Das sogenannte Abverdienen von Non-custodial alternatives in Europe, or. Geldstrafen, Revue Penale Suisse, 1891, p. cit., pp. 97-140. 347 and C. Stooss, Geldstrafe und Bus­ 55. N.W. Bol & J.J. Overwater, Recidive senabdiener, Schweizerische Zeitschrift fur van dienstverleners, Staatsuitgeverij's­ Strafrecht, 1916, pp. 1 & 3. Gravenhage 1986, p. 1.

36 Fair Administration of Police Responsibility and Provision of Services to the Public: The Basis for Public Cooperation

by Cicem C. Campos *

1. Introduction the origin of democracy. 3 This evidently is the basis for the statement that "the police A. The Ideal Police are the public and the public are the police." Awed by the multi-faceted role of the po­ This comprehensive nature of the police lice, Paul Riege, in his history of the police, ideal covers such extensive responsibilities reiterated an expression oft quoted: "Nach as emergency medical care, assisting the Gott kommt gleich die Polizei" ("After God, helpless, relief and mercy operations, disas­ comes the Police.'V ter control, etc., all these in addition to what Riege made this exaggeration evidently af­ is usually associated with police work, name­ ter he became aware of the extent of police ly, the maintenance of law and order. The work as it was originally conceived. This ideal police, in a way, is the dividing line be­ ideal was embodied by Charles Rowan and tween civilization and chaos. It is therefore Richard Mayne in the Ninth Principle, which no wonder that Paul Riege was moved to ex­ they framed in 1829, based on the philoso­ claim with that classic exaggeration "After phy of Sir Robert Peel of England who is God, comes the Police." considered a leading pioneer of the modern police system. The essence of police profes­ B. Ideal and Reality sionalism was distilled into the Ninth Prin­ Through the years, many police systems ciple, which reads: have deviated from the ideal. This is a basic reason why police authorities have been frus­ To maintain at all times such a relation­ trated with regard to police work. There is ship with the public that gives reality to a dearth of police effectiveness and public ac­ the historic truth that the police 'are the ceptability. There is a perceived need for in­ public and the public are the police-the novation, to couch modern techniques and police being only members of the public technology within the context of the original who are paid to give full-time attention to police ideal, to pursue a "changing, change­ those duties which are incumbent on ev­ less system," that is, to ensure that changes ery citizen in the interests of the welfare in approaches are fixed to a changeless ideal. and existence of the community. 2 II. Statement of the Problem This police ideal can be traced to the birth of Greek democracy. The term police is As industrialized societies develop into etymologically derived from the Greek word more complex urban areas, modes of con­ polis, which refers to an assembly of armed duct, in the very nature of things, may be citizens that took on the responsibility of gov­ subjected to stricter sanctions. Grassroots erning the city-which in effect constitutes enforcement of these sanctions renders im­ perative the ubiquitous presence of the po­ lice. The range of this presence, and the very * Chairman, National Police Commission, the Philip­ purpose thereof, may spawn hostility and pines outright conflict. 4 The "arm's length" at-

37 ------

EXPERTS' PAPERS mosphere could lead to a gap in communi­ portant element, would negate efforts to cation which, in turn, could create mutual so­ comprehend and implement the system as a cial isolation between the protector and those whole. to be protected, that is, between the law en­ If a system designer were to retrieve out­ forcers and the community. The isolation put data from the system, it is axiomatic that further aggravates the hostility, carrying the pertinent data had been programmed into along with it brutality and corruption. 5 The the system in the first place. Applying this vicious cycle is obvious. Attention should to police operations terms, items that can be therefore be focused on this mutual social drawn from the police system are those isolation which is a root cause of communal which previously had been fed into the sys­ apathy vis-a-vis overtures for public cooper­ tem as inputs, in the form of logistics, man­ ation. For without public involvement, police agement, etc. work becomes an exercise in futility. The quality of police operations is largely determined by the social and political tradi­ III. Analysis of the Problem tions in a given area, that is, whether pres­ sure is made to bear on the police to ensure A. Systems Analysis: The Diagnostic Approach integrity and efficiency, or corruption is con­ For maximum results, approaches to the doned within a "tolerable level." As to which problem would have to be couched within the emphasis predominates can usually be context of a behavioral and systems frame­ sensed from the overall state and condition work. Police-community issues would have of law and order in the locality. As the say­ to be addressed within an overall setting that ing goes, "The proof of the pudding is in the encompasses other social systems. This eating." However, the influence of social and methodology would of necessity revolve political traditions on the output is not abso­ around the concept of the 1'Oles of the police. 6 lute, because the police organization, as the It cannot be gainsaid that a social symbi­ central processor, can dilute, as well as dilate, otic relationship is a conditio sine qua non if the .influence of said traditions. law enforcement were to measure up to the Another determinant is organizational con­ challenge of crime. The concept of symbio­ trols, both internal and external. Internal con­ sis is inherent in a behavioral and systems trols include the policies and regulations of approach wherein the individual or collective the department, internal allocations of the conduct of the police, whether by commis­ budget, the administrative attitudes and sion or omission, creates a ripple effect on styles of the command personnel, internal in­ the larger social setting. Conversely, the lat­ spection and supervision policies and stand­ ter impacts on the former, distinctly illustrat­ ards, etc. On the other hand, external con­ ing the interdependence of one on the other. trols cover statutory laws governing the be­ Drawing from the universalities of operat­ havior of the organization, appellate court ing systems, we can project a basic system decisions on search and seizure, etc. design, which could be used as a frame of Still another determinant is the feedbacl? reference in the quest for a deeper insight loop, which, technically, "consists of any por­ into police-public interaction. This basic sys­ tion of a system's output which is utilized as tem could be dissected into five elements, to an input for the purposes of monitoring or wit: (1) the input, (2) the central processor, controlling the system's performance." The (3) the output, (4) the controls, and (5) the degree of organizational success is often feedback loop.7 This basic system would premised on the adequacy of the feedback have to be viewed and implemented in toto, loop. Failure or subpar performance is often because premature concentration on a sin­ due to the fact that the feedback loop had gle element, to the detriment of another im- not been "deliberately designed into the op-

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ADMINISTRATION OF POLICE RESPONSIBILITY eration, is too long and circuitous, or is ram­ police-public isolation can be traced to pant with blockages." "policing practices and organizational struc­ Needless to say, ineffective police perform­ ture." 12 A flashback over space and time ance due to the inadequacies alluded above projects the conclusion that the negative im­ contributes heavily to the disinterest and age of the police, especially in some Third skepticism of citizens towards involvement World countries, is closely associated with in the work of the police. the "initial purposes for which the police Ignoring a systems orientation vis-a-vis were formed and the social character of its police-community relations would mean an recruits." 13 The police recruits were per­ inadequate comprehension of the nature of ceived to have been taken from the destitute, the interaction between the police and the from those who belonged to the lower socio­ public. 8 The police system does not operate economic level. This was aggravated by their in a void, or within a passive context. 9. On being used as instruments of oppression. 14 the contrary, the police system could be lik­ And because they represented the "repres­ ened to a satellite that orbits around a macro­ sive hand of government, the police devel­ system-the community, about which orbit oped a stigma around themselves." 15 other satellites, namely, other governmental To adequately comprehend the police sys­ systems and social systems (e.g., the social tem of many Third World countries, it would welfare system, health care system, traffic have to be construed within the context of safety system, etc.). The influence of one on colonial history and geopolitical realities. the other should be just sufficient to main­ Throughout colonial history, the Third tain a delicate balance of orbital cycles, World has had, to a large extent, a consis­ thereby precluding collisions or conflicts. tently military-type police force, established This, in essence, is the ideal symbiotic rela­ to ensure political control over the colony. tionship that should prevail in police-public Law and order were equated with defense interaction. of the colony against insurgents and rival colonizing powers, and the strategy for this B. Elements of the Problem was the creation of militarized police Police-public "social isolation" constitutes forces. 16 These were direct adjuncts to the an issue in both developed and developing colonial military establishment. In the very countries to such a degree that, for many, the nature of things, these bodies were perceived police remain "faceless and nameless by the citizenry as instruments of oppression creatures" 1°-indeed an acute malady of a over the subjects of the colony. Hence, the social dimension that could spell the differ­ alienation of the public and the concomitant ence between success and failure in law en­ mutual isolation. forcement. This phenomenon of police isolation is not Police-public isolation evidently is confined to Third World countries. It has premised on several factors, to wit: (1) socio­ been a concern in other jurisdictions where political history, (2) perceptions, real or imag­ the police has been an instrument of the elite, ined, of unjust police practices, (3) inward at the expense of the masses. orientation of the police 11 and (4) organiza­ tion. The existence of these elements is ag­ 2. Mutual Perception gravated by the public's simplistic notion of The quest for a profound insight into the role of the police, thus perpetuating the police-public isolation necessitates an ade­ myth of outdated police stereotypes. quate grasp and comprehension of" ... the perspectives, attitudes, experiences, respon­ 1. Socio-political History sibilities and emotions that participants on Case histories subscribe to the thesis tpat both sides bring to encounters." 17 Often, the

39 EXPERTS'PAPERS prejudice is mutual. The police may consid­ slum dwellers as potential criminals. 23 In er the public "symbolic assailants,' i entities countries where a caste system exists, a so­ to be wary of. 18 The public, for its part, often cial gap often prevails between the police and has a superficial impression of the police, the lower caste. 24 In developing countries aptly summarized as follows: where student activism is very pronounced, lack of dialogue and suspicions that go with ... policemen are uneducated and of it create a milieu of hostility. 25 low mentality; ... they are selected for Overaction by going beyond the physical strength and courage alone; parameters of law and policy, often based on ... they are of doubtful honesty and in­ the socioeconomic status of the objects of tegrity; ... they are often rude and abuse, militates against public expectation. 26 domineering; ... they get angry easily; And where police performance does not ... they resort to illegal third degree; dovetail into public expectation, it is natural and ... the only way safe from this tyran­ for resentment and alienation to set in. 27 ny is wealth or pull. 19 b. Police methods Although these subjective notions may not reflect accurately objective reality, they nev­ (1) Police brutality ertheless lend a certain degree of complex­ The adversarial process, often inherent in ion to the relationship between the police and conflict resolution by the police, militates the public. 20 Because of these unfortunate against the conciliation methods preferred by stereotypes, the policeman may feel himself village elders, especially in the Third W orId, a pariah,21 isolated socially from the very in the straightening up of problems among public he has pledged to protect, a public family or community members in rural which paradoxically takes on the form of an areas. 28 It has been aptly observed that the enemy. police" are quite unlike the village elders in Other perceptions were added to the con­ communities where everything is asked in a cept of "colonial police." Worth quoting at friendly manner. There is no slapping or any length is the following: form of rudeness." 29 Police may not be aware of it, but the com­ Besides introducing colonial police, new munity often associates, rightly or wrongly, ideas were introduced, one of which was police brutality with "loud banging on the a notion that an offender was reckless, door" of a person to be arrested. 30 This may dangerous and possibly sick, a person to seem to be just a little matter, but big reper­ be civilized, and a second notion that the cussions do come out of little things. We may rest of the public must be treated with sus­ call them tremendous trifles. picion arose. In summary then the colonial background of the police imparted an im­ (2) An absence of discretion age that alienated the force from non­ Police overaction is often due to lack of ad­ police citizen and created an unpopular in­ equate training in the judicious use of discre­ stitution. This sense oj alienatz'on has sur­ tion. This inadequacy leads to non-use of said vived into post-colonial police organiza­ power of discretion which, in turn, would in­ tions. 22 vite citizen indignation. For exam­ ple, " ... atTests for minor violations are more a. Impa'rtiality in law enjonement likely to provoke citizens to claim that au­ Racial and socioeconomic biases a.re ele­ thority is being exercised arbitrarily and un­ ments of universal experience. In certain justly." 31 In this condition where there is an countries, the police may look at blacks and absence of discernment as to when violations

40 ADMINISTRATION OF POLICE RESPONSIBILITY could be permissible and where performance ically and socially isolated in the countryside is measured by the number of persons the and where "formal and informal social inter­ police arrests, isolation becomes a foregone actions (swimming, games, dances, parties, conclusion. 32 etc.) take place among policemen and train­ ees themselves." 39 In many post-colonial c. The phenomenon of corruption countries, isolation is underscored by the fact Another isolating factor is corruption, that police stay in the barracks. 40 which may be defined as "acts involving the The professional police ethic enjoins ob­ misuse of authority by a police officer in a servance of general impersonal rules that ig­ manner designed to produce personal gain nore personality considerations,41 a fact for himself or for others." 33 Corruption leads which, while essentially sound, may lead to to lack of impartiality and unprofessional carelessness in approach that could lead to methods. It is quite common, in both devel­ unnecessary humiliation and hurt feelings. oped and develf.lping countries, to see or hear Furthermore, pride in the police profession of policemen accepting bribes' 'in exchange at times makes the law enforcers frown on for non-enforcement of laws, particularly performance evaluation made on them by the those relating to gambling, prostitution and public or by entities outside of the police. liquor offenses, fixing of traffic tickets, minor Hence, certain authorities state that there ex­ thefts, and occasional burglaries." 34 Corrup­ ists a correlation between professionalism tion begets isolation, and isolation breeds and isolationism. 42 This statement is mis­ corruption. 35 And so the process goes ad in­ leading. I would qualify the word profession­ finitum, indeed, a vicious cycle. alism. The correlation exists rather between isolation and false professionalism. 3. Inward Orientation Training inculcates in the mind of the po­ 4. Police Organization lice that although he must be in the commu­ Centralization, a factor of organization, has nity, he should not be of the community. He also been linked to isolation. Authorities such is taught to be reserved and not to be too fa­ as Michael Banton, Marshall Clinard and miliar and intimate with the citizenry, one or Daniel Abbott apparently have come to the the other of whom may eventually be the ob­ conclusion that centralization of the police is ject of his responsibility as a law enforcer. 36 a cause of isolation. Clinard and Abbott The police is also taught that being too based their conclusion on a comparative friendly with a citizen could prove to be dan­ study of the police systems in Britain and the gerous or fatal, 37 because many a policeman United States as against the nationalized po­ has been killed or wounded due to overcon­ lice forces of Malaysia, Uganda, and many fidence in the apparent friendliness of the other developing countries. 43 However, I criminal offender. would like to take issue with this conclusion. In the mind of the police is often drilled the It would seem there ar,e certain inaccuracies "self-image of belonging to a social control in the said finding. I will expound further on agency." This state of mind categorizes the this under the subheading, "Centralization public into "symbolic assailants, potential vs. Decentralization" and point out the inac­ criminals," etc. As an offshoot of the need curacies in the said research. for mutual protection, policemen virtually constitute themselves into a fraternity, to the IV. Solutions and Recommendations exclusion of the public. 38 As a concrete example of this isolationist A. A Square Peg in a Round Hole mentality, I could mention the Bramshill Po­ There has been a trend in developing coun­ lice College in England-an institution phys- tries to make wholesale transfers of West-

41 EXPERTS'PAPERS

ern solutions to police problems. Apparent­ which threatens them most directly, the ly this policy has not been adequately suc­ largely opportunist mass crime: crime on cessful. 44 Perhaps one reason is the their own streets, close to home, to families, adversarial nature of certain Western police to themselves-crimes such as theft, burgla­ methods, which go against the grain of in­ ry, criminal damage, etc. 50 digenous attitudes that are more oriented For police professionalism to be genuine, towards reconciliation. 45 organizational and technical sophistication Another "importation" from Western would have to be couched within an equally practices has been the military nature of po­ sophisticated police-pUblic interaction. lice forces, a situation that has spawned many abuses against basic civil rights. I will C. Preventive vis-a-vis Reactive Policing deal on this more extensively under the sub­ Certain police authorities maintain that in heading, "Organizational Structure." an increasingly disordered society, police­ public interaction would of necessity dimin­ B. The Concept of Police Professionalism ish, but this, according to them, can be com­ The incontrovertible solution is to build up pensated for by corresponding increase in a knowledge of what works in policing and police professional resources. This, of what does not, because "so much is taken course, is a myth. As has been aptly stated: on faith." 46 Before, statistical evidence tended to proj­ ... Police resources alone can never be ect a close relationship between the devel­ more than marginal to the control of mass opment of police resources and the control crime, for the prime resources for its con­ of crime. In more recent years, however, re­ trol are certainly to be found outside the lationships between police input and crime police service, in particular, in tne nature control does not have the same degree of va­ and quality of society's structures, rela­ lidity.47 tionships and values. 51 Greater law enforcement efficiency does not necessarily mean greater police effective­ Placing the public in the backseat in favor ness. of a warped concept of "professionalism" has resulted in a shift from preventive polic­ ... the main directions of their (police) ing to reactive policing, which definitely is drive for professionalism have been or­ diametrically opposed to what the leading pi­ ganizational and technical, through force oneers of the present democratic police sys­ amalgamations, regional crime squads, tem wrote: specialist squads, more vehicle patrolling, better information and communication ... the primary object of an efficient po­ systems, increased use of weapons, and lice (is the preventive function) ... to this so on. 48 great end, every effort of the police is to be directed. 52 Collectively, these approaches may have made a substantial impact against organized I would even daresay that police profes­ or "professional" crime, such as terrorism, sionalism, as it is often erroneously defined, but unfortunately, these methods, per se, ev­ is counterproductive vis-a-vis police effec­ idently do not adequately address "non­ tiveness. The downgrading of generalist professional" mass crime, which for the pub­ functions in favor of specialist functions has lic at large, is the crime problems. 49 diminished the traditional value of the police­ Authorities may fear terrorist crimes men "on the ground," so much so that often above all else, but the citizens fear more that the police officers left to make crucial COll-

42 ADMINISTRATION OF POLlCE RESPONSIBILITY tact decisions are those who do not have the for the legitimization of the central gov­ aptitude to be judicious in discretion and ernment by the police through the rela­ judgment, a situatiun that often results in the tionship with the public they serve. extremes of the pendulum of police service: a. Mass-elite integration-In heterogene­ overreaction or underreaction. Many of those ous and geographically separated socie­ responsible for police organization and func­ ties, the police may provide the linking of tions apparently have forgotten the time­ political authority with those who are gov­ proven traditional police ideology that "The erned, particularly in geographical areas most important man is the man on the where the central government is weak. If beat." 53 organized on a national basis and provid­ ed adequate training, the police would D. Role Perception represent a potentially strong force for in­ The confusion attendant upon the concept tegration. The police are spread through­ of professionalism is premised on what may out the length and breadth of the country. perhaps be called a crisis in role perception. They oftentimes serve to link the politi­ I would like to refer to the Potholm Model, cal elites located at the center to the macs­ a paradigm of police roles and functions for­ es at the periphery. mulated by Christian P. Potholm to catego­ b. Modernizing agent-In transitional so­ rize roles and functions that are associated cieties, the police may act as role models with the work of the police,54 to wit: for the public to emulate. For instance, if neatly dressed, well-trained, punctual and 1. .JI.!!aintenance of law and order-This efficient, the policeman may encourage by refers to the traditional primary roles of example the development of these quali­ the police by Western standards to in­ ties. They may likewise serve as the links clude the protection of life and property, between the old, traditional culture and enforcement of laws and the maintenance the new modern central government. of law and order, prevention and detection c. Channel of upward mobility-Police of crimes, apprehension and prosecution work as an occupation may have far more of criminal offenders. appeal in many developing countries than 2. Pamrnil£iary opemtions-This role in (developed ones). This is largely be­ overlaps with functions that are typically cal~se it often shares an elevated social military activities like riot control, the status or material rewards commensurate gathering of intelligence, conducting to those of some bureaucratic or white col­ counterespionage, border patrol opera­ lar jobs. Police work may likewise provide tions, and containment or suppression of a high paying and secure position. local insurgency. d. Rule adjudication-By employing the 3. Regulat01Y aciivities-This role refers traditional discretionary latitude in police to a variety of activities not normally in­ work which is especially true in the de­ cluded in routine law enforcement or in­ veloped world, the police in a sense act ternal security operations. It includes the as quasi-adjudication agents since they issuance of licenses and permits, curren­ make the decisions to act or not to act on cy protection, passport and immigration a given case. control, supervision of trade, management of prisons, making of ordinances, monitor­ 5. Social Services Activities ing of elections and inspection of facilities. To Potholm's paradigm of roles and func­ Generally, the police share this authority tions, I have added a fifth role, that of social with other government agencies. services activities. This role would include 4. Regime l'epresentation-This role calls emergency medical care, assisting the help-

43 EXPERTS'PAPERS less, eliminating physical hazards, giving di­ control, the police often fail to achieve the rections, counselling of juveniles, providing original end, which is "to protect life and legal aid, relief and mercy operations, disas­ property, preserve public tranquility, and to ter control, etc. prevent and detect crime." Without public Of all these roles, the role which ensures cooperation, the police cannot succeed in success in police work is the very role often overall crime control. The Japanese koban most neglected. I am referring to the fifth system has been successful due to the pub­ role which I have added to the paradigm, lic support they get, largely because the beat namely, social service activities, which, more officers perform social service activities, than any other role, attract public participa­ such as visiting the homes in their beat, giv­ tion. This is significant because success in ir.g advice to residents on crime prevention police work is predicated on public involve­ m.ethods and counselling them on other dai­ ment. This is due to the nature of police ly problems, visiting the old and vulnerable work. Police deal only with portions of total residents, etc. It is therefore evident why the crime, those portions discovered by them or means should never be confused for the end. reported by the citizens. 55 Furthermore, it can­ not be gainsaid that only a fraction of crime E. Police Reorganization is solved by sophisticated criminalistics. The There evidently is a need for an overhaul greater bulk in the science and art of crime of police concept and practice. The organiza­ solution depends on the flow of information tional setup would perforce have to focus on from the public to the police. 56 certain aspects, such as "police roles and This neglect of the fifth role, common to functions, police life-style and subculture, both developed and developing countries, is and police professional ethos." 58 due to the failure to draw a line of distinc­ tion between end and means. In the first 1. Police Roles and Functions place, the end for which the police in a dem­ ocratic society was established is "to protect a. The nature of public involvement life and property, preserve public tranquili­ Awareness, especially through experience, ty, and to prevent and detect crime." The of how professional police work depends on roles in Potholm's paradigm are the various the quality of community contact, develops means to the attainment of this end; mainte­ a policeman's maturity in thought and action, nance of law and order is only one of the and motivates him to seek and nurture a means. 57 wholesome working relationship with the Societal development intensifies the de­ community. mands on the time of the police, and many Since crime should be construed more as police officers, in their hierarchy of values, a community problem rather than a police perceive that they have to give priority to problem, it is important to have an accurate what they consider their "first duty," that understanding of what is meant by commu­ is, their role in the maintenance of law and nity involvement in a democracy. At the order, and in the process often set aside their Fourth United Nations Congress on the Pre­ other role, namely, rendering social service vention of Crime and the Treatment of activities. Offenders, a working paper was prepared in It follows therefore that by focusing only order to enable the body to have an overview on the maintenance of law and order, there­ of how "public participation" was under­ by converting what is supposed to be only stood in various countries. The subsequent a means into the end itself, and neglecting findings were quite revealing: social service activities, which is the main at­ traction to get public cooperation in crime ... in all countries where police or cor-

44 ADMINISTRATION OF POLICE RESPONSIBILITY

rectional workers called for public partic­ munity leaders, with a minimum of police ipation, they really meant public support presence. 62 in implementing the policies which they, the official services, had already designed. c. The ideal policeman Alongside this was a fear of too much pub­ The police officer, around whom revolve lic participation which might lead to lay­ community participation in peace and order men telling the professionals what to do. 59 £Unctions, would have to have the public re­ lations qualities of a counsellor, affable yet The police would have to disabuse their reserved, and therefore, not too familiar with minds of whatever false conception of pub­ the citizenry. Recruitment, appointment and lic participation they may have. They should promotion policies would have to be struc­ learn to look at the public not so much just tured around the need to get the best men an agency for the implementation of pre­ for this key job. determined policies, but also a component in a partnership for the formulation and imple­ ... (Police authorities) must certainly mentation of policies. The public, in line with seek ways to give greater priority, recog­ its being a pillar of the criminal justice sys­ nition, and status to contact functions. In tem, or the base thereof, has to have its in­ particular, they must offer better incen­ put at the policy level. 60 It would be easier tives and career prospects f01' good (police­ for the public to accept and implement pro­ men) to stay "on the ground" as neighbor­ grams which they feel to be their own and hood or area officers to develop those sus­ adapted to their needs, and not just the prod­ tained relationships which alone can uct of the proverbial ivory-tower approach. generate effective interaction between po­ Public participation should seep into all lev­ lice and community. 63 els, local, provincial (state, prefectural, etc.) and national. The switch of patrol techniques from foot to mobile has isolated the policeman in the b. OPerational contact car from the public. 64 Mobiles have their Police-public relations should include place in the scheme of things, but they "operational contact, " because the work of should be put in the proper perspective, as community relations departments in police in the example I will give under the subhead­ forces may not include community-based ing "Structured Patrol and Patrol Support." strategies through operational contact. Commu­ Compounding this problematical situation nity relations without successful operation­ is the confining of policemen (who could act al contact means that police pronouncements as foot patrolmen) to reactive roles. As has are not matched with accomplishments. 61 bean aptly pointed out: The success of a police officer as a refer­ ence point for cDmmunity thinking and ac­ ... This strikes at the heart of preven­ tion depends on the range and quality of his tive policing, the concept of the man on personal contacts with community leaders his patch who through sustained person­ and their organization. With adequate con­ al contact makes himself a reference point tacts, he can anticipate and thus defuse po­ for community thinking and action, a cre­ tential challenges to peace and order with­ ative source for community self­ out overreaction, an act which often leads to regulation. 65 charges of oppression and brutality. Through interaction, violence can be prevented, for d. Structured patrol and patrol support example, in militant marches and rallies, In order to maximize existing resources, which could be efficiently stewarded by com- more police officers could be released for

45 EXPERTS'PAPERS purposes of community contact. Available inallaw," should perforce learn to identify manpower could be divided into two groups, themselves with the rest of the citizens. namely, a Structured Patrol and Patrol Sup­ Mass media would be an invaluable asset port. The former comprises Area Teams re­ in projecting this new image, because media sponsible for separate quarters of a town, shapes public opinion. One problem in max­ working on foot on a flexible basis, accord­ imizing positive propaganda for the police to ing to local needs. The latter would provide induce public satisfaction is the fact that re­ vehicle backup or "response" services to the porters have an eye more for sensational Area Teams on a normal shift system. It news rather than routine efficiency; news­ would be advisable that the scheme be sup­ men have a preference for conflicts and is­ ported with a management information serv­ sues. There is a need therefore for police ice using a logging system, information from propagandists or information officers to be which is fed into a minicomputer so that data more dramatic in their presentation of about local crime and local demands on po­ achievements. 7o And if this is not always lice resources can be readily made available possible, reporters will only be too glad to to police officers. 66 do a favor in publishing police news if there The key factors in this scheme are the is rapport between the police and reporters. Area Teams. The grant of more responsibil­ It all boils down to public relations. ity and decision-making to these teams gen­ erate greater commitment, initiative, leader­ f Police-public Telations ship qualities, job satisfaction and commu­ As long as the pohce learns to habitually nity reputation. The Area Teams do more look to the needs of the residents in his beat, than maintain law and order. there will hardly be any problem in police­ public relations. Concern begets concern. ... (The Area Teams help) to create And in this way, many citizens, on their own and strengthen informal social networks initiative, will support the police in crime between parents, teachers and police for control endeavors. With this kind of inter­ the care and control of the young, and in action, the community would be more enthu­ the sphere of detection, (they rely on) siastic in having certain routine functions community contact and information to offloaded unto the community, such as so­ make some notable arrests of men respon­ cial services for drunks instead of police sible for local break·in offences. 67 cells. 71 It is evident, therefore, that the key word e. A new police image to success in police-public relations is sym­ Fear and suspicion of the police, especial­ biosis. ly in Third World countries, can be traced, The image of the police as protector of the to a certain extent, to the "oppressor image" people can be vastly enhanced if social serv­ it had inherited from colonial days. sa There ice activities were looked at by the police as is a perceived need for the police to rid it­ a central function rather than a sideline. Con­ self of this colonial cloak and project a new trary to certain views that coercive and help­ image, that of "a group of citizens perform­ ing roles are contradictory, authority and as­ ing on a regular basis the duty of every citi­ sistance are indeed complementary, as ex­ zen to enforce criminal law," the image of emplified in the roles of responsible parents. "father figure and friend," similar to the "Bobby" of England. 69 g. Certain desirable t?'aits The police, in projecting themselves as "a group of citizens performing on a regular ba­ (1) Impartiality sis the duty of every citizen to enforce crim- Police often have a bias in favor of the well-

46 ADMINISTRATION OF POLICE RESPONSIBILITY

to-do, officials, etc., and against the poor and by the police, the public would have no other underprivileged. Police would have to real­ choice but "between the tyranny of the rul­ ize that professional success and acceptance er, or the tyranny of the ruled." by the community are based on credibility, and that credibility, in turn, is largely an­ (4) Addressing corruption chored on impartiality. 72 Social and political traditions have much Much of the public esteem of the police to do with the problem of corruption, that is, will depend on whether the former can de­ whether pressure is made to bear on the po­ pend on the latter for protection from abuse lice to ensure integrity and efficiency, or cor­ of power by even those in positions of author­ ruption is condoned within a "tolerable lev­ ity in government. el." However, as I earlier pointed out, the influence of social and political traditions is (2) Discretion not absolute, because the police organization, Mental training of the police, especially in as the central processor, can neutralize or making decisions, would have to be vastly minimize the influence of said traditions. improved because a crisis situation often Corruption would therefore have to be ad­ confronts him and he would have to resort dressed from the outside, through public to snap decisions in seconds, for which de­ pressure, and from the inside, through sound fense and prosecutions lawyers would need management. months, or even years, to argue on. 73 If often would be counterproductive to ap­ 2. Police Life-Style and Subculture ply the letter of the law against one who may Central to the problem of police-public re­ have committeed a minor infraction, espe­ lations is isolation, both physical and men­ cially if it be a victimless offense. The judi­ tal, the former through such practices as liv­ cious use of discretion in instances such as ing in police barracks 76 and confining social this would project the humane side of the po­ interaction only to members of the police clan, lice, a matter that cannot but induce appre­ and the latter, through studied cynicism ciation on the part of society. Discretion wherein the police are programmed to think should however be distinguished from dis­ of themselves as a subculture sufficient unto crimination. Discretion seeks to be just, dis­ itself and to be suspicious of the very socie­ crimination to be unjust. ty in which they operate. 77 Frequent interaction, especially through (3) Self-control social service activities, will go a long way Police methods should be restructured to in neutralizing isolation. By peeling away be more reconciliatory rather than adversar­ physical isolation, mental isolation will grad­ ial, that is, the police should first get togeth­ ually crumble. Stopping physical isolation is er the victim and the offender for a possible easier than stopping mental isolation. By settlement outside the purview of the crimi­ starting with the easier act, namely physical nal justice process. association, the other act, that is, mental as­ Furthermore, force should be availed of sociation, becomes all the more easy. only as a last resort, such as when an offender opts for violence or attempts to flee. 3. Police Professional Ethos "Democracy . .. depends on the quality oj It is all right for professionalism to be policing. "74 The nature and character of po­ based on standards independent of person­ lice work necessitates a delicate balance; alities. 78 But the police would have to guard overdoing it would lead to oppression of bas­ against the danger of mixing efficiency with ic freedoms, underdoing it would lead to un­ officiousness-this would be false profession­ bridled license. 75 Without this balancing act alism. Genuine professionalism strikes a del-

47 EXPERTS' PAPERS icate balance between firmness and tact. ments, and initiated instead the policy of Stated otherwise, the police can learn to dis­ drawing from the civilian populace men to agree without being disagreeable. Police au­ enforce law and order. 80 thorities often take things for granted: they The philosophy behind the deference for tell their men to be tactful, but overlook tell­ a civilian police force is premised on the very ing them how to do it. It is tantamount to tell­ nature of things: the police force is service­ ing a person, in a fit of vomiting, to stop oriented, and therefore is structured to take vomiting, without showing him the means to care of all laws and rights; the military, on do it. One simple and proven way for the law the other hand, is mission-oriented, and enfo~ser to be firm but tactful would be to therefore is programmed to achieve the ob­ ask himself the question: "If I were the lay­ jective at all cost, and in the process, may man, how would I like the policeman to ad­ run roughshod over basic human rights, dress me?" This, after all, is the essence of often with thf. use of the instruments of pow­ police-public ~e1ations. er: force and firearms. 81 One need not wonder, therefore, why in jurisdictions 4. Aspects of Organization where the militarized police is paramount, the law enforcers have been isolated from the a. Militarization vs. civilianization popUlace. Because of the excesses of milita­ In confronting police problems, especial­ rized police forces, there is a worldwide ly in Third World countries, there is a per­ deference for a civilian police force, with but ceived need to address the issue at the very a few exceptions. roots thereof, through a structural approach, Historically and essentially, the police sys­ because the problem is logically structural tem has ahvays been civilian in nature. In in nature and origin. 79 The military structure 1820, Sir Robert Peel, the Prime Minister of of the police force, which evolved the soldier­ England, introduced into Parliament a bill police concept, can be traced to colonial which ruled out the use of military force in times. This militarized police phenomenon London in the preservation of peace. When is strong in countries which underwent a England experienced a severe economic de­ colonization period. I would like to mention pression, there was an agitation to call in the some of them, namely, Indonesia, Malaysia, army. This was voted down, because of the India, Nigeria and the Francophone coun­ fear that the use of force would only further tries, such as Algeria and Senegal. These inflame mob passions. What was followed countries, like my country, share a common was the new idea of using uniformed and denominator: they bear colonial police tra­ trained men to constihlte a police force, re­ ditions. In these countries, law and order cruited from people in the community. M­ were equated with defense of the colony and ter thirty years in Great Britain, the practice the militarized police constituted the means spread across the capitals of Europe, and to this end. eventually in the United States. With the advent of independence, through V.A. Leonard, a noted police authority, grant or force, this colonial system has out­ wrote in his book, The Police of the 20th Cen­ lived its relevance, and, as far as these coun­ tury, that it is precisely the "stigma of force tries are concerned, has become rather aca­ on the character of the army, that gave birth demic. Converting the police force into a ci­ to the police as a body of civil officers vilian body dovetails into the classic concept charged with the maintenance of order and of the police, promulgated by Sir Robert Peel public safety in England." George Berkley, of England in 1820, when he swayed the in his book, The European Police: Challenge British Parliament from the proposal to call and Change, said that "In Europe, one of the in the army for law enforcement assign- most striking fearures of the police services,

48 ADMINISTRATION OF POLICE RESPONSIBILITY

apart from being' highly centralized, is that cial and ethnic fragmentation. 84 And even in they are under civilian control." a developed nation, the abundance of re­ Berkley further states that "Contemporary sources can best be maximized through na­ society has long ceased to equate insurrec­ tionalized law enforcement, as what Japan tion and military problems with the mainte­ has proven with its national police force. nance of internal peace and order. It would A word of caution may be proper at this be anachronistic to recede back to a military­ juncture. Top-heavy organizational struc­ directed police which ... history has not vin­ hu'es, redundant bureaucracies and complex dicated. Modern legislations recognize the ci­ lines of communications have created a gulf vilian nature of police functions." The near­ between decision-makers and practitioners universal insistence on a civilian administer­ on the ground. 85 ed police force is due evidently to the peo­ It is therefore important to avoid extremes. ple's unpleasant experience with the mili­ Virtue stands in the middle. States other­ tary. As Berldey put it in his book, The Dem­ wise, a delicate balance would have to be ocratic Policeman, "History provides maintained between the good points of cen­ examples of the military's frequent disregard tralization and decentralization. of the rules of the game." He further writes: ... (the police) will have to review their Military values, in many respects, con­ own policies and organization, balancing flict with democratic values. (Values) as the needs for far greater decentralization equality, participation in power and indi­ of decision-making and far greater devo­ vidual self-determination are suppressed lution of resources to combat local "mass" in a military setting. crime against the needs for greater cen­ The more the police are brought under tralization to combat the crime and disord­ civilian control and suffused with civilian er which have national or international influences, the more these problems will bases-terrorism, fraud, currency offences, diminish. Civilian administration (is) the drugs, art and antique theft, and other warp and woof of the democratic police "professional" areas of crime. 86 force. 82 The city and municipal mayors may have b. Centralization vs. decentmlization a certain degree of authority and operation­ The advocates of localized law enforce­ al control over the police forces in their ment premise their argument on the asser­ respective localities because the local chief tion that local tyranny is better than nation­ executives are accountable for the peace and al tyranny. In a series of public polls in the order of their individual communities. This United States, where local law enforcement would have to be balanced with the national is practiced, the results indicate that civilians character of the police. Japan has been quite rate the federal law enforcement agencies successful in this balancing act. Centraliza­ above those of the state, and state systems tion would have to remain so as to provide above local units. 83 The common perception a buffer for the professional police force from was that human rights are better observed local politics. Mayors often have a tendency where there is a nationalized organizational to exploit the local police as a sort of "pri­ structure. Observance of human rights is an vate army" to perpetuate their political ingredient of public acceptance. ascendancy. In developing nations, strong, central con­ There has to be a body that is above local trol over police functions is a necessity due politics, in order to preclude mayors from to limited resources available for law en­ abuses. A national police organization could forcement and nation building, and the so- effectively insulate the police force from 10-

49 EXPERTS' PAPERS cal politics. Furthermore, a national police with centralization, was neutralized with a organization could ensure a uniform and police structure that revolves around the standardized system of administration, selec­ koban or police box, and with orientation and tion, promotion, compensation, benefit, training in discharging the functions of a training and equipage. A national police or­ community counsellor. The salutary effect on ganization would not be hampered with po­ the Japanese citizenry was evident in a pub­ litical and territorial boundaries, and would lic opinion poll conducted in Japan in 1981. be unimpeded by rivalries, conflicts and jealousies. This would mean enhanced mo­ To the question "What do you do if you bility and striking capability. Poor rural po­ have some information concerning lice stations normally cannot afford sophis­ crime?," 51 percent answered that they ticated training in scientific crime detection would co-operate with the police, and 31 and investigation and the acquisition of ad­ percent answered that they would co­ vanced equipment; a national police organi­ operate with the police on request from zation could provide these. 87 the police. As ... shown by this poll, most Centralization has been linked to isolation. of the Japanese people have confidence in Authorities such as Michael Banton, Mar­ the police, which is the most valuable asset shall Clinard and Daniel Abbott apparently in police work . ... " 90 have come to the conclusion that centraliza­ tion of the police is a cause of isolation. The availability of the Japanese police to Clinard and Abbott based their conclusion on discharge their functions as community a comparative study of the police systems in counsellors is based on their ubiquitous pres­ Britain and the United States as against the ence in the grassroots level. This ubiquitous nationalized police forces of Malaysia, Ugan­ presence is, in turn, due to the nationwide da, and many other developing countries. 88 network of police boxes (many of the urban As I earlier stated, I would like to take issue police boxes are within ten minutes, walk­ with this conclusion. ing distance, from each other) and the high I believe we should draw a line of distinc­ ratio of police to population, which is about tion between "cause" and "predispositive 1:552. 91 Therefore, centralization, in a way, factor." Empirical data, other than those is a neutral quality: it may lead to association from which Banton, Clinard, and Abbott or to isolation, depending on how it is used­ drew their conclusion, make manifest that or abused. centralization per se is not a cause of isola­ To recapitulate, police-pUblic interaction tion; it may be a pre dispositive factor, which and police accountability can be intensified however can be neutralized by structural in­ through organizational restructuring. A na­ novations and social orientation. If we were tionalized force has certain distinct advan­ to follow the line of reasoning in the conclu­ tages, among which are (a) better opportu­ sion which I am contesting, then we would nities to get the best recruits nationwide, (b) arrive at another patently erroneous conclu­ uniformity in standards, (c) more efficient ex­ sion, that is, that the national police of Ja­ ecution of discipline, and (d) the linking of pan are more isolated than, for example, the citizen bodies, involved in police-public in­ local police of the United States. Only last teraction, to the national police headquarters, year, a group of police experts from the Unit­ a condition that will augment the former's ed States visited Japan and in effect ob­ effectiveness. 92 served that there is better rapport between the police and the public in Japan than that 5. Police Accountability and Quality Control in the United States. 89 In any organization, quality control de­ Isolationism, which has been associated pends on a responsible entity to which an op-

50 ADMINISTRATION OF POLICE RESPONSIBILITY

erating arm should be accountable, especial­ F The Proper Place of Technology ly if the latter's performance falls below In some developing countries, emphasis standard. Often, the police acts as if his dis­ has been made on advanced police technol­ cretion is subject to no appeal, giving rise to ogy, through more sophisticated weapons the impression of police absolutism. 93 and computerized communicatiC;:Hs. Technol­ ogy, however, is a two-faced cDin. In the The nature of (police) authority is such hands of oppressive law enforcers, technol­ that it must be accompanied by account­ ogy can be counterproductive and could cre­ ability that insures that its exercise is con­ ate a backlash, such as when modern sistent with the limits defined in its origi­ weaponry and devices are used to ruthless­ nal creation ... the unique relationship be­ ly sow fear in the citizenry. On the other tween the people and the police require hand, technology is beneficial if placed in the that the police be answerable to the pub­ hands of responsible police officials, sensi­ lic if their authority is to be respected and tive to the public pulse, and who can truly accepted by the people. 94 act as counsellors of the community. A concrete example would be the koban Much of organized crime cannot exist police. In order to preempt crime, police without corruption at various levels of the po­ strategists have to plan ahead. And they can lice. Public confidence in the police, or the do this if they are regularly kept up-to-date lack of it, could be taken as a gauge of the on the crime situation in a given area. The degree of such corruption. To preclude the police from the various kobans are able to danger of an internal cover-up which often integrate and dovetail the information they happens when discipline is confined to an in­ gather from different sources due to a sophis­ ternal mechanism, there is a felt need for a ticated communication system. But the po­ separate and independent entity to "police lice are able to utilize their advanced com­ the police." 95 This quality control could neu­ munication facilities only because of the ac­ tralize or minimize corrupticn and therefore tive involvement of the citizenry in feeding be instrumental in maintaining or restoring them information. Police without the com­ faith in the police. munity would be like fish outside of water. It would also be helpful to set up village It cannot be gainsaid therefore that technol­ or neighborhood boards which could act as ogy, without responsibility, would lead to monitoring bodies to ensure that police meth­ frustration. ods are consistent with legal and moral re­ Since European society has become less quirements. A board should consist of re­ communal in nature and family structures sponsible senior and elderly people, of have to a certain extent been "loosened," po­ known probity, from the community and the lice methods in certain areas tend to over­ government, whose main functions will be rely on modern technology, ignoring the to harmonize relations between the police "historical truth" that technology minus com­ and the public and to help pertinent govern­ munity equals futility. ment bodies tasked with the control of po­ lice misconduct. 96 VI. A Philippine Situationer Mass media, due to its unique position ena­ bling it to expose anomalies, is a vital factor Historically, the Philippines has had a in compelling police accountability to the colonial police tradition, thereby rendering public,97 which in the first place is what the latter militarized, militarization of which keeps the police force in operation-through carried with it centralization. Since the the taxes it provides the government. colonial police was designed to ensure the ascendancy of the colonizer, the people, in

51 EXPERTS'PAPERS the velY nature of things, were subject to the To ensure police accountability and quali­ perception that the police was an instrument ty control, the government has embodied in of oppression, a condition that induced mutu­ the Constitution a collegial body, namely, the al isolation. National Police Commission (NAPOLCOM). The Philippine government is addressing The juxtaposition of the National Police this issue as of this moment. As I speak here Commission vis-a-vis the proposed Philip­ before this body, there is now pending in the pine National Police is similar to that of halls of the Philippine Congress, a bill to cre­ Japan's National Public Safety Commission ate the new Philippine National Police in relation to the National Police Agency. (PNP), which seeks to free the policy system Public involvement in police matters has of its military structure, while at the same been institutionalized through the Peace and time retaining the aspect of centralization­ Order Council, which permeates the city/mu­ without prejudice to a certain degree of au­ nicipal, provincial, regional, and national lev­ thority that the city and municipal mayors els. The Council, which is composed of the may exercise over the police in their respec­ top government officials and community tive localities. The civilianization of the Phil­ l!=aders, has the National Police Commission ippine police is a giant step in the right di­ as its action arm. The National Police Com­ rection. mission discharges this function through the Another problem related to isolationism of Technical Panel on Crime Prevention and the police in the Philippines is a certain cul­ Criminal Justice, a body composed of repre­ tural trait of Filipino politicians. The latter sentatives from the five pillars of the crimi­ have a propensity to hire thugs and bullies nal justice system, namely, law enforcement, as bodyguards because they believe, rightly prosecution, judiciary, corrections and the or wrongly, that this type of bodyguard community, with the National Police Com­ would instill fear in said politicians' enemies. mission as the funding and lead agency. A After such a politician wins in an election, concrete achievement of this interaction was the first thing the bodyguard will ask the pol­ the successful completion in the Philippines itician is to make the former a policeman. the other month, in December, of the Unit­ This is the ambition of such types because, ed Nations Asia and Far East Institute for before they became bodyguards and were the Prevention of Crime and Treatment of still plain neighborhood thugs and bullies, Offenders (UNAFEI) Joint Seminar on the they had felt the power of the police who had topic, "Crime Prevention and Treatment of often gone after them. Offenders," organized by the Government of The government is addressing this issue Japan (through the UNAFEI) and the Gov­ by dismissing or suspending many of these ernment of the Philippines (through the police misfits. Under the PNP, many more Technical Panel on Crime Prevention and may be removed through a retirement sys­ Criminal Justice), with the vast support of tem with reasonable benefits. the Japan International Cooperation Agen­ To screen out the non-qualified applicants, cy (JICA). This international undertaking of the government enjoins that all applicants both governmental and community repre­ first pass qualifying exams, psychiatric sentatives initiated the further rationalization checks and background investigation. The of the criminal justice system in the Philip­ best are sent to the Philippine National Po­ pines, in order to provide a context that lice Academy, the premier school in police would enhance nationwide socioeconomic science. To attract better people to the serv­ development, which the government is con­ ice, the PNP scheme seeks to institutional­ fident could be implemented this year, large­ ize a career system that will ensure job sat­ ly through another international effort, the isfaction. polysectoral Mini-Marshall Plan.

52 ADMINISTRATION OF POLICE RESPONSIBILITY

VII. Conclusion not for ambition, or bread ... but for the most sacred heart" of those whom we The time may have come in some coun­ serve ... 100 tries for a change in the concept of the role of the police, from an instrument of the pow­ Notes er elite, otherwise referred to as the "estab­ lishment," to service for all citizens. This is 1. Paul Riege, Kleine Polizei-Geschichte (Institut due to the growing perception that police ef­ Hiltrup, 1959), p. 27. fectiveness, to a large extent, is determined 2. Glyn Hardwicke, "Who Should Control the Police?," The Police Journal, Vol. LI. No.3 by an entity outside the police, namely, the (October 1978), pp. 353-354. Nota bene: The public. 98 This is in line with the fundamen­ Ninth Principle is the last in a set of nine and tal truism that a police force which operates embodies the essence of the other eight. outside the context of community coopera­ 3. William Clifford, "Policing a Democracy," Po· tion operates in a vacuum. And from a vacu­ lice Studies. Vol. 6, Nov. 2 (Summer 1983), um, nothing much can be expected, for as p.3. the philosophical maxim goes, "Nothing 4. Joab M.N. Wasikhongo, "The Role and Char­ comes from nothing." acter of Police in Africa and Western Coun­ In the pursuit of this commitment, the po­ tries: A Comparative Approach to Police Iso­ lice must strike a delicate balance between lation," Intemational Joumal of Criminology the rights of the citizenry to protection of and Penology, 1976, 4, p. 383. "life, liberty and property," on the one hand, 5. Albert J. Reiss, The Police and the Public (Princeton: Princeton University Press, 1971), and, on the other, the rights of the accused n. pag. James Wilson, Varieties of Police Be­ to "due process and his proverbial day in havior (Cambridge, Mass.: Harvard Univer­ court." The British Commission on Police sity Press, 1968), n. pag. described this in 1962 when it issued the 6. Thomas A. Johnson, Gordon E. Misner, and statement: Lee P. Brown, The Police and Society: An En­ vironment for Collaboration and Confrontation The Police should be powerful but not (New Jersey: Prentice-Hall, Inc., 1981), p. 4. aggressive; they should be efficient but 7. Ibid., p. 8. not officious. 99 8. Ibid., p. 12. 9. Ibid., pp. 4 and 12. Success in policing is predicated on police 10. D. Bayley, The Police and Political Develop­ mentinIl1dia (New York: John Wiley & Sons, effectiveness. Police effectiveness, in turn, 1969), p. 219. is premised on public acceptance. Finally, 11. Wasikhongo, op. cit., p. 384. public acceptance is founded on the ideal, as 12. Ibid., p. 385. promulgated by the pioneers of the modern 13. Ibid., pp. 385-386. policy system, that is, a balance between 14. Egon Bittner, The Functions of the Police in maintenance of law and order, on the one Modem Society (Maryland: NIMH, 1970), pp. hand, and, on the other, the conduct of so­ 6-7. cial service activities. Indeed, the new, 15. Wasikhongo, op, cit., p. 386. emerging policeman is, in a way, "All things 16. Robelt Foran, The Kenya Police (London: Hale to all men." T.G. Lamford put it this way: Limited, 1962), n. pag. 17. D. Bayley & H. Mendelson, Minorities and the Police Confrontation in America (New York: What is increasingly clear is that if we The Free Press, 1969), n. pag. were to lose the battle for the hearts and 18. Jerome Skolnick, Justice Without Trial: Law minds of the people whom we serve, then Enforcement in a Democratic Society (New policing would become a very different York: Wiley Interscience, 1966), p. 45. function indeed. Truly then "we labour 19. D.G. Gourley, "Police Public Relations," 219

53 EXPERTS' PAPERS

Annals (1954, 5), pp. 135-142. 1 (Spring 1981), p. 3. 20. Wasikhongo, op. cit., p. 384. 48. Loc. cit. 21. William A. Westley, "Violence and the Po­ 49. Loc. cit. lice," The American Journal of Sociology (1953, 50. Loc. cit. 59), p. 35. 51. Ibid., p. 4. 22. Wasikhongo, op. cit., p. 386. 52. Loc. cit. 23. Skolnick, op. cit., p. 81. 53. Ibid., pp. 3-4. 24. D. Bayley, The Police and Political Develop­ 54. Cicero C. Campos, The Role of the Police in ment in India (New York: J0hn Wiley & Sons, the PhilipfJines. A Case Study from the Third 1969), n. pag. World (East Lansing, Michigan: Michigan 25. Ibid., n. pag. State University, 1983), pp. 238-241. 26. Wasikhongo, op. cit., p. 387. 55. Clifford, op. cit., p. 9. 27. Loc. cit. 56. Loc. cit. 28. Ibid., p. 393. 57. Brown, op. cit., p. 4. 29. M. Clinard & D. Abbott, Crime in Developing 58. Wasikhongo, op. cit., p. 394. Countries: A Comparative Perspective (New 59. Clifford, op. cit., p. 12. York: John Wiley & Sons, 1973), p. 220. 60. Ibid., pp. 12-13. 30. Wasikhongo, op. cit., p. 388. 61. Brown, op. cit., p. 7. 31. Reiss, op. cit., p. 57. 62. Ibid., pp. 6-7. 32. Wasikhongo, op. cit., p. 387. 63. Ibid., p. 8. 33. Herman Goldstein, Police C017'uption: A Per­ 64. Ibid., p. 4. spective on Its Nat/we and Control (Washing­ 65. Loc. cit. ton, D.C.: Police Foundation, 1975), p. 31. 66. Ibid., p. 5. 34. American Commission on Law Enforcement 67. Ibid., pp. 5-6. and Administration of Justice (1967), p. 208. 68. Wasikhongo, op. cit., p. 392. 35. Wasikhongo, op. cit., p. 389. 69. Delmar Karlen, Arzglo-i',merz'uln Crimil1alJus- 36. Maureen Cain, Society and the Policeman's Role tice (Oxford: Clarendon Press, 1967), p. 14. (London: Routledge & Kegan Paul, 1973), p. 70. Clifford, op. cit., p. 19. 8. 71. Ibid., p. 20. 37. Skonlick, op. cit., p. 58. 72. Ibid., p. 17. 38. Wasikhongo, op. cit., p. 390. 73. Ibid., p. 9. 39. Loc. cit. 74. Ibid., p. 14. 40. Cyprian Okonkwo, The Police and tile Public 75. Loc. cit. in Nigeria (Lagos: African University Press, 76. S. Mitchell, "The Policeman's Wife-Urban 1966), n. pag. Clinard & Abbott, op. cit., n. and Rural," Police Journal, 1975, 48 (1), pp. pag. 79-88. Okonkwo, op. cit., n. pag. Clinard & 41. James Wilson, Varieties of Police BehaviOi' Abbott, op. cit., n. pag. (Cambridge, Mass.: Harvard University 77. Harlan Hahn, "A Profile of Urban Police," Press, 1968), n. pag. Law a'?d Social Problems, 1971,36,449-466. 42. John Clark, "Isolation of the Police: A Com­ Clifford, op. cit., p. 8. parison of the British and American Situa­ 78. James Wilson, op. cit., n. pag. tions," The Journal of Cdminal Law, C1'imi­ 79. Cicero C. Campos, "The Constitution within llology and Police Science, 1965, 56 (3), pp. the Context of United Nations Guiding Prin­ 307-319. ciples in Crime Prevention and Criminal Jus­ 43. Michael Banton, The Policeman in the Com­ tice," Criminalfustice Jozental, Vol. VII, No. munity (London: Tavistock, 1964), p. 219. 1 (January-April 1987), p. 9. Clinard & Abbott, op. cit., p. 222. 80. Ibid., p. 10. 44. Wasikhongo, op. cit., p. 391. 81. Cicero C. Campos, "Philippine Policing: Re­ 45. Ibid., p. 393. cent Developments," The Police Chief (No­ 46. Clifford, op. cit., p. 16. vember 1988), p. 84. 47. John Brown, "The Functions of Communities 82. Cicero C. Campos, "The Philippine Police in Police Strategy," Police Studies, Vol. 4, No. System within the Third World Context,"

54 ADMINISTRATION OF POLICE RESPONSIBILITY

Criminal Justice Journal, Vol. VI, No. 3 92. Wasikhongo, op. cit., p. 394. (September-December 1986), p. 30. 93. First West African Conference in Compara­ 83. Christian P. Potholm, "The Multiple Roles of tive Criminology, 1972, p. 124. the Police as Seen in the African Context," 94. The National Advisory Commission on Crim­ The Journal of Developing A1·eas, III (January inal Justice Standards and Goals, United 1969), p. 155. States, n. d., n. p., n. pag. 84. Loc. cit. 95. Clifford, op. cit., p. 10. 85. Brown, op. cit., p. 4. 96. Wasikhongo, op. cit., p. 393. 86. Ibid., pp. 7-8. 97. Clifford, op. cit., p. 13. 87. Campos, op. cit., pp. 30-31. 98. Brown, op. cit., p. 4. 88. Clinard & Abbott, op. cit., p. 222; Banton, op. 99. Police, The New Encyclopaedia Britannica, cit., p. 219. 15th ed. (Chicago: Helen Hemingway Benton, 89. Manila Bulletin, November 6, 1988, p. 4. Publisher, 1979), p. 325. 90. Quoted by Yasuo Shionoya, "The Police of 100. T.G. Lamford, "The Police College, Bram­ Japan: Its Philosophy and Key to Success," shill: Towards a Coherent and Comprehen­ Criminal Justice Jou1'11al, Vol. VIII, No.3 sive Command Structure Training," Police (September-December 1988), p. 5. Studies, Vol. 1, No.1 (March 1978), n. pag. 91. Loc. cit.

55 Integration, Diversion and Resocialisation in German Criminal Procedure

by Heinrich Kirschner*

The various phases of criminal proceed­ man criminal procedure law. When investi­ ings, from the commencement of investiga­ gations are completed, the prosecution serv­ tions up to the completion of enforcement of ice brings the public charge, or alternatively sentence, are nowadays frequently not sep­ discontinues proceedings because the suspi­ arate from one another, but interwoven in cion of an offence has not hardened or there many respects. The constantly growing is some procedural impediment. If charges workload of the criminal justice system, re­ are preferred, then in the intermediate sulting, for example, from the petty crime of proceedings-the second stage-the court of shoplifters on the one hand, and terrorism jurisdiction decides whether the main pro­ and narcotics crimes on the other, has forced ceedings should be opened. In these main the legislator to rationalise criminal proceed­ proceedings-the third stage-judgment is ings. This has now been joined by the passed at the trial on the guilt or innocence modern notion of diversion-that is, the at­ of the accused. If the latter is given a bind­ tempt to make, via informal disposal of crim­ ing conviction, there follows the fourth and inal proceedings, a better contribution to the last stage, the formal procedure of enforce­ resocialisation of the offender than would be ment. possible with the social stigma of a convic­ Legal reality has moved a long way from tion. 1 This also relieves the pressure on the this model. Numerous investigatory proceed­ prison system. We shall see, taking exam­ ings in which grounds for suspicion are found ples from German criminal law and the Ger­ to exist against the accused, no longer result man law of criminal procedure, how these in charges. Rather, the department of pub­ trends are producing a particular develop­ lic prosecution has been given extensive ment in the law-namely, new forms of the rights to diverge from the legality principle integration of criminal justice administration. and desist from bringing the public charge. To make things clearer here, let me just One result of this is that procedural problems give a brief outline of classical German crim­ which, in the classical system are reserved inal procedure by way of contrast to the new for the main proceedings, are brought for­ phenomena. The course it follows can be di­ ward to the investigatory proceedings, so vided into four distinct stages. In the inves­ that the latter often anticipate the main pro­ tigatory proceedings, the police and the pub­ ceedings. In similar fashion, the court is em­ lic prosecution service establish the facts, powered to refrain in the main proceedings both incriminating and exonerating circum­ from passing judgment on the guilt of the ac­ stances. They are obliged to take action in cused, and instead, to discontinue proceed­ response to all prosecutable offences, this le­ ings. The fourth procedural stage­ gality principle being one of the bases of Ger- enforcement of the sentence-today goes far beyond a mere enforcement of the sanction. As we shall see, after the main hearing (i.e. * Director in the Federal Ministry of Justice Responsi­ trial), "post-proceedings" begin in which de­ ble First for Administration Subsequently for Crimi­ cisions are taken on alternatives to enforce­ nal Law, Federal Republic of Germany ment of sentence. 2 Thus all the procedural

56 GERMAN CRIMINAL PROCEDURE segments are interwoven with the other. court's consent is not required where the This integration of the adminislration of damage caused by the deed is slight. Here, criminal justice, possibly going beyond the then, we find the insignificant consequences immediate area of the prosecuted offence, is of the offence mentioned in the original sec­ something I would like to look at closely. tion 153 of the Criminal Procedure Code The oldest example is the well-known dis­ cropping up again. In practice, the dividing continuation on the ground of insignificance line today is round about DM 50. 7 provided for in section 153 of the German If the department of public prosecution has Code of Criminal Procedure (Strafprozess­ brought charges, the court, in: the interme­ ordnung-StPO). It was introduced as long diate and in the main proceedings, may dis­ ago as 1924 by a statutory order issued by continm' the hearing of the case if the the Reich Minister of Justice, Emminger, prosecuting service and the accused give and concerned what used to be called "in­ their COn!ient. This possibility, too, is of great fractions" (Ubertretungen) and also "minor practical significance. What is interesting offences" (Vergehen). If in the case of a here-and this is different from the investiga­ minor offence the guilt of the perpetrator tory stage-is the fundamental requirement was slight and the consequences of his deed to obtain the consent of the accused. Under insignificant, then the department of public the law, he has a right-once charges have prosecution could, with the consent of the lo­ been brought-to insist that a main hearing cal court judge, desist from bringing the pub­ be held, although of course, this also entails lic charge. If charges had already been the risk of a conviction. brought, then-in the circumstances just A court order for discontinuation can have described-the position was reversed and the a limited final and binding character. Should court, with the consent of the prosecuting it later became clear, however, that for ex­ service, could discontinue proceedings. 3 ample the deed in question was not a minor Today this provision makes rather finer offence, but really a major one, then new distinctions. The prerequisite for non­ criminal proceedings can be opened. 8 prosecution is that the guilt of the offender This discontinuation of proceedings con­ "would be" viewable as slight. Couched in tained right from 1924 onwards the subse­ German in the subjunctive ("ware"-"would quently developed notion of-simple­ be"), this provision permits the deduction rliversion. 9 In the investigatory proceedings, that it is not necessary for there to have been in the intermediate proceedings and in the a finding of a culpable commission of an main proceedings, the court and the offence-an initial suspicion suffices. 4 If, in prosecuting serviC'e work together to bring addition, there is no public interest in prose­ the case to an informal close. This also as­ cution, the prosecuting service may dispense sumes, however, an integration of the differ­ with it. Public interest today is seen in rela­ ent procedural phases. tion to the punitive intent behind the substan­ Already at the investigatory stage, the tive criminal law-in other words, consider­ question can be looked into of whether cri­ ations of both special and general deterrence teria of special or general prevention call for can establish public interest in prosecution. 5 a penal sanction. In the main proceedings, Also needed is, lastly, the consent of the on the other hand, the court can refrain from court; thus both court and prosecuting serv­ returning a finding of guilty and discontinue ice must make the same assessment of the the proceedings. facts. 6 The next amendment to the law which is For simple minor offences against the of significance for 0l!r present study came property of others, however, an exception is in 1951. I am talkng here about the substan­ laid down. In the case of such crimes, the tive law possibility of discharge, i.e. decid-

57 EXPERTS'PAPERS

ing against the imposition of punishment. bility has existed since 1957. 15 In the case German criminal law, for a number of of certain offences, enumerated in law and offences, enables the court to pass a judg­ concerning state security, such as high trea~ ment ordering discharge. This is possible, for son and treason, the Federal Prosecutor Gen­ example, where persons inflict bodily inju­ eral can, with the consent of the Higher Re­ ries on one another. 10 Another example is gional Court, refrain from instituting prose­ where someone given the care of another cution. The prerequisite here is that the person sexually abuses that person; here, alleged offender has performed some sort of too, the court can refrain from imposing a compensatory act, i.e. shown active regret. penalty if the person placed under care has For as long as ht: is unaware that his offence behaved in such a way as to render the has been discovered, it suffices for him to "wrongness" of the act slight: for example, have made a contribution to averting a he or she has made the sexual approach. 11 danger from the state. Following discovery, Additionally, the General Part of the German the accused must completely reveal every­ Criminal Code (Strafgesetzbuch-StGB) today thing he knows about the offence. Where contains a general rule: if the prison sentence these requirements are met, the Federal incurred does not exceed one year, the court Prosecutor General and-after the p>:eferring may order a discharge, provided that the con­ of charges-the Higher Regional Court with sequences of the offence for the offender are his consent, are permitted to discontinue pro­ so severe that the imposition of a penalty ceedings. Here, too, we find an interweav­ would obviously be wrong. 12 ing of investigatory and main proceedings in In all these cases, it would not be in the the interests of clearing up the case. interests of procedural economy to have a Following this look at the political crimi­ main hearing. In 1951, therefore, the legis­ nallaw, we can now go back to the begin­ lator empowered the public prosecutor­ ning, to discontinuation on the ground of in­ subject to the consent of the court-to refrain significance. The latter was considerably in­ from bringing the public charge. 13 Where creased in scope by a new provision charges have already been preferred, the introduced in 1974. Up to now, we have only court, up to the start of the main hearing, a,"1d familiarised ourselves with regulations sim­ with the consent of the public prosecutor and ply permitting the prosecuting service and the accused, can discontinue the proceed­ the courts to refrain from criminal proceed­ ings. This serves the purpose of diversion. ings. The new sec. 153 a StPO gives them The accused is spared the strain of a trial in more extensive powers: public; the question of his guilt remains open. Where the degree of guilt is slight, the de­ Thus the provision meets not only a proce­ partment of public prosecution can, in the dural economy objective, but also a criminal case of minor offences, provisionally desist policy one. 14 Once again, we find here that from preferring charges and require the al­ there has been a process of integration in the leged offender to carry out certain require­ criminal justice system, Investigatory, inter­ ments (Auflagen) and directives (Weisun­ mediate and main proceedings are intert­ gen). The latter are, under the law govern­ wined. Already at the stage of conducting in­ ing reparation for the damage caused by the vestigations, the issue can be examined offence, payment of a sum of money, com­ whether the imposition of a punishment is munity service and the meeting of mainte­ necessary. In the main proceedings, there is nance obligations. If one of these measures, the possibility of refraining from a convic­ or several combined, are such as will extin­ tion. guish public interest in prosecution, the pub­ We see something similar in the area of lic prosecutor can provisionally discontinue what is termed "active regret"; this possi- proceedings and lay down a date by which

58 GERMAN CRIMINAL PROCEDURE

the requirements and directives must be sat­ generally viewed as reasonable. 20 isfied. The consent of the accused il3 re­ It remains questionable whether public quired, as is also that of the court unless it prosecutors are here exercising the power of is a matter of trivial property offences. This jUdicature because the consent of the court exception as regards the consent of the court is not required in all cases. Penal sanctions is identical for both cases of discontinuance­ may only be imposed by a judge, and it was under section 153 StPO and section 153 a for this reason that the Federal Constitution­ StPO. al Court declared null and void the compe­ Specific requirements and directives can tence once enjoyed by German tax offices to be altered at a later date, and the time-limit fix penalties in tax offence proceedings. 21 set for fulfilling them can be extended once. From this it is inferred that section 153 a If the accused does what is required of him StPO is also unconstitutional. 22 Such a view, within the stipulated period, the proceedings however, would only be correct if the re­ must be finally discontinued. 16 The deed can quirements and directives are penalties with­ no longer be prosecuted as a minor offence, in the meaning of the substantive criminal and to this extent, the principle of "ne bis law. And here we are getting to the heart of in idem" applies. 17 the problem: are the requirements and direc­ This power held by the prosecuting serv­ tives criminal sanctions and as such the ex­ ice again has a mirror image. The court can clusive preserve of the judge? The payment proceed in corresponding fashion up to the of a sum of money-just to give an end of the main hearing-with the consent example-is felt by the accused to be dis­ of the public prosecutor and the accused. IS agreeable, and ought to be felt as such. Fur­ These new-style proceedings have given thermore, it is intended to serv~ as satisfac­ rise to much discussion in the legal policy tion for the wrong perpetrateci, and this is field in the Federal RepUblic of Germany. why requirements and directives are gener­ Critics have come out in particular against ally viewed as sanctions. 23 But are they sanc­ the discontinuance possibilities available to tions of a penal or penal-like character? the public prosecutor. They complain that Although discontinuance means that a set the accused is put l:.nder pressure, and that of proceedings cannot then pass to a superi­ offenders in a strong financial position are or instance, the Federal Court of Justice still placed at an advantage. Most important of had an opportunity to decide this issue. The all, so they claim, there is a breach here of case was as follows: a lawyer in divorce pro­ the Constitution, which entrusts the power ceedings had behaved in prohibited fashion of judicature to the judges, and not to the by negotiating directly with the opposing public prosecutors. 19 Although the time party without informing her lawyer. From available makes it impossible for me to take this there followed the suspicion of a crimi­ a full look at this criticif:,ffi, I would sti1l1ike nal offence-betrayal of a client. 24 The crim­ to consider the main points of contention inal proceedings on this charge, however, briefly. As regards the allegedly unreasona­ were discontinued by the Regional Court un­ ble pressure brought to bear on the accused, der section 153 a StPO following payment it should be pointed out that the proceedings of DM 6,000. Subsequently, a professional repose upon the accused's meeting the re­ court-that is, a disciplinary court-ordered quirements of his own free will. The "pres­ the lawyer to pay an administrative fine of sure" is less than that felt by an accused who DM 2,500 for culpable violation of his pro­ must decide whether to lodge an objection fessional duties. It was against this that the to a written penalty order, in other words, lawyer directed his appeal on a point of law, decide on whether he wishes to stand trial maintaining that there had been a breach of in public. The latter situation, however, is the general prohibition of double jeopardy. 25

59 EXPERTS' PAPERS

This course of proceedings then gave the be spared-through the new procedure-the Federal Court of Justice, as the supreme pro­ risk of sinking further into crime. This crim­ fessional court for lawyers, an opportunity inal policy aim was of greater importance to interpret section 153 a StPO. The appeal than the simplifying effect produced for the on a point of law was unsuccessful. The Fed­ system of criminal justice, the Court also eral Court of Justice emphasised that where added. 28 So whereas the Federal Court of discontinuance was made under section 153 Justice emphasised the submission of the a StPO, there was no finding of guilt. In ad­ offender, Riess stresses the contract-like dition, any requirements and directives im­ agreements in this type of procedure, which posed were met voluntarily-or alternative­ displays a "cooperative termination of pro­ ly, were not met. For these reasons, so the ceedings." Quite rightlY, he also points out Federal Court of Justice continued, it was not the links with the plea-bargaining of Anglo­ possible to find that the requirements and American procedural law. 29 directives were of a penal-type character. Section 153 a of the German Code of Crim­ These arguments of the Federal Court of inal Procedure, in particular subsection 1 lay­ Justice with regard to section 153 a of the ing down the right of the public prosecutor Code of Criminal Procedure ought, I think, to discontinue proceedings, is one particular to remove the foundation from any allegation manifestation of diversion-to be precise, of of unconstitutionality. 26 intervening diversion. Here, too, the inten­ In everyday practice, this new institute for tion is to avoid the stigma which attaches to bringing proceedings to a close has establish­ a previous conviction, and to make the ed itself to a surprising degree. According chances of social adjustment as favourable to the latest research findings of Professor as possible. 30 To this end, elements of the Heinz of the University of Constance, one investigatory and of the main proceedings can assume a figure of 211,000 discontinu­ are drawn together. Thus the examination ances under section 153 a StPO for the year of the need for a penal sanction is brought 1986. To these can be added a further forward to the investigatory stage. Since ad­ 211,000 discontinuances on the ground of ditionally the fulfilment--albeit voluntary-of only a slight degree of guilt under section 153 the requirements and directives prefigures StPO, or because a discharge was granted the final discontinuance, we even find fea­ pursuant to section 153 b StPO. Thus for the tures of enforcement in the widest sense be­ general criminal law, the ratio of informally ing included here. In short, then, we are look­ sanctioned to formally sanctioned persons is ing at a new kind of integrated procedure, 42 percent to 58 percent. 27 which over a broad area has taken the place It is worth giving some thought to the of the classical criminal proceeding with its question of where this new legal institute is four stages. to be situ~ted in the law of criminal proce­ Certainly, further developments here will dure. The Federal Court of Justice, in anoth­ need to be followed with a watchful eye, er decision, was called upon to pass judg­ However much one may welcome the flexi­ ment on the alleged implications of section ble treatment of petty crime made possible 153 a StPO on the summary written penalty by this instrument, it would still be danger­ order procedure also possible under the Code ous if it were to gain a foothold in fields of of Criminal Procedure. In this connection, criminal activity better dealt with at a trial the Court coined the term "termination pro­ held in public. The important thing here is cedure with self-submission." The intention, to remain alelt, and to be particularly vigilant so the Court held, is that the petty offender as regards any inappropriate attempts to ap­ who is aware of the wrong he has done, and ply this institute to accused persons enjoy­ who is prepared to accept a sanction, should ing some sort of prominence or financial

60 GERMAN CRIMINAL PROCEDURE might. the prison system. Closely related to section 153 a StPO is a In the case of offences committed abroad, special provision of the Narcotics Act (Be­ the public prosecutor can refrain from initiat­ taubungsmittelgesetz). If an accused is sus­ ing proceedings. Charges already brought pected of having committed a crime-and can-exceptionally-be withdrawn, without this includes major offences-as a result of the consent of the court. 35 addiction to narcotic drugs, and if a prison If the alleged offender has been extradit­ sentence of up to two years is the most that ed or expelled, the public prosecutor can can be expected, then the public desist from preferring charges. 36 If charges prosecutor-with the consent of the court­ have already been brought, then the court, may provisionally refrain from bringing the upon application by the public prosecutor, public charge. 31 The requirement here is must discontinue the proceedings. 37 that the accused must already have been re­ Where certain political offences are con­ ceiving treatment for his addiction for a pe­ cerned, the Federal Prosecutor General may riod of at least three months, and that there decide that it is in the public interest not to is every expectation of successful resociali­ prosecute. If charges have already been sation. Should therapy be abandoned or the brought, he can·-exceptionally-withdraw favourable forecast proved wrong by a sub­ them and discontinue proceedings. 38 sequent offence committed by the accused, Offences of less significance measured proceedings must be continued. The same against the outcome of another set of crimi­ is true if new facts come to light, indicating nal proceedings do not call for prosecution. 39 the likelihood of a custodial sentence of more To help the clearing up of offences of coer­ than two years. The possibility of continu­ cion and blackmail, it is not necessary to ing proceedings only remains available for prosecute the deeds perpetrated by the vic­ four years, however. After that, the statuto­ tim. 40 ry basis for prosecution is completely extin­ Where indictment for a minor offence is guished. 32 conditional upon a question which first needs Where charges have already been pre­ to be decided in civil or administrative pro­ ferred, the court-with the consent of the ceedings, the department of public prosecu­ public prosecutor-can make provisional dis­ tion can stipulate a date by which the ques­ continuance. 33 You can see the parallel with tion should have been settled in such pro­ section 153 a StPO: in the latter case, it is ceedings. If the deadline passes without the the voluntary fulfilment of requirements and issue having been resolved, then the depart­ directives which are intended to bring the ment of prosecution "may" make "final" dis­ criminal proceedings to an informal close. In continuance of the criminal proceedings. 41 the present case, the same end is to be It will almost certainly be the case in many achieved by the drug-addicted offender vol­ legal systems that the juvenile criminal law untarilyundergoing therapy. In actual prac­ is more modern and progressive than the law tice, this provision-regrettably-has not ac­ applying to adult offenders. Thus it is not quired any great significance. 34 surprising that we find some other notewor­ The German Code of Criminal Procedure thy examples of integrated proceedings in contains still further possibilities of discon­ the German Juvenile Courts Act (Jugend­ tinuance. However, as the public prosecutor gerichtsgesetz-JGG). The position of the here is not first obliged to seek the consent public prosecutor is stronger here than it is of the court, they contain but few elements in the procedural code for adults. In crimi­ of integration. All the same, I would like to nal proceedings against young persons up to look at some of them briefly, particularly as the age of eighteen, 42 the public prosecutor they do in fact help to relieve the burden on can refrain from prosecution without the con-

61 EXPERTS'PAPERS sent of the jUdge-that is, in two cases. The young persons, too, the preferring of charges first is where the requirements of section 153 can be dispensed with if the educative meas­ StPO are met: in other words, slight degree ures referred to suffice. It has been report­ of guilt and lack of public interest in prose­ ed that this even happened in a Hamburg cution. 43 case of attempted manslaughter, The point More interesting is the second case: if an here is that the legislative provision does not educative measure which makes it possible make the seriousness of the offence the gov­ to forego the imposition of further punish­ erning factor. 46 ment by the judge, has already been ordered, If the public prosecutor has already then it is no longer necessary to prosecute. brought charges, the judge for his part can Educative measures which may be consid­ discontinue the proceedings under the con­ ered here include all those taken by private ditions already discussed. The consent of the bodies or public agencies. Talking to or cau­ public prosecutor is here called for. 47 tioning the miscreant will suffice; where the So as with the possibilities of discontinu­ damage caused is slight, even a simple writ­ ance in general criminal proceedings-and ten caution will be enough. 44 You can see, some of these may also be applied to young then, that full use has here been made of the persons 48-investigatory, intermediate and diversion concept in order to avoid proceed­ main proceedings are here interwoven. ings which can only be detrimental to the Where specific requirements are fulfilled, we young persons in question. again find elements of enforcement in a wide If the public prosecutor feels that a formal sense integrated into procedural segments of imposition of punishment via a judgment can an earlier stage. The criminal policy aim here be dispensed with, but at the same time, that is diversion. Formal proceedings to the detri­ the judge must be involved, then he can­ ment of the young person are to be avoid­ where the young person has admitted the ed. 49 offence-approach the juvenile court judge Up to now we have looked at the inter­ with proposals. He can suggest that the relationship between investigatory, interme­ young person be ordered to meet specific re­ diate and main proceedings. Now I would quirements, perform community service or like to take you to the close of the main pro­ take part in a special course of instruction ceedings, since at this juncture, too, progress for road users. The specific requirements has been made in procedural integ ,ltion. here are reparation of the damage, personal­ The main proceedings are today followed by ly apologising and payment of a sum of annexed proceedings, where a decision is money. The public prosecutor may suggest, taken on alternatives to a prison sentence or however, that the young person be cautioned to a continued prison sentence. In these pro­ by the juvenile court judge. 45 If the latter ceedings subsequent supplementation of the goes along with this suggestion, the prose­ judgment is made; they serve the resociali­ cutor must refrain from introducing proceed­ sation of the convicted person and the eas­ ings. Should the young person not do what ing of the pressure on the prison service. has been ordered, then the public prosecu­ The year 1953 -saw the insertion in the tor can re-open proceedings. German Criminal Code of the possibility of This possibility, too, has taken on consid­ suspending a sentence on probation. Here erable practical significance as a way of the German legislator did not follow the Bel­ avoiding formal juvenile criminal proceed­ gian and French model of "sursis." In the ings. This is all the more true in that the pro­ case of the latter, the judgment and the fix­ visions here-in contrast to those for ing of a penalty are conditional. adults-are not limited to minor crimes. In If probation is successful, the sentence is the case of major crimes committed by deemed not to have been imposed. 50 Nor was

62 GERMAN CRIMINAL PROCEDURE the model of "probation" adopted as this tice, in which an accused with no previous term is understood in Anglo-Saxon law coun­ convictions had aided and abetted fraud in tries because German criminal procedural several cases without, however, enriching law does not distinguish between conviction himself at the expense of the person damag­ and sentence. 51 Under German law, it is ed. Seven years after the offence, he was rather the case that there is-unconditionally sentenced to an aggregate prison sentence -a finding of guilt entailing a prison sen­ of two years without probation. The Feder­ tence ("Verurteilung zu einer Freiheits­ al Court of Justice, on the other hand, held strafe"). At the same time, the court sus­ that a suspended sentence was permissible, pends enforcement of this penalty on proba­ especially in view of the fact that the public tion if it can be expected that the convicted need for a penalty decreased as the interven­ person will-even without the influence of ing period since the offence increased. 57 imprisonment-refrain from committing fur­ Where a sentence is suspended on proba­ ther offences. 52 Originally, suspending the tion, the court lays down a period of proba­ sentence on probation was only permissible tion. It can impose certain requirements on for prison sentences of up to nine months. 53 the convicted person, such as making good In the meantime, this legal instrument has the damage caused. If he requires help, then twice been the subject of cautious extension he can also be given directives for the gen­ -in 1969 and 1986. eral conduct and organisation of his life. He As the law stands today, we must distin­ can be put under the supervision of a proba­ guish between three different categories. If tion officer. 58 These decisions can be sub­ a prison sentence of less than six months is sequently amended, by an order and with­ passed-which under section 47 StGB is per­ out a formal sitting of the court. 59 missible only in exceptional cases-then If the convicted person, during the proba­ where the forecast is favourable, suspension tionary period, commits a new offence, on probation must take place. Where a sen­ grossly or persistently ignores a directive or tence exceeds six months, it cannot be requirement, or persistently refuses to ac­ suspended-despite a favourable forecast-if cept the guidance of the probation officer, enforcement is called for by "the defence of the first instance court of trial revokes the the legal order"; that is, by considerations suspension of the sentence on probation. 60 of general deterrence and the need to main­ This, too, is done by means of an order with­ tain public confidence in the integrity of the out a formal sitting of the court. 61 law. The significant issue here is the overall Suspension of the sentence on probation assessment of the offence and the offender. 54 is reminiscent of the discontinuance of the In the case of sentences between one and proceedings pursuant to section 153 a StPO. two years, the court "may" suspend-in Whereas in the latter case, however, the other words, the decision is at the discretion judge is already involved at the investigato­ of the court. 55 This discretionary decision is ry stage, what happens when there is a sus­ subject to limiting factors. As the legislator pended sentence is that he is allocated new made clear in 1986, suspension is only pos­ responsibilities for the procedural segment sible in this area if there are special circum­ following the trial. He can amend or revoke stances attaching to the offence and in the his decision on the suspension of the sen­ personality of the offender. Thus it is insuf­ tence. Where suspension is revoked, he is ficient for there to be only what are termed even obliged to find that offences have been "offence-related" or "offender-related" cir­ committed which were not part of the origi­ cumstances speaking for suspension. 56 nal indictment. Thus after judgment has An example which can be mentioned here been pronounced, new kinds of "annexed is a case decided by the Federal Court of Jus- proceedings" develop.

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The latter can even go beyond complete being heard in the matter before the court remission of the penalty upon expiry of the decides on revocation of the suspension of probation period, since the decision to remit the sentence. 66 The convicted persons can itself be revoked at any time within a pe­ should be given the opportunity of putting riod of one year following the end of proba­ their position to the court orally. 67 The lat­ tion. 62 ter shows how, in SUbstantive terms, the The prerequisite here is that the convict­ main hearing is re-opened at the enforcement ed person must have been sentenced to a stage-up to now only in one particular do­ term of imprisonment of at least six months main. for a willful offence committed in the domes­ Special provisions for drug-addicted tic territory during the probation period. In offenders are once again to be found in the such a case, the judge must-as part of his Narcotics Act: if someone has committed an duty-bound discretion-decide whether the offence attributable to his drug addiction and new offence calls for revocation of the remis­ been sentenced to a prison term not exceed­ sion of the penalty. 63 This, too, is done by ing two years, the judge must first consider means of a subsequent order without a for­ whether he is entitled to a suspended sen­ mal sitting of the court. 64 tence on probation pursuant to the general Classifying these annexed proceedings in provisions just discussed. 68 If this is not pos­ procedural law terms initially caused some sible, enforcement of the prison sentence can difficulties. Under the classical way of look­ still be deferred for up to two years. The pre­ ing at things, adjudication took place in that requisite here is that the convicted person part of the proceedings which produced a de­ must already be receiving rehabilitative cision on the merits, and which lasted up to treatment for his addiction or intending to the judgment becoming final and binding. undergo such treatment. So that this thera­ There then followed something quite py might continue undisturbed, the prosecut­ different-the enforcement of the penalty. ing service-as enforcement agency-is en­ This distinction was no longer valid with the titled to postpone enforcement. 69 The con­ introduction of the possibility of suspending sent of the court of first instance is also a sentence on probation and the subsequent required. Should therapy not be commenced decisions this entailed. Today we work on or not continued, the enforcement agency re­ the basis that the later decisions represent vokes deferment of enforcement, a decision a completion of the judgment, the content of from which the convicted person may then which first remains in abeyance as a result seek relief by petitinning the court of first of the sentence being suspended on proba­ instance. 70 tion. In a procedurally modified form, the In order to encourage the person in ques­ decision-taking process is continued at the tion in his readiness to submit to therapy, enforcement stage. 65 In short, then, we here there are various statutory provisions for off­ find ourselves looking at a further example setting the period spent in therapy against of integration of the administration of crimi­ the prison sentence imposed. 71 Such offset­ nal justice, cutting across the bounds of the ting may even result in the remainder of the traditional procedural segments. sentence being suspended on probation. You Things are in a state of flux, as is also dis­ can see here, then, a further variant of an­ cernible from the fact that in 1986, the con­ nexed proceedings, the practical significance victed person was given an enhanced posi­ of which, however, has unfortunately not tion under procedural law. If there has been been very great up to now. 72 a breach. of requirements or directives, the Further examples are provided by what new provision stipulates that the person in are termed "measures of prevention and cor­ question should first be given the chance of rection" (Massregeln der Sicherung und Bes-

64 GERMAN CRIMINAL PROCEDURE serung), enforcement of which can also be concerned must by law be placed in the suspended on probation. Here we must dis­ charge of a supervisory office, which is as­ tinguish according to whether the measure sisted by a probation officer. 80 The court can is ordered in isolation-that is, without an ad­ give him directives for the general conduct­ ditional penalty-or whether a prison sen­ ing and organisation of his life. 81 Whereas tence is first served and then intended to be directives generally appear largely unneces­ followed by enforcement of the measure. To sary where supervision is carried out by pri­ take the first case: suspended enforcement vate persons, they are appropriate in the case can be considered in relation to placement of addicts-for example, making an order for in a psychiatric hospital, which may be or­ specific forms of medical treatment. 82 dered where the offender lacks, or has only Subsequent decisions on directives are diminished, criminal liability.73 Another possible, and are made by a court order with­ measure which should be mentioned here is out a formal sitting. 83 If the convicted per­ placement in a unit for alcohol or drug de­ son commits another unlawful act, grossly or pendency; this can be ordered for offenders persistently infringes directives or persist­ suffering from some form of addi;tion. 74 For ently evades the supervision of the probation both measures suspension on probation is officer, then the court revokes the deferment possible if special circumstances justify the of placement. Here, too, an order is made expectation that the purpose of the measure without a formal sitting of the court. 84 Oth­ can also be achieved by suspension. 75 The erwise, the measure is deemed to be execut­ purpose in question is the prevention of fur­ ed when supervision of conduct ceases. 85 ther unlawful acts by the person concerned. You can see the parallels with suspension If, for example, the prevention of such fur­ of the sentence on probation. Here, too, we ther acts would appear to be sufficiently en­ find "post-proceedings" developing in which sured by arranging supervision by the fami­ additional final touches are put to the origi­ ly or a guardian, or by removal from a dan­ nal judgment-yet another example of in­ gerous environment, then enforcement is to tegration of procedural segments. be suspended. 76 The judge here must look Where a fine is imposed, German law does into the future and make a forecast as to not permit suspension of the sentence on pro­ whether there seem to be good grounds for bation. In 1969, however, the legislator did "taking a chance and foregoing execution of introduce in the area of fines the possibility the measure." 77 of issuing a formal warning with punishment If prior to the measure a prison sentence reserved. This approximates to probation as is served, then before completion of the lat­ understood in Anglo-Saxon law, even though ter, there must similarly be a review of there is still an element of sentencing in the whether the purpose sought with the meas­ judgment pronounced. 86 Such a procedure ure still requires placement following the is only possible where the fine does not ex­ time spent in prison. 78 This applies not only ceed 180 day-fines. Since the lower and up­ to the two measures just named, but even to per limits for fines are 5 and 360 day-fines, preventive detention, the most severe meas­ respectively, this means that it is the lowest ure taken against dangerous habitual category which is being covered here as re­ offenders. In this case, too, the-difficult­ gards the seriousness of the offences. If in forecast must be made as to whether, follow­ this category a fine of up to 180 per diem ing release from prison, the offences whose units has been incurred, the court can con­ likelihood first provided the basis for the vict the offender, give him a warning and preventive detention order-e.g. property stipulate the penalty in terms of the number crimes-need no longer be feared. 79 and the value of the day-units. The court re­ Where suspension takes place, the person serves, however, the possibility of actually

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sentencing to payment of the penalty already instead the discontinuance possibility under laid down if three requirements are met: 87 section 153 a StPO which we have already met. 93 Whether anything is likely to change - the offender must have been given a here, now that there is also the possibility of favourable forecast as to his social adap­ issuing directives, is something I rather tation; doubt. - the overall assessment of the offence All the same, the formal warning with sen­ and the offender must reveal special cir­ tence reserved should not go unmentioned cumstances indicating the desirability of here as a further form of integrated proceed­ sparing the offender the sentence; ings. It makes particularly clear just how de­ - it must not be the case that the sentence cisions from the phase of main proceedings is called for by the need to defend the carry over into the post-proceedings. A judg­ legal order. ment issuing a formal warning with sentence reserved is a torso. It takes on substance only The further procedure is similar to that for through a subsequent decision, either sen­ suspension of the sentence on probation, to tencing to imposition of the reserved penal­ which the statutory provision makes three ty or finding that no further action is called references. 88 It should be said, however, that for over and above the warning. 94 up to 1986 only specific requirements were We have already seen that, as regards dis­ permissible, and not directives. The view continuance of proceedings, the German held was that dIrectives could only be con­ juvenile criminal law is more progressive templated for those prone to criminal be­ than the law for adults. This phenomenon is haviour, and for them, the provision in ques­ repeated in relation to deferment of the pos­ tion had not been created. Then in 1986 the sible imposition of youth imprisonment pur­ legislator made a helpful intervention, so that suant to the Juvenile Courts Act, where we today, certain directives are also possible fol­ find something almost identical to the pro­ lowing a formal warning with sentence bation of Anglo-Saxon law. 95 The procedural reserved. These are: situation is as follows: the juveI).ile court judge is unable to assess with certainty - meeting maintenance obligations; and whether a sentence of youth imprisonment - undergoing out-patient medical treat- is required for educative reasons. In such a ment or non-institutional treatment for case, he can under his duty-bound discretion some form of addiction. 89 restrict himself to returning a finding that the young person is guilty, with the decision on If probation proves unsuccessful, then sen­ the imposition of the youth imprisonment tencing to the reserved penalty takes place sentence being deferred for a specific peri­ via a subsequent court order. Otherwise, the od of probation. 96 Such deferment is intend­ court returns a finding-also in the form of ed to have a constructive effect in educative an order-that the warning "suffices." 90 The terms, as it leaves the young person without entry of the formal warning in the Federal the stigma of a penal sanction. A probation Central Register is then deleted, which officer is allocated, and requirements and means it can no longer be taken into ac­ directives can be issued. 97 If the probation count. 91 period is successful, the conviction is extin­ In actual practice, use is made of this pro­ guished; 98 if it is unsuccessful, then the judge vision only exceptionally; more often than sentences to the penalty which he would not, the offender does not have the necessary have imposed when returning a finding of qualities of character. 92 The courts have not guilty if he had been certain of his assess­ taken to this unwieldy procedure, preferring ment of the young person. 99 This is reminis-

66 GERMAN CRIMINAL PROCEDURE cent of suspension of the sentence on pro­ ment has been completely remitted, a young bation, but in procedural law terms, there is person is better off than an adult, as under a fundamental difference. The subsequent the juvenile criminal law, there can be no decision to impose a sentence of youth im­ revocation of remission. 108 Here, then, post­ prisonment must be contained in a formal proceedings do not go as far as they do un­ judgment passed following a new trial. 100 der the adult criminal law. As against this, the decision to extinguish Related to suspension of the sentence on the conviction after probation can be given probation is one final area-namely, suspen­ in the form of a court order, made with the sion of the remainder of the prison sentence consent of the public prosecutor and with­ after part of it has been served. This is pos­ out a main hearing. 101 What conclusions in sible in the case of a determinate prison sen­ doctrinal terms can be drawn from this statu­ tence if two-thirds of it have been served and tory framing of proceedings-whether this it may be deemed responsible to see how the amounts to an interlocutory conviction, for person concerned behaves when at liberty. example-is a matter of some dispute. 102 For In the case of persons serving a first prison our purposes, it suffices to observe that the sentence, just completing half of it may be Juvenile Courts Act makes provision for a sufficient. 109 further integrated proceeding. Even in the case of a life-sentence, there In addition to this deferment of the possi­ has been since 1982 the possibility of sus­ ble imposition of youth imprisonment, how­ pending the rest of the sentence on proba­ ever, the Juvenile Courts Act also includes tion after fifteen years, provided that the spe­ provision for a suspended sentence on pro­ cial degree of guilt attaching to the convict­ bation, corresponding to what is to be found ed person does not call for enforcement to in adult law and, in practice, far more fre­ continue. 110 This radical amendment to the quent than deferring possible sentencing. 103 Criminal Code is attributable to a decision of where youth imprisonment is imposed for up the Federal Constitutional Court in 1977, to one year, the important factor is whether which held that a life-sentence for murder the forecast for the young person is a was only constitutional under certain condi­ favourable one. If it is, then the judge must tions. Citing the dignity of man, the Federal suspend enforcement of the sentence on pro­ Constitutional Court insisted that the person bation. l04 Where the youth imprisonment sentenced to a term of life-imprisonment sentence is for a term of between one and must also be left a chance of regaining his two years, the judge has-as under the Crim­ freedom. In this respect, the Court found, the inal Code-scope for discretion: if special cir­ possibility of clemency was not enough; cumstances exist, attaching to the offence rather, in any State subscribing to the rule and present in the personality of the of law, the practical question of release from offender, he may suspend enforcement. 105 In prison must be the subject of statutory contrast to the position obtaining in adult regulation-it must be "legalised." The very law, the defence of the legal order is not a essence of the person's human dignity, so the significant factor in either case here; rather, Court continued, would be affected if, re­ it is the educative aspect which enjoys pride gardless of the development of his personal­ of place in the juvenile criminal law. 106 ity, he had to abandon all hope of regaining The further course taken here-and I do his freedom. 111 not really need to repeat this-is that an­ The legislator made the necessary re­ nexed proceedings then develop as under sponse to this in 1981 by laying down the re­ adult law, and these may culminate in a find­ quirement that a term of fifteen years be ing of further offences in the event of revo­ spent in prison, the objective here being clear cation. 107 Once a sentence of youth imprison- demarcation as against the possibilities of

67 EXPERTS'PAPERS suspending a determinate prison sentence, paths have been opened up in the German where the maximum permitted is fifteen criminal law and the law of criminal proce­ years. Earlier suspension by the court is not dure permitting the mutually agreed infor­ permissible. 112 A furthel" special obligation mal disposal of criminal proceedings and also to be met here is a review of the degree of the easing of the burden on the prison sys­ guilt, since this can vary quite considerably tem. I am well aware, however, that seen as as in the case of life-sentences. If the degree part of an international comparison, these of guilt rules out release after fifteen years, have only been modest, hesitant steps. the court can stipulate a period of at most Whether in the case of the suspended sen­ two years during which the person under tence on probation, for example, the German sentence cannot apply for suspension. If he legislator has already exhausted all the pos­ is released, then the period of probation is sibilities desirable in criminal policy terms, by law five years. In examining the question seems doubtful. Again as regards the volun­ of revoking the suspension, it must be borne tary "termination proceedings" under sec­ in mind that the convicted person will, fol­ tion 153 a StPO, these are almost certainly lowing revocation, return to indeterminate only the start of a trend. confinement. This means, then, that crimes In this connection, it will constantly be nec­ of negligence and less serious willful offences essary to take a comparative law approach do not provide an adequate basis for revoca­ and focus our gaze beyond the boundaries of tion. 113 our own legal order, especially on a country As regards the course taken by proceed­ which has particularly wide experience of the ings, the following can be said about the sus­ informal, mutually agreed termination of pension of residual sentences: as in the case criminal proceedings. I mean our host coun­ of suspension of the sentence on probation­ try. It was therefore certainly appropriate to which the statutory provision makes that a Preparatory Colloquium of the Thir­ reference 114-annexed proceedings have de­ teenth International Criminal Law Congress veloped in which the judgment receives sup­ in 1983 should deal with the topic "Diver­ plementation. The principle here, however, sion and Mediation" in Tokyo. 119 No modern is that it is no longer the court of trial which legislator can simply ignore the Japanese is responsible for these proceedings, but in­ successes with regard to diversion. 120 On stead the court division competent to deal this point we have a great deal to learn from with questions of sentence enforcement. 115 our hosts. This type of division was specially set up to deal with subsequent decisions of the kind Notes just referred to, and is to be found at the re­ gional courts in whose jurisdictional districts 1. Blau, in the journal "Goltdammer's Ar­ an adult prison is situated. 116 In the case of chiv," 1976, pp.45 ff. Hirano, Zeitschriftfiir young persons, these enforcement divisions die gesamte Strafrechtswissenschaft, Vol. are replaced by the juvenile court judge as 93, pp.l085 ff. the person responsible for supervising en­ 2. Cf. Wendisch in Lowe-Rosenberg, Die forcement. 117 Strafprozessordnung und das Gerichtsver­ The sentence enforcement divisions-and fassungsgesetz. Grosskommentar, 24th. edit. Berlin, 1984 onwards, 3 preceding sec­ this is the last new point I wish to make­ tion 449 StPO. are also responsible for the subsequent sus­ 3. Sec. 153 subsecs. 2, 3 StPO old version, pension of enforcement of a measure of pre­ Reich Law Gazette (Reichsgesetzb1att) vention and correction involving deprivation 1924, Part I, pp. 338. of liberty. 118 4. Cf. Riess in Lowe-Rosenberg, ibid., 32 on We have seen how, in recent decades, new sec. 153 StPO with further citations.

68 GERMAN CRIMINAL PROCEDURE

5. Riess, ibid., 19, 20, 28 on sec. 153 StPO. in Criminal Cases, Volume 28, pages 69, 70 Kleinknecht-Meyer, Stmfprozessordnung, f. 38 tho edit. Munich 1987, 7 on sec. 153 29. Cf. on this Dielmann in Goltdammer's Ar­ StPO. chiv fUr Strafrecht 1981, pp. 563 ff., and 6. Riess, ibid., 39 on sec. 153 StPO. Elau in Revue Internationale de Droit Penal 7. Kleinknecht-Meyer, ibid., 16 on sec. 153 1983, pp. 932. StPO. 30. Jescheck, Lehrbuch des Strafrechts All­ 8. There is some dispute on points of detail gemeineI' Teil, 4th edit., Berlin 1988, pp. here-d. Riess, ibid., 85 on sec. 153 StPO. 71; Riess, ibid., 1 on sec. 153 StPO; Elau, 9. Cf. Riess, ibid., 1 on sec. 153. Hermann, ibid., pp 936; a different view is put forward Zeitschrift fUr die gesamte Strafrechtswis­ by Walter in Zeitschrift fUr die gesamte senschaft Vol. 96, pp.467; Hirano, ibid., pp. Strafrechtswissenschaft Vol. 95, pp. 56 ff., 1087. as there is no agreement as to the guilt of 10. Sec. 233 StGB. the accused. 11. Sec. 174 subsec. 4 StGB; Dreher-Trondle, 31. Sec. 37 subsec. 1 Narcotics Act. Strafgesetzbuch, 44th. edit. Munich 1988, 32. Riess, ibid., 126 on sec. 153 a StPO. 13 on sec. 174 StGB. 33. Sec. 37 subsec. 2 Narcotics Act. 12. Sec. 60 StGB. 34. Cf. Dreher-Trondle, ibid., 10 a preceding 13. Originally sec. 153 a StPO, since 1974 sec. sec. 56 StGB. 153 b StPO. 35. Cf. sec. 153 c StPO. 14. Riess, ibid., 2 on sec. 153 b StPO with fur­ 36. Sec. 154 b subsecs. 1-3 StPO. ther citations. 37. Sec. 154 b subsec. 4 StPO. It enjoys no dis­ 15. Today sec. 153 e StPO. On the background, cretion in this, d. Riess, ibid., 10 on sec. d. Riess, ibid., under the background to 154 b StPO. sec. 153 c StPO. 38. Cf. sec. 153 d StPO. 16. Sec. 153 a subsec. 1, sec. 467 subsec. 5 39. Sec. 154 StPO. StPO. 40. Sec. 154 c StPO. 17. Riess, ibid., 61 on sec. 153 a StPO. 41. Sec. 154 d StPO. 18. Sec. 153 a subsec. 2 StPO. 42. For young adults up to the age of twenty­ 19. Cf. for example Hans Joachim Hirsch, Zeit­ one, d. sec. 109 subsec. 2 JGG. schrift fUr die gesamte Strafrechtswissen­ 43. Sec. 45 subse(:. 2 (2) JGG. schaft Vol. 92, pp. 218 ff.; Dencker, 44. Sec. 45 subsec. 2 (1) JGG, d. Eisenberg, Juristenzeitung 1973, pp. 149 f. Jugendgerichtsgesetz, 3rd. edit. Munich 20. Hermann, ibid., pp.471; Riess, ibid., 14 on 1988, 19 ff. on sec. 45 JGG and Brunner, sec. 153 a StPO with further citations. Jugendgerichtsgesetz, 8th. edit. Berlin 21. Decisions of the Federal Constitutional 1986, 10 ff. on sec. 45 JGG, both of them Court, Volume 22, pp. 49, 81. with citations of examples drawn from 22. Hans Joachim Hirsch, ibid., pp. 231 ff. practice. 23. Cf. Riess, ibid., 8 on sec. 153 a StPO; 45. Sec. 45 subsec. 1 JGG. As regards the spe- Kleinknecht-Meyer, ibid., 12 on sec. 153 a cific requirements d. § 15 JGG. StPO. 46. Eisenberg, ibid., 17 on sec. 45 JGG. 24. Sec. 356 StGB. 47. Sec. 47 JGG. 25. Sec. 115 b of the Federal German Code of 48. Cf. on the separate questions arising here Regulations for Lawyers (Bundesrechtsan­ Eisenberg, ibid., 10-15 on sec. 45 JGG. waltsordnung). 49. Brunner, ibid., 4a-4b on sec. 45 JGG. 26. Decisions of the Federal Court of Justice 50. Cf. Griinhut in Zeitschrift fUr die gesamte in Criminal Cases, Vol. 28, pages 174, Strafrechtswissenschaft, Vol. 64, pp. 128 176-Riess, ibid., 8, 9 on sec. 153 a StPO. ff.; Russ in Strafgesetzbuch, Leipziger 27. Heinz, as yet unpublished lecture at the Kommentar, 10th. edit. Berlin 1985, I, 3 Symposium on Juvenile Criminal Law in preceding sec. 56 StGB; Stree in SchOnke­ Constance, October 1988. Schroder, 23rd. edit. Munich 1988, 5 on 28. Decisions of the Federal Court of Justice sec. 56 StGB.

69 EXPERTS'PAPERS

51. Cf. Griinhut, ibid., pp. 132 ff.; Russ, loco 68 a StGB. cit.; Stree, loco cit. 81. Sec, 67 b subsec. 2, sec. 67 b subsec. 1, sec. 52. Sec. 56 StGB. 68 b StGB. 53. Sec. 23 StGB in the version of the Third 82. Cf. Horstkotte, ibid.) 75, 112 on sec. 67 b Criminal Law Amendment Act (Drittes StGB. Strafrechtsanderungsgesetz) of 4 August 83. Sec. 68 d StGB together with sec. 463 sub­ 1953, Federal Law Gazette (Bundesgesetz­ sec. 2 and sec. 453 StPO. blatt) I 1953, pp. 735. 84. Sec. 67 g subsecs. 1-3 StGB together with 54. Sec. 56 subsecs. 1 and 3 StGB; cf. Russ, sec. 463 subsec. 5 and sec. 462 StPO. ibid., 26, 27 on sec. 56 StGB; Jescheck, 85. Sec. 67 g subsec. 5 StGB; d. Dreher­ ibid., pp. 676 f.; Decisions of the Federal Trondle, ibid" 6 on sec. 67 g StGB. Court of Justice in Criminal Cases, Volume 86. Cf. Jeseheck, ibid., pp. 72. 24, pages 40, 46 f. 87. Sec. 59 StGB-on this see Stree in Sch6nke­ 55. Stree, ibid., 31 on sec. 56 StGB. Schroder, ibid., 17 on sec. 59 StGB. 56. Cf. sec. 56 subsec. 2 StGB in the version 88. Sec. 59 a subsecs. 2 and 3. sec. 59 b sub­ of the 23rd. Criminal Law Amendment Act sec. 1 StGB. of 13 April 1986-on this see Greger, 89. Sec. 59 a subsee. 3 StGB-on this see Juristische Rundschau 1986, pp. 353. Greger, ibid., pp. 354. 57. Decisions of the Federal Court of Justice 90. Sec. 59 b StGB together with sec. 453 in Criminal Cases, Volume 29, pages 370, StPO. 372. 91. Decisions of the Federal Court of Justice 58. Secs. 56 a-56 d StGB. in Criminal Cases, Volume 28, pp. 338, 340; 59. Sec. 56 e StGB, sec. 453 StPO. Russ, ibid., 7 on sec. 59 b StGB. 60. Sec. 56 f StGB, sec. 462 a subsec. 2 StPO. 92. Supreme Bavarian Regional Court 61. Sec. 453 StPO. (Bayerisches Oberstes Landesgericht), 62. Sec. 56 g subsec. 2 StGB. Monatsschrift fur Deutsches Recht 1976, 63. Russ, ibid., 5 on sec. 56 g StGB. pp. 333; Russ, ibid., 5 on sec. 59 StGB. 64. Sec. 453 StPO. 93. Cf. Dreher-Trondle, Strafgesetzbuch, ibid., 65. Cf. Wendisch in Lowe-Rosenberg, Straf­ 4 preceding sec. 59 StGB. prozessordnung, 24th. edit, Berlin 1987, 3, 94. Wendiseh, ibid., 3 on sec. 453 StPO. 4 on sec. 453 StPO. 95. Cf. sec. 27 JGG, Jescheck, ibid., pp.72, a 66. Sec. 453 subsec. 1, third sentence, StPO. different view is expressed by Brunner, 67. Greger, ibid., pp. 354 f. ibid., 2 on sec. 27 JGG. 6S. Horn in Systematischer Kommentar zum 96. Eisenberg, ibid., 6, 13 on sec. 27 JGG. Strafgesetzbuch, Vol. I, 5th. edit., Frank­ 97. Sec. 29 JGG. furt am Main 1988, 38 on sec. 56 StGB. 98. Sec. 30 subsec. 2 JGG. 69. Sec. 35 subsec. 1 Narcotics Act, sec. 451 99. Sec. 30 subsec. 1 JGG. StPO. 100. Sec. 30 subsec. 1, sec. 62 subsec. 1 JGG. 70. Cf. sec. 35 subsec. 4, 5 Narcotics Act. 101. Sec. 30 subsec. 2, sec. 62 subsec. 2 JGG. 71. Sec. 36 Narcotics Act. 102. Cf. Brunner, ibid., 2 on sec. 27 JGG. 72. Dreher-Trondle, ibid., 10 a preceding sec. 103. Eisenberg, ibid., 15, 16 on sec. 27 JGG. 56 StGB. 104. Sec. 21 subsee. 1 JGG; Eisenberg, ibid., 10 73. Sec. 63 StGB, on sec. 21 JGG. 74. Sec. 64 StGB. 105. Sec. 21 subsee. 2 JGG; Eisenberg, lac. cit. 75. Sec. 67 b StGB. 106. Eisenberg, ibid., 6 on sec. 21 JGG. 76. Horstkotte, ibid., 68 on sec. 67 b StGB. 107. Sees. 22, 23, 26, 26 a, 58 JGG. 77. Federal Court of Justice, Monatsschrift fUr lOS. Sec. 26 a JGG; Eisenberg, ibid., 31 on sec. Deutsches Recht 1975, 724; Horstkotte, 26 a JGG. ibid., 52 on sec. 67 b StGB. 109. Sec, 57 subsecs. 1 and 2 StGB. 78. Sec. 67 c subsec. 1 StGB. 110. Sec. 57 a subsec. 1 StGB. 79. Cf. Horstkotte, ibid., 90 on sec. 67 c StGB. 111. Decisions of the Federal Constitutional 80, Sec. 67 b subsec. 2, sec. 67 c subsec. 1, sec. Court, Volume 45, pp. 187, 243 ff.

70 GERMAN CRIMINAL PROCEDURE

112. Stree in Schonke-Schroder, ibid., 2 on sec. 462 a subsec. 1 StPO. 57 a StGB with further citations. 119. Cf. the report by Hermann in Zeitschrift fUr 113. Russ, ibid., 15 on sec. 57 a StGB. die gesamte Strafrechtswissenschaft, Vol. 114. Sec. 57 subsec. 3, sec. 57 a subsec. 3 StGB. 97, pp. 721. 115. Secs. 454, 454 a, 462 a subsec. 1 StPO. For 120. Kuhne and Miyazawa, KriminaliUit und the exceptions d. Wendisch in Lowe­ Kriminalitats-bekampfung in Japan, Wies­ Rosenberg, ibid., 26, 37 on sec. 462 a StPO. baden 1979, pp. 135 ff.; Kuhne in Zeit­ 116. Secs. 78 a, 78 b Organisation of the Courts schrift fUr die gesamte Strafrechtswissen­ Act (Gerichts-verfassungsgesetz). schaft, Vol. 85, pp. 1086 ff.; Miyazawa in 117. Sec. 82 JGG, As regards suspension ofthe Zeitschrift fUr die gesamte Strafrechtswis­ remainder of a sentence of youth imprison­ senschaft Vol. 95, pp. 1027 ff.; Matsuo in ment, d. secs. 88, 89 JGG. Revue Internationale de Droit Penal 1983, li8. Sec. 67 e StGB, secs. 463 subsec. 3, 454, pp. 1096 ff.

71 Chinese Crhninal Law and Its Recent Development

by Yu Shutong*

Legislating of the Code accounted for about 80 percent, but the in­ cidence of violent crimes like murder, rob­ Criminal justice in new China has a histo­ bery and intentional explosions were also up. ry of forty years, but it was not until the end Crimes associated with gangs abroad, such of the 70's that the prerequisites for legis­ as trafficking in narcotics, smuggling of gold lating a comprehensive and systematic crim­ and relics, and counterfeiting of currency, inal code were provided. Before that time, credit cards and even passports also in­ policies and some decrees had been serving creased during 1988. as criteria for administrating criminal justice, The Chinese Criminal Code takes the con­ though several regulations regarding the cepts of Marxism, Leninism and Mao punishment of counter-revolutionary crimes, Zedong as its guide. It proclaims publicly corruption and crimes of undermining the na­ that its tasks are to use criminal punishment tional currency were promulgated during the to struggle against all counter-revolutionary 50's. The Criminal Code of the People's Re­ and other criminal acts in order to safeguard public of China was unanimously approved the system of the people's democratic dicta­ in July 1979 by the National People's Con­ torship and the smooth progress of the cause gress, the highest State power of China, af­ of socialist construction. ter penetrating deliberations by several thou­ The Code takes the Constitution as its ba­ sand deputies to the Congress, and came into sis. Article 28 clearly stipulates: "The State effect on New Year's Day the following year. maintains public order and suppresses The subsequent implementation of the Code treasonable and other counter-revolutionary has eloquently proven that it is in complete activities; it penalizes acts that endanger conformity with the reality of the country public security and disrupt the socialist econ­ and is efficacious for cracking down on crimi­ omy and other criminal activities, and pun­ nality. Prosecution of crimes according to the ishes and reforms criminals." Code, along with other effective measures China's legislature adheres to the rule that for the comprehensive treatment of criminal­ the legislation should be geared to the real ity, leads to stability, peace and security for needs of the country. The Criminal Code was the nation. The crime rate in China stayed formulated in the light of the concrete expe­ around the level of 0.05 percent plus con­ riences of the country's nationalities in car­ secutively for the four years up to 1988, but rying out the people's democratic dictator­ last year saw a drastic increase in crime and ship, accumulated through decades of revo­ the rate rose to about 0.07 percent. Of lution and construction. In the process of its course, such alarming growth should be drafting, a vast number of files and dossiers taken seriously though China remains one of were examined and actual crimes researched. the countries with the lowest crime rate in It should be emphasized that the Chinese the world. Of all the crimes reported, theft Code has drawn on what will be useful to us from foreign legal theory and practice, though we are opposed to simply copying * Advisor to the Commission on Internal and Judicial Affairs, National People's Congress of the People's foreign laws without due consideration of Republic of China one's own. Foreign friends used to ask me

72 CHINESE CRIMINAL LAW whether the Chinese legal system belongs to prescribed punishments stipulated by the or copies the common law system, or the civil respective articles are relatively fixed ones law system, or the Soviet system, and I rather than absolutely fixed ones, so that the would reply that our legal system on the courts have a discretion to select within a whole is different, not only from the West­ certain range the most adequate penalty for ern legal systems (both the common law and the specific crime. For juvenile delinquents, the civil law), but also from the Soviet and or an offender who surrenders voluntarily or Eastern European systems. For, in our view, one who is coerced or induced to participate it is impossible for a legal system to be es­ in a crime, or one who commits crime by tablished and function efficiently if it ignores negligence, or for criminal attempt, or for the real situation and the concrete conditions preparation of crime, etc., various forms of of the country, but nor will it be an effective leniency in sentencing are stipulated for ex­ and progressive one if the legislators seclude ample, meting out a lesser punishment or a themselves from the outside world, without mitigated punishment, or even complete ex­ absorbing useful things from foreign legal emption from punishment. On the other systems. hand, a heavier punishment is given for ring­ leaders of criminal groups, or principals in Basic Principles of the Code a joint crime, or recidivists, or professional offenders, or instigators, etc. In answer to the question of what basic 2) Nullum Crimen Sine Lege and Nulla Poe­ principles the Code adheres to, replies from na Sine O'imena: What acts constitute a cer­ various scholars are fundamentally identical tain offence, what are the actus reus and mens but with slight differences. In my view, apart rea of individual crimes, and what penalty from some cardinal principles laid down by should be imposed on a certain offender­ the Constitution, like the principle that "all all these matters are defined in relevant ar­ citizens are equal before the law," which are ticles as clearly as possible. No act can be applicable to all laws and regulations, there deemed a crime without explicit mention in are four principles that are most significant the Code, and a penalty should be imposed for the Criminal Code. accordingly within the range of the legally­ 1) Combining Punishment and Leniency: prescribed punishment. Nevertheless, it This means that we deal with each case on should be pointed out that the Code also pro­ its own merits, take account of the circum­ vides a strictly-restrictive system of analo­ stances of different crimes and the charac­ gy. Where a crime is not expressly stipulat­ ters of different authors of crimt :;0 as to ed in the Special Provisions of the Code, the punish only the minority of them and reform court hearing the case is permitted to pun­ the majority. There are both severe and ish the perpetrator according to the most lenient sanctions in the Code. For serious closely analogous article of the Special Pro­ crimes, some severe punishments are provid­ visions of the Code, on the condition that the ed, while acts of which the circumstances are matter should be submitted to the Supreme clearly minor and the harm is not great are People's Court for approval. not to be deemed crimes, and consequently, 3) Punishment Can Only Be Imposed on not to be punished. Among the five princi­ Those Who Are Responsible for the Crime: pal penalties, there is the lightest one, the Only the people whose own acts,including penalty of control, which is a punishment to active and passive ones, run counter to the be executed in the community without con­ Criminal Code, have to bear criminal respon­ fining the offender in prison; at the same sibility. To punish the accused's family mem­ time, a kind of most severe penalty, capital bers or relatives or friends who have noth­ punishment, is provided. All the legally- ing to do with the crime is categorically for-

73 EXPERTS' PAPERS hidden, unless they intentionally joined in the ruption, accepting bribes or disclosing State crime. And then in execution of the penalty secrets, posing as State personnel to cheat of confiscation of property (one of the three and bluff or forging official documents, cer­ supplementary punishments provided by the tificates and seals outside the territory of the Code), it is forbidden to confiscate any prop­ People's Republic of China. erty other than the personally-owned prop­ 2) The Code is applicable to citizens of the erty of the accused, so property that belongs People's Republic of China who commit .to or should belong to his or her family mem­ crimes outside the territory of the People's bers is exempt from confiscation. Republic of China other than the crimes men­ 4) Combining Punishment and Education: tioned above, on the condition that the Code The penalty does not pursue the goal of re­ stipulates a minimum sentence of not less taliation, and its purpose is not simply to pun­ than a three-year fixed term of imprisonment ish the criminals. We believe that the over­ for such crimes. whelming majority of criminals can be re­ 3) The Code may be applicable to foreign­ moulded, and we do have the ability and the ers who commit, outside the territory of the possibility to re-socialize them. Therefore, People's Republic of China, crimes against the penalty should be oriented to educate the State of the People's Republic of China offenders as well as to punish them; that or against its citizens, provided the Code stip­ means it is imposed on criminals not only to ulates a minimum sentence of not less than deprive them of the opportunity to commit a three-year fixed term of imprisonment for further crimes and to warn those who are such crimes and that they are punishable likely to be plunged into the criminal mire, pursuant to the law of the locality as well. but also to re-educate criminals, helping them to turn over a new leaf. Criminal Responsibility

Territorial Effects of the Code The characteristics of the provisions of the Chinese Criminal Code regarding criminal With regard to the sphere of effect, the responsibility are as follows: Chinese Criminal Code follows the doctrine 1) The age for bearing criminal responsi­ of territorialism, combining with the neces­ bility is Jixteen. Minors under the age of sary personalism and protectionalism in fourteen are entirely exempted from crimi­ some special cases. To all who commit nal responsibility, even if they commit acts crimes within the territory of China, includ­ harmful to society. Minors aged fourteen but ing those aboard a ship or an aeroplane be­ under the age of sixteen shall partially bear longing to China, the Code is of course ap­ criminal responsibility, that is to say, they plicable. And if either the act or conse­ are responsible criminally only in cases in­ quences of a crime takes place within the volving murder and manslaughter, serious territory, the crime is to be deemed to have injury, robbery, arson, habitual theft or other been committed within the territory. As for acts seriously undermining social order. For crimes committed outside its territory, the delinquents aged fourteen to seventeen but applicability of the Code depends on the younger than eighteen, the Code requires the characteristics and circumstances of the trial court to give them a lenient punishment crime, which can be divided into the follow­ -to be specific, a lesser penalty within the ing three groups: range of the legally-prescribed punishment, 1) The Code is applicable to citizens of the or a mitigated penalty below the minimum People's Republic of China who commit level of the legally-prescribed punishment. crimes of counter-revolution, counterfeiting And then, when minors are not punished be­ national currency or valuable securities, cor- cause they are under sixteen, the heads of

74 CHINESE CRIMINAL LAW their families or their guardians are to be or­ The terms of the first three kinds of pun­ dered to subject them to discipline, or when ishment are as follows: no less than three necessary, the minors may be given shelter months and no more than two years for the or rehabilitation by the Government. penalty of control; no less than fifteen days 2) An intoxicated person who commits a and no more than six months for detention, crime shall bear criminal responsibility. and, no less than six months and no more 3) The Code stipulates different responsi­ than fifteen years for fixed-term imprison­ bilities for consummation of crimes, attempt­ ment. ed crimes and preparations for crime. Be­ What will be of interest to you is the pen­ sides this, it is prescribed in the Code that alty of control and the death penalty. Con­ those who voluntarily discontinue the crime trol as a kind of punishment derived from the or voluntarily and effectively prevent the practice of criminal justice of the past two consequence from occurring during the proc­ decades, and it has proven an effective meas­ ess of committing a crime shall be exempt­ ure for re-moulding offenders who commit ed from punishment or given a mitigated misdemeanours. The criminals are not to be punishment. confined in prison, but are left in the com­ 4) Joint intention is made an indispensa­ munities where they used to live or work, but ble condition for a joint crime, and therefore they are under the supervision of the mass­ a negligent crime committed by two or more es. They are obligated to abide by laws and persons jointly is not to be punished as a joint decrees, actively participate in collective crime. productive labour or work designed by the 5) An accomplice, that is one who plays a community, report regularly on their own ac­ secondary or supplementary role in a joint tivities to the public security organ and ob­ crime, shall, in comparison with the princi­ tain approval from that body if they want to pal offender, be given a lesser punishment change residence or to leave the area. The or a mitigated punishment or be exempted principle of "equal pay for equal work" is ap­ from punishment, while the ring-leaders of plicable to them as well. a criminal group or the principal offenders China has reserved the death penalty as are to be punished more heavily. the heaviest punishment as is the case in most countries in the world. It is used to sup­ Kinds of Punishment press those who commit the most heinous crimes, doing especially serious harm to the There are five kinds of principal punish­ society. This kind of criminal constitutes ment stated in the Code-namely, control, oniy a trivial fraction of the inhabitants. And, detention, fixed-term imprisonment, life im­ certainly, it serves as a powerful deterrent prisonment and the death penalty-along for cracking down on such criminality. An with three kinds of supplementary attitude of extreme carefulness, prudence punishment-namely, fines, deprivation of and circumspection is taken by the legisla­ political rights and confiscation of property. ture and the courts towards the use of capi­ Principal punishments cannot be imposed tal punishment. Many strict restrictions in concurrently upon the same criminal, while this regard are provided in the Code in or­ supplementary punishments can be imposed der to curb its use as much as possible, or either independently or concurrently with a even to exclude its practical application. For principal one. Apart from these, there is a example, to point out just some of the restric­ special penalty called deportation, which is tions: to be applied in an independent or sup­ 1) The death penalty is prescribed only for plementary manner only to foreigners who some serious crimes, such as counter­ have committed crimes in China. revolution, murder and manslaughter, rob-

75 EXPERTS'PAPERS bery, rape, trafficking or smuggling of nar­ prisonment upon the expiration of the two­ cotics, abducting and selling of people, etc.; year period; and, if he not only truly repents and, moreover, the death penalty is applica­ but also demonstrates meritorious service, ble to these crimes only if the circumstances he is to be given a reduction of sentence to of the crime are especially serious, or its not less than fifteen years and not more than harm to society is especially serious, or the twenty years of fixed-term imprisonment methods of the crime are particularly cruel upon the expiration of the period. Only those and odious, or the crime leads to death or se­ who have resisted reform in an odious man­ rious injury. And even then it should also be ner, provided the evidence of such behaviour pointed out that capital punishment is is verified, are to be executed upon a ruling prescribed in articles only as an alternative or an approval of the Supreme People's punishment, which means that some other Court. As a matter of fact, among those who form of punishment such as fixed-term im­ have been sentenced to death, only a tiny prisonment and life imprisonment are provid­ fraction of them were executed immediate­ ed in the same article for the court's discre­ ly, and the overwhelming majority were tion. given a suspension of execution; and 2) It is forbidden to impose the death pen­ amongst the latter, the absolute majority, or alty either on juvenile perpetrators who are almost all of them, have been given a reduc­ under the age of eighteen when committing tion of sentence, and sometimes several re­ the' crime, or on women who are pregnant ductions; thus, execution of criminals is kept during the trial. to the minimum. 3) A sentence of death penalty, even a fi­ nal one given by a court of second instance, Practical Application of Punishments has to be submitted to the Supreme People's Court for review and approval, though for Criminal justice in China follows str;ctly some of the clearly heinous crimes explicit­ the principle of "talcing facts as the basis and ly listed in a special decision of the Stand­ laws as the criterion." The Code clearly stip­ ing Committee of the National People's Con­ ulates that the penalty should be imposed on gress (which is the highest State power in my the basis of the crime, the nature and circum­ country), the Higher People's Courts in the stances of the crime and the degree of harm provinces, which are autonomous regions to society, in accordance with the relevant and municipalities directly under the central stipulation of the Code. The courts are not government, are authorized to review and allowed to impose punishments outside the approve the sentence of death. range of legally-prescribed penalties unless 4) A special system of suspension of exe­ there are other special stipulations in this cution is prescribed for the death penalty. regard. It must be pointed out that either a The system is one of the creations of the Chi­ heavier or lesser punishment means a pun­ nese Code. The relevant article stipulates ishment within the limits specified in the ar­ that in the case of a criminal who should be ticle, and only the so-called mitigated pun­ sentenced to death, but for whom immedi­ ishment means a punishment below the min­ ate execution is not essential, a two-year SllS­ imum limit of the legally-prescribed pension of execution may be pronounced at punishment. the time the sentence of death is imposed; A recidivist is defined by the Code as one the criminal will be put into prison and who has been sentenced to a punishment of reform-through-labour carried out and the re­ not less than a fixed-term imprisonment, and sults observed. If the criminal truly repents who commits within three years after the during the period of suspension, he is to be punishment has been completely served or given a reduction of sentence to life im- after release as the result of a pardon anoth-

76 CHINESE CRIMINAL LAW er crime punishable by not less than a fixed­ will be executed. term imprisonment. For a recidivist, the The conditions for receiving parole by a Code prescribes that a heavier punishment prisoner are prescribed as follows: he must should be imposed. have served not less than half of his penalty With regard to probation, parole and re­ of fixed-term imprisonment or not less than duction of sentence, there are also some spe­ ten years of his penalty of life imprisonment; cial prescriptions peculiar to China and based true repentance must have been demonstrat­ on the actual experience of this country, ed by him; and, it must be believed beyond which I don't want to expound today in or­ doubt that he won't cause further harm to der to save time. society. There is a provision of leniency towards The reduction of sentenced penalties is voluntarily surrendering criminals, which also a special syst!=m of China's own devel­ originated in China. To someone who volun­ opment. Any prisoner may have hislher pen­ tarily surrenders after committing a crime, alty reduced by a ruling issued by the court, a lesser punishment may be given. Those if she truly repents or demonstrates meritori­ among them whose crimes are relatively ous service when serving punishment. How­ minor may be given a mitigated punishment ever, the term of penalty actually executed or be exempted from punishment; even those should not, after one or more reductions, be whose crimes are relatively serious may also less than half of the term originally pro­ be given a mitigated punishment or exempt­ nounced, and for those sentenced to life im­ ed from punishment provided they demon­ prisonment, it should not be less than ten strate meritorious service. years. The main characteristic of the Chinese pro­ bation system is that probation is pronounced Categories of Crime Prescribed in concurrently with the sentence. In the case the Part on of a criminal who is to be sentenced to de­ Special Provisions in the Code tention or fixed-term imprisonment for not more than three years, where, according to Every article in this part stipulates one or the circumstances of his crime and his dem­ more crimes with the punishment for them. onstration of repentance, it is considered that There are a total of eighty-nine articles de­ applying a suspended sentence will not in fining over one hundred counts, which are fact result in further harm to society, proba­ divided into eight categories by the objects tion may be pronounced at the time he is sen­ being undermined: tenced. The probation in respect of a sen­ 1) Crimes oj Counter-revolution: These are tence of detention lasts for a period not less all acts endangering the People's Republic than the term of the sentence pronounced of China committed with the goal of over­ and not more than one year; and for fixed­ throwing the political power of the Repub­ term imprisonment, not less than the term lic and the socialist system-for example, of the sentence and not more than five years. colluding with foreign states in plotting to During the probation period, the criminal is harm the sovereignty, territorial integrity turned over by the security organ to a work and security of the Motherland, plotting to unit or a grassroots organization for obser­ subvert the Government or dismember the vation, and if he commits no further crime, State, etc. the sentence originally pronounced will not 2) C1-imes oj Endangering Public Security: be executed upon the expiration of the pro­ These are all acts endangering public secu­ bation period. However, if he commits any rity and placing an unidentified great num­ further crime, the suspension will be revoked ber of people or a great amount of property and the punishment originally pronounced in danger-for example, arson, breaching

77 EXPERTS' PAPERS dikes, causing explosions, poisoning, bribes, disclosing State secrets, engaging in sabotaging means of communication in a self-seeking misconduct, subjecting to prose­ manner sufficient to bring about their over­ cution persons who are clearly known to be throw or destruction. innocent or protecting from prosecution per­ 3) Crimes of Undermining the Socialist Eco­ sons who are clearly known to be guilty, sub­ nomic Order: The common feature of this cat­ jecting prisoners to corporal punishment and egory of crimes consists of going against the abuse, and so on. laws and regulations regarding economy Most of the articles in the part of the Crim­ management, undermining the regular activ­ inal Code containing Special Provisions de­ ities of economic management and therefore scribe concrete acts criminally labelled, thus undermining the national economy-for ex­ explicitly defining the actus 1'eus and mens rea ample, smuggling, speculating, counterfeit­ of the crime. Let's take perjury, for exam­ ing the national currency or valuable securi­ ple. Article 148 of the Code gives a descrip­ ties, illegC!lly chopping down trees and tion of it in detail as follows: during investi­ denuding forest areas, etc. gation and adjudication, a witness, expert 4) Crimes ofInfringing the Rights of the In­ witness, recorder or interpreter who, with re­ dividual and the Democratic Rights of Citizens: spect to circumstances having an important The sphere of this category of crimes is bearing on the case, intentionally gives false universally known, encompassing intentional evidence or makes a false expert evaluation killing, killing by negligence, intentional in­ record or translation, with the intention of jury, injury by negligence, rape, abducting framing another perSOll or concealing crimi­ and selling of persons, sabotaging elections, nal evidence. In this way, the conditions re­ depriving of the legal freedom of religous be­ garding the subject, purpose, acts and other lief, and infringing upon the customs and circumstances for constitution of the crime habits of minority nationalities, and so on. are laid down explicitly in law, and this pre­ S) Crimes of Property Violations: As is the vents people confusing an offence with a case in other countries, this category in­ non-criminal act. Certainly, besides such cludes robbery, seizing of property, larceny, descriptive provisions, there are also simple fraud, kidnapping, and so on. counts like intentional killing, and what we 6) Crimes of Disrupting the Order of Social call "blank" counts, which means one has to Administration: Entries in this chapter are look up other laws and regulations in order numerous, all of them directed against the to understand what concrete acts the count social order, endangering social security in really denotes. For example, in order to un­ various manners-for example, posing as derstand the actual conception of those State personnel to dv'at and bluff, assem­ crimes of violating the laws and regulations bling a crowd to disturb order in public regarding the control of monetary affairs, places, assembling a crowd to block traffic foreign exchange, gold and silver, industri­ or undermine traffic order, hooliganism, al and commercial affairs, or engaging in gambling, stealing and exporting precious speculation, which is provided for by Arti­ cultural relics, and so on. cle 117, you have to consult the above­ 7) Crimes of Disrupting Marriage and the mentioned laws and regulations. Family: For example, interfering with the All the legally-prescribed punishments in freedom of marriage of others by violence, the articles of Special Provisions are 1'elative­ bigamy, abusing members of the family with ly fixed ones and frequently alternative ones, serious circumstances, and so on. with a range going from minimum to maxi­ 8) Crimes of Dereliction of Duty: This is a mum. There are not any absolutely fixed pun­ category of crimes committed by State per­ ishments in these articles, not to say uniden­ sonnel, including demanding or accepting tified punishment. For example, the legally-

78 CHINESE CRIMINAL LAW prescribed punishment usually reads: the have served a term of imprisonment, only 4-6 perpetrator of a certain crime "is to be sen­ percent of them committed a crime again af­ tenced to not less than three years and not ter their release; in some places, the percent­ more than seven years of fixed-term im­ age is even lower. prisonment," or "is to be sentenced to not In recent years, some new developments more than five years of fixed-term imprison­ have come into being in this field. ment, detention or control, and may in addi­ The Chinese Government has worked out tion be sentenced to a fine." plans gradually to turn the prisons, reform­ through-labour centres and in particular the Reform-through-Labour juvenile rehabilitation centres into special schools for reforming and training. Various For prisoners in custody, a policy of regular classes have been set up in prisons. reform-through-Iabour is implemented. Any­ After a systematic education in literacy and one who is sentenced to detention, fixed­ technique, prisoners may also become mid­ term imprisonment, life imprisonment or the dle school graduates or obtain technical qual­ death penalty with suspension of execution, ification certificates if they pass the required provided that he or she can labour or work, tests and examinations. is obligated to do so during the period of con­ Recent years have witnessed the introduc­ finement. The purpose of this policy is to re­ tion of many new ways of mobilizing public mould hislher ideology, freeing himlher from participation in helping re-mould the prison­ bad influence and habits, and to re-socialize ers. To cite a few examples: 1) famous schol­ himlher into someone who can live on hislher ars, writers, educators, artists, musicians and own labour, abide by the law and be useful sportspeople are invited to call on prisoners, to society. Labour is a principal way of have heart-to-heart talks with them showing reforming criminals though it's not the only concern about their present and future, and one. It is indispensable for fostering a cor­ send them books and musical instruments so rect world outlook and value and for culti­ as to encourage them to make more effects vating a sense of responsibility in prisoners. to reform themselves; 2) former prisoners Prisons in China are practising a policy of who have already turned over a new leaf af­ "combining punishment and education" and ter release are organized to persuade current of "reform first, production second." Besides inmates to re-mould themselves; 3) family education through labour, prisoners are also members, relatives and friends of the pris­ offered moral and ethical education, legal en­ oners are encouraged and provided with ev­ lightenment and technical training. The pris­ ery facility to admonish and educate them; oners are treated in a spirit of humanitari­ 4) some of the inmates are organized to visit anism, with torture, corporal punishments factories and mills, rural areas and exibitions and humiliation of their dignity by prison of­ in order that they can educate themselves by ficers strictly forbidden on pain of criminal seeing the new developments of the country sanction. with their own eyes. The system of reform-through-labour has The resettlement of released prisoner has been effective and successful over the past always been in the centre of the prisons' con­ forty years, resulting in the re-moulding and cern. Nowadays, the majority of prisons have re-socializing of a great number of ordinary adopted a return-visit system consisting of and counter-revolutionary criminals, includ­ keeping in to~ch with the released offenders, ing the last Emperor of the Qing Dynasty and helping them gain access to schools or ob­ many Japanese, puppet Manchurian and tain employment. Guomindang war-criminals. According to some sample statistics, among those who

79 EXPERTS' PAPERS

Criminal Provisions Other for smuggling and the other concerning the Than the Code punishment of corruption and bribery. Pur­ suant to these supplementary decisions, any Having acquainted you with this summary person who unlawfully exports precious rel­ of the Code, I would like to shift to a brief ics, precious animals and products of them, introduction of some new developments in gold, silver or precious metals, or unlawful­ this field in the past few years. There have ly imports and exports narcotics, munitions, been some new stipulations and revisions of arms or forfeited currency is deemed to be certain provisions which can be divided into criminally responsible of smuggling. Also, three categories: any agency, corporation or enterprise shall 1. From 1981 on, the Standing Committee bear criminal responsibility if it engages in of the National People's Congress has ap­ smuggling. Not only governmental workers proved several important decision regarding can be deemed to be perpetrators of corrup­ criminal law. Now let me take some of them tion, but also the workers of collectively­ as an example. owned economic organizations and people Some criminals were taking advantage of who are in charge of public property. The the incompleteness of the legal system and crime of corruption has been further defined some loopholes in management and tried ev­ in detail. Embezzling public money is made ery means to undermine the socialist eco­ an independent court. And demanding bribes nomic construction, which was in the proc­ is now included in the conception of bribery. ess of reforming the economic structure and In order to further improve public securi­ the implementation of the policy of opening ty and to protect more effectively the lives up to the outside world and vitalizing the and property of citizens, the Standing Com­ economy, and economic crimes like smug­ mittee has approved a decision on severe gling, speculating in foreign exchange, em­ punishment of criminals who seriously en­ bezzling of public property, stealing and un­ danger public security, which provides lawful selling and exporting of precious cul­ courts with the discretion to impose a pun­ tural relics, and demanding or accepting ishment heavier than the highest limit stip­ bribes have been rampant over the past few ulated in the Code, for the following seven years. In order to crack down on such categories of criminal: 1) ring-leaders of crimes, the Standing Committee of the Na­ criminal hooligan groups or those who car­ tional People's Congress has passed a Deci­ ry lethal weapons to engage in criminal hooli­ sion on the Severe Punishment of Criminals gan activities, when the circumstances are who Seriously Undermine the Economy. serious, or those who engage in hooligan ac­ The characteristic of this decision is to make tivities causing especially serious harm; 2) the punishment of the abovesaid crimes thuse who intentionally injure other persons, more severe than that stipulated by the causing serious injury or death, when the cir­ Code. For example, according to Article 118, cumstances are odious, or those who com­ the highest limit of punishment for smug­ mit violence and do injury to State person­ gling and speculating is a ten-year fixed-term nel and citizens who accuse, expose or ar­ of imprisonment, but now for such crimes a rest criminal elements and stop criminal acts; punishment of up to more than ten years of 3) ring-leaders of groups that abduct or sell imprisonment can be imposed, or life im­ people, or those who abduct or sell people prisonment, or even the death penalty, if the with especially serious circumstances; 4) circumstances are especially serious. those who illegally manufacture, trade in, A few years later, in 1988, the Standing transport, steal or forcibly seize guns, mu­ Committee added two supplementary deci­ nitions or explosives with especially serious sions in this respect, one on the punishment circumstances or causing serious conse-

80 CHINESE CRIMINAL LAW quences; 5) those who organize reactionary criminal acts, which supplement the relevant superstitious sects or secret societies and use articles of the Code, for example, Article 173 feudal superstition to carry out counter­ of the Code has stipulated a penalty for steal­ revolutionary activities, seriously endanger­ ing and exporting precious cultural relics, ing public security; 6) those who lure wom­ but without a concrete description of the act. en or force them into prostitution, or provide Now Article 31 of the Law on Protection of shelter for them, when the circumstances are Cultural Relics provides that the following especially serious; 7) those who impart crim­ acts are to be punished according to the inal methods, when the circumstances are es­ above-mentioned article of the Code: 1) em­ pecially serious. bezzling or stealing State-owned cultural rel­ II. In most of the special laws and regula­ ics; 2) stealing and exporting precious cul­ tions passed by the Standing Committee of tural relics or speculating in such relics, the National People's Congress or the State when the circumstances are serious; 3) inten­ Council, there is usually a special chapter or tionally damaging precious cultural relics or some articles stipulating the legal responsi­ historical sites protected by the State, when bilities or the rewards and sanctions, some­ the circumstances are serious. Meanwhile, times including the criminal sanctions. The paragraphs 2 to 4 of the same Article pro­ specific features of those stipulations con­ vide respectively that excavating on one's cerning penal sanctions are: firstly, they are own accord historical sites or ancient tombs all attached to the Criminal Code, and there­ is to be deemed as theft, and selling on one's fore the cardinal principles and provisions of own accord self-kept precious cultural relics the General Part of the Code are valid and to foreigners is considered stealing and ex­ binding in the implementation of those stipu­ porting such relics. The last group of arti­ lations; secondly, they do, as a rule, stand cles consists of those which, while describ­ along with other sanctions like disciplinary, ing the criminal acts which are to be subject­ administrative and civil ones, and only those ed to criminal prosecution, do not, however, acts which due to their seriousness have al­ point out clearly which article of the Crimi­ ready constituted a crime have to be desig­ nal Code is to be quoted and applied. It is the nated as criminal; thirdly, these stipulations courts who are authorized to select the most generally do not fix concrete penalties for appropriate article. For example, Article 26 crimes and just leave it to the Code. of the Law on Accounting provides tl1at who­ Perhaps we can divide these articles into ever from amongst leading administrative three groups according to their wording and personnel, accountants or other citizens presentation. The first group consists of counterfeits, remakes or intentionally those articles which clearly provide that the eliminates accounting certificates, account crime can be punished pursuant to a certain books, if the circumstances are especially se­ article of the Code. Take Article 6:3 of the rious, is to be prosecuted according to the Patent Law, for example, which stipulates law. Article 29 of the same Law stipulates that for stealing another's patent, the directly that leading personnel or other people who responsible person is to be prosecuted ac­ retaliate against accountants who are consci­ cording to Article 127 of the Criminal Code; entiously performing their duty strictly pur­ Article 66 of the Law again provides that, suant to law, are to be subjected to adminis­ for dereliction of duty, if the circumstances trative sanction; and if the circumstances are are serious, the person in charge of patent serious also have to bear criminal responsi­ affairs in the Patent Bureau has to bear crim­ bility according to the law. inal responsibility according to Article 188 As a matter of fact, such stipulations make of the Criminal Code. The second kind of ar­ up the Particular Part of the Criminal Code. ticles are those giving descriptions of the To name some more special laws and regu-

81 EXPERTS'PAPERS lations which contain such criminal sanc­ ence of some of their provisions from those tions, we can list the Law on Forestation, the of the Code. For example: 1) Their territori­ Law on Prairie, the Law on Economic Con­ al effect is wider. The term "battlefield" and tracts, the Law on Sanitation of Foodstuff, "area for military actions" would sometimes and the Law on Medicine Management, and mean places outside China's territory as in so on and so forth. In my view, to supple­ the case of an anti-aggression war, during ment and concretize the Particular Part of which our army has sometimes to fight and the Criminal Code in such manner would be pursue enemy troops outside the national an important short-term measure in the pe­ boundaries. 2) In respect to penalties, the riod before a comprehensive revision of the punishment of control is not applicable, since Code is possible. such a penalty does not include confinement III. There is an important special law in and therefore is incompatible with the situ­ Chinese legislation, namely the Regulations ation in the army. On the contrary, the Reg­ on Punishment of Armymen who Violate ulations have added a supplementary punish­ their Duty (Provisional). The Regulations ment, that is, the deprivation of awarded mil­ have been drafted on the basis of experience itary medals, badges and honourable titles. in the implementation of military rules and 3) They provide a new measure for imple­ disciplines accumulated through decades of mentation of probation. According to the revolutionary struggles. The Regulations, in Code, if a criminal being pronounced as un­ reality, form a special chapter in the Partic­ der probation commits no further crime dur­ ular Part of the Code. What would be inter­ ing the probation period, then, upon the ex­ esting for you is that they are dependent on piration of the probation periott, the sentence and at the same time independent from the originally pronounced is not to be executed. Criminal Code. However, the Regulations stipulate different­ The dependency of the regulations finds ly-that is, for a criminal sentenced to less its expression in the following: 1) the Regu­ than three years' fixed-term of imprisonment lations do not have a general part of their and pronounced under probation who consti­ own, with the exception of a sman number tutes no practical danger, the original sen­ of special provisions. Therefore, the stipu­ tence can be quashed if he has demonstrat­ lations of the Code regarding criminal re­ ed meritious service. 4) The Regulations, sponsibility, the kinds of punishment, the anyway, have provided also some criminal principles for sentencing, etc. are basically acts that are quite similar to those defined applicable to the violations of the Regula­ in the Code, such as the leaking of military tions; 2) the Regulations contain only those secrets, leaving one's military post without criminal acts which have not been provided permission, dereliction of duty, secretly for the the Code; henceforth, all kinds of kill­ crossing national boundaries or borderlines, ing, arson, spreading poison, robbery, rape etc. According to the principle of superiori­ and hooliganism, being ordinalY crimes, ty of special laws over general ones, all these even though the perpetrators are armymen acts are to be dealt with pursuant to the Reg­ or employees of the armed forces, have to ulations and, therefore, the Code is inapplica­ be dealt with pursuant to the Code; and like­ ble. wise, corruption, accepting bribes by serv­ icemen are also to be punished according to Some Other New Developments the Code, because this kind of act hasn't Relating to Criminal Law been stipulated by the Regulations specifi­ cally. From the second half of 1985 onwards, the The relative independence of the Regula­ Chinese Government has been implementing tions from the Code is manifest in the differ- a bold plan to popularize basic knowledge

82 CHINESE CRIMINAL LAW about the Constitution and a dozen and so in the prevention of crime." other laws like the Criminal Law, the Crimi­ In recent times, penolists, criminologists, nal Procedural Law, the General Principles procurators, judges and practitioners have of Civil Law, the Civil PrDcedural Law (ten­ been very active in discussing how to revise tative), the Marriage Law, the Law on Mili­ the present Code in order to further improve tary Service, etc. among the citizens, in par­ it. Some questions are at the centre of pub­ ticular governmental officials and young peo­ lic attention. For example-Is it necessary ple, including teenagers. The campaign, to enhance the role of the fine? Is it benefi­ which is to be accomplished in five years or cial to deem a legal person as criminal? How more, is expected to playa significant role should the crime of speculating be defined? in, amongst other things, preventing and Is it the time to establish a crime against the controlling criminality. It should be men­ State instead of the counter-revolutionary tioned above all that the State Educational crime? Is it preferable to include the provi­ Commission has already made it a rule to in­ sions regarding the punishment of armymen clude "Law ABC" as a required course in the who have violated their duty in the Particu­ curriculum of universities and colleges, as lar Part of the Code as one of its component well as middle and primary schools. Several chapters? And, in what way can we co­ hundred million people have gone through ordinate oJ:' unify all the provisions concern­ the initial stage of this campaign and a great ing criminal sanctions? and so on. Many in­ number of governmental functionaries are teresting proposals have been put forward. beginning to shift to the study of other laws Before closing my presentation, I would and regulations, which are closely related to like to say a few words about the compre­ their own services. hensive treatment of criminality. There exists a unique feature in China's We Chinese always maintain that criminal­ legal system which is called people's media­ ity is a kind of complicated social phenome­ tion. It also plays an important part hl the non, and that in order to prevent and con­ prevention and control of crime. Since quite trol it, a policy or strategy of comprehensive a number of criminal cases develop from treatment should be carried out. Criminal minor civil conflicts such as succession dis­ justice constitutes only one of the component putes, petty injury, marriage, divorce, dis­ parts of this comprehensive treatment; to be agreements within the family, neighbour­ exact, it's only the last resort in the war hood or community disputes, etc., the time­ against criminality. What we call compre­ ly and peaceful solution of such conflicts hensive treatment actually means general through mediation is of great importance. At mobilization and common efforts, under the present, about one million People's Media­ direction and with the co-ordination of the tion Committees have been established, com­ central government, of the whole of society, posed of approximately seven million including the judicial organs, governmental volunteer-mediators, who are mainly veter­ agencies, social organizations, enterprises, an workers, teachers or housewives. Every schools, families and even every individual year they settle a great number of disputes, citizen, to prevent and control criminality, which account for about four times the num­ making use of legal, administrative, cultur­ ber of civil proceedings solved by the courts. al, educational and moral measures. My dear Mediation, being a voluntary procedure, colleagues, perhaps you won't consider me does not prevent any party from going to as too ambitious if I solemnly suggest from court if he refuses to have the matter medi­ this rostrum that we join our efforts and co­ ated or disagrees on the mediation decision. operate even more closely in the fight against It's wonderful to know that in China media­ criminality in order to prevent, control and tion is called by many people' 'the first front at last eliminate crimes all over the world.

83 Investigation and Prosecution of Offences in England and Wales

by John Wood *

1. Introduction As part of its criminal justice role, the Home Office is responsible for the organisa­ Although the United Kingdom is governed tion and management of the Magistrates from Westminster there are three legal sys­ Courts throughout England and Wales. The tems covering England and Wales, Scotland, administration in Scotland and Northern Ire­ Northern Ireland, each with different ele­ land is separate. I should explain that in Eng­ ments of control and each with procedures land and Wales there is a four tier criminal which differ from the others. It is with the court system which I shall explain later. system in place in England and Wales that Most of the legislation in the United King­ this paper is concerned but it will be neces­ dom in relation to criminal justice is instigat­ sary to make reference to the other countries ed by the Home Office unless that legisla­ of the United Kingdom for the sake of com­ tion is instigated by the Lord Chancellor's pleteness. Department.

2. Political Control b) Lord Chancellor's Department The Lord Chancellor is a member of the There is no Ministry of Justice in the Unit­ British Cabinet, he is the Speaker of the ed Kingdom, the responsibility for political House of Lords and he is also the Senior control being distributed between various Judge in the House of Lords, which is the Ministers, and when I say political control, highest Court in the United Kingdom. The I mean control of the police and other inves­ Lord Chancellor appoints the Judges in all tigators and control of prosecutions and the the Courts and also appoints Magistrates. He Courts. I shall deal with each Minister in is responsible for the administration and turn. funding of the legal aid scheme which ena­ bles defendants who do not have sufficient a) Home Olft"ee money to be represented by lawyers in a The Home Office, or Internal Affairs Min­ criminal trial. istry, is one of the biggest in the United Kingdom and has responsibility for a large c) Attorney General number of topics including: The position of the Attorney General is rather curious and there are many in my i) Criminal policy country who do not understand it and who ii) Criminal justice cannot see how the Attorney General iii) The police resolves several conflicts of interest. iv) Broadcasting The Attorney General is an elected mem­ v) Immigration and nationality ber of the House of Commons. He is a law­ vi) Prisons yer and always what is called a Queen's Counsel, which means he is recognised as a senior and able lawyer. He is the Legal Ad­ viser to the Government in relation to Eng­ .. Head of the Serious Fraud Office, Great Britain land, Wales and Northern Ireland both in

84 U.K. INVESTIGATION AND PROSECUTION civil and criminal matters. and since the Police Act 1964 there are no The Attorney General is the Minister re­ borough Forces and a number of county sponsible for the Crown Prosecution Serv­ Forces have been amalgamated. The Min­ ice and the Serious Fraud Office. In this role ister with responsibility for the Police is the he is not acting as part of the Government Home Secretary and he has direct control of and no other Minister, not even the Prime the Metropolitan (London) Police. The ad­ Minister, can influence him in making his de­ ministrative control of the other Police cisions in criminal cases. Indeed, there is one Forces, including the City of London, is the very famous case where the Prime Minister responsibility of the Police Committees of the time tried to do so, and there was such which comprise elected members of the lo­ a public scandal that the Government had to cal authority and magistrates. 1 resign. That was the Campbell case in 1924. A police officer, whether he is the Chief In making decisions in criminal cases the At­ Officer or a Constable, is a servant of the torney General must not let himself be influ­ Crown even though he is paid by his Police enced by political motives, he must only be Authority and is the subject of discipline in influenced by what is good for the British the case of most ranks by the senior offi­ public. cers.2 There are a number of other Police Forces 3. Criminal Investigation which have a limited jurisdiction or a specia­ lised role. For example, the Ministry of i) PoNce Defence has a Force which is responsible for There is no national Police Force in Eng­ patrolling and securing Ministty property land and Wales or Scotland. In Northern Ire­ and investigating criminal offences commit­ land there is a single Force, the Royal Ul­ ted against that property. The British Trans­ ster Constabulary. port Police is responsible for policing railway In England, there are 43 main Police trains and, in London, the buses. The Atomic Forces, all established in different ways. The Energy Police is responsible for policing all oldest and largest Force is the Metropolitan sites where there is nuclear power and within Police in London which was established in 15 miles of those sites. 1829 and covers the whole of greater Lon­ don, apart from the City of London the finan­ ii) Other Criminal Investigation Bodies cial area of London whose Force was estab­ There are two important Departments lished in 1839. which have a substantial investigative role. The Municipal Corporations Act 1835 and These an:: the Iniand Revenue and Customs a later Act of 1882 required the appointment and Excise. The Inland Revenue Investiga­ of committees known as Water Committees tion Branch deals with false tax returns and whose duLy it was to establish Pc lice Forces attempts to defraud the Revenue in the in the boroughs in England and Wales, whole for the United Kingdom. Customs and boroughs being places with reasonable large Excise investigate smuggling and a tax on populations. The County Police Act 1839 goods known as Value Added Tax or VAT gave power to Justices of the Peace, that is in the United Kingdom. Both have very ex­ to say Magistrates who are unpaid Judges tensive powers to assist in their investiga­ in the lowest tier criminal courts, to estab­ tions and, additionally, conduct the prosecu­ lish a Police Force for a county, but exclud­ tions in England and Wales. Neither the In­ ing the boroughs for which Forces had been land Revenue nor the Customs and Excise established. carry on the prosecutions in Scotland or During the last thirty years there has been Northern Ireland (see later). a gradual reduction in the number of Forces Any person who makes or attempts to

85 EXPERTS'PAPERS make a profit through the sale or purchase and said that "obtained" should not be of stocks and shares, and in doing so obtains narrowly interpreted and included infor­ any price-sensitive inside information, com­ mation that the offender sought or was mits a criminal offence. 3 The Financial Serv­ given whether or not he asked for it. ices Act 1986 gives the Secretary of State for Trade and Industry power to appoint In­ Prosecutions spectors in investigate, and these Inspectors can require any person who has relevant in­ i) Crown prosecution service formation to answer. 4 Perhaps it will be con­ Before 1986 there were many prosecutors venient if I refer now to two interesting cases in England and Wales and very little control in relation to insider trading: was exercised over them. There were three types of prosecutor who conducted prosecu­ 1. Mr. Jeremy Warner, a Financial Journal­ tions on behalf of the police: ist employed by The Independent news­ paper, wrote an article in respect of a par­ a) Lawyers employed by the Local Authority ticular investigation indicating that he had b) LaT.,vyers employed by the Police Author­ in his possession information that would ity be useful to the Inspectors appointed by c) Lawyers in private practice. the Secretary of State. The Inspectors re­ quested Mr. Warner to give that informa­ Th..-: first two types were paid by either the tion, but he declined on the basis of the Local Authority or Police Authority, often confidentiality of the receipt of the infor­ occupied offices in police stations and were mation. The Inspectors went to the High the subject of direction by the police. Even Court to force Mr. Warner to disgorge the if a lawyer advised that there was not enough information, but the Judge found in his evidence to ensure a reasonable prospect of favour. However, the Inspectors appealed convicting the defendant, it was open to the to the Court of Appeal and that Court said police to ignore that advice and continue with that in the particular circumstances it was the prosecution. The fact that there was a incumbent upon Mr. Warner to disclose large number of cases where the defendant the information and its source. 5 was found not guilty was a great concern to 2. Mr. Brian Fisher was alleged to have ou­ those working in the criminal justice system. tained price sensitive information and Lawyers in private practice also had to do bought shares in Thomson Tealine some what the police required of them, the only hours before the announcement of a take­ difference with the first two types being that over bid for the company. After two days the private lawyers were paid fees by the po­ of legal argument, the Trial Judge decid­ lice on a case by the police on a case by case ed that Mr. Fisher had not "obtained" the basis. information but had been given it without In 1978 the concern for the failure of so any opportunity for him to prevent that in­ many prosecutions and the attitude of the po­ formation being passed on. "Obtaining" lice in prosecuting was such that a Royal in the context of insider dealing involved Commission was set up to investigate the actively seeking or acquiring information. 6 powers and duties of the police, the crimi­ Clearly this decision was extremely unwel­ nal process and other feat\lres of criminal come to the authorities in the United King­ procedure and evidence. 6 dom and the Attorney General referred The report .of the Commission is, as you the matter to the Court of Appeal for a rul­ would expect, a most comprehensive docu­ ing upon the point at issue. The Court of ment and 1 wish to quote two paragraphs Appeal reversed the decision of the Judge where it comments upon the separation of

86 U.K. INVESTIGATION AND PROSECUTION the roles of the investigator and the prosecut­ a close supervision over police decision to ing lawyer which is relevant in relation not prosecute but there are within the organi­ only to the work of the Crown Prosecution sation and by no means all Forces have Service but also the Serious Fraud Office: Prosecuting Solicitors' Departments, or if they have them, consult them on prose­ "6.23 The analysis of the acquittal sta­ cution decisions." 7 tistics in the preceding paragraphs pro­ vides one base for looking critically at the In the second paragraph is a reference to current arrangement for police prosecu­ the Director of Public Prosecutions. The Of­ tions. The empirical evidence that the ac­ fice of Director of Public Prosecutions was quittal statistics provide gains support created in 1879 in order to advise on major from some people with wide experience prosecutions, was abolished in 1884 but re­ of prosecution work who have cited us in­ created in 1908. Between 1908 and 1986 the stances where evidentially weak cases Office dealt with a,~1 the major criminal cases, have been continued by the officer in not investigating them, but prosecuting them charge of the case despite and sometimes after the police investigation had taken place. in the face of contrary advice from the Those included all murder cases, all cases of lawyer who has conduct of the prosecu­ spying and terrorism, major fraud and other tion. It has also been put to us that indict­ cases of great public interest. The head of ments are sometime overloaded, that is the Department was the Director of Public that more charges than necessary are in­ Prosecutions and when the Office was at its cluded on the indictment, thus creating busiest he was assisted by about 80 lawyers. extra 1llOrk for the court without affect­ It was in the power of the Director of Public ing the sentence. The implication is that Prosecutions to require cases to be sent to the investigator's and the lav.ryer's func­ him and in those cases he could override the tions in the prosecution process should be wishes of the police. Thus, if the lawyer ex­ made separate and distinct." amining the papers came to the conclusion "6.24 This approach is also supported that the evidence was not sufficient to con­ by another line of reasoning. Although tinue proceedings he would stop the prose­ there is no evidence that the police act cution. Equally, in those cases where the po­ other than impartially it is said to be un­ lice did not wish to prosecute, the Director satisfactory that the person responsible of Public Prosecutions could do so. for the decision to prosecute should be the In its report the Phillips Commissions rec­ person who has carried out or been con­ ommended that a Prosecution Service should cerned in the investigation. A police offi­ be established. The commission used these cer who carries out an investigation, in­ words: evitably and properly, forms a view as to the guilt of the suspect. Having done so, "7.3 We consider that there should be without any kind of improper motive, he no further delay in establishing a may be inclined to shut his mind to other Prosecuting Solicitor Service to cover ev­ evidence against the guilt of the suspect ery police force. This should, in our view, or to overestimate the strength of the ev­ be structured in such a way as both to idence he has assembled. The police are recognise the importance of independent not required to seek legal advice or, if they legal expertise in the decision to prosecute are given it, to accept it before deciding and to make the conduct of prosecution to prosecute except in those limited num­ the responsibility of someone who is both ber of cases which are the province of the legally qualified and is not identified with Director of Public Prosecutio:1s. There is the investigative process, (we are here

87 EXPERTS'PAPERS

concerned with fairness); to rationalise the have all those prosecuting offices controlled present variety of organisational and ad­ by Local and Police Authorities. The Crown ministrative arrangement (in order to im­ Prosecution Service had an extensive role in prove efficiency); to achieve better ac­ the prosecution of fraud, but not the investi­ countability locally for the Prosecution gation, but such was the volume of work that Service while making it subject to certain cracks began to appear in the system, and national controls (fairness and openness criticism was being voiced by may in the are both involved here); and to secure Government, in Parliament and in the finan­ change with the minimum of upheaval and cial institutions of the City of London. at the lowest cost possible. This is the sense of almost all of the evidence to us iiJ Other prosecutors on this point. A very few witnesses defend Customs and Excise and the Inland Reve­ the use of private solicitors as prosecutors nue have their own Prosecutions Depart­ for the police, on the grounds that their ment, but the work is limited to those crimi­ experience of defence and prosecution nal offences within the remit of those Depart­ work makes them more effective prose­ ments such as smuggling and tax fraud. The cutors and gives them enhanced impartial­ Department of Trade and Industry has a reg­ ity and that using them offers greater flex­ ulatory role, and minor offences such as fail­ ibility of prosecution arrangements partic­ ing to file statutory information in relation ularly in country areas. We have some to companies, including annual accounts, are doubts about the validity of these argu­ prosecuted by the Legal Branch. That Le­ ments but our main reason for recom­ gal Branch also has a major role in relation mending the phasing out of the private to insider trading. In addition, private citi­ solicitor in favour of an organised service zens may institute criminal proceedings in is that the use of the former makes it vir­ which they have an interest but few do so. tually impossible to achieve some of the In Scotland, the Procurators Fiscal prose­ important objects which we believe are cute every offence, including serious fraud, desirable; in particular greater conformi­ and also all those offences prosecuted by

ty of general prosecution policies, en­ Custom and Excisel Inland Revenue, Trade hanced efficiency, and accountability for and Industry and others in England and the efficient use of resources and for the Wales. A private citizen may prosecute only execution of general prosecution poli­ if he had leave of the court. In Northern Ire­ r cies." 8 land, prosecutions are conducted by the Di­ rector of Public Prosecutions (Northern Ire­ It took some time for the recommendations land), except where serious fraud is involved of the Phillips Report to be brought into ef­ when it is conducted by the Serious Fraud fect mainly because of a difference of opin­ Office. ion whether the new prosecuting service should be based on national or local controL iii) Serious fraud office Ultimately, the government decided upon There was, of course, a time when, certain­ national control and the Prosecution of ly as far as the City of London was con­ Offences Act 1985 created the Crown Prose­ cerned, the maxim "an Englishman's word cution Service, a Service designed to be re­ is his bond" would never have been chal­ sponsible for the prosecution of all offences lenged. For decades the City operated in investigated by Police Forces in England and many respects like a cosy little club­ Wales. The head of the Service is the Direc­ something which has both advantages and tor of Public Prosecutions but his Depart­ disadvantages; one of those advantages was ment has been merged into the Service, as the innate ability of a small close-knit com-

88 U.K. INVESTIGATION AND PROSECUTION munity to impose its own standard and dis­ "The principal weakness in our ar­ cipline on its members. If a member began rangements for the prosecutions and in­ to resort to sharp or dishonest practices, that vestigation of fraud identified by Lord fact quickly became known and he would be Roskill was their fragmentation. Most se­ shunned. But in the last few years there has rious fraud offences were investigated by been great parliamentary and public criti­ the Police. But that is not as neat and sim­ cism that major offenders have not been ple as at first it may sound; as I have al­ prosecuted for serious fraud. ready pointed out in England we do not Where enquiries into apparent irregulari­ have national police forces but a total of ties revealed evidence of fraud, that would 43 separate police forces organised on a usually be passed to the Police or the Crown geographical basis. Although each force Prosecution Service with a view to further has its own group of officers-fraud investigations but investigations by the Po­ squad-dedicated to the investigati.ons of lice and prosecutions by the Crown Prose­ fraud, the size and experience of those cution Service would take a very long time, squads is variable. The longest such es­ if they got under way at all. tablished squad is the Metropolitan and A Committee appointed by the Govern­ City Police Company Fraud Department ment under the Chairmanship of Lord (a combined unit) which was set up in Roskill, a Lord of Appeal, to recommend im­ 1946. Its present size is very modest hav­ provements in investigation and prosecution ing regard to the size of its commit­ of fraud had some strong comments to make. ments." Paragraph 1 on page 1 of the Report 9 had this to say: I should say at once that, having often worked alongside fraud squad officers in my "The public no longer believes that the 30 years as a prosecutor, as police officers system in England and Wales is capable I find them of the highest calibre. Sir Tho­ of bringing the perpetrators of serious mas Hetherington went on to say: frauds expeditiously and effectively to book. The overwhelming we:,ght of the ev­ "But, at the end of the day, experience idence laid before us suggests that the has shown that it is simply not possible public is right. In relation ta such crimes, for a police force to generate within its and to the skilful and lietermined crimi­ own organisation the wide range of skills nals who commit them, the present legal and experience necessary for the investi­ system is archaic, cumbersome and un­ gation of complex commercial fraud. reliable. At every stage, during investiga­ Broadly speaking, these skills are ac­ tion, prepdration, committal, pre-trial re­ counting expertise, with particular refer­ view and trial, the present arrangements ence to any specialist background (e.g. a offer an open invitation to blatant delay commodity market or the reinsurance and abuse. While petty frauds, clumsily market) against which the fraud is alleged committed, are likely to be detected and to have occurred; and legal expertise in punished, it is all too likely that the larg­ respect of the legal framework of the est and most cleverly executed crimes es­ sphere of activity within which fraud is al­ cape unpunished." leged to have occurred, as well as crimi­ nal practice and procedure and the com­ In an address to the 81st International plex rules of evidence. Just as important Seminar, the former Director of Public are the investigatory skills which are the Prosecutions, Sir Thomas Hetherington, had major contribution of the police. The this to say: mounting of a successful prosecution for

89 EXPERTS'PAPERS

fraud will always be dependent on those study, but it concluded that they did not go responsible for the investigation identify­ far enough. ing at an early stage the matters most like­ Sir Thomas Hetherington also pointed out ly to reveal the commission of criminal that the Roskill Report noted the wide inves­ offences and what those offences might tigative powers available to the Department be. Their efforts need to be concentrated of Trade and Industry which were not avail­ on building up a case founded on admis­ able to the Police or the Crown Prosecution sible evidence and focusing on the main Service for the purpose of investigating participants. For years, police officers fraud. In relation to companies and those tended to approach fraud on the basis of conducting a range of businesses, such as in­ a wide ranging investigation embracing surance, which the Department of Trade and not only the central issues but also a num­ Industry supervises, there are extensive ber of peripheral matters which do not af­ powers to require the production of docu­ fect the main offenders but only the min­ ments and to give explanations about the nows. This usually leads them up a num­ conduct of the affairs of the business or com­ ber of alleys adding greatly to the length pany. 10 If fraud was found, it was reported of the investigation. So often investiga­ to the Crown Prosecution Service. Conse­ tions carried out in this way conclude with quently it has frequently been necessary for a mountain of paper delivered to a the Police or the Crown Prosecution Serv­ prosecuting lawyer who then identifies a ice, when trying to investigate an allegation fundamental flaw in the case which can­ of fraud, to stop their own investigations and not and could not have been remedied. If ask the Department of Trade and Industry only this could have been identified to the to conduct an investigation into the affairs investigation officer at an early stage, of the company under its powers. Whilst the enormous waste of time and effort would end result may be very similar, this was an­ have been prevented and those resources other procedure which served only to add de­ diverted to another case, probably with lay. better result." The suggestion by Lord Roskill was for one organisation which would take on all the Furthermore, it is extremely difficult for functions of detection, investigation and a lawyer coming to a case after its investi­ prosecution of serious fraud cases. In fact, gation to assimilate such a vast quantity of that has not proved possible; but we believe detail. that in practice what we are doing will come The involvement of accountancy in the in­ very close to it. vestigation process was until recent years Section 1 of the Criminal Justice Act 1987 wholly exceptional, but has now become ac­ -passed as a result of the Roskill recommen­ cepted. About 4 or 5 years ago the Director dations-states that the Director of the Se­ of Public Prosecutions pioneered a scheme, rious Fraud Office: known as Fraud Investigation Groups, under which frauds would be investigated on some­ "May carry out in conjunction with the thing of a co-operative basis with the police police investigations into any suspected consulting the Director of Public Prosecu­ offence which appears to him to involve tions at an early stage and accepting advice serious or complex fraud." and also the assistance of a number of ac­ countants recruited to the staff of the Direc­ You will wish to note that the Serious tor. These arrangements had just begun to Fraud Office is completely separated from operate fully by the time Lord Roskill's the Crown Prosecution Service. The whole Fraud Trials Committee carried out its idea of the Serious Fraud Office is based on

90 U.K. INVESTIGATION AND PROSECUTION bringing together the investigation and 4. Powers of the Serious Fraud Office prosecution functions but, for constitutional reasons, the police remain under separate Extensive powers of investigation are command even though they are located in given to the Director by Section 2 of the the same building and in constant daily con­ Criminal Justice Act 1987. When the Crimi­ tact with affairs of the Serious Fraud Office. nal Justice Bill (1986) was under considera­ tion by Parliament, concern was expressed iv) Differences between crown prosecution at the range of powers, and there is no doubt service and serious fraud office that their use will be carefully scrutinized. It will be recalled that the Phillips Com­ It is, therefore, essential that great care is mittee recommended that the function of in­ taken, not only in the decision whether to use vestigation and prosecution should be kept the powers, but also in the manner of their separate and this is the basis upon which the exercise. Crown Prosecution Service carries out its There are two conditions precedent to the work. The Police investigate-they can, of exercise of Section 2 powers: course, always ask for legal advice but sel­ dom do so-and when the investigation is (a) The Director must be investigating a complete, or when an arrest is made, the pa­ suspected offence which appears to him pers are passed to the Crown Prosecution on reasonable grounds to involve seri­ Service. Although the Police may make an ous or complex fraud (Section 1(3)); and arrest, as soon as the defendant is brought (b) It must appear to him that, for the pur­ to Court, all decisions whether to continue poses of the investigation, there is good the prosecution and the charges to be laid reason to exercise the powers for the against the defendant are entirely for a law­ purpose of investigating the affairs, or yer in the Crown Prosecution Service. any aspect of the affairs, of any person It is ironic that only a few years later the (Section 2(1)). Roski1l Committee recommended that in re­ lation to serious and complex fraud, the The Director may, if he thinks fit, conduct lawyers-and the accountants-should be in­ any investigation under Section 1 (3) in con­ volved in the investigation. Section 1(3) of junction either with the police or with any the Criminal Justice Act 1987 states: other person who is, in his opinion, a proper person to be concerned in it. Generally the "The Director (of the Serious Fraud Of­ Office will conduct enquiries, usually with as­ fice) may investigate any suspected sistance from the police, but inevitably there offence which appears to him on reason­ will be cases where outside expertise will able grounds to involve serious or com­ need to be brought in. plex fraud." By Section 2(2), the Director may by no­ tice in writing require the person whose af­ And section 1(4) says: fairs are to be investigated, or any other per­ son whom he has reason to believe has rele­ "The Director may, if he thinks fit, con­ vant information, to attend before the duct any such investigation in conjunction Director at a specified time and place and an­ either with the police or with any other swer questions or otherwise furnish informa­ person who is, in the opinion of the Direc­ tion with respect to any matter relevant to tor, a proper person to be concerned in it." the investigation. An amendment contained in the Criminal Justice Act 1988 makes it clear that the time for compliance with such requirement may be expressed as being im-

91 EXPERTS'PAPERS mediate. Clearly those exercising the pow­ under Section 2(2), considerable care will er must act reasonably (apart from anything have to be taken to expunge the mandatory else, 'reasonable excuse' is a defence in any nature of the Section 2(2) requirement from prosecution of a person for failing to comply the mind of the accused so that any after­ with a requirement), and it would normally caution statement will be admissible. be unreasonable to expect a person to answer Recently the Home Secretary has an­ questions immediately if he wishes first to nounced that he is considering abolishing the consult his professional advisers. Equally, it right of silence when interviewed by the Po­ will often be unreasonable to expect a per­ lice. Of course, one cannot make someone son to break important business appoint­ answer questions when he is not willing to ments. do so but in these circumstances it is pro­ Failure without reasonable excuse by any posed that the Judge, when addressing the person to comply with a requirement im­ Jury, and the prosecutor may comment un­ posed under Section 2(2) is a summary favourably upon the failure of the defendant offence for which he is liable on summary to explain himself at an early stage instead conviction to imprisonment for six months of leaving it to the trial. There is also a pro­ or a fine or both (section 2(13». Where a per­ posal that failure to answer may in some son, in' purported compliance with a require­ cases amount to evidence in support of the ment under Section 2(2), makes a statement prosecution cas..:: but this is very controver­ which he knows to be false or misleading in sial and may not be accepted by Parliament. a material particular, he is guilty of an It is interesting to compare the powers of "either way" offence for which he is liable the Secretary of State for Trade & Industry on conviction upon indictment to imprison­ under Sections 432(2) and 447 of the Com­ ment for two years or a fine or both; and on panies Act 1985. Section 432(2) enabies the summary conviction, to imprisonment for six Secretary of State to appoint Inspectors to months or a fine or both (Section 2(14». Sum­ investigate and report where there are cir­ mary trial is by Magistrates alone. Trial on cumstances suggesting that a company's af­ indictment is by Judge and Jury. Destruction fairs are being conducted fraudulently, that of documents with a view to frustrating an officers of a company have been guilty of investigation can lead to imprisonment of up fraud, misfeasance or misconduct, or that to seven years on conviction upon indictment shareholders have not been given all the in­ or six months on summary conviction or a formation which they might reasonably ex­ fine or both (Section 2 (16». pect. Section 447 gives the Secretary of State Where an accused makes a statement in power to require a company to produce response to a requirement imposed by Sec­ books or papers for inspection and provide tion 2(2), that statement is not admissible an explanation of any of them. A crucial dif­ against him in any prosecution (other than ference between these powers and the pow­ under section 2(14)) unless, when giving ev­ ers under Section 2 is that answers given by idence himself, he makes a statement incon­ an accused notwithstanding that they were sistent with it (Section 2(8». It will, there­ not given voluntarily, are admissible in a sub­ fore, be apparent that investigators will have sequent prosecution. It may, therefore, be to use their judgement whether or not to use tempting to allow the Department of Trade Section 2(2) or whether to attempt to take and Industry to investigate, in those cases a statement after caution as in a normal po­ which undoubtedly will exist, where inves­ lice investigation. As the normal rules of ev­ tigatory powers could be exercised either by idence will apply to the latter, where (inad­ that Department or by the Serious Fraud Of­ missible) admissions have already been made fice. The Director's policy is that his office by an accused in response to a requirement will take the lead if the case is primarily one

92 U.K. INVESTIGATION AND PROSECUTION of serious or complex fraud, but the Depart­ whilst it may be appropriate to expect the ment of Trade and Industry will do so where immediate production of a single or small criminal offences form part only of a wider number of documents, a larger number may investigation into the alleged mismanage­ take rather longer. The admissibility of ex­ ment of a company. A report made under planations given and statements made by ac­ Section 432(2) of the Companies Act 1985 is cused in subsequent criminal proceedings published, and whilst a report under Section againbt them is the same as for admissions 447 of that Act is not, Section 3(3) of the made under Section 2(2). Documents com­ Criminal Justice Act 1987 enables it to be pulsorily produced by accused are, howev­ disclosed to a member of the Serious Fraud er, admissible against them. Office. Section 2(4) provides that a search warrant It will be apparent that Section 2(2) can be for documents may be issued where: used to question not only the potential ac­ cused but also the potential witnesses. The (a) a person has failed to comply with an evidence of a recalcitrant witness can, there­ obligation under Section 2 to produce fore, be extracted in this manner and subse­ them; or quently drawn up in the form of a witness (b) it is not practicable to serve a notice un­ statement. der Section 2(3) in relation to them; or The Section 2(2) power will also be useful (c) the service of such a notice in relation in relation to the interview of potential wit­ to them might seriously prejudice the nesses who are professional advisers, bank investigation. officials and others who are under an actual or supposed duty of confidentiality. Such The warrant is obtained from a Justice of persons are often slow to discuss their cli­ the Peace on information under oath laid by ents' affairs, but now feel free to do so as it a member of the Serious Fraud Office. It is compulsory. authorises a police constable to enter (by By Section 2(3) the Director may, by no­ force if necessary) the premises, search and tice in writing, require a person under inves­ take possession of the appropriate docu­ tigation or any other person to produce at a ments. Section 2(6) provides that unless it is specified time and place any specified docu­ not practicable in the circumstances, the con­ ments which appear to the Director to relate stable shall be accompanied by an "appro­ to any matter relevant to the investigation priate person" (a member of the Serious or any documents of a specified class which Fraud Office or a non-member authorised by appear to him to be related. The Director the Director to accompany the constable). may take copies or extracts from such doc­ This is to enable advice to be immediately uments or require the person producing them available on what to seize and what not to to provide an explanation of any of them. seize. In practice, a lawyer or accountant will Whilst the statutory power is merely to take always accompany the police. copies or extracts from them, the common As with Section 2(2) and whether or not law power to seize evidence of a criminal a warrant is sought or obtained, Section 2(13) offence remains (see Chic Fashions (West makes it an offence for a person without rea­ Wales) Ltd v Jones, Ghani v Jones. 11) sonable excuse to fail to comply with a re­ As with the Section 2(2) power, an amend­ quirement imposed on him under Section ment contained in the Criminal Justice Act 2(3) for which, on summary conviction, he 1988 makes it clear that the time for com­ is liable to imprisonment for six months or pliance with such a requirement may be ex­ a fine or both. The criminal sanction under pressed as being immediate. Again, the ex­ Section 2(14) applies to explanations or state­ ercise of the power must be reasonable: ments given under Section 2(3) which are

93 EXPERTS'PAPERS knowingly false or misleading in a material and Chief Accountant are designated to act particular, or are recklessly made and are in the Director's absence. false or misleading in a material particular. In practice, it will seldom if ever be nec­ In addition, however, Section 2(16) provides essary for prosecutors to use either the dis­ that any person who knows or suspects that closure or the evidential provisions of the an investigation by the Police or the Serious Bankers' Books Evidence Act 1879. In an Fraud Office into serious or complex fraud appropriate case, the Director can authorise is being or is likely to be carried out and fal­ the use of Section 2 powers to procure any sifies or conceals, destroys or otherwise di­ bank documents (including documents such sposes of, or causes or permits the falsifica­ as correspondence which would not be dis­ tion, concealment, destruction or disposal of closable under the 1879 Act); and bank state­ documents which he knows or suspects are ments (or more properly the copies of the en­ or would be relevant to such investigation, tries in the bank's books whose proof the shall be guilty of an "either way" offence un­ 1879 Act was, in part, designed to facilitate) less he proves that he had no intention of are nowadays invariably printouts from com­ concealing the facts disclosed by the docu­ puters and thus more simply provable under ments from persons carrying out such an in­ Sections 68 and 69 of the Police and Crimi­ vestigation on conviction upon indictment, nal Evidence Act 1984. he is liable to imprisonment for seven years Whilst Section 2 powers will often be ex­ or a fine or both; and on summary convic­ ercised by members of staff, the Director tion, he is liable to imprisonment for six also has power to authorise any competent months or a fine or both. investigator (other than a police officer) who Special mention must be made of lawyers is not a member of the Office to exercise on and banks. Section 2 powers cannot be used his behalf all or any of the Section 2 powers to require a person to disclose any informa­ (Section 2(11». This is a necessary corollary tion or produce any document which he of the power granted to the Director by Sec­ would be entitled to refuse to disclose or pro­ tion 1(4) to conduct an investigation "in con­ duce on grounds of legal professional privi­ junction with any other person who is, in the lege in proceedings in the High Court, ex­ opinion of the Director, a proper person to cept that a lawyer may be required to fur­ be concerned in it." There are similarities nish the name and address of his client with the power of the Secretary of State for (Section 2(9». There is a comparable provi­ Trade and Industry to appoint inspectors, sion (without the exception) in Section 177(7) and the Director could appoint, for example, of the Financial Services Act 1986. a barrister, solicitor, accountant, or indeed Section 2 powers cannot be used to require a civil servant such as a Customs or Reve­ a person to disclose information or produce nue investigator, who was not a member of a document in respect of which he owes an the office. The exclusion of police officers, obligation of confidence by virtue of carry­ despite the Roskill recommendation to the ing on any banking business unless either the contrary, is because they remain subject to person to whom the obligation of confidence the command, control and discipline of their is owed (i.e. the client) consents to the dis­ chief officers rather than of the Director, and closure or production, or the Director has such a position would be incompatible with personally authorised the making of the re­ their carrying out an investigation under the quirement. Where it is impracticable for him control of the Director. to act personally, the authorisation may be Where someone has been so authorised, no given by a member of the Serious Fraud Of­ person is bound to comply with any require­ fice designated by the Director for the pur­ ment imposed by the person exercising pow­ pose (Section 2(10». The Deputy Director ers by virt.ue of the authority unless that per-

94 U.K. INVESTIGATION AND PROSECUTION

son has, if required to do so, produces evi­ to set aside the Section 2 notice as being un­ dence of his authority (Section 2(12)). fair and in breach of the Chancery Judge's ruling of confidentiality. But what was much 5. Use of Section 2 Powers more worrying to me was that Saunders' Counsel submitted that as soon as a person An interesting point arose in the Guinness was charged, the offence was no longer a case where a notice under Section 2 was "suspected offence" within the meaning of served upon the solicitors acting for the the Section 1(3) of the 1987 Act and, there­ Guinness Company. 12 The criminal prosecu­ fore, a notice could not be served. The ef­ tion is one of the biggest and most important fect of this submission would be felt not only ever to come to an English criminal court and by the Serious Fraud Office but also the De­ the seven defendants are some of the best partment of Trade & Industry and the Bank known figures in the commercial field in of England in relation to their powers respec­ England. The case arises out of an hostile tively under the Financial Services Act 1986 takeover bid by Argyll Public Limited Com­ Sections 105 and 177 and the Banking Act pany for Distillers Public Limited Company, 1987 Section 43. the makers of some well-known brands of gin We, of course, argued that an investiga­ and whisky. Distillers did not wish to be tion of a suspected offence does not come to bought by Argyll and asked Guinness Pub­ an end when a person has been charged with lic Limited Company, another very well­ an offence. A prosecuting authority is under known manufacturer of alcoholic drinks, to a duty to investigate until trial or, indeed, un­ come to its rescue. Guinness agreed to do so. til satisfied that because further evidence has You must remember that when a takeover come to light the proceedings should be ter­ bid is made, payment is usually made by of­ minated. fering shares in the bidding company and A further argument was that it would be cash to the holders of the shares in the com­ contrary to the Codes of Practice for the de­ pany to be taken over. This means that the tention, treatm\::nt and questioning of per­ company making the bid must try and keep sons by police officers for the Director of the its share price from moving too low other­ Serious Fraud Office to require a person who wise the cost will be very expensive. The al­ has been charged with an offence to answer legation is that some of the Directors of the questions. However, there was nothing in the Guinness Company together with advisers Codes of Practice which inhibits the Direc­ and friends manipulated the market in order tor from exercising his powers to require the to keep the price artificially high. The notice production of documents from a person who required them to produce the affidavits and has not been charged; or to require a person exhibits filed by the parties in proceedings in respect of whom there are no grounds to taken by Guinness against their former Di­ suspect of an offence to answer questions. rectors Ernest Saunders and Thomas Ward The Divisional Court, I am pleased to say, in respect of the sum of £5.2 million paid to came down in my favour and said there is Ward. I should say that we did not realise no reason why I should not serve notices un­ and had not been told that some of the evi­ der Section 2 of the 1987 Act after the de­ dence had been filed following a ruling by fendant has been charged. But the Court the Judge that it was to be regarded as con­ went on to say that if the notice was served fidential to those proceedings. The Judge's upon a suspect, that person should be cau­ ruling was tantamount to a requirement that tioned before being required to answer. This evidence should be presented to the Court is hard to accept because where a notice is and Saunders accepted it as such. served, the recipient is bound to answer on As a result he asked the Divisional Court penalty of fine or imprisonment; that is im-

95 EXPERTS'PAPERS possible to square with a caution which tells may make disclosure of information in his a person he is not obliged to answer unless possession to overseas Governments, regu­ he wishes to do so. latory bodies and professional institutes for the purposes of prosecution or discipline. 6. Letters of Request This is a power given by Section 3 of the Criminal Justice Act 1987. English law is very restrictive as to the The provisions about letters of request will form in which it will admit evidence. Broad­ be very helpful. The procedure will be for ly speaking, facts relied upon r'y the prose­ a Court in our jurisdiction, at the request of cution must either be proven by oral testimo­ the prosecutor, and, where proceedings have ny or by a written statement in a prescribed been started, by a defendant to issue a lp.t­ form by the witness which is then read to the tel' of request to an appropriate authority in court with the consent of the accused or in the a country outside the United Kingdom to ob­ form of an agreed statement of admitted tain evidence. This evidence will generally facts. Again, this must be with the consent be admissible in the criminal proceedings of the accused. Such a situation inevitably without witnesses being required to give oral leads to the defendants insisting on their evidence. right to have witnesses attending from abroad to give oral testimony on the basis 7. Video Links that there is at least a chance that the wit­ ness will refuse to attend and the evidence This follows on naturally from what I have will be lost to the prosecution. This means just said about letters of request. There may that, even where another country has provi­ well be witnesses who are prepared to pro­ sion in its law for accepting letters of request vide testimony for use in proceedings in Eng­ (or commission rogatoire as it is usually land but who would not be willing or able to known in Europe), the most careful and help­ come to this country in order to so. The ful response will be of little practical value Criminal Justice Act 1988 makes provision to the English prosecutor unless the relevant for their evidence to be taken live by a video witnesses are willing to come to this coun­ link between the courtroom in England and try to testify. a point in the country where the witness is The Criminal Justice Act 1988 places re­ resident. The legislation will ensure that the quests by way of commission rogatoire on a party wishing to adduce it does not lose the formal footing and facilitates the admission benefit of the evidence simply because of the of the evidence as a result. unwillingness of the witness to travel but at Hitherto requests for assistance have not the same time preserve the rights of the been on either a statutory or treaty basis. other parties to cross-examine that witness. The United Kingdom does not have mutual assistance treaties with any country of the 8. Other Procedural Changes in world-much to our disadvantage-but the Criminal Justice Act 1988 Home Secretary is on record as saying that he is preparing legislation to put this right. The most important of these is a radical The only arrangements we have for the (at least to English law), change in the rules mutual exchange of information are con­ relating to documentary evidence. At pres­ tained in Memoranda of Understanding be­ ent documents do not prove themselves but tween the Department of Trade & Industry must be produced by a witness. Moreover, in England and equivalent Ministries in Ja­ the effect of our hearsay rule will be modi­ pan, Canada and the United States. fied so that a statement made by a person Tbe Director of the Serious Fraud Office in a document shall be admissible in crimi-

96 U.K. INVESTIGATION AND PROSECUTION nal proceedings as evidence of any fact of address, reads as follows: which direct oral evidence by him would have been admissible. This may be of some "An Act to regulate the carrying on of in­ comfort to those of you who have never had vestment business; to make related pro­ to struggle to prepare an application by your vision with respect to insurance business country to an English Court for the extradi­ and business carried on by Friendly Soci­ tion of a fugitive offender. The main purpose eties; to make new provisbn with respect of the change is to sweep away unnecessary to the official listing of securities, offers restrictions and limitations on the ability of of unlisted securities, takeover offers and English Courts to admit relevant evidence in insider dealings; to make provision as to relation to fraud cases. But the new rule will the disclosure of information obtained un­ be of general application since it would be der enactments relating to fair trading, wrong in principle to have different rules of banking, companies and insurance; to evidence for different classes of criminal make provision for securing reciprocity case. with other countries in respect of facili­ ties for the provision of financial service; 9. Regulatory Enforcement and for connected purposes."

Regulation of the securities markets in the You will see from that title that the prima­ United Kingdom has undergone dramatic ry purpose of the Act is to regulate the car­ changes recently. Following change in the in­ rying on of investment business. Investment vestigation and prosecution of major fraud, business is defined in the Act as dealings in so has there been change in regulation of se­ Government and public securities, stocks curities markets. How has this come about? and shares of a company, debentures, instru­ Broadly it stems from a report made to the ments entitling the holder to subscribe for British Government by Professor L.C.B. government and public securities, as well as Gower into regulation of the markets and fol­ certificates and other instruments conferring lowed disquietly at the manner in which mar­ various rights of property or acquisition in kets were being administered and regulated relation to investments. following the demise of two investment busi­ No person is allowed to carryon or pur­ nesses. 13 port to carryon investment business in the The cases at Lloyds of London where it is United Kingdom unless he is an authorised alleged that money invested by "names" had person or exempted person in accordance been used by underwriters and others for with the terms of the Financial Services Act. their own use and benefit with the attend­ In order to be authorised a person must be ant difficulties in pursuing a speedy crimi­ a member of a recognised self-regulating or­ nal investigation, together with changes in ganisation or is authorised under the Insur­ the rules of the Stock Exchange leading to ance Companies Act 1982 to carryon insur­ rationalisation and internationalisation, ance business which is investment business played their part in persuading the British or is a registered friendly society carrying on Government that new methods were need­ investment business. ed to regulate investment business. Profes­ A self-regulating organisation is a body sor Gower's report led to the passing of the which regulates the carrying on of invest­ Financial Services Act 1986. ment business of any kind by enforcing rules which are binding on persons carrying on Financial Services Act 1986 business of that kind either because they are What we call the long title to the Act, that members of that body or because they are is to say the matters which the Act seeks to otherwise subject to its control. The Finan-

97 EXPERTS' PAPERS cial Services Act has granted powers to the those rules and each organisati,.n will nor­ Secretary of State for Trade and Industry to mally regulate only certain tyJ',';s of invest­ regulate investment business but a lhrge ment business. number of his powers have been transferred to the Securities and Investments Board, of Other Regulatory Organzsaf.;-ns which the Chairman and members must be Institutions carrying on tu,; business of appointed jointly by the Secretary of State bankers are regulated by the Bank of Eng­ and the Governor of the Bank of England. land in accordance with the provisions of the The composition of the board must be such Banking Act 1987. Lloyds of London is ex­ as to secure a proper balance between the empt from the provisions of the Financial interests of investment businesses and those Services Act 1986 because the regulation of of the public. business there is conducted under the terms Orders transferring powers to the Securi­ of the Lloyds Act 1982. There was consid­ ties and Investments Board were approved erable debate when the Financial Services by Parliament early in May 1987 by the Sec­ Act was being discussed in Parliament as to retary of State. The Board's responsibilities whether Lloyds should be brought within its will include determining whether firms are terms, and the Opposition Labour Party was fit and proper to carryon investment busi­ very anxious that Lloyds should be part of ness either by granting direct authorisation the new scheme of regulation. It was decid­ or by recognising self-regulating organisa­ ed not to include them but a Commission of tions and professional bodies, membership Enquiry under Sir Patrick Neill QC was of which will confer authorisation. The Gov­ asked to examine whether the protection for ernment's intention is to transfer virtually all investors at Lloyds was sufficient in the light the remaining transferable powers but the of the terms of the Financial Services Act. Act itself leaves many of the detailed require­ He came to the conclusion that it was, but ments to be fulfilled by rules and regulations. no doubt Parliament will keep a close watch There are a number of self-regulating or­ on the manner in which Lloyds is regulated ganisations and they are: and if anything should go wrong no doubt it will be required to come within the terms of The Securities Association which includes the Financial Services Act. the Stock Exchange. The Financial Inter­ mediaries Managers and Brokers Regulato­ Conclusion ry Association. The Association of Futures Brokers & All this is very new. It will be interesting Dealers. to see how it works in practice. Certainly, we The Investment Management Regulatory are dedicated to make it work well and to im­ Organisation. prove greatly the manner, and speed effec­ The Life Assurance and Unit Trust Reg­ tiveness by which we deal with fraud and to ulatory Organisation. ensure that offenders are swiftly brought be­ fore our Courts. The titles explain the nature of the busi­ ness which these organisations will regulate Notes and they have had to satisfy the Securities and Investments Board that their rules pro­ 1. Police Act 1964 S. vide investors with protection equivalent to 2. Fisher v Oldham Corporation 1930 2 Kings that provided by the Board. The also must Bench Reports page 364. demonstrate effective arrangements for 3. Company Securities (Insider Dealing) Act monitoring and enforcing compliance with 1985 Sections 1, 2, 4, 5.

98 U.K. INVESTIGATION AND PROSECUTION

4. Financial Services Act 1986 S. 177. 10. Companies Act 1985 Sections 432 and 447. 5.19882 Weekly Law Reports page 33. 11. Chic Fashions (West Wales) Ltd. v Jones 6. Phillips Commission. The Royal Commission [1968] 2 Queens Bench Reports page 299. on Criminal Procedure Command Paper SG92 Ghani v Jones [1970] 1. Queens Bench Re­ January 1981. ports page 693. 7. Phillips Commission Report p. 131. 12. Saunders v Serious Fraud Office [1988] 8. Phillips Commission Report p. 144. 13. Gower Report. Report of Professor L C B 9. Roskill Committee. Fraud Trials Committee Gower Command Paper 9125. January 1984. 9 December 1985.

99 ------

SECTION 2: PARTICIPANTS' PAPERS

Fair Administration of Police Responsibility in the Administration of Criminal Justice

by Jithakirthie Wijeratne Jayasuriya *

Sri Lanka is the heir to a rich legal tradi­ sists of components which play different but tion developed and nurtured by indigenous connected roles. as well as foreign rulers over a period of The legislature promulgates laws, the several centuries. The great chronicle, Ma­ Police prevents and detects breaches of havansa, is replete with examples of in­ these laws, the prosecutors present charges stances in which ancient rulers have upheld against those detected by the Police in con­ the rule of law and administered criminal travening the law. The judiciary sifts out the justice without fear or favour. guilty and imposes upon them those sanc­ From ancient times until now the adminis­ tions which the legislature provides. The ex­ tration of criminal justice has been facilitat­ ecutive, especially the Prisons ed by the availability of a body of written administration, enforces the sanction im­ laws in which the applicable principles have posed by the judiciary. Would these organs been articulated with a reasonable degree of act in concert as parts of an integrated sys­ certainty and clarity. Though the Penal tem or should they act in isolation and Code, the Evidence Ordinance and the Crimi­ perhaps in confrontation with each other is nal Procedure Code were enacted only at the what we are here to discuss. There is a need, end of the nineteenth century, attempts have a growing need and perhaps a crying need been made to codify the criminal laws even for integration in the criminal justice system. in the early decades of that century. It has Integration must not be misunderstood as a been said that as far back as 1801 Governor concept where both parties lose their identi­ North, the first British Governor to rule over ty and a new identity emerges. It is not the the maritime provinces of Sri LanKa, had mixing of yellow and blue which makes planned the promulgation of a Code of Crimi­ green. Integration is a interlocking which nal Law which James Dunkin had drawn up strengthens all the partie$ which join on the basis of the Dutch Law as amended together. Integration must not be viewed as since 1796 and that in 1829 C.J. Ottly and a step which affects independence of the in­ P.l Marshall had informed Governor Barnes dividual components. Independence is the that they "wish to see the penal conse­ right to function within the sphere of each quences of crime as accuratp-ly defined by component unit free from interference. In­ positive enactments as possible." tegration is the recognition by one unit of the The administration of criminal justice in objectives of the other. Would it not be more Sri Lanka is a responsibility which has effective if the component units act as a in­ devolved on a variety of institutional tegrated system? mechanisms and personnel. The system con- Police Functions

Police work is not confined to protecting * Senior Superintendent of Police, Police Headquart- life and property and enforcing the law. Here ers Colombo 1, Sri Lanka is a list of some more important police func-

100 ADMINISTRATION OF CRIMINAL JUSTICE tions which are performed by the Sri Lankan that the nature of the calls made on the Police in society's day to day efforts to pro­ Police, showed that crime-related calls to be tect it's citizens. in the minority. The greater proportion of de­ mand consists of service calls dealing, for ex­ 1. Enforcing the criminal law ample, with lost property, missing persons, 2. Investigating criminal offences sudden deaths, di~turbances, nuisances and 3. Crime prevention disputes. 4. Conducting prosecutions With a view to maintaining or improving 5. Maintaining order in public places relations between the Police and public, the 6. Guarding persons and facilities following may be adhered to. 7. Regulating traffic 8. Controlling crowds - Better provision for dealing with rela­ 9. Regulating and suppressing vice tively minor complaints. 10. Gathering information about political - Simply increasing the amount of and subversive activities Police/public contact may not be 11. Monitoring elections productive unless the quality of some contacts if better. Police/Public Relations - Responding readily to requests for help may increase public satisfaction. It is frequently alleged that the deteriora­ - Increasing Police-initiated contacts on tion of relationships with the public has been matters concerning crime prevention. one of the more important problems to con­ - Responding differentially to particular front the police in recent years. Particular groups such as motorists, unemployed concern has been voiced about the loss of or ethnic minorities. contact with certain sections of the commu­ - Informing the public of Police powers nity; for example, ethnic minorities and and capacities, and making known young people. The decline in relationships Police policies and the reasoning be­ has been attributed principally to a reduction hind them, may help disarm some criti­ in the level of communication between Police cisms of the Police and direct others and public because of the removal of officers along more realistic and constructive from foot patrol work. The situation has also channels. been affected by the fact that the Police have had to cope with increased public demand for At present, this country makes the absurd Police services outside strict Police func­ demand that the Policeman should play per­ tions, particularly in the control of subver­ fectly both the roles of Dr. Jekyll and Mr. sion and anti-government uprising, which Hyde. On one had he is expected to gain and have been politically motivated. Therefore keep the respect and co-operation of the pub­ a reappraisal by the Police of their role is lic, a vital ingredient for the efficient preven­ necessary. Police cannot overcome crime un­ tion and detection of crime. On the other less Police/public relations are put on a sound hand, the Policeman is asked to execute the footing creating a climate in which co­ essential but unpleasant business of enforc­ operation may readily take place. ing criminal laws, traffic control and ad­ The improvement of relationships with the minister the traffic laws much to the public is a key factor in combating crime. For annoyance of the public. the furtherance of this objective, specialists in public relations have been entrusted to es­ tablish good relationships with the public. Studies and surveys conducted have shown

101 PARTICIPANTS' PAPERS

Discretion and the Enforcement ginal offenders as hardened criminals, nor Of the Law does the spirit of the law require us to do so. Framing statutes that identify and prescribe It is generally assumed by the public that every nuance of human behaviour is impos­ the Police enforce the criminal laws and sible; a criminal code has no way of describ­ preserve the peace mechanically by arrest­ ing the difference between a petty thief who ing those who have deviated from the legis­ succumbs once to a momentary impulse. lated norms of accepted behaviour. This Making such distinctions such as charac­ concept of mechanical enforcement of all teristics of the individual offender which criminal laws dramatically underplays the differentiate him from other offenders in per­ difficulties of the Police role. First, the Sri sonality, character, socio-cultural back­ Lankan Police do not have the resources to ground, the motivations of his crime, and his enforce all criminal provisions equally. Se­ particular potentialities for reform or recidi­ cond, the other components of the criminal vism, is vital to effective law enforcement. justice system cannot cope with all law vio­ Such decisions involve decision-making, lators. not strictly governed by legal rules but rather Furthermore, there are in the law books by a significant element of personal judge­ certain laws relating to social conduct which ment as follows: by Police and prosecutors are often unpopular, ambiguous, and outdat­ in making arrests and in bringing charges, ed; examples of this social conduct are by judges in imposing penalties, and by cor­ drunkenness and gambling. The intent of the rectional authorities in determining how legislature is to apply these laws to the ac­ offenders shall be treated in prison and when tivities of certain kinds of criminals. If the they shall be released on parole. In short, Police did not enforce these laws fully, some policemen, prosecutors, judges and correc­ of the commonly accepted activities of law­ tional authorities are personally responsible abiding citizens would be affected, and so­ for dealing individually with individual ciety would suffer. offenders, for prescribing rigorous treatment Justice Charles Breitel, who has had exten­ for dangerous ones, and for giving an oppor­ sive administrative, legislative, and judicial tunity to mend their ways to those who ap­ experience, stresses this point as follows: pear likely to do so. Both the individual's future and the general safety of the commu­ If every Policemen, every prosecutor, nity depend on the quality of such decisions. every court and every post-sentence agen­ That a Policemen's duties compel him to cy performed his or its responsibility in exercise personal discretion many times ev­ strict accordance with rules of law, pre­ ery day is evident. Crime does not look the cisely and narrowly laid down, the crimi­ same on the street as it does in a legislative nallaw would be ordered but intolerable. chamber. How much noise or profanity makes conduct "disorderly" within the Defining, grading and fixing levels of meaning of the law? When must a quarrel be punishment for all acts made punishable by treated as a criminal assault; at the first the criminal code, whether it be a serious threat or at the first shove or at the first crime or a minor violation, is persistently blow, or after blood is drawn, or when a seri­ difficult. Many marginal offenders are chan­ ous injury is inflicted? How suspicious must neled throl1gh the criminal process. That is, conduct be before it could be considered although they are guilty of serious offences "reasonable" to effect a lawful arrest. Ev­ as defined by the Penal Code, they may not ery Policemen, however, complete or be habitual and dangerous criminals. It is not sketchy his education, is an interpreter of the in the interest of the community to treat mar- law.

102 ADMINISTRATION OF CRIMINAL JUSTICE

Every Policemen, too, is an arbiter of so­ tivities by an offender. An unjustified arrest cial values for he meets situation after situ­ can seriously or perhaps permanently affect ation, for which invoking criminal sanctions the future of any individual's life. is a questionable line of action. It is obvious Thus it is seen that the use of discretion that a boy throwing rocks at a school's win­ is the heart of Police work and has to be dows is committing the statutory offence of based on sound and balanced judgement. vandalism but it is often not at all obvious The nahlre of police work is such that most whether a Policeman will better serve the in­ decisions by Police Officers have to be made terest of the community and of the boy by within the span of a few moments and taking the boy home to his parents or by ar­ perhaps under emotional, apprehensive, resting him. hostile environment and within the physical Who are the boy's parents? Can they con­ context of the most aggravated social trol him? Is he a frequent offender who has problems. Yet, the police officer is just as ac­ responded badly to leniency? Is vandalism so countable for these decisions as the judge or epidemic in the neighbourhood that he corrections official is for decisions deliber­ should be made a cautionary example? With ated for months. The effective, efficient and juveniles especially, the Police exercise great fair administration of Criminal Justice con­ discretion. Finally, the manner in which a stitutes one of the most meaningful goals of Policeman works is influenced by practical any society. But problems, diverse in nature matters; the legal strength of the available and diverse in dimension, continue to beset evidence, the willingness of victims to press the system and its integral components. charges and of witnesses to testify, the tem­ Although most countries of the world pur­ per of the community, the time and informa­ sue the same fundamental criminal justice tion at the Policemen's disposal. Much is at goals, the prevention and control of crime wi­ stake in how the Policeman exercises this thin the framework of the law, their respec­ discretion. If he judges his conduct not sus­ tive criminal justice systems and processes picious enough to justify intervention, the vary. These variations proceed from the con­ chance to prevent a robbery, rape, or murd­ fluence of the Governmental, legal and Court er may be lost. If he overestimates the seri­ systems peculiar to each country. ousness of a situation or his actions are The general complaint has for long been controlled by panic or prejudice, he may hurt that the different elements in the system­ or kill some one unnecessarily. His action the Police, the Prosecutors, the Courts and may even touch off a riot. the correctional services-have isolated According to Davis, Police Officers make themselves and worked within water-tight far more discretionary determinations in in­ compartments. In recent times, however, th~ dividual cases than any other class of ad­ concept of the totality of the system seems ministration. When dealing with precise to be gaining ground, and the fact that each rules, where principles and other guides keep has a direct influence on the effectiveness of discretion limited or controlled, decision the others is being accepted. The activities malcers seldom err. The greatest and the of various agencies must be co-ordinated so most frequent injustice could occur where as to enable the criminal justice system to rules and principles provide little or no function as a coherent whole. guidance, where political or other favoritism It is true that each agency has its own role may influence decisions, and where the im­ to play and its operational independence perfections of human nature are often must be guarded against unwarranted inter­ reflected in the choices made. An incorrect ference by others. But there is no doubt that decision by a Police Officer can precipitate a decision made by one agency without due a riot or culminate in subsequent criminal ac- consideration to the proper roles of others ad-

103 PARTICIPANTS' PAPERS versely affects the whole process of crimi­ is acquitted after a protracted trial suffers ir­ nal justice. The need of the hour, almost reparable damage to his body, mind, repu­ everywhere in the world, is to rid society of tation and property. The injustice of this is the fear of crime, and this to a large extent all too apparent. depends on the efficiency and the effective­ It must however be borne in mind that ness of the Criminal Justice System, partic­ although elimination of delays in the adminis­ ularly in rendering quick justice which is an tration of justice is a very desirable end, the end worth striking for. means of measures adopted for that end The oft repeated dictum that justice should be fair and just. delayed is justice denied incorporates the es­ Speed without fairness is not justice at all. sence of criminal justice. Delays in the ad­ Thus those who operate such an integrated ministration of criminal justice not only system of criminal justice, namely the Police, cause serious harm to society and to the in­ the Prosecutors, the Judges and the correc­ dividuals concerned but also defeat the very tional authorities should be aware of the purpose of criminal justice. Delays in the in­ main objective and endeavour to reconcile vestigation and trial of crimes more often the need for speed with that for fairness. than not lead to a miscarriage of justice. The This problem could be resolved to a great ex­ guilty person may escape because of the tent if the activities of the various agencies weakening effect of delays on the evidence. involved in the criminal process are proper­ On the other hand, an innocent person who ly co-ordinated.

104 The Police and the Prosecution in Criminal Justice Administration

by Samuel B. Ong*

The first pillar of criminal justice adminis­ PC. Through years of experience in investi­ tration is the police. In our country, if we gation, a soldier may later be assigned with speak of the police as one of the pillars of the CIS. To be an NBI agent, the applicant criminal justice administration, we do not must be a lawyer. refer simply to the Police Department. For Another point of distinction is visibility. in the Philippines, there are three investiga­ The police can be found in every municipal­ tive agencies which have police powers. ity of the country. The PC can be found only They are: in provincial capitals while the NBI can be found only in regions. 1) Integrated National Police (INP); In point of cases handled, the three inves­ 2) The Philippine Constabulary (PC); and tigative agencies handle all kinds of crimes. 3) The National Bureau of Investigation Normally, however, the NBI handles only (NBI). sophisticated or complex crimes, crimes of national or international significance and The INP is under the administrative super­ cases which the police and the CIS cannot vision of the National Police Commission solve. This is not to mean that the NBI is bet­ (NAPOLCOM). This commission is under ter than the two. Rather, the NBI has aids the Office of the President. The police, in criminal investigation and detection. Some however, is under the operational supervi­ of these are: 1) polygraphy; 2) dactiloscopy; sion of the Philippine Constabulary. The con­ 3) ballistics; 4) medico-legal experts; 5) ques­ stabulary is under the Department of tioned document experts; 6) forensic chemis­ National Defense. try and others. The police and the CIS do not The PC, in addition to having operational have these aids and if they have, the same supervision over the police, likewise has its is deficient or is not staffed by experts. own investigative unit called the Criminal In­ With the creation of the Office of the Om­ vestigation Service (CIS). budsman and the Sandiganbayan, an office Then we have the NBI which is under the and court created to investigate and hear Department of Justice. cases of government officials and employees What distinguishes these three investiga­ who have committed a crime related to their tive agencies from one another? work or have acquired unexplained wealth, The police and the CIS wear uniforms, but the NBI, in addition to the prosecution staff the NBI does not. of the Ombudsman, was also made an inves­ The educational qualification of a police­ tigating arm. man is that he must have at least 60 units The NBI therefore can investigate all of a college course. A mere high school edu­ government officials and employees from the cation is required to become a member of the highest to the lowest ranked except the President of the Philippines, the Chief Justice of the Supreme Court and the heads of Constitutional bodies. * NBI Agent, National Bureau of Investigation, Depart­ The scorecard of the NBI for calendar year ment of Justice, Philippines 1989 is 3,281 crime cases investigated.

105 PARTICIPANTS' PAPERS

Statistics, however, are only meaningful in vestigator must inculcate in the mind of the that they represent quantitative data. Intan­ witnesses that it is their duty as citizens of gibles such as quality and concept of opera­ the republic to do their share in the solution tions constitute the more important part. of crimes and that no investigator, no mat­ Preferential attention was given to cases ter how good and experienced he is, can where the respondents/suspects are govern­ solve a crime all by himself. The witnesses ment personnel whether civil, police or mili­ must also be informed that crime prevention tary. It was also given to illegal recruitment and crime solution is not the exclusive do­ and anti-organized crime cases where the main of the police but requires the concert­ victims are predominantly the poor and the ed cooperation of the public. If the public is underprivileged. Due to this preferential at­ aware of this duty, then crimes can be tention, the NBI has acquired increased con­ minimized at its lowest and manageable lev­ fidence from the people. el. It would be sheer folly though to claim Among the many cases handled by the that crimes can altogether be prevented with NBI of great significance is the finding of the cooperation of the public. This bold as­ Jessie Barcelone, an eyewitness to the shoot­ sessment is derived from the positivist the­ ing of the late Senator Benigno Aquino, Jr., ory on criminal law, that is, that man is husband of our President, by his military es­ subdued occasionally by a strange and mor­ corts. This was due mainly to informants bid phenomenon which constrains him to do reposing their trust in our Bureau. Of equal wrong in spite of or contrary to his volition. significance is the notorious Wakaoji kidnap Further, that crime is essentially a social and case where our President ordered two natural phenomenon, and as such, it cannot parallel operations: one, to ensure recovery be treated and checked by the application of of the victim alive and the other, to capture abstract principles of law and jurisprudence the cUlprits. With lead NBI participation, a nor by the imposition of a punishment, fixed covert operation resulted in Wakaoji's safe and determined a priori; but rather through return. the enforcement of individual measures in Let me now start with the first pillar of each particular case after a thorough inves­ criminal justice administration, the Police. tigation conducted by a competent body of Before starting, allow me to define crime psychiatrists and social scientists. as penalized by Philippine laws. After a crime is reported, the police inves­ Crime or felony is an act or omission tigator goes to the scene of the crime, se­ punishable by law. They are committed not cures it and gathers physical evidence. He only by means of deceit (dolo) but also by me­ shall thereafter take the written statements ans offault (culpa). There is deceit when the of the compla;'~lants and witnesses. After this act is performed with deliberate intent and initial action the investigator can "invite" the there is fault when the wrongful act results person suspected to have committed the from imprudence, negligence, lack of fore­ crime. The police has the right to detain for sight or lack of skill. custodial interrogation the suspect for the As the agency tasked with the job of in­ following number of hours: vestigating criminal cases, the police inves­ tigator must endeavor to involve the public 1) 12 hours for crimes punishable by light in its solution. They must not limit them­ penalties; selves with material evidence gathered at the 2) 18 hours for crimes punishable by cor­ scene of the crime but must locate witness­ rectional penalties; and es to its commission. Of course there will be 3) 36 hours for crimes punishable by af­ initial reluctance from those who witnessed flictive penalties. the commission of the crime, but a good in-

106 POLICE, PROSECUTION, AND JUSTICE

If at the end of said hours, no prima facie sistants. evidence is established against the suspect, After a case is forwarded to the Prosecu­ he must be released at once; otherwise, the tors' Office, the investigating prosecutor investigator is liable for a charge of arbitrary summons the police investigator, the com­ detention. During the custodial intelTogation, plainants and witnesses either to confirm the suspect should not be subjected to tor­ their written statements or ask clarificatory ture, physical, psychological or degrading questions. He shall thereafter also summon punishment. the suspect and his witnesses, if they have It should be emphasized here also that af­ given written statements, either to confirm ter a suspect is invited or picked up, he their written statements or ask clarificatory should at once be informed of his Constitu­ questions. After he is through with his inves­ tional rights, namely, the right to remain si­ tigation, the investigating prosecutor there .. lent and not give any statement; that it is his after evaluates the evidence. If in his right to be represented by counsel of his own assessment an offense has been committed choice; and, that any statement he gives and the suspect is probably guilty thereof, might be used for or against him in any he makes a resolution to that effect and sub­ proceedings be it civil, criminal or adminis­ mits the same to the Provincial Prosecutor trative. Any statement given by the suspect or City Prosecutor as the case may be. without the assistance of a lawyer of his own The Provincial Prosecutor or City Prose­ choice is inadmissible in evidence. cutor, in turn, studies the resolution and if If on the assessment of the investigator he agrees with the findings of the investigat­ there exists a prima facie evidence against ing prosecutor, he files a criminal complaint the suspect, he should forward the records with the Court with a recommendation as to of the case to the Prosecutors' Office. the amount of bail for the accused temporary The Prosecutors' Office is under the De­ liberty. partment of Justice. To simplify, every prov­ If the investigating prosecutor believes ince and city has a Prosecutors Office. that the evidence is not sufficient to estab­ Municipalities in rural areas do not have a lish prima facie evidence, he directs the Prosecutors' Office. In instances where there police investigator to conduct further inves­ are no prosecutors assigned to a municipali­ tigation. ty, it is usually the chief of police or station If on the other hand, he believes that no commander as we call them, who acts as prima facie evidence was established against prosecutor. Municipalities in Metro Manila the suspect, he makes a resolution to that ef­ are under the jurisdiction of a single Prose­ fect and recommends that the case be dis­ cutors Office. missed. If dissatisfied with the findings, the The head of a Provincial Prosecutors' aggrieved party which is usually the com­ Office is known as the Provincial Prosecu­ plainant can file a petition for review with tor. Next in rank is the Deputy or Assistant the Justice Department. The department can Provincial Prosecutor. What follows are the reverse or affirm the investigating prosecu­ 1st, 2nd, 3rd and so forth assistant provin­ tors findings. cial prosecutors. The number of assistant All criminal cases filed in Court are provincial prosecutors depends upon the prosecuted under the direction and control classification of the province as to population of the Prosecutors' Office. However, the and income. The same applies to the City crimes of adultery and concubinage shall not Prosecutors' Office. be prosecuted except upon a complaint filed The head of the Prosecutors' Office does by the offended spouse. The offended party not conduct investigations forwarded to cannot institute criminal prosecution without them by the police. This is done by the as- including both the guilty parties, if they are

107 PARTICIPANTS' PAPERS both alive, nor, in any case, if he shall have due to the presence of a considerable num­ consented or pardoned the offenders. The ber of misfits in the police and the military. offenses of seduction, abduction, rape or acts Every now and then j you read in the papers of lasciviousness shall not be prosecuted ex­ and hear in the radios and televisions of the cept upon a complaint filed by the offended participation/connivance of the police and/or party or her parents, grandparents or guar­ military in almost all kinds of crimes com­ dians, nor in any case, if the offender has mitted such as carnappings, robberies, been expressly pardoned by the above­ hijackings, white slave trade and other big named persons, as the case may be. crimes. Some are also very abusive. Their Plea bargaining is allowed in Philippine abusive manners and their participation in' criminal jurisprudence. The accused, with crimes can be traced to two factors. Their' the consent of the Court and the prosecutor, low salaries is roughly ¥20,OOO.OO a month. may plead guilty to a lesser offense than that Another is their mistaken notion that they charge which is necessarily included in the are over and above the civilians. This han­ offense charged in the criminal complaint. gover of power was the result of their being A person charged in Court has many fun­ spoiled during the past regime. It is an ad­ damental and statutory rights. They are: 1) mitted fact that in order to stay in power, the to be presumed innocent until the contrary dictator must have the full backing of the is proven; 2) to be present and to defend in military. person and by attorney at every stage of the Even with the recent upgrading of their sa­ proceedings, that is, from arraignment to the laries, the same is still considered below the promulgation of the judgment; 3) to be in­ poverty line. The government cannot give formed of the nature and cause of the accu­ them more due to our enormous foreign debt. sation; 4) to testify as witness in his behalf. In order to re-educate them on their proper But if a defendant offers himself as a witness, functions and to redirect their values, the he may be cross-examined as any other wit­ President has directed the militruy hierarchy ness. His neglect or refusal to be a witness and the NAPOLCOM to call the soldiers to shall not in any manner prejudice or be used the barracks and the policemen to their sta­ against him; 5) to be exempt from being a tions. The purge is still continuing. Many witness against himself; 6) to be confronted have been suspended and dismissed sum­ at the trial by and to cross-examine the wit­ marily and others charged in military nesses against him; and 7) ~o have compul­ tribunals. sory process issued to secure the attendance To change their attitude towards the police of witnesses in his behalf. and the military, the NAPOLCOM and the The administration of criminal justice in military are in a vigorous campaign to in­ the Philippines leaves much to be desired. volve the community in all their meetings in­ It is not that the different pillars are not volving peace and order. After an initial aware of their defined duties and functions resistance, the community is slowly and in­ but rather on complex reasons. creasingly attending these meetings. As to Number one is the apathy of the commu­ whether the community will finally cooper­ nity in assisting the police in crime preven­ ate wholeheartedly is a matter that will be tion and investigation. The reason for this is answered only by time.

108 J udlicial Independence in Thailand

by Niwet Comephong*

Judicial independence means that it is trates' Courts and Provincial Courts hear desirable that in disposing litigations judges both criminal and civil cases while Criminal perform their function independently, free Courts hear only criminal cases. The Court from fears of any kind. To what extent it is of Appeals has appellate jurisdiction in all recognised and enhanced and whether the criminal, bankruptcy and civil matters tried situation is satisfactory are interesting ques­ in Courts of First Instance throughout the tions. Legally, judicial independence is country. The Supreme Court is the court of guaranteed by various provisions of laws. ultimate appeal for all cases throughout the Section 173 of the Constitution provides that nation, whether civil, bankruptcy or criminal. judges are independent in the trial and adju­ There is no jury system in Thailand. dication to cases in accordance with laws. Judges in all Courts deal with both points of There are also other statutes supporting this. facts and points of laws. In a criminal case, And it is not an exaggeration to say that all judges determine guilt or innocence of the jurists and lawyers recognise judicial in­ accused. If the accused is found guilty, then dependence. the judge will convict and sentence him. Nevertheless, during about forty years of Offences are listed in the Penal Code as well our present system, challenges and questions as in a number of Acts. The Court procedure on judicial independence have been raised. is regulated by the Criminal Procedure Code. In this report, the writer will be presenting Judges are Government officials. Their the nature and accounts of these challenges selection and tenure are provided in the Ju­ and questions. But as a background it is dicial Service Act. Selection is done by ex­ necessary to begin with a brief overview of aminations. Successful candidates must the administration of justice in Thailand. undergo a one-year training before the King Ministries are the highest governmental appoints them to be judges of Courts of First bodies. There are fourteen of them, each Instance. Then they are on a journey in the having one or more Ministers to take respon­ judicial career being subject to series of ap­ sibility and one Permanent Secretary as head pointments, transfers and promotions to of the officials. Ministry of Justice is respon­ higher ranks, or of punishments, of which the sible for the administration and efficient most severe is dismissal. Their compulsory functioning of Courts of Justice. retirement age is sixty. Promotion in terms There are three levels of Courts in the of pay rise is a yearly event while promotion present Thai Judicial system: Courts of First to higher ranks comes in approximately ev­ Instance, the Court of Appeals and the ery five years. Roughly speaking, judges be­ Supreme Court. Magistrates' Courts, Provin­ gin their career from being judges of Courts cial Courts, Criminal Courts, Civil Courts, of First Instance before getting promotion to Juvenile Courts, Labour Court and Tax judges of the Court of Appeals and lastly the Court are Courts of First Instance. Magis- Supreme Court judges. Under the constitution of Thailand as well as the Judicial Service Act, appointments, * Justice of the Supreme Court, Thailand promotion, transfers and removals of judges

109 PARTICIPANTS' PAPERS of every rank are made by the King upon the suspension of pay rise or probation by which recommendation of the Judicial Service the Minister of Justice will make an order Commission. The Judicial Service Commis­ accordingly. In case of incapacity or infirmi­ sion, therefore, is designed to serve a twofold ty, the retirement of the judge concerned purpose: to uphold the independence of the may also be ordered by the Minister with ap­ judiciary and to be responsible for the ad­ proval of the Judicial Service Commission. ministrative control of all judges. The Judi­ However, as a judge is appointed by the cial Service Commission is composed of King, his said dismissal or retirement must twelve members: four are ex-officio, namely also be advised to the King for a royal decree the President of the Supreme Court, the of the revocation of the judgeship.(See Ap­ Chief Justice of the Court of Appeals, the pendix) first Vice-President of the Supreme Court Questions on judicial independence came and the Permanent Secretary of state for to the fore two decades ago when the Judi­ justice; four are elected from among other cial Service Act was revised in such way as vice-presidents of the Supreme Court and judicial independence was thought to be af­ senior justices of the Supreme Court or other fected. Demonstration was launched against justices of equal ranks; and the other four are such changes until the law was revised back elected from the list of retired judges. Re­ to earlier provisions. A couple of years later, tired judges qualify for membership in the when a new constitution was being drafted, Judicial Service Commission no matter what question of judicial independence was in full their ranks were while in service, so long as swing. Comments, criticisms, question­ they are not practicing lawyers, Members of naires, discussions as well as research on it Parliament, or holding any political posts. were undertaken. The most interesting of all The last eight members are elected for a was a panel discussion conducted by the term of two years by judges of all Courts. Thai Bar Association in 1973. The topic was: The Commission is presided over by the Should the Judiciary be separated out to President of the Supreme Court. As for form an independent institution? Comments, punishment or disciplinary action, a judge criticisms, and research made and conduct­ may be dismissed from the service only for ed at the Thai Bar Association panel discus­ proven misconduct, incapacity or infirmity. sion today represent the current situation as The Minister of Justice may appoint a board they did when they were first made and con­ of discipline for inquiry. When the inquiry ducted. is finished, the board must submit the report Lawyers and jurists are divided on this is­ of such inquiry to the Minister of Justice sue. Some are satisfied that under the through the immediate superior of the ac­ present system judges are sufficiently in­ cused judge and the Permanent Secretary of dependent in trial and adjudication to cases. State for Justice who is required to make Retired Justice Kamthorn Puntulap and re­ comment on the report. If the board, the im­ tired Justice Bunyat Sucheeva who both mediate superior of the accused judge, the were Permanent Secretaries of State for Permanent Secretary, or the Minister opines Justice are among them. Justice Bunyat is that the accused judge committed an offence the former President of the Supreme Court. according to the charge, the Permanent Here is their opinion and rationalisation: Secretary shall report to the Judicial Serv­ In practice, judges' promotion, transfer ice Commission for final consideration. If the and pay rise are handled by three important Judicial Service Commission is satisfied that mechanisms or bodies, the Permanent Secre­ the accused judge is guilty as charged, it tary of State for Justice, the Minister of shall, having regard to all circumstances of Justice, and the Judicial Service Commis­ the case, is:S'ue a direction for his dismissal, sion. The Permanent Secretary who is tradi- no THAI JUDICIAL INDEPENDENCE tionally appointed from among judges is the elaborate on its development. In the past the one to present record of judges' services to founder of Thammasat University and the the Minister and the Judicial Service Com­ Bar Association representative used to quali­ mission. The Minister then nominates can­ fy for members of the Ju.dicial Service Com­ didates to the Judicial Service Commission mission; and at one time the Judicial Service for promotion transfer and pay rise. But, Act provided that the Minister of Justice be don't forget, the Minister can do nothing else the chairman of the Judicial Service Commis­ other than propose. On the other hand, each sion. Moreover, some time in the past five member of the Judicial Service Commission members of the Judicial Service Commission is entitled to propose as the Minister is. Sup­ were to be appointed by the King on the pose that Judge A is proposed by the Parliament's approval. It was in 1957 that Minister to the Judicial Service Commission the law was revised so as to have the for appointment as a Civil Court judge, and Supreme Court President as chairman of the the latter disagrees. Each member of the lat­ Judicial Service Commission instead of the ter may propose or nominate judge B to sub­ Minister of Justice and the appointment sys­ stitute judge A and make a decision by tem was repealed, and this is the present sys­ voting. And if the vote is in favour of judge tem. Therefore, to them, the Minister is not B, The Minister, being defeated, cannot influential at present. compel the Judicial Service Commission; be­ As for the Minister's role in disciplinary cause his only duty is to propose. But if the action, here is their explanation: It is true Minister's proposal is approved by the Judi­ that the Minister of Justice may appoint a cial Service Commission, the Minister may board of discipline for inquiry c:gainst a proceed on. Therefore, the Judicial Service judge. But the law set very strict conditions Commission is the supreme body as it is not before the Minister can do so. Firstly, the only entitled to approve the Minister's judge must have been primarily found by his proposal, but it may also disapprove and pro­ superior to have committed a disciplinary pose something else and its resolution must offence punishable by dismissal. Secondly, be heeded by the Minister within thirty days members of the board must be judges who otherwise the matter must be resubmitted to are receiving a salary higher than that of the it for reconsideration. And its second reso­ accused judge. And thirdly, upon finding the lution must be immediately heeded, nothing judge guilty, the board must hand over the else can be dOTle. This is a security measure case to the Permanent Secretal y of State of balancing between the Executive and the Ju­ Justice for review and making comments to dicial Service Commission. The cases where the Minister. If the Minister is of the opin­ the Minister does not agree to the first reso­ ion that the judge is guilty and should be lution of the Judicial Service Commission punished, he must submit the case to the Ju­ and the matter has to be resubmitted are dicial Service Commission for approval. So very rare. Justice Bu..Tlyat confirmed that dur­ it is the Judicial Service Commission who ing his office as Permanent Secretary of controls the Minister. And such control is ef­ State for Justice (1970-1974) there were only fective because the Judicial Service Commis­ two cases; and in both cases the Judicial sion's resolution is final. Moreover, Service Commission reaffirmed its first reso­ punishment can only be inflicted for personal lutions. conduct, not for having decided a case in one They admit the important role of the Ju­ way or the other. dicial Service Commission in protecting ju­ Their justification for having the Perma­ dicial independence and point out the nent Secretary who is an executive person­ importance of its components. To illustrate nel as member of the Judicial Service that the present system is satisfactory they Commission is that he is the only one in the

111 PARTICIPANTS' PAPERS

total number of twelve; so his objection or Judiciary remains unseparated. The Legis­ vote is meaningless. In addition, they point lative or the National Assembly is not under out that it is desirable to have the Permanent any body, Members of parliament are in­ Secretary of State for Justice as a member dependent in making laws. They are eligi­ of the Judicial Service Commission so that ble to pass no-confidence vote against the he will provide information for it. Cabinet causing Ministers to leave their Despite his confidence in judicial indepen­ office. The Executive, the Cabinet, in return, dence and the existing system, Justice is eligible to order dissolution of Parliament Bunyat is of the opinion that Courts of law ending membership and requiring new elec­ should be separated out independently; i.e. tion. But how about Courts who exercise the even the administrative business office Judicial power? Are they really independent should come under the Courts. This is be­ as prescribed in the Constitution? In con­ cause at present we have the problem of de­ trary, the Act on Court Organisation pro­ lay in trial and adjudication. This, among vides that all Courts of law are under the other things, is due to inadequate facilities. Ministry of Justice. Although the Constitu- . The task of providing facilities for Courts is tion provides that judges are independent in that of the Ministry of Justice which plans trial and adjudication to cases, the Judicial the budget. The budget plan must be sub­ Service Act which sets forth provisions on mitted to the Civil Service Commission as judges' discipline empowers the Minister of well as the Budget Bureau. The problem is Justice who is an Executive and a politician that the Ministry's budget plan is always cut to do judges favourably or adversely. He is by the Civil Service Commission. If the empowered to set up a board of discipline for Judiciary is separated, the administrative inquiry against a judge; and promotion in office of the courts itself can set the budget terms of pay rise is to be proposed by the for Courts. Permanent Secretary of State for Justice Many others seem not to believe in the who is under the Minister of Justice. There­ present system. They suggest the separation fore, a judge who is closely associated with of Courts of Justice from the Ministry of the Minister will never be dismissed despite Justice. Among them are the Honorable Seni his misconduct as the Minister does not ord­ Pramoj, the former Prime Minister, and er his inquiry. A good but non-associated former judge Sermsuck Tepakam. Here is judge may be proposed by the minister to the their elaboration on this issue. Judicial Service Commission for suspension Separation of powers is necessary. If we of pay rise. Even the Supreme Court Presi­ do not separate the Judiciary from the Ex­ dent who is head of the Judiciary has to sub­ ecutive, their co-operation will make judges mit letter for leave of absence to the Minister determine cases as the Executive wants. of Justice. When political sector is in posi­ Whenever an individual sues the government tion to do a favour or an adverse to judges he will always looses the case whether or not as afore-mentioned, judges feel unsecured it is right. It's evident that this is not fair. and not independent in dispensing litigations Again, if the Legislative co-operates with the as provided by the Constitution. They said Judiciary, the law passed by the former, be this is good grounds for separation of the it right or not, will be followed by the Judiciary from the Ministry of Justice or the Judiciary. The sufferer is the people who is Minister. subject to such law and judgment. Moreover, They admit that provisions of law support the Judiciary is one of the three Powers. The judicial independence and in the past there other two, the Legislative and the Executive has been no doubt about it. But, according have been separated independently for a long to Judge Sermsuck, it was because we have time, both legally and practically. But the had Permanent Secretary of State for Justice

112 THAI JUDICIAL INDEPENDENCE who possessed high respectability, dignity dicial Service Commission meeting, then the and prestige. But that is the matter of per­ Judicial Service Commission would not have sonality, not principle. We are now talking known of the information favourable or un­ about principle and possibility. In the light favourable to the judge. of principles and possibility, it is evident that Thi1-dly, in considering the case, has it the system of having the Judicial Service been the: case. for decades that all or each Commission guarantee judicial independence member of the Judidal Service Commission does not look like what we have expected at discuss about only the judges whose names all. It is true that legally and practically the are familiar or impressive to them or him; Ministry of Justice as well as the Permanent leaving many others unmentioned or uncon­ Secretary has no power and duty to interfere sidered? with judges' discretion in trial and adjudica­ Fourthly, so far the Permanent Secretar­ tion to litigations. But atmosphere and en­ ies of State for Justice have been appointed vironments may have pushing and forcing from among judges; then things have been power on the exercise of discretion. The re­ fine and smooth. What, if a judge who has mark of Praya Atthagaree Nipon, one-time been appointed the Permanent Secretary has Minister of Justice was cited which reads: to resign from judgeship? "I believe in the motto saying that people They would like to see separation of may enjoy justice of Courts through three Courts to form an independent institution so major principles, namely: we must have in­ that we have check and balance with the telligent judges; we must have faithful other two Powers. They proposed check and judges; and, the most important of all, judges 15alance between the Judiciary and the Legis­ must be independent in adjudication to liti­ lative by having the Legislative make no­ gations. The last principle is very important. confidence vote against the Judicial Service With respect to judicial independence, to me, Commission performance or even conduct of if independence is simply a word or letter, its individual members; and the Judiciary de­ we cannot call it independence. Every judge cide whether any law contradicts the provi­ must have the feeling in his own mind that sions of the Constitution. As to relationship he is really independent. This may be between the Judiciary and the Executive achieved not only through an individual they would like to see no check and balance. judge's mind but also with the outsider's con­ They should work amicably, side-by-side, tributions. And, as I understand it, it is the each being responsible to the National As­ duty of the Ministry of Justice and particu­ sembly who represents the people, the own­ larly the Minister to create such atmosphere er of the country, they said. so that judges may have such feeling." Another school of thought seems to be in And with regard to the role of the Judicial the middle. It insists that only criminal law Service Commission and the Permanent Courts are Judiciary and should be separat­ Secretary of State for Justice, former Justice ed independently; other tribunals or Courts Sfrmsuck raised four questions: should not. Professor Dr. Amorn Chan­ Firstly, at the meeting of the Judicial Serv­ tarasomboon is its representative. Here is his ice Commission, do its members check facts contention: of information concerning judges' service Which institution should be enhanced or and suitability provided by the Permanent given independence depends on its own pow­ Secretary of State for Justice? All informa­ er and duty. Whether or not law Court tion are collected by the Executive sector in should be separated from the Ministry of their own way. Justice depends on what we mean by "the Secondly, if some information is not dis­ Judiciary." There are several tribunals other closed by the Permanent Secretary at the Ju- than Courts of Justice. They are Administra-

113 PARTICIPANTS' PAPERS tive Court, and Labour Court. Not all deter­ In Japan, as you are well aware, there is mining tribunals are the Judiciary. Only separation of powers. There, the Supreme criminal law Court is judiciary. Therefore Court judges must receive public approval only criminal law Court should be separated for their judgeship every ten years. This is independently from the Ministry of Justice. democratic. But in our system a judge begins Is the concept of three separate powers his career from the age of twenty-five until agreeable with the democratic principle? In the age of sixty, thirty-five years. Truly fact, the concept of three separate powers speaking, our Judiciary is not really was created by Montesquieu. He kept pon­ democratic, because the public does not have dering and looking for the way to guarantee to approve the judgeship. In the U.S.A., the security and stability of the people and he Supreme Court judges are appointed by the came up with the concept of three separate president on the Senate's approval. The U.S. powers. What was created by Montesquieu Senate is not the people's representative but was aimed at reducing the King's power. the representative of the states. Therefore The King in those days was so much power­ Professor Amorn is of the opinion that the ful. And the European King at that time appointment of the U.S. Supreme Court treated the people so badly that political judges is a little bit democratic. scholars started asking themselves how to Professor Amorn also raised question on reduce the King's power. And as a result, the the control of the Judiciary. In our system, answer was to separate the King's power. he said, members of the .Judicial Service The concept of three separate powers is ob­ Commission are elected from among the in­ solete. It was created long tiPle ago by po­ ner professional group. When they are so in­ litical scholars to reduce the King's power. dependent and judgeship requires no public So, when the King is no longer powerful, this approval as the Japanese system and no out­ concept has been abandoned. Our present siders may be appointed to judgeship of Courts are under the administrative control Courts of various levels. Who will take con­ of the Judicial Service Commission. Weare trol of them? If the proponents of judicial all aware that the Judicial Service Commis­ separation admit that a judge may be im­ sion is the body which is not subject to the peached, the principle seems fair. Japanese public approval. It is independent. The sepa­ judges may be impeached. As he states, ration of the Judiciary or Courts mayor may there must be check and balance in state not agreeable with the democratic principle. mechanisms.

114 THAI JUDICIAL INDEPENDENCE

Appendix

Judicial Administration in Thailand

Ministry of Justice Judicial Service Minister Commission P. Secretary 4+4+4 = 12

Courts

.... Business Judicial Adm. Control Activities Function of Judges I Civil Service The 1Selection Officials 1 Supreme 49 - Appointment Court - Transfer - Promotion The - Disciplinary 1 Court of 85 punishment Appeals

Courts of First Instance

Juv. 1,200 140 Mig. ~ rcrl.l~ rLabouri ~ C. ~ l£J ~ C. ~ C.

115 Prison Overcrowding and Its Countermeasures

by Pang, Sung Yuen *

I. Introduction refugees to Hong Kong. The population in Hong Kong jumped from 32,983 in 1851 to Overcrowding in society generates many over 625,166 in 1920. With the tremendous social problems, however, there can be no increase of population in the territory, crime more difficult task in society than that of rate and penal popUlation simultaneously in­ managing and maintaining' discipline in over­ creased in proportion. The shortfall in pris­ crowded penal institutions. on facilities was quickly recognised and a fe­ Overcrowding in penal establishments male prison was built in 1920 for 250 at Lai mean more than just shortage of accommo­ Chi Kok. in 1937 the Stanley Prison was dation for the inmates. It also means that completed with accommodation for 1,578 communal facilities have to be shared, males. However, the penal population was programmes may have to be curtailed, staff continuously rising and the muster of Stan­ have to supervise more inmates and stress ley Prison rose to 2,908 just one year after and tension between staff and inmates as it became operational. well as amongst inmates increases. An in­ The significant increase in the prison pop­ creasing penal population and consequent ulation was not surprising as shortly before overcrowding poses particular difficulties for the Second World War (1937-1941), the in­ a penal administrator in providing safe and coming refugees had brought about a popu­ humane conditions for the custody and treat­ lation of 1.6 million, with 500,000 homeless ment of offenders. An overcrowded prison people and the problem of a rising crime rate. provides a volatile setting where minor inci­ During the years 1942-1945, the Prison dents can quickly escalate into major issues. Service was disrupted and the prison build­ The problem of overcrowding in penal es­ ings badly damaged. The result was that Vic­ tablishments is an universal phenomenon toria Prison and Lai Chi Kok (female) Pris­ and Hong Kong is no exception. This paper on were no longer usable. In the last quar­ attempts to outline the strategies adopted by ter of 1945, all offenders were placed in the Hong Kong Correctional Services in Stanley Prison regardless of sex, age, degree tackling this particular problem through a of criminality or number of previous convic­ historical account of its major development. tions. This situation persisted until the re­ Hong Kong had its first jail, the Victoria opening of Victoria Prison and Lai Chi Kok Gaol set up on 30 April 1841 shortly after Prison in July 1946 and October 1947. From becoming a British Colony. The population then onward, the Prison Service tackled the of Hong Kong increased rapidly with the per­ thorny problem of prison overcrowding sistent political and social turmoil in Main­ through strategies of classification, categori­ land China which resulted in a vast influx of sation, segregation, differentiated treatment programmes, intensified industrial training and expanded prison industries and a * Senior Superintendent for the General Control and strengthened management supervisory sys­ Management of Adult Prisons, Correctional Services, tem including an Inspectorate Section and a Hong Kong Complaints Investigation Unit.

116 PRISON OVERCROWDING AND ITS COUNTERMEASURES

II. Development after days posing serious overcrowding problems the Second World War for the prison administration. In order to relieve this pressure, additional accommoda­ (A) The Period from 1946 to 1960 tion was immediately located. Chima wan At the time Victoria Prison was planned Prison was opened in late 1956 by convert­ to be re-opened, the then Prisons Depart­ ing dormitory blocks of a Disabled Persons' ment began to look for cost-effective alter­ Home on Lantau Island. In 1958, Tai Lam natives to the overcrowding situation and the Prison was also opened by converting dor­ first pilot scheme was to remove young male mitory blocks previously used by construc­ prisoners from Stanley Prison and to intro­ tion workers of the Tai Lam Chung Reser­ duce special rehabilitative programmes for voir. These two new prisons considerably them. A number of unused food storage huts eased the overcrowding caused by the sud­ near Stanley Prison were taken over at the den influx of remands and prisoners during end of 1946 and became Hong Kong's first that period of time. open institution for delinquents, accom­ It was quite clear that the main strategy modating boys aged up to 16 years from towards prison overcrowding at that time Stclllley Prison. was the use of abandoned premises for The pilot scheme proved to be workable modification and convertion into prison ac­ and a Training Centre for young prisoners commodation. aged between 16 and 18 was formally estab­ lished at the end of the year, again using war­ (B) The Period from 1960 Onwards .time food storage huts near Stanley Prison. In 1959, the penal population recorded an For delinquent boys under the age of 16, increasing number of drug addicts being ad­ a special programme was designed in 1951 mitted to prison. It was reflected by the fact for them to be trained for a minimum period that nearly ten thousand persons were im­ of 2 years in the Stanley Reformatory School prisoned for drug related offences in the which was transformed from the open insti­ year. A pioneer programme was set up in Tai tution for young delinquents established in Lam Prison for short term pri~oners who 1946. However, with the availability of a new were drug addicts, experimenting with a re­ Boys' Home at Castle Peak in February habilitative approach. In early 1969, the 1953, the boys from the Stanley Reformato­ Drug Addiction Treatment Centre Or­ ry School were all transferred to the new dinance was enacted which provided a spe­ Boys' Home and the management of these cific in centre treatment programme and boys was then handed over to the Social Wel­ compulsory aftercare superVision. Following fare Department. amendments to the legislation in 1974 and The training centre concept had proved to 1986 respectively, an addict offender can be very successful and the whole programme now be detained in a drug addiction treat­ was formalised by the enactment of the ment centre for a period from 2 months to Training Centre Ordinance on 6 March 1953. 12 months, dependent on his progress The influx of refugees from China in the towards the treatment programme, followed 1950s not only brought about a tremendous by a period of 12 months statutory aftercare increase in the local population but also var­ supervision. ious social and economic problems. The Another new penal programme, the Deten­ growth of triad societies (illegal gangs) and tion Centre programme for young male first their diversified illicit activities, resulted in offenders, was enacted by the Detention serious disturbances in October 1956. Over Centre Ordinance in March 1972. This a thousand law breakers were admitted to programme characterised by its "Short, Victoria Prison and Stanley Prison in a few Sharp, Shock" regime proved most effective

117 PARTICIPANTS' PAPERS with young "first" offenders. security and administration of prisons. Experience showed that an indeterminate The Board of Enquiry subsequently iden­ period of detention, subject to minimum and tified four major causes leading to the 1973 maximum limits, together with other ther­ riot. Firstly, more young offenders were ad­ apeutic measures, could be an effective mitted into the penal institutions, of which catalyst in eliciting cooperation and optimal a group were committed for crimes of vio­ response on the part of the inmates. The high lence and were in general more aggressive success rate of more than 90 percent for the in behaviour. Secondly, increasing resent­ Detention Centre also lent support to the ment from prisoners were noticed upon value of post-discharge supervision in caus­ staff's stricter control to prevent trafficking ing the offender to live a law-abiding life. in unauthorised articles, including illicit The Detention Centre Ordinance was drugs. Thirdly, staff shortage had imposed amended in September 1977 to include a heavy burden on staff whilst carrying out young adults of 21 to under 25. their duties, and finally but not the least, was To cater for prisoners with mental prob­ the problem of overcrowding which caused lems and whose mixing with other prisoners a shortage of accommodation and inadequate would prove most problematic, a Psychiat­ facilities. ric Observation Unit was first established at Following the Board of Enquiry'S recom­ Victoria Prison in June 1961. With the in­ mendation and to tackle the overcrowding creasing number of prisoners suffering from situation, a new system of categorisation of various forms and degrees of mental disord­ prisoners was introduced with emphasis on er, a purpose-built psychiatric centre-Siu the level of security required. This categori­ Lam Psychiatric Centre-came into opera­ sation system, as follows, has since been tion in November 1972. adopted: The differential treatment programmes each caring for an unique group of offenders, Category A is given to a prisoner whose es­ together with a more deliberate classification cape would be highly dangerous system has become the foundation in deal­ to the public or to the Police or ing with the various problems of treatment to the Security of Hong Kong and cases of prisoners among which prison and for whom the very highest overcrowding is but one. conditions of security are neces­ In 1973, 1,830 persons under the age of 21 sary. were committed to the various penal estab­ Category B is given to a prisoner for whom lishments which represented over 18 percent the very highest conditions of of the penal population at that time. There security are not necessary but was a clear indication that the penal popula­ for whom escape must be made tion was on the average younger and a very difficult. steady increase was noted on the number of Category C is given to a prisoner who can­ offenders sent for various penal programmes. not be trusted in minimum secu­ Various problems arose, including over­ rity condition but lacks any abil­ crowding, inadequate facilities and shortage ity or resources to make a deter­ of staff, which eventually resulted in a major mined bid to escape. disturbance in Stanley Prison in 1973. Fol­ Category D is given to a prisoner who can lowing the disturbance, a Departmental reasonably be trusted to serve Board of Enquiry was convened and arrange­ his sentence in minimum secu­ ments were made for prison experts from the rity conditions. Home Office, United Kingdom to visit Hong Kong to advise on improving the structure, Prisoners were classified between Catego-

118 PRISON OVERCROWDING AND ITS COUNTERMEASURES ry A to Category D and located to institutions Among other improvements, it was decid­ designated to accommodate the specific cat­ ed as far as possible to adopt the United Na­ egories of prisoners. Four institutions, name­ tions' Standard Minimum Rules for the hu­ ly, Chatham Road Centre, Ma Hang Prison, mane treatment of prisoners. Pik Uk Prison and Hei Ling Chau Addiction These rules cover various aspects of ac­ Treatment Centre came into operation in commodation, sanitation and hygiene, health 1974 and 1975. The added accommodation and medical services, diets, letters and visits, brought relief to the overcrowding problem exercise, recreation, work, religion and wel­ and since 1970 thirteen new institutions have fare, education as well as complaint han­ been built. dling. The enforcement of standards in in­ However, in mid 1988, the policy of the stitutions is monitored through regular visits government in dealing with illegal im­ by Senior Officers from Correctional Serv­ migrants from China changed, resulting in ices Headquarters. In addition, the Inspec­ more Chinese illegal immigrants being torate and Internal Audit Team from head­ brought to court and committed to prison. quarters also conduct full and surprise in­ This change in policy has brought about a spections to all institutions by rotation. This drastic increase in the penal population. involves the checking of all procedures and Towards the end of 1988, the number of Chi­ treatment programmes by the relevant sub­ nese illegal immigrants sentenced to prison ject officers to ensure that laid-down policies represented over 20 percent of the total and standards are adhered to. Since the in­ penal population. Resultant overcrowding in ception of the Complaints Investigation Unit the penal establishments is being experi­ in March 1979, channels for the expression enced and majority of the institutions has an of grievances by prisoners have been great­ occupancy rate exceeding the regular capac­ ly enhanced with assurance that remedial ac­ ity. tion will be taken on justified complaints. The development after 1973 has been The provision of specific channels for griev­ more technical and very much dependent on ance hearing and redress minimises the need a projection of the penal population. Better for prisoners, who have a legitimate com­ designed penal institutions were built with plaint, to resort to drastic measures. To en­ specific purposes to cater for special catego­ sure adequate channels of communication ries of prisoners. Electronic security devices between inmates and the authority, frequent including closed circuit television were visits to institutions by headquarters staff provided to some institutions housing pris­ and Justices of Peace, and other outside bod­ oners who posed a higher security risk. Pris­ ies, such as prison visitors, are included in on industries were expanded with the re­ all programmes. cruitment of professional staff in the man­ The pay scale for disciplined staff was also agement and co-ordination of industrial revised and the higher pay not only attract­ activities within the penal establishments, ed better qualified staff but also improved aimed not only at satisfying the primary goal staff retention. In respect of staff training, of engaging prisoners in useful work but the the Staff Training Institute set up in Septem­ most important of all, better utilisation of lm­ ber 1958 and rebuilt in November 1967 was man resources in the penal system. gradually expanded to provide better facili­ The added security supervision and ex­ ties for professional training. It is believed panded industrial activities helped, to a large that treatment programme can only be effec­ extent, in easing the tension caused by vari­ tively implemented and staff-inmate conflict ous problems encountered by the prison ad­ minimised by a professional staff, the pros­ ministration, among which overcrowding pect of which is contingent upon an efficient was the main concern. and responsive staff training programme.

119 PARTICIPANTS' PAPERS

More emphasis is now being placed on the factors include the population boom, the po­ general welfare of the prisoners and Welfare litical and social climate of the neighbouring Officers have played an important role as a countries, the changing social and economi­ bridge between the management and the cal conditions of Hong Kong, the judicial in­ prisoners. Also the establishment of the psy­ terest and social value towards certain chological unit has been able to provide coun­ offences and sentencing options. We in Hong selling and psychological services to prison­ Kong have taken active steps to deal with ers in need. the overcrowding problem and the following Recently, the enactment of Prisoners measures could summarise the Hong Kong (Release under Supervision) Ordinance in experience: October 1987 introduced two schemes Le. the Release under Supervision Scheme and (i) The provision of adequate accommo­ the Pre-release Employment Scheme to pro­ dation through imaginative use of re­ mote the better re-integration of offenders sources. This means not only the into society. Under the Release under Super­ building of new penal institutions but vision Scheme, the ordinance empowers the also the change in use of certain penal Governor of Hong Kong, acting on the rec­ institutions to cope with the sudden ommendation of a Release under Supervision influx of a particular type of inmates Board, to order the release under supervision on tempOf}l,l\"y basis until such time as of any prisoner who has served not less than a new penal institution could be built. one half or 20 months of a sentence of three (ii) The long-term planning for provision years or more. of new penal institutions based on a The Pre-release Employment Scheme al­ projection of penal population. lows a prisoner who is serving a sentence of (iii) The enactment of legislations to pro­ two years or more to apply to the Release vide different treatment programmes under Supervision Board for an earlier for different types of prisoners/in­ release within the last six months of his dis­ mates, i.e. Training Centre Or­ charge after allowing for remission. Upon dinance, Drug Addiction Treatment the Board's recommendation and following Centre Ordinance, Detention Centre approval by the Grvernor, the prisoner will Ordinance and Prisoners (Release be required to work in the community in the Under Supervision) Ordinance. day time and reside in a half-way house un­ (iv) Classification and categorisation of der aftercare supervision until the date of his prisoners. An effective classification actual discharge. system will reduce not only the risk The improved penal programmes and fa­ of escape and disturbance but also en­ cilities have humanised the prison regime by hance the utilisation of resources. more effectively mitigating the negative ef­ (v) The provision of new facilities such fects of imprisonment, which is very neces­ as electronic devices for supervision, sary in times of prison overcrowding when industrial workshop complex for provisions of new penal institutions are not work and exercising facilities help to readily available. maintain proper supervision over prisoners, engage them in meaning­ III. Conclusion ful work and provide them with ade­ quate exercise and recreational facil­ The problem of overcrowding in Hong ities when not required to work which Kong penal institutions is determined by a helps to ease the tension among the number of external factors which are beyond increasing penal population. the control of management. These external (vi) Improvement of staff training and

120 PRISON OVERCROWDING AND ITS COUNTERMEASURES

professionalism - Better pay has problems before they escalate into helped to attract and retain better crisis situations. The existence of qualified staff in the Service. The de­ channels for complaints also provides velopment of professional training is an outlet for otherwise pent up ten­ essential to the successful implemen­ sions and conflicts and thus the pos­ tation of penal programmes and poli­ sibility of their developing further is cies. minimised. (vii) Provision of monitoring bodies and (viii) The provision of a humane prison channels of complaints and grievance regime-The Hong Kong Con-ection­ redress-The provision of an Inspec­ al Services has been able to imple­ torate Office and internal audits has ment most of the United Nations' helped in the early identification of Standard Minimum Rules for the defective institutional practices or Treatment of Prisoners.

121 I-' Appendix A t-=> Population Summary-Accommodation and Muster (as at 30,6.1988) t-=> Certified Detainees accommodation (Vietnamese for prisoners/ refugee inmates Prisoners/ Illegal from closed Institution residents inmates Remands Residents immigrants centres) Total Prisoners Stanley Prison 1,605 1,770 0 1,770 Lai Chi Kok Reception Centre 960 392 561 953 Shek Pik Prison 450 460 460 Pik Uk Correctional Institution 385 245 160 405 Victoria Prison 428 108 360 31 499 Ma Po Ping Prison 534 578 578 364 '"d Tong Fuk Centre 375 364 ~ Lai Sun Correctional Institution 218 220 220 Tai Lam Correctional Institution 540 599 599 ~H () Pik Uk Prison 600 622 622 H '"d Ma Hang Prison 220 224 224 ~ Tung Tau Correctional Institution 240 280 280 Z Treatment Centre en>-3 Hei Ling Chau Addiction Treatment Centre 938 922 0 922 - '"d Nai Kwu Chau Addiction Treatment Centre 136 98 4 102 ~ '"d Training Centre tz:j Cape Collinson Correctional Institution 200 207 592 799 :::0 Lai King Training Centre 260 254 254 en Detention Centre Sha Tsui Detention Centre (Young offender) 176 183 0 183 (Young adult) 70 43 43 Psychiatric Centre Siu Lam Psychiatric Centre 120 154 5 1 160 Women Centre Tai Lam Centre for Women 261 299 33 332 Tai Tam Gap Correctional Institution 160 126 9 135 Half-way House Phoenix House 12') 59 59 Bauhinia House 7 5 5 New Life House 30 26 26 Total 9,033 8,148 772 90 361 623 9,994 PRISON OVERCROWDING AND ITS COUNTERMEASURES

Appendix B

Average Daily Population by Institutions, 1983-1987

Institutions 1983 1984 1985 1986 1987 Stanley 1,617 1,436 1,450 1,487 1,554 LCKRC 870 766 832 814 775 SPP 350 445 456 449 PUCI 479 371 344 326 387 VP 435 335 310 354 410 MPP 555 521 543 501 528 TFC 376 301 311 334 346 LSCI 26 251 216 193 194 TLCI 588 498 544 558 554 PUP 523 478 504 581 590 MHP 185 198 207 209 209 TTCI 270 231 243 236 235 HLTC 848 845 809 917 831 NKTC 158 175 171 139 131 CCCI 329 225 204 208 194 LKTC 295 259 228 247 255 STDC 191 195 209 188 203 SLPC 139 151 154 152 155 TLCW 189 183 198 267 235 TGCI 105 94 103 119 106 Chimawan 33 266 187

Total 8,211 8,129 8,212 8,286 8,391

Note: Penal population includes prisoners, inmates, remands, illegal immigrants, and civil prisoners.

123 The Development of Non"institutional Treatment for Criminal Offenders in Japan

by Mitsugu Nishinakama *

I. The Outline of Non~institutional The Juvenile Law, which is the special Treatment System in Japan code of criminal procedure for juveniles, was implemel,lted (jlld rehabilitation measures in­ The main form of punishment provided by clude the following: Japanese criminal statutes is imprisonment, but there are also various alternative meth­ -Juvenile probation which involves super­ ods of imprisonment in order to avoid the bad vis,ion of a juvenile who has been placed influence of imprisonment on the offenders, on probation by the Family Court. especially that of short-term imprisonment. - Training school parole involves supervi­ Such alternative methods are as follows; sion of a juvenile offender who has been conditionally released from the training -administrative penalty system for a school by the parole board. Incidental­ minor offence against traffic rules; ly, the decision to commit a juvenile -suspension of prosecution which is de­ offender to the training school is ren­ cided at the discretion of the public pros­ dered by the Family Court. ecutor, who considers all the circum­ stances related to an offence; The rehabilitation system of offenders in -fine and minor fine as a property pun­ Japan is administrated by a single aathority ishment; within the criminal justice branch. This au­ -simple suspension of the execution of thority, the Rehabilitation Bureau, is respon­ sentence; sible for both adult and juvenile offenders -suspension of execution with probation; and belongs to the Ministry of Justice and -parole and supervision. consists of 8 regional parole boards dispersed throughout the country and at least 50 These methods except parole and proba­ offices. The main function of the regional tion expect the offenders' reform by their parole board is the examination and deter­ own repentance or by mental control und~r mination of parole cases. The probation of­ the pressure of execution and so on. In the fice is the organization which performs the meantime, the parole and probation systems basic rehabilitation services through offices have the fundamental characteristic that the located in each prefecture and four in Hok­ offenders are supervised actively and their kaido Island. rehabilitation is strongly promoted. The Japanese parole and probation systems aim II. Parole at the offenders' rehabilitation and reintegra­ tion into society. We call that system (1) Outline of Parole System "KOSEI-HOGO" in Japanese. Roughly speaking, the field of parole can be classified into two subject categories, namely, training school parolees and prison * Special Assistant, Rehabilitation Bureau, Ministry of parolees. The term of a training school Justice, Japan parolees' supervision is usually up to age 20,

124 NON-INSTITUTIONAL CRIMINAL TREATMENT

and the period of prison parolees' supervi­ ence in the Juvenile Law. sion is for the remaining term of sentence. Parole examination is generally initiated Those parolees are subject to the supervision upon receipt of the application from the head of the probation office, and for the period of of the institution. Although the parole board supervision, they must keep the specified is empowered to initiate parole examination conditions. If they do not comply with the in its own right, such cases are very rare. conditions, or commit an offence, the deci­ On the procedure of parole examination, sion of parole from prison can be revoked, various information about an inmate is gath­ or they can be reincarcerated. ered from the institutional record, social As stated in the preceding p~ragraph, the report of the Volunteer Probation Officer, authority do determine parole is vested in the and inquiries to the relative agencies; for ex­ regional parole board, and the panel of three ample, the progress of the inmate ar:hieved board members makes the final decision in the institution, conditions at the place about parole. where the inmate is expected to return on release, especially the relationship with his (2) Parole from Prison or her family, the influence of the offence on The Old Penal Code of 1880 provided for the community, the possibility of criminogen­ the punishment system that adopted im­ ic companionship after release and so on. In prisonment as a basic punishment, and at the addition to the examination of this informa­ same time it provided for the system of con­ tion, the parole board sends a board mem­ ditional release of a prisoner prior to the ex­ ber to the institution to have the inmate in piration of his sentence. But the requirement question interviewed as a mandatory proce­ of that conditional release was very strictly dure. Wh.en the panel consisting of three regulated in the beginning, and the number parole board members judges that the in­ of prisoners who were allowed conditional mate really meets the following require­ release was very small. After that, the Old ments, the panel decides to approve the ap­ Penal Code was replaced by the present plication of parole. And on the decision, they Penal Code in 1907 and the requirement of determine a definite date iJf parole, the place that conditional release was rela.xed. As a re­ where he should return, and conditions that sult, the number of prisoners who were al­ the parolee should abide by during the peri­ lowed conditional release increased margi­ od of supervision. The panel concentrates on nally. But conditional release was primarily the inmates behavior, whether repentance or still a privilege, and it was not necessarily remorse has been exhibited, the inmates' used effectively. prospects of recidivism, and whether socie­ In 1949 the Offenders Rehabilitation Law ty will approve of the granting of parole. was enacted. It provided for a basic frame­ work of the present offenders rehabilitation Measures to Ensure the Appropriate system in Japan. According to this new law, Decision of Parole parole is not merely a privilege but it :'s rec­ One such measure is the investigation by ognized as a significant positive method to­ the probation officer of the inmate. The pro­ ward the offenders' rehabilitation. bation officers who belong to the regional In order to acquire parole eligibility, it is parole board are in charge of gathering and necessary that prisoners have served no less investigating various information and data than one-third of the determinate sentence, concerning the inmate, and they report the or 10 years of the life sentence. As for those result to parole board members. In order to juvenile prisoners who were sentenced by promote effective pre-release inquirj and ad­ the criminal court before they reached an age justment, board members provide the field of 20, there is an exceptional relaxed refer- probation officers at the probation office with

125 PARTICIPANTS' PAPERS factual information about the inmate which experts about that offender's parole. In was gathered through interview and exami­ regard to a judge, as a concerned authority nation of institutional records. Such prepar­ with criminal procedure, he is expected to atory investigation for parole is initiated not state his own opinion. Meanwhile, in regard only after application for parole has been to a public prosecutor, as a director of the filed, but also before application. execution of punishment and as a represent­ In general, a certain probation officer of ative of public interest, he is expected to a parole board visits the correctional insti­ state his own opinion about an offender's tution regularly to interview inmates and dis­ parole. cuss cases with correctional officers. But, On the other hand, if there is any opinion since 1981, for purposes of more effective about parole previously expressed by the use of this measure, some of the regional judge or public prosecutor who handled the parole boards have probation officers work case directly, the parole board has to take full time in large-scale prisons. that opinion into consideration during parole The second is adjustment of environmen­ examination. tal conditions at the prospective destination The number of parolees released from of the inmate. It is very important for the re·· prison in 1987 was 13,413 and the number habilitation of the offender to adjust to con­ of prisoners released on the expiration of ditions at the prospective destination as well term is 17,603. The parole rate is about 57 as be receptive to the educational system percent. The total number of inmates in pris­ provided in prison. If there exists anyobsta­ on was 45,958 at the end of 1987. cles hindering the parolee's rehabilitation, it is necessary to diminish them before release. (3) Parole from Training School Accordingly, the probation officer at the pro­ The term of institutional treatment for bation office and the volunteer probation of­ juveniles who are committed to the juvenile ficer who lives near the prospective destina­ training school by Family Courts is up to age tion of the inmate provide assistance to the 20, in principle. However, inmates who are inmate from the early stages and continue nearing 20 but have not completed a full year to do so in order to ease the adjustment proc­ at the training school may be detained past ess. The progress and results of adjustment the age limit to fulfill the time commitment. are reported to the regional parole board There are also other exceptions made to the which examine the case in question and to extension of term which involve the case the prison officials who consider this infor­ when the juvenile displays considerable de­ mation a vital resource for correctional edu­ fective and criminal behavior and an extend­ cation. Adjustment of environmental condi­ ed period of stay at the training school is tions is becoming one of the most important detiUed necessary. services at the probation office. Most of the juveniles are released from The third is the reference of an opinion to training school on parole and juveniles who the concerned criminal justice authority with are released on the expiration of tenn are the regard to parole examination. When they exception to the rule. In 1987, the number think it necessary for parole examination, the of parolees released from training school was regional parole b:)ard will refer to a judge or 5,813 and the number of juveniles released public prosecutor. For example, in such on the expiration of term amounted to 382. grave cases as a crime concerning public se­ This is very different from adult parole. curity, a political crime or an atrocious crime, The time when the parolee may be releas­ and in a case where an inmate has request­ ed is closely related with the treatment proc­ ed a reopening of procedure, the regional ess in the training school. In terms of the du­ parole board will request opinions from other ration of treatment, two types of treatment

126 NON-INSTITUTIONAL CRIMINAL TREATMENT process are utilized, namely, one is a short­ aims at the rehabilitation of offenders and term treatment lasting 6 months, the other juvenile delinquents through supervision and is a long-term treatment lasting up to 2 years. requires compliance with condition establish­ The selection of treatment process is decid­ ed to promote reintegration into the commu­ ed by the recommendation of the Family nity. Court which commits a juvenile to the train­ The present laws specify the following five ing school. Family Courts continue to have categories of offenders as the subjects of pro­ deep concern about the institutional and bation supervision: community-based treatment after the dispo­ sition of juveniles. i) Juvenile probationer (Generally re­ These treatment processes involve institu­ ferred to a "first type"): A juvenile who tional correction and community-based treat­ has been placed on probation by the ment and are closely co-ordinated so as to family court. The legally prescribed reinforce continuity, with juveniles trans­ maximum period of supervision for this ferred smoothly from the institution to after­ category is up to 20 years of age or two care service agencies, facilitating the years, whichever is the longer. resocialization process. ii) Training school parolee (second type): Parole procedures from training school are A juvenile offender who has been con­ similar to those of parole from prison. The ditionally released from the training process of parole application involves inves­ school by the discretion of the parole tigation by the probation officer, parole ex- board. The term of his or her supervi­ 2.mination by the regional parole board, ad­ sion is usually up to age 20 with possi­ justment of environmental conditions at the ble early discharge in case of good be­ prospective destination and so on. havior. As for the case in which the term of custody has been to postponed (4) Significant Meaning of the Co-operation in the training school, the period of his with the Other Conce?'ned Criminal or her supervision is up to the end of Authorities on Parole the postponed term. In the procedure of criminal justice, parole iii) Prison parolee (third type): An offender supplies the bridge between the institution­ who has been released from prison on al treatment and the community-based treat­ parole by the parole board. The period ment of offenders. In order to promote the of parole supervision is for the remain­ implementation of parole, co-operation is ing term of his sentence, except for necessary between regional parole boards cases of a life termer where the period and correctional institutions, prison, and of parole is for the rest of one's life un­ training schools. Additionally, it is important less he or she is awarded a pardon. that the concerned criminal justice authori­ iv) Adult probationer (fourth type): An ties have a common understanding about offender who has been placed on pro­ parole and recognize its importance. bation by the criminal court upon the How to promote this understanding is one pronouncement of suspended sentence of the most important subjects in the pres­ of imprisonment or fine. The term of ent criminal justice system of Japan. supervision ranges from one to five years, corresponding to that of suspen­ III. Probation sion of the execution of sentence speci­ fied by the sentencing court. (1) Outline of Probation Services v) Guidance home parolee (fifth type): A Probation is the core element of the woman who has been conditionally re­ community-based treatment for offenders. It leased by the parole board from the

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PARTICIPANTS' PAPERS

women's guidance home, a non puni­ In the meantime, among those offenders tive correctional institution for ex­ who are placed on probation and discharged prostitutes. The period of supervision from an institution, there are some people is for the remainder of six months who have no reliable relatives or no home to which the Anti-prostitution Law speci­ which to return because of the rejection by fies as the maximum period of confine­ their families. The rehabilitation aid hostels ment for any inmate of the Home. which provide room and board and guidance for such people are run by the private sec­ Supervision of those above-mentioned sub­ tor. The first private aftercare hostel serv­ jects is administrated by the 50 probation ing as a rehabilitation aid hostel for dis­ offices located throughout the country. Pro­ charged offenders, was established in 1888. bation officers who are full-time officials em­ Since then, the number of private aftercare ployed by the Ministry of Justice carry out hostels rapidly grew, and now have a 100- probation in close collaboration with volun­ year history in Japan. At the present time, teer probation officers. The probation offi­ there are 100 rehabilitation aid hostels for cer or the volunteer probation officer keeps adult and juvenile offenders, and all of them appropriate contact with the client and his are run by non-governmental bodies under family by means of visitations and interviews the authorization of the Minister of Justice. generally taking place twice a month or so. In doing so, they observe the client's be­ (2) Juvenile and Adult Probation havior and give them supervision, assistance I have already described the parole system and material aids in accordance with the in Japan in the preceding paragraphs, there­ needs of the case involving all aspects of life. fore, here, I would briefly like to describe This can include housing problems, employ­ some problems about the juvenile and adult ment, medical care, and family adjustment probation system which are often discussed and so on. between the probation office and the court. The probation officer and the volunteer probation officer carry out their supervision 1) Juvenile Probation of the client, each utilizing his own skills and One problem is the eligibility for probation. experience. But the number of probation of­ It is closely related to the capacity to treat ficers is inadequate that the extensive use of the juvenile delinquent in the probation of­ volunteer probation officers is inevitable for fice. One example is the probation for the Japanese probation and parole system. juvenile traffic offenders. Formerly there It is not too much to say that the greater part was general sentiment that probation was of the community-based treatment for neither suitable nor effective for juvenile offenders is entrusted to volunteer probation traffic offenders. Accordingly, the disposi­ officers in Japan. The number of probation tion of probation for juvenile traffic offenders officers who handle the cases ordinarily is was not granted by family court. about 620 and the average caseload of pro­ But after conducting research and evalu­ bation and parole per officer is about 140 ating treatment methods for juvenile traffic cases. There are approximately 48,000 vol­ offenders through the group work method, unteer probation officers allocated through­ it was proved that probation can be effective out the country. (The supplementary table for juvenile traffic offenders as well as non­ shows the total number of cases for five traffic juvenile offenders. As a result, the years.) The number of newly received proba­ number of juveniles who are put on proba­ tioners and parolees in 1978 amounted to tion for traffic offences has increased and at 100,140 cases and about 70 percent of these present it accounts for about 70 percent of involved juvenile probationers. the total of juvenile probationers throughout

128 NON-INSTITUTIONAL CRIMINAL TREATMENT the country. don't have the pre-sentence investigation The second is about the individual data system of the criminal court. Therefore, we which is necessary for carrying out proba­ do not have the social inquiry report about tion. Usually, before the final judgment, the the juvenile made by the family court pro­ family court investigator submits the social bation officer. It should be resolved fun­ inquiry report about the juvenile, and the damentally through legislation to adapt such juvenile classification home formulates the an investigation system. But at present we juvenile record and recommendation on tech­ expect that the necessary individual data be nical classification. These reports and re­ disclosed through the process of criminal cords are available to the probation office as procedure, and provided for probation a precise and useful data during probation. offices.

2) Adult Probation IV. The Final Comment Adult probation system in Japan was in­ itiated in 1954, 5 years later than the initia­ Offenders rehabilitation services occupy tion of other types of probation systems. the final position in the current criminal jus­ Similar to juvenile probation, one problem is tice system. And it is strongly influenced by the eligibility for probation. Concerning the the function of other parts of whole the crim­ character of adult probation, many judges inal justice system, the police, the prosecu­ have thought that a suspended sentence ac­ tion, the judgment and corrections. In order companied by probation is a more severe dis­ to promote offenders' rehabilitation services position than suspended sentence not accom­ more efficiently, mutual understanding and panied by probation. This is because an adult co-operation with the concerned authorities probationer who commits a crime imposing is necessary. FurtherlllLlre, more efforts imprisonment during the probation period is should be made to gain the sufficient under­ not allowed a suspended sentence again and standing about offenders' rehabilitation serv­ imprisonment is imposed. Furthermore, a ices among not only voluntary individuals technical violation of conditions may be a like volunteer probation officers, but also or­ cause of revocation of suspension. Overall, dinary residents in the community and the there has been careful in implementation of nation at the same time. a suspended sentence accompanied by pro­ In a case where a parolee commits a grave bation. crime during the period of parole supervi­ On the other hand, authorities concerned sion, the concerned authority is often con­ with adult probation have actively carried demned through the mass media. out the system of provisional suspension of Offenders' rehabilitation services ptimarily supervision for probationers on good be­ deal with the subjects who have the possi­ havior. Continual efforts are being made to bility of recidivism, namely, those who rep­ develop a deeper understanding of the crim­ resent the lowest probability of recidivism. inal courts and adult probation as a rehabili­ How to gain the nation's consensus consid­ tation method for offenders. ering such a viewpoint about the community­ A problem that needs to be addressed is based treatment for offenders is one of the the lack of necessary individual data on adult most important matters with which we are probationers. Unlike juvenile probation, we faced.

129 I-' oCJ.J Number of Probationers and Parolees for Five Years 1983 1984 1985 1986 1987 Placed Case load Placed Caselotld Placed Case load Placed Case load Placed Case load under as of under as of under as of under as of under as of supervision Dec. supervision Dec. supervision Dec. supervision Dec. supervision Dec. in 1983 31,1983 in 1983 31,1983 in 1983 31,1983 in 1983 31,1983 in 1983 31,1983 (The fust type) Juvenile probationers I 70,385 55,824 70,758 54,938 71,411 55,941 72,268 55,840 70,747 51,695 (The second type) Training school parolees 4,945 5,879 5,569 6,665 5,585 7,202 5,580 7,473 5,313 7,119 (The third type) Prison parolees 16,890 6,898 18,718 8,000 17,795 8,393 18,130 8,693 17,603 8,931 (The fourth type) Adult probationers 7,798 22,756 7,692 22,215 7,180 21,430 6,456 20,279 6,477 19,372 (The fifth type) Guidance home parolees 1 ------~ Total 100,019 91,357 102,737 91,818 ,---101,971 92,966 102,434 92,285 100,140 87,117 ------_.. _-_ ... - ~ Z t-3 CI2

~trj ~ SECTION 3: REPORT OF THE SEMINAR

Summary Reports of the Rapporteurs

Session 1: Fair Administration of of crime Police Responsibility and (d) Apprehending of offenders Provision of Services to (e) Protection of persons and property the Public: The Basis of (f) Control and administration of traffic Public Co-operation In addition to these functions police deal Chai1pe1°son: Mr. ]ithaki1othie Wijeratne with extensive responsibilities such as social ]ayasudya (Sri Lanka) service activities which would include emer­ Rapporteur: Mr. George Musau Mbinda gency medical care, assisting the helpless, (Kenya) relief and mercy operations, disaster control, Advisor: Mr. Yasuo Shionoya typically military activities like riot control, gathering of intelligence, conducting coun­ Introduction terespionage, border patrol operations, con­ tainment or suppression of local insurgency, A discussion was held to analyse in depth eliminating physical hazards, counselling of the problems the police encounter in their juveniles and numerous other services. day to day duties in the fair administration Awed by the multi-faceted role of the police, of police responsibilities and provision of Paul Reige, reiterated an expression often services to the public. The objective of the quoted "NACH GOTT KOMMT GLEICH discussion was to explore the most suitable DIE POLIZIE" (after God comes the police). and effective measures that can be taken to (Reige, Paul, Kleine Polizei GESCHICHTE overcome such problems. The participants INSTITUT HILTRUP, 1959 P. 27). made valuable contributions which were not­ Through the years, many police systems ed to be embodied under the relevant sub­ have deviated from the ideal of all the roles, topics of this report. References have also this role which ensures success in police been made to relevant portions of individu­ work is the very role often most neglected. al presentations of participants. This is the police involvement in social serv­ ice activities, which more than any other role I. Police Roles and Functions attract public participation. This is signifi­ cant because success in police work is predi­ The multifarious duties performed by the cated on public involvement. This is due to police in the Asian and Pacific countries the nature of the police work. were discussed. The basic functions enumer­ Pointed development intensifies the de­ ated below were common to the police serv­ mands on the time of the police, and many ices in the region. police officers, in their hierarchy of values, perceive that they have to give priority to (a) Enforcement of the laws what they consider their "first duty," that (b) Maintenance of public order and tran­ is, their role in the maintenance of law and quility order, and in the process often set aside their (c) Prevention, detection and investigation other role, namely, rendering social service

131 ------"~------

REPORT OF THE SEMINAR activities. By neglecting social service activi­ prevailing insurgency, resulting in the wrong ties, which is the main attraction to get pub­ type of person being selected. Subsequent­ lic co-operation in crime control, the police ly it transpired that even subversives had often fail to achieve the original end, which been successful in infiltrating the Sri Lanka is "to protect life and property, preserve pub­ police service, causing irreparable damage lic tranquility, and to prevent and detect to the security servicei'. crime." Without public co-operation, the I need not overemphasize the necessity of police cannot succeed in overall crime con­ paying a greater attention to recruitment as trol. The Japanese Koban System has been if we fail at this point, the police service will successful due to the public support they get, suffer with the inc01Tect type of person in the largely become the best offices perform so­ organization. The correct physical require­ cial service activities, such as visiting the ments, education qualifications, record free homes in their best, giving advice to resi­ of criminal connections, correct tempera­ dents on crime prevention methods or coun­ ment and ability must be some of the chief selling them on other daily problems, visiting criteria for selection. Political neutrality the old and venerable residents, etc. It is should be strictly observed. therefore evident why the means should A participant from Japan expressed the never be confused for the end. view that recruitment is an important func­ Dr. Kirschner, an expert from Germany, tion and that excellent students straight from pointed out that in his country certain out­ school should be enlisted to the police serv­ side agencies had relieved the local police of ices in Japan. Senior police officers go round some police functions. He cited the case of to schools in order to attract students to join supervision of traffic and collecting one of the police. the fines being taken over by the municipal agencies. Ill. Impartiality and Discretion A participant from the Philippines point­ In Law Enforcement ed out that, police are the front liners in law enforcement and should help the communi­ The Chairman of the National Police Com­ ty, and there should be increased police visi­ mission in the Philippines, Mr. Cicero C. bility. This is achieved by regular foot and Campos, in his presentation made at this con­ mobile patrols in pre-determined patrol ference states thus, "Racial and socioeco­ beats, particularly in crime-prone areas. nomic biases are elements of universal experience." In certain countries, the police II. Recruitment look at blacks and slum dwellers as poten­ tial criminals. In countries where a Caste sys­ This was discussed at length by the par­ tem exists, a social gap often prevails ticipant, and the representative from Barba­ between the police and the lower Caste. In dos was of the opinion that the correct type developing countries where student activism of person should be taken into the police is very pronounced, lack of dialogue and sus­ services with emphasis on their antecedents picions that go with it create a milieu of and background. It must be ensured that cor­ hostility. rupt and dishonest persons be eliminated. A Overaction by going beyond the participant from Sri Lanka pointed out that parameters of law and policy, often based on selection of person to the police service the socioeconomic status of the objects of should not be rushed and should be done in abuse, militate against public expectation. times of peace. He further pointed out that And where police performance does not in his country, persons had been taken to the dovetail into public expectation, it is natural police service in a hasty manner due to the for resentment and alienation to set in.

132 ADMINISTRATION OF POLICE RESPONSIBILITY

Police often have a bias in favour of the is the heart of police work and has to be well-to-do, officials, etc., and against the poor based on sound and balanced judgment. and underprivileged. Police would have to The nature of police work is such that most realize that professional success and accep­ decisions by police officers have to be made tance by the community are based on credi­ within the span of a few moments and bility, in turn, largely anchored on perhaps under emotional apprehension, in a impartiality. Much of the public esteem for hostile environment and within the physical the police will depend on whether the form­ context of the most aggravated social er can depend on the latter for protection problems. from abuse of power by even those in posi­ Yet the police officer is just as accounta­ tions of authority in government. ble for these decisions as the judge or cor­ Mental training of the police, especially in rections official is for decisions deliberated making decisions, would have to be vastly for months. The effective, efficient and fair improved because a crisis situation often administration of criminal justice constitutes confronts him and he would have to resort one of the meaningful goals of any society. to snap decisions in seconds, for which the But problems diverse in nature and diverse defence and prosecution lawyers would need in dimension continue to beset the system months, or even years, to argue on. and its integral components. It often would be counterproductive to ap­ ply the letter of the law against one who may IV. Misconduct have committed a minor infraction, especial­ ly if it be a victimless offence. The judicious (a) Corruption use of discretion in instances such as this It was the general consensus of the par­ would project the humane side of the police, ticipants that corruption was prevalent in a matter that cannot but induce appreciation most countries in the world. Corruption is de­ on the part of society. Discretion should, fined as "acts involving the misuse of however, be distinguished from discrimina­ authority by a police officer in a manner tion. Discretion seeks to be just, discrimina­ designed to produce personal gain for him­ tion to be unjust. self or for others." Corruption leads to lack According to Davis, police officers make of impartiality and unprofessional methods. far more discretionary determinations in in­ It is quite common, in both developed and dividual cases than any other class of ad­ developing countries, to see or hear of police­ ministration. When dealing with precise men accepting bribes in exchange for non­ rules, where principles and other guides keep enforcement of laws, particularly to those discretion limited or controlled, decision relating to gambling, prostitution and liquor makers seldom err. The greatest and the offences. Corruption begets isolation, and most frequent injustice could occur where isolation breeds corruption. And so the rules and principles provide little or no process goes ad infinitum, indeed, a vicious guidance, where political or other favoritism cycle. Most of the participants stated that may influence decisions, and where the im­ there were internal agencies within the perfection of human nature is often reflect­ police service of their respective countries ed in choices made. An incorrect decision by to deal with corrupt police officers. Dismis­ a police officer can precipitate more or cul­ sal was the penalty they had to pay if charges minate in subsequent criminal activities by of corruption were proven. an offender. Unjustified arrest can serious­ ly or perhaps permanently affect the future (b) Police B1'utality of any individual's life. There is not a day which passes without Thus it is seen that the use of discretion news of police brutality and torture, and in

133 REPORT OF THE SEMINAR spite of the administration taking stringent Through the years, many police systems measures, police officers continue with these have deviated from the ideal. This is a basic activities. reason why police authorities have been frus­ World organizations such as the" Amnesty trated with regard to police work. There is International" and human rights organiza­ a dearth of police effectiveness and public ac­ tions spotlight glaring cases of torture and ceptability. police brutality in their news bulletins. This The improvement of relationship with the is a matter that this entire fOlum totally re­ public is the key factor in combatting crime. jects and condemn such unconstitutional be­ Police presence in an area reduces the op­ havior of the police. portunity of a would-be offender to commit Case histories subscribe the thesis that in a crime, for it increases the risk of being de­ some countries the initial purpose for which tected and arrested. He would, therefore, be the police was formed was for suppressing thwarted from a possible criminal act. Police the masses for their colonial masters. Police visibility is achieved by regular foot and mo­ recruits were taken from the destitute and bile patrols and presence of police outposts from those that belonged to the lower so­ or substations, particularly in crime-prone cioeconomic level, with the sole purpose of areas. In countries like Japan and Singapore, being used as an instrument of oppression police visibility has been enhanced through throughout colonial history. The third world police boxes and neighborhood policing. has had, to a large extent, military type The undertaking of "police community re­ police force, established to ensure political lations" activities, public information rights control over the colony; law and order were and dialogues enhances police authority in equated with defence of the colony against the community. insurgents and rival colonizing powers, resulting in militarized police forces. Con­ VI. Inadequate Police Resources tinuation of these practices appear to still prevail, which accounts for torture and police Most of the countries in the third world brutality. suffer from inadequate police personnel and sophisticated equipment to meet the new V. Police Public Relations challenges and demands made on the police. Understrength is one of the biggest draw­ Paul Riege, in his history of the police, backs the police face in their day to day reiterated an expression often quoted, "Af­ duties. The lack of vehicles, radio equip­ ter God comes the police." Reige made this ments to facilitate quick communication and statement after he became aware of the ex­ modern firearms are some of the other fac­ tent of police work. This ideal was embod­ tors which handicap the police. Training in ied by Charles Roman and Richard Myne in modern techniques and technology is a bad­ the ninth principle, framed in 1829, which ly felt need. reads. "To maintain at all times such a relation­ Conclusion ship with the public that gives reality to the historic truth that the police are the public The time may have come in some coun­ and the public are the police" -the police be­ tries for a change in the conception of the ing only members of the public who are paid role of police, from an instrument of the pow­ to give full time attention to those duties er elite, otherwise referred to as the "estab­ which are incumbent on every citizen in the lishment/' to service for all citizens. This is interest of the welfare and existence of the due to the growing perception that police ef­ community. fectiveness, to a large extent, is determined

134 EXERCISE OF PROSECUTIONAL DISCRETION by an entity outside the police, namely, the prosecutorial discretion." The objective of public. This is in line with the fundamental the discussion session was to explore the pos­ huism that a police force which operates out­ sibilities of aiming at a consensus to solve side the context of community co-operation various problems and to explore the possi­ operates in a vacuum. And from a vacuum, bilities of adopting those solutions to the var­ nothing much can be expected, for as the ious systems as found in the respective philosophical maxim goes, "Nothing comes States of the participants. Amidst these from nothing." differences in the various systems of differ­ In the pursuit of this commitment, the ent countries, recommendations were made police must strike a delicate balance between by the participants to remedy the problems the rights of the citizenry to protection of envisaged in the exercise and control of "life, liberty and property," on the one hand, prosecutorial discretion. Various procedural and on the other, the rights of the accused alternatives and the need for the changes in to "due process and his proverbial day in the substantive law in regard to these mat­ court." The British Commission on the ters were suggested with the approval of the Police described this in 1962 when it issued participants. the statement: "The police should be power­ ful but not aggressive; they should be effi­ cient but not officious." Rules Pertaining Success in policing is predicated on police To Prosecutorial Discretion effectiveness. Police effectiveness in tum is premised on public acceptance. Finally, pub­ Significance was attached to the question lic acceptance is founded on the ideal, as of the investigatory powers of the prosecu­ promulgated by the pioneers of the modern tor. Some participants are of the opinion that police system, that is, a balance between the prosecutor should be in a position either Maintenance of Law and Order on the one to investigate by himself from the com­ hand, and on the other, the conduct of social mencement of the investigation i.e., on service activities. Indeed, the new, emerg­ receipt of the first information of a crime, ing policeman is, in a way, "All things to all and or to direct police investigation at all men." stages. Countries where the police is the only arm of investigation e.g., Thailand, Barba­ Session 2: The Exercise and Control dos, Nepal, Bangladesh, Nigeria, Kenya, of Prosecutorial Discretion Sudan, Western Samoa, etc., it was suggest­ ed with approval that the prosecutor should Chairperson: Mr. Chaikasem Nitisi1'i be able to interfere into unjust investigation (Thailand) at any stage, once it is brought to the notice Rapporiezw: Mr. A. Ranjit C. Perera (Sri of the authorities concerned that the police Lanka) investigation is either unjust, improper or Advisor: M1'. Itsuo Nishimura biased. The participant from Thailand pointed out Introduction that the public prosecutor in his country can­ not either initiate an investigation or direct This report is based on the material con­ the police during the investigation, thus tributed by several of the participants at the resulting in an ineffective prosecution. His 81st Seminar on Crime Prevention and position was that the prosecutor appears on Treatment of Offenders by way of their in­ the scene only if and when the police sub­ dividual presentations and discussions on the mit the investigatory file to the public prose­ topic of "The exercise and control of cutors office. Even if the public prosecutor

135 REPORT OF THE SEMINAR were to request the police to initiate an in­ prosecutions and/or the supervision of the in­ vestigation on a particular offender, the vestigation either by personal participation police were not bound by such direction and with or without the police was most salutary very often this request is not carried out. in the present day context, since it would Further he stated that this could lead to enable sifting of the important cases from the abuse of power by the police either by way others which were not suitable for prosecu­ of non-investigation of crimes and or im­ tion. The resulting position would be that a proper investigation. few worthwhile cases would be prosecuted, It was the view of the Bangladesh par­ a high conviction rate reached, and thereby ticipant that this problem of abuse of power result in a quick disposal of justice. For ex­ of investigation by the police is very acute ample, the very high rate of conviction in in his country since the police has the sole Japan (99.9%) was inter alia due to the prose­ authority both in investigation and prosecu­ cutor's entry in to the investigation at the tion of cases in the magistrate courts; this very outbreak of the crime. results in a V'i:fY low rate of convictions. He also expressed the view that this problem The Principle was receiving attention in his country and Of Discretionary Prosecution was hopeful that the law in regard to this measure would be changed. The principle of discretionary prosecution The Sri Lanka participant pointed out that is interwoven with the legality (mandatory) the supervisory capacity of the Attorney­ and the expediency (opportunity) principle of General (Public Prosecutor) enables him prosecution. Some countries adhere to the le­ either to initiate investigations through the gality principle and provide for mandatory police or to discontinue unwarranted inves­ prosecutions, where prosecutions are tigations. He also could interfere into all launched once there is a prima facie case be­ police investigation at any stage and direct ing made on the evidence available at the end the police on the lines he thinks is suitable of the investigations. The supporters of this in the situation. However in practice, a Sri :;,ystem argue that it is the tool for prevent­ Lanka prosecutor himself does not inves­ ing potential abuse by officials of their pow­ tigate or interrogate the suspects or witness­ er and therefore it is most effective es, as it is done in Japan for example. safeguard for ensuring that the citizens are It was highlighted by the Japanese par­ dealt with equally before the law. As against ticipants that even during the pre-trial stage this the partisans of the expediency princi­ of investigation the prosecutor not only has ple urge that the prosecutor's discretionary the authority to judge whether there is suffi­ power express the demand of modern penal cient suspicion to bring a matter up for in­ philosophy, in particular the notion of refor­ vestigation but also has the sale discretion mation and rehabilitation, as opposed to the to judge whether or not the offender should outmoded absolute theory of punishment. be prosecuted, even if such suspicion exists. They also state that the expediency princi­ Dr. Kirschner, a visiting expert of the ple makes a reasonable allocation of Seminar brought in for comparison, the sys­ resources possible instead of forcing prose­ tem prevalent in Germany where the prose­ cutors and courts to deal with all kinds of vio­ cutor, though statutorily empowered to lations of law including the very trivial ones, investigate, reserves the exercise of this thus resulting in the overcrowding of the right to be used for complicated and impor­ functions of courts and prisons. tant cases. It was pointed out by the Japanese par­ There was an acknowledgement by the ticipants that Art. 248 C.C.P. of Japan pro­ participants that the control of the public vides for the suspension of prosecution. The

136 EXERCISE OF PROSECUTIONAL DISCRETION

non-institution of a prosecution may be made prosecutorial methods presently in Sri Lan­ (even when there is sufficient evidence) if the ka, the exceptions to the legality principle prosecutor after considering the character, overpower the rule itself. age and situation of the offender, the gravi­ The variation in the acceptance of all or ty of the offence, the circumstance under a few modes of non-prosecutorial methods which the offence was committed, and the depends on the criminal policy considera­ conditions subsequent to the commission of tions of each country but however, it is crys­ offence, is of the opinion that a prosecution tal clear that almost all civilized societies is unnecessary. This decision of non­ have begun to realize the valuable shift prosecution is non-prejudicial to any civil towards the adoption of the principle of non­ claim for damages by the victim or an in­ prosecution. terested party. The payment of compensa­ In jurisdictions where the discretion is un­ tion by the offender would in fact inure to limited, the prosecutor acts as the central the benefit of the offender with regard to the figure in shaping the criminal policy and as decision of non-prosecution. an interpreter of the community's con­ The consensus among the participants was science. It is his responsibility to weigh the that the adoption of the Japanese system of interests and arguments speaking for and the exercise of the discretionary principle of agains~ the prosecution. This decision mak­ prosecution would be a salutory solution to ing competence is split up in other jurisdic­ the present day social needs. It was ac­ tions among different actors such as the knowledged that this would not only be a legislator, the victim, high political and quasi­ remedy for overcrowding in correctional in­ judicial officers, etc. Therefore the abuse of stitutions but also would avoid unnecessary discretionary power of the prosecutor should social stigmatization of the suspects and be safeguarded and its immediate effect would help to achieve a very high rate of con­ would fall on to the victim and/or the victions and a quick disposal of justice, thus offender as the case may be, thus resulting avoiding legal delays. in a miscarriage of justice. The participant from Sri Lanka pointed out that presently even in the countries which The Position of the Victim in the Case apply the legality principle as a rule have al­ Of Non-prosecution ready begun to adopt the modes of expedien­ cy principle as exceptions, providing a wide The argument often brought again~'t non­ discretion to the prosecutor to suspend, to prosecution is· that the rights of the victim discontinue or to dismiss investigations and are controlled, not only depriving him of the prosecutions. Even as far back as 1833 the moral and psychological revenge provided Penal Code of Sri Lanka decriminalized the for by public trial and conviction but also offence of causing slight harm (based on the closing up the avenues of any possible com­ legal principle of "De minimis non curat pensation. The extent and the contents of the lex") section 88 of the Penal Code of Sri Lan­ legal provisions safeguarding the victim's in­ ka. On the other hand, the Code of Criminal terest vary according to the penal philosophy Procedure Act of Sri Lanka provides for the prevailing in various jurisdictions. The coun­ Attorney-General to enter "Nolle prosequi" tries which emphasize that the prosecution (a decision not to prosecute), to withdraw a is a public matter involving a limb of the prosecution with the permission of court, to state does not consider the revengeful rights conditionally pardon certain offenders in the of the victim; while in countries where vic­ interest of justice, and to discharge suspects tim's role in enforcing the penal action is ac­ who are in judicial custody of the courts of knowledged, various methods have been first instances. Taken all these modes of non- developed for meeting the victim's interest

137 REPORT OF THE SEMINAR in cemanding prosecution. It was argued for where sufficient evidence is available. the countries following the legality principle Japanese participants highlighted two strictly, that thYS question would not arise; main safeguards against the abuse of above and even if it does in a marginal case, the mentioned discretionary power. The first victim is in a position to remedy it by resort­ safeguard having an examination by the In­ ing to the supervisory, executive or judicial quest of Prosecution which was established action. as far back as 1948 by the law for the Inquest The partisans of the expediency principle of Prosecution. The purpose of this Inquest urge that there are several safeguards to the of Prosecution is to provide the impartiality exercise of the non-prosecutorial discretion, by reflecting people's will concerning the ex­ which consider the rights of the victim as ecution of the authority of the public prose­ well. However, the consensus of opinion was cutor. This Inquest consists of 11 members that a non-prosecution is not a bar to an in­ from the general public selected by drawing dividual's rirht for compensation in a civil lots. The offender or the victim can apply to court. In addition, the individual also has a the Inquest of Prosecution against a non­ protection against any breach of a human prosecution and seek a declaration that such right even to claim compensation from the decision of the public prosecutor is unjust. government of his country. Even if the Inquest of Pros;:;cution were to decide that the public prosecutor's decision The Position of the Offender is unjust, the public prosecutor is not bound In the Case of Non-prosecution to accept it. However when such decisions are notified to the chief public prosecutor of Very superficially the non-prosecution may the District Public Prosecutor's Office, he serve the interest of the offender but in­ may order a more experienced public prose­ stances of it leading to the social stigmatiza­ cutor to conduct re-investigation of the case, tion should be avoided. Again this type of depending on the contents of such notifica­ problem may not surface in countries follow­ tion. Thus the Inquest of Prosecution is limit­ ing the legality principle as it is clear that ed only to an advisory effect; although it there will be no prosecution, when there is would have a considerable impact on the no prima facie evidence against him. But in public prosecutor, generally resulting in a full countries where the prosecutor exercises an re-investigation of the case and careful re­ autonomous discretion, it may become examination of the initial decision. necessary for the offender to submit himself The other safeguard is the analogical in­ to a prosecution to clear himself of the pub­ stitution of the prosecution through judicial lic stigmatization. Here too it is important action. This procedure is specially designed that certain safeguards are adhered to, in the against non-prosecution of specific crimes of decision of a non-prosecution, keeping in abuse of authority by a civil servant or of vio­ mind the impact of the position of the lence and cruelty by law-enforcement offender in a decision to investigate and not officers under Articles 193 to 196 of the to prosecute. Penal Code and under Article 45 of the Sub­ versive Activities Prevention Law of Japan. Safeguards against the Abuse If the public prosecutor declines to prosecute Of Prosecutorial Discretion the suspect of one of these crimes, any per­ son who has lodged a complaint to ? public Abuse of prosecutorial discretion arises prosecutor or to a judicial police officer may either when a decision is made to prosecute apply to the court to have the case commit­ without sufficient evidence or when an im­ ted for trial (Article 262 C.C.P. in Japan). If proper decision of non-prosecution is made the application is granted, then one of the

138 EXERCISE OF PROSECUTIONAL DISCRETION

practicing lawyers is appointed by the court suIt his supervisors before making a deci­ and he is made to exercise the functions of sion of prosecution. a public prosecutor (Article 268 C.C.P. in 6. Most offenders confess their guilt, but the Japan). confession must be supported by the cor­ Apart from these two safeguards against roborative evidence. abuse of prosecution, an interested person 7. The written statement of a witness is may appeal to the higher prosecutor's office made admissible in certain circumstances praying for an alteration of the decision of as an exception to the hearsay rule. , the prosecutor; such cases are considered on their merit and suitable action is taken. Statistics reveal that the conviction rate for It was pointed out that even in the coun­ the past so many years is above 99 percent. tries which adhere to the legality principle The most profound issue is that only those where the doctrine of non-prosecution is ac­ cases which deserve conviction are prosecut­ cepted exceptionally, there are certain ed and the accused very often pleads guilty safeguards to counter the autonomous action at the trial and only a very few cases are con­ of the public prosecutor or the police as the tested. This relieves the burden of work in case may be. These safeguards may be courts reSUlting in very quick disposal of categorised as executive and judicial solu­ cases. Most of the criminal cases take less tions. Further the aggrieved parties can than six months to conclude from the time make representations to the supervisory ex­ of the commission of the offence. This has ecutives i.e., the chief prosecutor or the to be looked at in contrast to the heavy back­ Attorney-General/D.P.P., as the case may log of cases in other countries which has be, or may even file prosecutions privately. resulted both in the overcrowding of correc­ They couid also seek judicial remedies by tional institutions and legal delays. way of writ procedure or on the breaches of fundamental rights. Conclusion

Function of the Public Prosecutor Crime is an offence committed against the And Crime Rate state and one of the main functions of the government of any state is to protect the life Another point of interest under discussion and property of its people. Viewed in this was the extremely high rate of conviction in perspective the state is solely responsible for Japan. The main reasons for such high con­ exercise of the prosecutorial discretion viction rate, as pointed out by the Japanese, through its agent, the public prosecutor. The participants were as follows: rights of an individual against another are purely a civil matter. Without prejudice to 1. Qualifications of the judge and the public the rights of the individual if the state prosecutor are the same. through its organs of criminal justice protects 2. The standard of proof needed for the its people from violence, one can argue that prosecution and conviction is the same. the discretion given to the prosecutor being 3. The public prosecutor will not prosecute adopted in any democratic welfare state the case when evidence is insufficient to would be to the betterment of the adminis­ obtain a conviction. tration of criminal justice. Finally it should 4. The public prosecutor investigates the be mentioned that there was a majority will case with the police, which enables him that the enlargement of the scope of the non­ to seize the essence of the case and to prosecution even in cou:ntries which adhere predict the defence to be raised at the trial. to mandatory prosecution would lead them­ 5. The public prosecutor has occasion to con- selves to the advancement of their criminal

139 ------

REPORT OF THE SEMINAR

justice system. reports and the insights, views, comments and opinions generated during the plenary sessions, we will endeavour to unravel our Session 3: The Independence of the understanding and to suggest the best pos­ Judiciary and Control of sible panacea in achieving a truly indepen­ Judicial Discretion dent judiciary.

Chai1person: M1'. Niwet Comephong (Thailand) II. Independence of the Judiciary Rapporteur: M1'. Benigno S. Dacanay (The Scope and Rationale Philippines) Advisor: Mr. Norio Nishimura The independence of the judiciary plays a fundamental and indispensable role in the ju­ I. Introduction dicial system. There are two facts to look at, i.e., the independence of the judicial branch This report seeks to capsulize the majori­ and the independence of the judges. As for ty if not the overwhelming views and con­ the judicial branch, it is independence from victions of the participants in the 81st other State branches, especially the adminis­ International Seminar on Crime Prevention trative branch, we are thinking about. And and Treatment of Offenders who opted to as for the judges, each judge is bound only take as the subject matter of their country by law and exercises his authority indepen­ reports the independence of the judiciary and dently. All jurists and lawyers, as well as the control of discretion. general public in every country, recognize The participants from Indonesia, Japan the independence of the judiciary. and Thailand focused, in their individual reports, on the main theme, while others, Guarantee and Recognition such as those from Argentine, Bangladesh The independence of the judiciary in most and the Philippines, barely touched in pass­ of the participating countries is guaranteed ing their respective judicial machinery, struc­ by their respective constitutions. As gleaned ture, jurisdictions, and operational and from the country reports of the participants administrative functions. from Indonesia, Japan, Thailand, the Philip­ The preponderant sentiments strongly pines and others, the judicial branch of militate towards having the judicial branch government has the sole prerogative to ad­ of government truly independent with, of minister justice and judges are protected and course, some reasonable limitations and res­ secured in their office, unless guilty of trictions so that human rights, either civil or breaches of duty as spelled out in their con­ political, and the majesty of the law will be stitutions. upheld. The Japanese Constitution provides that Although the judiciary of many countries an judges shall be independent in the exer­ are in form and substance independent, there cise of their conscience and shall be bound still seems to be some administrative and only by the constitution and the laws. The structural lapses and outside factors like an Supreme Court handles the administrative unmuzzled media visibly or invisibly putting affairs of the courts; it is vested with rule­ pressure on the people manning the wheels making powers which guarantee the auton­ of justice in some countries. An independent omy of the courts and specify its indepen­ judiciary, which is one of the primordial ob­ dence. In addition, judicial independence is jective of freedom-loving nations, must reinforced by limiting the removal of judges therefore be strong from within or without. and guaranteeing adequate compensation, Based on the contents of the country which shall not be decreased during their

140 JUDICIAL INDEPENDENCE AND DISCRETION

term of office. The Court Organization Law tries do not recognize this immunity concept of Japan provides that judges shall not be at all and some view it as included in the in­ transferred, etc. against their will. Only the dependence notion. In some countries, like Court of Impeachment within the Diet can Kenya, the criminal law provides that no take disciplinary action. In the Court of Im­ judge or magistrate shall be held criminally peachment, a judge may be dismissed if he responsible for any act done during the ex­ or she neglects his/her duties to a remarka­ ercise of his/her judicial capacity unless ble degree, or if there has been misconduct, he/she acts outside his/her jurisdiction. whether or not it relates to official duties. The Court of Impeachment is a legislative Practices and Activities Affecting Judicial In­ body and is composed of Representatives dependence and Councillors drawn from the Diet. The ~;"ying goes that "nothing is perma­ For the full performance of judicial ad­ nent but change." As time passes by, things ministration, the General Secretariat of the change and new practices and activities Supreme Court of Japan was established un­ emerge which tend to affect the indepen­ der an order of the Judicial Assembly of the dence of the judiciary. What are these and Supreme Court as a department separate how do they affect judicial independence? from the Ministry of Justice to deal with mat­ In Thailand, courts are placed under the ters concerning budget, personnel and other Ministry of Justice, which is the executive miscellaneous services. branch of the State. This has caused uneasi­ The Constitution in Thailand provides that ness, if not anxiety, to a number of jurists judges are independent in the trial and adju­ and lawyers. Controversy broke out two de­ dication of cases in accordance with the laws cades ago when the Judicial Service Act was of the country. revised and judicial independence was In the Philippines, judicial independence thought to be adversely affected by the re­ is likewise substantially guaranteed by the vision. Demonstrations were launched Constitution by providing for security of te­ against the changes and continued until the nure for justices and judges and non­ law was revised back to its earlier provisions. diminution of salary during their term of A couple of years later, when a new Consti­ office, and removal from office can only be tution was being drafted, a dialogue about effected against justices of the Supreme judicial independence was in full swing: com­ Court through impeachment proceedings for ments, criticisms, quetionnaires, discussions, culpable violation of the Constitution, trea­ as well as research on the subject, were son, bribery and other serious crimes. widespread. Most interesting of all were the The legal concept of immunity from suit discussions conducted by the Thai Bar As­ for justices and judges may enhance some­ sociation on the topic "Should the judiciary how the independence of the judiciary. It is, be separated out to form an independent in­ in essence, exempting from prosecution acts stitution?" Those who advocate the separa­ committed by a judge in the performance of tion of the courts with their own autonomy his judicial functions in good faith. However, based their arguments on the separation of all other infractions committed by a judge in the three sovereign powers in accordance his private capacity are not covered by this with the democratic doctrine. They are also immunity. The phrase "acts done in the per­ not so happy with the fact that the Minister formance of judicial function" ,is an essen­ of Justice is empowered to set up a board of tial element and should be carefully discipline for inquiry against a judge, and construed to obviate confusion. While many that the promotion and transfer of judges has countries recognize the concept, the practice to be proposed by the Minister of Justice to varies from country to country. Some coun- the Judicial Service Commission. They claim

141 REPORT OF THE SEMINAR that this makes it possible for the Minister III. Control of the JUdicial Discretion of Justice to do favours for or take adverse Scope and Rationale action against judges, thus making judges feel insecured and not independent in ad­ Judicial discretion or prerogative is a ministering litigation as provided by the Con­ necessary adjunct to the exercise of the ju­ stitution. Jurists and lawyers are divided on dicial function by any judge or magistrate in this issue. Some are satisfied with the order to ensure fair and speedy justice. On present system saying that it sufficiently the other hand, excess or abuse of judicial guarantees judicial independence, because discretion may result in a travesty of justice. the Minister of Justice can only propose the This is understandable because man by na­ appointment, promotion or transfer of ture has numerous limitations and frailties. judges. The Judicial Service Commission is In the performance of the judicial function, supreme, because it may either disapprove judges have to exercise a lot of discretion, the Minister's proposal or propose and make the main examples being in administering tri­ decisions of its own. als, in fact-finding, and in imposing sen­ The situation in Japan is reported as tences or penalties. Judicial discretion is at follows: times improperly exercised due to diversities "The mass media in Japan (chiefly TV and in locality and the varied background and newspapers) have progressed remarkably personalities of judges not to mention their and are reporting judicial affairs widely, at­ individual upbringing and academic prepa­ tracting more public attention to the ration. judiciary. This is no problem in itself. The To minimize judicial indiscretion, judicial judiciary gives them the information neces­ authorities are continuously searching for sary for proper public reports. But it is not and have adopted good and practical meas­ rare that reports by the mass media are ures of control. This control should not be sometimes overheated. And generally speak­ too rigid or hard-and-fast in order not to ing, it is not necessarily easy to make proper jeopardize the independence of the judge. and fair reports about actual cases. Bearing The problem of what kind of measures this in mind and supposing that the mass me­ should be adopted is a matter of great con­ dia may give overheated and biased reports cern to the criminal justice system of any about individual cases to make the people given country. misunderstand, though we have no such problems at present, these situations impose Judicial Discretion visible pressure on judges (and thus may in­ As already mentioned, the main examples duce violence against individual judges or at­ of judicial dis(.retion are in administering tri­ tacks on their privacy) or invisible pressure als, in fact-finding, and in imposing sen­ on them. And we cannot say that there is no tences or penalties. possibility of such situations having an in­ Judges exercise their discretion in various fluence on the independence of the judiciary. ways in administering trials. They fix the To avoid such situations, the mass media and date for public trial, determine the scope, the people should have proper communica­ order and method of examination of evi­ tion with the judiciary, and the judges, on the dence, and act on the parties' petition for other hand, should give fully-reasoned judge­ postponement or adjoumment of the trial. ments, paying attention to the trends of the In fact-finding, the probative value of the era and thereby gaining the trust of the evidence is left entirely to the free discretion people." of judges. In Japan, this is called "the prin­ ciple of free evaluation of evidence." There are no written standards for the exercise of

142 JUDICIAL INDEPENDENCE AND DISCRETION this discretion laid down by law. The only judgeship through to retirement age. Such limitation on this discretion is the require­ a system enables judges to continue to work ment of corroborative evidence to support for a long time, so that various ways of ex­ any confession made by an accused person. ercising their discretion appropriately can be In sentencing, judges exercise their discre­ passed on from the senior judges to the tion in choosing the kind of sanction to be junior ones. imposed, ranging from non-custodial meas­ ures to fines and imprisonment. In doing this, 2. Attendance at Training Programmes and judges have a wide latitude of discretion. Meetings There are no standards or measures of con­ The object is to have judges take part in trollaid down by law in many countries. In training programmes or meetings of a practice, however, judges would consider the diverse nature in various institutes or agen­ character, age and situation of the offender cies as frequently as possible while in office, in the community, the gravity of the offence, so that they may gain the knowledge and ex­ the circumstances surrounding and condi­ perience necessary to exercise their discre­ tions subsequent to the commission of the tion appropriately through the contents of crime. the training and the reciprocal exchanges of opinion. Countermeasures against Inappropriate Discre­ In the Philippines, the Supreme Court tion and Sentencing Disparities seeks through the Institute of Judicial Ad­ The exercise of discretion by a judge may ministration to update the skills of judges at times be viewed by other judges, the par­ and court personnel by giving them in­ ties involved or the general public, as inap­ service training at the National Academy. It propriate. This includes disparities in the is a truism that a well-informed and enlight­ imposition of penalties. Countermeasures ened judge will perform and discharge his against such inappropriateness and dispari­ duties fairly and judiciously. To check pos­ ties have been a continuing concern of ev­ sible misuse of judicial discretion and/or ery judicial system. Ten countermeasures so prerogative, the Supreme Court(in Circular far have been identified in this Seminar. No. 13, dated July 1, 1987) issued guidelines Seven of these have been adopted by the for all trial courts to observe-for example, Japanese judicial system and a number of punctuality and strict observance of office them are shared by other participating coun­ hours, maximum use of the pre-trial proce­ tries. Measure 8 in this report is being em­ dure, active management of trials and mini­ ployed by some countries, but its mum postponements, an annual conference acceptability is questionable. Measures 9 and on pending cases, an inventory of cases, 10 are German practices which are shared preparation of concise and brief decisions, by some other countries to some extent. and visits by Supreme Court personnel to as­ The countermeasures are as follows: sist trial judges so that an appropriate audit can be effected. 1. The Accumulation of Knowledge and Ex.. perience Acquired through Daily Work 3. The Retirement Age Most judges in Japan first undergo a Older judges sometimes suffer a reduction course of judicial apprenticeship for a peri­ in the general abilities necessary to carry out od of time before being appointed assistant their duties properly, especially the ability judges, and a further period of the time is re­ to deal with new situations. Judicial discre­ quired before they are appointed as full­ tion might be inappropriately exercised for fledged judges. After that they are subject this reason. Part of the raison d'etre of a to re-appointment every ten years, to hold retirement age is to avoid the superannua-

143 REPORT OF THE SEMINAR tion of judges and to exclude such an No other participating countries have a outcome. similar provision.

4. The Nationwide Transfer of Judges 8. Sentencing Guidelines or Standards The Japanese practice of transferring In a considerable number of countries, sen­ judges throughout the country is a way of tencing guidelines or standards have been avoiding disparities in the exercise of judi­ made available for judges to follow when im­ cial discretion between localities. posing penalties in order to avoid unwarrant­ ed sentencing disparities. However, in 5. Opinions of Parties Concerned introducing and implementing sentencing This practice requires judges to hear the guidelines, much care should be taken so opinions of the prosecutor and the accused that it does not bring about a return to an in­ or his counsel in some situations. For exam­ flexible system in which sentences are fixed ple, the parties will state their opinions con­ entirely regardless of the particular circum­ cerning the assessment of the penalty against stances of the offender before the court. the accused in the final stage of the trial. The opinion stated by the prosecutor on the ba­ 9. Public Trial as a Control of the Judiciary sis of material acquired through a nation or­ In the Federal Republic of Germany, the gan (namely, the public prosecutor's office) law stipulates that the trial shall be held in can be a good reference source for judges public, though there are some exceptions to who cannot easily get good information to this rule, for example, cases involving help them assess the penalty, apart from that juvenile defendants. Where these exceptions which they can get from examining the evi­ do not apply, trial in open court makes it pos­ dence. After hearing the opinions of the par­ sible for the general public, particularly the ties concerned, the judge makes the media, to follow and understand in any given assessment of the penalty. case the workings of the judicial process, which can be an effective control of the 6. The "Three Instances" System judiciary. The judicial administrations of most coun­ While public trial is required by most of tries adopt the "three instances" system. For the participating countries, it has been ar­ example, in Japan, the prosecutor, the ac­ gued that it may infringe the privacy of the cused or his counsel may rectify inappropri­ accused and the witnesses. Those who hold ate discretion at every stage of the trial. In this view also contend that public trial does addition, the judgment of the superior courts not, in fact, serve to have much influence can provide good guidelines on how to exer­ over the judiciary. And the question is posed, cise judicial discretion and thereby future in­ "Which interest prevails-that of judicial dis­ appropriate discretion may be avoided. cretion or the privacy of the accused?"

7. Remedy for Change of Trial Date 10. Presence of Lay Judges as One Measure (Japanese Special Provisions) of Control of Judicial Discretion In Japan, Article 277 of the Code of Crimi­ In the Federal Republic of Germany, in the nal Procedure regulates the rectification of courts of superior instance, the Federal inappropriate judicial discretion. It reads; Court of Justice and the higher regional "Where a court has changed the fixed date courts, the professional judges decide on for public trial in abuse of its authority, per­ their own. Less serious offences, on the other sons concerned in the case may request hand, come under the jurisdiction of the lo­ remedy in the judicial administrative con­ cal COUlt judge sitting on his own. In all other trol. ... " criminal proceedings, lay judges are active-

144 PRISON OVERCROWDING AND COUNTERMEASURES

ly involved at the trial stage. They are called judges and mass media. upon to decide question of fact and law. In the performance of the judicial function, Since the abolition in 1924 of the classical judges have to exercise a great deal of dis­ "jury courts" based on the French model, cretion. Sometimes judicial discretion exer­ West German lay judges have exercised the cised by a judge may be viewed as office of judge at the trial stage without res­ inappropriate. To minimize judicial indiscre­ triction and with the same voting rights as tion, judicial authorities are continuously the professional judges. The idea behind the searching for and have adopted some meas­ participation of lay judges is that the profes­ ures of control. Ten countermeasures so far sional judges should not be allowed to slip have been identified, discussed and evaluat­ into a routine. They should be obliged to ed in this Seminar. Some are sound but think about the cOlTection of their perception others are still questionable. Good measures conclusions and assessment by having to should assist judges to exercise discretion ap­ measure and clarify them against the objec­ propriately but should not jeopardise the in­ tions raised by the spontaneous feeling for dependence of the judge. right and wrong of the "man in the street" represented by the lay judges. It is reported Session 4: Prison Overcrowding and that this involvement of lay judges results in Its Countermeasures a particularly effective control mechanism when the professional judges themselves are Chairperson: Mr. D. Umal"U Nshi (Nigeda) divided in their deliberations. Rapporteur: Mr. Pang Sung-yuen (Hong Many participating countries do not have Kong) lay judges. And there was one observation Advisors: Mr. Akio Yamaguchi at the Seminar that while the practice of us­ Mr. Fumio Saitoh ing lay judges serves the purpose of controll­ ing the judiciary, it also has so many I. Introduction disadvantages. Whether the lay judge sys­ tem serves its purpose well or not depends Prison overcrowding has been a persistent very much on the system of how lay judges and pressing problem confronting cOlTection­ are chosen. al administrators in many parts of the world. In some countries in Asia and the Pacific IV. Conclusion region, the problem is so grave that it is reaching a critical level yielding criminal Judicial independence is, no doubt, a justice administrators to derive timely and prerequisite for the courts to dispense effi­ unfailing solutions. However, solutions to cient, fair and speedy administration of this thorny problems are not easy and could justice. Jurists, legal luminaries and lawyers not be found by the strategies adopted by the as well as the general public in most coun­ cOlTectional administrators alone. It is widely tries recognize this. And it is guaranteed by acknowledged that all components within the the Constitutions of most of the participat­ criminal justice administration, i.e. the ing countries. The legal concept of immuni­ Police, the Prosecution, the Judiciary, the ty from suit for judges recognized in some Correctional and Rehabilitative organs each countries also enhances to some degree the has a vital part to play in an integrated ap­ independence of the judiciary. proach to formulate countermeasures in al­ However, there are still some practices leviating pressure exerted to the and activities tending to affect judicial in­ over-populated, dynamic and under­ dependence emanating from governmental facilitated penal institutions. Problems aris­ organization, administrative control of ing from prison overcrowding are obvious,

145 REPORT OF THE SEMINAR

be it administrative or detrimental to human­ small-sized prison population, there is ity and security, the significance of which problem yet to be solved on the insufficient need no reiteration but an immediate facilities to separate adult and young address. offenders. Its only prison is divided into two sections, naturally one for men and the other II. General Perspective for women. There is also overcrowding problem in the Overcrowding in prisons may have differ­ prisons of Bangladesh. With a capacity of ent meanings to the developed countries and 20,000, the prisons are holding about 28,000 developing countries. The developed coun­ inmates. tries use criteria as minimum floor space, cu­ In Argentine, it is reportly sufficient on bic content of air ventilation and other basic sleeping accommodation but there is a lack amenities to measure overcrowding. In the of supporting facilities for amenities and in­ developing countries, they view overcrowd­ dustrial activities. ing as gross overcrowding, a situation which Japan, Sudan, Saudi Arabia and Indonesia is glaring and sometimes disgraceful. are among those more fortunate countries as In some of the participating countries, the there is no confronting problem of prison situation of overcrowding in prisons has at­ overcrowding in these countries. tained an alarming level and in these coun­ tries, prison overcrowding is more a crisis III. Undesirable Effects than a problem. Of Overcrowding The overcrowding problem in Malaysian prisons is obvious during the last five years. Overcrowding in penal establishments me­ As at 30th November 1988, it recorded a ans more than just shortage of accommoda­ penal population of 21,377 against an actual tion for the inmates, it also develops an available accommodation of 10,710. In the unhealthy climate affecting penal reforma­ most congested prisons, am :mg which Kua­ tive programmes, creates security problems la Lumpur, Pulau Pinang, Johor Bahru, and and contributes to additional pressure on Kuantan were more obvious, there was a pri­ staff and tension between inmates and staff. son population almost four times of the in­ Such a situation poses particular difficul­ tended capacity. ties for the correctional administrators in The situation in Nigeria is equally critical. providing safe and humane conditions for the With the current capacity of 28,000 in 129 custody and treatment of offenders and it Nigerian prisons, they are holding over also provides a volatile setting where minor 80,000 inmates. incidents can quickly escalate into major is­ Overcrowding is being experienced by the sues. At the same time, it affects staff prisons in Hong Kong due to a recent in­ morale, particularly if prison unrest reflects crease of convicts on illegal immigration adversely on them through no fault of their from China. At the end of 1988, it had an own. overoccupancy rate of approximately 25 Overcrowding causes numerous adverse percent. effects which have related, chain reactions. The major problem in the Sri Lanka pri­ Depending whether the situation is merely sons is said to be attributable to its heavily a problem or a crisis, the administration in overcrowded remand population. The aver­ general has to shoulder the heavy responsi­ age rate of overcrowding in this category has bility, simultaneously it is required to deliver been over 500 percent. the package objectives of imprisonment. In Western Samoa, despite there is no seri­ Increasing prison population and conse­ ous problem on overcrowding because of its quent overcrowding are factors creating

146 PRISON OVERCROWDING AND COUNTERMEASURES difficulties in the observance of the Standard recidivism. Thus overcrowding creates more Minimum Rules for the Treatment of recidivists. Prisoners in many countries. In one of the participating countries, the problem has IV. Cause of Overcrowding come to such an extent that there is short­ age of drugs in sick-bays, soap, beddings, Various reasons may be cited as causes of feeding pans, uniforms and in some cases overcrowding in prisons and the following food and water. The soak-away and septic are identified as some but they are not ex­ tanks are brimful and overflowing thereby haustive. producing offensive odours in the prison precincts. Outbreak of infectious diseases is (a) Old and Out-oj-Date Institutions common with corresponding death tolls. In Many countries in the Asia and Pacific such chaos, overcrowding is so distressing region have not constructed any new prison that inmates have to sleep and sit in turns. facilities for several years. In Sri Lanka, These dehumanising effects, needless to almost all the closed prisons are over a mention, would lead to increased tension be­ hundred years old. Built in the latter part of tween inmates and staff and associated secu­ the 19th century when the population of the rity and disciplinary problems, the end result country was less than three million, the pri­ of which, is riots and prison outbreaks. son system cannot meet the demands of the Prison overcrowding does not allow for ad­ present day. ministrative effectiveness especially in the In Malaysia, quite a number of prisons are areas of classification and training. Because old and were built during the last century. of congestion the staff strength and other in­ Some are as old as 100 years. Though origi­ frastructure cannot cope with the prison nally built to hold fewer than 200 to 600 population due to steady stream of new ad­ prisoners some of these old prisons, like in missions, thus diverting staff attention to Kuala Lumpur (Pudu), Taiping, Penang and security thereby leaving the prisoners with Johore Baharu have 2,000 to 4,00 prisoners. little opportunities for training and rehabili­ In Mozambique, there are old and over­ tation. Once the prisoners are not properly crowding prisons inherited from colonial classified or segregated and left untrained, times. they become idle and mixed up with the All these out-dated penal institutions, as group that they are not supposed to. This is being grossly under-facilitated, are unable to the most dangerous period or stage where cope with the ever increasing penal popu­ pollution can easily take place. Once pollu­ lation. tion takes place, prisons become "School of Crimes" because harmful contacts greatly (b) Increase oj C1'iminality outweigh beneficial contact., According to With the rapidly changing economic and Sutherland in his theory of differential as­ social conditions and the ever increasing sociation in actiun, crimes are planned and population, crime has increased in most de­ taught in prison and some men attribute their veloping countries. Better and widespread later criminality to the lesson they were policing facilities have increased the rate of taught by their more sophisticated associates crime detection resulting in more offenders in their first penal establishment. sent to prison. However, the number of cor­ The stigma of such imprisonment breeds rectional institutions and the accommodation more resentment and ostracism by the wider has not kept pace. In Malaysia, as the crime society of the ex-inmates. This situation rate keeps on increasing, the police are ful­ usually drives the ex-inmates to a "life" of ly committed in the arrest and investigation crime which ultimately manifests itself in and police lock-ups are unable to accommo-

147 REPORT OF THE SEMINAR date temporary remand prisoners. There is System in some of the participating little choice but to send these remands to countries. prisons. (e) Over-use of Institutional T1'eatment (c) Delay in Police Investigation Many countries still carry prison sentences In some developing countries remanding for far too many offences. The legal system of suspects is used as a punitive measure by of these countries over emphasise imprison­ the police. In Nigeria, the police on its part ment as the most effective means against contributes to the overcrowding of the pri­ crime. Courts resort to imprisonment of sons through unnecessary delay in either in­ offenders far too often even in cases which vestigation, prosecution, failing to produce deserve lesser punishment. witnesses/evidence or refusal to grant bails Both in Hong Kong and Malaysia, the in­ to suspects on flimsy reasons such as the sur­ creasing number of illegal immigrants and ety or bailer must have landed property even the policy of the governments in deterring if he is known to be residing in the town. illegal immigration by extended prison sen­ There is also external influence and personal tence have been attributable to the over­ prejudice of the police through the investi­ crowding in prison. Towards the end of gators. At times, the prosecution and the 1988, statistics showed that there was over forensic laboratory also contribute to the 20 percent and 14 percent of illegal im­ overcrowding by delaying action on the cases migrants among the penal population In referred to them for advice or examination. Hong Kong and Malaysia respectively. In Malaysia, the increase in the remand prisoners is due to a shortage of police per­ (f) Ineffective Use of Alternatives sonnel, particularly investigating officers. In some of the countries suffering from pri­ Consequently, the police has to arrest first son overcrowding, alternatives to imprison­ and investigate later. ment have not yet been introduced or adequately developed. In other countries (d) Delay in Trial where alternatives to imprisonment exist, The reasons for overcrowding of remand judges do not adequately utilise them. Sri prisoners are common in many countries. Lanka has introduced many alternatives to One such common cause is the delay in imprisonment such as probation, suspended bringing the offenders to trial or, more com­ sentences, community service order, etc. monly known as "laws delays." Laws delays However, these alternatives have been spar­ result in many prisoners under trial having ingly used by the courts. For example, in the to wait in remand custody for long periods. last decade, Sri Lanka has experienced a Excessive bailor inadequate use of bail pro­ downward trend in the numbers placed on visions have also contributed to the increase probation orders. in the remand population. In some of the Asi­ Another reason for the increase in the pri­ an countries, it is very common to see large son population is the large numbers admit­ number of persons lingering in jail for their ted to prison on non-payment of fines. inability to furnish the bail ordered on them. There are also many instances where those (g) Low Priority in Policy Making on remand are either too ignorant or too poor Construction of modern prisons is an ex­ to engage counsel to make applications for pensive proposition to most developing coun­ bail. tries. Emphasis in these countries is on Shortage of manpower in the judiciary and economic and social development and con­ lack of court facilities have been cited as the struction of prison would be a very low pri­ main reasons causing backlog in the Judicial ority item. In most third world countries,

148 PRISON OVERCROWDING AND COUNTERMEASURES politicians decide on the priorities. They Malysian Prison Service is reportedly would go for the construction of schools, more fortunate to have been allocated suffi­ hospitals, factories which are more "vote cient funds for its five-year plan in the catching" than prisons. redevelopment of the prison facilities. In­ Financial constraints are the chief cause mates with knowledge and expertise in con­ for poor condition of prison buildings and fa­ struction industry are utilised in the building cilities, as priorities in government are al­ of new prisons and remand centres. By so ways given to other projects and doing, it has not only speeded up the programmes. redevelopment programme to avail an addi­ tional accommodation for more than 2,500 v. Countermeasures against inmates but also saved money for the Overcrowding government.

Most participants in the 81st Internation­ (b) SPeedy Processing in Criminal Justice Ad­ al Seminar expressed concern about the ministration pressing problem on prison overcrowding in Unconvicted prisoners in prisons aggra­ some of the participating countries. After vate the problem of overcrowding in many deliberate discussions, the following areas countries. In order to reduce the number of were identified and considered warranting remands committed to penal institutions, reinforcements to counteract the problem. speedy process in criminal justice adminis­ tration should be adopted. The following (a) Improvement and B'(pansion of Facilities measures would be effective at the pre-trial Countries in which prison facilities are out­ stage. of-date and inadequate to cope with the present day demand should endeavour to se­ Suspension of Prosecution cure attention from their respective govern­ ments to accord higher priorities in The aims of suspension of prosecution are: improving prison facilities either by renova­ to facilitate the rehabilitation of offenders tion or redevelopment. When capacity of the without recourse to regular retrial; to avoid existing facilities are obviously unable to stigmatization because of conviction and the match the ever increasing penal population, adverse effects of imprisonment and finally new prisons should be built as a final so­ to reduce workload of the courts. Both in lution. Japan and the Republic of Korea, Public However, it is the consensus of opinion Prosecutors are authorised to exercise their that in the developing countries, budget of discretion to suspend prosecution in the larg­ the government can hardly give priority 011 er interest of the society and that of the building new prisons with large capacity. offenders. The Sudan prison Service tackled this In the Federal Republic of Germany, dis­ problem by establishing more open camps in continuation of prosecution on the ground of rendering a lesser financial burden to the insignificance is provided for in section 153 government but at the same time solved the of the German Code of Criminal Procedure problem by putting most of the first timers in dealing with minor offences. If in the case to the open camps for agriculture. Japan ex­ of a. minor offence the guilt of the perpetra­ perienced overcrowding in prison on two oc­ tor was slight and the consequence of his casions in the past and the problem was deed insignificant, then the department of resolved by establishing open institutions in public prosecution could, with the consent of H::>kkaido, an island which was then rather the legal judge, desist from bringing the pub­ remote. lic charge.

149 REPORT OF THE SEMINAR

Consequently, the suspension of prosecu­ of a country should be encouraged, where tion may help reduce the penal population. possible, to summon offenders instead of ar­ resting and detaining them unnecessarily. Expediting Police Investigation Court Proceeding As a major cause for the overcrowding of remand prisoners is the inordinate delays in In the Philippines and Bangladesh, there the prosecuting procedure, measures must are stipulated rulings in their Judicial Sys­ be taken to expedite the police investigation tem binding the period and procedure of and prosecution procedure. Delays in obtain­ court hearings to ensure there is no delay in ing medical, analyst and expert reports es­ the court proceedings. sential for evidence, absence of key In Kenya, there has been problems on witnesses and at times officers assisting the delayed court trials because of inadequate prosecutors reque!3ting for dates on flimsy court facilities and shortage of judges. grounds are very often the causes for delays However, this problem is now overcome by in the disposal of cases. Experts who have improving the court facilities and recruiting examined this problem have suggested set­ more judges. ting mandatory time limits for the comple­ It is also imperative that the position of the tion of investigation and prosecution. In fact, remands in prison be regularly reflected to some countries have already set mandatory the Judiciary and the Prosecution so that time limits in their statutes. Time limits cases which have been remanded for unduly could also be set regarding the period that long period could be attended to by the a person could be kept on remand. courts and the prosecutors. Frequent and regular meetings between the Judiciary, Bail and Personal Bond Police, Prosecution and Correctional person­ nel should be held to discuss problems affect­ The liberalising of bail facilities and the in­ ing speedy trials and to seek solutions. creased use of release on personal bond by Regular visits by judges to the prisons is also the courts may help reduce remand popula­ considered to be one of the means to keep tion. When ordering bail, judges and magis­ the judges abreast of the situation of the per­ trates should consider not only the gravity sons on remand. of the offence but also the offenders' ability to furnish the bail. Sri Lanka, in the recent (c) Improvement of Non-institutional Sanctions past, introduced certain bail regulations un­ In an effort to reduce and possibly der the Emergency Regulations. Under eliminate the problem of overcrowding in pri­ these regulations, remand prisoners who sons in various countries, the courts, where have been in prison for over one year (other it is provided for by the law, should resort than those coming under certain scheduled to alternative measures as much as possible offences) were released from prisons upon after taking into consideration the character, signing a personal bond. On a study made past history, age, health, mental condition of it was revealed that 97 percent of those the offender, the trivial nature of the offence; released in such manner have appeard in or any extenuating circumstances under courts on due dates. which the offence was committed. The court should also pay particular attention to an Summons offender for whom the maximum possible sentence is of a short-term nGt exceeding six The police or other law enforcement agen­ months, with a view to giving an alternative cies responsible for enforcing the legal code sentence. In the case where the laws of a

150 PRISON OVERCROWDING AND COUNTERMEASURES

country do not provide for alternatives to im­ (ii) it permits particular participation by prisonment or the alternative are not varied the accused only on a voluntary basis; enough or relevant to the society, steps may (iii) The accused has access to counsel pri­ be taken to enact relevant alternatives so as or to a decision to participate; to provide the courts with means to dispose (iv) it occurs no sooner that the filing of of certain cases accordingly. The various al­ formal charges and no later than a fi­ ternatives to imprisonment now being widely nal adjudication of guilt; and practised throughout the world are: fines; (v) it results in dismissal of charges, or its suspended sentence; probation; community equivalent, if the divertee successful­ service order; restitution and compensation. ly completes the diversion process. Where fines are to be imposed, they may be on the basis of "day" and "mean" fine, (e) Measures to Increase the Outflow of that is, the offender may be fined a number Prisoners of days' payout of his salary. The day fine Parole should be linked to a "mean" system, that is, notwithstanding the salary of the Parole is the conditional release of an offender, his ability to pay should also be offender from a penal or correctional insti­ taken into consideration before sentence is tution after he has served a portion of his sen­ passed. This would greatly reduce the per­ tence. It is adopted in many countries as a sons committed to prison in default of pay­ form of extramural treatment following in­ ment of fine. carceration. Many countries in the region It is helpful if public awareness could be have introduced the parole system and are cultivated on the effect of the community­ keen to develop it as an effective correctional based correction and its rehabilitative value programme to promote the better integration to the offenders so that the public could more of offenders into society. The use of parole readily accept the non-institutional sanctions. will also help reduce overcrowding in prisons and it will cost less to supervise the prisoner (d) Decriminalisation and Diversions on parole that to incarcerate them. Many countries in the region still carry pri­ The concept of parole (conditional dis­ son sentences for far too many offences. charge) in some of the Western European Legislators should now rethink about their countries has also shifted lately from the penal codes. In fact, some countries have al­ primary objective of rehabilitating the ready modified their penal codes during offenders to the reduction of prison popu­ which process several offences have been de­ lation. penalised and in many other instances fines have replaced prison sentence. This kind of Pardon or Special Amnesties measure can have a positive effect on the crime rate, thereby reducing the number of Several countries in the region use the offenders sent to prison. mechanism of granting special amnesties The idea of pre-trial diversion is also in­ common in countries such as Thailand, Sri novative to countries whose judicial systems Lanka, Bangladesh and Malaysia. have not instituted such practice. A disposi­ tional practice is considered pre-tr'?l diver­ VI. Conclusion sion if: (i) it offers persons charged with crimi­ The adverse effect caused by prison over­ nal offences alternatives to tradition­ crowding has been highlighted earlier and al criminal justice or juvenile justice causes of the problem and its countermeas­ proceedings; ures have also been identified in the forego-

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REPORT OF THE SEMINAR ing chapters. We have now undoubtedly in the field of corrections have recommend­ come to realize the need for timely solutions ed various means to greatly enhance the to overcome this problem. Whilst the urgent treatment of offenders. Starting with the tra­ need to enhance the co-ordination of the vi­ ditional institutional treatment, they ex­ tal organs within the criminal justice ad­ perimented and later adopted a revolution­ ministration to reduce penal population is ary method in the treatment of offenders. visualised and realised, it is important now They discovered that the method is more hu­ to see how plans are formulated and im­ mane and manifested a tremendous impact plemented in an integrated approach by not only upon the offenders, his family, the these organs to jointly counteract this general public but also upon the criminal jus­ problem. tice system. This measure is known as the It is foreseable if the problem of ovu­ non-inlltitutional method in the treatment of crowding in penal institutions can be offenders. resolved by reducing the inmate population With this as a background, it is desirable to or below the planned capacity of the in­ that all countries should provide basic prin­ stitutions, the correctional administrators ciples to promote the use of non-institutional and their staff can then direct more resources measures. Efforts shall be made to ensure and attend more closely to the classification, the fullest possible implementation of the care, reformation and rehabilitation of the principles within the context of the political, offenders who have remained incarcerated economic, social and cultural conditions pre­ because of the serious nature of their vailing in each country, taking into account offences or the threat they pose to the com­ the aims and objectives of the respective munity. criminal system. Further, the non-custodial measures shall be developed by every coun­ Session 5: Advancement of Non-cus­ try within their respective legal system not todial Measures in the only to reduce the use of imprisonment but Treatment of Offenders also as a necessary component in the ration­ alization of criminal justice policies from the Chairperson: Mr. Talhata Bin Haji Hazenti standpoint of human rights, social justice and (Malaysia) social defense. Repporteur: My. Samuel B. Ong (philippines) Advisors: Mr. Shigemi Satoh Effective Way of Implementing Mr. Masahazu Nishihawa Non-institutional Measures

Introduction Presently, many nations in the world have adopted alternative measures in the treat­ There is a well known saying as follows: ment of offenders. Among the measures are No one punishes the evil doer for the reason 1) suspended sentence; 2) community serv­ that he has done wrong-only the unreasona­ ice order; 3) probation; 4) pardon; 5) parole; ble fury of a beast acts in that manner. But 6) fines; 7) other methods similar in intend­ he who desires to inlict rational punishment ment and effects. These measures are de­ does not retaliate for a past wrong which can­ signed to secure the rehabilitation of not be undone. He has regard to the future offenders enabling them to lead their normal and is desirous that the man who is punished lives. Other reasons for the use of these al­ may be deterred from doing wrong again. ternative methods are: 1) to avoid over­ (Pythagoras, Greek Philosopher) crowding in prisons; 2) to reduce incarcera­ Throughout the years, thinkers, penolo­ tion time; 3) cost saving; and 4) more humane gists, law makers and those directly involved way in the treatment of offenders.

152 NON-CUSTODIAL CRIMINAL TREATMENT

There are however problems to these to help himself. The best suitable method of measures. Some could be 1) the cynical atti­ supervision shall be adopted taking into con­ tude of the public toward these kinds of sideration the offender's age, background, treatment as not being commensurate to the occupation, mental and physical condition, wrong done; 2) lack of qualified probation or home environment and associates. parole officers as well as civilian volunteers; The duration of supervision varies from 3) lack of personnel to supervise offenders one country to another. However, the super­ performing community service; and 4) pos­ vision should neither be too short or too long. sible rejection by labor groups to communi­ To be effective in the treatment of ty based work performed by offenders. offenders, the persons who supervises them To prevent or at least to minimize rejec­ should at least have some practical knowl­ tion of these alternative measures, it is edge/experience in correctional services, so­ desirable tv; 1) to encourage the public to un­ cial work or other related fields in the treat­ derstand the benefits and advantages of ment of human behaviour. In addition, the these measures and encourage their co­ supervisor should have a good personal back­ operation; 2) understanding and mutual co­ ground, aptitude, potentiality or profession­ operation among the police, prosecution, al competence to handle any kind of clients. courts, correctional institutions, the public, Every effort should be exerted to upgrade etc.; 3) recruitment and proper training of from time to time the supervisors qualifica­ parole/probation personnel and staff. tions. The purpose of these alternative measures Effective criminal justice administration should be geared towards necessary services cannot be i

153 REPORT OF THE SEMINAR in criminal justice administration shall work side of court. Outside of court when the law in close collaboration with each other. Ex­ of a particular country say so. For some changing of views and ideas in contradistinc­ minor specified cases, e.g., minor traffic vi­ tion to fragmentation and alienation should olations, some agencies are tasked to collect be the ideal set-up. specified fines for specified minor offenses. Fine can also be imposed by the courts either The Non-custodial Measures as the penalty itself or as an alternative to imprisonment. 1. Diversion This is a scheme whereby no formal trial 4. Suspended Sentence is conducted by the Courts. It falls squarely This scheme takes place after a formal in the hands of the police, the prosecution court hearing and judgement of conviction and other agencies dealing with criminal pronounced. This is designed to avoid the ad­ cases. The offense involved are petty or verse effects of short-term incarceration on minor offenses. The concerned agencies ar~ convicted offenders and helping them to re­ empowered by la~v to deal with the said pet­ habilitate themselves in society. Suspended ty cases. The guidelines in its applicability sentence varies from one country to anoth­ are usuC'lly embodied in the laws of the coun­ er since their applicability is provided by try concerned. their respective laws. The usual and prima­ ry consideration for its application is the 2. Bail offender's age and criminal record. This non-custodial measure takes place be­ fore formal court hearing is conducted. In 5. Limitation of Liberty short, the police had investigated the case This non-custodial measure takes place af­ and the prosecution had ample time to anal­ ter a formal court hearing and the penalty yze and study the case and was satisfied that imposed upon the offender is prohibition the required quantum of evidence is present from going to a certain place or carrying out to justify the filing of a case in court. After a particular trade, activity or profession with­ the court had acquired jurisdiction of the in a specified period. case, the offender can file a petition for his temporary liberty through bail. Bail is used 6. Community Service Order as a measure for the prevention of unneces­ This alternative measure to imprisonment sary detention before formal court hearing. is a penalty by itself imposed by the court It is also a means of solving overcrowding after formal hearing. The offender is under in prisons. There are some problems, obligation to render community work either though, in this measure. One is that courts in his leisure hours or on days and hours so do not properly exercise their discretion in specified by the court. The minimum and granting provisional release through bail. maximum number of days or hours for the They either impose a very big amount for performance of community work is so bail thereby destroying the very essence and provided in the court's decision. Since this meaning of the same. If the poor person has measure is merely an alternative measure to a hard time in putting up an average amount imprisonment, some countries require· that of bail for their provisional liberty, then with in order for it to be imposed, the consent of more reason that they cannot put up a bail the offender is needed. if the amount imposed is exorbitant. 7. Pardon 3. Fine Pardon is the sole prerogative of a Head This measure takes place either in or out- of State. It is purely discretionary on the part

154 NON-CUSTODIAL CRIMINAL TREATMENT of the Head of State to grant the same. In supervisor. As with probation, parole, when practice though, it is usually given during granted, subjects the offender to general as Christmas' day, New Year's day, Independ­ well as specific conditions. The most com­ ence day, or any day of national significance. mon condition though is for the parolee not The primary consideration in granting to commit another crime during the period pardon is to temper justice with mercy or of parole. At the end of the period of parole what we call compassionate justice. which is either at the end of the unexpired unserved period of the sentence or after a 8. Probation specified period of time, the imprisonment Probation takes place after a formal court shall be terminated. hearing and a judgement of conviction pro­ nounced. The system of probation varies Conclusion from country to country. Some of the known reasons for its application is when the pen­ In order to extend the application of non­ alty imposed does not exceed a specified custodial measure in the treatment of number of years, when it is imposed as an offenders, those measures should be, in alternative to imprisonment or when the keeping with their preventive and rehabilita­ court suspends the execution of sentence. tive aims, extended as real alternatives with­ Many other factors are considered in the im­ in the entire range of criminal justice options. position of probation such as the age, wheth­ The advancement of resocialization of er he is a first time offender, his social and offenders through these measures, would re­ financial standing and other factors. Proba­ sult in the possibility of further enlarging the tion is imposed in some countries immediat­ active range and utilization of non-custodial ley after sentencing without any prayer to measures for offenders and, simultaneously, that effect while some countries approves the have a most favourable practical effect upon same only after a petition filed by the the problems of overcrowding of prison offender. populations which many countries are pres­ ently facing in common. 9. Parole Therefore, every endeavour should be paid Parole takes place after conviction and the to facilitate the development of these non­ offender having served a portion of his sen­ custodial measures within the context of the tence. Parole is one method of controlling ex­ political economic, social and cultural con­ cessive sentences and a way of tempering ditions prevailing in each represented coun­ justice with mercy. A parolee, like a proba­ try. tioner, is placed under the supervision of a

155 PART II

Material Produced during the 82nd International Training Course on Innovative Measures for Effective and Efficient Administration of Institutional Correctional Treatment of Offenders SECTION 1: EXPERTS' PAPERS

Inmate Grievance Systems in the United States

by Clair A. Cripe *

Introduction to one of active court involvement in review­ ing a huge array of prisoner complaints. This In the 1960's, prison developments in the resulted in the filing of literally thousands of United States led to pressun;s for the estab­ complaints each year, from inmates in vir­ lishment of grievance procedures for the res­ tually every federal jurisdiction in the coun­ olution of inmate complaints. It can certain­ try.l ly be safely said that the decade of the 60's As might be expected, this very large in­ was the time for opening the doors to prison crease in lawsuits brought in federal courts reform throughout the country. created a significant problem of judicial ad­ This reform movement was reflected in a ministration: the clogging, or backing-up, of number of different actions. These included court dockets, especially in those districts increased attention in the news media, and where large penal or correctional institutions in academic circles; more activity among cor­ were located. This suddenly large increase rections administrators to achieve reform in in the federal courts' dockets, which was prison programs, such as expanded treat­ largely unanticipated and thus not planned ment programs for the correction of for, funneled upward into the appellate offenders-ideas which for the most part had courts, and even into greatly increased num­ been around, and had been taught in the uni­ bers of petitions by inmates being filed in the versities, for at least 30 years; serious pris­ U.S. Supreme Court. on disturbances, including some of the most severe prison riots in the century; and cer­ Involvement by the Chief Justice tainly not least, the "court revolution" in looking at inmate complaints. The reaction to this large increase in work­ The "revolution" in the courts, which by load in the federal courts was, predictably, most is traceable to litigation brought by so­ mixed. Many judges, having been sitting on called Black Muslim inmates, asking for a the bench during the hands-off period, felt variety of religious activities in prisons, start­ that the complaints should be summarily dis­ ed in the early 60's, more precisely in 1962. missed; this attitude was re-enforced by con­ Beginning with decisions in a number of fed­ clusions by this group of judges that most eral courts that the inmates were entitled to complaints were frivolous or merely harass­ judicial review of their complaints, because ing, and that prison officials should be left they were based on claims made under the to manage affairs inside the prisons without First Amendment of the U.S. Constitution, {;ourt interference. On the other side were the courts rapidly moved from the prior era judges, who were in an increasing number that has been called the "hands off" period, through the 1960's and 70's, who believed that there were many abuses and improper conditions inside prisons which had been too * General Counsel, Federal Bureau of Prisons, U.S. long ignored; this group concluded that it Department of Justice was entirely appropriate for the judiciary to

159 EXPERTS'PAPERS make certain that prisons were run in a con­ large industrial operation, the hour-to­ stitutional manner, and that inmates received hour and day-to-day frictions and tensions fair and good treatment. Eventually, this lat­ of employees can be carried up through ter group possessed enough votes, or persua­ channels and either guided to a proper so­ sive clout, on the Supreme Court and in the lution or dissipated by exposure. Courts of Appeals, to require closer and This in essence is what every penal in­ closer review of prisoner complaints. stitution must have-the means of having It is not the purpose of this presentation complaints reach decision-making sources to examine the merits, or the various effects, through established channels so that the of this radical shift in the approaches of the valid grievances can be remedied and spu­ federal courts in the United States. That, I rious grievances exposed. have done elsewhere. 2 It is raised here how­ If we are really going to have any ever to give some perspective and under­ chance of making inmates useful mem­ standing to the pressures which led to im­ bers of society, the institution is the place plementation of prisoner grievance proce­ to teach the fundamental lesson that life's dures in the U.S. problems are solved by \vorking within Because of the huge impact on the court the system-not by riots or the destruc­ workload, several judges presented the idea tion of property. 3 of the administrative handling of complaints within the corrections system. The deleteri­ The Chief Justice continued this theme in ous impact of prisoner filings on the federal other speeches and presentations. Perhaps judiciary's dockets inevitably came to the at­ the most influential was a speech to the tention of the Chief Justice. One of the re­ American Bar Association in August of sponsibilities of the Chief Justice of the U.S. 1973, when Chief Justice Burger spoke of Supreme Court is to monitor the effective­ the burden of increased prisoner complaints ness of all levels of federal courts, and to upon the federal courts, and suggested alter­ make recommendations, and obtain neces­ natives to the situation of pursuing all com­ sary resources, for the improvement of the plaints in the courts, including a suggestion federal court system. In this role, the Chief that informal grievance procedures be estab­ Justice at that time, Warren E. Burger, be­ lished to consider prisoner complaints. came a leading spokesman for the use of ad­ Some of the states already had entered into ministrative remedies in prison settings. His the early stages of trying informal resolution interest in prison matters, and in the griev­ of inmate complaints. In September of 1973, ance system, continued well beyond these the Federal Bureau of Prisons inaugurated early days of encouragement that prison ad­ a four-month pilot project at three of its in­ ministrators consider the use of grievance stitutions: the U.S. Penitentiary at Atlanta, mechanisms. That interest continued Georgia; and the Federal Correctional Insti­ throughout his tenure of the Chief Justice's tutions at Danbury, Connecticut and at Tal­ office, and in fact continues to this day, even lahassee, Florida. The success of this pilot though he is now retired from the Supreme program led to nationwide implementation Court. of this administrative grievance process, in In a speech in 1972, Chief Justice Burger all federal institutions. This is essentially the said: same program which is used in the federal system to this day. In every penal institution we need to In an interview in 1977, Chief Justice open up the means of communication be­ Burger said: tween inmates and the custodians .... With proper grievance procedures in a There are a great many matters in

160 U.S. INMATE GRIEVANCE SYSTEMS

courts which ought not to be in the courts tions continued to rise, however. There at all because the needs of the parties can were 14,260 such requests from state pris­ be satisfied in simpler ways. Much of our oners in the fiscal year ending. June 30, a procedure has become so complex and the 6.2% rise in a year. Federal judges should system has become so cumbersome that not be dealing with prisoner complaints it is becoming too expensive. which, although important to a prisoner, ... The first step is to get recognition are so minor that any well-run institution among the American people that a court should be able to resolve them fairly with­ is not the only place or the best place to out resort to federal judges. resolve disputes. No other countries draw on courts as much as we do. They have The Chief Justice, in his Bar Association a wide range of other methods: arbitra­ speech, had asserted that if the Federal pri­ tion, mediation, fact finding, and for small sons adopted an internal system of address­ matters, neighborhood conciliation ing complaints administratively, many states groups .... would follow the example and put similar ... we have not focused on looking for procedures into effect. This indeed did hap­ other and simpler means, with lower pen, although i.t is not recorded how many costs. We are prisoners of habit in the of these procedures were introduced because sense of existing practices. . .. of the federal model. Nevertheless, there are examples of shifting out of courts some disputes that Model Rules and Standards could be resolved by the common-sense kind of grievance procedure used by un­ There were by this time (the early or mid ions and employers. 1970's) numerous standards or rules which In recent years, the Federal Bureau of had been adopted or recommended, which Prisons developed this kind of administra­ called for administrative presentation and tive problem solving within the prison it­ resolution of prisoner complaints. self, and a large number of such cases were diverted from the courts. 4 The United Nations Standard Minimum Rules for the Treatment of Prisoners, ap­ In 1976, in his annual report on "The Con­ proved in 1955 and 1957 (by two different d.ition of the Judiciary," Chief Justice Burg­ UN bodies), provides: er noted further: 55. There shall be regular inspection of Fully a sixth of the 117,000 cases of the penal institutions and services by qualified civil docket of federal courts (19,000) are and experienced inspectors appointed by petitions from prisoners, most of which a competent authority. Their task shall be could be handled effectively and fairly in particular to ensure that these institu­ within the prison systems. Norman Carl­ tions are administered in accordance with son, Director of the Federal Bureau of Pri­ existing laws and regulations and with a sons, has developed simple, workable in­ view to bringing about the objectives of ternal procedures to deal with prisoner penal and correctional services. complaints, and the past year's experience 56. (1) Every prisoner shall have the op­ demonstrated their value. Perhaps as a re­ portunity each week day of making re­ sult of these procedures, the rise in peti­ quests or complaints to the director of the tions from federal prisoners in fiscal 1974 institution or the officer authorized to rep­ slacked off to 1.2% in fiscal 1975. The resent him. flood of such petitions from state institu- (2) It shall be possible to make requests

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EXPERTS' PAPERS

or complaints to the inspector of prisons tions. That Commission is the accreditation during his inspection. The prisoner shall body of the largest professional association have the opportunity to talk to the inspec­ for corrections in the U.S., the American tor or to any other inspecting officer with­ Correctional Association. out the director or other members of the An "Essential" standard of that accredi­ staff being present. tation body has provided: (3) Every prisoner shall be allowed to make a request or complaint, without cen­ There < should be> a written inmate sorship as to substance but in proper grievance procedure which is made avail­ form, to the central prison administration, able to all inmates and which includes at the judicial authority or other proper au­ least one level of appeal. thorities through approved channels. A grievance procedure is an administra­ (4) Unless it is evidently frivolous or tive means for the expression and resolu­ groundless, every request or complaint tion of inmate problems. The institution's shall be promptly dealt with and replied grievance mechanism should include: (1) to without undue delay. provision for written responses to all grievances, including the reasons for the In the United States, there were several decision; (2)·provision for response with­ models also adopted. The National Council in a prescribed, reasonable time limit, on Crime and Delinquency, in 1972, pub­ with special provisions for responding to lished a Model Act for the Protection ofRights emergencies; (3) provision for superviso­ of Prisoners. Section 5 of that act provides: ry review of grievances; (4) provision for participation by staff and inmates in the The director of the State Department of design and operation of the grievance pro­ Correction (or equivalent official) shall es­ cedure; (5) provision for access by all in­ tablish a grievance procedure to which all mates, with guarantees against reprisal; prisoners confined within the system shall (6) applicability over a broad range of is­ have access. Prisoners shall be entitled to sues; and (7) means for resolving ques­ report any grievance, ... and to mail such tions of jurisdiction. 5 communication to the head of the depart­ ment. The grievance procedure establish­ Also, there are minimum standards for ed shall provide for an investigation (aside grievance procedures which have been from any investigation made by the insti­ adopted by the Congress in a federal statute, tution or department) of all alleged griev­ the Civil Rights of Institutionalized Persons ances by a person or agency outside of the Act. Based on the requirements of that Act, department, and for a written report of the Attorney General of the United States findings to be submitted to the depart­ promulgated, in 1981, standards for certifi­ ment and the prisoner. cation of the adequacy of prisoner grievance procedures adopted by state departments of This Model Act, and others such as a Pro­ corrections. I will address the provisions of posed Standard of the American Bar Asso­ the Act, and its implementation, in more de­ ciation's Standards for Criminal Justice, tail later in this presentation. which called for "formal procedures to re­ solve specific prisoner grievances," are only Why Have a Grievance System? recommendations for those in the field to fol­ low, as they see fit. However, a standard Apart from these model standards and with more meaning and clout is that of the rules, and the statements of leaders in the Commission on Accreditation for Correc- field, what are the reasons for having an ad-

162 U.S. INMATE GRIEVANCE SYSTEMS ministrative grievance mechanism within a or revision of existing policy. These are, I prison, or in a corrections or penal system? would emphasize, goals or reasons which As a matter of public policy, and with con­ have been asserted as supportive of an ad­ sideration of the interests of the parties ministrative grievance process. 6 involved-the prison administrators, the pris­ These points offered to support grievance oners themselves, and others in the criminal mechanisms are, for the most part, extreme­ justice process-are there convincing rea­ ly difficult to prove or disprove. Number (7), sons to have a grievance system? There are giving documentation as a result of having certainly arguments which can be made as a written procedure, is provable by the mere to why there should not be grievance pro­ fact of requiring documentation by policy, grams: for example, such programs take and then making sure it is properly done. time and money to operate; they take the Others, such as numbers (5) and (6), argu­ time of staff to implement properly, time ing for grievance procedures being support­ which could arguably be better spent on tra­ ive of rehabilitation, or of reduced violence, ditional duties of safety and security; they are extremely difficult to prove, and I am not may be perceived by staff as undercutting, aware of studies which in fact prove or dis­ sabotaging their authority and forthright per­ prove them. In the final analysis, adoption formance of duties; they may be perceived of grievance procedures, and of the exact by inmates as providing remedies or protec­ way in which they will operate (because tions which cannot in fact be delivered, thus there are several operational modes for con­ perhaps fostering resentment over exagger­ sideration), depends on the judgment of the ated promises; and they may be seen as administrators or others in authority. They weighing down the system with procedural must assess whether the anticipated bene­ niceties, rather than addressing the central fits are in fact worth the costs of implemen­ issues of substance. What are the arguments tation. on the other side of the scales, which have From my experience with a grievance sys­ been raised in favor of having 0. grievance tem during its operation for more than 15 mechanism? years in the Federal Bureau of Prisons, I There are several points which have been would conclude that an administrative reme­ offered, to support the adoption of an admin­ dy system provides a number of benefits. It istrative complaints procedure. I would sum­ requires prison staff to address complaints marize them as follows: Grievance proce­ promptly and informally. In this process, it dures (1) assist prison management in iden­ brings to their attention policies or practices tifying problem areas, and addressing them which need to be examined or re-examined, quickly and internally; (2) take care of small as to their propriety. For many inmates, it problems, again without calling for outside gives them a clear means of expressing their attention; (3) give inmates a sense of fairness dissatisfaction with any elements of their and justice in their dealings with authority; treatment, in a non-violent and socially ac­ (4) increase prospects for inmate rehabilita­ ceptable way. (As an aside, it also can serve tion; (5) reduce the volume of inmate litiga­ to keep inmates busy, composing grievance tion; (6) reduce violence, by reducing pris­ submissions, when they might otherwise be oners' frustration and anger over perceived involved in less desirable activities!) The pro­ mistreatment or other wrongs; (7) provide a cedure creates a record, which can be used written record, which gives documentation in addressing outside inquiries, whether by in case the matter does have to be reviewed the courts or by others who may be interest­ in court, or in other outside channels of re­ ed in a particular inmate or a particular prac­ view; and 8) point up areas of concern, which tice; this record allows quick reference and may in fact require adoption of new policy, a prompter means of providing information

163 EXPERTS'PAPERS about the matter involved in the inquiry. For speaks of particular modalities, and not just some courts, the grievance system is accept­ the general concept. As I will adciress more ed as an administrative mechanism which fully later, once the prison managers got into must be used before the inmate can file a the business of having inmate grievance sys­ complaint in court-what we call in our le­ tems, the choices of what would indeed work gal practice the requirement of exhaustion narrowed considerably, and comparatively of administrative remedy. Finally, there is rapidly.) outside agents which were proposed some evidence that this procedure does included: an ombudsman procedure; griev­ reduce the number of filings in federal ance commissions or committees, with au­ courts, thus relieving a major concern al­ thority to review complaints; use of an ar­ ready noted about the burdening of court bitrator or a mediator; citizens' panels; legal dockets with voluminous prisoner com­ assistance organizations, acting in an admin­ plaints. istrative not judicial function. Let me describe what I understand the es­ Types of Grievance Systems sential characteristics of these different "out­ side" programs to be. (There are large bod­ For this discussion, I would divide the var­ ies of literature on certain of these, such as ious approaches which have been suggest­ the ombudsman process for example; ex­ ed or implemented for prisoner grievance perts in each of these areas may take excep­ systems into two categories: (1) grievance tion to some of my characterization. My pur­ procedures which rely primarily on outside pose here is primarily to define a variety of agents; and (2) procedures which are based approaches, in order to permit consideration on an internal mechanism. By "outside and assessment of the strengths and weak­ agents" I mean individuals or organizations, nesses of each one). whether governmental, semi-governmental, Ombudsman-An ombudsman is a person or private, that are located outside the cor­ who is totally independent of the prison bu­ rections system itself; these agents do not in reaucracy. The ombudsman is given author­ any sense report to, have allegiance to, or ity to receive complaints from aggrieved come under the supervision of, the correc­ prisoners; to investigate those complaints, by tions authorities. An "internal mechanism" having access to the prisoners, to witness­ on the other hand is one which is under the es, to staff members, and to records; and to control of the corrections department. If this make recommendations for necessary mechanism is placed within the same minis­ changes or remedy. This last step is of try or executive tiepartment where the cor­ course the critical one, because historically rections agency is located, that would also the ombudsman reported to a legislative or be an internal mechanism, in my evaluation. other outside body, and had no authority to Under the first type of procedure, there order any specific action. Those who would have been several "outside agent" ap­ give ombudsmen authority to take con'ective proaches proposed, and to varying degrees or remedial action are mixing the concepts, tried, in the United States and in other coun­ and are proposing an arbitrator or quasi­ tries. In the early days of moving into griev­ judicial function, which is quite another pro­ ance systems in the United States (that is, cedure. in the late 1960's and the early 1970's), these Gn'evance C01nmittees-These are organi­ external modalities were frequently advocat­ zations which are appointed to look into com­ ed in the literature. (I would note that, in my plaints. They may be primarily responsible opinion, the reason for this was that most of to any of the branches of government­ this early advocacy of grievance systems for executive, legislative, or judicial. They are prisoners was done by academics, when one typically limited in their jurisdiction, having

164 U.S. INMATE GRIEVANCE SYSTEMS authority to look into policy issues on a broad ed legal aid agency, by a Public Defender's scale, or complaints only of a certain nature. Office, or by a law school program carried However, in theory at least, their authority out primarily by law students, most often are to investigate and to recommend or order seen when they are involved in more tradi­ change, may be narrow or broad. tional, formal court proceedings. However, Arbitrators and Mediators-An arbitrator is as some have pointed out, it is very possible a specially trained person, who has been for these same agencies to serve efficiently given authority to resolve a conflict between as administrative grievance agents. In this two parties. (The difference between this capacity, legal assistance staff receive com­ and judicial authority is one of degree, and plaints and then take steps to resolve the in my view also one of procedural protec­ complaints informally within the system. tions, or niceties if you prefer.) The arbitra­ From experience, they have learned the tor gathers information from both sides, types of complaints which can be so address­ makes thorough inquiry into the complaint, ed, and they also have learned (perhaps most and then decides the factual basis of the mat­ importantly) who the officials are who have ter, and orders remedial action. There may authority to address them. This kind of proc­ or may not be an appeal process available. ess is an effective way for any counsel to A mediator is very much like an arbitrator, serve his client well, by trying initially to use in the early stages of activity. The difference more informal resolution processes. This ap­ lies mainly at the latter stages, where after proach exists, I imagine, in most any area 0: inquiry into the facts and the basis for the legal representation by effective counsel. In dispute, the mediator attempts to bring the some cases, it has been recognized by per­ parties to agreement as to any resolution of sons on both sides of prison disputes as a the dispute, through persuasive efforts. good way to solve particularly minor griev­ Citizens Panels-These groups are very ances; there may be agreement between similar to grievance committees, and indeed those parties as to the procedures which will may have some of the attributes of an om­ be followed, resulting in something we can budsman,· or of an arbitrator or mediator. call another type of grievance resolution pro­ Typically, the citizens panel is made up of gram. private citizens who have some interest in Internal Mechanisms-On the opposite' public matters, and specifically prisoners' side, in my organization of the types of griev­ rights, but who have no special or technical ance mechanisms, there are those programs experience in prison operations. They are which I would call internal grievance proce­ given authority to consider complaints, and dures. These are characterized by review thus serve as a "sounding board" for in­ and decision activity within the corrections mates. Ideally, they should be impartial, and department itself. In some cases, there may show no bias in their approach. Because of be some involvement of outside parties­ their very limited knowledge and expertise, such as presentation of an inmate's com­ they tend to function only as advisory plaint by a legal assistance staff member, or groups, in a very broad sense, and are not an agreement by the parties to use the ad­ given power to resolve any individual com­ vice of a citizens' panel or even ·a mediator. plaints. But, if the process remains under the domi­ Legal Assistance-This type of program in­ nant control of prison administrators, and volves attorneys, or persons under attorney outside involvement is minor, and at most ad­ supervision, to provide direct involvement in visory, then I would call it an internal mech­ the resolution of complaints. Legal assist­ anism. Apart from this possibility for some ance programs for prisoners, whether fur­ slight degree of outside input, the factor nished by an officially sanctioned and fund- which most distinguishes different ap-

165 EXPERTS'PAPERS

pro aches for internal mechanisms is the de­ tive handling of grievances be tried. Not the gree of inmate involvement. least of these voices of encouragement was Inmate Involvement-At a minimum, of that of the Chief Justice. course, there will always have to be inmate Attached as an Appendix (App. 1) is a copy input into a grievance system, in that there of the policy which governs the operation of has to be a way for the inmate (or group of the federal grievance system. (This is Pto­ inmates, with similar complaints) to present gram Statement 1330.7 of the Federal Pris­ the grievance. In addition to this, there is a on System, dated October 12, 1979. The pol­ wide variety of inputs which have been pro­ iey issuances of the Federal System are posed, and some of which have been tried, called Program Statements.) This policy is for inmate involvement in the system. These in all important respects tile same one which include: requiring that inmates have a voice has been in effect for over 15 years, since in the design of the system; allowing inmates late 1973. to make in-person presentations to the per­ There are several essential features of the son or persons who review the complaints; system: It is a three-level review process, providing inmates in the role of in:tial based on the record. All submissions by the reviewer of the complaints received, some­ inmate and responses by prison staff are in times with authority to return those com­ writing. There are specific forms for each plaints to the submitter for correction when level of review. The inmate states the com­ they are not in proper form; permitting in­ plaint on a BP-9 form, which is submitted to mates to present the complaints on behalf of the local warden of the institution where the other inmates, or to "argue the case" for an­ inmate is confined. The warden acknowl­ other inmate; having one or more inmates sit edges receipt of the complaint, and inves­ on a panel which reviews complaints; provid­ tigates the complaint. A response is given to ing an inmate council (committee) which is the inmate within 15 days (unless it is a mat­ directly involved in the process, perhaps as ter of emergency natur~, such as a medical initial reviewer of disputes, or even with au­ complaint, in which case response must be thority to recommend or require certain given within 48 hours). The response is or­ types of action; allowing inmates to review dinarily prepared by staff in the department the actions taken overall in the system, with where the complaint arose, and is signed by authority to comment on the adequacy of the the warden. If the inmate is not satisfied by procedure, and to propose needed changes the response, he may appeal within 20 days in the grievance procedure itself, or in pris­ to the Regional Director. (The Bureau of Pri­ on policies. This listing gives some idea of sons is divided into five geographical regions, the great range of possibilities there are for with about ten prisons in each region.) Staff inmate involvement in the system. All of at the regional office conduct a review of the these, or some variations of them, have been appeal, and must respond within 30 days. A tried in one corrections agency or another, final level of appeal is to the General Coun­ in the United States. sel, in the headquarters office in W ashing~ ton, D.C. Response here also is within 30 The Federal Experience in days. the United States Inmates may file concerning any matter which is within the jurisdiction of the prison Let me return now to the grievance sys­ officials. This rule excludes matters such as tem which is used by the Bureau of Prisons length of sentence (which is solely within the in the United States. As noted earlier, this authority of the sentencing judge) and parole system was implemented in 1973 in response action (which is within the jurisdiction of the to a number of suggestions that administra- Parole Commission, an agency independent

166 U.S. INMATE GRIEVANCE SYSTEMS from the Prison Bureau). If the inmate con­ taken, and a total of 128 grievances filed dur­ tends that a complaint is so sensitive that he ing the year. There were in total 11,539 cannot file it locally (such as a complaint grievances filed at the local level during about staff brutality or about personal ac­ 1987. The chart also shows the disposition tions of the warden himself), he may file the of those complaints-those which were initial complaint directly with the Regional granted (15%) and those denied (85%). A Director. Some actions (such as requests for grievance is deemed to be granted, for this copies of records, or claims for money accounting purpose, if the relief asked for by damages because of negligent behavior by the inmate has been substantially granted. staff) are referred into other channels, be­ The other two pages in the charts (Appen­ cause there are separate administrative pro­ dix 2) show the appeal actions at the region­ cedures which have been established specif­ al and at the Central Office (headquarters) ically to deal with those types of claims. Oth­ levels. From these charts, we learn that in­ erwise, an inmate may complain about any mates took appeals in 4,805 cases to the re­ issue, including classification or disciplinary gional level of review. At Central Office, action taken against him. I mention this, be­ there were 2,224 appeals. cause complaints concerning classification I would make a few observations on the and disciplinary matters are commonly ex­ numbers shown in the charts. In this year cluded in other jurisdictions, as complaints (1987), as in every year, the area of inmate which may be reviewed in the grievance sys­ discipline is the single largest category of tem. complaints or appeals. About one-third of all The last two pages of the Program State­ grievances each year are in the area of dis­ ment (App. 1) list the various subjects which cipline. If one totals the "granting" of relief may be filed by inmates who are submitting done at all three levels, it amounts to about grievances. This list will give an idea of the 17% of the inmate grievances filed. That is, broad range of topics which are complained about one inmate in six receives the relief about. It is not included in the policy to limit asked for. Many other interesting observa­ an inmate's filing of any complaint he may tions can be made, especially if one is aware choose. Rather, it is used mainly to facilitate of the nature of each institution listed, and record keeping, and indexing of the com­ also aware of the details of the policies and plaints procedure. For research, and other practices being challenged or complained management purposes, it is useful to know about. the types of complaints which are frequent­ ly brought, and to keep track of trends from Federal Legislation year to year. Attached (Appendix 2) is a recent year's In 1980, the U.S. Congress enacted the compilation of grievance filings throughout Civil Rights of Institutionalized Persons Act. our prison system. The left-hand column lists Among provisions of this Act is a section all federal prisons, grouped according to the dealing with inmate grievances. This part of five regions-Northeast, Southeast, North the Act sets minimum requirements for what Central, South Central, and West. The cat­ was deemed to be a viable grievance system. egories across the top (I-Trans, through 0- Those requirements are: Staff) refer to the 10 categories of com­ plaints, which are listed in the last two pages (A) An advisory role for employees and of the Program Statement (App. 1). Thus, we inmates of any jail, prison, or other cor­ can tell for example that the first listed in­ rectional institution (at the most decentral­ stitution, Alderson (a women's prison) had ized level as is reasonably possible), in the 18 complaints about disciplinary actions formulation, implementation, and opera-

167 EXPERTS'PAPERS

tion of the system; requirements. Why is this certification proc­ (B) Specific maximum time limits for ess, wh:ch could be beneficial in some re­ written replies to grievances with reasons spects to state and local governments, so therefore at each decision level within the much ignored? system; (C) Priority processing of grievances The State Experience in which are of an emergency nature, includ­ the United States ing matters in which delay would subject the grievant to substantial risk of person­ In a survey of state corrections depart­ al injury or other damages; ments in 1987, every state responding except (D) Safeguards to avoid reprisals against one (Connecticut) reported some type of any grievant or participant in the resolu­ grievance mechanism in place. 8 Of the 46 tion of a grievance; and systems responding, 15 use what they call (E) Independent review of the disposi­ an ombudsman (some outside authority) to tion of grievances, including alleged re­ investigate grievances. Nine have a commit­ prisals, by a person or other entity not un­ tee which has some reviewing role, on which der the direct supervision or direct con­ inmate representatives sit. Twelve have cit­ trol of the institution. izen advisory boards, or some kind of out­ side advisory committee. Nine allow inmates Any state or local jurisdiction may apply to represent other ir.Imates at grievance to have its grievance system certified, under presentations. standards issued by the Attorney General of What may surprise some is the number of the United States, implementing the Aces grievances filed. In four states, there were minimum requirements. 7 more grievances filed than there were in­ If a state's grievance system is certified as mates in the system (that is, there was more being in compliance, the statute now pro­ than a 1-to-l filing rate). The State of Texas vides a procedural advantage to that state in was the champion, reporting that there were federal court. If an inmate files a lawsuit in 140,000 grievances filed locally in the prior federal court, complaining that his treatment :,rear-a rate of nearly 5 grievances for ev­ or conditions at his prison violate constitu­ ery inmate confined. tional requirements (this is the most common As to outcome, 23% of grievances nation­ kind of prisoner lawsuit, brought under Ti­ wide were resolved favorably to the inmates. tle 42 U.S. Code, Section 1983), the state This is a figure without great meaning, un­ may obtain a postponement of the proceed­ less one digs much deeper into such factors ing until the administrative grievance system as how "favorable resolutions" are counted, is used. This requirement for "exhaustion of and what types of matters are permitted to administrative remedies" had been sought be filed in the grievance system. by the states for some time, in their attempts to obtain relief from the large volume of pris­ Preference for Grievance Systems by oner lawsuits they were facing. Prison Administrators The standards of the statute, and those of the Attorney General, are not binding on any It has already been noted that accredita­ state, however, nor do they apply to the Fed­ tion standards of the American Correction­ eral Bureau of Prisons. In fact, only 21 states al Association call for a grievance procedure. have applied for the certification, only 7 state The great majority of administrators whom certifications have been granted, and it is I know in the United States are philosophi­ questionable whether the Bureau of Prisons' cally in favor of having a grievance mecha­ program itself would satisfy tIie certification nism. Why then are the suggestions of the

168 U.S. INMATE GRIEVANCE SYSTEMS federal statutes and of so many of the aca­ an inmate any voice in or any degree of con­ demic writers in this field not adopted by trol over what happens to another inmate. To them? amplify: the government has the legal, and The answer to that question has to be qual­ the professional, responsibility to manage ified, and it involves a complex set of circum­ prisons. If mistakes a;:e made, the officials stances. However, the simplest answer, and who make those mistakes can be held ac­ in my view the overarching view among pris­ countable. It is deemed to be a matter of on managers is that a grievance system must good managerial judgment that those who be an internal one, and that inmate involve­ have the responsibility, by law, to carry out ment must be limited to the submission of prison functions should be the ones who have complaints and an opportunity to a::,peal, and the first chance to correct any errors made must not include inmates being in/olved in in performance of that responsibility. Pris­ any substantive aspects of the process. (By on managers must remain in control of the substantive input, I mean any direct involve­ operational and decision-making functions of ment in filing, reviewing the content of, in­ their institutions, or they are not the man­ vestigating, assessing the merits of, or hav­ agers. It has been learned through unfortu­ ing any contribution to the response or reme­ nate experience that outside persons, or in­ dy provided for complaints-all of this with side inmates, no matter how good their in­ respect to the contents or substance of an­ tentions, cannot be given the authority to other inmate's complaint.) control individual aspects of prison manage­ This attitude is not based on a proprietary ment. Inmates especially, even if possessed or narrow view that inmates should not be of good knowledge about the system and heard from, or that outside persons cannot with good judgment about how things should contribute ideas of benefit. Many systems be done, are put in an untenable, if not in­ have tried the other approaches, such as an sidious, position if they are placed in a situ­ ombudsman, an arbitrator, or a mediator ap­ ation where they can obtain special benefits proach. Those attempts have been marked for some inmates, or are called on to take un­ by severe limitations as to their usefulness, welcome action against others. In the sim­ and as to the range of review which can be plest terms, an inmate in such a position is accomplished. Other systems have tried, and a prime target for monetary or other favors some still use, procedures with much great­ (pay-offs, in the jargon) to give a favorable er inmate involvement, as in the review of action, or is potentially targeted for threats the merits of cases by panels with inmate or other reprisals if action is unfavorable. participation, or the presentation of cases be­ One can argue that steps can be taken to pro­ fore ~earing officers by inmate representa­ tect or isolate the inmate against such pres­ tives. There is no unanimity on this point, sures, but to do so completely and success­ and different procedures are still being tried. fully turns the inmate into a government The majority vf corrections systems, includ­ agent, the equivalent of a prison employee, ing the federal one, have looked at the ex­ and the whole philosophical argument for in­ perience in those jurisdictions using outside mate involvement is gone. or inmate involvement, and have decided to This is not to say that Ol'itside input is to­ go with something closer to the model, tally unwelcome. Corrections officials should where investigations, reviews, and responses not isolate themselves. Public awareness of are all handled exclusively by corrections what is going on inside our institutions is a staff. highly desirable goal, for many reasons, not There are many reasons to support this ap­ the least of which is that it is necessary in proach. In the United States, at least, there order to obtain the necessary degree of sup­ is a very fundamental concern about giving port and of resources to achieve the mission

169 EXPERTS'PAPERS of corrections. Advisory committees, aca­ in Cripe, "Religious Freedom in Prisons," Fed­ demic review of policies and of operations, eral Probation, March 1977. and the limited use of mediators or of arbitra­ 2. See for example a chapter in the book, Courts, tors may be of great value in the informed Corrections, and the Constitution, John DiIulio and progressive management of prisons. Editor, to be published by Oxford University Press later this year. 3. Address by Chief Justice Burger to the National Conclusion Conference of Christians and Jews, Philadel­ phia, Pa., November 15, 1972. Grievance mechanisms are not a miracle­ 4. U.S. News and World Report, December 19, tool, nor are they even a sure solution to 1977, pp. 21-22. some of the most troublesome problems fac­ 5. standard 2-4343, Standards for Adult Correction­ ing today's prison managers, such as crowd­ al Institutions, 2nd Edition, American Correc­ ing or prison violence. They can however tional Association, 1981. provide an excellent device for obtaining 6. Many authors, in various publications, more limited goals. An effective grievance reviewed the merits of grievances in prison sys­ system can serve to assure inmates, and the tems. Some examples are Brakel, "Adminis­ public, of our commitment to furnish fair, hu­ trative Justice in the Penitentiary: A Report on Inmate Grievance Procedures," American Bar mane, and decent treatment; it can provide Foundation Research Journal, Winter 1982; officials with information about trends in in­ Hepburn and Laue, "Prisoner Redress: Anal­ mate complaints, or in troublesome manage­ ysis of an Inmate Grievance Procedure," Crime ment in certain departments or areas of an and Delinquency, April 1980; Lesnick, "Griev­ institution; it can also save resources for the ance procedures in Federal Prisons: Practices courts and for ourselves as prison managers, and Proposals," U. Pa. Law Review, Vol. 123 by administratively resolving complaints No.1, November 1974; O'Leary et al., "Peace­ within our prison system, before they be­ ful Resolution of Prison Conflict," National come grounds for judicial review. A well­ Council on Crime and Delinquency, 1973; God­ managed grievance program can channel in­ farb and Singer, "Redressing Prisoners' Griev­ mate disputes and complaints into peaceful ances," G. Wash. Law Review, Vol. 39, p. 175, resolution, preventing these concerns from 1970. 7. The statute is Public Law No. 960247, Sec. 7, developing into grounds for violent disrup­ 94 Stat. 349, and is codified as 42 U.S. Code tion within the prisons. Sec. 1997e. The Attorney General's regulations are published in the Code of Federal Regula­ Notes tions at 28 CFR Part 40 (Sections 40.1-40.22). 8. "Survey-Inmate Grievance Procedures," Cor­ 1. The story of this development of religious pro­ rections Compendium, Vol. 11, No.9, March tections for prisoners is an interesting one. This 1987. author has written on trjs topic, for example

170 U.S. INMATE GRIEVANCE SYSTEMS

Appendix 1

Federal Prison System

OPI: OGC Number: 1330.7 Date: October 12, 1979 Subject: Administrative Remedy Procedure for Inmates

Program Statement 3. Conduct an investigation into each com­ plaint or appeal; L [PURPOSE AND SCOPE §542.10. The 4. Respond to and sign all complaints 01' ap­ Bureau of Prisons has established an Admin­ peals filed at their level. This l'esponsibil­ istrative Remedy Procedure th1'ough which an ity may not be delegated further.] inmate may seek formal review of a complaint 5. The Warden shall appoint one staff which relates to any aspect of his imprisonment member above department head level to z/ less formal procedures have not resolved the coordinate the operation of the Admin­ matter. This procedzwe applies to all inmates istrative Remedy Procedure. The Re­ confined in Bureau ofPrisons institutions, but gional Director and General Counsel does not apply to inmates confined in non­ shall be advised of the name of this ap­ federal facilities.] pointee and any changes. [h. Inmates have the responsibility to pres­ 2. DIRECTIVES AFFECTED. P.S. ent complaints in good faith and in an honest 1330.1 Administrative Remedy of Com­ and straightforward manner. plaints, dated 10-18-74 is superseded. P.S. 5212.3, Control Unit Programs, dated July 4. ISSUES IMPROPERLY FILED 16, 1979 is referenced. Rules cited in this §542.12. Filings will not be accepted under the statement are contained in 28 CFR Administrative Remedy Procedu1'e fm' tort 542.10-16. claims, Inmate Accident Compensation claims, Freedom of Information 01' Privacy Act l'e­ 3. [RESPONSIBILITY §542.11. quests, or complaints on behalf of other in­ a. The Warden, Regional Director, and Gen­ mates.] eral Counsel are responsible for the operation of the Administrative Remedy Procedu1'e at the 5. [INITIAL FILING §542.13. institution, regional and central office levels, a. Informal Resolution. Inmates shall respectively, and shall: informally p1'esent their complaints to staff, 1. Establish procedures for receiving, review­ and staff shall attempt to infonnally 1'esolve any ing, investigating and 1'esponding to com­ issue before an inmate files a request for Ad­ plains or appeals submitted -by an inmate; ministrative Remedy. The Warden may estab­ 2. Acknowledge receipt of a complaints 01' ap­ lish local procedures to ensure that attempts at peal by returning to the inmate a signed infonnal resolution are made. receipt; h. Filing. If an inmate is unable to infor­ mally resolve his complaint, he may file a for­ ?nal written complaint, on the appropriate form, within fifteen (15) calendar days of the date on Bracketed italics-Rules which the basis of the complaint occurred. Regular type-Implementing information Where the inmate demonstrates a valid reason

171 EXPERTS' PAPERS for delay, an extension in filing time shall be for filing to the staff member designat­ allowed. An extension in the time f01' filing ed by the Warden to receive formal shall be allowed when an inmate indicates and complaints. Upon receipt of a complaint, staff verify that a response to the inmate's re­ that staff member shall give the com­ quest for copies of dispositions requested under plaint a case number as described in §6 §8 of this Program Statement (§542.16) has of this Program Statement, shall enter not been received. An inmate may obtain as­ the case number at the top of Section sistance in preparation of his complaint 01' ap­ B of the form and on the receipt, shall peal from other inmates or from institution complete the receipt, and return it to the staff inmate. c. Sensitive Complaints. If the inmate 4. Complaints not utilizing the proper believes the complaint is sensitive and that he form, not completed or untimely filed would be adversely affected if the complaint be­ will not be receipted, will not be given came known at the institution, he may file the a case number, will not be entered into complaint directly with the Regional Director. the index described in §8 of this Pro­ The inmate must explain, in writing, the rea­ gram Statement, and will be returned to son f01' not filing the complaint at the institu­ the inmate unanswered (except for sen­ tion. If the Regional Director agrees that the sitive complaints mentioned above). complaint is sensitive, he shall accej}t and 1'e­ spond to the complaint. If the Regional Direc­ 6. [REMEDY PROCESSING §542.14] tor does not agree that the complaint is sensi­ a. Numbering System. Each complaint tive, he shall advise the inmate in writing of shall, upon acceptance at any location for in­ that determination, without a return of the itial filing, be given a case number which it complaint. The inmate may pU1'sue the matter shall retain through any subsequent appeal by filing the complaint locally with the levels. That case number shall be composed Warden. of the three letter mnemonic code (see At­ d. Control UnitAppeals. Appeals rela­ tachment C) followed by a four digit sequen­ tive to Control Unit placement may be filed di­ tial number followed by the last two digits rectly with the General Counsel.] See P.S. of the year. All locations shall begin the four 5212.3, Control Unit Programs. digit sequential number at 0001 and shall re­ e. Forms. turn to that number on January 1st of each 1. To initiate a complaint after informal year. resolution has been attempted, inmates b. [Response Time Limits. A com­ shall obtain a Form BP-DIR-9. Ordinar­ plaint or appeal is considered filed when the ily these forms will be distributed by the receipt is issued. Once filed, response shall be correctional counselors. made by the Warden within fifteen (15) calen­ 2. To facilitate indexing, an inmate shall dar days, by the Regional Director within thMy place a single complaint on the form. If (30) calendar days, and by the General Coun­ the inmate includes more than one com­ sel within thiny (30) calendar days. If the com­ plaint on a single form, he shall be ad­ plaint is determined to be of an emergency na­ vised to utilize additional forms for the ture which threatens the inmate's immediate separate complaints. However, should health or welja1'e, the Wa1'den shall1'espond the inmate decline to do so, the form within 48 hours of receipt of the complaint. If should be accepted with multiple com­ the period of time for response to a complaint plaints. or appeal is insufficient to make an appropri­ 3. The inmate shall submit the complaint ate dp,cision, the time for 1'esponse may be ex­ to the appropriate institution staff mem­ tended once by the same amount of time as orig­ ber who shall promptly submit this form inally allowed for response. Staff shall inform

172 U.S. INMATE GRIEVANCE SYSTEMS the inmate of this extension in writing. If the gether. inmate does not receive a response within the time allotted for reply, including extension, the 7. [APPEALS §S42.1S. inmate may consider the absence of a response a. Filing. If an inmate is not satisfied with to be a denial at that level. Staff shall, howev­ the Warden's response, that response may be er, respond to allfiled complaints.} Responses appealed on the appropriate form to the Region­ shall be in writing and shall be typed in Sec­ al Director within twenty (20) calendar days of tion B of the form. Responses may be con­ the date of the Warden's J'esponse. If the in­ tinued on a separate sheet, if necessary. mate is not satisfied with the Regional Direc­ c. Investigation and Response Prep­ tor's response, that response may be appealed aration. Members of an IDC should not re­ on the appropriate form to the General Coun­ view IDC appeals, and complaints of staff sel within thirty (30) calendar days from the misconduct should not be investigated by the date of the Regional Director's response. Where staff member complained about. The first a valid reason for delay is stated by an inmate sentence of the response shall be an abstract these. time limits may be extended. Appeal to of the inmate's complaint. This abstract the Office of General Counsel is the final ad­ should be complete, but as brief as possible. ministrative appeal in the Bureau ofPrisons.} The remainder of the response should an­ b. Appeal Forms. Appeals to the Re­ swer completely the complaint, be factual, gional Director shall be made on Form BP­ but should contain no extraneous informa­ DIR-10 and shall include one copy of the BP­ tion. The response shall be written so that DIR-9 and response. The original case num­ it would be releasable to any inmate and to ber shall be used on successive appeals. Ap­ the general public under the Freedom of In­ peals to the General Counsel shall be made formation and Privacy Acts. Inmate names on Form BP-DIR-11 and shall include one shall not be used in the response, and staff copy each of Form BP-DIR-9, Form BP-DIR- or other names shall be used only if absolute­ 10, and their responses. Appeals shall state ly essential. specifically the reason for appeal. Appeals d. Remedy Form Distribution. Upon not utilizing the proper form, not completed completion of the response, the institution or untimely filed will not be receipted, will shall retain one copy of the complaint and re­ not be given a case number, will not be en­ sponse in a centralized filing location tered into the index described in §8 of this (Warden's Administrative Remedy File) and Program Statement, and will be returned to shall return three copies to the inmate. One the inmate unanswered. copy of a regional appeal and response shall be retained at the Regional Office, one copy 8. [INDEX AND ACCESS §S42.16.} shall be filed with the original Administra­ a. Index. Upon completion of a response tive Remedy request in the Warden's Ad­ to a complaint, a staff member designated ministrative Remedy File at the original fil­ responsible for preparation of the Adminis­ ing location, and two copies shall be forward­ trative Remedy Index shall enter the re­ ed to the inmate. One copy of a Central quired information on the index form (At­ Office appeal will be forwarded to the Re­ tachment A) utilizing the subject codes (At­ gional Office, one to the Warden's Adminis­ tachment B), disposition codes (Attachment trative Remedy File at the original filing lo­ B) and institution mnemonic identifiers (At­ cation and one to the inmate. The Central Of­ tachment C). If a complaint is in reference fice will retain one copy. The Warden's to two or more different subjects, two sub­ Administrative Remedy File shall be organ­ ject codes shall be placed in the space provid­ ized by case number so that BP-9s, lOs and ed on the index form. For example, a com­ 11s on the same complaint will be filed to- plaint that an IDC action involved improper

173 EXPERTS'PAPERS

procedures and an overly severe sanction shall forward one copy of their index to the would be coded 5e/5g. No more than two Central Office, one copy to their Regional Of­ subject codes are allowed for any complaint. fice and shall retain one copy. Each Region­ A separate index form shall be used for each al Office shall forward one copy of their re­ month. Each space on the form shall be uti­ gional index to each institution in their lized until the end of each month. The ab­ region, one copy to the Central Office and stract of the complaint shall be taken from shall retain one copy. The Central Office the first sentence of the response. Abbrevi­ shall distribute one copy of their index to ations should be liberally used in transcrib­ each institution and to each Regional Office ing the abstract, so long as they are easily and shall retain one copy. understood, to allow as complete a descrip­ c. [Disposition Access. Inmates and tion of the complaint in the abstract section members of the public may request access to Ad­ as possible. ministrative Remedy indexes and to responses Within thirty days after the end of each by case number at the location where they are month, the index for that month shall be dis­ retained. Copies, with names and other identi­ tributed as indicated in Paragraph b of this fiers deleted, may be inspected during regular section. The disposition codes include a code office hours or may be purchased1 at 10 cents for incomplete dispositions which shall be per page. Staff shall forward funds received used for complaints still to be processed at for purchase of disposition and index copies the time of index distribution. Indexes shall to the Central Office FOI Section, Office of be sanitized by deletion of the inmate names General Counsel. and register numbers prior to distribution. No information other than that requested by 9. EFFECTIVE DATE. This Program the index form shall be placed on that form. Statement is effective November 1, 1979. b. Index Distribution. Each institution

Norman A. Carlson Director

174 U.S. INMATE GRIEVANCE SYSTEMS

Federal Prison System Administrative Remedy Index Attachment A 1330. 7 October 12, 1979

Institution Month Year

Subject Disp. Disp. lName & Register No. Case Filing Inst.* Abstract (Not for Release) Number Day Code Date Code

*This co1um used for Regional and Central Office logs only. BP-DIR-112 175 EXPERTS' PAPERS

Administrative Remedy Subject Codes

Attachment B 1330.7 October 12, 1979 T1'ansjer (except medical, disciplinmy, or com­ 3i. Marriage munity programs) 3j. News Media la. Request for transfer lb. Objection to transfer Community Programs 4a. CTC's and Halfway Houses Institutional Programs 4b. Social furloughs 2a. Central Monitoring designation 4c. Other furloughs 2b. Religion (excluding pUblications) 4d. Work/study release 2c. Education, Vocational Training, (ex­ 4e. Escorted trips cept Seg.lDeten.) 2d. Job assignment and work complaints Disciplinmy .Matters (including FPI) 5a. Administrative Detention placement, 2e. Extra Good Time, Meritorious Service release, conditions (includes protective Award, Performance and Industries custody) Pay 5b. Segregation-release 2f. Youth Corrections Act-units, pro- 5c. Segregation-conditions (includes corre­ grams, institution designations, etc. spondence, visiting, exercise, showers, 2g. Custody classification legal, medical, etc.) 2h. Control Unit placement, release 5d. UDC appeal 2i. Control Unit conditions (includes cor­ 5e. IDC appeal-complaint about proce­ respondence, visiting, exercise, show­ dures (including prisoner participation, ers, medical, legal, etc.) opportunity to call witnesses, staff rep­ 2j. NARA, drug, and alcohol programs (in­ resentation) cludes placement, removal, program; 5f. IDC appeal-complaint about evi­ excluding urine surveillence) dence/finding (including adequacy of 2k. Organizations and special groups evidence, disclosure of evidence, dis­ 21. Recreation, hobby program, manu­ closure of informants) scripts, other leisure time activities 5g. IDC appeal-complaint about sanctions 2m. Other 5h. IDC appeal-combined complaint about procedures, evidence and sanctions Community Communications (except legal) (for use only when 5e., 5f. and 5g. are 3a. Incoming publications all applicable to the IDC appeal) 3b. Rejection or confiscation of mail (ex- 5i. Good Time restoration cluding publications) 5j. Other discipline (informal resolution, 3c. Packages etc.) 3d. Enclosures (including photographs) 3e. Other mail problems (restricted list, de- Institution OPerations lays, etc.) 6a. Food (except special diets) 3f. Visiting list 6b. Clothing 3g. Visiting time and conditions (including 6c. Safety, sanitation, and environmental visit related searches) conditions (includes lighting, heating, 3h. Telephone calls ventilation, plumbing, etc.)

176 U.S. INMATE GRIEVANCE SYSTEMS

6d. Housing conditions, overcrowding, as­ Sd. Detainers/production on writ signments (except Drug and Alcohol Se. Law Library, typewriters, legal sup­ units) plies (except seg.ldeten.) 6e. Personal property (including confisca- Sf. Legal mail and phone calls (except seg­ tion or destruction) regation/detention) 6f. Commissary and commissary account Sg. Legal visits (except segregation/deten­ 6g. Request for copying tion) 6h. Searches (except visit related searches) Sh. Other legal assistance (except segrega­ 6i. Urine surveillance program (excluding tion/detention) disciplinary appeals) Si. Personal legal materials and personal 6j. Other operations law books (except segregation/deten­ tion) Medical Sj. Administrative Remedy Procedure 7a. Access to or delay in receiving medi- SIc FOI, Privacy Tort Claims, accident cal care compensation (improperly filed under 7b. Improper or inadequate medical care Administrative Remedy Procedure) 7c. Medical transfer 7d. Dental care Parole 7e. Mental health care 9a. lS USC 4205(g) request 7f. Pregnancy, abortion, child birth and 9b. Parole and progress reports child placement 9c. Release plans (including gratuity) 7g. Medical records 9d. Parole scheduling, dockets 7h. Right to refuse treatment 8e. Other parole matters 7i. Medical diets 7j. Other medical Complaints against Staff or Others lOa. Harassment by staff Legal lOb. Assault by staff Sa. Jail time lOco Discrimination Sb. Other sentence computation 10d. Other complaint against staff Bc. Records 10e. Complaint against non-staff person

Disposition Codes

1. Deny 6. Previously Granted 2. Grant 7. Withdrawn at Inmate's Request 3. Information/Explanation only S. Repetitive of Previous Appeal-Deny 4. Partially Granted 9. Other 5. Improper Subject Matter (eg. Tort 10. Incomplete Clnims, FOI-Privacy Request)

177 ~------~- --- ~---

EXPERTS'PAPERS

Attachment e 1330.7 October 12, 1979 Mnemonic Codes

Facility Mnemonic Facility Mnemonic Nam.e Code Name Code

Alderson ALD Morgantown MRG Allenwood ALW New York MCC NYM Ashland ASH Otisville OTV Atlanta ATL Oxford OXF Bastrop BSP Petersburg PET Boron BRN Pleasanton PLE Big Spring BSG Safford SAF Butner BUT Sandstone SST Camarillo CAM San Diego MCC SDC Chicago cec Seagoville SEA Danbury DAN Springfield SPG Eglin EGL Talladega TDG El Reno ERE Tallahassee TAL Englewood ENG Terre Haute THA Florence FLO Texarkana TEX Fort Worth FTW Terminal Island TRM Lake Placid LPD La Tuna LAT Bureau Regional Offices Lewisburg LEW Lompoc LOM Southeast RO ARO Leavenworth LVN South Central RO DRO Lexington LEX North Central RO KRO Marion MAR Northeast RO PRO McNeil Island MNI Western RO SRO Memphis MEM Miami MIA Bureau Centml Office Milan MIL Montgomery MON HDQ

178 U.S. INMATE GRIEVANCE SYSTEMS

U.S. Department of JusUee Request For Administrative Remedy Federal Bureau of Prisons

Type or use ball'point pen. If allachments are needed, submit four caples. Additional instructions on reverse.

From: LAST NAME, FIRST, MIDDLE INITIAL REG. NO. UNIT INSTITUTION Part A - REASON FOR APPEAL

DATE SIGNATURE OF REQUESTOR Part B - RESPONSE

DATE WARDEN REGIONAL DIREcrOR If dissatisfied with this response, you may appeal to the Regional Director. Your appeal must be received in the Regional Office within 20 calendar days of the date of this response. ORIGINAL: RETURN TO INMATE CASE NUMBER: ______------Part C - RECEIPT CASE NuMBER: ______

Return to: --:--:-:::=-:c;-;-:===~=====_:__-­ SUBIECT: ______LAST NAME, FIRST, MIDDLE INITIAL REG. NO. UNIT INSTITUTION _

BP·DIR·9 DATE RECIPIENT'S SIGNATURE (STAFF MEMBER) April 1982

179 EXPERTS'PAPERS

U.S. Department of Justice Regional Administrative Remedy Appeal Federal Bureau of Prisons

•Type or Use ball·point pcn. If attachments are needed, subm\! four coplc •• One copy of the completed IlP·!)IR·9 including nny alla.hmenls must be subll,i\tcd with tills appeal.

From: ____~~~~~~~~~~~~~~---- LAST NAME, FIRST, MIDDLE INITIAL REG. NO. UNIT INSTITUTION Part A- REASON FOR APPEAL

DATE SIGNATURE OF REQUESTOR Part B - RESPONSE

DATE REGIONAL DIRECTOR If dissatisfied with this response, you may appeal to the General Counsel. Your appeal must be received In the General Counsel's Office within 30 calendar days of the date of this response. ORIGINAL: RETURN TO INMATE CASE NUMBER: ______------Part C - RECEIPT CASE NUMBER: ______

Return to: _-;;-,:-=::-:-:-,.,..,,::-::::-=-==~=::::-:-:--_ SUBIECT: ______LAST NAME, FIRST, MInDLE INITIAL REG. NO. UNIT INSTITUTION _

BP·DIR·!O DATE SIGNATURE, RECIPIENT OF REGIONAL APPEAL April 1982

180 U.S. INMATE GRIEVANCE SYSTEMS

U.S. Department DC Justice Central Office Administrative Remedy Appeal Federal Burenu of Prisons

Type or u.e ball·polnt pen. If attachment. arc needed, submit four cople •• On. copy each of the completed DP·DIR·9 and DP.DIR·IO, Including any attach· ments must be submitted with thl. appeal.

From: __-:-:-=~-:-:-;:-::=-==-~~:-::-=="..,,- __ LAST NAME, FIRST, MIDDLE INITIAL REG. NO. UNIT INSTITUTION Part A - REASON FOR APPEAL

DATE SIGNATURE OF REQUESTOR Part n - RESPONSE

DATE GENERAL COUNSEL

------ORIGINAL: RETURN TO INMATE CASE NUMBER: ------Part C - RECEIPT CASE NUMBER: ______

Return to: _...,.....,.=:- SUBJECT: ______LAST N'':''A:-:1"''IE=-',-=F""IR::":S==T:-, 7: M"'ID"'D""L-::E"'I""'N7:IT::,'AL REG. NO. UNIT INSTITUTION _

DATE --siGNATURE OF RECIPIENT OF CENTRAL OFFICE APPEAL

181 EXPERTS' PAPERS

Appendix 2

ADMINISTRATIVE REMEDY PROCEDURE---INSTITUTION FILINGS (BP-9)--1987

IJ 2 3 4J 5 6J 7 TRANS PROG CO/.f,f COMPR DISC OPRNS MEn LEJJ P~J srJJI TOTAL GOO %GR DENY %00 OTII ALDERSON 4 22 5 7 18 19 9 8 0 36 128 24 21% 90 79% 14 ALLB'Nf'OOD 12 54 1 46 81 13 5 7 4 0 223 17 8% 200 92% 6 DANBURY 9 73 5 24 30 26 4 25 3 14 213 27 15% 150 85% 36 LEWISBURG 32 82 18 18 56 39 19 35 6 30 335 .61 20% 237 80% 37 LOREtTO 2 24 2 11 30 0 1 2 0 0 72 5 8% 61 92% 6 MORGAfITOWN 4 10 1 9 68 2 2 1 0 8 105 13 14% 77 86% 15 NEW YORK 1 7 7 2 10 13 2 9 0 16 67 8 18% 37 82% 22 OTISVILLE 45 8 24 10 1 1 24 0 2 2 117 14 21% 54 79% 49 PETF..llSBURG 7 46 18 11 18 23 17 8 5 14 167 24 16% 129 84% 14 RAY BROOK 6 39 4 9 80 13 7 17 3 31 209 24 13% 164 87% 21 NER TOTAL 122 365 85 147 392 149 90 112 23 151 1636 217 15% 1199 85% 220 ASHLAND 12 50 21 8 97 42 29 24 1 44 328 29 10% 269 90% 30 KILANTA 4 18 6 10 39 10 13 20 1 9 130 15 14% 91 86% 24 BUTNER 2 19 16 7 15 6 6 15 1 23 110 8 9% 84 91% 18 EGLIN 3 7 2 5 30 1 2 5 0 2 57 5 9% 48 91% 4 LEXINGTON 12 70 8 Hi 192 28 51 20 6 0 403 33 13% 214 87% 156 MAXWELL 0 3 1 2 23 1 0 7 0 3 40 5 13% 33 87% 2 MEMPHIS 12 36 24 4 135 29 20 49 0 43 352 16 5% 292 95% 44 MIAMI 0 9 3 2 40 7 3 6 1 15 86 12 15% 70 85% 4 TALlJillEG:', 10 44 17 7 10 30 Z3 16 1 44 202 66 41% 94 59% 42 TALLAHASSEE 9 24 3 10 60 13 9 10 3 26 167 18 13% 120 87% 29 SER TOTAL 64 280 101 71 641 167 156 172 14 209 187& 207 14% 1315 86% 353 CIIICAGO Ii 17 12 9 43 28 13 8 4 8 148 31 30% 72 70% 45 DULUTII 11 22 2 11 47 13 14 8 2 20 150 18 14% 110 86% 22 LEAVENWORllI 34 72 28 1 304 69 33 61 6 79 687 94 14% 557 86% 36 LVN CAMP 2 11 4 16 38 3 4 11 0 4 93 5 6% 79 94% 9 MARION 39 59 65 7 182 136 70 49 7 56 670 53 11% 411 89% 206 MILAN 17 60 20 6 94 40 43 40 2 43 365 48 15% 275 85% 42 OXFORD 10 26 11 3 74 42 13 14 1 20 214 20 10% 174 90% 20 ROCHESTER 17 54 22 11 103 21 20 29 5 n 314 48 16% 246 84% 20 SANDSlUNE 16 49 24 18 86 36 26 86 13 22 376 35 11% 287 89% 54 SPRINGFIELD 37 50 14 7 67 63 75 42 9 67 431 68 17% 324 83% 39 TERRE HAlITE 29 147 14 23 283 95 77 71 9 86 834 60 8% 712 92% 62 NCR TOTAL 218 567 216 112 1321 546 388 419 58 437 4282 480 13% 3247 87% 555 BASTIlOP 5 22 5 II 94 17 17 8 2 41 222 44 21% 165 79% 12 BIG SPRING 0 16 1 6 17 1 3 10 0 1 85 14 20% 55 80% 15 EL RENO 27 66 29 9 177 70 31 62 a 60 539 96 18% 430 82% 13 FORT WORnI 1 6 3 5 67 2 5 2 1 14 106 10 10% 88 90% 8 LA lUNA 21 40 14 9 98\ 20 20 25 . 7 23 277 34 16% 180 84% 63 OAKDALE Not available. Records destroyed in November disturbance. SEAGOVIll.E 4 .28 11 I 5 84 33 13 10 . 1 42 231 27 14% 172 86% 32 TEXARKANA 16 44 16 15 J7 30 11 32 i 7 48 276 57 21% 211 79% 8 SCR TOTAL 74 222 79 60 ~24 173 100 149 26 229 1736 282 18% 1303 82% 151 BORON 0 13 2 5 20 2 2 16 0 19 79 4 7% 56 93% 19 ENGLEWOOD 4 33 6 7 65 26 10 12 4 36 203 29 17% 143 83% 31 LOMPOC 24 74 38 2 243 67 23 36 9 26 542 59 13% 410 87% 73 LOMPOC O.MP i 6 2 9 55 1 3 7 1 8 93 19 22% 66 /8% 8 PHOENIX 11 39 15 10 101 44 9 37 1 23 290 39 15% 213 85% 38 PLEASANlUN 5 30 13 33 99 8 12 8 3 30 241 23 11% 184 89% 34 SAFFORD 10 ~, 1 9 12 4 3 6 0 3 53 8 16% 42 84% 3 Sfu"l DIEGO 1 1 1 1 14 3 8 0 0 8 37 3 12% 22 88% 12 TERMINAL IS, 4 11 11 3 84 16 15 8 1 16 169 27 19% 117 81% Z5 TUCSON 11 34 11 5 77 58 21 32 1 53 303 51 19% 212 81% 40 WR TOTAL 71 246 100 84 770 229 106 162 20 222 2010 262 15% 1465 85% 283 GRAND TOTAL 549 1680 581 474 3748 1264 840 1014 141 1248 11539 1448 15% 8529 85% 1562

182 U.S. INMATE GRIEVA.,.l\l"CE SYSTEMS

ADMINISTRATIVE REMEDY PROCEDURE---REGIONAL OFFICE APPEALS (BP-1O) --1987

IJ 2 3 4J 5 7 TRANS PROG CO"'" COMPR DISC OP~~1 MED LEJJ p,JJ 5TJJ1 mTAL GOO %GR DENY %ON 0111 ALDERSON 1 8 0 2 61 3 4 7 0 2 88 5 6% 79 94% 4 AllENWOOD 10 31 1 24 31 7 0 5 2 0 111 9 9% 94 91% 8 DANBURY 3 43 0 8 62 9 1 11 1 2 140 11 8% 128 92% 1 LEWISBURG 17 38 6 6 116 16 7 18 8 2 234 16 7% 210 93% 8 LORETTO 1 7 1 7 14 1 0 0 0 1 32 2 6% 29 94% 1 MORGANTOWN 1 1 0 4 8 1 1 0 0 2 18 0 0% 18 100% 0 NEW YORK 0 1 4 0 7 0 0 0 0 1 13 2 17% 10 83% 1 OTISVILLE 4 17 0 4 35 2 6 11 1 4 84 7 9% 73 91% 4 PETERSBUllG 4 20 3 3 80 10 6 3 3 2 134 9 7% 120 93% 5 RAY BROOK 3 24 4 2 35 9 3 14 2 8 104 5 5% 96 95% 3 NER TOTAL 44 190 ' 19 60 449 58 28 69 17 24 958 66 7% 857 93% .,-35 ASHLAND 7 22 7 2 38 13 9 8 1 2 109 4 4% 96 96% 9 AllANTA 1 10 1 5 15 1 10 13 2 2 60 6 15% 35 85% 19 BUTNER 2 8 1 1 33 1 4 9 1 6 66 1 2% 57 98% 8 EGLIN 1 3 1 4 12 0 2 4 0 2 29 8 32% 17 68% 4 LEXINGTON 3 25 4 8 48 8 24 11 0 14 145 4 4% 99 96% 42 MAXWEll. 0 0 0 1 10 1 0 6 0 0 18 1 6% 16 94% 1 MEMPHIS 6 18 17 1 60 14 14 36 1 8 175 12 8% 145 92% 16 MIAMI 0 1 0 0 5 0 0 0 I) 0 6 0 0% 6 100% 0 TALLADEGA 1 13 4 2 25 10 5 6 0 3 69 3 5% 55 95% 11 TALLAHASSEE 4 9 1 4 25 4 4 10 0 1 62 3 5% 55 92% 2 SER TOTAL 25 109 36 28 271 52 J 72 103 5 38 739 44 7% 583 93% 112 i--' CHICAGO 0 8 1 4 9 3 1 6 0 1 33 4 12% 29 88% 0 DULUTII 4 9 3 3 24 3 10 5 0 2 63 5 8% 58 92% 0 LEA VENWORTII 18 41 15 1 125 39 14 28 7 32 320 13 4% 305 96% 2 LVN CAMP 0 5 0 3 6 0 1 5 0 0 20 0 0% 20 100% 0 MARION 25 61 40 6 86 70 31 27 1 16 363 1 0% 361 100% 1 MILAN 9 22 4 2 32 5 15 13 2 9 113 'l... 3% 110 97% 0 OXFORJ) 4 13 3 13 41 18 3 8 1 1 105 0 0% 105 100% 0 ROCHE5TER 9 2l. 7 1 35 9 11 15 1 8 117 5 4% 111 96% 1 SAND5TONE 5 17 21 1 39 12 14 50 9 7 175 6 3% 168 97% 1 SPRINGFIELD 13 19 8 2 16 16 31 21 2 18 146 3 2% 142 98% 1 TERRE HAUTE 13 42 6 1 84 43 27 31 2 29 278 5 2% 273 98% 0 NCR TOTAL I 100 258 108 37 497 218 158 209 25 123 1733 45 3% 1682 97% 6 BASTROP 4 5 4 4 42 2 6 3 1 12 83 14 17% 68 83% 1 BIG SPRING 0 6 0 0 16 0 2 8 0 2 34 5 15% 29 85% 0 EL RENO 15 29 9 4 92 23 12 30 3 22 239 34 14% 203 86% 2 FORT WORIll 0 1 0 4 20 0 1 0 1 3 30 6 20% 24 80% 0 LA lUNA 12 16 4 2 47 2 4 14 4 10 115 18 16% 96 84% 1 OAKDALE 0 0 0 0 3 0 0 1 0 0 4 2 50% 2 50% 0 SEAGOVIll.E 3 10 2 2 31 12 5 9 0 10 84 10 12% 74 88% 0 TEXARKANA 8 23 6 7 27 9 4 14 5 24 127 14 11% 112 89% 1 SCR TOTAL 42 I 90 25 23 278 48 34 79 14 83 716 103 14% 608 86% 5 BORON 0 2 1 2 2 0 0 10 0 2 19 3 17% 15 83% 1 ENGLEWOOD (j 7 1 5 18 2 0 2 2 4 41 2 5% 37 95% 2 LOMPOC 17 28 15 0 73 30 8 22 2 12 207 11 5% 192 95% 4 LOMPOC CAMP 0 3 0 2 13 0 0 6 0 1 25 2 8% 22 92% 1 PHOENIX 5 8 9 1 42 13 3 10 1 5 97 1 9 10% 85 90% 3 1 PLEASANmN 3 12 7 2 28 6 0 6 1 J. 66 7 11% 56 89% 3 SAFFORD 4 3 0 8 5 1 1 4, 0 0 26 3 12% 23 88% 0 SAN DIEGO 2 0 0 0 0 0 1 0 0 1 4 0 0% 4 100% 0 TERMINAL IS 1 3 0 1 21 4 1 3 0 2 36 4 11% 31 89% 1 TUCSON -, 6 21 2 3 28 35 9 22 2 10 138 6 4% 131 96% 1 WR TOTAL 38 87 35 24 230 91 23 85 8 38 659 47 7% 596 93% 16 GRAND TOTAL 249 734 223 172 1725 467 315 545 69 306 4805 305 7% 4326 93% 174

183 EXPERTS'PAPERS

ADMINrSTT~TlVE REMEDY PROCEDURE--CENTRAL OFFICE APPEALS (BP-11)--1987

1J 2 3 4J 5 7 TRANS PROG CO/rfrl COMPR DISC Op~SI MEn LEJJ PAR5J STJJ'TOTAL GOO %GR DENY %ON OTH ALDERSON 1 1 0 1 4 1 1 3 0 0 12 0 0% 12 100% 0 AllENWOOD 1 15 0 6 9 2 1 3 0 0 37 4 11% 33 89% 0 DANBURY 2 12 0 3 22 2 0 5 0 0 46 4 9% 41 91% 1 LEWISBURG 6 24 3 2 42 5 4 1l 2 3 102 3 3% 97 97% 2 LORETIO 0 3 0 3 6 0 0 0 0 0 12 1 8% 11 92% 0 MORGANTOWN 1 1 0 3 2 0 0 0 0 1 8 0 0% 8 100% 0 NEW YORK 0 0 2 0 2 0 0 0 0 0 4 0 0% 4 100% 0 OTISVILlE 3 12 0 2 18 4 3 4 0 2 48 4 8% 44 92% 0 PETERSBURG 1 7 1 1 20 4 2 5 1 0 42 1 3% 39 98% 2 RAY BROOK 2 8 0 2 22 3 3 5 0 2 47 3 6% 44 94% 0 NER TOTAL 17 83 6 23 147 21 14 36 3 8 358 20 6% 333 94% 5 ASHLAND 3 7 3 1 20 1.2 5 4 0 2 57 2 4% 55 96% 0 ATLANTA 0 5 1 4 4 2 4 6 0 3 29 0 0% 28 100% 1 BlITNER 0 3 1 0 16 1 0 6 1 4 32 1 3% 31 97% 0 EGLIN 2 1 0 0 2 0 1 3 0 0 9 0 0% 9 100% 0 LEXINGTON 2 2 0 2 7 3 7 Ii 1 1 31 3 10% 27 90% 1 MAXWEll. 0 0 0 0 0 1 0 2 0 0 3 0 0% 3 100% 0 MEMPHIS 1 8 9 1 26 8 9 27 1 7 97 1 1% 96 99% 0 MIAMI 0 0 0 0 0 0 0 0 0 0 0 0 0% 0 0% 0 TALLADEGA 1 5 1 0 9 4 0 1 0 0 21 1 5% 20 95% 0 TALLAHASSEE 2 3 0 2 7 3 1 4 0 0 22 2 9% 20 91% 0 SER TOTAL 11 34 15 10 91 34 27 59 3 17 301 10 3% 289 97% 2 CHICAGO 0 1 1 0 5 1 0 1 0 0 9 0 0% 9 100% 0 Dffi.UTH 1 5 0 2 12 2 5 6 0 2 35 1 3% 34 97% 0 LEAVENWORTH 5 14 5 0 96 19 3 17 3 11 173 1 1% 170 99% 2 LVN CAMP 0 2 0 2 5 0 0 4 0 0 13 0 0% 13 100% 0 MARION 16 26 24 2 89 45 8 17 2 13 242 4 2% 237 98% 1 MILAN 4 7 1 0 27 2 2 9 0 1 53 2 4% 51 96% 0 OXFORD 1 5 2 6 27 8 0 8 0 0 57 4 7% 53 93% 0 ROCHESTER 5 6 5 1 26 3 7 8 0 5 66 0 0% 66 100% 0 SANDSTONE 1 13 9 1 19 8 6 40 4 1 102 1 1% 101 99% 0 SPRINGFIELD 3 2 2 1 13 5 11 II 1 6 55 1 2% 54 98% 0 TERRE HAUTE 5 25 2 0 56 22 9 24 1 15 159 0 0% 159 100% . 0 NCR TOTAL 41 106 51 15 375 115 51 145 11 54 964 14 1% 947 99% 3 BASTROP () 0 1 0 20 0 2 4 0 2 29 0 0% 29 100% 0 BIG SPRING 1 2 0 0 8 0 0 4 0 1 16 0 OX 15 100% 1 EL RENO 7 7 1 2 54 11 7 20 1 2 112 1 1% 110 99% 1 FORT WORTII 0 0 0 0 7 0 0 0 0 0 7 1 14% 6 86% 0 LA lUNA 7 6 2 1 21 2 0 5 1 1 46 1 2% 45 98% 0 OAKDALE 0 0 0 0 1 0 0 1 0 0 2 0 0% 2 100% 0 SEAGOVIll.E 2 3 2 0 18 4 1 5 0 0 35 0 0% 35 100% 0 TEXARKANA 5 14 0 2 23 3 0 10 3 1 61 1 2% 59 98% 1 SCR TOTAL 22 32 6 5 152 20 10 49 5 7 308. 4 1% 301 99% 3 BORON 0 1 0 1 1 0 0 7 0 0 10 0 0% 10 100% 0 ENGLEWOOD 0 4 0 2 3 2 0 2 1 0 14 1 7% 13 93% 0 LOMPOC 6 16 1 0 37 4 3 13 1 0 at 5 6% 76 94% 0 LOMPOC CAMP 0 2 1 0 3 1 1 3 0 0 it 1 9% 10 91% 0 PHOENIX 1 3 9 0 12 9 2 6 0 1 43 2 5% 41 95% 0 PLEASANTON 2 4 0 0 11 2 1 1 0 0 21 2 10% 18 90% 1 SAFFORD 1 0 0 2 5 0 1 2 0 0 11 0 0% 11 100% 0 SAN DIEGO 1 0 0 0 0 0 1 0 0 0 2 0 0% 2 100% 0 TERMINAL IS 1 1 0 0 9 0 0 1 1 1 14 1 7% 13 93% 0 TUCSON -I 4 13 3 2 22 20 5 15 0 2 86 2 2% 83 98% 1 WR TOTAL 16 44 14 7 103 38 14 50 3 4 293 14 5% 277 95% 2 GRAND TOTAl 107 299 92 60 868 228 116 339 25 90 2224 62 3% 2147 97% 15

184 u.s. INMATE GRIEVANCE SYSTEMS

PERCENT CHANGE IN BP--9 FILINGS 1983--1981

It It %CIIG It %C1IG # %CIIG It %CIIG 1983 1984 83-84 1985 84-85 1986 85-86 1981 86-81 ALDERSON 148 119 21% 181 4% 166 -11% 128 -23% ALLENWOOD 269 110 -31% 181 10% 190 2% 223 11% DANBURY 238 342 44% 246 218 -11% 213 -2% LEWISBURG 866 594 -31% 643 -28%8% I 143 16% 335 -55% LORElTO nfa nfa nfa 21 nfa 50 138% 72 44% MORGANfOWN 165 119 8% 111 -1% 138 -22% 105 -24% NEW YORK 61 43 -30% 94 119% 91 -3% 61 -26% OTISVILLE 401 284 -29% 283 0% 151 -45% 111 -25% PETERSBURG 161 121 -21% 201 58% 213 6% 161 -22% RAY BROOK 271 227 -18% 196 -14% 260 33% 209 -20% NER TOTAL 2586 2145 -11% 2235 4% 2226 0% 1636 -27% ASHLAND 461 483 5% 363 -25% 296 -18% 328 11% ATLANfA 99 176 78% 153 -13% 148 -3% 130 -12% BUTNER 195 168 -14% 74 -56% 114 54% 110 -4% EGLIN 103 83 -19% 61 -27% 48 -21% 57 19% LEXINGTON 583 471 -18% 331 -31% 354 7% 403 14% MAXWELL 74 99 34% 39 -61% 24 -38% 40 61% MEMPIIIS 561 598 7% 412 -31% 431 6% 352 -19% MIAMI 104 112 8% 95 -15% 116 22% 86 -26% TALLADEGA 379 691 82% 579 -16% 501 -12% 202 -60% TALLAHASSEE 284 310 9% 206 -34% 208 1% 167 -20% SER TOTAL 2843 3197 12% 2313 -28% 2252 -3% 1815 -11% CHICAGO 86 167 94% 431 162% 134 -69% 148 10% DULUTH nfa 74 nfa 110 49% 160 45% 150 -6% LEAVENWORTH 1038 813 -22% 738 -9% 672 -9% 687 2% LVN CAMP nfa nfa nfa nfa nfa 171 nfa 93 -46% MARION 678 1811 167% 1040 -43% 769 -26% 670 -13% MILAN 527 659 25% 344 -48% 250 -27% 365 46% OXFORD 290 333 15% 327 -2% 212 -35% 214 1% ROCHESTER nfa nfa nfa 54 nfa 216 300% 314 45% SANDSTONE 350 508 45% 801 59% 710 -12% 376 -47% SPRINGFIELD 686 434 -37% 456 5% 568 25% 431 -24% TERI\E HAUTE 702 817 16% 826 1% 880 7% 834 -5% NCR TOTAL 4351 5616 29% 5139 -8% 4742 -8% 4282 -10% BASTROP 250 232 -7% 281 21% 205 -21% 222 8% BIG SPRING 99 67 -32% 68 1% 98 44% 85 -13% EL REt'lO 453 431 -5% 621 44% 637 3% 539 -15% FORT WORTH 151 196 30% 307 57% 214 -30% 106 -50% LA TIJNA 350 314 -10% 186 -41% 251 35% 271 10% OAKDALE nfa nfa nfa nfa nfa 36 nfa nfa nfa SEAGOVILLE 296 219 -26% 197 -10% 232 18% 231 0% TEXARKANA 273 335 23% 241 -28% 231 -4% 276 19% SCR TOTAL 1872 1794 -4% 1901 6% 1904 0% 1736 -9% BORON 81 108 33% 67 -38% 62 -7% 79 27% ENGLEWOOD 151 156 3% 120 -23% 145 21% 203 40% LOMPOC 928 879 -5% 524 -40% 422 -19% 542 28% LOMPOC CAMP nfa nfa nfa nfa nfa 103 nfa 93 -10% PHOENIX nfa nfa nfa 53 nfa 319 502% 290 -9% PLEASANTON 278 255 -8% 262 3% 272 4% 241 -11% SAFFORD 135 59 -56% 89 51% 51 -43% 53 4% SAN DIEGO 64 43 -33% 36 -16% 33 -8% 37 12% TERMINAL IS 394 394 0% 334 -15% 345 3% 169 -51% llJCSON 140 115 -18% 155 35% 242 56% 303 25% WR TOTAL 2171 2009 -7% 1640 -18% 1994 22% 2010 1% GRAND TOTAL 13829 14761 7% 13228 -10% 13118 -1% 11539 -12%

185 Recent Managerial and Organisational Innovations

by Gordon H. Lakes *

Introduction Training Courses. I shall describe the sys­ tem of managerial accountability which now The purpose of this paper is to describe operates throughout the Prison Service and five important changes which have taken beyond; a developing method of monitoring place since the Prison Service of England regime activities in establishments; the devo­ and Wales was re-organised following the lution of financial responsibility; changes in publication, in 1979, of the report of an Inter­ the management structure in establishments departmental Committee of Inquiry into the and in the conditions of service and working United Kingdom Prison Services-the May arrangements for staff and, finally, changes Report. I shall also refer to the industrial re­ in the sentencing and custodial treatment of lations climate in which those changes took young offenders. place. There have, of course, been many impor­ The System of Accountable tant initiatives since 1980. There have been Management developments in staff tr?ining and personnel management; in the use of information tech­ The May Committee received informatiorl nology and in the manag,~ment of the prison and advice from a wide variety of sources in­ building programme. Progress has been clu.ding trade unions and representatives of made in the development of the social work professional organisations; former Ministers role of the prison officer anc~ with the great­ and civil servants; Members of Parliament; er involvement of volunteers and Regional Directors; Governors and academ­ community-based organisations. A strategy ic criminologists. Almost everyone agreed has been developed for the:: management of that there was a need to do something about the long-term prison system; a clear race re­ the organisation of the Prison Service of En­ lations policy and a supportive training gland and Wales and in particular the top of programme has been introduced and there what one body described in their evidence have been changes in the arrangements for as "this confounded Department"; but there parole, hor.;e leave and remission. These and was a considerable difference of opinion many other changes have been introduced about precisely what it was that should be despite the logistical and industrial relations done. problems which have been a marked feature The committee reached the view that what of the last decade. was required was "an identifiable prisons ad­ From the many initiatives and policy de­ ministration with clear integrated managerial velopments of recent years I have chosen responsibility and as fully a professiona1 five which I consider to be particularly rele­ operational direction as circumstances al­ vant to the theme of the 82nd International low." They were critical of the fact that only the most rudimentary information was avail­ able on the operating costs of the Service and * Former Deputy Director General of the Prison Serv­ were particularly surprised and concerned to ice, England and Wales, United Kingdom discover that it was not possible to establish

186 MANAGERIAL, ORGANISATIONAL INNOVATIONS exactly how much each prison cost to run. provided. It also took account of the fact that, They recommended that accounting proce­ while the Governor can reasonably be held dures should be improved so that better and personally accountable for the operation of more detailed financial information could be his establishment, he is not solely responsi­ made available to all managers; emphasised ble for carrying out the tasks and meeting the importance of financial controls as a me­ the objectives of the Prison Service. Every ans of enhancing managerial efficiency; and Governor operates within an organisational suggested that there would be advantage in structure in which others have managerial making governors directly accountable for responsibility for determining policy, direct­ the money expended on the running of their ing operational procedures and, crucially, al­ establishments. locating resources. Responsibility and the These and other recommendations aimed related accountability spans the Prisons at improving managerial performance, with Board, Regional Offices and establishments. particular reference to accountability and ef­ This organisational reality was reflected in ficiency in the use of resources, were taken the newly defined framework of managerial into account when the new organisational accountability, the main ingredients of which structure was devised. They also stimulat­ were a statement of the task of the Prison ed a number of other initiatives and projects Service as a whole, and an inter-related state­ designed to give practical effect to some of ment describing the range of functional ele­ the principles contained in the committee's ments of individual establishments. report. Together they provided the context within The theme of accountable management which the tasks of each establishment could and improved financial control was rein­ be more precisely defined, the establish­ forced when, in 1982, the government made ment's performance monitored, and the a major policy statement on the management Governor held accountable through the of resources in the public service. The Finan­ Regional Director to the Deputy Director cial Managemept Initiative (FMI), with its General and the Director General. emphasis on efficiency, effectiveness and The task of the Prison Service was defined economy in the use of resources, gave fur­ by the Prisons Board in the following terms: ther impetus to the development of account­ The task of the Prison Service is to use able management structures and procedures with maximum efficiency the resources of throughout the public sector. So far as the staff, money, building and plant made avail­ Prison Service wa<. concerned there was a able to it by Parliament in order to fulfil in need to develop a managerial framework accordance with the relevant provisions of which would ensure that there was a func­ the law, the following functions: tionallink between the strategy for meeting the aims and objectives of the Service as a (i) to keep in custody untried or unsen­ whole, the stated objectives of individual es­ tenced prisoners, and present them to tablishments and what actually happened in court for trial or sentence; those establishments. (ii) to keep in custody, with such degree of Developmental work came to fruition in security as is appropriate, having regard 1984 with the introduction of a framework to the nature of the individual prisoner of accountability for the management of es­ and his offence, sentenced prisoners for tablishments. It confirmed the role of the the duration of their sentence or for such Governor as the key manager in the Prison shorter time as the Secretary of State Service because he is responsible for the ac­ may determine in ca:Jes where he has dis­ tual delivery of the Department's policies cretion; and for the quality of the service that is (iii) to provide for prisoners as full a life as

187 EXPERTS'PAPERS

is consistent with the facts of custody, Court and Court of Appeal (Criminal Divi­ in particular making available the phys­ sion) and keep prisoners there in custody. ical necessities of life; care for physical and mental health; advice and help with Custody of Sentenced Prisoners personal problems; work, education, 6. To receive sentenced prisoners and training, physical exercise and recrea­ keep them in custody. tion; and opportunity to practise their 7. To calculate and implement release religion; and dates. (iv) to enable prisoners to retain links with 8. To assess prisoners for the purpose of the commu.nity and where possible assist determining or recommending (a) an ap­ them to prepare for their return to it. propriate level of security and (b) an ap­ propriate allocation. Over the years a number of attempts had 9. To keep each prisoner's security been made to define the role and functions category and allocation under regular of establishments but they had been in­ review. In the case of life sentence prisoners, troduced in a piecemeal fashion, some were to maintain regular formal Review Board of dubious origin and relevance and those procedures. that had official endorsement were not 10. To give effect to the provisions relat­ universally applied or monitored. This was ing to parole and release on life licence. clearly a very unsatisfactory situation and a working group of regional and headquarters Security, Safety and Control representatives was set up to consider the 11. To maintain a level of security ap­ formulation of a statement of functions propriate to the prisoners who are or may be which was definitive, authoritative, con­ held at the establishment. gruent with the defined task of the Prison 12. To maintain good order in the interests Service and capable of universal application. of the operation of the prison, and take such The outcome, which was endorsed by the steps as are necessary for the safety of its Prisons Board, was: staff and inmates.

Statement of Functions of Prison Service Es­ Services and Facilities for Prisoners tablishments 13. To provide in accordance with the statutory provisions and Departmental in­ Custody of Unsentenced Prisoners structions: (a) accommodation, (b) meals, (c) 1. To receive and keep in custody facilities for personal hygiene and sanitation, prisoners awaiting trial or sentence, civil (d) clothing, (e) opportunities for exercise and prisoners and any other persons lawfully (f) access to privileges. committed to their custody. 14. To provide a service for the diagnosis, 2, To release such prisoners from custody treatment and preventiol1 of physical and on the directions of the court or other lawful mental disorders and the promotion of authority or when the conditions of bail have health. been met. 15. To provide help and advice with per­ sonal problems. The Court Commitment 16. To enable prisoners to practise their 3. To ensure that prisoners are produced religion. at court as required. 17. To provide, with a view to occupying 4. To provide the requisite reports and prisoners as fully as possible throughout the documentation. whole week, a balanced and integrated re­ 5. To provide staff required at the Crown gime, which may include work, education,

188 MANAGERIAL, ORGANISATIONAL INNOVATIONS physical education, access to libraries and in­ ments but they have been translated into dividual and collective leisure activities. terms which allow for objective analysis and 18. To enable prisoners to spend the max­ assessment. It is an aspect of the manageri­ imum possible time out of their cells. al accountability structure which attracted some criticism from those who would have Community Links and Preparation for preferred a more inspirational approach to Release the definition of the responsibilities of the 19. To enable prisoners to maintain con­ Prison Service in general and of the functions tact with the outside world, and in particu­ of establishments in particular. After a good lar to communicate with their families, deal of discussion and deliberation it was friends and legal representatives. decided, at the end of last year, that the time 20. To operate the home leave scheme. had come for the Prison Service to be provid­ 21. To assist prisoners to prepare for their ed with a clear statement of purpose; it is as release, which may include (a) providing follows: such opportunities as are practicable for them to go out into the community on tem­ "Her Majesty's Prison Service serves the porary release, (b) providing pre-release public by keeping in custody those commit­ courses, and (c) putting prisoners in touch tl'!d by the courts. Our duty is to look after with the probation service and other exter­ them with humanity and to help them lead nal agencies. law-abiding and useful lives in custody and 22. To make arrangements as required for after release." prisoners' after-care. The statement was sent to every member It will be apparent that not everyone of of the service in a letter from the Director the individual functional elements will apply General.(see Annex A) to every establishment; but the function of The three statements provide the frame­ every establishment can be defined by using work within which managerial accountabili­ a combination of the relevant elements. It is ty is exercised. Each year the Regional for the Regional Directors and the Governors Directors, in consultation with their Gover­ concerned to select those which provide a nors, review and re-formulate the statement comprehensive statement of the functions of of functions of each establishment. It is the each individual establishment. responsibility of the Regional Director to The terms and tone of both these state­ take accow1t of both the Prisons Board's poli­ ments is essentially pragmatic; they were in­ cies and the local circumstances, including tended to be management tools and to that the financial and other resources available to end aspirationallanguage was avoided. The the establishment. He decides the level of aim was to define the task and functions in performance to be achieved with the such a way as to enable objective judgements resources available and it is for the Gover­ to be made about the quality of performance nor to use those resources as efficiently as without becoming enmeshed in a general de­ he can to carry out the defined functions of bate about such matters as the philosophy his establishment, to deliver the planned lev­ of punishment, the purposes of imprison­ els of service or activity (which are quanti­ ment and, more directly, the problem of as­ fied to provide baseline figures), and to meet sessing the effective delivery of rehabilitative agreed targets. ambitions which may otherwise be ex­ The statement of functions, together with pressed in imprecise, aspirationallanguage. the agreed and quantified objectives and tar­ These, of course, are vitally important mat­ gets, constitute what is in effect a contract ters of principle which under-pin both state- between the Governor and his Regional

189 EXPERTS'PAPERS

Director, regulating the way in which the es­ General and the Director General. The tablishment is to be run. When the statement Regional Director uses operational assess­ has been agreed it is published for the infor­ ment procedures throughout the year to mation of all members of the staff and co­ check the functioning of the establishment pied to the Board of Visitors. An important and to assess the progress being made to feature of this "contract" is that it cannot be meet the agreed targets. The Regional Direc­ modified by any third party, including head­ tor j,s accountable to the Deputy Director quarters staff, without prior consultation General (to whom he reports monthly) for the with the other two. Of equal significance is proper functioning of his establishments and the fact that the "contract" is not automati­ the Deputy Director General, who under­ cally nullified by a change of Regional Direc­ takes a full programme of personal visits to tor or Governor-in fact it forms an establishments, reports regularly to the important part of the brief given to each new Director General and monthly to the Prisons Governor on taking up his appointment. This Board. provides a degree of continuity in the con­ To summarise-the integrated manage­ duct of local affairs which did not previous­ ment and accountability structure which I ly exist because of the very natural tendency have outlined provides for each Governor to for each new Governor to want to impose his run his establishment in accordance with own policies and priorities; a process which agreed terms of reference, TNhich are did not find much favour with the staff who reviewed annually in discussion with his im­ had to implement the various changes in­ mediate line manager (the Regional Direc­ troduced by successive Governors. tor) who is a member of the Prisons Board The Regimes Management Unit (RMU) and able to take full account of current na­ provides assistance to line management in tional policies. Once agreed the terms of the planning of regimes and it maintains reference cannot be modified without consul­ links with the Directorate of Services to en­ tation. The chain of accountability is through sure that the available services are used to the Regional Director to the Deputy Direc­ best effect across the Service as a whole. tor General and the Director General. The The specialists in headquarters have a Regional Director uses operational assess­ responsibility for the maintenance of profes­ ment procedures to audit the Governor's per­ sional standards of regime services in estab­ formance and the Governor accounts for it lishments, but may not make adjustments to in his annual report. Taken together these' the agreed quantity of service without con­ arrangements are designed to provide a sultation with the Governor, the Regional framework of accountability for the effective Director and the RMU. Equally, any and efficient management of establishments. proposal by the Regional Director or the A similar accountability mechanism oper­ Governor to modify the agreed level of ates for all departments of the Home Office specialist support or regime service must be through a procedure known as the Annual discussed with the appropriate specialist sec­ Performance Review (APR), through which tion and the RMU before implementation. Prison Service Directorates, Division and The agreed statement of functions and the Regional Offices define their functions, give associated contract provides a bench mark an account of their performance in relation against which both the Governor and the to the objectives and targets set the previ­ Regional Director can measure the establish­ ous year, and set new objectives for the com­ ment's performance. The Governor, through ing year. his annual report, accounts for the discharge The APR and contract setting procedures of his establishment's functions through the form part of an integrated planning system Regional Director to the Deputy Director which applies to the whole of the Home

190 MANAGERIAL, ORGANISATIONAL INNOVATIONS

Office and which has been designed to se­ management procedures. He also receives a cure a better integration of resource and poli­ variety of reports from staff, prisoners and cy plannir1g by bringing together the visitors which help him to assess the overall financial and strategic planning processes. level of performance of his establishment. Each main department of the Home Office It soon became clear that these processes is required to produce a single planning docu­ were not sufficiently sharply focussed to ena­ ment towards the end of each financial year ble an accurate assessment to be made of the which reviews the progress made during the relationship between the agreed baselines year just ending, reports plans for the com­ and the actual perforn1ance. There was a ten­ ing year and, in outline, plans for the follow­ dency, familiar to all of us; for some aspects ing three years. of the daily operation of an establishment to This is the context within which the con­ come to the attention of senior management tract setting procedure in the Prison Serv­ only when breakdown had occurred or was ice now takes place. In considering the level imminent. This was a clear indication that of service to be provided and the improve­ there was a need for an objective and struc­ ments to be achieved in each establishment, tured management information system to account has to be taken of the financial and enable timely and informed decisions to be manpower resources which are to be made made. available, the service-wide priorities for the After field trials in two of the regions a sys­ coming year and any new initiatives which tem of monitoring was developed which ena­ may be launched during the contractual peri­ bles information to be provided to Governors od. The setting of priorities, which is such on a weekly basis indicating whether, and to an important element in the planning process what extent, some of the establishment's key at local and regional levels, derives from the functions are being delivered. Prison Department planning document Each Governor arranges for the various which is submitted annually to Minister. The section of his establishment to record the complete process constitutes an integrated daily details of regime services, activities or planning, management and accountability routines. Those accountable for the delivery structure for the whole of the Prison Serv­ of services and activities will have agreed the ice which is congruent with the procedures appropriate levels included in the contract to be followed throughout the Home Office. between the Governor and the Regional Director. Selected operational details such as Regime Monitoring the number reporting sick, the number of visits etc, are also recorded. The information An essential element in any system of is collated weekly on a monitoring form (see managerial accountability is a mechanism for Annex B) which enables the Governor, as monitoring and assessing performance. part of his routine management activity, to Boards of Visitors, the Inspectorate and review the data and plan accordingly. senior managers have always made, and con­ The level of monitoring is the minimum tinue to make, an important contribution to necessary to present the Governor with es­ this process. The operational assessment sential management information and it is procedure is a vitally important part of this based on data which is, or should be, readi­ process. At local level the Governor routinely ly available within the establishment. The monitors and assesses the performance of his process does not provide a measure of all the subordinate managers and staff through per­ regime activities, or even all aspects of the sonal supervisory visits and inspections, the selected activities, but it does give a clear in­ conduct of investigations, participation in dication of the performance of critical com­ consultative meetings and other local ponents of the regime and thus prompts

191 EXPERTS' PAPERS informed questions of those responsible for would secure better value for money. their delivery. In this way the system serves This was to be achieved by the provision the needs of local management and fosters. of an annual budget to each regional office personal accountability at all levels of the es­ which would then be responsible for allocat­ tablishment. ing a budget to each establishment in the The monitoring system is now fully sup­ region and for exercising managerial super­ ported by computers. The data is fed from vision and control over the levels of expen­ the separate reporting points into the estab­ diture. Pilot budgeting schemes were run at lishment's computer which generates a fac­ a number of establishments and at the same simile of the weekly mo~itoring form for the time all establishments were required to Governor and other institutional managers. operate a strict cash limit on prison officers' It is also capable of providing a range of overtime working. From April 1986 financial different tabulations and graphs, some of authority was delegated to Regional Direc­ which enable comparisons to be made over tors, and through them to Governors, for all time. The computer system also transmits pay-related expenditure and for the general the data to regional offices where it is used and administrative expenditure involved in to assist with the regional oversight of estab­ running their establishments. lishments. One effect of this process was to make Initially there was some scepticism about governors and their staff very much more this process and some doubted that the conscious of the financial implications of results would justify the time and effort management decisions and local procedures. needed to set up the necessary local proce­ An attempt in 1976 to reduce expenditure by dures. With these reservations in mind the controlling overtime working through the system was designed to be simple, reliable, budgetary control of hours, had been thwart­ as factual as possible and, above all, helpful ed by industrial action by prison officers but, to local management. As a result the system as soon became clear, the imposition of cash has been well received and it is now regard­ limits was a ouch more effective control ed by most Governors and other local mechanism. Very quickly all grades of staff managers as a valuable aid to the effective who had never before given serious thought management of activities in establishments. to the matter became acutely aware of the cost of routine activities such as the escort­ Financial Devolution and Control ing of prisoners. Accountability forfinancial expenditure is now firmly established as part The accountable management structure in­ of the normal management process sum­ troduced in 1984 was a logical consequence marised in diagrammatic form at Annex C. of a series of managerial studies and initia­ tives in the wake of the May Committee's Industrial Relations Report and it gave effect to the principles of the government's Financial Management In­ An unintended, but not entirely unexpect­ itiative. At about the same time as the ed, consequence of this initiative was to in­ management structure was being devised crease the level of industrial relations tension and refined, a more explicitly financial con­ in many establishments and between the Pri­ trol system was being developed along the son Department and the National Executive lines suggested in the May Report. The ob­ of the POA. ject was to create a system of financial con­ The introduction of strict financial controls trol through which governors could be held coincided with an unprecedented surge in the directly accountable for the resources they prison population which, in 1985, rose to a managed with the expectation that this peak of 48,100 and an annual average of

192 MANAGERIAL, ORGANISATIONAL INNOVATIONS

46,600: more than 2,000 above the resource tendance in operation-both were complex, planning assumptions. The effect was to difficult to understand and, to varying greatly increase the demands on the staff in degrees, dependent upon overtime working establishments and, because of the need to for their proper functioning. In their evi­ divert staff to deal with the increase in court dence to the May Committee, the Prison and escort duties, the regimes in some of the Officers Association (POA) said: "The exis­ overcrowded establishments suffered ac­ tence of two systems in the same service is cordingly. unsatisfactory and divisive both in terms of For many years the Prison Service had re­ staff morale and the treatment of inmates. lied on overtime working to close the gap be­ For these reasons i~ is the policy of the As­ tw(:;en the number of staff available and the sociation that there should be a single atten­ staff required to man the establishments. dance system, flexible enough to be adapted Most of the staff welcomed the opportunity to differing penal regimes. . . . " The May this provided to supplement a relatively low Committee agreed. basic wage but dependance on high levels of Shortly after the publication of the May overtime led to personal problems for many Report the contractual arrangement where­ members of staff and their families, over­ by prison officers could be required to work exertion and inefficiency at work and poor up to 10 hours overtime per week at the be­ staff/management relationships. Staff reli­ hest of management, was substituted by a ance on overtime earnings also led to the voluntary overtime agreement. This did not, manipulation of attendance systems, work al­ nor was it expected to, reduce the level of locations and manning levels to such an ex­ overtime working (which by 1985 had risen tent that increases in the levels of staff in to an average of 16 hours per week) but it establishments did not usually result in a gave prison officers the right to regulate their reduction in the level of overtime working. overtime working and to decide not to work It was not only the informal mechanisms any overtime at all if they so wished. Be­ which operated to maintain the same levels cause staffing complements had been agreed of take-home pay; in many cases local on the (not unreasonable) assumption that management used the additional staff to im­ staff would continue to work overtime, and prove the regime or to undertake particular because the systems of attendance were projects such as staff training which had not overtime dependant, it followed that if suffi­ previously been possible. In a few cases lo­ cient officers chose not to work extra hours cal managers avoided conflict with local it would not be possible to maintain the trade union officials by letting such matters prevailing level of activity in establishments. take their own course. There were many, at Procedures were therefore devised and all levels in the Prison Service, who took the agreed with the POA, to ensure that staff at­ view that to impose rigid financial con­ tendance did not fall below minimum safe straints at a time when the prison population levels. This chal1ge in the contractual rela­ was rising and the demands on staff were in­ tionship greatly strengthened the bargaining creasing was both unreasonable and unwise. power of the prison officers and it was used On the other hand, at a time when public ex­ selectively and very effectively in a number penditure was severely limited and tightly of local disputes. Most believed that pri.son controlled, the Prison Service fared better (in officers would not use this power to the point terms of financial resources) than almost ev­ of hazarding the security and control of es­ ery other part of the public sector. tablishments. Eventually however, that is At the time of the May inquiry the aver­ precisely what they did. age level of overtime working was 12 hours In 1986, in the course of an industrial dis­ per week and there were two systems of at- pute about the related issues of cash limits,

193 ------~------

EXPERTS'PAPERS efficiency targets and management's right to ing and pay: to recommend improvements determine staffing levels, the POA imposed and to devise an implementation plan. The a total overtime ban and unilaterally with­ study began in October 1985 and a report drew from all national agreements. This con­ was submitted to the Prisons Board in April tributed significantly to an increase in the 1986, though by then the main elements level of unrest in establishments where in­ were known to, but not initially 'Ne1comed mates had already been made fearful that by, some members of the Nati(,'.1~l Executive financial constraints would lead to regime Committee of the POA. restrictions and more time spent locked in The team echoed many of the criticisms their cells. The result was the de-stabilisation made by the May Committee and identified of a large number of establishments. There a number of other short-comings. They con­ were outbreaks of disorder, of varying cluded that the service required responsive degrees of intensity, in at least 46 establish­ and flexible systems for organising work, ments: one prison, which was extensively manning and staff attendance; improved damaged by fire and rioting, had to be evacu­ management systems and the removal of ated and was out of commission for several overtime dependency through new pay sys­ months. Others were seriously damaged but tems designed to encourage efficient work­ remained operational. During the course of ing practices. A comprehensive package of the disturbances 45 inmates escaped and detailed proposals for change was developed over 800 places were lost as a result of fire and within three months was announced to and other damage caused by rioting the service under the generic title "A Fresh prisoners. Fortunately no lives were lost and Start." A comprehensive programme of con­ there were few injuries to either staff or in­ sultation with the Prison Service unions was mates. It could so easily have been started immediately. otherwise. The general aim of the Fresh Start Although this was the most serious, it was proposals was to introduce new working ar­ by no means the only occasion on which in­ rangements that: dustrial action had been taken by the POA. Over the last decade there have been numer­ i. matched the work requirements of the ous occasions when local and limited action establishment and were responsive to has imposed serious constraints on manage­ changing pressures and demands; ments' ability to manage, particularly in re­ ii. enabled managers to manage more ef­ lation to the use of accommodation. Large fectively; numbers of prisoners have been denied en­ iii. promoted a sense of unity, purpose and try to prison and have had to be accommo­ responsibility; dated in police cells as a direct result of iv. provided the basis for the enhanced industrial action by the POA. delivery of regimes; v. increased job satisfaction through a A Fresh Start reduction in the hours of attendance and provided more continuity in the al­ One of the ways in which management location of work; sought to improve the industrial relations cli­ vi. provided greater predictability of at­ mate was to consider how the working con­ tendance, clearer lines of accountabil­ ditions, pay and general conditions of service ity and a clearer definition of roles and of prison officers might be improved. responsibility. Management consultants were hired to work with prison service personnel to conduct a The focus of change was on group work­ study of systems of attendance, complement- ing with terms of staff working to personal

194 MANAGERIAL, ORGANISATIONAL INNOVATIONS systems of attendance and having shared over a five-year period at the end of which responsibility for meeting group objectives; all officers would be working only 39 hours with the work grouped into areas of respon­ per week. sibility and carried out by teams of officers After months of negotiation and consulta­ accountable to individual group managers. tion during which some of the original Governors, assisted by regional teams were proposals were modified and refined, the required to review their local management Fresh Start package was accepted by a large structures to facilitate the introduction of the majority (about 80%) of the prison officers new systems of working. The key issues after a secret ballot in May 1987. The roll­ which had to be considered throughout the ing programme of change to the new systems process were the integration of security, in­ of working started in July 1987 and by April mate care and control; the fullest possible 1988 110 establishments had made the tran­ delegation of responsibility for work; the sition. By this time a saving of over 13% in fostering of staff/inmate relationships and the use of staff hours had been achieved. In the active encouragement of the concept and one or two establishments there were oper­ practise of group working. ational and industrial relations difficulties The reviews were carried out in the con­ which delayed the change-over to the new text of the agreed functions, priorities and system of working, but well before the end targets. The task of each Governor was to of the year all had made the change. identify what work had to be done to deliver Arrangements were made for an early the functions of the establishment; combine evaluation of the way the changes were bc· work related activities into functional blocks; ing implemented, with particular emphasis determine work groupings and consider the on the extent to which there was a clear need for intermediate levels of management sense of purpose, on the progress that had between the Governor and the group been made to set up clear lines of accounta­ managers. Governors were advised that bility and on the changes that had been made there should be as few intermediate levels to the way staff were deployed to work. In as possible and that there should be clear view of the speed with which such far reach­ functional lines from the bottom to the top ing changes had been introduced it was not of the organisation.(see Annex D) surprising to find that the rate and extent of Other structural changes proposed in the progress varied widely: It was clear that not Fresh Start package were the unification of everyone had realised the full implications the governor and prison officer grades, a of the new approach and, in particular, had reduction in the number of Prison Service not understood that the progrC',mme of grades from ten to eight, new recruitment ar­ change was a long-term process rather than rangements and a review of management a single event. training. What was required was a fundamental Perhaps the most important element of the change in attitude and a radical departure Fresh Start initiative was the requirement from the traditional approach to the organi­ that the overtime dominated pay system, sation and management of work in establish­ with its many different allowances, should ments. Such changes take time to achieve be replaced by a simplified salary structure and sustained commitment is needed if the with much improved basic and pensionable potential benefits are to be delivered. Follow­ pay. The proposal was for a 39-hour work­ ing the evaluation, which was based on a ing week with an option to work an addition­ detailed study of a repr,;sentative sample of al 9 hours for which a special fixed allowance ten establishments, additional management would be paid. The additional contracted training was provided and support teams hours would be reduced, without loss of pay, were set up to assist Governors and their

195 EXPERTS'PAPERS

management teams to tackle some of the to go, there are signs of an increase in job more difficult problems associated with the satisfaction, an improvement in staff/inmate process of changing well established but out­ relationships and a much reduced level of in­ moded attitudes and methods of working. du~trial relations tension. It will be some This demanding and complex prOL:ess of years before all the benefits to management, change started at a time when physical and staff and inmates are delivered but a great manpower resources were under great pres­ deal has been achieved in a relatively short sure from the rising prison population and time and in very difficult circumstances. Few many establishments had to cope with in­ would now want to return to the conditions creased levels of overcrowding. In a number of service and working arrangements which of establishments the level of overtime work­ caused so many problems for so many years. ing had far exceeded the nine contracted The most recent evaluation of the Fresh hours which was the new limit for each Start measures has shown that there is still officer. Although some efficiency savings a lot to be done and has confirmed how im­ were made on the introduction of the new portant it is that the work of an establish­ management and working systems, they ment is clearly defined and fully understood were not always sufficient to make good the by every member of the staff. The statement shortfall in hours and in some places the of functions! the targets for improvements previous level of regime activities could not and the associated contract between the be maintained. However, there were some Governor and the Regional Director is at the compensating improvements and, whilst heart of that process. Work has already be­ there are still many resource problems to be gun to make it more relevant to all who work solved, some regimes are being gradually re­ in the establishment and to help the gover­ stored and developed as everyone becomes nor to match the work of the establishment more accustomed to the new working ar­ to the available resources. rangements and staff are deployed more ef· So far I have been concerned to describe fectively. changes in organisational structure and The Fresh Start initiative marked a radi­ management techniques and procedures. cal departure from long established methods The purpose of those changes has been to of working in establishments and introduced improve the efficiency and effectiveness of a package of measures to deal with many of the Prison Service. It is, perhaps, timely to the problems which had their origins in the ask the question-"To what end?" days of the Prison Commission. The main The statement of purpose, the definition constituent elements of the Fresh Start pack­ of the task of the Prison Service and of the age were: a new organisation, management functions of establishments, which I . and accountability structure for establish­ described earlier, together serve to provide ments; a new approach to the organisation an answer to that question and to place the of work and the deployment of staff; the inmate at the focal point of managerial at­ unification of governor and prison officer tention. It is important to maintain that fo­ grades; the abolition of overtime working; cus and not be beguiled into behaving as if the introduction of an improved salary struc­ the development and refinement of manage­ ture and a number of other improvements in ment systems is a sufficient end in itself. the general conditions of service. There are those for whom that may be a per­ With relatively few exceptions manage­ fectly respectable and appropriate objective ment and staff have welcomed the changes. but I suggest that prison managers and ad­ Staff who formerly worked very long hours ministrators need to maintain a wider profes­ now enjoy more free time without financial sional perspective. The title of this training penalty and, although there is still a long way course reminds us that what is important is

196 MANAGERIAL, ORGANISATIONAL INNOVATIONS the way we treat offenders in custody. With accommodation and it also provides an up­ that in mind I now want to end with a short portunity to develop regimes appropriate to account of recent changes which have a the needs of different offenders. direct bearing on the treatment of offenders Separate accommor1ation is provided in under the age of 21. discrete units or in separate establishments for the three groups of offenders; juveniles The Sentencing and Custodial (aged 14 to 16 years) with sentences of up Treatment of Young Offenders to 12 months, young adults (aged 17 to 21 years) serving sentences of four months or Before 1982 Young Offenders (those un­ less and young adults who have been sen­ der the age of 21) could be sentenced to one tenced to longer than four months. These of three forms of custodial treatment: a term categories are not rigidly applied and accom­ of borstal training, an indeterminate sen­ modation can be used to meet the special tence of between six months and two years; needs of particular inmates e.g. a very im­ a term, normally not exceeding six months, mature 17 -year-old can be placed with in a junior or a senior Detention Centre ac­ juveniles if that seems appropriate to his cording to age; or, subject to a number of needs. All juveniles and those young adults statutory restrictions, a term of im­ sentenced to four months or less are sent prisonment. direct from court to the young offender in­ The Criminal Justice Act 1982 abolished stitution and no longer held with adults in lo­ borstal training and imprisonment for cal prisons. Young adults sentenced to over offenders under the age of 21 and substitut­ four months first go to an allocation centre ed a sentence of Youth Custody. Under these in a local prison for observation and assess­ arrangements a juvenile offender (one aged ment before being sent to a suitable young 14 to 16 years) could be sentenced to a term offender institution. If there are not enough of detention in a junior detention centre for young adults committed direct from court to a period of four months or less; an offender fill the short sentence institutions they are aged from 17 to 20 years could be sent to a topped up by the transfer of those who have senior detention centre for the same period; been sentenced to more than four months but and young offenders aged from 15 to 20 by them have little time left to serve. years could be sentenced to a term in a youth Rule 3 of The Young Offender Institution custody centre for any period in excess of Rules 1988 defines the aims and general four months. principles of young offender institutions in The Criminal Justice Act 1988 substitut­ the following terms: ed a single or "unified" custodial sentence of detention in a Young Offender Institution 3-(1) The aim of a young offender institu­ for the previous youth custody and detention tion shall be to help offenders to pre­ centre sentences. Young male (but not neces­ pare for their return to the outside sarily female) offenders continue to be sepa­ community. rated according to age and sentence length, (2) The aim mentioned in paragraph (1) but this is now an administrative rather than above shall be achieved, in particular, a sentencing decision. The courts impose the by- (a) providing a programme of ac­ length of sentence considered appropriate tivities, including education, training and the Prison Service decides where that and work designed to assist offenders sentence will be served, taking account of to acquire or develop personal respon­ age, sentence length and the need for a par­ sibility, self-discipline, physical fit­ ticular regime. This has the obvious advan­ ness, interests and skills and to obtain tage that better use can be made of available suitable employment after release;

197 EXPERTS'PAPERS

(b) fostering links between the resettlement; and that there should be effec­ offender and the outside community; tive co-operation between the staff of the in­ (c) co-operating with the services stitution and the supervising services or responsible for the offender's super­ anyone else who is concerned with his reset­ vision after release. tlement. The supervising service is primari­ ly responsible for maintaining links between Because juveniles serve a maximum of six the offender and the outside community and months (with full remission) they have a simi­ is responsible, in co-operation with the staff lar regime to those young adults serving in the institution, for liaison with any medi­ short sentences. This is btised on the previ­ cal, educational or welfare services which ous detention centre regime and provides a have a continuing interest in the offender. brisk induction period, modular education or All young offenders released from custo­ training tailored to a short stay and a dy are subject to supervision unless by the programme, which starts immediately, to time of their release they have reached the prepare the inmates for release. Inmates un­ age of 22 years. The period of probation or der school leaving age must receive a mini­ social services supervision runs until the date mum of 15 hours education a week and in on which the sentence would have expired practice all juveniles are given the opportu­ if no remission had been granted, subject to nity to participate in the same education a minimum of three and a maximum of 12 programme. The regimes for those with months, and always subject to expiry on longer sentences are based on the borstal and reaching the age of 22 years. Breach of su­ youth custody training regimes with an em­ pervision is a criminal offence punishable by phasis on the personal development of the a custodial sentence of up to 30 days or a fine offender and an integrated approach to of £400. throughcare, taking account of the time to The new custodial arrangements for young be spent in custody and the need to prepare offenders became effective on 1 October for both release and the pod-release super­ 1988. Initial implementation posed no seri­ visory period. ous problems, though some tactical manage­ At the start of his sentence the inmate is ment and procedural changes were assigned to a personal or group officer who necessary to accommodate the new young will be his first point of contact and who will offender system. The regimes, while not yet play an important part in the preparation of fully developed, are based on the facilities his sentence plan. Personal officers are given which were in existence under the previous opportunities to talk to the inmates assigned legislative structure. There is still a lot of de­ to them about their offence and its conse­ velopmental work to be done before the aspi­ quences, they help them to adjust to custo­ rations of the aims and principles described dy, assess their reactions to it and identify in the statutory rules are fully realised. The any welfare problems. The personal officer resource and organisational implications of is responsible for ensuring that the supervis­ regime developments will be dealt with in ing officer in the home area is kept informed the context of the contract setting procedure of the inmate's sentence plan and his and the actual performance will be monitored progress throughout the sentence. by Regional Directors. The management The main objectives of throughcare are to machinery is now in place to enable informed ensure that the offender maintains links with decisions to be taken in relation to the allo­ his family and with the community from cation and use of resources for major initia­ which he comes; that the period of custody tives of this kind. is not an isolated experience but one related to his previous behaviour and his future

198 MANAGERIAL, ORGANISATIONAL INNOVATIONS

Conclusion tively and efficiently to achieve the goals of the organisation. The pUblication of the May Report start­ It is now almost ten years since the organi­ ed a cycle of change which began with the sation of headquarters and regions was last re-organisation of the headquarters and reviewed. Since then there have been many regional structure, continued with the in­ changes in establishments, in accountabili­ troduction of the integrated system of ac­ ty structures, in information technology and countable management, and was completed in the size and complexity of the prison sys­ with the introduction of the Fresh Start in­ tem. A new review of the organisational novations. The cycle has been completed but structure of headquarters and regions has re­ the process of change has not yet ended, nor cently been launched and so the search con­ can it ever end. Organisational structures tinues for improved efficiency and and management procedures need constant­ effectiveness in the custodial treatment of ly to be re-evaluated and refined to ensure offenders. that they are relevant and are working effec-

199 EXPERTS'PAPERS

HomeO/fiu Annex A NUMBER 4 .. 14 NOVEMBfR 1988

IJ

To all members of the Prison Service

Dear Colleague During my time as Director General the The statement is being given 10 Prison Sorvice has not had a simple and everyone in the scn'ice through this motivating statement of purpose. Now leuer and, for the fuwre, as they join. It that the Fresh Start change. are in place will be prominently displayed the Prisons Board thinks the dme is throughout the Service. It will b. right to make such. slOtement. so that placed in our recruitment brochures all members of the Service hal·e. and .nnual reporu. common undemanding of and commitment to its purpose.

Her Majesty's Prison Service serves the public hy keeping in MeSSAGe custody those committed by the courts. Our duty is to look after them with humanity and to help them lead fR 0M law-abiding and useful live. in custody and after release. J hope this speaks for itself. But I w.nt • to 'ee that they are not subjected to to draw nut some points. arbitrory force or discriminated against on raci.1 or any other We are and are proud to be 3 Crown grounds, are trealed with respecl. );. THe Service, properly fed. and hBl'e their physical and other requirements properly We serve our fe!low dti.e"s. That met. makes u., accountable to them for what we do and how we do it: for the way we • to do all we can to help them lead treat prisoners and how we use the l.w·abiding and usefllilives. That OIRcLTOA resources which Parliament provides. applies not just Cor the future, aCter release, but also while a person is in The most severe step. cOUrt can take is prison. The dUly of care is to depril'e people of their liberty. Our di,ch3lged and custody secured most part il\ the criminal jUSlice system is to surelv when the life of. prison is give erfect to the court's deci,ion: the regul~r - when prisoners are fully, GfNfRAl Service exist. to keep people in lawful actively and constructively occupied. cu.tody. Each one of us, wherever we work, has a By iu "ery nature locking people up part to play in making sure the Service under the criminal law places two m.tches up 10 the challenge which this dUlie. on us all: . purpose sets us.

Yours sincerely c..y~

CjTRAINCB

200 Annex B

HM Week commencing Week number GOVERNOR'S WEEKLY MONITORING Average Daily Population Highest unlocking llgure Number of new inmates

1. Inmate Inmate. Hours Inmates Involved Operating Hours 3. Routin~s Completed Comments Occupation Actual/Planned Actual/Planned Actual/Planned -Note dates & effects of any disruption Daytime 0 Canteen Education ~ ~ r------~ 0 Exercise vrCourses ~ ~------0 Association CIT Courses ------~ r------0 Bathing ~ ----- Kit Change 0 I:;0 Works ~ ------~ r------0 Inmate mail PSIF 0 Library -~ Workshops ------r------o ~ 0 Visits Fann -----,,------r------··- ~ ~ 4. Other Imticators ~..... Gardens ------~ r' Weekly totals (J) Libary use !l> Kitchen --- ...:j ~----- ~------~ r------Official visits --- of-! Other Domestic visits --- Z Domestic ~------First report sick ___ IncI __ Special sick Work ~ ~ Petitions completed ___ F; Induction ------~------Fs256 completed __ Incl __ BoV ~ ~ Other [al _____ Other o~ (Specify) ------~ ~------Other [bJ _____ Number not. allocated to occupations (Section 1) ;: ~tl,er ~------j Occupation ~------Daily average --- o 2. Other lnrnate Hours Comments 5. Operational Comments z Activities Actual/Planned. ------Breaches in security, incidents, problems with catering. etc (J) Physical Education ~ r------Evening Education r------Chaplaincy 6. Hours Out of CelI- Daily average (when sampled) Activities ----- r------Weekday c:J Weekend CJ Location

~ o ------i-" !:'V Emerging Management Models in the Prison Service Annex C o N [A] Governor's Accountability

CIRCULAR INSTRUCTION Resources, budgets 55/84 ESTABLISHMENT / Structures, methods ~ ESTABLISHMEN"T GOVERNOR'S PRISON SERVICE ---+ FUNCTIONS PERFORMANCE ACCOUNTABILITY TASK \ Targets, priorities / I j :IONS including

EFFECTIVENESS EFFICIENCY ECONOMY ~ ~ Maximising cost ~ Achieving what is Doing it less (f) planned - effectiveness or expensively Value-For-Money

l'

I GOVERNOR'S TRADITIONAL POPULATION MANPOWER WEEKLY (REGIME) FUNCTIONAL MANAGERIAL MEANS MONITORING MONITORING MONITORING COSTING SYSTEM Governor's Rounds, Characteristics, Inmate Occupation, Use of Hours, Complaints, BoV, Local Budget Data, Throughput, Time Out of Cell, Complementing Operational Assessment, Costings Accommodation Routines (SPAR) etc. (LIDSIIIS) Operational Data I I L --- Rick Evans, Midland Regional Office, August 1987 80£;

... Dogs •I i i I 0 i I I "tj I I I Communications I I I tzl Gate .:.. I I I r I I I ~ Security Intelligence T I I-j l' I I Police Liaison ~ I 0 Reception i T - I Z Escorts r I I CIl I Externals ! I I I I I I I I I I I i'" A Wing I tzl r I til B Wing I .... i 0 C Wing 1 i tzl DWing ,.. Z I "Special Wing" rI ::l Applications I T I I > I I t"" Probation Team I "~ T I +I I I I I I ADJSEG c til ..... 1 I !!l. tzlZ o CA i"'a:: Bathing Kit ~ r .i. I I ~ ::;~ Canteen ~ I o· Exercise ::s gtzl 1 1 o til Visits ..... Catering 1 i (") I I I ::J' I I I Q) I I I I I I ~ I I I til a:: I S· tzltzl 42 Bed Hospital , I Ie 3 Full-Time MOs r r I I ~SZ ~ I I I -('l Visiting Specialists I I 1 ('l> j i I » Barrier NUrsing Unit r ~t"" I I I Q) I I I ... I I I Ie I I I CD I I I I I I m > ..... Education 1 1 1 ~ i I I I S!: ('l~ Library I L iii' ::l> Chaplaincy i I ::J' ~ T 1 t I i"''"CZ Admin, Support I Supplies .:.. .. I I ::;0> I I ('li"'G) Cash Pay ~ T tzll-jtzl T I til Staff Personnel .1 I a:: I I tzl LT. I J. I Z I I I I I-j I I I I I I I I I I I I I I I I I I I I I I I I til=:: I I I I I I I I I I tzlo Rebuilding Project I I i"'i'" I I I I ::;X Maintenance ,.. I ('ltll I 1 r I r tzl Quarters til

=:: eG) e- o t}... eir § (3 § ~ ~ rT O> ~ g- OQ'O ~ S ~5' co co co ~ ~ OQ O! co O! t! ;;;.Q. Q ~ ~ ....

SNOUV AONNI 'IVNOUVSINV8tIO ''IVUI3DVNVW Illustration of Charting - A Small Establishment Annex t-.:l D2 .....o ------t------Govemer

------.------f------~------+------~---

Intermediate managers

All allocated elsewhere on '- grounds of size and coherence tr:l Group ~ .------~------~------~------~---~-~-~------t-- managers tr:l ,....,~ ~ '"d ;J> ----~--k-~-_.-~-~-+--~-+__;--r-~--t------_+_----__ -; __ ~-~-~-t-~-_;-1--t_~------~--+_-Firstline '"d managers tr:l en~

._--... -.-001-.. -... -... -.. --.... -...... --- ______.... ______...... _+.-.-...... _.... _.. _4 ____ 4------~-- .... -Working level 1 ~ 1 1 .1 1 1 1 cu u ::: .... ;;:: ·2 .... ~ ~ o ., u :::> ..::: "0 :::'" OIl ::: ;;'" 00''" cu ~ .~ .E ::: .s ~ o ~ o ~ -:;; 0 .s .. ., '" U Po. Co 0 Po. ., u .0 > ::: cu >. Co 0 OIl u ·a'" ..... o u ::: ::: ·2 ~ 0Ilr:l:; ~ ~ § ~ ~ t5 ;::I ~ ('.lC"") ~= ._~~!:I, :0 ~ cu -;; .S I-t ~ ~.o .2 - cu E ~ 0 ~~~~C1)~ q.~~ ~E .- °2 ~ - cu .8 .;;;2 ·u cu .- .0·5 ._C -:;; E ., ::: ;::1;::1;::105.0. ~E;~B ·5 5 .;;; 8 g; 0 "0 Co -.. cu 000:':; 0 c. .. ~~.-tiJfo ""C I-t CIJ ::t ., .. Cl U Po. ;;: til U til ~~~Po.~< >U~~Po.Po.U <~O:::tIl 0::: ::s OPERATIONS RESIDENTIAL INMATE MEDICAL INMATE MANAGEMENT WORKS SERVICES SERVICES ACTIVITIES SUPPORT SERVICES SERVICES Some Thoughts on Correction within Penal Institutions

by Chan Wa-shek *

Introduction increasing serious crime, they are grappling with questions such as what type of conduct For the varying periods that the prison has should be criminalized and what kinds of been used as an agent for the reform of sanctions would be effective for those who offenders in different countries a great deal are crimina1ized. of concern has been expressed about its ef­ ficacy. This is particularly so in the United The Just Desert Model vs States of America, where most of such Eng­ the Rehabilitative Ideal lish Language literature has originated. Ever since the 1960s and 1970s, when a number The idea that offenders should be made or of academics published critiques on the fail­ helped to reform is itself not new. Bridewell ure of penal institutions to correct 1, the pris­ Place in London was converted into a partly on has come under a series of attacks. Whilst reform-oriented prison in 1555, and in 1576 the more extreme call for its total abolition 2, Queen Elizabeth I required by law the estab­ others have advocated the "just deserts" lishment of houses of correction in every model to replace the "rehabilitation" ideal 3. English county. In 1596, the Dutch operat­ In Europe too, correctional services of ed the first institution for male offenders, and many' countries have also faced a crisis of the first institution for female offenders fol­ purpose and direction. In the United King­ lowed soon after, The St. Michael House of dom, the question of control and dispersal as Correction for boys commenced operation in well as the physical state of many of their Rome in 1704. The image, albeit somewhat prisons have come under severe criticism ambiguous, that offenders were people who and are said to seriously undermine the re­ were susceptible to change and who could habilitation objective. The French, likewise, choose between good and evil began to de­ began to address the practicality and utility velop during that period, and the rehabilita­ of a purely rehabilitative regime and, by the tive ideal received substantive support from early 1960s, directed much more attention the 1880s to the early 1960s. to making correctional institutions more se­ In a nutshell, the rehabilitative ideal sees cure. This latter emphasis was heightened offenders as patients requiring treatment for even more following a series of prison riots their aberrance. Sentencing involves the un­ in the 1970s. Even in countries such as Swe­ derstanding of the underlying disorders on den, Denmark and Holland, where the effort the part of the offender which are believed at penal reform is generally looked up to by to precipitate his criminal act, and the intro­ other countries, the results have not been re­ duction of a therapeutic process through garded as satisfactory, notwithstanding the which the offender can be treated. fact that tremendous improvements and in­ When put into practice this ideal general­ novations have been achieved in decriminali­ ly caused jurisdictions to move away from zation and prison conditions. In the face of imposing a determinate sentence. Instead, offenders found themselves being given in­ determinate sentences, sometimes with a * Commissioner of Correctionai Services, Hong Kong minimum and a maximum and in some juris-

205 EXPERTS'PAPERS

dictions a maximum only. Others who were "rich and important concept, grounded in deemed not lo require confinement were ideas of fairness." 6 No sanction greater than placed on probation or given other forms of that "deserved" by the crime for which the punishment that allowed them to remain in offender is being sentenced should be im­ the community. posed. The offenders who received an indeter­ This model does not suggest the abolition minate sentence were left in the hands of cor­ of attempts at treatment such as education, rectional experts, and programmes were de­ vocational training, councelling and release vised through which it was believed these on licence. Instead proponents call for a more offenders could be rehabilitated. The time honest admission or a recognition of the they were released was often not decided by limits these measures can achieve, as well the court but by these experts in an admin­ as a more sincere and professional effort in istrative procedure. There was frequently a the implementation of such programmes. period of aftercare or supervision following release. How Asia May Respond to the Shift Critics of the rehabilitative ideal began to raise a number of points to challenge its ef­ There is no doubt that exposure to things ficacy in the 1970s. For example, in 1975, Western are ever on the increase for us in Lipton, Martinson and Wilks published their the East. The development of information findings of a six-month sea.rch of reports in technology is partly responsible for this. The English from 1945 to 1967 which related to other reasons include an increasing number attempts at rehabilitation and which were of professionals studying in Western coun­ methodologically acceptable. They conclud­ tries, and academics from the West travel­ ed that: "With few and isolated exceptions, ling to the East spreading their thoughts and the rehabilitative efforts that have been re­ writings. Such exposure is not necessarily ported so far had no appreciable effect on bad or detrimental to our communities, recidivism." 4 Many other social scientists provided that we remain level headed, and have also expressed their disenchantment critically examine whatever is thrust upon with rehabilitation. 5 These coupled with a us. period of strikes, riots, escapes and other dis­ In the field of corrections, whilst we all turbing occurrences in prison in a number of may encounter problems with overcrowding Western countries led the public to demand or staff shortage or finance some of the time, prison reform, and the authorities to take on the whole we in the East have maintained steps to attempt to improve security, control penal institutions with much better discipline and order within penal institutions. The "just and control onto which we can add measures deserts" or "justice" model is the natural which help and encourage offenders to re­ consequence of such sentiments and activi­ form. It is therefore important that we should ties. not be overwhelmed by the rhetoric of the The justice model reaffirms the aims of rehabilitation vs justice debate, but that we punishment, calling for penal institutions to learn from it to choose a constructive course be made more secure for the protection of of action that may further enhance the effi­ the public and safer for the inmates. Propo­ ciency of our efforts in correction. In order nents seriously question the wisdom of the to achieve this I suggest we proceed to ex­ indeterminate sentences, and call for deter­ amine some of the main conditions which minate sentences with imprisonment only for promote rehabilitation, and those which in­ necessary cases. As two writers have put it, hibit it. they distinguish the difference between vengeance and desert, the latter seen as a

206 CORRECTION WITHIN PENAL INSTITUTIONS

Conditions Which Promote traits to emulate. Only in a penal system Rehabilitation where discipline is firmly and fairly main­ tained, where infractions are quickly and (1) Discipline in Penal Institutions sharply dealt with through legitimate venues, Simon Dinitz gave a vivid and disturbing and where inmates can pursue their daily le­ description of violence in American prisons. 7 gitimate activities free from the threat of har­ He traced the series of riots from World War assment and violence can we begin to talk I to the 1970s which periodically seemed to about helping them to reform. coincide with, or were consequential to, re­ There should therefore be clear rules and form of prison conditions, the introduction regulations to guide prisoners on their con­ of counselling, the prominence of the re­ duct during imprisonment, statutory proce­ habilitative movement and the increase of ju­ dures to govern the authority when dealing dicial interference in prison treatment. There with breach of discipline, explicit provisions has increasingly been an obvious hostility for punishment when the case is proven and, towards authority and control, in spite of the finally, an appeal procedure to guard against strides towards better recognition of the arbitrary decisions in the disciplinary proc­ rights of prisoners, the increase in therapeu­ ess. Staff must be trained to use only the le­ tic activities and proliferation of treatment gally prescribed measures in enforcing dis­ professionals within the walls. It appears that cipline, and management must set an exam­ the move to ease the pains of imprisonment ple by not departing from such statutory and to ameliorate the undesirable conse­ authority when dealing with infractions. For quences of incarceration that social scientists punishment to have maximum effect, the such as Gresham Sykes described (the dep­ whole process must take place as soon after rivation of liberty, of goods and services, of the incriminating act as possible, and in or­ autonomy, of security and of heterosexual re­ der that justice is seen to be done, independ­ lationships, etc. 8) have started a movement ent bodies must be allowed access to all re­ to be not only more humane, but also more cords and documents relating to a case. I permissive in the treatment of prisoners, to cannot over-emphasize the importance of the extent that judicial and other interference firm and fair discipline as a basis for reha­ in prisons have been exploited by the in­ bilitation. mates to seize control and turn the table on the keepers. Prisoners' labour unions are (2) A Practical Routine formed, and internal management and nego­ Most correctional systems devise a routine tiation bodies are set up on the advice of to regulate activities in a particular institu­ some enlightened social scientists and tion and I do not believe I need to elaborate reformers. These are quickly utilized by on this subject, other than to point out that some prisoners to usurp power and turn a sensible and practical routine allows ad­ penal institutions into hunting grounds for ministrators, staff and prisoners an orderly the same kinds of predatory activities which and well distributed schedule within which they were engaged in before their imprison­ activities which may contribute towards re­ ment. form can be planned. A routine is, of course, When prisoner power reigns and prisoner also necessary for manpower and time utili­ groups challenge authority, attempts to re­ zation planning. habilitate do not become effective even if a genuine effort is put into them. A lawless sit­ (3) Sufficiently Refined and Accurate u<>tion in prison reinforces the norms and Classification values in the criminal world, and qualities Many correctional administrations in the such as toughness and aggression become world have their own system of classification

207 EXPERTS' PAPERS to separately manage different groups of For a rehabilitation programme to even offenders according to sex, age, and, most have the right start, it is imperative that both commonly, the threat they pose to the com­ the management and the staff at all ranks munity and the degree of security they re­ and in all their own specialties must be com­ quire. Some may differentiate between first mitted to see its implementation. This is offenders and recidivists, but not all classi­ often easier said than done. For one thing, fy them according to psychological or per­ senior officers in management positions may sonality types or the kind of treatment or ac­ feel more comfortable in their status quo, and tivities which may benefit them the most. ideals of treatment may pose, for them, the If we put an emphasis on rehabilitation, threat of liberalizing penal measures and a then we must go further than security cate­ relaxation of control and security. The tech­ gories and identify, through fact-finding, in­ niques themselves are in many instances terviews and investigations, exactly what alien (as well as foreign) to them unless they kind of person an individual prisoner is, his themselves already have exposure as stu­ or her background and all relevant history dents of Western social science. Finally, be­ and information so that a plan can be worked ing administrators they must consider the out for his or her rehabilitation. The classi­ cost effectiveness of such a course of action, fication process must also be sufficiently and justify the use of manpower and re­ flexible so that adjustments can be made sources towards the introduction of such a from time to time. The classification scheme measure. Unfortunately, the state of the art itself must also be subjected to periodic tests in the social and even the medical sciences to assess its accuracy and coverage. Here, do not allow for certainty of results. This there are ample opportunities for specialists means that management m:.lst have the con­ such as clinical and educational psycholo­ viction to give this a try and be prepared to gists, psychiatrists, education officers, social justify the use of resources. workers and counsellors to do their part. If it is difficult for management to be con­ However, the observation of the custodial vinced to make a commitment towards re­ staff who probably spend most time with and habilitative measures, it is even more diffi­ are very close to the offender in the institu­ cult for staff, particularly the lower ranks. tion environment must be included, for it is Generally, the basic grade officer does not often of great value towards the understand­ have the amount of exposure to the social sci­ ing of the latter. ences to give him a rehabilitative standpoint. His training in essential custodial duties (4) A Commitment by Both the Management makes him very conscious of his own respon­ and the Staff to Rehabilitate sibilities in security and control, and the pres­ Ross and McKay point out: sure of the system for him to be vigilant in the maintenance of order and the prevention " ... more regrettable, perhaps, is the of escape enforces his custodial outlook. characteristic acceptance by correctional Very often too, his day-to-day contacts with staff of new techniques in name only. inmates, particularly the unpleasant epi­ Whereas psychology has often been sodes, tend to reinforce his stereotyping and characterized by radicalism, corrections dish'ust of the latter. Yet rehabilitational too frequently suffers from euphemism. programmes often bring with them the re­ Offenders are often remarkably (albeit quirement of trust, of allowing inmates more negatively) affected by their entry into the initiative and autonomy, of relaxations in criminal justice system. So are treatment constraints and control. All of these are in­ programmes." 9 consistent with the officer's custodial mind and experience, nor do they provide an as-

208 CORRECTION WITHIN PENAL INSTITUTIONS surance that inmates under his charge will task to educate the staff, and make them feel not succeed in escaping or breaking rules. secure and comfortable in a rehabilitative en­ Furthermore, the appearance of profession­ vironment before launching a treatment als on the pretext of treatment presents the programme for the inmates. officer with a new possibility, that his role and authority may be eroded, and whatever (5) An Industrious Pace and Atmosphe1'e little room for decision making he has in the Idleness in a penal institution precipitates routinized schedule of prison life may be fur­ violence, conflict and unlawful activities, all ther reduced. of which reinforce a criminal way of life and Charles McKendrick very lucidly de­ are therefore detrimental to rehabilitation. scribed the problem of understanding and ac­ No treatment therapy can be effective if in­ ceptance: mates are left to languish in demeaning in­ activity. It is therefore important that there "With each approach to the problem of exists in the institution an industry which ful­ correctional treatment, the job of the cus­ ly and gainfully employs inmates, and that todian becomes more complex. Each new the majority of their spare time is also taken service that enters the field requires the up by other constructive activities such as development of new attitudes, new education and organized sports and recrea­ thoughts, and often new duties for the tion. custodian staff. It was a far simpler task to provide security when one resident (6) Adequate ResoU1'ces chaplain and one physician were the only Naturally rehabilitative, programmes re­ non-uniformed employees than it is today quire the services of professionals who cost with the addition of teachers, physicians, money to employ. There may also be accom­ psychiatrists, psychologists, representa­ panying expenses such as evaluative studies, tives of various religious denominations, instruments and administrative costs. Whilst Veterans, Alcoholics Anonymous repre­ additional resources are required, it does not sentatives, all a part of the paraphernalia mean that correctional administrators should of reform. The liberalization of recreation, not start modest programmes even when re­ correspondence, and visiting privileges sources are not fully available. Here are the has complicated the picture." 10 opportunities to use one's initiative, and in­ novations such as tapping the community's David Fogel is more blunt as he continues and the local universities' resources on a vol­ after McKendrick: untary basis are likely possibilities. The main conditions listed above which "The guards were increasingly bewil­ may help the rehabilitation objective are of dered. Nobody had prepared them to course not exhaustive. This short list and dis­ speak to, much less to relate to, college cussion should, however, be sufficient to educated professionals who often spoke a serve as a reminder that there are certain mysterious jargon. The guards withdrew states of affair which we must strive to to their familiar tasks. If the disparity of achieve if we want to make a successful start purpose involved in securing 'the offender towards rehabilitative treatment. On the against escape at the same time that he other hand, there are certain conditions is trained for responsibility and freedom' which may inhibit this objective and some of was not apparent to others, it was appar­ these I will discuss briefly now. ent to the guards." 11

It is therefore perhaps a more pressing

209 EXPERTS'PAPERS

Some Conditions Which laysian Prisons Department's 1980 project Inhibit Rehabilitation to build Manang Open Prison with inmate labour is a case in point. 14 This project was (1) Overcrowding awarded the Guiness Award in 1985 for its Quite apart from being inhumane and exemplary effort. There are also various detrimental to the physical and mental health forms of deprisonization substituting a cus­ of the prisoners, overcrowding in prisons todial sentence with probation, fine, attend­ breeds friction, aggression and violence ance, community services, electronic which often culminate in disturbances. It also monitoring, etc. (see also the UNAFEI makes existing facilities and services inade­ Report on Solutions for Overcrowding in Pri­ quate. In a UNAFEI discussion about solu­ sons),15 tions for overcrowding in prisons, the discus­ Where resource and security permit, treat­ sion group reported: ment programmes should not be suspended on account of overcrowding. In fact, it is per­ "Overcrowding is one of the most difficult haps even more useful for the stability of a problems in prison administration. It de­ penal institution that an overcrowded popu­ velops an unhealthy climate affecting lation should receive education, be fully em­ penal reformative programmes, creates ployed, and given counselling on how to live security problems and contributes to ad­ in harmony despite the physical discomforts, ditional pressures on staff. Such a situa­ and turn the experience into a constructive tion usually leads to unrest and general one. dissatisfaction amongst prisoners .... " 12 (2) The Prominence of Gangs Robert B. McKay also pointed out that: In a number of countries there are crimi­ nal gangs and members of these gangs are " ... When jails and prisons are over­ frequently in prison, at times in considera­ crowded, even the most benign adminis­ ble numbers. Criminal gangs tend to have trators have difficulty with sanitation, their own values, attitude and subculture feeding, recreation, schedules, work ar­ which may run contrary to those in the larg­ rangements, and health services .... The er society. Gang members do not cease to be quite natural tendency is to decrease what they were upon entering the prison, and programmes and increase confinement. In whenever they can they tend to group to­ an already volatile atmosphere, t..1}e entire­ gether and assert their power in the prison ly predictable result of overcrowding is to community. They may go further and or­ magnify all the problems of prison ganise to subvert or openly challenge the au­ administration .... " 13 thority of the prison administration. Where treatment programmes are concerned the unwholesome influence of the gang subcul­ Frequently the maintenance of discipline ture may act to neutralise whatever effect and control becomes much more difficult in therapeutic activities may have on participat­ overcrowded condition, and the individual ing individuals. care and concern which are so necessary in In order to curtail gang activities in pri­ a treatment milieu tend to be lost when there sons, it will be useful to have an intelligence are masses of problematic people to attend system to more accurately keep tab on the to. Overcrowding is therefore detrimental to size and magnitude of the problem as well rehabilitation. as to find out the illicit activities of leaders However, there are innovative ways to and members. Where space allows it will be reduce the gravity of the problem. The Ma- useful to separate active leaders from follow-

210 CORRECTION WITHIN PENAL INSTITUTIONS ers, and active members from other inmates Summary who are not members of any gang. Recent­ ly the Fight Crime Committee in Hong Kong In this treatise I have outlined the debate launched a scheme which allows gang mem­ in the West on the direction towards which bers to renounce their membership. The correction should head in the years to come. scheme is extended to offenders in custody I have suggested how the East should re­ and the response so far has been good. This spond to it. I further outlined some of the is a positive approach in addition to the firm main conditions which may favour or inhibit sanctions already in hand. rehabilitative programmes in correctional in­ stitutions. (3) Wrong Attitude/Expectations At this point a good evaluative researcher Any failure to look deeper into the real will notice that I have not advocated rigor­ meaning of treatment will cause one to miss ous methodology in implementing treatment the very important point that crime is the end programmes, i.e. that there should at least result of the life experience of the individu­ be a quasi-experimental design with a theo­ al committing it. The parents, siblings, retical basis, matched and randomly as­ friends, teachers, workmates, spouse, the ed­ signed experimental and control groups who ucation system, the political system and the are representative of the population at which economic order, etc., as well as the situation­ the treatment is aimed, the whole treatment al factors immediately before the commis­ process recorded and randomly observed by sion of the act may havO~)layed a part in pro­ evaluator(s), and the result statistically ana­ ducing or inhibi'jng it. .rhe crux of treatment lysed. I would certainly like to see all these is to see which one of these factors can be done which make for scientific truth, but I decreased or enhanced and how, or seen also appreciate that it would most often be from another angle, how an offender may be impossible for administrators to justify such better insulated against factors favourable to a plan to the finance and even the policy peo­ the commission of a certain type of offence, ple. Besides, there is also an ethical problem and be helped to be more receptive to fac­ as to who should and should not receive tors which inhibit the offending act. treatment. I am therefore content that for the Offenders are not sick people who differ time being we in the East should perhaps from the "normal" person, and there is no concentrate more on initiating treatment in­ treatment which can be a panacea to all the novations, and be satisfied that, all other different types of offences committed by the things being equal, those who have received different types of offenders. Furthermore, as such treatment fare better, in a number of I have pointed out earlier, the best in the articulately described aspects, than those fields of medicine and the social sciences do who have not. not give us certainty in the people changing business. Notes It is important that administrators and staff alike recognise, and be explicit about, the ob­ 1. See, for example, Francis A. Allen: "Criminal jective(s) of a specific programme and its lim­ Justice, Legal values and the Rehabilitative itations, so that when they implement it they Ideal," 50, Journal of Criminal Law, Criminol­ know exactly what they are aiming at, and ogy and Police Science, 226, 1959; James 0. Robison and Gerald Smith "The Effectiveness that when they need to show results or to jus­ of Correctional Programmes" 17, Crime and tify it they can be convincingly articulate. Delinquency, 67, 1971. Robert Martinson "What Works?-Questions and Answers About Prison Reform," The Public Interest, Spring 1974 pp. 22-54; J.P. Conrad "We Should Never

211 ------

EXPERTS' PAPERS

Have Promised a Hospital," Federal Probation 7. Simon Dinitz, "Are Safe and Humane Prisons 1975,39, pp. 3-9, B. Lipton, R. Martinson and Possible?" Australian and New Zealand Jour­ J. Wilks "The Effectiveness of Correctional nal of Criminology, 14, March 1981, pp. 3-19. Treatment," New York, Praeger 1975. Judith 8. Gresham M. Sykes. The Society of Captives: Wilks and Robert Martinson "Is the Treatment A Study of Maximum Security Division. of Offenders Really Necessary?" Federal Pro­ Princeton U. Press, 1958, pp. 65-78. bation, 1978, March, pp. 3-8. 9. R.R. Ross and B. McKay "Behavioural Ap­ 2. Jessica Mitford, Kind and Unusual Punish­ proaches to Treatment in Corrections: Requi­ ment: The Prison Business. New York: Alfred em for a Panacea," Canadian Journal of Crimi­ A. Knopf, 1973; John Bartlow Martin, Break nology, 1978, 20(2), pp. 279-295. Down the Walls: American Prisons, Present, 10. Charles McKendrick, "Custody and Disci­ Past and Future. New York: Ballatine Books, pline" in Paul W. Tappan, ed. Contemporary 1954. Correction. New York: McGraw-Hill, 1951, pp. 3. Norval Morris, The Future of Imprisonment. 162-163. Chicago: U. of Chicago Press, 1974. David 11. David Fogel, "Weare the Living Proof: The Fogel, We Are the Living Proof: The Justice Justice Model for Corrections." Cincinnati: An­ Model for Corrections. Cincinnati: Anderson, derson, 1975, p. 76. 1975; David Fogel and Joe Hudson (eds), Jus­ 12. UNAFEI "Resource Material Series 30," Sec­ tice as Fairness: Perspectives on the Justice tion 3, Session I "Solutions for Overcrowding Model. Cincinnati: Anderson, 1981; Ernest Van in Prisons." Fuchu, Japan: UNAFEI Publica­ den Haag, Punishing Criminals: Concerning a tions, '1986, pp. 183. Very Old and Painful Question. New York: 13. Robert B. McKay "Prison Overcrowding: The Basic Books; and Hyman Gross and Andrew Threat of the 1980s," in Ira P. Robbins (ed.) Von Hirsch (eds), Sentencing. New York: Ox­ Prisoners and the Law. New York: Clark ford U. Press, 1981. Boardman, 1987, pp. 6-10. 4. Ibid Note 1. 14. See Mohd Nadzri KrisLairy, "Coping with 5. Ibid Note 1. Overcrowding" in David Biles, ed., Current In­ 6. Willard Gaylin and David J. Rothman, in their ternational Trends in Corrections. Sydney: The introduction to Andrew Von Hirsche's book, Federation Press, 1988, pp. 102. Doing Justice: The Choice of Punishments. 15. Ibid Note 12. New York: Hill and Wang, 1976, P. xxix.

212 The Promise and Pitfalls of Classification for Correctional Systems

by Theodore N. Ferdinand *

Classification as a method of sorting clients among a variety of very different centers was among a variety of security or treatment set- ' well established among correctional directors tings is a tried and true procedure in crimi­ by 1960. nal justice with a long history. It is also a At about the same time, several serious at­ method whose time has come. Its full value tempts were mounted in the United States not only as a tool for assigning clients to an to develop programs that were effective in appropriate setting but also as a broad-gauge rehabilitating juvenile offenders in custodi­ management tool for assessing program ef­ al settings (see Street, Vinter and Perrow, ficacy is only now being recognized by cor­ 1968). These programs were based upon rectional administrators all over the world. careful assessments of the treatment needs The methodology for extending its use far of different kinds of delinquents (see War­ beyond its original boundaries is at hand, and ren, 1971) and required the skillful classifi­ correctional leaders are adapting it to their cation of juveniles in terms of their person­ broader needs as rapidly as possible. This pa­ alities so that each could be assigned relia­ per explores this methodology and describes bly to his or her rightful program. some of the advances that have attended its Herbert Quay (1971, 1979) was very active application in the United States and else­ in devising not only typologies of delinquents where. and adult offenders but also methods for as­ The roots of classification can be found in sessing the personality patterns of specific two routine methods that evolved in the post­ clients. But Marguerite Warren and her war period. As correctional systems began coworkers provided the most sophisticated to include a variety of facilities graded from classification scheme for juveniles, while also open, minimum-security to closed maximum­ developing methods for determining their security centers, methods were needed for personality patterns and assigning them to allocating a steady stream of incoming in­ their relevant treatment program. She de­ mates to one or the other of the various se­ fined (see Warren, 1976: 193-198) three curity graded centers. Thus, correctional broad levels of interpersonal maturity: 12, 13, systems were forced to develop policies and and 14, which together identify several very procedures for classifying inmates according distinctive personality patterns. to their threat to the community should they The first level, 12, refers to individuals who escape, as well as their threat to the correc­ have great difficulty in forming lasting so­ tional community should they not. Classifi­ cial bonds with others and in moderating cation according to sentence, age, gender, of­ their impulses according to conventional fense, and psychological balance soon be­ nonns. Instead, they are guided primarily by came part of the inmate's intake routine. The personal desires and whims and respond best early classification methods were crude, but to programs that provide firm behavioral the idea of allocating inmates or clients guidelines and are supervised by focused, masterful staff members who shape the chil­ dren more by example and presence than by " Professor, Center for the Study of Crime, Delinquen­ cyand Corrections, Southern lllinois University at sympathetic understanding. This level in­ Carbondale, U.S ,A. cludes just two types: the asocial aggressive

213 EXPERTS'PAPERS and the asocial passive. Though both ap­ reactor-do better with staff members with proach the world in essentially the same more feminine qualities. Much the same is way-egoistically and exploitatively, the aso­ true of the immature conformist and the cul­ cial aggressive confronts the world belliger­ tural conformist as well. with these relation­ ently, while the asocial passive tends to with­ ships in mind, Warren and her team devised draw in the face of trouble. a distinctive treatment plan for each type and The second level, I3, includes three types implemented the California Community who have less trouble in forming close rela­ Treatment Program in 1961. Herbert Quay tionships, especially with peers, but who can­ (1971) did much the same on the East Coast not relate to others in terms of socially ac­ with his Differential Behavioral Classifica­ ceptable standards of conduct. They take tion System, and the hope grew much careful note of power differentials in their en­ stronger that classification could be a use­ vironment and are guided by such differen­ ful, scientific tool for sorting inmates among tials, but within these limits they are often a variety of treatment alternatives. able to form lasting friendships with peers. These early studies used sophisticated sta­ They include the immature conformist, the tistical methods and computers in develop­ cultural conformist, and the manipulator. ing their classification schemes and inciden­ They all need help in learning appropriate tally, perfected a key step in the develop­ conduct standards, but unlike the rest, the ment of classification systems-the definition older manipulator has trouble in relating to of a typology against which inmates could be power figures and tends to do best in cus­ evaluated. Warren used a complex process todial settings with distant, firm adults who combining theoretical and statistical analy­ hold juveniles strictly to clearcut guidelines. sis to identify her types, and Quay used fac­ The others do better in community based tor analysis for his. programs with sympathetic staff members. They also identified the problems involved The third level, 14, consists of four types in matching individuals to master types and who have formed (1) an antisocial identity, in assigning them to an appropriate program as with the cultural identifier, or (2) a con­ or center. To identify the inmate's person­ fused, conflicted identity such that inap­ ality type, Warren designed a complicated propriate impulses of an explosive, destruc­ interview and testing protocol for inmates, tive sort are common, as with the acting-out and Quay used a simple paper and pencil test neurotic, or the socio-emotional reaction, or for the same purpose. The more complicat­ (3) an ambivalent, diffuse, poorly defined ed the typology, the more cumbersome the identity as with the anxious neurotic. assessment instrument, and it became evi­ These several types need help in gaining dent that a balance must be struck between control of themselves, and it often takes the the two. A complex instrument requiring form of identifying the social psychological highly skilled interviewing and sensitive in­ sources of their troubles in conversations terpretation could not be used broadly in a with tolerant, warm, and supportive adults correctional environment. (as with the anxious neurotic or the socio­ These early attempts at classification for emotional reactor), or of developing a better treatment purposes established that effective self-concept and greater self-control (as with classification depends upon four distinct the acting-out neurotic), or a realignment of processes. First, it must identify clearly and his values (as with the cultural identifier). reliably the different kinds of inmates any These latter two types generally respond given system must deal with; second, it must best to self-confident, direct, masculine staff determine accurately the character of the members, while the other 14 types-the anx­ programs available to inmates in the system; ious neurotic and the socio-emotional third, it must assess each incoming inmate

214 PROMISE AND PITFALLS OF CLASSIFICATION

and provide an assignment appropriate to his cation purposes. We know a great deal about or her needs; and fourth, it must reassess the inmate when it comes time to classify each inmate at regular intervals to determine him, but our knowledge of the programs and how satisfactorily he or she is progressing correctional facilities to which he must be as­ in the initial assignment. Reliable methods signed is still very shallow. This fact points for accomplishing each of these tasks had to a serious weakness in the methodology of been developed by the late 1970s, and in the classification. 1980s, correctional managers began to real­ The range of inmate types that come into ize the benefits of classification as a manage­ any correctional system has already been ment tool. systematically explored. Gresham Sykes (1958: 87-105) was one of the first to describe Classification Methods different types of inmate roles: Rats, Mer­ chants, Wolves, Toughs, Real Men, and Go­ Methods for determining the kinds of in­ rillas, and Irwin and Cressey (1962) distin­ mates that come into a system were devel­ guished between thieves who were true to oped early on, as we have seen, and the kinds their code in prison and convicts who were of traits that predict reasonably well to risk more interested in making the best of a very of future offense, to institutional adjustment, difficult situation. Peterson et at. (1981, 172- or to effective treatment in the community 189) described six inmate types in terms of were well known by the 1970s (see Palmer, their motives and life-styles in the commu­ 1975; Brennan, 1978b). They include such nity, and Megargee (1979) developed a ty­ factors as age at first adjudication, serious­ pology of ten inmate types based upon their ness of first offense, number of prior incar­ responses to the MMPI. cerations, drug or alcohol abuse, emotional The validation of these typologies is still instability, number of previous escape at­ underway. Megargee's study of inmate types tempts, number of prison infractions, for ex­ has been tested on inmate populations by a ample. Methods for assessing these factors variety of researchers (see Edinger, 1979; from probational, institutional, or pro­ Edinger et at., 1982; Meyer and Megargee, secutorial records were developed, and to­ 1977), and Quay's (1984) Adult Internal day a reliable assessment of an inmate's cus­ Management System (AIMS) has also re­ todial needs is relatively simple to provide. ceived much attention (Levinson, 1988). Methods for assessing an inmate's psycho­ Using factor analysis Quay identified five logical focus or emotional stability are also general types that occur regularly among in­ readily available via the Minnesota Mul­ mates: I. An overly aggressive type, hostile tiphasic Psychological Inventory (MMPI) or to authority, prone to disciplinary infractions, the California Personality Inventory (CPl). and predatory; II. A non-confrontational Assessing an inmate's psychological or cus­ type, manipulative, untrustworthy, prone to todial needs present little problem to most disciplinary infractions, hostile to authority, classification officers today. and predatory; III. A reliable, cooperative The assessment of correctional programs, type, non-criminal in outlook, concerned for on the other hand, is still rather primitive in others, that avoids fights, and is not prone that most are categorized simply in terms of to disciplinary infractions; IV. A dependent, their architectural security. The style of cor­ unreliable, passive type, scapegoated, vic­ rectional officers, whether formal and timized, and not prone to infractions; and V. reserved, or relaxed and responsive, and the An anxious, afraid type who seeks protec­ actual focus of the institution as opposed to tion, is explosive under stress, victimized, its formal focus, whether rehabilitative or and somewhat prone to infractions. custodial, is still largely ignored for classifi- . Ratings of 1,113 inmates in the maximum

215 EXPERTS'PAPERS security Central Correctional Institution in variable, e.g., institutional adjustment. It re­ Columbia, South Carolina were made in­ moves that item and its influence on the cri­ dependently by two experienced classifica­ terion variable and repeats the whole proc­ tion officers. These inmates were classified ess again on the remaining items. It selects as heavies (Types I and II), moderates (Type the next most powerful item and removes it III), or lights (Types IV or V), and the three and its influence on the criterion variable in groups were provided with educational pro­ the same fashion as before. It continues in grams, useful work, counseling and custodial this way until the influence of all the remain­ care according to their needs. All three ing items has become unimportant. Since the groups were kept separate, and when as­ items that predict the criterion variable are sessed after 18 months, the results indicat­ often closely interrelated, the influential ed significant changes in their adjustment items usually number fewer than 11 or 12, within the institution. so that only a relatively small group of items By the end of the experiment, the serious is needed to account for most of the varia­ incident rate overall had been cut in half with bility of the criterion variable. The rest are the heavies accounting for 95 percent of the essentially neutral. serious incidents, though they were only 61.4 Unfortunately, regression analysis offers percent of the inmate population. The mod­ little stable information regarding the inter­ erates had 5 percent of the incidents though relationships among the items predicting to they were 14.8 percent of the total, and the the criterion variable, though these interrela­ lights (22.3 percent of the whole) had no in­ tionships can be estimated by considering cidents. Other evaluations of Quay's AIMS the correlational matrix of the original pool scheme have produced similar positive re­ of items. The influence of anyone of the sults (Levinson, 1986), and the same is true items, however, depends not only on its own of Megargee's typology of 10 adult inmate strength, but also upon its relationship with types. The identification of distinctive, valid the other items. If the order in which the inmate types is relatively straight forward, items are removed from the list is changed, and several such typologies are now availa­ the relationship of each item with the crite­ ble. rion variable as well as all the others will be The method for defining these typologies substantially changed. Thus, it is difficult to generally uses a large pool of inmates as a tell without further analysis exactly how the standard for those that follow, a large pool several influential items relate to one anoth­ of items by which to measure their key er. The clustering of these items, i.e., their characteristics, and one or another of the interdependence, can only be estimated by multivariate statistical methods for distilling considering the weight of each item in pre­ out the clusters or types that predict to a cri­ dicting the criterion variable. terion variable, i.e., the behavior in question, Further, regression analysis only provides whether it be post-institutional offense, in­ one cluster of key characteristics for each cri­ stitutional adjustment, or a positive response terion variable. This cluster is the strongest to treatment programs (see Brennan, 1987b). set of characteristics, and to the extent that The statistical techniques most commonly more than one set of characteristics predict used include regression analysis, factor ana­ to a given variable, the lesser clusters will lysis, and decision trees. be regarded as noise and ignored. A more useful way of defining clusters is Statistical Techniques: Regression analysis via factor analysis. It scans the pool of items examines a list of characteristics upon which upon which the standard population has been inmates have been rated and selects the item measured, it selects those items that are most highly correlated with the criterion closely interrelated with the rest including

216 PROMISE AND PITFALLS OF CLASSIFICATION the criterion variable, and it computes their clusterings. They are sometimes impossible weighting on the common theme or factor to interpret, but they may also depict a type underlying their clustering. It removes this that is well worth pinning down. factor (and its influence on the several items Decision trees represent a third method of as well), and repeats the whole process identifying clusters or types in an inmate again. Ultimately, all the factors are extract­ population. As before all the inmates' charac­ ed and all the clusters of interaction among teristics that distinguish one type from an­ the items are specified. other are noted, and each characteristic is ex­ Each item is assigned weights depending amined in terms of its ability to distinguish upon its contribution to each of the nnderly­ two groups: those who are high on a criteri­ ing factors, and each factor is defined in on variable, and those who are low. The terms of the items that load most heavily on characteristic that provides the sharpest it. Thus, each criterion variable could be rep­ separation of these two groups is selected, resented on several distinct clusters or fac­ and two sub-groups (the highs and the lows) tors. The factors are usually constructed so are formed. The whole process is repeated as to leavE: them independent of one anoth­ on each of the two sub-groups. The charac­ er. Most items load on more than one fac­ teristics that most clearly separate them in tor, and the weighting of each item on any two sub-groups are selected, and each sub­ given factor indicates how important that group is divided again into two more sub­ item is to the factor. The weightings of all groups. This process is repeated until no the items on each factor provide a descrip­ more characteristics can separate the sub­ tion of that factor and permit the researcher groups into distinctive sub-groups. to identify its meaning. In this way, all the An example of this process is presented factors are precisely determined, and togeth­ atove. The criterion variable in this case is er they give a much clearer and more com­ the recidivism rate (RR), and we are inter­ plete picture of the types in relationship with ested in finding the characteristics that pre­ the criteria variables than with regression dict to the RR. In this case, the strongest analysis. predictor is the number of prior court appear­ The probl~m ·with factor analysis lies in the ances, followed by age, and then, by total fact that the first factor is the most general, number of charges. embracing the largest portion of inmates and Five sub-groups of offenders can be iden­ the largest number of items. Up to one-third tified: those with 12 or more court appear­ of the population may be included in this first ances and no older than 27 years; those with cluster, and it may be defined in terms of 8 12 or more court appearances and 28 or more or more items. The last two or three factors, years old; those with fewer than 12 court ap­ however, usually involve smaller numbers pearances and 26 or more years old; those (less than 10 percent of the population) and with fewer than 12 court appearances, less fewer than five items. The last factors may than 26 years old, and with fewer than 7 also be hard to define. charges; and those with fewer than 12 court They usually describe rare types in the appearances, less than 26 years old, and with population, i. e., types that can only make 7 or more charges. All five of these terminal their presence felt when all the more gener­ groups are defined in terms of several al factors have been removed. They may rep­ characteristics that sharply differentiate resent, for example, sophisticated inmate them from one another and therefore, readi­ leaders who are intensely anti-social, or they ly conceptualized, and the last groups de­ may be pro-social inmates with very good fined are more specific than the first such prospects for rehabilitation. They may also group. The decision tree method provides for represent nothing more than accidental very precise types, and they are very clear-

217 EXPERTS'PAPERS

Total sample RR= 25%

_I Twelve or more prior Eleven or fewer prior court appearances, court appearances, RR= 29% RR= 20% I - t Age 27 or Age 28 or Age 25 or Age 26 or younger at older at younger at older at time of release, time of release, time of release, time of release, RR=48% RR= 23% RR= 24% RR=6% , , Total number Total number of charges of charges 7 or more, 6 or less, RR= 32% RR= 14%

Fig. 1: Decision tree for risk classification of offender recidivism in first year of release. (Source: LeClair 1977) RR = recidlvism rate in first year of release . ... ly drawn. The only problem is that relative forward. New inmates are classified accord- to factor analysis, they are rather thinly ing to their kinship with one or another of drawn. The detail with which they are de­ the master types and given an assignment scribed is definitely limited. according to the treatment, security, or cus­ If all three methods were used on the sa..'lle todial rating of that type. As we have seen set of data, they would yield approximately (pp. 7-8), research has shown that such as­ the same patterns. Factor analysis provides signments yield distinct advantages. When the clearest portraits and the most compre­ inmates who are usually predators in a pris­ hensive typologies. Decision tree analysis on population are segregated from the rest, provides adequate definition of types, but it disciplinary infractions among the rest de­ offers much less detail in its descriptions of cline to very low levels, and those infractions the several types, and it is less comprehen­ that do occur appear where and when they sive in describing a wide range of types. It are expected. Furthermore, when clients are does provide very clear guidelines ih assign­ assigned to treatment programs that are es­ ing individuals to existing groups, and for pecially tailored to their needs, they tend to this reason, classification officers would benefit more from these programs than those probably prefer decision tree analysis. Crimi­ who are assigned to such programs without nologists, who are more interested in discov­ classification (Warren, 1976: 193-199). Not ering and defining new types, would proba­ only does classification enhance the effec­ bly prefer factor analysis. Since regression tiveness of custodial programs, it also con­ analysis is weak in defining both individual tributes to a more wholesome experience for clusters and the range of clusters that exists, the inmates. it is unsuitable for most classification pur­ Classification also provides a running poses. measure of the characteristics of inmates en­ Once a master typology of inmates has tering the system and in so doing provides been constructed, the next steps are straight an estimate of the future needs of the sys-

218 PROMISE AND PITFALLS OF CLASSIFICATION

tern. If classification reveals that more pre­ tile tool for auditing correctional institutions dators are coming into the system, for exam­ in a variety of ways. ple, prison administrators can plan in time­ As inmate reclassification becomes sys­ ly fashion for an expansion of maximum temwide, and as several different correction­ security facilities. In forecasting future prob­ al centers are linked together in a computer lems for the correctional system, moreover, network with correctional headquarters, an it provides the kind of quantified information assessment can be easily made of almost any that can be easily verified and therefore, is segment of the correctional system. Moreo­ credible to budget officials. ver, such assessments do not require an un­ usual data collection effort. Reclassification and Accountability Software is now available in the form of Management Information Systems whereby These several benefits of classification, databases routinely available in most correc­ however, pale to insignificance when com­ tional centers, such as those describing an pared to the advantages that reclassification inmate's participation in program or discipli­ yields. After an inmate has participated in nary infractions, or data from a f'lndard psy­ the prison programs for several months, an chological test like the MMP1, can be en­ interim assessment of his adjustment is im­ tered into an inmate's file and organized with portant to correct any initial mistakes and to other data to yield a summary description of adapt his assignments to his emerging be­ his status at the moment. Neither the data havior in program. Reclassification is orient­ nor the questions to be asked are limited in ed more to his institutional behavior than is any significant way, except that they must classification and therefore, depends more be amenable to quantitative analysis. heavily on information provided by prison These systems were developed originally staff. to help firms gain control over inventories of Reclassification is important, because it goods and universities to manage their ever­ highlights systematic errors in the initial changing student bodies, but it is a simple classification, and by pinpointing these er­ matter to adapt them to the nee-d.5 of correc­ rors it permits a progressive improvement in tional systems. Their utility for correctional the original instrument. It also allows the systems is apparent. staff to chart systematically changes made They have been used to allocate inmates by inmates since their arrival and to adjust efficiently according to their needs and the their assignments accordingly. As the in­ c?pacities of the several facilities in the sys­ mates in an institution are periodically reclas­ tem. Thus, they permit a more effective utili­ sified, specific groups of inmates can be com­ zation of the space and programs in the sys­ pared with one another to see which changed tem. most. If information on program participa­ They have also been used to document the tion is also available, it is possible to say why need for both staff and facilities to budgetary these inmates changed most. In much the agencies. As the flow of new inmates shifts same manner, groups of inmates in similar in numbers and quality, it dictates adjust­ programs but with different kinds of super­ ments in program, and probably also changes vision can also be compared. Thus, data in staff and facilities. Such trends in the flow gathered during reclassification offers an op­ of inmates can be easily detected from data portunity to assess not simply individual in­ routinely gathered during classification and mates adjusting to an institutional environ­ reclassification. Thus, precise projections as ment, but also groups adjusting to many dif­ to the numbers and kinds of inmates that are ferent kinds of programs including custodial likely to come into the system in the near fu­ programs. Reclassification provides a versa- ture can be made easily, and based upon

219 EXPERTS'PAPERS these projections, it is a simple matter to es­ Other suggest that it is just one more tool timate the need for staff, program, and build­ that must be adapted to the needs and ex­ ings. These kinds of precise estimates based igencies of the correctional system. As a tool, on reliable data are exactly what budgetary it must be fitted to the system, and not the officers love to see when they are organiz­ other way around. When used intelligently, ing a budget for the coming year. it can serve a useful purpose, but by no We have already commented on the abili­ means is it a master solution for all or even ty of a valid classification system to reduce most of our correctional problems, the level of violence in a system by match­ Finally, some indicate that it can only ing the inmates more precisely to facilities serve the purposes of corrections when ap­ that anticipate their needs. When inmates plied in the right way (Clear and Gallagher, are segregated in terms of their tendency to 1985), Since it is very easy to apply it incor­ victimize or to be victimized by other in­ rectly, its promise could turn out to be a most mates, for example, disturbances tend to be troublesome characteristic. confined to those sections of the system best able to control them, to facilities housing the Classification and Fairness? In the United victimizers. Glaser (1987: 277-278) reports States, classification can be criticized on the that in California, when a new classification ground that it violates the Constitutional system was installed in 1980 at the maxi­ rights of prisoners. The Fourteenth Amend­ mum security Folsom Prison, only 37 per­ ment, for example, guarantees prison in­ cent were found to need a maximum securi­ mates equal protection under the law, and ty assignment, and fully 19 percent deserved it has been interpreted to mean that neither a minimum security facility. After 15 months race, political preference, ethnicity, nor re­ of operation, the new system discovered that ligion should be used in deciding their fate 67 percent deserved a maximum security within the prison system. and only 3 percent a minimum security as­ But several measures of institutional ad­ signment. These latter inmates were as­ justment or future offense, such as age at signed to Folsom Prison specifically to fill first offense, number of prior confinements, low security positions in the institution. Af­ substance abuse, or seriousness of this of­ ter four years, the inmate population in Cal­ fense tend to segregate minorities from non­ ifornia had soared by two-thirds, reaching minorities. Minorities tend to receive higher 39,105. But the escape rate per year per security ratings than non-minorities as well 1,000 declined by 36 percent, violent deaths as longer sentences to custodial institutions. among the inmates decreased; and violent The United States Supreme Court has ex­ disorders were largely limited to maximum amined this issue in the context of capital security institutions. offenses, and it has ruled that where race is not a criterion for the disposition, even Flaws in Classification though racial imbalances in sentencing may result, it is no violation of the Fourteenth Despite the versatility of classification sys­ Amendment (McCleskey v. Kemp, 1987). tems, critics point out a number of flaws. Dispositions must not be made on the basis They raise serious questions about its of race, nor should they be made on the ba­ fairness-is it fair to assign inmates in terms sis of mandatory sentences without the pos­ of their risk of future offense (Tonry, 1987: sibility of reversal by professional authority 367 -413)? Does it interfere too much in their (Woodson v. North Carolina, 1976). The im­ privacy to program and evaluate their expe­ plications of a classification decision must be rience in the correctional system so reviewed by competent authority so that its minutely? human meaning can be fully digested and its

220 PROMISE AND PITFALLS OF CLASSIFICATION fairness tested. The questions of ethnicity, shall be made in terms of due process, i.e., political viewpoint, or religion have not been in terms of just standards that are applied examined specifically in this context, though fairly and competently to the case at hand. the significance of the Constitution for these Although the issue has never been raised in criteria is also clear. As with race, they may the courts regarding classification, it is prob­ not enter into classifi-.:ation decisions. ably without merit. Classification as a means of grouping in­ Classification is designed to bring greater mates in terms of their characteristics with­ regnlarity and procedural validity to deci­ in the prison system is acceptable to the Con­ siam: that otherwise would be made on the stitution so long as (1) it is not done in terms basis of intuition. Classification systems, of race and (2) it permits a competent author­ would only be vulnerable to due process ity to override classification decisions when complaints, if procedures including those they are unfair or unreasonable. providing for responsible override were vio­ Nevertheless, in the United States, key l?.ted. To avoid such complaints, it is only correctional officials are selected by the Gov­ necessary to insure that the process is com­ ernor, and therefore, are accountable ulti­ petently administered. mately to a state-wide electorate. Unpopu­ The cruel and unusual issue is somewhat lar decisions within the correctional system more troublesome. When assignments are can and do become topics in political de­ made in terms of prediction formulae, and bates. Thus, a classification system that pro­ where some inmates present very troubled duces sharp differences among the disposi­ patterns, it is conceivable that classification tions of minority and non-minority inmates formulae could produce a cruel assignment, would probably come under sharp attack, e.g., an extraordinary period of time in ex­ and most elected officials would rather avoid treme security, for at least a few of the in­ such conflicts. mates. If responsible authority does not re­ The question arises, therefore, to what ex­ view and override such assignments, any tent could a classification system function ef­ classification system will from time to time fectively, if all racially linked criteria were yield cruel and unusual recommendations. removed from the assessment instrument? The solution, of course, is to make sure that Petersilia and Turner (1987: 70-71) have review procedures are carefully followed by looked at this issue and report that the responsible classification officers so that un­ prediction of probation success was im­ usual cases are closely monitored and unwar­ proved by 5 percent. The advant~ge of us­ ranted assignments avoided. ing racially relevant qualities in classification Complaints might also be raised against is small but significant. extreme intrusions into the inmate's thought Where the practical advantage is slight, processes and living space that classification and the political disadvantage considerable, entails. Classification provides for much most state correctional directors would prob­ closer programming of an inmate's experi­ ably decide against using any criteria that ence within the correctional system and might hint at unequal justice. The cost to the rechssification monitors very closely his per­ classification system is a slight increase in sonal reactions and overall adjustment to this imprecision and errors in assignment. experience. Does it also rob him of an oppor­ Constitutional questions regarding the due tunity for self-expression or personal growth? process and cruel and unusual validity of This argument is much more relevant to classification have also been raised (Tonry, a free society that assumes the full commit­ 1987). The Fifth and Fourteenth Amend­ ment of its citizens to the social and politi­ ments guarantee that decisions regarding cal process. Unfortunately, prisons fall far life, liberty, or property in the justice system short of this ideal and are much more depen-

221 EXPERTS'PAPERS dent upon coercive mechanisms. In particu­ maximum effectiveness. Similarly, classifi­ lar, the expectation is that the prisoner will cation systems cannot resolve fundamental not follow the social and political rules of the divisions within the correctional system. institution voluntarily, and close supervision Where an institution is nominally a treatment is necessary to thwart inmate subversion at­ center but in reality its primary mission is tempts. Since the privacy of inmates is al­ custody, the classification system will pro­ ready rather closely controlled, classification vide assignments according to the nominal systems increase this control only incremen­ view of the institution, Assignments will be tally. They do not themselves raise a seri­ made according to its treatment programs, ous question of invading the inmates' priva­ but the staff at the institution may in fact use cy simply because an invasion of privacy is these treatment programs for other pur­ the essential mission of prisons. poses. Insofar as the classification categories are Is Classification Just One More Tool? Clas­ inaccurate, the effectiveness of classification sification provides many benefits, as we have is diminished and its benefits diluted. Only already seen, but as a tool it depends upon those who are working intimately with clas­ the intelligence and balance of human beings sification and the inmate sub-groups would for its effectiveness. know that the classification system was pro­ Several problems that require balance and viding inappropriate assignments, thougL intelligence come immediately to mind. Clas­ some hint as to its invalidity would be given sification is designed to segregate different by an unusually high level of reassignments types of inmates according to their program produced at reclassification. Although clas­ needs. Whereas formerly classification was sifi.cation cannot save a system from its own provided for only the simplest kinds of dis­ weaknesses, to some extent it can signal the tinctions, between juveniles and adults, or existence of such defects. It is a tool that de­ between males and females, for example, pends heavily upon the wisdom of its human classification today enables distinctions and masters. segregation among different personality types, among different vocational and avoca­ The Misapplication of Classification: With tional types, and among different levels of such a complex tool, the possibility of a mis­ criminal commitment. The logic of classifi­ step is always present. Unfortunately, the cation prompts a search for meaningful dis­ simplest approach to implementing a new tinctions within inmate populations as well classification system-borrowing it from a as programs for ever more finely defined correctional system that has already imple­ sub-groups within the prison population. mented it successfully-produces a whole se­ The tendency therefore is for classification ries of errors. officers and their superiors to argue for Wright, Clear, and Dickson (1984) have ex­ greater specialization among staff and facil­ amined the way in which the Wisconsin risk­ ities to serve the needs of more finely defined assessment instrument was applieq to proba­ inmate sub-groups. At some point, howev­ tioners in New York City, and they found er, this process of division and subdivision generally that the categories developed in must become unproductive. At some point, Wisconsin did not describe probatiot1ers well the types become too highly focused and in New York City. As a result, risk predic­ their programs too narrow to warrant seri­ tions in Nevl York City based on the Wis­ ous attention. Prison managers must deter­ consin instrument contained many errors. mine when this point has been reached. As In addition, the Wisconsin risk-assessment with everything else, the human touch is re­ instrument was based upon items that were quired for classification systems to achieve overlapping and many could have been elim-

222 PROMISE AND PITFALLS OF CLASSIFICATION

inated with no loss in predictive power. Fi­ One of the advantages of classification sys­ nally, the weights that were given the sev­ tems is that they permit a maximal utiliza­ eral items reduced their predictive power, tion of available space, but by simply bon'ow­ probably because they capitalized on ing Wisconsin's cutoff levels, Illinois would peculiarities in the original validation popu­ nm into a problem of imbalance in assign­ lation in Wisconsin. The attempt to trans­ ments such that a large number of overrides plant the Wisconsin risk-assessment instru­ would become necessary. ment to New York City was a failure. A more subtle problem arises, however, Unfortunately, the temptation is very when Wisconsin's typology of inmate types strong to borrow the methods that have al­ is adopted by Illinois with no adjustment to ready proven successful in a neighboring the peculiarities of Illinois' inmate popula­ state. Such a temptation, however, must be tion. Wisconsin is a largely rural state with resisted because it leads to horrendous er­ Milwaukee approaching a population of one rors. Consider the following hypothetical ex­ million and Madison, the state capital, with ample. about 200,000 inhabitants. All the other ci­ Suppose the classification scheme devel­ ties have fewer than 100,000 inhabitants. oped in Wisconsin and used successfully Milwaukee has a substantial volume of within the Wisconsin correctional system crime, a sizable drug problem, a developing were borrowed by the Illinois Department of street gang probJ.em, and its share of profes­ Corrections and applied to the Illinois inmate sional criminals. The crime problem in the population. What would happen? rest of the state, however, stems basically Since the Wisconsin correctional system from personal disorganization and malicious­ differs substantially from the Illinois system, ness. the allocation of inmates in Illinois should be In Illinois Chicago is a major center for handled very differently. The Wisconsin sys­ both Italian based organized crime and drug tem holds about 7,000 inmates with 1,400 trafficking organized by warring street (20%) in maximum security, 2,100 (30%) in gangs. A substantial amount of the state's medium security, and 3,500 (50%) in mini­ crime problem can be traced to these two mum security. The Illinois system, on the sources. In addition the drug problem is other hand, is top-heavy with about one-third widespread with predictable effects upon of its 21,000 beds in maximum security in-­ juveniles and young adults. The minority stitutions. Medium security institutions population makes up about 30 percent of the make up another 5,000 beds (24%), with min­ whole with about half living in poverty and imum security contributing the remabder, contributing to the crime problem. Finally, 9,000 beds (43%). personal disorganization and maliciousness, It is a simple matter to adjust cutoffs so as in Wisconsin, account for a substantial that precisely the right number of inmates amount of crime. is assigned to each level. Thus, cutoffs for Compared with Wisconsin a much larger the Illinois scheme must be adjusted to that portion of Illinois inmates are violent, expe­ state's needs, though it is not always clear rienced in crime and criminal justice, and how this can be accomplished without con­ committed to a career of crime. The prisons siderable experience with the system. The have serious problems with gangs and with easiest course in the beginning would be to racial conflict. Several types that are rare or simply use cutoff levels established by Wis­ even non-existent in Wisconsin appear reg­ consin officials for their system. Neverthe­ ularly in Illinois. For example, experienced less, this policy would assign too few inmates inmate leaders who wield considerable au­ to maximum security and too many to medi­ thority over their fellows in prison are not um and minimum security level institutions. uncommon. Sophisticated inmates who know

223 EXPERTS'PAPERS how to manipulate prison staff and rules are 1967) is the synergistic encounter of individ­ also common in Illinois. ual and social setting such that both are fun­ If Illinois officials were to adopt the cate­ damentally changed. Erik H. Erikson (1958, gories used by Wisconsin authorities, it is 1969) wrote about the impact of social and likely that several iMportant types would be political turmoil upon the personalities of missed altogether-e.g., the type that under­ Luther and Gandhi and their subsequent stands the purposes of classification and emergence as world symbols. Other world knows how to bend it to his own ends, or the leaders have responded similarly to nation­ sophisticated inmate leader who has a corps al crises and led their people through tribu­ of lieutenants awaiting his arrival and eager lation to important triumphs, e.g., Winston to do his bidding, whatever it may be. More­ Churchill and Charles DeGaulle. Examples over, it is likely that a much larger number abound of individuals who found in a crisis of substance abusers and drug traffickers the spark they needed to fulfill themselves with little desire or hope of changing their and reach further than otherwise would have destiny would appear in Illinois' incoming in­ been possible. mate group. Errors from the lack of fit be­ If such synergistic combinations occur tween Wisconsin's typology and Illinois' in­ among national leaders in times of crisis, mate types would be numerous, and the there is every reason to believe that similar override problem would be substantial. kinds of melding of individual and setting oc­ Were Illinois to adopt Wisconsin's class i­ cur in that most difficult of environments­ fica~ion system lock, stock, and barrel, it the prison. Staff and inmates alike encoun­ would substantially underclassify its inmates ter severe moral and psychological pres­ so that too few would be sent to maximum sures, and many are corrupted or otherwise security facilities, and it would misclassify undermined. But many also find in confront­ many inmates so that a substantial number ing these pressures new powers that previ­ would either be classified incorrectly, or ously were unknO\Vll. Like Luther and Gand­ placed in an unclassifiable category requir­ hi their reactions reflect not simply their per­ ing individual attention. Classification in this sonal attitudes and character but also the case would not produce an efficient use of expectations and understandings of their en­ beds, and many override decisions by clas­ vironment. Their attitudes, feelings, and mo­ sification officers would be needed. Little tives resonate with the needs of the environ­ would be gained by taking the easiest course. ment such that they can step into the breach, The most effective course would be to understand its deficiencies, and provide adapt both Wisconsin's typology and cutoff through their efforts a solution of sorts. levels to Illinois conditions. Wisconsin's ty­ The problem is more than the inmate find­ pology might be used as a prototype, but Il­ ing a niche where he can use his abilities ef­ linois officials should take pains to identify fectively. Each inmate by the time he arrives inmate types peculiar to Illinois. They should in prison has acquired a set of personal also adjust the cutoffs to the idiosyncrasies habits, motives, and attitudes reflecting his of the Illinois correctional system. These pre­ interactions with friends and intimates in a cautions would certainly delay the installa­ variety of settings, e.g., in his family, among tion of its own classification system, but it his peers, or his work groups, for example. would not delay its successful implementa­ These habits, motives, and attitudes, tion. which are specific to his groups and reflect Finally, an interesting problem that correc­ their history, in turn become the subject of tional psychologists have largely ignored and self-regarding feelings and needs such that social psychologists have only just begun to an identity crystalizes to guide him in his grapple with (see Goffman, 1961; Garfinkle, dealing with others. This identity or social

224 PROMISE AND PITFALLS OF CLASSIFICATION character, therefore, is a blend of the cus­ develop a better understanding of this proc­ toms and unspoken understandings of his ess of integrating inmates with prison struc­ groups together with his personality and his ture both formal and informal, our classifi­ feelings of self-worth. His identity is based cation process will not approach its full po­ upon not only his personal needs but also the tential. social patterns of his groups. Much the same happens to long-term in­ Conclusion mates so that their identities reflect in addi­ tion to their personal needs their social ex­ Clearly, classification and reclassification periences in the prison. The social order in hold great promise for a new day of account­ prison is maintained to a large extent by ability in corrections. They also offer an­ these veterans through their identification swers to a number of very interesting ques­ with the values holding their inmate groups tions regarding the nature of offenders and together. the processes of prisons. It all depends upon The problem confronting new inmates, the effectiveness and speed with which cor­ then, is to find a compatible group of veter­ rectional directors can provide the necessary ans with attitudes and feelings as well as so­ computer hardware, and classification offi­ cial customs and understandings not unlike cers can develop the software and databases his own. These customs and unspoken atti­ and can implement classification and reclas­ tudes are well known to veteran inmates, but sification schema. A major managerial effort new inmates must be particularly alert to is needed, but once the system is in place, them lest they violate inadvertently certain it will still require a high level of human re­ of the more sacred ones. lations skill to implement it effectively (Toch, To classify new inmates accurately, there­ 1981). fore, it is necessary to determine not only Custodial staff who already have their in­ their identities upon arrival but also the cus­ formal classification schema will ask, why toms and understandings of the prison envi­ should we abandon our old, familiar classifi­ ronment to which they must adapt. Since cation system for a new and untried system? their adjustment in prison depends upon And the inmates will see dark plots behind their finding a compatible social niche, i.e., the effort to install a new system. Correction­ bringing their social identity into alignment al managers must certainly use their best hu­ with the rules and subtle understandings man relations skills to overcome the resist­ governing their immediate groups, their clas­ ance of both staff and inmates, while also en­ sification must also make some estimate as couraging classification staff in their efforts to how well they will blend in with inmate to build an effective system. groups in the prison. Nevertheless, despite their best efforts Unfortunately, this issue is far from set­ many classification systems will fail. The tled, and estimates of how different types of successful ones, however, will be sufficient inmates will adjust to existing social settings to encourage more to try, and eventually, we are at best educated guesses. Much more re­ will learn how to do it well so that even those search is required before we can classify in­ correctional systems with weak technical mates precisely in terms of their program and managerial resources will be able to field needs. Mistakes can be corrected at reclas­ respectable classification systems. By then sification, of course, and to a certain extent correctional systems will be more orderly, ef­ the patterning of these mistakes will suggest fective, and predictable enterprises. Let us not simply better ways of measuring inmates hope that by then demand for their services but also patterns of interaction between so­ will be much diminished. cial identities and social setting. But until we

225 EXPERTS'PAPERS

Bibliography Classifying Criminal Offenders: A New System Based 011 the MMPI. Beverly Hills, CA: Sage. Brennan, Tim. 1987a. "Classification: An Over­ Meyer, J., Jr. and Edwin, 1. Megargee. 1977. "A view of Selected Methodological Issues" in Predic­ New Classification System for Criminal tion and Classification, Don M. Gottfredson and Offenders: Initial Development of the System." Michael Tonry, eds. Chicago: The University of C1'iminal Justice and Behavior 4: 115-124. Chicago Press. Palmer, Ted B. 1975. "Martinson Revisited." Brennan, Tim. 1987b. "Classification for Control Jounzal of Research in Crime and Delinquency 12: in Jails and Prisons" in Prediction and Classifica­ 133-152. tion, Don M. Gottfredson and Michael Tonry, eds. Peters ilia, Joan and Susan, Turner. 1987. Chicago: The University of Chicago Press. "Guideline-based Justice: Prediction and Racial Clear, Todd R, and Kenneth, W. Gallagher. 1985. Minorities" in Prediction and Classification, Don "Probation and Parole Supervision: A Review of M. GottfredsOli and Michael Tonry, eds. Chica­ Current Classification Practices." Cdme & Delin­ go: The University of Chicago Press. quency 31, No. 3 (JULY): 423-443. Peterson, Mark A., Harriet B. Braiker with Cressey, Donald and John, Irwin. 1962. "Thieves, Suzanne M. Polich. 1981. Who Commits Crimes. Convicts, and the Inmate Culture," Social Prob­ Oelgeschlager, Gunn and Hain, Publishers: Cam­ lems 10, No.2 (Fall): 142-155. bridge, MA. Edinger, Jack D. 1979. "Cross-validation of the Quay, Herbert C. 1979. The Differential Behavior Megargee MMPI Typology for Prisoners." Jour­ Classification of the Adult Male Offender. Phila­ nal of Consulting and Clinical Psychology 47: delphia: Temple University. 234·242. Quay, Herbert C. 1984. Managing Adult Inmates. Edinger, Jack D., David, Reuterfors, and Patrick, College Park, MD: American Correctional Asso­ E. Logue. 1982. "Cross-validation of the Megar­ ciation. gee MMPI Typology." Cdminal Justice and Be­ Quay, Herbert C., and Parsons, L.B. 1971. The havior 9, No.2 (June): 184-203. Differential Behavior Classification of the Juvenile Erikson, Erik H. 1958. Young Man Luthel'. New Offender. Washington, D.C.: Federal Bureau of York: W.W. Norton & Company Inc. Prisons. Erikson, Erik H. 1969. Gandhi's Truth. New Street, David, Robert, D. Vinter, and Charles, York: W.W. Norton & Company, Inc. Perrow. 1966. Organization fOl' Treatment. New Garfinkle, Harold. 1967. Studies in Ethnometho­ York: The Free Press. dology. Englewood Cliffs: Prentice-Hall. Sykes, Gresham M. 1958. The Society of Captives. Glaser, DanieL 1987. "Classification for Risk" in Princeton: Princeton University Press. Prediction and Classification, Don M. Gottfredson Toch, Hans. 1981. "Inmate Classification as a and Michael Tonry, eds. Chicago: The Universi­ Transaction," Criminal Justice and Behavior 8, No. ty of Chicago Press. 1 (March): 3-14. Goffman, Erving. 1961. Asylums. Garden City, Tonry, Michael. 1987. "Prediction and Classifi­ NY: Anchor Books. cation: Legal and Ethical Issues" in Prediction and LeClair, Daniel P. 1977. Development of Base Ex­ Classification, Don M. Gottfredson and Michael pectancy Prediction Tables for Treatment and Con­ Tonry, eds. Chicago: The University of Chicago trol Groups in Correctional Research. Department Press. of Corrections, Boston: Massachusetts. Warren, Marguerite. 1976. "Intervention with Levinson, Robert B. 1988. "Developments in the Juvenile Delinquents," in PU1'suing Justice for the Classification Process Quays AIMS Approach." Child, Margaret K. Rosenheim, ed. Chicago: The Criminal Justice and Behavior 15, No.1 (March): University of Chicago Press. 24-38. Wright, Kevin N., Todd, R Clear, and Paul, Dick­ Levinson, Robert B. and R.E. Gerard. 1986. son. 1984. "Universal Applicability of Probation "Classifying Institutions." Crime & Delinquency Risk-Assessment Instruments." Criminology 22, 32 (No.3): 291-301. No.1: 113-134. Megargee, Edwin 1. and Bohn, M.J., Jr. 1979.

226 Islamic Criminal Justice System-Legislation and Application

by Hassan El-Sa'aty*

Introduction teachings "Sunnah" supplementing the Qu­ r'an, consensus of jurists' opinions "Ijma" 1. The ethical doctrine in Islam is closely and Analogy "Kias." For fourteen centuries, connected with the law, which is derived generation after generation, the learned from the Qur'an and the Hadeeth (sayings scholars of jurisprudence have devoted and doings) of the Prophet. The four schools themselves to the study of Islamic legislation of jurisprudence (fiqh) do not make a special and have accumulated a big fund of Islamic distinction between rules regarding moral knowledge. As long as people complied with conduct and those appertaining to civil and Islamic legislation, it has not failed them in criminal law. The moral teaching of Islam is their daily affairs. an integral part of a practical code designed 5. According to Islamic legislation, mete­ to instruct the Muslim in the way he should ing out punishments for crimes is one of follow to win the approval of God. God's prerogatives in order to protect hu­ 2. The Islamic conception of justice is manity from evil and attain peace and secu­ based on fair dealing and equity. God bids rity for them. These crimes are: men judge with justice. He Himself is the most just of judges. Just balances will be set a) crimes punishable by fixed punishments up on the Day of Judgement so that no soul "hudoud": adultery, defamation, will be wronged in any way. On this day the alcohol-drinking, theft, highway rob­ unjust will have to pay for their injustice. bery, apostasy from Islam and attempt­ 3. The Kingdom of Saudi Arabia is the first ed coup d'etat. Muslim country to apply Islamic legislation b) crimes punishable by retaliation and in all aspects of everyday life, inter. alia., blood-money: premeditated murder, crime prevention. The result of this experi­ semi-premeditated murder, murder by ence has been prevailing security in the error, premeditated offence against hu­ towns, villages and deserts of the Kingdom. man life short of murder and offence by This security and social and economic sta­ error against human life short of mur­ bility in Saudi Arabia have been commend­ der. ed by the great majority of other Muslim c) crimes other than those mentioned in a. States which do not fully apply Muslim Law, and b. punishable by "ta'zir," i.e. dis­ i.e., the Shari'a. cretionary punishment.

Characteristics of Islamic Legislation The "ta'zir" crimes are not all specifical­ ly quoted in the Holy Qur' an or in the 4. Islamic legislation is characterised by Prophets "Sunnah." However, they are pun­ the diversity of its sources and thereby it is ishable because they represent acts of diso­ easy to deduce solutions and legal judge­ bedience to God's commandments and lead ments. In addition to the Holy Qur'an, the to wrongdoing. Although they are not speci­ following are the other sources: Prophetic fied, Islamic legislative sources have men­ tioned some of them, such as usuary, trea­ son, and cursing. In the interest of the com­ munity, the competent authority may pardon

227 EXPERTS' PAPERS the culprit from "ta'zir" punishments provid­ and others. Hence the public execution ed this act does not prejudice the individual of chastisement. In Islamic law, all pun­ victim's rights. The victim may forgive the ishments for crimes committed should culprit as far as his own rights are concerned be executed in public and before a large without prejudicing the public rights exer­ crowd. In reference to this point, the cised by the competent authority of the coun­ Qur'an says: "The execution of punish­ try. "Ta'zir" punishments are exhortation, ment inflicted upon the convicted should censure, payment of fine, or confiscation of be witnessed by a host of believers." property. The convicted person may be con­ b) To punish the criminal for the crime he fined, flogged, or, in rare cases such as spy­ has committed. This is clearly ing against one's country, be condemned to prescribed in "hudoud" and retaliatory death. punishments. c) To rehabilitate the criminal; this is self­ Definition of Crime evident, particularly in the cases of high­ way robbery. It may also be evident in 6. Crime, according to Muslim jurists, is refusing to accept the defamer's witness committing an act which is punishable or the unless he has completely changed his abandonment of an act which should have conduct. been carried out. In this general definition of crime, according to Islamic jurisprudence, Although ohastisement may be painful, it disobedience, sin and other acts of wrong­ serves as a cure. When the person realizes doing, such as envy and hatred of somebody that he will be chastised before a large who does not deserve it, are considered crowd, he will be deterred from committing crimes punishable by God in this world and even the slightest offence. in the hereafter. The more precise definition of crime is committing a legally prohibited The Crime of Apostasy act punishable by fixed punishments: "hudoud" or discretionmy punishments: 8. As apostasy has, recently, been widely "ta'zir." In Islamic jurisprudence, crimes are discussed in British and European learned as classified according to their relative punish­ well as lay circles, a few words on apostasy ments into "Hudoud" crimes which have as a heinous crime in Islam would not be out fixed punishments, "Kisas" crimes which of place. According to comparative academic have retaliatory punishments, and "Ta'zir" studies, the offence of apostasy and defec­ crimes which have discretionary individual­ tion from Islam is inconsistent with the free­ ized punishments. Islamic law is meticulous­ dom of belief as stipulated in the Qur'an: ly keen on the preservation and protection "Let there be no compulsion in religion." On of the five indispensable main rights: reli­ this point, I would like to add some explana­ gion, life, mind, offspring and property, and tory observations. it does not hesitate to inflict severe punish­ 9. Apostasy from Islam is considered a ment on anyone who dares to violate them. criminal act in order to safeguard the inter­ ests of the society, for the integrity of belief Objectives of Punishment in Islam is man's prerogative. Therefore any offence against man's integrity of belief is an offence 7. Reference should be made to the objec­ against his honour. Rebellion against one's tives of punishment in Islamic law. These belief (Islam) represents a grave threat to the are: whole social structure by the fact that the in­ a) To serve as a deterring and discourag­ dividualloses his faith in the basic heritage ing factor against crime to the criminal and his allegiance to the ideals that the reli-

228 ISLAMIC CRIMINAL JUSTICE SYSTEM gion preaches. The individual's allegiance to ate a problem for the authorities. his nation's faith is his commitment to the interests and principles of the nation to Diversity of "Sbari'a" which he belongs, and it is a token of his compliance with the views of the majority 13. It is worthy of note that the Qur'anic and his willingness to defend them. Should and Sunnah texts give more importance to a person defect from his belief, it means his "hudoud" crimes than other sources of Is­ desertion of his people and all the grave con­ lamic legislation which give greater consid­ sequences that result from such a defection. eration to discretionary crimes. The diver­ There is no difference between a person who sity of sources of Islamic Shari'a is not with­ defects from Islam and the person who joins out a purpose or devoid of wisdom. The the enemy whether on ideological or practi­ widened scope of "ta'zir" sources is prima­ cal planes. In order to safeguard the entity rily meant to connect discretionary crimes of the nation, its interests and sacred beliefs, with the ever increasing growth of society. the Prophet has ordained that an apostate be The judge or the head of the state who condemned to death unless he denounces his decrees a certain act as a crime must, as apostasy and declares his atonement and be­ Muslim jurists assert, consider the living haves accordingly in words and deeds. conditions and social circumstances of the 10. Apostasy from Islam is inconsistent community before exercising his discretion­ with the natural rights of citizenship and the ary powers. When a certain crime is wide­ legal status of the apostate, since the spread, the magistrate must choose the apostate is neither a non-Muslim to be treat­ severest punishment; but when this particu­ ed accordingly, nor a Muslim because he has lar crime decreases in the course of time, defected from Islam. Therefore an apostate punishment should become lighter. The is an outlaw and his crime is not different sources of Islamic Shari' a keep on develop­ from high treason punishable by death. ing and growing to the extent that they en­ 11. Islamic Shari'a has explicitly stipulat­ compass all discretionary crimes and the con­ ed that an apostate has no legal entity with­ cept of criminal responsibility. in his nation, and therefore he has to be con­ demned to death. The Prophet narrated (in Criminal Responsibility the Hadeeth): "No Muslim who testifies that there is no God but Allah and Mohammad 14. Criminal responsibility in Islamic law is His Apostle can be condemned to death is based upon two principles: except in three cases-and one of them is an apostate who defects from his religion and a) Punishment i.s an social necessity im­ community." So the Prophet equalized an posed to protect society and safeguard apostate from religion with a defector from man's interests. Necessity is estimated one's own people. according to its importance for the pro­ 12. Apostasy, in the eyes of custom and so­ tection of society. ciety, is a crime even on the political level. b) Punishment is inflicted on a person who Apostasy in its political connotations means is sane and able to discern and exercise a person who changes political parties. Such his own free will. This does not mean a man loses his identity and is known as a that appropriate measures should not be turncoat. Apostasy from Islam creates the taken to protect society against crimes same serious situation like a man giving up committed by criminally non­ his nationality in favour of another country. responsible offenders. In such cases, ac­ If a group of people decided to do such an cording to Islamic law, the perSOll in act in a given country, it would surely cre- charge of the interests of a legally nOll-

229 EXPERTS' PAPERS

responsible offender has to bear the re­ ion. Hence the Shari'a called upon Mus­ sponsibility for his offence. Such a lims to do a good turn and abstain from measure would inevitably lead to the evil, and the Shari'a holds the morally protection of community interests. sound responsible for the immoral per­ son if the latter does not try to turn over 15. It is one of the basic rules of Islamic a new leaf. If the Muslims exchanged law that no one bears the responsibility of amongst themselves good counsel, mis­ another's offence. Thus criminal responsibil­ chief will be eliminated and they will be­ ity is a personal responsibility and is estab­ have humanely towards each other. lished once an offence is committed and the b) Prudence and decency should be culti­ offender is sane and able to exercise his own vated. Stirring up and activating pru­ free will. dence in the heart of a criminal is con­ sidered a potent cure, for it will discour­ Lenience in Islamic Law (Shari'a) age him to commit further offences. The Prophet said: "If you lack prudence, you 16. It is worthy of note that Islamic law will be brazen enough to commit any lays emphasis on the fact that not all offences offence." would be considered with the same criteri­ c) Discourage people to spread scandal. on. Furthermore, Islamic Penal Law urged The Prophet is reported to l).ave said: on crime prevention before its commission, "0 ye people! If anyone has committed and this could be achieved only through a dirty immoral act and kept it hidden moral education and up bringing. Only within himself, God will not disclose through betterment of ethical values of an in­ him. But if he publicized it, a punish­ dividual can he comprehend the conception ment would be inflic~ed upon him." Old of good and refrain from evil and thus com­ men of wisdom said: "If you fall into a ply with the teachings of Islam. moral scandal, hide it from the people." 17. Needless to say, tender and gentle This is a clear hint that hiding an im­ words are quite effective in guiding stray moral act will divest it of its impact and souls. The Prophet said that while tender­ will help people to abstain from it. Re­ ness invests anything with beauty, cruelty vealing a crime in Islam implies two makes it defective and ugly. The Shari'a offences: committing the crime and an­ therefore stressed the combatting of crime nouncing it. The Prophet said: "If a sin and deviance with tenderness in order to is not disclosed, it will harm hut the divert the offender from his evil course. The offender; but if disclosed, it would in­ Prophet urged his Companions not to voke God's wrath." reproach the criminal, lest he should with­ draw from the believers and should lapse into 19. Social defence, in the sense of re­ more sins. habilitating and curing the offender by 18. In Islam, there is no one who is incura­ eradicating crime, has origins in Islamic bly ill. Even the worst criminal can be re­ Shari'a. In summary they are: habilitated. He can repent and achieve ab­ solution. Islamic law did not only leave the 1st. Crime prevention before its commission door open for repentance, it also strove to through the following measures: cure the criminal's morale. To consolidate a) Guiding people to have faith in religion moral values, the Shari'a advocates the fol­ to protect them from deviance. lowing: b) Cultivating the love of doing good in the people. a) Formulation of a cultivated public opin- c) Doing a good turn and abstaining from

230 ISLAMIC CRIMINAL JUSTICE SYSTEM

evil. Evidence in Islamic Law d) Social and cultural guidance. e) Encouraging the love of co-operation 21. In Saudi Arabia, jurists do not consid­ and exchange of counsel. er the lapse of time except concerning 2nd. Crimes must not be disclosed so that "hudoud" crime witnesses. Any testimony moral scandals are not widely spread and not given within a prescribed time is consid­ the offender does not continue with his ered null and void. If a witness gave his tes­ crimes. timony long after a case had been tried in the 3rd. "Hudoud" punishments to be inflict­ law court, his testimony would not be valid. ed on the offenders but dubious cases Since in this case the witness's testimony should be averted. Likewise, "ta'zir" pun­ would favour the defendant's case, therefore ishments to be decreed on the offender the testimony (given long after the trial in the provided that his circumstances are taken court) would be disregarded. into consideration. . 22. Evidence, whether rational or palpable, 4th. Repentance to be allowed to the is defined as an evident indication of the offender without restrictions. commission of an offence by a certain per­ 5th. The offender must not be ostracized son. It is called "evidence" because it tends and should not be reproached for his to reveal the hidden criminal intention of the crime. offender. This evidence could be either tes­ 6th. People should be encouraged to timony, or a confession by the offender, or pardon offenders. a solemn oath taken by the plaintiff, or a tes­ 7th. Care should be given to the Shari'a timony given by the plaintiff himself, such injunctions, for promoting mutual aid and as "lia'an," when the husband launches a co-operation in financial and moral affairs charge against his chaste wife. At times, the with a view to guaranteeing a prosperous evidence is established by close scrutiny of life to everyone. conjectures and circumstances connected with the crime in order to lay the guilt on the 20. The close consideration of the crimi­ defendant. A testimony is defined as being nal's circumstances, known in contemporary a report of what the witness has seen or criminological terminology as the "individu­ heard. The word "witness" can be used both alization of punishment," falls within the as a verb or a noun. scope of the criminal policy of Islamic law. 23. The word for "oath" in Arabic is "Ya­ It calls upon the judge to consider the cir­ min," which literally means "right," oppo­ cumstances of the criminal to find out the site of left, because one offender used to clap real motives that drove him to commit the his right hand with that of the plaintiff. Cir­ crime. Thereupon the decisive measures are cumstantial evidence is connected with, and taken by the judge. Punishment is decreed indicative of, the crime for which punish­ and inflicted in proportion to the amount of ment is claimed. Where circumstantial evi­ harm done and in relation to the criminal's dence exists, it is a proof of the commission conditions. The criminal's harsh punishment of a crime. A spouse is indicative of, and as­ may be substituted by a lighter one. He may sociated with, the person to whom "he is receive medical treatment or moral edifica­ wedded. Such is circumstantial evidence tion. Islamic Shari'a does not object to any which is closely associated with the crime for procedure leading to the disclosure of the which punishment is claimed. criminal's circumstances either through medical examination or social investigations.

231 EXPERTS'PAPERS

The Implementation of vision. The kisas is executed in accordance "Shari'a" Penalties in the Kingdom with the Shari'a. When the sentence is en­ of Saudi Arabia dorsed by the King, the murderer is in­ formed to enable him to see to worldly and 24. In the Kingdom of Saudi Arabia, "ki­ religious affairs. The murderer's kin are also sas" punishment is inflicted with a sword or notified in order to attend the execution of a rifle, because it puts a very quick end to the kisas. the life of the culprit. There are three prereq­ 27. The murderer is led to the plaza oppo­ uisites for "kisas" punishments: site to the Governor's palace where the ki­ sas is executed in the presence of the Gov­ a) Capital punishment should not be inflict­ ernor of the district or the province where ed upon minors or insane culprits. the kisas takes place. After announcing the b) Kisas does not permit the taking of an­ murderer's name, the victim's name and the other life other than that in question. For whole case, the murderer is beheaded with example, if a woman is pregnant or be­ a sword. As the relatives of the victim are came pregnant after the sentence was not usually efficient at executing capital pun­ passed, the execution is deferred until ishment, a swordsman is appointed by the she delivers the baby and weans him State to carry out the kisas. from the breast. 28. Nevertheless, the Government of Saudi Arabia, in pursuance of the Shari'a, does its 25. Lawsuits are usually referred to the utmost before the execution of the kisas, to Shari'a judges. Apart from the Lower Courts convince the relatives of the victim to agree that deal with minor civil cases, criminal to commute the kisas in to blood-money cases go the higher courts. Judges of such "diya." In fact, in some cases members of courts usually make a thorough investigation the Saudi Royal Family and other citizens of the case. When the judges feel that the have interceded with the family of the vic­ only possible sentence is the kisas, the case tim to agree to commute the kisas into diya is then taken up to the Court of Cassation for in order to prevent bloodshed. In some cases further investigation. When the decision is these efforts have succeeded, while in other the kisas, the case is refen·ed to the Supreme cases they failed and so the kisas was duly Court where a panel of judges lmllch a large­ carried out in accordance with the injunc­ scale investigation into the case and the pro­ tions of the Shari' a. posed sentence. If they confirm the kisas the 29. In pursuance of achieving the scope of whole case is submitted to His Majesty the the Shari'a in providing justice, order and King to give his endorsement. Then the fi­ equality in the Muslim society, the amputa­ nal Royal decision and the endorsement of tion of parts of the body (i.e. partial kisas) the case are taken to the executive depart­ has been legalized instead of capital punish­ ments for the execution of the Royal deci­ ment. The amputation of limbs such as hand, sion. All this shows how detailed and accu­ foot, eye, ear, nose, eye-lid, lip or finger is rate the procedures are in order to secure jus­ executed according to the following prereq­ tice. uisites: 26. The kisas is executed by someone re­ lated to the victim provided he is able to car­ a) Making sure that justice takes its ry out the execution efficiently. Otherwise, course. an efficient executioner is delegated by the b) Analogy of the parts to be cut off: the relatives of the victim. The execution takes right hand of the offender for the right place in the presence of an official of the Au­ hand of the victim and so on. thority (or his Deputy) and under his super- c) Equality in parts, i.e. it is not legal to cut

232 ISLAMIC CRIMINAL JUSTICE SYSTEM

off a healthy part of the body for a dis­ of their qualifications in the Shari'a. The eased part of the victim's body. Saudi Judicature is as independent as any other authority in the land. This means that The Wisdom of Diya the king has both duties and rights, as the (Blood-Money) as Punishment concept of the monarch who has only rights and no duties is unknown in Islamic law. 30. Diya is a merciful alternative stipulat­ This means that Islamic courts are independ­ ed by Islamic Shari'a. Originally "diya" was ent and there are certain procedures that a recompense of one hundred camels. Some help the Judicature to remain independent. Shari'a scholars believe the diya is a payment In brief, these are: of either one thousand gold dinars, twelve thousand silver durhams, or recompense of 1st. Selection and nomination of judges two hundred cows or two thousand sheep. are based on high standard, long experi­ 31. The scholars of the Shari'a in the King­ ence, capability and loyalty. Judges must dom 01 Saudi Arabia prefer the ,"diya" to be be graduates of Shari' a colleges and are paid in camels. However, if there are not appointed by a special Royal Decree. In enough camels, then the equivalent amount addition to normal salaries, judges are en­ of one hundred camels in gold or silver. titled to additional fringe benefits. Therefore, due to the fact that there are not 2nd. The immunity enjoyed by judges enough camels available in the Kingdom, the means that they cannot be transferred or Saudi Government, in consultation with the their services terminated by the Executive Shari'a scholars, has established a fixed Authority. amount of money. The value of a camel in 3rd. Saudi junges enjoy full protection by gold or silver varies from time to time. Dur­ the Law in order to retain their independ­ ing the reign of the late King Abdul Aziz, the ence in judgements. Their immunity founder of the Kingdom in 1932, the "diya" safeguards them against any form of was the equivalent of eight hundred Riyals abuse. in French silver, then it became three thou­ 4th. Judges are restricted as regards their sand Saudi silver Riyals. Afterwards, it rose judiciary position. They must be impar­ to sixteen thousand and to twenty-four thou­ tial and should not pass judgement in mat­ sand Saudi silver Riyals. Unofficial sources ters involving relatives, enemies or per­ report that the diya has now risen to forty sonal interests. They should not have con­ thousand Saudi silver Riyals. tact outside the court with either of the 32. In the Kingdom of Saudi Arabia, the contending parties or their representa­ Petition Bureau is a very important institu­ tives. They should also not participate in tion in Islamic legislation. This Bureau is ad­ any activity that may blemish their repu­ ministered under the direction of a Grand tation, such as an occupation outside their Learned Sheikh. It was set up to cope with portfolio. the rapid development of the Saudi Society which necessitated new courts and depart­ The Administrative Criminal ments to deal with special problems. System in the Kingdom

Judiciary Independence 34. There are courts that handle criminal matters and examine specific cases and dis­ 33. By independence is meant the non­ putes; there are courts of summary jurisdic­ interference by the executive authority in the tion with one judge; the Supreme religious affairs of justice. King Abdul Aziz gave spe­ Court, which consists of seven grand judges, cial rights to the religious scholars by virtue deals with serious offences and crimes; there

233 EXPERTS'PAPERS are also numerous courts of First Instance Judgement Procedure as well as two courts of Appeal, one in Riyadh, the Capital, and the other in Mec­ 37. Each party has the legal right to de­ ca. These are known as the Courts of Cas­ fend his case. The court does not welcome sation and many judges are employed to deal large crowds in the court-room during the with criminal and civil cases. Cases related hearing and forbids side consultations which to murder are referred to the Supreme Court might affect the technical aspects of the tri­ which revises the sentences passed by other al. Once a crime is firmly established with courts. concrete evidence, the sentence is passed at 35. It is quite difficult to distinguish be­ the end of the session. The defendant and tween the preliminary questioning and inter­ the plaintiff should substantiate the points rogation regarding a given accusation, as they want to make with concrete proof. It is both are conducted by the police and are not worth noting that proof and evidence must subject to the jurisdiction of any judicial au­ be proceeded by the plaintiff, particularly thority. In this sense, there is a great simi­ with regard to "hudoud" crimes. Proof may larity between the British and Saudi systems. be substantiated through material evidence, In order not to violate the traditions of the documentary evidence or witnesses. Kingdom, the idea of forming a semi-judicial 38. A self-confident offender should feel court for investigations was not pursued. completely free to express his views without 36. Litigious procedures could be taken by: any restriction and his confession should not be subject to any pressure. Custody, im­ a) The individual who wishes to lodge a prisonment or confiscation of property can­ suit against another individual or the au­ not take place without warrant. The with­ thorities; drawal of self-confession 1'; permissible; but b) The police, bearing in mind that the in that case, another trial is conducted. No Saudi judges conduct open trials in the consideration is given to anything arousing interest of public morals, and they thor­ suspicion during the trial. oughly examine all aspects of every 39. In Saudi Arabia, the accused is inno­ case; cent until he is proven guilty. This shows c) The presence of all parties concerned that every possible effort is made to ensure and the observance of justice and equal­ that justice is meted out. ity between the two contending parties.

234 SECTION 2: PARTICIPANTS' PAPERS

Practical Measures to Alleviate the Problem of Overcrowding

by H.J Shardin bin Chek Lah *

Introduction which makes the control and development of good self-inmate relationships difficult. Due to the world recession and the countries Malaysia has a population of 16.9 million general economic constraints, large financial (Economic Report 85/86) of whiGh 14.02 mil­ allocations for the buildings of new prisons lion reside in Peninsular Malaysia and 2.88 and the recruitment of more staff could not million reside in East Malaysia. The ethnic be fulfilled. breakdown are 53.9 percent Malays; 34.9 At the rate the prisoners are increasing, percent Chinese; 10.5 percent Indians; other the situation of overcrowding can only wor­ races 0.7 percent (Focus on Malaysian real­ sen with time. The big question is "should ities). we keep on building more and more prisons In a multi-racial society like Malaysia, the just to accommodate the increasing number prison popUlation likewise comprises 37.23 of prisons, or what other measures could we percent Malays; 31.56 percent Chinese; 13.8 adopt to overcome overcrowding in prisons?" percent Indians; and 17.37 percent other races in the total prison population of 21,066 1. Construction of New Facilities as of December 31st, 1988. The average rate of annual increase is 8.6 Most prisons in Malaysia were built by the percent reckoned over a period of five years. British during the last century, many of them In comparison with the population of the nearly 100 years old. From the outside they country, 16.9 million, it amounts to 0.125 look powerful, forbidding and desolate. Each percent (prison population 15,864 as of Dec. cell-block has one, two or three tiers of cells, 31, 1984). squeezed in orderly rows along both walls. All this while the Prisons Department of The middle is left free, so that an officer is Malaysia is lucky to have escaped and over­ able to see in all directions. As many as 500 come serious crises in the prisons, due to the prisoners are herded together in one block. wise decision and effective action of the pris­ These conditions result in a perturbing de­ on administrators. The deteriorating position valuation of human beings. There is no doubt of the Prison regime and security are obvi­ that the structure and layout of a prison ous from the fact that all Prisons Institutions building influences the prevailing atmos­ are overcrowded, thus, forcing cutbacks on phere and the morale of prisoners and staff. accommodation, training facilities and reha­ Though originally built to hold fewer than bilitation programmes for prisoners. 200-600, some of the old prisons, like Pudu, At present most of the prisons are fully ac­ Taiping, Penang and 10hor Bahru, have commodated by all categories of prisoners, 2,000 to 4,000 prisoners. In the last few years, determined efforts have been made to improve the large, old prisons with renova­ * Superintendent of Prisons, Head of Penal Institution tion of old blocks and cells. A few smaller (Malacca), Malaysia buildings were added to the already

235 PARTICIPANTS' PAPERS

crammed compound, and there is no more 2. Cooperation between the Criminal rooms for further expansion. Some of the old Justice and the Private Sector prisons are not only crowded with prisoners, but also with buildings, towering metal Unless immediate steps are taken to find fences and barbed wires. counter measures to overcrowding in prisons Building new prisons is a very slow proc­ the system which administers justice in the ess. The New Selangor Central Prison in country will continue to stand accused of us­ Kajang was built under the First Malaysia ing outmoded methods to deal with present Plan by the Public Works Department and day complexities, and no defence is accept­ the project started in 1970 took nearly 16 able. years to complete. With a view to overcome The expansion and amendments to legis­ the overcrowding problems and to replace lation over the years, principally through existing old, ill-adapted prisons, the Depart­ statutory provisions, has imposed such btJr­ ment is in the process of building a number dens on the current method of administer­ of new, modern penal institutions, and this ing justice as it is unable to bear without sac­ will perhaps take another decade or two to rificing, at least in some small measure, the be completed if undertaken by the Public quality of justice. While the public has a right Works Department. to expect the courts to administer justice in In this respect prisons in Malaysia are con­ the most efficient manner and with minimum cerned about prisoners rehabilitation and delay, it is not always possible to dispose of their re-entry into society. There are nearly cases expeditiously because of the increas­ 22,000 prisoners in.Malaysian Prison Insti­ ing number of civil litigations and criminal tutions. True this number can be read as prosecutions. At the moment Malaysia is 22,000 misfits, miscreants and wrongdoers. also short of Judges, Magistrates, Police In a great many cases however, the forgot­ Prosecutors, and even court officials to deal ten truth is that these people may also be with the increasing work-load. The economic skilled workers like carpenters, masons, me­ constraints have also cut back on recruit­ chanics, craftsmen, welders and artisans. ment and even if the Government is able to They form a pool of captive talent and un­ provide the allocations, recruitment of these harnessed potential for productive labour professionals would still be difficult, because and the prisons Department has taken this of the training and experience required. opportunity to capitalise on this hitherto un­ However, something must be done quickly recognised fact. Seventy skilled prisoners re­ to correct the present state of affairs if jus­ cently built the New Prisons Headquarters tice is to be done. in Kajang in record time of 18 months at a cost of $2.7 million. In contrast the Public 2.1. Pardons Works Department had estimated the proj­ Pardons have long been in existence in the ect to cost a minimum of 3.5 million, and form of the royal prerogative of mercy, as would take about 3 years to complete. an except{onal means to revise the effect and The Department has been given the bless­ application of the criminal law in certain ing to build 4 new Remand Centers: 1 Open cases, like the Death Sentences. Pardons are Prison; 1 Drug Rehabilitation Centre; and 2 broadly classified into two types, i.e. gener­ new Prisons; and on average, 75 percent of al and individual. General pardons are the work has been completed. These prisons promulgated in the form of a Cabinet Or­ when completed will be able to accommodate dinance in commemoration of special occa­ the present number of prisoners, till the year sions of national significance, like "Merde­ 2,000. ka Day" or Independence Day. On the other hand individual pardon is

236 PRACTICAL MEASURES FOR OVERCROWDING provided for in the Prison Rules of 1953 of minor offences to prisons, the Government which have significance from the view point as far back as 33 years ago, set up two com­ of Prison Rehabilitation, since they are pulsory attendance centres under the Com­ awarded on the ground of individual need. pulsory Attendance Ordinance 1954. It was The King or the Rulers in Council may an excellent alternative to imprisonment for remit the residue of the prisoners sentence offenders of the category mentioned, as through petitions and quadrennial reports on sending them to prisons would not only bur­ prisoners submitted by the prisons on every den the prisons with custodial functions, but prisoner who has during the term of im­ also disrupt their family ties, and gainful em­ prisonment completed 4, 8, 12 16 or 20 years ployment. The short period of incarceration of his sentence. would not in anyway help in their rehabili­ The Minister of Home Affairs may also tation programmes, and the social stigma at­ grant remission without limit to prisoners tached to it would also hamper their repatri­ who have given special services, but then the ation into the community. number of those granted remissions through Under this system first otfenders of minor these provisions are very small to merit even offences under sentences of imprisonment a mention in the prison statistic, and has not for not more than three months were com­ in anyway helped to ease the overcrowding mitted to these centres for not more than in prisons. three hours daily, after their usual working However, pardon as a royal prerogative of hours. They had to report to the centres daily mercy and the remission of sentence should five days a week from 5:00 to 8:00 p.m. not be used as means to reduce overcrowd­ These two centres functioned for a couple ing in Prisons. of years, but "they died as soon as they were born" so to speak. The Courts in Penang and 2.2. Fine Kuala Lumpur seldom took advantage of us­ Another strategy by which Malaysian law ing the Compulsory Attendance Ordinance tries to reduce imprisonment is by imposing 1954 and the existence of these two centres fine or monetary penalty, that is a sum of deminished. The reasons were unknown. money fixed by the court as penalty for an Perhaps it was due to the conservative out­ offence punishable by fine or imprisonment, look on sentencing and punishment. Anyway or both. The main difficulties arise where the both the Compulsory Attendance Ordinance sentenced person is in default of payment, 1954 and the Compulsory Attendance Rules either because he has no money or deliber­ 1955 have not been repealed. ately refuses to pay the fine. In these cases Now 33 years later, all the Prisons Insti­ the person is sent to prison for as many days tutions in the countly are overcrowded, per­ as he is in default of payment. The number haps the authorities would now consider us­ of persons in default and therefore impris­ ing the CompulsOlY Attendance Ordinance oned has increased. So fine has not in any 1954 to send traffic offenders to these way helped to reduce the prison population. centres. More Highways are being develop­ Perhaps we should allow an offender to pay ed, and the tremendous increase in the num­ fines in instalments, or order a deduction ber of vehicles on the roads today will defi­ from his salary, like its being done in some nitely increase the number of traffic countries. It is believed that this system offenders in the future. This type of alter­ would serve the purpose of a fine, in its true native to imprisonment is most suitable to sense. traffic offenders, as its being done success­ fully in Japan. 2.3. Compuls01), Attendance Centres In an effort to avoid sending first offenders 2.4. Alternative to Imprisonment

237 PARTICIPANTS' PAPERS

In Malaysia no new innovative sanction before trial cannot only put an offender at a has been recommended as an alternative to grave disadvantage in terms of social stig­ imprisonment. Every sentence carries a term ma, loss of income or jobs and damage to of imprisonment from a day to natural life. family ties but also causing a cutback on The crime rate has risen and so are new much needed prison accommodation. legislations. This is certainly true in the I suggest that the present system of pretri­ sense that imprisonment has not been avoid­ al detention should be carefully studied, so ed when passing new ACTS. The reasons that the practice, if used strictly according why imprisonment is look upon as an inevi­ to principles would result in fewer cases of table criminal sanction is the belief in a de­ pretrial detention, particularly in the field of terrent effect of that enormous prison ma­ minor ,Jffences. chinery, and the belief that it is possible to train and educate at least a certain percent­ 2.6. Community Service age of prisoners to change their criminal Community Service is another form of al­ habits and indeed the belief that for securi­ ternative to imprisonment which is being ty reasons they should be kept away from so­ used in other countries, but it is not without cieties of a longer period. Perhaps the main a disadvantage, the amount of manpower reason is that there is no other choice or al­ which has to be engaged in finding and su­ ternatives by which Malaysian law can use pervising the community service jobs is re­ in trying to reduce or avoid imprisonment. markable and the community service system So the main strategies by which Malaysian is thereby more costly than it might seem at law can try to reduce imprisonment is by re­ the first glance. However, provision for the sorting to alternatives. However, without a avoidance of imprisonment in the case of greater consent of effort on the part of the default to pay the fine should be made by or­ authorities to introduce some form of alter­ dering the offender to do community serv­ natives, the courts will have no choice but ice in old folks homes, hospitals, orphanages, to resort to a fine or imprisonment or both. other welfare homes, town councils and city Therefore the trust for the future would have halls. Offenders who are in default to pay to be in finding a niche in the present crimi­ fines, should be assigned to these homes un­ nal sanctions, so as to come up with some der the supervision of the homes superinten­ form of alternatives to imprisonment. dants. They should be made to do commu­ The alternatives in our time must be 1m­ nity service after their normal working hours mane and not of the type with a concept of for 3 hours daily. Thus the social damage to "an eye for an eye." On the other hand pen­ the offenders and his family is reduced to a alties must fit the crime and terrify the on­ minimum, since he is not cut off from his looker. work, family and social ties. Besides, this system of community service will not cost 2.5. Pretrial Detention the Government a single cent. There are al­ It cannot be denied that there is a wide­ ready old folks and welfare homes, hospitals spread practice in our criminal justice sys­ and town councils allover the country, where tem to remand suspects in custody before tri­ the offenders could be sent. This form of al. It is believed that the detention is imposed community service should also be used for too soon, too often and too long. No doubt first offenders of minor offences whose sen­ that there are non-bailable cases where re­ tences do not exceed 2 years. mand in custody is simply inevitable, but there are also others, who are detained for 2. 7. Drug Addicts failure to find sureties, or afford a bail. We A case in point is the amendment to the must realise that unnecessary confinement Dangerous Drugs Ordinance to cope with

238 PRACTICAL MEASURES FOR OVERCROWDING

drug addiction which is becoming a serious in a rubber estate, they were from the Kem problem. The increasing number of drug ad­ Kendong. The work included the clearing of dicts and drug traffickers in prison have the estate, planting of rubber trees and tap­ formed a menance in the prisons. Today the ping them as well as involvement in social increasing number of drug addicts and drug work around the surrounding areas. traffickers poses special problems to the staff The scheme to re-employ prisoners for with increasing work load and making it such work was re-introduced in 1981 where­ more arduous. Drug addicts and drug by selected prisoners benefited from the traffickers have an unsettling and disturbing plan. effect in prisons, and their presence are apt The present scheme known as the "Ibra­ to interfere or hinder the training and treat­ him System" named after the Chief Direc­ ment of the other offenders. While the drug tor of Prisons, Dato Ibrahim, aims at integra­ addict as a medico-socio problem needs spe­ tion of prisoners to return to society as re­ cial attention all the time, the drug traffick­ sponsible and gainfully employed members. er with his powerful and strong connections outside has to be prevented from subverting a. Objective other offenders or members of the staff for The "Ibrahim System" amongst other his own purpose. things aims at: Drug addicts in the first place, should not 1. Integration and socialisation of prisons; have been confined in prisons, for they not 2. Nutures positive values and responsi­ only pose as a threat to the prison regime, bility to face the challenges of the out­ but also to the security of the prisons."'They side world; should not be punished but treated for be­ 3. To eradicate inherent social stigma of ing drug addicts because nothing much can prisoners by involvement in social be done for them by way of treatment or re­ work; habilitation in prison. The accommodation 4. To instill in the general public the need and space demanded by them in already and necessity in helping prisoners to overcrowded prisons is a problem that has lead a normal after-prison life. been weighing heavily on prison authorities for quite sometime now. The earlier they are Broadly the scheme is to enable the rerouted away from prisons the better in smooth transition into normalcy after their terms of prison accommodations. release from the prison which would enable prisoners to prepare for their return to their 3. Application of Community-Based families, save money to supplement the fam­ Programs ily expenditure, regain their self-respect thus regaining acceptance in society as well as be­ 3.1. Program for Pre-Telease Prisoners ing a part and parcel of society as responsi­ ble and gainfully employed members. Introduction The practice of having prisoners (before b. The board for the scheme their release) to work outside prison walls in Prisons adopting the "Ibrahim System" the fifties was curtailed due to the commu­ having a body called the "Committee for the nist insurgency and the declaration of the Pre-released Prisoners" comprising the fol­ Emergency. Prior to that some 40-50 pris­ lowing: oners from the Pudu Prison were under the The Director or Superintendent of Prison; employment of the Borneo Soci~ty, a con­ Deputy Superintendent; struction company; in Negeri Sembilan an­ Reception Officer; other batch of 50 prisoners were employed Counselling Officer;

239 PARTICIPANTS' PAPERS

An Officer in-charge of the Pre-release to enable them to qualify. Camp. At present, almost 2,000 prisoners or 15 percent of the inmate population are engaged This Committee would be responsible for: in the services outside the prisons, in the 5 Selection of prisoners for the Scheme; pre-release camps, 6 pre-release centres and Board and Lodging facilities; 2 pre-release camps within the worksite Type of work suitable, wages; throughout Malaysia. Discipline including its methods of imple- mentation. d. Lodging and its suitability The camps and centres are equipped with This Committee ascertains the eligibility amenities and privileges which are better of prisoners who merit inclusion in the than those in regular prisons; prisoners in scheme. It is also required to establish a de­ prisons without such pre-release facilities are tailed operation plan together with its pro­ housed separately within the prison. cedures, etc. Such selected prisoners are given training and guidance in social integration amongst c. Selection of prisoners themselves and their families, religious guid­ The important criteria in choosing the ance, physical fitness awareness com­ proper candidates should include: plimented by emotional awareness and train­ 1. Star class prisoners or second time pris­ ing and counselling in appreciation of regain­ oners who do not have outstanding ing self-respect. These counselling, training cases against them; and guidance are aimed at overcoming and 2. Having served a portion of their sen­ aiding them in their everyday lives. Such tence leaving a period of 6 to 12 months positive motivation are calculated to instill before their release; responsibility and awareness of the necessi­ 3. Long-term prisoners of 5 years and ty towards society. These activities are con­ above should have at the earliest a bal­ ducted in groups of 6 to 12 persons. These ance of 24 months or lesser before group therapies are conducted by voluntary release; religious, counselling and law enforcement 4. Possess good record and suitably rec­ agencies which are experts in their own lean­ ommended by the Prison Officer-in­ ings. charge; 5. Have no record of escape or attempted e. Work and wages escape; The Ibrahim System includes these cate­ 6. Are sound in physical and mental gories of work: factories, estates, agriculture, health. construction, landscaping, the building of new prisons, other housing projects and also Those selected are housed at the Kem Pra­ collectivism. Under the collective working bebas (Camp for Pre-release) which is out­ prisoners together with locals carry out the side the Prison proper or to a camp near the cleaning of places of worship, welfare homes, work site or such other pre-release centres. recreational parks and also the construction Prisoners desirous of being considered for of centres for the poor which fall under the this scheme should apply to the authorities "Skim Keselamatan and Pengembangan in a Form entitled "Application for work un­ Desa-Desa." der the Pre-release Scheme." Such applica­ Work outside the prisons necessitates su­ tions are voluntarily undertaken. This pervision of prison officers who are paid al­ scheme would encourage such prisoners to lowances as ascertained by the Financial be disciplined amongst other things in order Procedures. Other schemes, transport, etc.

240 PRACTICAL MEASURES FOR OVERCROWDING

are borne by the firms concerned while so­ work outside the prisons a prisoner is re­ cial services, transportation are provided by stricted to his worksite, prohibited from drug the prisons. Prisoners working under this taking consumption of alcohol and the use scheme are covered by insurance and are of the telephone. Breach of these rules for­ paid wages by the firms concerned. feits his privilege in the Drug Centre of the Since its inception, these schemes were prison or the other rehabilitation centres. given coverage by the mass media to inform the general public as regards its progress and g. Others success. Public support have been encour­ The Ibrahim System is still in its infancy aging gauged from the request received. in its concept to return to normalcy within Payment of wages to these prisoners are society of prisoners when one considers the almost similar to wages paid to normal work­ advancement made in other countries like ers engaged in similar work, except that the United States, England where such prac­ those prisoners involved in gotong royong tices have had a long history. are not paid in cash but are given extra ra­ As in any such program prediction as to tions, weekend leave outside the prison and feasibility based on past experience or future other privileges. tendencies is not something easily forecast Wages of prisoners engaged in such work yet certain factors and indications can be are sent to the Prison Headquarters which gauged: would be credited into the Trust Fund un­ der the management of the prison authori­ 1. The Work Force of the Ministry of ty. Seventy percent of the wages would be Home Affairs is currently studying the put into the Trust Fund under each prison­ possibility of alternatives to compulso­ er's credit with the remaining 15 percent go­ ry prison sentencing: the Parole system ing into the Social and Welfare Fund for pris­ which includes compulsory attendance oners and the government revenue accounts centres and personal bond; for the last 15 percent. 2. The numerous requests from the pub­ Part of the prisoners' personal earnings lic and other organisations to the Pri­ could be channelled toward his own needs sons to participate in their activities; or to his family; personal savings is encour­ 3. Studies by graduates and port­ aged in order to assist him after sentencing. graduates pertaining to the various as­ An important aspect of this program is to pect of the penal system; enable the prisoner to sustain his family ties 4. Public involvement (by organisations) and responsibility though financial aid de­ mirrors the philosophy towards the re­ rived from his wages. habilitation program. It is noteworthy that some 40 previous in­ mates of prison had been employed by a con­ The Prison Administration cannot hope to tractor who employed them during the pre­ implement its policy successfully without the release period as tractor drivers, etc. This understanding and positive commitment and is most encouring in that it is indicative of sincerity of each component in Malaysia. the discipline and quality of work prisoners are able to render. 3.2. The Working and Introduction to the Ibrahim System f Discipline-method and regulation To facilitate the Ibrahim System, disci­ The Ibrahim System pline and its methods and regulations to 1. The Prisons system in Malaysia gives maintain peak efficiency has necessitated paramount importance to security, training certain restrictions, etc. During his tenure of and rehabilitation of prisoners. Towards this

241 PARTICIPANTS' PAPERS end the Prisons Department has had sever­ hind the Ibrahim System which is based on al programs based on current laws pertain­ the Prisons Act 1952 and the Rules and Reg­ ing to prison management as well as on the ulations of Prisons 1953: United Nations Standard Minimum Rules for the Treatment of Prisoners, with the re­ 1. Rule 3(1)(c) Sek. 1 establishment of ex-prisoners as law-abiding Prisoners are, at all time, to be treated and gainfully employed members of society in such manner that would encourage as major concerns of the Department, which them to respect themselves and be would nuture their self-respect complement­ aware of their responsibilities that ing sense of responsibility. would assist them in their moral reha­ 2. Thus the Ibrahim System as practised bilitation; to be deligent in their work by the Prisons Department is intended to in­ as well as to be responsible citizens calculate in the prisoners, through training when they are released. and guidance, a sense of responsibility and 2. Rule 74 Chap. 8 awareness upon their eventual return to so­ Each and every prisoner is required to ciety. The loss of freedom with attendant in­ work, whenever possible in groups out­ capacitation and punishment should not for­ side their confinement quarters and feit an offender serving sentence towards re­ should not be engaged in work that is integration to society upon his release. not sanctioned by the Chief Director of Such Correctional System has long been Prisons or the Officer in-charge. practised in advanced countries; the Swed­ 3. Prison Enactment Sek. 54 ish Correctional System in implementing this Whenever a prisoner is transported to program in 1974 regards facilitation of a pris­ a prison or from a place of detention to oner's rehabilitation in society, the inclusion another as contained within the ambits of permissions to do work, study, vocation­ of lawful detention, such a prisoner in al training and other specially-arranged ac­ reckoned to be within a prison and tivities the mainstay of such rehabilitation should be treated and accorded such schemes. treatment as if he were within a prison. With these in mind, prisoners awaiting eventual release are selected by a Board for Board of Rehabilitation Rehabilitation, for work and activities that Prisons which have the Ibrahim System are beneficial for them upon their release. Program are required to establish a Board Apart from these, the Ibrahim System pre­ of Rehabilitation, which is responsible for pares the offender to be a responsible and selection of prisoners that are eligible com­ useful member of society. prised of the following members: a. Aims and objective of the Ibrahim System Head of the Institute 1. The eradication of social stigma attend­ SuperintendentlAsst. Superintendent ant on offenders through social and wel­ Records Officer fare activities. Industrial Officer 2. Nuture positiveness and responsibility to Counselling Officer equip them to combat the challenges in Welfare Officer the future. A senior officer responsible for administer­ 3. Educating the public understanding and ing the Program active role in helping the ex-prisoner. c. Duties and responsibilities of the board of b. Counselling rehabilitation Counselling has been the major force be- 1. Interviewing and selection of eligible

242 PRACTICAL MEASURES FOR OVERCROWDING

prisoners and preparing complete per­ months before. sonal data on Borang Cabutan PPT. 67. 2. Life imprisonment prisoners whose 2. Selection of staff to run the Program. conduct and discipline merit consider­ 3. Advising and detailing staff as well as ation and who is qhout to be released the prisoners regarding the objective within 2 years co;.11d be considered. and rules and regulations pertaining to 3. Prisoners with 6 months period before the Program. release, whose conduct is good and who 4. The preparation of proper lodging as is industrious could be considered upon well as other necessary amenities. the recommendation of the officer in­ 5. To oversee that the rules and regula­ charge. tions are adhered to and the disciplinary 4. Other categories of offenders with spe­ actions to be taken against offenders. cific skills. 6. To study and approve applications from the public regarding the minor works re­ e. Non-eligibility quired. Work requiring large numbers The following prisoners are not eligible for of prisoners require the sanction of the the Program: Chief Director of Prisons. 7. Ascertain the rates of wages commen­ 1. Prisoners who are sentenced to pris­ surate with the work to be done or done. on until their natural life. 8. Ascertain the number of prisoners re­ 2. Detainees, remand, T.M.T'/W.D.I quired for each type or work under­ W.A.D. taken. 3. Prisoners sentenced to Death. 9. Emphasis to be maintained on security 4. Unfit and mentally unsound prisoners. and lodging. 5. Escapees. 10. Visit project sites and evaluate progress 6. P.C.O. Prisoners. from time to time. 7. Commercial crime offenders. 11. To receive reports as well as complaints 8. Bankrupts. regarding work undertaken. 9. Disabled and prisoners aged 60 years 12. To see to the welfare and well-being of and above. prisoners such as visits, correspondence 10. Those previously on the scheme. and medical aspects of prisoners, 11. Others, which are found to be unsuita­ 13. To conduct meetings and discussions ble, by the Board. pertaining to the Program. 14. Prepare reports to Headquarters. f Activities of the Ibrahim System 15. To interview prisoners about to be re­ Programs under this Scheme should be leased. beneficial to both the prison and the public 16. Any other responsibilities deemed fit to (society), fulfilling the slogan "From socie­ be carried out to ensure the success of ty we come, to it should we serve." the Ibrahim System. The undertaking of the various work un­ der this System represents: d. Eligibility of prisoners The Board of Rehabilitation is to scrutinize Voluntary such as go tong royong, clean­ application and selections of prisoners under ing and clearing of graveyards, welfare this Scheme according to its rules and regu­ homes, villages and any such other activi­ lations. Prisoners with criminal cases pend­ ties considered to be of benefit to society. ing cannot be considered for this Program. 1. Priority is given to first time offenders g. Rates and payment of wages whose release from prisons is 12 Daily rated payments for work done ac-

243 PARTICIPANTS' PAPERS cording to the following scales: could destroy the good name of the Prisons Department. 1. Service to Government agencies not ex­ ceeding $2.50. j. Actions taken 2. To other agencies and private person(s) Actions taken against prisoners under this not less than $7.50. Program who breached the terms and con­ 3. To prison staff $5.00. ditions laid are as follows: h. Earnings of prisone'Ys 1. Offenders to be punished under Prisons Payment to prisoners under this Scheme Ord. 1952 Cap. 122. must be put into the Trust Fund under the 2. Loss of eligibility to participate in this jurisdiction of the Prisons Department Ma­ Scheme. laysia. The breakdown figures are as follows: 3. Loss of privileges and amenities. 1. 15% of earnings to be allocated to the 4. Warnings. Government. 5. To be left out in future project under 2. 15% of earnings to be allocated to the this Program. Trust Fund. 3. 70% of earnings to be credited to the k. Role of prison officers under this program prisoner. 1. Prison officers plays an important role in ensuring the success of this Program i. Regulations under the Ibrahim System which entails the understanding of its con­ The law and rules and regulation concern­ cept and aims as well as the behavior and ing prisoners selected to participate in this mental attitude of prisoners under their Program are as follows: charge. 2. Patience and honesty are required of the 1. Prohibited to leave work site without Officer in-charge. To be of exemplary char­ the knowledge of officer in-charge; acter in order to influence those under his 2. Prohibited to receive, to be in posses­ care to be more receptive and responsible. sion or smuggle any prohibited goods 3. Opinions related to the work undertaken such as drugs, alcohol, etc.; by prisoners should be given due attention 3. Prohibited to have contacts with to induce enthusiasm amongst them not only others who are not directly concerned to promote progress of work but also to pro­ with the project; mote goodwill between officers and prison­ 4. Instigation of other prisoners to un­ ers. lawful acts; 4. Wage orientated work in the fields, es­ 5. Deliberate destruction of property and tates, repair and construction of houses in­ equipment; cluding renovation (government as well as 6. Escape or attempted escape-Sec. private dwellings), landscaping and others 121(2) that could benefit the participants. 7. Irresponsible conduct; indisciplined and rude; Community Programs Aimed at 8. Malaise; Reducing Crime Rate 9. Theft and other criminal activities; 10. Arguing and or fighting with each "Prevention Is Better than Cure" other; The present rate of crimes are rising, es­ 11. Refusal to accept order and refusal re­ pecially amongst the youth in the country; spect officers; amongst the more common activities that are 12. Any other activities deemed unfit that crimes related are:

244 PRACTICAL MEASURES FOR OVERCROWDING

1. Drug abuses and dependency leading to though they are now in progress, it would be crime in order to sustain the depen­ beneficial if efforts to step up such courses dency. could be undertaken immediately. 2. Unemployment amongst the youth and It is a proven fact that without religious those in the middle age group. background, a man can be as malleable as 3. Gangsterism. metal in a furnace. With this is mind, reli­ 4. Others. gious education must be given together with sustained religious practices; otherwise all It is impossible to eradicate crime and efforts would go down the drain. In many so­ criminals person but one can rely on the facts cieties where religion has a weak hold on the that involvement in crimes can be reduced, public crime rates are astounding. Thus it at least to an acceptable level, with the im­ cannot be over emphasised the paramount plementation of programs that will educate importance of religious upbringing, educa­ the people or re-channel their energies tion and its continued practice. towards in more crime-free society. It has Idleness is said to be the creator of mis­ been accepted that such programs, although, chief; this is more true now since affluence not necessarily a foolproof one in itself, yet in our society leaves much leisure for the tends to minimise the incidence of crime and populace. To overcome such idleness, those crime related activities. responsible must find valid ways and means In the effort to tackle the drug problem to keep not only the young, the youth, but which is now the number one enemy of the also the elderly busy with some form of ac­ country, the Administration and the Legis­ tivity. This could be in the form of sports and lature of Malaysia, have devised tough anti­ the running of sport organisations, social drug laws, ranging from the Capital punish­ work, of other voluntary organisations con­ ment, imprisonment as well as the confisca­ cerning themselves with the welfare of the tion of ill-gotten wealth from drug­ citizens. Indeed in this field, Malaysia in for­ trafficking. Judging from the CUlTent arrests tunate in having various sports and voluntary effected as well as the confiscation of wealth sport bodies to cater for the leisure of the hidden behind seemingly legal fronts, one youth of this country; but are we doing can expect a marked reduction of this type enough? We should reflect on our efforts. of criminal activity. Too much efforts is being put on competi­ Those on drugs could be rehabilitated tive sports, elite sports and sports project­ through the various drug rehabilitation ing an image rather than involvement in centres; counselling and after-care programs. sports to generate a healthy lifestyle to com­ The crux of drug rehabilitation is the bat idleness. Mass participation should be redemption of self-respect, social accept­ the norm. Inexpensive games where all could ance, committed family support and of participate are to be preferred. This is not course, through effective religious reawal<:en­ to suggest the abandonment of the already ing. established sports but one should be wary in The civic courses currently run in schools propagation the use of sports as a means to tend to play an effective role in the prepara­ combat idleness. tion of youngsters in facing the world with Through sports, some could channel their all its lacerations. Perhaps one could hope for energy as a hobby to be a means of sustain­ a more vigorous youth after such civic ing oneself financially as in the case of foot­ courses. Most certainly such civic course ball and other sports. Coaching and the like should not be confined with the portals of could ward off financial insufficiency. But schools only. The general public could ben­ sports alone could absorb all the various efit with civic courses for the public and even kinds of unemployment that is slowly creep-

245 PARTICIPANTS' PAPERS ing into our society. Yet the youth and the By this we hope the programs of Commu­ unemployed should be educated in the dig­ nity as mentioned, will reduce the number nity of labor and a grounding in the work of criminals. Thus by these programmes it ethic. With an optimum level of employment, should lessen the number of persons being crime rates should proportionately decline. sentence to prison. To create jobs suitable for the temperament of the unemployed, the authorities must be Conclusions realistic in its efforts. Exploitation of labor and such malpractices must be eradicated. It is expected that if the proposals I have We ask a pertinent question ... is this being mentioned above were put into effect, the done? Perhaps those managers of industries overcrowding in prisons could be reduced, that shape our economy should rethink and particularly for drug addicts and those who be positive in their efforts to eradicate un­ have committed minor offences, since this is employment. It is a known fact that with ef­ the field where a great number of orders are fective employment generating enough in­ issued today. come for all the strata of the population, the However, the prison authorities are to be tendency towards criminality fades yet Man commended for their generally farsighted could not be predictable for monetary greed, and human approach to prisoners' rehabili­ and power is an overpowering adverse tation. Community service, pre-release pro­ characteristic of mankind. People should be grams, Ibrahim System, joint-venture proj­ taught to be contented humble and god­ ects, open prisons, have all been highly suc­ fearing for the lack and greed for money has cessful in easing the burden of prisons. This been said to be the root of all evil. Not that is the brain-child of the Director-General of money is the root of all evil. Prisons himself who has the courage and the In its finality, the fight against crime en­ initiative to implement these innovations visages a vast amount of concerted efforts without official sanctions. He thought it fit by all using all the various available re­ to do something quickly, or face the conse­ sources. Where such resources are not pres­ quences of prison riots, hunger strikes, mur­ ent, one should be innovative enough to cre­ der, mass escape and all that you can think ate them and to fuel them so that such ideas of in a prison crises. are not stillborn destined to die before they Perhaps the planned establishment of new could taste the sweet air of success. prisons to be built with prison labour and the To put into effect programs, whether vol­ recent announcement that the Government untary or with sanction of the authorities, ef­ will be allocating more funds for the build­ fort alone cannot produce much result. With­ ing of more courts, and the recruitment of out money, with finances, nothing could be more Judiciary officials will help ease the Pri­ done. Thus in order to implement whatever sons Department's own burden. However, schemes to combat crimes, from law enforce­ without a greater concertedness of effort on ment to the school premises, the Govern­ the part of the Government and amongst a ment is the most likely sponsor to succeed. wide-ranging gamut of official agencies It is ferverently hoped that apart from Gov­ towards finding alternatives to imprisonment ernmental agencies, the private establish­ and settling problems of illegal immigrants, ments too lend their unreserved support to drug addicts, remand prisoners and judicial make the fight against Clime a workable idea inertia, the true burden of numbers will not no matter how difficult or unpleasant it might be fully eased by the simple provision of be. space.

246 Criminal Justice System in Papua New Guinea

by Alphonse Jimu *

1. Introduction and the bringing to justice of offenders. The Police Force was formed in Papua New The Criminal Justice System in Papua Guinea one hundred years ago under the New Guinea has three district areas of ad­ Colonial administration and it has played a ministration. The Police Force, the Depart­ vital role towards the development of this ment of Justice and Corrective Institution country. Services. The Police Force is responsible for the investigation of crimes, and the appre­ 3. The Bringing to Justice of hension and laying (filing) of charges against Offenders those responsible. The main function of the Department of Justice is provid:ng legal ad­ One of the fundamental duties of a police­ vice to the State. The Magisterial Services men is to arrest the offender who is about and National Court is responsible for the ad­ to commit, or is committing or has commit­ ministration of the courts where charges are ted an offence for which the penalty is im­ heard by members of the Judiciary, who then prisonment. When the offender is arrested, decide on the guilt or innocence of the ac­ the policemen has to tell the offender his cused and impose a suitable sentence. The rights under the Constitutional of Papua New second responsibility within the Department Guinea Section 42 (2) to send a message to of Justice lies with the Community Based speak to a private member of his family, a Correctional Programme, the Probation personal friend, a lawyer, or to the Public Service, whose duty is to supervise Solicitor. After the arrest the offender's free­ community-based sentences handed down by dom of movement is restricted and the the Court. The third area of administration offender will be under the custody of the po­ lies with the Department of Corrective Insti­ lice. In case of serious crime the offender's tution Services whose responsibility is to car­ record of interview will be taken by the po­ ry out custodial sentences imposed by the lice and he may sign the record of interview Courts, and to hold remand prisoners prior if he wish. The Police will then formally to sentencing. charge him and take the arrested offender without delay before the Court during oper­ 2. The Background of Police Force in ational hours. Papua New Guinea 3.1. Police Lockups and Cells The Royal Papua New Guinea Constabu­ When the prisoner is not brought before lary is the civil Police Force responsible for the Court due to some reasons, like when the the enforcement of law, the preservation of Court is not in session, the prisoner will be peace and good order, the protection of prop­ locked up in the Police Station Cells. Before erty, the prevention and detection of offences the prisoner is locked up in the Police Cells the police have to search the prisoner and re­ move all his personal property for safe keep­ * Police Station Commander, Gordons, Papua New ing, and to ensure that the prisoner does not Guinea take any instrument or other item to hurt

247 PARTICIPANTS' PAPERS

himself or cause injury to other prisoners. 4.2. The District Courts While in police custody, the prisoner is al­ The District Courts are located in all prov­ lowed to pledge bail and there upon release. inces in Papua New Guinea and these Courts The prisoners who are not eligible for police are run by the Magistrates, and they deal bail are those who have been charged for with the cases that are not very serious. committing indictable offences. These Courts are very busy courts in the country and they deal with the people every 3.2. Welfare of the Prisoners day for breaking summar.y offences. These The prisoners in police custody are looked courts send people to prison for short peri­ after by the Police and the prisoners are ods of time. The person appearing before given two to three meals a day. When the these courts can find a lawyer to defend the prisoner is sick the police will take him/her case. In these courts, police prosecutors plea to the hospital for treatment. The prisoners cases before the Magistrates, who after hear­ also have access to a telephone, free of ing all the evidence hand down their deci­ charge, to ring their families, or lawyers. The sions to send to prison, the find or good be­ prisoners are kept separately in the cell haviour bond. If there is no case to answer blocks according to their sex and age, the then the cases dismissed. These are provi­ adult male prisoners are kept in separate sions in this court that allow appeal to the cells, the female prisoners are kept in their next higher court if the decision made by the own cell block and the juvenile prisoners are lower court is not in best interest of the State also kept separately. or Offender. Then the National Court will hear the appeal and determine whether the 4. Judicial System District Court has made an error in his judge­ ment. In Papua New Guinea we have four main types of Courts and these Courts hear and 4.3. The Children's Courts determine the cases that come before them. The Children's Courts are established in all provinces in the country and only few 4.l. National Court Magistrates in the Provinces have the juris­ The National Court is a high court in the diction to hear these cases. These Courts country and it hears and determines the consist of a Magistrate, the Police Prosecu­ cases for prisoners who have committed in­ tor, the welfare officer and two laymen and dictable offences and it cannot be heard sum­ all these people will sit before the Magistrate marily before the court of summary jurisdic­ for a hearing, They are allowed to ask ques­ tion. The judge on the bench and the police tions of any witnesses in Court if they doubt will be represented by a lawyer from the the evidence. After the Magistrate hands Public Prosecutor's Office and the prisoner down his decision, the Welfare Officer and will be represented by a lawyer from the two laymen will get together with the Mag­ Public Solicitor's Office. After hearing all the istrate to discuss what penalty should be im­ evidence, the judge hands down his decision posed on the child. In most cases, the child of guilt or innocence. When the judge finds will be given a good behaviour bond under the prisoners guilty he will impose a penal­ this parents custody. If the child has a pre­ ty of imprisonment, or the judge will grant vious record the court might send him to a a good behaviour bond for some period of Boy's Centre to work under the supervision time. If the prisoner is innocent the judge will of Church men, or sometimes the child will dismiss the case and the prisoner will be set come under the care of a Welfare Officer. free. However, not very many children go to pris­ on as the majority are sent to a Boy's Centre.

248 ------

CRIMINAL JUSTICE IN PAPUA NEW GUINEA

4.4 Village Courts happy and do not want to see people in the The Village Courts system was establish­ community go before the District Court and ed some years ago in a few provinces in the end up in Corrective Institutional Ser;vices. country and it is moving slowly into other provinces and districts. This is a community­ 5. Corrective Institution Services based court system and it has worked well in some provinces. The community, them­ The Corrective Institution Services is a selves, elect t.'1eir leaders to be Village Court Department of its own and is responsible for Magistrates, Peace Officers and Villagl:! carrying out custodial sentences imposed by Court Clerks. The Village Court Officials the Courts and to hold remand prisoners pri­ have to attend short courses to know what or to sentencing. The Department has estab­ their responsibUities are and how to run the lished Institutions in all the Provinces in the Courts. The courses are usually run by the country to hold the prisoners and to rehabili­ Village Court supervising Magistrates in the tate them before they are released back to Provinces. The Village Courts Magistrates the community. This Department also is held have judicial powers like the M&gistrates, responsible for the welfare of the prisoners and lived and work in their respective com­ while serving his/her term in the prisons. munities. Most of the prescribed offences in the Village Courts Ac~ relates to the commu­ 5.1. Recent Trends in the Prison Population nity and customary laws. Therefore, the peo­ The Prison Population is increasing every ple are happy to have their Village Courts year in this country and the Department of running smoothly. When a Village Clerk Corrective Institution Services is finding it receives a complaint from someone he writes hard to cope with the situation. The coun­ out a summons paper and serves it on the try has increasing crime problems and ac­ offender. The offender is given at least one cordingly the prison population is rising. week ~o appear before the Village Court to Papua New Guinea has its own crime prob­ answer to the charge. If he/she fails to turn lems as well as tribal fights in the Highlands up for the date set for the hearing, the clerk Region and this is where most arrests occur. will serve him with a warning notice and a These prisoners are not budgeted in terms new hearing date will be set. Mter the hear­ of money, therefore, extra food, clothing, and ing is completed the Magistrate will hand money are exhausted and there is nothing down his decision based on community­ left for other things. The problem of crime based programmes. Most of the time the will not decrease unless everybody includ­ Magistrates order compensation for the com­ ing national leaders, provincial leaders, po­ plainant. An example of compensation con­ lice, church, and community leaders as well ditions are as follows: as the parents of the youths work together to fight crime in the country. The tribal 1. To complete a certain number of hours fights can be stopped if Law Awareness of community service work. Campaigns go right into the viliages in the 2. Monetary compensation to the State for rural areas, otherwise the tribal conflicts will damages incurred. continue. 3. Monetary compensation to the com­ Jobs creation in the Government and Pri­ plainant or victim. vate Sector might help diminish some of the 4. To work a certain number of hours for crime problems in the country, by putting the complainant as retribution for the young people to work. offence. 5.2. Practical Measures to Alleviate the Prob­ The community members, largely, are lem of Over-crowding

249 PARTICIPA~-JTS' PAPERS

1. Construction of new facilities. This is one ing and expertise. The programme like the of the solutions that the National Govern­ Law Awareness Campaign, which is con­ ment has to look into very critically in terms ducted every year and sponsored by the pri­ of allocating funds to the construction of the vate sector, has been effective in disseminat­ new prison facilities. Some of the prison ing information through the mass media and blocks have to be replaced with new build­ providing pamphlets for the schools and ings to accommodate the prisoners. In some other community services. institutions the facilities are not very good and the prisoners have to live in such condi­ The private sector has also contributed to tions as there is no other place to keep them. the church run Juvenile Prison Centres (Boy 2. Application of community-based Centre) every year. The churches have their programmes. In 1985 Papua New Guinea's own trained layman who look after and work Department of Justice established the Pro­ with the juveniles sent to the centres by the bation Service and by 1990 all Provinces in courts. These centres also receive financial the country will have probation officers to support from the National Government. utilize this service. This is the only community-based programme so far the 4. Other Effective Policies. The education country has and the Probation Officers have system in the country is to be reviewed and already started working other programmes. introduces compulsory education for the chil­ The programmes have been successful so far dren from seven years to seventeen years. and the National Government has to allocate In the present system a child has to go to more funds to speed up the programmes to school at the age of seven years to do hislher other Provinces. primary education and after six years if a child did well in grade six final examination, The Village Courts in Papua New Guinea helshe will be selected to go to high school is another community-based court system and a child did not do well will have no plac­ which has to be improved with extra funds ing in the high school selection. These chil­ to make the system more effective and pres­ dren have the knowledge and they are intel­ ent conditions of the Village Courts Officials ligent but the system has forced them out should be upgraded. The Village Court Of­ fi~m school. These children are at the age ficials are selected by the community to rep­ of twelve to thirteen years old and they could resent the community. not get any more further education. The country needs more similar services like the Probation Service to rehabilitate the Then these children started to look for prisoners with the assistance of other something to keep them busy and when they community-based programmes. Unlike the feel hungry, they steal a loaf of bread or a Courts, which often send offenders to jail biscuit because they have no money to buy. jeopardizing the offenders' employment, The police will be called into the shop to ar­ familiy relationships and businesses, the rest the children who were involved. After community-based services are effective at re­ the children were arrested and charged be­ turning offenders back into the community fore the court they received a bad name and where they can become productive mem­ were no longer wanted by their families. To bers. survive they have to steal more and more and they will eventually end up in prison. We 3. Co-operation between the Criminal Jus­ have a problem with the juvenile offenders tiee and the private sector. There has been and each year the number of juvenile good response from the private sector and offenders have increased more than adult it has contributed in terms of finance, train- offenders.

250 CRIMINAL JUSTICE IN PAPUA NEW GUINEA

The present Juvenile Delinquents Centres offenders such as: in the country have inadequate facilities to rehabilitate the juvenile offenders particular­ 1. Home leave ly in education. Some centres have only 2. Work release farming equipments and they train them to 3. Weekend detention make garden only and teach offenders with 4. Voluntary supervision scheme correspond lessons. This training is some­ times not suitable for short-term offenders And if these new concepts come into op­ and after he is released from the centre he eration, it will help the problem of over­ is gone and no one follows up to see what crowding in prison institutions throughout he is doing in the community and with his the country. family. Another Probation Service System is to be 6. Administration of Institutions, established and it will directly ~ome under Treatment, Health Care of the Department of Home Affairs and Child Security Welfare. The officers from this department will work closely with the community and The Administration and Management of draw up community-based programmes for the Institutions, Treatment, Health Care or probationers. The Community can appoint Security are very sensitive areas of respon­ some volunteer probation officers to super­ sibility and the outsider who has little expe­ vise the community-based programmes. The rience in the institutional services would not overall supervisor will be welfare officers to be able to adequate~y evaluate the system. check to see that the programme is working Unless he/she is an expert with adequate ex­ well in the community. perience in Institutional Services and has In Papua New Guinea Department of Cor­ good knowledge of the establishment, the as­ rective Institutional Services has introduced sessments would be superficial at best. some new concepts for the rehabilitation of

251 Some Measures Trying to Alleviate the Problem of Prisoners Overcrowding in Thailand

by Prapun Naigowit*

1. Preface Table 1: Number of Inmates and Staff at the End of Year In Thailand, the Department of Correc- tions which is attached to the Ministry of In­ terior has responsibilities both for detention Year Number of Inmates Number of Staff and rehabilitation of adult offenders. It is also 1979 68,329 7,457 responsible for confinement of persons 1980 75,496 7,751 awaiting trial by court order. Separately, 1981 73,464 8,120 juvenile offenders 1 are under the jurisdic­ 1982 71,387 8,270 tion of Juvenile Court which have their own 1983 80,463 8,467 correctional institutions. 1984 85,208 8,633 The problems of juvenile offenders and the 1985 88,072 8,805 measures for treatment are beyond the scope 1986 91,841 8,931 of this discussion. 1987 95,990 8,931 2. Problem of Prisoners Overcrowding 1988 71,591 8,931 Source: Department of Corrections In 1985, there were 88,072 inmates of all types in 120 correct.ional institutions of the It should be noted that the number of in­ Department of Corrections when the rates of mates in 1988 decreased because in 1987 the capacity for a11 institutions were only 46,000 Act on Deletion of Wrongdoer's Blamewor­ inmates. Therefore, the number of inmates thiness on the Auspicious Occasion of the were over twice the capacity. Trends in pris­ Sixtieth Birthday Anniversary of His on population seem to increase every year. Majesty King Bhumibol Adulyadej and in Between 1979-1985 the increasing rate of in­ the following year the Royal Decree for mates was 3,290 per year whilst the Depart­ Pardon of 1988 was also enacted, yielding a ment could build only one prison with a ca­ large number of released prisoners. pacity of 500 inmates per year. Consequent­ While the number of inmates greatly in­ ly, each year there are 2,790 inmates creased, the number of prison staff did not overcrowded in all correctional institutions increase commensurate with that of inmates. throughout the country. 2 Table 1 shows the The number of staff stood at 8,931 persons statistics regarding the number of inmates for the three years between 1986-1988. relative to the number of staff between The problem of prison overcrowding ef­ 1979-1988. fects the living conditions in correctional in­ stitutions such as insufficiency of accommo­ dation, food, medical treatment, etc. Conse­ quently, standard minimum rules for the treatment of prisoners may be difficult to achieve. Furthermore, insufficiency of pris­ * Chief Public Pros'Ccutor of the International Affairs Division, Public Prosecution Department, Ministry of on staff causes difficulty in reh~l,i1itating Interior, Thailand offenders. Merely controlling prisoners from

252 THAI PRISONERS' OVERCROWDING

escape is a heavy burden for prison staff, number of offenders fined by Courts was thus they have not enough time for observ­ 351,369 persons out of all 495,848 offenders ing and training prisoners. convicted and the amount of payment equalled 324,643,276 bath 4 (or about US$ 3. Construction of New Institutions 13,000,000). However, some offenders are unable to There was a discussion that in developing pay filtes and they have to put in confinement countries in the Region the first priority is in lieu of fines. Therefore, improper use of economic development with consequent pro­ this measure might cause overcrowding. vision of employment opportunities for a (2) Probation: In the Sixth National Eco­ large section of the population and uplifting nomic and Social Development Plan (1987- the standard of living. Therefore the natu­ 1991), Chapter 4: Plan for Promoting Peace ral tendency of the Governments of these in Society, provides that the Government will countries is to accord less importance to the use the probation system of the Ministry of development of penal services in order to Justice and the Department of Corrections meet other commitments. 3 This conclusion to lower density in penal institutions and is still applicable in Thailanrl today. Due to reduce the government's burden in control­ limitations of finances, construction of new ling criminals and prisoners. Communities institutions is curtailed even though the num­ and families should participate in the spirit­ ber of criminal justice personnel are inade­ ual and behavioural reform of criminals and quate. However, according to the Fourth prisoners. Plan of the Ministry of Interior (1987-1991), According to the Thai Penal Code (1957), a new prison or correctional institution will Section 56, it provides about probation be­ be built in order to solve the problem of pris­ fore putting in correctional institutions that: on overcrowding. At present there is a prison in Bangkok "Whenever any person commits an situated in a commercial area owing to the offence punishable with imprisonment, growth of city and population. Therefore, and, in that case, the imprisonment to be there is a plan to invite the private sector to imposed by the Court does not exceed two invest in the area. The Government will en­ years, if it appears that such person has title the investors to build commercial com­ not been previously sentenced to im­ plexes and the investors will build a new pris­ prisonment, or that he has been previously on elsewhere in exchange. Even though it is sentenced to imprisonment, but it is the a good plan it will take a long time and en­ punishment for an offence committed by tail a long process, and will be achieved in negligence or a petty offence, the Court the distant future. may, if it deems appropriate after taking into consideration the age, past record, be­ 4. Alleviation of Prisoners haviour, intelligence, education and train­ Overcrowding by ing, health, condition of mind, habit, oc­ Non-institutional Treatment cupation and environment of the offender, or the nature of the offence, or other ex­ (1) Fine: The old measure and still in use tenuating circumstances, pass judgment at present day to alleviate the problem of that he is guilty, but the determination of overcrowding is payment for fines. This punishment is to be suspended, or the measure is used instead of short-term im­ punishment is determined, but the execu­ prisonment. Fine may be imposed by pay­ tion thereof is to be suspended and then ment of money only or with concurrence of release, with or without conditions for suspension of imprisonment. In 1986, the controlling his behaviour, so as to give

253 PARTICIPANTS' PAPERS

him an opportunity to reform himself (3) Remission of Sentence: The Penitentiary within a period of time to be fixed by the Act (No.2) of 1977, Section 3 has introduced Court, but it shall not exceed five years the system of remission of sentence, it pro­ as from the day on which the Court pass­ vides that remission of sentence shall be es judgment." granted not more than five days a month ac­ cording to the rule, procedure and condition In 1979, (he "Act on Implementation for prescribed by the ministerial regulation. Probation According to the Penal Code" was However, remission of sentence shall be ap­ enacted and the Central Probation Office was plied only when a convicted person has un­ established in the Ministry of Justice. There dergone imprisonment by a final judgment are two main functions of the office, that is, of the Court not less than six months or not pre-sentence investigation and supervision of less than ten years in case of life imprison­ probation. ment when commutted to a fixed period of imprisonment. System of remission is baSed Table 2: Statistics of Pre-sentence on the good behavior, deligence, progressive­ Investigation and Supervision ness in education and good work perform­ of Probation throughout the Country ance of the convicted prisoners in institu­ tions. According to the Ministerial Regula­ Year Pre-sentence Supervision of tion, No.8 of 1978, a convicted prisoner of Investigation Probation excellent class, very good class and good (persons) (persons) class will be granted remission of sentence 5 days, 4 days and three days per month, re­ 1984 3,675 5,285 spectively. 1985 4,796 7,875 In 1980, the Penitentiary Act (No.4) was 1986 7,390 9,402 enacted, and Section 4 of the law provides 1987 9,839 11,156 that a convicted prisoner who is permitted 1988 10,577 10,354 for public work outside prison can be grant­ Source: Ministry of Justice ed remission of sentence equivalent to the

Table 3: Number of Convicted Prisoners and Remission Days between 1978-1987

Remission Average Number of Year Convicted Prisoners Days Remission Days per Granted One Prisoner 1978 3,787 13,651 3.6 1979 9,595 282,571 29.4 1980 9,927 374,114 37.7 1981 7,963 360,057 45.2 1982 9,495 669,504 70.5 1983 11,401 1,168,235 102.5 1984 10,998 617,309 56.1 1985 11,864 686,022 57.8 1986 12,899 713,328 55.3 1987 12,891 1,024,876 79.5

Source: Department of Corrections

254 THAI PRISONERS' OVERCROWDING time spent in public work. one year but not more than the rest period Number of remission days can be deleted of imprisonment. Convicted prisoners released if convicted prisoners break the prison rules. on parole will be put under supervision by The Fourth Plan of the Ministry of In­ probation officers. terior suggests to increase remission of sen­ At present, Thailand faces the problem of tence from not more than five days per month shortage of probation officers. The increas­ to eight days per month. ing rate of government officers in each agency (4) Parole: According to the Penitentiary is limited to not more than 2 percent per year. Act of 1936, Section 32 (5) specifies that parole Therefore, voluntary probation officers in the can be provided under the condition set by private sector are needed to implement the the Minister of Interior, however parole shall good functions of probation and parole. In be provided only when a convicted prisoner 1987, 1,152 voluntary probation officers were has undergone punishment not less than one­ trained by the Department of Corrections. 5 third of the period of imprisonment or not less In Japan, in recent years nearly hvo-thirds than ten years in case of life imprisonment of the offenders who are receiving correctional and the period of parole shall not be less than treatment are left in the community under the supervision of probation officers with ex­ tensive participation of volunteers. 6 Attitudes Table 4: Convicted Prisoners Released of people in society are very important to the on Parole between 1978-1987 success or failure of this system. If people do not trust that prisoners can be reformed, Year Number Increased-Decreased (%) the system of voluntary probation officers will be unable to achieve its goal. Therefore it is 1978 438 + 26.59 specified in the Sixth National Economic and 1979 455 3.88 + Social Development Plan (1987-1991), Chapter 1980 606 + 33.19 4 (4.3), that the Government will seek pub­ 1981 602 0.66 lic support to help former prisoners and crim­ 1982 420 - 30.23 inals lead a normal life in society and avoid 1983 1,136 + 170.48 further crime. 1984 1,470 29.40 + (5) Pm'don: Another measure used for al­ 1985 1,523 3.60 + leviation of prisoners overcrowding in Thai­ 1986 1,956 + 28.43 land is pardon. There are two types of pardon, 1987 2,278 + 16.46 individual pardon and general pardon. Indi­ Source: Department of Corrections vidual pardon is provided in the Criminal Pro-

Table 5: Results of Petitions Submitted for Pardon

Thai Prisoners Foreign Prisoners Results Male Fe;male Male Female Total Dismissed (Death sentence) 19 19 Dismissed (Other punishment) 88 7 19 1 115 Granted to life imprisonment 25 26 Granted to reduction of imprisonment 22 7 29 Granted to release 3 2 29 11 45 Total 157 16 48 12 233

Source: Department of Corrections

255 ------

PARTICIPANTS' PAPERS cedure Code of 1935, Section 259 that: after measures prescribed by law are attached in a case has become final, a person sentenced Annex 1. to whatever punishment or an interested per­ In fact, measures of safety are provided by son, wishing to petition the King praying for the Code for over 30 years, but almost of the pardon, may do so by submitting such peti­ measures are rarely used in practice. How­ tion to the Minister of Interior. In 1987,233 ever, the Fourth Plan of the Ministry of In­ prisoners submitted petition for pardon as terior (1987-1991) specifies that guideline for shown in Table 5. operations will be set up in order that the Pub­ General pardon is granted on various oc­ lic Prosecutor will submit motions to Court casions, according to the Criminal Procedure in putting the measures of safety into real prac­ Code (No.9) of 1974, Section 3 provides that tice for the purposes of controlling some kinds the Cabinet, in case it deems appropriate, may of offenders and recidivists. To implement give advice to the King to grant pardon to the plan, on January 4, 1988 the Public Prose­ any inmate which shall be enacted in form cution Department has established a new di­ of a royal decree. The latest one is the Roy­ vision named "Safety Measures Division" to al Decree for Pardon of 1988 which marked handle these measures, the result of opera­ the occasion of His Majesty the King's longest tions is shown in Table 6. reign in Thai history. In 1988 there was no case submitted for In general, pardon is deemed to have no relegation because in 1987 the "Act on De­ deterrent effect and is not any form of reha­ letion of Wrongdoers' Blameworthiness on bilitation. However, Thailand has her culture the Auspicious Occasion of the Sixtieth Birth­ and tradition on loyalty to the King. His gra­ day Anniversary of His Majesty King cious mercy granted for pardon is deemed Bhumibol Adulyadej of 1987" was enacted. to remind the offenders not to commit any As a result, offenders' past criminal records wrongdoing again. were deemed expunged, therefore there is no case qualified for relegation. 5. Some Efforts of the Public (2) Legal Dissemination and Assistance in Prosecution Department in Solving Conciliation of Disputes: It is one of the prin­ the Problem of Overcrowding ciples in criminal law that ignorance of law shall not excuse any person from criminalli­ The Public Prosecution Department as an ability. This rule is also provided in Section agency in criminal justice system has taken 64 of the Thai Penal Code (1957). However, part in solving the problem of prison over­ in reality some people may commit some crowding by using some kinds of preventive offences without knowledge that they violate measures. Although the measures do not di­ the laws. The Public Prosecution Department rectly tackle the problem of overcrowding they as a principle legal agency which has its branch are useful in some respects in crime preven­ offices throughout the country, therefore, is tion and treatment of offenders. assigned by the Government to disseminate (1) Measures of Safety: The Thai Penal Code basic legal knowledge to people especially in (1957), Part 2 discusses measures of safety rural areas and to assist in conciliation of dis­ separately from Part 1 which discusses pun­ putes, etc. In 1982, the Bureau of Civil Rights ishments. According to Section 39, there are Protection and Legal Aid was established to five types of measures of safety, viz, relega­ carry out the tasks. The work performance tion (or protective custody), prohibition to enter of the Bureau is shown in Table 7. a specified area, execution of a bond with se­ (3) Proposal for Applying the Measure of Sus­ curity for keeping the peace, restraint in an pended Prosecution: Suspended prosecution institution for treatment and prohibition to is a measure of pre-trial screening of cases exercise certain occupations. The specific by public prosecutors. Some offenders are not

256 THAI PRISONERS' OVERCROWDING

Table 6: Number of Cases SubmHted for Applying Measures of Safety between February 22, 1988-February 21,1989

Number of Cases Court Types of Measures of Safety Cases Pending Disposed Applied Court Submitted Cases Out of Measure Dismissed Court 1. Prohibition to enter a specified area 2 (Section 45) 2. Execution of a bond with security for keeping the peace (Section 46) 3. Restraint in an institution for 3 2 treatment (Section 48) 4. Prohibition to exercise certain occupations (Section 50) 5. Prohibition from drug addiction 1,085 8 9 326 742 (Section 49)

Source: Public Prosecution Department

Table 7: Work Performance of the Bureau of Civil Rights Protection and Legal Aid between 1982 -19877

Total Operations Counted Aims for 1982 1983 1984 1985 1986 1987 No. Activities by 6 years 1. Provide assistance in Cases 14,507 6 7 72 1,218 1,474 2,018 lawsuits 2. Render legal consul- Persons 160,815 1,008 27,174 6,453 25,841 20,722 33,688 tation services 3. Provide assistance for Cases 3,005 103 215 234 650 cases within authorities of public prosecutors 4. Assistance in concilia- Persons 10,925 26 1,604 2,392 2,396 tion of disputes 5. Dissemination oflegal Villages 23,362 206 314 1,503 6,503 5,833 5,766 knowledge 6. Training of essential Persons 170,200 400 2,103 10,659 47,003 35,567 43,786 legal knowledge for village leaders 7. Training courses for Persons 3,698 133 3,153 rural development officials 8. Provide legal officials Villages 605 29 47 110 281 9. Training for trainers Groups/ 10/400 1/45 2/80 4/168 3/119 persons 10. Exhibitions and dem- Events 228 5 43 84 onstrations on legal proceedings 11. Support other pro- Events 3,180 685 961 911 jects, e.g. as trainers

257 PARTICIPANTS' PAPERS really habitual criminals but unfortunately it requires large budgets, personnel and large committed offences by chance or sometime areas for construction. Application of by negligence. Suspended prosecution, there­ community-based programmes such as pro­ fore, is applied for such kind of offenders who bation and parole are better and more cost­ are placed under probation for a period of time. effective in alleviating the problem. Howev­ This measure is widely used in the U.S.A., er, attitudes of people in society are very im­ Japan and some other countries, but it has portant for the success of such measures. not been used in Thailand. Furthermore, every agency in criminal jus­ The Public Prosecution Department tried tice system should be used to its fullest de­ to apply this measure about ten years ago but gree. For instance in Thailand, applying the it was objected to by some agencies who point­ measure of suspended prosecution with pro­ ed out that according to the Criminal Proce­ bation for some kinds of offenders will help dure Code (1935) the Public Prosecutor has in solving the problem of prison overcrowd­ powers only to prosecute or not prosecute ing in some respects. offenders but has no authority to suspend prosecution. After a period of conh'oversy, Notes the Public Prosecution Department decided to omit the plan. 1. Act Instituting Juvenile Courts of 1951, Sec­ However, the Fourth Plan of the Ministry tion 4 provides that: "Child" means the per­ of lilterior (1987-1991) specifies that the Pub­ son who has reached the age of seven years or lic Prosecution Department will propose a upwards, but not exceeding fourteen years. draft for revision of the Criminal Procedure "Young Person" means the person who !las Code (1935) and will draw out the ministeri­ reached the age of fourteen years or upwards, but not exceeding eighteen years, and exclud­ al rules on suspended prosecution and reha­ ing any person who has become sui juris by bilitation of offenders by public prosecutors marriage. for some kinds of offences. If this plan is 2. The Fourth Plan of the Ministry of Interior worked out, it will be another measure to al­ (1987-1991), Chapter 11, p. 121. leviate the problem of prison overcrowding 3. Report for 1982 and Resource Material Series by means of a non-institutional treatment in No. 23, UNAFEI, p. 153. Thailand. 4. Annual Report of the Ministry of Justice 1986, p. 126-127. 6. Conclusion 5. Annual Report of the Department of Correc­ tions 1987, p. 28. Alleviation of the problem of prison over­ 6. Community-Based Treatment of Offenders in Japan, Rehabilitation Bureau, 1981, on the crowding by means of constructing new pri­ preface. sons is more difficult to accomplish because

258 THAI PRISONERS' OVERCROWDING

Annex 1

The Thai Penal Code *

Part 2 Measures of Safety

Section 39. The measures of safety are 295 to 299; as follows: (7) Offences against Liberty as provided in Sections 309 to 320; (1) Protective custody; (8) Offence against Property as provided (2) Prohibition to enter a specified area; in Section 334 to 340, Section 354 and (3) Execution of a bond with security for Section 357, keeping the peace; (4) Restraint in an institution for treat­ and, within ten years from the day of hav­ ment; ing been discharged from the protective cus­ (5) Prohibition to exercise certain occupa­ tody or of having lmdergone the punishment, tions. as the case may be, commits any of the speci­ fied offences again so that the Court sen­ Section 40. Protective custody is the tences him to imprisonment of not less than keeping in custody of a habitual criminal six months for such offence, the Court may within a specified area in order to prevent regard him as a habitual criminal, and may him from committing offences, to reform his sentence him to be subject to protective cus­ character, and to train him for occupation. tody for not less than three years but not Section 41. In the case where any per­ more than ten years. son who has been sentenced to be subject to The offence committed by an offender at protective custody, or has been sentenced to the time when he is not yet over seventeen imprisonment of not less than six months for years of age shall not be deemed as an not less than twice for the following offences: offence to be taken into consideration for protective custody according to this Section. (1) Offences relating to Public Peace as Section 42. In calculating the period of provided in Section 209 to 216; protective custody, the day of passing judg­ (2) Offences relating to Public Security as ment by the Court shall count as the day on provided in Sections 217 to 224; which protective custody begins. Should (3) Offences relating to Currencies as there be any punishment of imprisonment or provided in Sections 240 to 246; confinement to be undergone by the person (4) Offences relating to Sexuality as subject to protective custody, it shall be ex­ provided in Sections 276 to 286; ecuted first, and the day following that on (5) Offences causing Death as provided in which liberation from imprisonment or con­ Sections 288 to 290, and Sections 292 finement takes place shall count as the day to 294; on which protective custody begins. (6) Bodily Harm as provided in Sections Regarding the period of protective custo­ dy and the liberation of the person subject to protective custody, the provisions of Sec­ * Compiled and translated by Watana Ratanawichit, tion 21 shall apply mutatis mutandis. Odeon Store, Bangkok, 1969. Section 43. Prosecution for protective

259 ------1

PARTICIPANTS' PAPERS custody shall be the exclusive power of the that determined in the bond. If he fails to pay Public Prosecutor, and it may be requested it, the provisions of Section 29 and 30 shall together with the prosecution of the case apply. which forms the basis for prosecution for Section 48. If the Court is of the opinion protective custody, or it may be made after­ that the liberation of any person having a de­ wards. fective mind, mental disease or mental infir­ Section 44. Prohibition to enter a speci­ mity, who is not punishable, or whose pun­ fied area is the prohibition to enter a locali­ ishment is reduced according to Section 65 ty or place specified in the judgment. will not be safe for the public, the Court may Section 45. Whenever the Court passes give order sending him to be restrained in judgment convicting any person, and deems an institution for treatment. This order may, appropriate for the sake of public safety, the however, be revoked at any time by the Court may, whether there be a request or Court. not, give order in the judgment that, when Section 49. In the case where the Court such person has completely undergone the pa~ses judgment imposing imprisonment on punishment according to the judgment, he any person, or passes judgment that any per­ shall be prohibited to enter a specified area son is guilty, but the determination or exe­ for the period of not exceeding five years. cution of punishment is to be suspended, the Section 46. If it appears to the Court Court may, if it is of opinion that such per­ from the statement of the Public Prosecutor son has committed the offence owing to that any person is likely to cause danger to habitual drunkenness or harmful habit form­ another person or the property belonging to ing drug addiction, determine in the judg­ another person, or if in the trial of any case, ment that he shall neither take liquor nor the Court will not convict the prosecuted per­ harmful habit-forming drug within a period son, but there is reason to believe that he not exceeding two years as from the day of likely to cause danger to another person or having undergone the punishment, or from to the property belonging to another person, the day of liberation on account of the sus­ the Court shall have the power to order him pension of the determination or execution of to execute a bond in a sum not exceeding five punishment. thousand baht with or without security. for In the case where the person mentioned in keeping the peace during such period as the first paragraph fails to comply with what fixed by the Court but not exceeding two is determined by the Court, the Court may years. give order sending him to be restrained in If such person refuses to execute a bond, an institution for treatment for a period ex­ or cannot furnish security, the Court shall ceeding two years. have the power to order him to be confined Section 50. Whenever the Court passes until he executes the bond or furnishes se­ judgment convicting any person, and consid­ curity, but the confinement shall not be more ers that such person commits the offence by than six months or the Court may give or­ taking advantage of or on account of the ex­ der prohibiting him to enter a specified area ercise of his occupation or profession, the according to Section 45. Court may, if is of opinion that he will com­ The act committed by a child not over mit such offence again if he exercises his oc­ seventeen years of age shall not be subject cupation or profession further, give order in to the provisions of this Section. the judgment prohibiting him to exercise his Section 47. If a person executing a bond occupation for a period of not exceeding five according to Section 46 breaks the bond, the years as from the day of having completely Court shall have the power to order such per­ undergone the punishment. son to pay the sum of money not exceeding

260 SECTION 3: REPORT OF THE COURSE

Summary Reports of the Rapporteurs

Session 1: The Extent of Prison Over­ pan, Saudi Arabia, and Marion Maximum crowding, Causes and Federal Security Penitentiaries of the U.S. Feasible Measures to Cope This unhealthy situation is found to be fur­ with the Problems ther aggravated in countries, where the re­ mand inmate population is very high and the Chairperson: Mr. Prapun Naigowit (Thailand) rate of case disposal, alarmingly slow. Rapp011eur: Mr. Randall Oliver Yorke This situation when examined with even (St. Lucia) the most realistic and compromising accept­ Advise1's: Mr. Clair A. Cripe ance of the general scarcity of finance can­ M1'. Kunihi1'O HOI iuchi not but be deemed as inadequate. Mr. Yutaka Nagashima (c) Overcrowding by virtue of the institu­ tion having not only far in excess of its Introduction planned capacity but, at the same time, lack­ ing back-up facilities which would enable it In recent years the most significant prob­ to function, firstly with respect to security, lem, with which the justice system of the ma­ the primary function of all penal institutions; jority of the world's countries have been secondly to afford humane and hygienic con­ faced, is that of overcrowding in prison. At ditions and; thirdly to attempt effective re­ present with the exception of a few countries habilitation through work, social activities, such as Japan and Saudi Arabia, the situa­ vocational and educational training. tion appears from all information available It was found that a rather high number of to have reached its level of tolerance, from institutions which fall in this category exist. not only the administrative and general staff These alarming realities are a cause for great of the prison institutions but also from the concern as these institutions cannot in any inmates. way serve the functions required, but instead Before proceeding further, it is necessary will serve only as a place for the further to consider three categories of crowding: demoralization of inmates and enhancement (a) Crowding by the ratio of institutional of criminal tendencies. These situations must population to that of country population. In at all cost be rectified if society is to benefit this aspect, it was agreed that though the in­ from the criminal justice system. mate number is on the increase the situation globally has not at this time reached alarm­ Recent Trends in Prison Population ing proportions but that the rate of increase is considered to be far in excess of what The recent trends in prison population of could be considered average. most of the countries examined showed that (b) Overcrowding by virtue of the institu­ the largest percentage increase was regis­ tions having more inmates than the designed tered with respect to offenses related in one capacity. Information available proved that form or another to the drug trade. Offenses in the majority of countries this situation ex­ of housebreaking, larceny, fraud and embez­ ists and in some instances, to the extent of zlement are on the increase in most cases to 4 to 5 inmates being housed in a cell designed support drug habits. The number of offenses to hold one. The exceptions to this are Ja- of drug trafficking is also noted to be on the

261 REPORT OF THE COURSE

increase and world reports indicate no im­ reduces the number of offenders to be incar­ mediate hope for its reduction. Again in this cerated by using effective measures such as regard, Japan and Saudi Arabia are excep­ release of trivial cases by the police, suspen­ tions with ~heir drug related offense rates sion of prosecution, fine, suspension of sen­ showing a decline. tence, parole, etc. The following are cited from reports on in­ stitution conditional with reference to over­ The Challenge of crowding in Japan and Brazil. One is offered Penal Execution in Brazi12 as an example where the issue of prison over­ crowding was promptly handled and success­ The precariousness of the Brazilian fully diverted, the other suggests a system Penitentiary System is manifest. A large in peril. number of our prisons have been neglected, and this presents a gloomy scenery: Partly­ The Situation in Japan 1 destroyed galleries and pavilions, unhealthy cells, kitchens and refectories which fright­ At present, there are 74 headquarters (58 en because of their dirtiness, condemned prisons, 9 juvenile prisons and 7 detention electric and hydraulic installations. houses) and 117 branches (9 branch prisons Prisoners under sentence or arrest or and 108 branch detention houses) in Japan. awaiting trial, sane or mentally abnormal, The daily average number of prisoners in promiscuously live together inside these es­ Japanese correctional institutions were tablishments, real storehouses of human be­ 103,170 persons in 1950, the maximum ever ings, without any perspective of individuali­ reached. This figure declined year after year, zation in the penal execution. reaching 45,690 persons in 1975, the mini­ The prisoners, most of them idle, some of mum ever recorded. them working without receiving any salary, After this, the numbers steadily climbed exploited by private companies or by the upward until in 1986, the average reached penitentiary administration itself, feel the ef­ 55,348 persons. (In 1987, 55,210 persons.) fects of it all. They do not have any adequate The accommodation rate (the rate of the medical pharmaceutical or odontological as­ actual number of prisoners to the authorized sistance; feeding is not sufficient, either in number of prisons) in the year of 1987 was its quantity or in its quality; school education 87.0 percent. and professional teaching are simply a farce; We may point out two aspects in order to and the religious and social assistance turn understand why there is no overcrowding out to be irrelevant. problem in Japan. First, the number of seri­ Lacking adequate judicial attention, thou­ ous offenders who should be incarcerated is sands of them could get out of prison wherein small. This is due to the existence of special they are abandoned by means of "habeas­ conditions which sustain a low rate of crime corpus, H parole, penalty unification, crimi­ such as low rate of unemployment, high lev­ nal revision, etc. Sometimes they do not ob­ el of welfare and education, comparatively tain their freedom because of the lack of a less disparity between the poor and the rich, warrant of decarceration though they may strict gun control and many police units in have already completed their time. Yolanda the community. Catao and Elizabeth Sussekind have report­ Second, only advanced offenders are sent ed the case of an inmate who published a let­ to prisons and incarcerated in Japan. Police, ter in a Rio de Janeiro Newspaper denounc­ Public Prosecutor's Offices, Courts, Prisons ing this kind of violence. Sentenced for four and Probation Offices screen the offenders years of imprisonment, he had already com­ in each stage of criminal proceedings which pleted his time, but despite all his efforts, he

262 SESSION 1 remained in the Penal Institute Helio The following are therefore suggested as Gomes." The fact is that, since the prison­ solutions to the problems of overcrowding. ers belong to the lower classes, they cannot pay lawyers who might start the judicial 1. Construction of New Facilities mechanisms in order to obtain their rights. It is suggested that in all cases of over­ Justice, in its slowness, has contributed to crowding as in instances (b) and (c), where an even more difficult situation, by making possible, the existing facilities should be up­ hundreds of people wait many years for their graded by the construction of new buildings trial, in prison. Newspapers have told about on vacant areas, the transfer of inmates to the drama of a prisoner who had to wait 18 the new facility, the demolition of the old years to be tried, and at last, was acquitted building or buildings and the construction of for the crime he had been unfairly arrested. new ones with additional beds. Where this is impossible, completely new facilities Table: Prison Population should be constructed, in which case close Capacity Needs and attention should be paid to the present trend Outstanding Warrants of Commitment of offenses and estimates of the future, with regard to the land area for new institutions with respect to the size and capacity of new Statistics of March 1987-August 1988 buildings as present day building costs are already reaching prohibitive levels and an­ Date Total Capacity Need Warrants not Population Processed ticipated to continue to increase. It is, therefore, for this reason and the fact MAR/87 71,735 41,250 35,770 251,502 that the construction of prison institutions AUG/87 81,738 40,459 45,6:?9 251,513 has as history indicates never been a priori­ DEel87 87,053 40,375 50,934 206,928 ty on the budget of any country, unless the APR/88 83,621 40,997 47,758 214,621 situation as at present in the U.S. where AUG/88 84,240 42,301 46,624 2.50,969 crime rather than overcrowd.ing has become a national problem. The result of the inade­ Practical Measures to Alleviate quacies of the criminal justice system to pro­ the Problem of Overcrowding vide sufficient prison beds and adequate re­ habilitation programmes through work, Clearly these situations of overcrowding vocational and educational training, needless which exist in countries in the categories of to say, the allo\Ying of crime to go unchecked (b) and (c), that is overcrowding by virtue of due to the lack of facilities, will only esca­ capacity and overcrowding not only by vir­ late the already disturbing level of criminal tue of capacity but also from inadequate activity, with its sometimes rich rewards, back-up facilities, should not be allowed to thereby increasing societies concern for their continue. general safety and protection as stipulated Such overcrowding creates not only inhu­ under the constitution of their respective mane conditions under which the inmates are country. forced to live, but also creates situations of prisoner unrest and general discontentment. 2. Application of Community-Based Further, it in no way enhances the staff Programmes morale, which statistics prove, has always Community-based programmes from their been adversely affected when prisoner un­ inception were implemented as an alterna­ rest and dissatisfaction occurs, through no tive to imprisonment but now must be uti­ fault of theirs and over which they have no lized not only to this end but also as a means control. to alleviate prison overcrowC;ing. Communi-

263 REPORT OF THE COURSE

ty-based programmes must, therefore, be more crime there are automatically more made the fullest use of and must be expand­ cOllvictions and ultimately more prisoners. ed to encompass a much wider scope of This ripple effect is evident even in countries offenses and offenders in the hope of assist­ with low levels of unemployment with re­ ing in the alleviation of the serious problem spect to ex-inmates. Though employment of overcrowding at present existent in many may be available, the stigma of imprison­ countries of the world. It is, therefore, rec­ ment has a peculiar unemployable label at­ ommended that all first offenders charged tached, which not even the most. sophisticat­ with offenses such as shoplifting. uttering, ed method of rehabilitation can remove with­ disorderly behavior, unlawful firllting, ob­ out a definite decision being taken by the scene language, minor assaults, traffic vio­ private sector with regard to employment of lations, and other such minor offenses and ex-inmates. It must be remembered that man in default of payment of fines should be sub­ is by nature a vulnerable creature of habit ject to punishment by community service or­ and that during incarceration or, whatever ders. Community service orders should also the duration, because of his vulnerability he be utilized with respect to other offenders will become used to, more so if he had not charged Volith similar minor offenses who are previously been to the basic necessities for not recorded as habitually committing the at least an average standard of existence. If same or similar offenses. Consideration could unfortunately, upon release, gainful employ­ also be given to the execution of community ment cannot be obtained to maintain an av­ service orders in the community in which the erage standard of existence the stage will offense was committed as a hope of addition­ more than likely be set for further criminal al deterrence to would-be offenders. activities even if committed solely for the Such community service orders could be purpose of providing basic needs. served in cleaning and the general upkeep It is, therefore, of utmost necessity that of government offices, health centers, hos­ there be co-operation at more than one level pitals, parks, playing fields, beaches, roads, between the criminal justice system and the etc. This alternative will not only serve to private sector. alleviate overcrowding but would also, to whatever extent, decrease the cost of clean­ (1) That the private sector should assist the ing and upkeep of public facilities. The de­ criminal justice system financially in provid­ terring factor of the high cost of supervision ing anti-crime publicity be it in the form of of community service could be reduced and TV and radio programs, booklets, posters certainlY made less burdensome if the and in any other useful forms. Publicity and offenders were to be supervised by person­ advertising have been proven to work in all nel from the institutions, where the order is other circumstances in which it bs been uti­ to be carried out. It is envisaged that a re­ lized and there is very little doubt that it can markable reduction in prison population and will work with respect to crime preven­ would be realized through the fullest use of tion. Thereby causing a reduction in prison community service orders. overcrowding, of course fur the financial as­ sistance the private sector could be granted 3. Co-operation between the Criminal Justice tax exemptions by the governments as an in­ System and the private Sector centive. Statistics show undisputedly that the crime (2) That there should be co-operation rate in countries with a high level of unem­ which would allow the correctional system, ployment is always grater than that of coun­ priQr to the release of an inmate, to provide tries with low unemployment. This undoubt­ the private sector with all the relevant infor­ edly affects the prison population, as with mation, e.g., age, education and skills in or-

264 SESSION 1 der to secure for him where necessary gain­ perpetrated with the use of weapons, hand ful employment. This would not only provide guns topping the list. Strict gun and arms employment for the offender upon release control would no doubt result in a reduction but would also assist him in his social reha­ of violent and fatal crimes. In some devel­ bilitation. oping countries, insurgency and political dis­ cord is generating violence and increased dis­ 4. Other Effective Policies of Crime semination of guns and ammunition, partic­ Prevention and Methods Which Could ularly among the young population. Strict Be Utilized to Assist in the Alleviation regulation over sales and possession of guns of Overcrowding and firearms should be considered as a way It must be remembered that crime can be to reduce the increasing numbers of crimes reduced as it is a creation of humanity, man­ related to guns and dangerous weapons. made and as much can be controlled, mani­ pulated, diverted, sublimated, repressed, and 3. Increasing Police Presence reduced. Sometimes the cost of so doing may In most countries the police to population result in the decision that the cures is worse ratio, area and number of crimes is inade­ than the disease but that is a matter of study, quate. A greater police presence would not priorities, and hard decisions. The error of only result in more arrests, but also in few­ the past has been to think in terms of a sin­ er crimes. Crime reduction could be achieved gle programme, as if that could be a pana­ by the introduction of police boxes into com­ cea. It is concluded that a substantial reduc­ munities and the utilization of civilian per­ tion of crime would be possible with a multi­ sonnel to perform duties now being per­ pronged programme that would simultane­ formed by police but which duties do not ously inhibit, prevent, deter, difficult, in­ warrant the need for trained police thereby capacitate and punish. The following are a making more police available for the preven­ few measures which could be implemented tion and detection of crime. The police box to achieve this goal. or "koban" system has already proven suc­ cessful in both the prevention and detection 1. Lowering the Level of Violence of crime in Japan and would no doubt have Though the evidence available is not clear, similar effects if introduced elsewhere. The there is some indication that the dissemina­ police box system has been significant in tion of images of violence is suggestive to crime prevention and has resulted in better some impressionable people. Though one police and community relations. could be convinced that less violence and in­ novative methcds of committing crimes as 4. Suspended Prosecution shown at the cinemas and on TV would Legislation affording the use of suspension mean a lesser amount of crime, the system of prosecution would undoubtedly cause a would have to be cautious in the methods of marked reduction in overcrowding, particu­ effecting such change without too strict an larly in countries where the jurisdiction of imposition of censorship. The mass media's the criminal code is extremely extensive, influence on the public is becoming strong­ thereby enforcing penalties of imprisonment er and efforts should be taken to introduce for even the most minor offenses, such as standards or regulatory guidance in the dif­ traffic violations and disorderly behavior and ferent fields of mass media. offenses that are committed as a result of ig­ norance of the law and accidental circum­ 2. Gun Control stances. Statistics show that a large percentage of Quite apart from providing an avenue for offenses and violent crimes committed are the reduction of overcrowding in prisons,

265 REPORT OF THE COURSE suspension of prosecution would also afford 9. Community Involvement the offender a second chance thereby avoid­ The level of crime can be reduced by well ing the indelible stigma of criminal convic­ formulated programmes of community tion and reduce the possibility of developing patrols. Highly visible community patrols a "career" criminal. can deter would-be offenders, direct and redirect youth into anti-crime programmes, 5. Speedy Disposal of Cases and Bail educate the community at large in good The speedy disposal of cases of persons crime preventive methods and inform the po­ being held in detention awaiting trial is most lice of suspicious persons and activities, certainly one of the methods which will as­ thereby creating an atmosphere of mutual sist in reducing overcrowding. As statistics goodwill and trust between community and show a large number of people being held in police. detention awaiting trial comprises a substan­ tial number of the prison population. Afford­ 10. Parole ing reasonable bail for most offenses would Parole is another avenue for reducing over­ assist in the reduction of overcrowding and crowding but should not be granted to in­ render a more equitable justice system. mates solely for the purpose of reducing overcrowding but should be utilized as an in­ 6. Suspension of Sentence centive for promoting good order, discipline The utilization of suspension of sentence and industry. will assist in reducing overcrowding especial­ ly in cases where the conviction alone is suf­ 11. Pardon ficient punishment and will act as a deter­ Pardon is a form of inmate release and sen­ rent, bearing in mind that punishment is not tence reduction used in some countries. In enforced with the purpose of destroying the the countries where this form of release and offender but as a means of the deterrence sentence reduction are used, it is effected to from further crime. coincide with events of national significance, such as in Thailand to commemorate the oc­ 7. Fines casion of the longest reigning king in The imposition of fines is yet another Thailand's history. This form of prisoner method of sentencing but which must be release and sentence reduction is effective used with discretion if it is to serve the in­ in reducing overcrowding. tended purpose of avoiding incarceration and thereby assisting in the alleviation of prison 12. Release on License overcrowding. Exorbitant and unmanagea­ This form of prerelease has proven suc­ ble fines should be avoided as much as pos­ cessful in the countries where it has been sible. used and is recommended as a useful means of reducing overcrowding. 8. Pre-sentencing Probation Report The use of pre-sentencing probation re­ 13. Weekend Detention ports will undoubtedly assist in reducing Weekend detention is an alternative form overcrowding as it shall afford the presiding of sentencing which could be utilized to as­ judge, or magistrate with a complete and ac­ sist in reducing overcrowding. However, this curate history of the offender, enabling him, sort of sentencing should only apply to per­ in accordance with the latitude and guide­ sons with sentences of one to six months and lines prescribed by the criminal code, to those who are considered eligible by evalu­ more appropriately impose the most suita­ ation. ble punishment for each offender.

266 SESSION 1

14. Compulsory Hospitalization ing that a crime-free society could be a real­ Compulsory hospitalization is imposed as ity. But that by virtue of the rapid global pop­ a sentence with the duration dependent upon ulation increase and cost of operating insti­ the treatment. With respect to alcohol and tutions for the incarceration of offenders, dmg-addicted offenders, it will not only coupled with world improvement in every reduce prison overcrowding but will also be field, it is necessary also to improve condi­ more meaningful than incarceration in a pris­ tions in penal institutions as well as finding on setting. new methods for dealing with offenders. At the same time being cognizant of the over­ If'. House Detention crowding situation which at present exists This method of sentencing will no doubt in the majority of world countries. It is aid in reducing overcrowding. However, be­ hoped, therefore, that the suggested solu­ cause of financial constraints, this method tions to the problems of overcrowding, which cannot be easily implemenced in the less eco­ are not exhaustive, prove beneficial for the nomically powerful nations as the monitor­ purpose of crime prevention and the allevia­ ing methods required for proper supervision tion of prison overcrowding. of home detention are at present very costly. Finally it must be borne in mind that all of the aforementioned suggestions will come 16. Recmitment and Staff Training to naught without the total and unflinching The effectiveness of any institution can be cooperation between every agency in the assessed by the quality and calibre of its per­ criminal justice system. "This is because the sonnel. The correctional service is no excep­ criminal justice administration is a continu­ tion, hence too great an importance cannot ous flow of procedures, and any problems be placed on the recmitment and training of hampering one agency's functions have a the personnel of the correctional services. great impact on the functions of other agen­ Training should not stop at recmitment but cies, sometimes impeding fair and effective should be a continuous programme with the administration as a whole-the issue of over­ constant improvement in the treatment of crowding in prisons, are often related to sev­ offenders being its main goal, for the more eral agencies and cannot be solved through capable the personnel, the greater the reha­ one agency's efforts if there is not full un­ bilitation possibilities. Appropriate recmit­ derstanding and cooperation from other re­ ment and training of staff will provide bet­ lated agencies." 3 ter correctional services resulting in lower recidivism rates and a reduced prison popu­ Notes lation. 1. Cited from paper presented by Messrs. Kazuo Conclusion Kitahara and Satoru Ohashi. 2. Cited from paper presented by Mr. Cesar Oliv­ It was unanimously agreed that as history eira de Barros Leal. 3. Welcome remarks given by Mr. Hiroyasu indicates that man from his earliest days for Sugihara, director of UNAFEI to participants one reason or another broke rules, laws, and of the 82nd International Training Course on contravened norms of society, so it is today April 17, 1989. and we should not fool ourselves into believ-

267 REPORT OF THE COURSE

Session 2: The Development of Effec­ imprisonment on the prisoner and the nega­ tive Alternatives to tive results that could bear upon his family Imprisonment and Other during his confinement, the economic and so­ Related Issues cial costs of imprisonment, the financial dif­ ficulty, if not impossibility, of constructing Chairperson: M1', Ovitigala Withanage Oliver new prisons, the delay in the administration Bernard Weerasena (S1i Lanluz) of justice and so forth. There was, however, Rapporteur: Ms. Estrella 0. Avena a ready acknowledgment that alternative (Philippines) methods should be more fully developed and Advisors: Mr. Theodore N. Ferdinand utilized in as much as these measures could Mr. Itsuo Nishimura better facilitate the reformation and rehabil­ .Mr. Shigemi Satoh itation of offenders, when properly applied . It must be mentioned that the time allot­ I. Introduction ted for the discussions was a constraint for a more exhaustive presentation of the par­ This report is the result of a group under­ ticipants' views and opinions and that refer­ taking which involved the enthusiastic and ence materials provided by the UNAFEI and fruitful participation of a federal police in­ the lectures of the experts and professors spector of Brazil; a probation officer of Ja­ during the training course were valuable in­ pan, a public prosecutor, also of Japan; a di­ puts. rector of the Social Sciences Association of Peru; a regional director of the National Po­ II. Alternatives to Imprisonment lice Commission of the Philippines; a District Judge and Magistrate of Sri Lanka; and a There are many kinds of alternatives to im­ Judge of the Criminal Court of Thailand. prisonment that exist within the context of With the valuable advice and guidance the criminal justice systems of the countries provided by a visiting expert, Professor The­ represented. These are available before the odore N. Ferdinand and UNAFEI profes­ trial, at the trial and after the trial stage. sors, Messrs. Itsuo Nishimura and Shigemi Satoh, discussions were focused on several Pre-tn'al and T1'ial Stage selected items with special reference to the At the pre-trial stage, the police and other alternatives to imprisonment obtained in the agencies responsible for the enforcement of countries represented, other measures uti­ special penal laws, such as those relating to lized to reduce pressures on prison popula­ violations of motor vehicle, customs, reve­ tion and some of the problems which stand nue and railway laws, are authorized to di­ in the way of effective implementation of spose of minor cases without resorting tl) non-custodial measures. Attempts were also criminal prosecution. Warnings, compulso­ made to offer proposals and recommenda­ ry attendance in lectures on traffic laws, ad­ tions regarding the possible areas for the im­ ministrative fines for minor traffic violations, provement of existing non-custodial methods customs and revenue law infractions are re­ and the development of new ones. sorted to in Brazil, Japan, Peru, Philippines, Preliminary questions centering around Sri Lanka and Thailand. These measures the need for non-custodial measures brought have prevented the influx of numerous and forth a variety of responses. These included minor cases into the criminal justice system. the perceived failure or inadequacy of the There are traditional concepts and prac­ capabilities of prisons to rehabilitate tices of settling minor disputes among com­ offenders, the poor conditions obtained in munity members and these have found their some institutional facilities, the ill effects of way into the formal legal system of some

268 SESSION 2 countries. In the Philippines, there are baran­ ported that in recent years, about 40 percent gay (village) courts in the barangays which of non-traffic penal code offenders benefit­ are the basic political units. These barangays ed from this system. In 1987 alone, the num­ are headed by elective officials. The baran­ ber of suspects in penal code offences and gay court constitutes a mandatory mecha­ traffic professional negligence who were nism for the arbitration, conciliation and granted suspension of prosecution numbered amicable settlement of light or petty offences 266,535 and 211,839, respectively. The suc­ where the offender and the victim are mem­ cess of this system could be attributed to its bers of the same community. Since the im­ flexibility and the wide discretion afforded plementation of the law on the matter in to the public prosecutor. There are also some 1980, these courts have settled 665,098, or safeguards against possible abuse in the ex­ 89.3 percent of the total 744,678 disputes ercise of the prosecutor's discretion. When submitted. The success of this indigenous a victim is not satisfied or does not agree concept has led to proposals for the expan­ with the suspension of prosecution, he may sion of its coverage. A similar system was appeal to the inquest of prosecution. This is introduced two years ago in Thailand on an a kind of special committee which is com­ experimental basis with the establishment of posed of civil people, selected at random. arbitration committees in the villages of one This committee will conduct the inquest. province. The results of this experimentation Moreover, the law provides a special proce­ will have great effect on the extension of the dure to be followed in cases of abuse of pow­ method to other provinces in the future. On er by public officers. When a victim is dis­ the other hand, the conciliation boards which satisfied with the suspension of prosecution were created in Sri Lanka in 1958 to handle in such cases, he may appeal to the court and criminal disputes among community mem­ the court may direct the institution of the bers are not operative at the moment. The prosecution of the case and for this purpose, people lost confidence in these bodies when the court may appoint a person to prosecute persons with no apparent impartiality nor from among practicing lawyers. The institu­ skills in handling disputes were appointed as tion of prosecution by the court, however, members of the boards mainly (if not solely) has been rarely exercised. The integrity of because of political party affiliations. prosecutors and the internal system of con­ A scheme at the pre-trial stage that has sultation between the prosecutor and his su­ had significant impact on the criminal justice perior officer have also contributed to the im­ system of Japan is the system of suspension pressive results of the system. In Sri Lan­ ofprosecution. The public prosecutor has the ka, an equivalent system exists but is also discretion to suspend prosecution of an rarely used. This is the power of the offender after considering some factors such Attorney-General to enter a nolle prosequi to as the character, age and environment of the discontinue proceedings against an accused. offender, the gravity or particular circum­ A prosecutorial authority which is provid­ stances of the offence, and certain conditions ed under the Criminal Procedure Code of subsequent to the offence, induding the Thailand is the grant of provisional release, offender's repentance and the victim's feel­ with or without bail, with or without securi­ ings, even if there is sufficient evidence to ty, to an alleged offender or accused who is warrant the institution of prosecution. If the kept in custody and has not been charged in public prosecutor deems it proper to suspend court. The same authority is given to the in­ the prosecution taking these factors into con­ quiry official and to the court which issued sideration, he does not prosecute the a warrant of detention or tries the case. The offender but, instead, he drops the case com­ right to apply for provisional release is a con­ pletely without resorting to trial. It was re- stitutional one and this right is exercised with

269 REPORT OF THE COURSE frequency. persons, except those charged with capital There are other options available that offenses where the evidence of guilt is could prevent or reduce unnecessary or strong. However, in practice, a big percent­ prolonged detention in prisons. Bail can be age of arrested persons cannot afford to post availed of by an accused person either at the bail because of their lack of financial capac­ pre-trial or trial stage in most of the coun­ ity to do so since a large number of them are tries with the exception of Peru where bail indigents. At present, detention prisoners has been reported to be virtually not pres­ who are awaiting or undergoing trial com­ ent. In Sri Lanka, all offences are, in princi­ pose 90 percent of the total jail population ple, bailable. However, the Code of Crimi­ in cities and municipalities, and in the met­ nal Procedure Act of 1979 makes a classifi­ ropolitan jails, the figure has gone up to as cation of offences that are bailable and those high as 95 percent. The prolonged confine­ which are not. In the case of bailable ment of detention prisoners because of ina­ offences, it is mandatory for the authority bility to post bail has been a main cause of concerned i.e. the police or the court, as the overcrowding in prisons. Long-term solu­ case may be, to grant bail. For offences tions to the problem of jail congestion seem categorized as non-bailable, such as murder to point to the area of bail reforms and elim­ and treason, only the superior courts i.e. the inating the sources of delay in the adjudica­ Court of Appeals and the Supreme Court can tion of cases. There is also a need for more to grant bail. Concern has been expressed effective utilization and even amendment of over a number of situational problems on the the law on release on recognizance so that matter of bail in the country. For example, a greater number of accused persons, instead questio,ls have been raised over the unifor­ of being committed to prison for failure to mity of its application, the propriety with furnish bail pending trial, may be placed un­ which the courts have exercised their discre­ der the custody of a responsible person in the tion on whether to deny or grant bail and the community. In other countries like Thailand inability of accused persons to actually en­ where provisional release without bail is per­ joy temporary liberty either because of the mitted, Sri Lanka where conditional dis­ refusal of the court to grant bail or due to charge of an offender prior to conviction or the excessiveness of the bail, if granted. It after conviction is allowed, Japan where the has been voiced that, following judicial suspension of execution of detention is au­ precedents, the principal issue that must be thorized, and Peru where provisional free­ determined on the matter of bail should be dom is sanctioned, recourse to these meas­ the possibility that the accused will appear ures may be maximized under the circum­ to stand his trial and not abscond. In Japan, stances set forth in their laws. bail is mandatory except in those cases where the law provides otherwise, e.g. where Post-trial Stage the accused is charged with an offence pun­ At the post-trial stage, and more particular­ ishable by death, or imprisonment with or ly at the sentencing stage, an array of dispo­ without forced labor for life. In these cases, sitions are available to the courts and these the courts have the discretion to grant or measures may be imposed singly or in com­ deny bail. The Japanese are likewise court bination with others. Such measures include empowered to suspend the execution of deten­ admonition and is usually applied in cases of tion by entrusting the accused to the charge juvenile offenders. The imposition offines is of his relative, a protective institution and the used for a wide range of offenders. In Japan, like, or restricting his dwelling. In the Phil­ fines are imposed in a great number of cases. ippines, the rights to bail is constitutionally In 1986, for example, 95.7 percent of all guaranteed and is extended to all accused offenders, including those involved in traf-

270 SESSION 2 fic violations, were fined and most of them court, after passing judgment that an ac­ were disposed of by summary proceedings. cused person is guilty, may suspend the de­ Moreover, heavy reliance is placed on the termination of the sentence or, after the de­ Traffic Infraction Notification System when termination of punishment, it may suspend dealing with minor traffic offences. In Japan, the execution of the sentence and release fines (including minor fines) are also penal him, with or without conditions for control­ dispositions, with detention at work house as ling his behaviour. substitute for non-payment of fine. In the Sri Lanka's legal system also allows the Philippines, fines are generally not used due conditional discharge of offenders without pro­ to the inequalities that may arise from its ap­ ceeding to conviction, having regard to the plication. In case of failure to pay fine when character, antecedents, age, health, or men­ imposed as penalty, subsidiary imprisonment tal condition of the person charged, or to the is provided by the court. Because of the low trivial nature of the offence, or to the extenu­ economic status prevailing among a big num­ ating circumstances under which the offence ber of convicted persons, criminal justice au­ was committed. The same measure is per­ thorities should look toward introducing missible on persons who have been convict­ measures for possible substitutes of subsid­ ed on indictment of any offence punishable iary imprisonment. with imprisonment, after considering the Another alternative available at the sen­ same factors such as character of the tencing stage is the system of suspended sen­ offender and so forth. Also, in Sri Lanka, the tence which has been adopted in several court may, in lieu of imposing a sentence of countries as a means of avoiding the nega­ imprisonment in default of payment of fine, tive effects of imprisonment and of helping enter an order referred to as a "community the offender to reform himself. This system service order" (CSO), directing the accused involves either the suspension of determina­ person to perform stipulated service at a tion of the sentence or, if the sentence is de­ given place in a state or state-sponsored proj­ termined, the suspension of the execution of ect within a period of one year from the date the sentence, or both. In Japan, the court is of the order. While the CSO has been intro­ empowered to suspend the execution of the duced as early as 1973, this system was put sentence of imprisonment in specified in­ in to force in 1985 only. At present, the re­ stances. In Sri Lanka, courts which impose quired number of the hours of work are be­ a sentence of imprisonment on an offender tween 40 and 240 within a one year period. for a term not exceeding six months or two While some authorities have described the years, as the case may be, may order that CSO in other jurisdictions as a simple but ef­ the sentence shall not or may not (respective­ fective method of training and control, its im­ ly) take effect unless, during a period speci­ pact on the Sri Lanka criminal justice sys­ fied in the order being not less than five tem has yet to be assessed. years from the date of the order, such Probation is another common alternative offender commits another offence punisha­ measure to imprisonment and a method of ble with imprisonment. In the Philippines, in non-institutional treatment which is commu­ the case of youthful offenders, the court shall nity-based. In Japan, there are 2 systems of determine the impossible penalty but instead probation: One is principally for juveniles of pronouncing judgment of conviction, it and another is mainly for adults. The former shall suspend all further proceedings and is a non-criminal disposition of the family shall commit such minor to the custody of court which is based on the Juvenile Law. an institution or responsible person until he The latter is a complementary measure to a shall have reached the age of twenty-one suspended sentence of imprisonment in ac­ years or for a shorter period. In Thailand, the cOl'dance with the Penal Code. On juvenile

271 REPORT OF THE COURSE probation, the family court may place on pro­ from younger age and more professional bation a juvenile who has committed an groups have not been very successful be­ offence or has been adjudged as a "pre­ cause citizens between twenty and forty delinquent" even if his offence or misbe­ years of age tend to be more preoccupied haviour is serious as long as the court is con­ with their own family responsibilities, occu­ vinced that the needs of the juvenile indicate pations and professions. the necessity for the grant of probation. In the Philippines, the adult probation law In Japan, as in other jurisdictions, there are is of comparatively recent application, hav­ certain requirements for eligibility for pro­ ing been promulgated by means of a presi­ bation. For one to qualify for adult probation, dential decree in 1976 and its substantive the sentence should be three years or less, provisions having gone with full force and ef­ or 200,000 yen or less if the penalty imposed fect in 1978 only. However, probation, as a is a fine. Also, the offender must not have concept, has been incorporated in and resort­ been sentenced to imprisonment for the last ed to under the country's Revised Penal five years. Moreover, the offence in question Code as early as 1932 for juvenile offenders. must not have been committed during the Also, the Dangerous Drugs Act of 1972 al­ probation term previously ordered, if any. lows probation to certain types of violators An outstanding feature of the Japanese pro­ and the Child and Youth Welfare Code af­ bation system is the reliance on large num­ fords probation to offenders below 18 years bers of volunteers who have assumed an in­ of age. The adult probation system is an al­ dispensable role and have been integrated ternative measure to imprisonment for first into the system as well as in the structures time offenders who are eighteen years and of other rehabilitation services of the govern­ above and who are not otherwise disqualified ment without becoming professionalized to­ by law. The other salient features of the sys­ tally. The voluntary probation officers tem are that it can be availed of only once (VPOs) form the core of volunteerism in and thus, an offender who has been granted Japanese probation services. The VPO sys­ probation can no longer apply for the same tem has two very significant and strong qual­ privilege for an offence that he might com­ ities. One is the essentially non-official sta­ mit and be convicted of in the future; post­ tus of VPOs. Such being the case, they are sentence investigation and post-sentence in­ psychologically more acceptable to proba­ vestigation reports are indispensable require­ tioners because they do not represent gov­ ments before the court can make its disposi­ ernmental authority to the extent that pro­ tion on a petition for probation; and the fessional probation officers (PPOs) methods court's disposition to grant or deny probation in dealing with offenders do. The other im­ is final and not appealable. Since 1976, a to­ portant feature of the VPO is its local nature. tal of 63,709 convicted persons have been The VPOs live and work in the same areas granted probation under this system and as the probationers assigned to them and from this, it can be deduced that adult pro­ therefore could easily maintain continuing bation has gained an encouraging degree of and close contact with the offenders. How­ acceptance and favourable response. More­ ever, the VPO system, just like any other over, the government derived benefits in the system, is not without problems. Rapid so­ form of Ravings of about 430 million pesos cial changes that have occurred in Japan for the same period of time. While the adult have made recruitment and retention of probation law specifies the age of those who VPOs increasingly difficult. Also, the age may benefit from it, there has been a gradu­ gap between VPOs and the probationers al increase in the number of youthful they serve, who increasingly are young per­ offenders referred by the courts to local pro­ sons, has been noted. Efforts to recruit VPOs bation offices. This calls for a continuing di-

272 SESSION 2 alogue between judges and probation admin­ tant factor in helping parolees find their way istration officials to review dispositions un­ back into society as productive and law­ der the Child and Youth VI elfare Code and abiding citizens. In Japan, the Reh'lbilitation the Adult Probation law to ensure consisten­ Aid Hostels (Half-way Houses) have done a cy in the application of these two laws. good share in making the transition of a In Thailand, the probation system has parolee's life from a custodial to a non­ been introduced for juvenile offenders since custodial one much easier by providing af­ 1952 but for adult offender, it has just been ter care services. These half-way houses not seriously used nine years ago. As of today, only cater to parolees but also to probation­ there are only twenty five out of the seventy ers who may qualify under the law for the three provinces, which have provincial pro­ after care of discharged offenders. The num­ bation offices. The concept of pre-sentence ber of half-way houses, however, have de­ investigation is an important feature of the creased and this could be attributed to finan­ probation process. With the aid of a pre­ cial difficulties in maintaining hostel with the sentence report, the court may determine the decrease of number of residents and the appropriate sentence to commit a defendant problem of securing able personnel, both for to an institution or to grant him probation. management and treatment programs. Aside Compared with other state agencies which from parole, J'emission of sentence, good con­ were established in the same period of time, duct time allowance, public work allowance, probation seems to show a high rate of work of study allowance, and pardon are other growth. However, it has been pointed out dispositions that are available to shorten the that an assessment of the effectiveness of the length of stay of a convicted person in prison. adult probation system could yield better and more accurate results after some time when III. Substantial Problems Which the system will have been extended to all Stand in the Way of provinces in the country. Some problems and More Effective Implementation obstacles, however, have been identified in of Non-Custodial Measures the meantime as regards the implementation of the system. These include the lack of co­ The discussants noted that some of the operation of probationers, especially drug more important problems or constraints offenders, as to the conditions imposed by which have to be addressed in order that ex­ the court; the failure of the accused to give isting non-custodial measures may be fully accurate data about his personal circum­ and more effectively implemented include stances and the uncooperative attitude on the the followings: manpower and financial re­ matter on the part of his relatives; the lack sources shortage, deficiency in appropriate of support to the probation officer from other legislation, negative attitudes of communi­ agencies, both public and private; and the ty members, and lack or inadequacy of re­ heavy load of probation officers who usual­ search on the rehabilitative effects of non­ ly supervise 200 probationers per annum custodial measures. each. The last one mentioned could be min­ On the problem of manpower and financial imized in the near future with the pro­ resources, most of the comments pointed to grammed establishment of probation offices the need for bigger financial allocation from in all the provinces of Thailand. the government so that additional personnel, Early measures of release such as parole particularly, probation officers, could be em­ have been observed to be in force in all the ployed, more rehabilitation centers, especial­ countries of the group participants. The ly for the youthful offenders, could be estab­ availability of community-based treatment lished and the services of existing ones ex­ programs and facilities has been an imp or- panded and improved. Also, it was the

273 REPORT OF THE COURSE consensus that to supplement and comple­ ever, it was pointed out that new legislations ment whatever the state can give for these are not necessary for the present and what purposes, it is necessary that community is needed is the implementation of existing awareness, interest and support should be ones. developed and solicited. The need for the Regarding the negative attitudes of the services of more voluntary probation officers community, the discussants characterized to support and assist in the supervision and these as one of ignorance, indifference, skep­ rehabilitation of offenders could probably be ticism or hostility. Also, a general feeling of met if people were better informed about the insecurity in the community has been ex­ probation system and its merits. For dis­ pressed as a prevailing orle with the presence seminating information to stir public aware­ of released convicts. To some, especially the ness and drum up support for such system, victims, their concept of justiee means pun­ the private sector, particularly the media ishment for the offender. It was pointed out, whether print, radio, broadcast or cinema, however, that probation has been generally could be tapped and utilized. acceptable in the countries that have this sys­ The need was felt for new and appropri­ tem and the same holds true as regards sur· ate legislation in order that the rigidity of pension of prosecution, with particular ret­ penal laws may be relaxed and made more erence to Japan, because the victim's feel­ flexible and/or to provide legal basis for new ings are considered, among other factors, options in criminal justice matters. Towards before suspension of prosecution is resort­ this end, the system of suspension of prose­ ed to. Again, there was a general consensus cution, volunteer probation officers, suspen­ that information campaigns, with maximum sion of sentence (as distinguished from sus­ utilization of media, could be a very potent pension of execution of sentence), commu­ influence in changing people's attitudes. nity service order, day fineds, work furlough, The lack or inadequacy of research stud­ study furlough, home leave and the like ies and related work on the rehabilitative as­ which have been successfully adopted in pects of non-custodial measures has been ex­ some countries should be given much con­ pressed by the discussants and this could be sideration in jurisdictions where these are attributed to some factors such as the low not yet existing. The expansion of the cov­ priority placed on the importance of re­ erage of laws concerning release on recog­ search, the expenses which research could nizance, probation, after-care services should entail and the lack of expertise and facilities also be seriously looked into. Proposals to for research work. However, since the im­ decriminalize certain types of minor offenses portance of research could not and should not such as vagrancy and to depenalize victim­ be ignored, especially for planning and poli­ less crimes such as simple negligence and cy directions, it was suggested that govern­ imprudence which have been made in the ment agencies may tap the resources of the Philippines and are now pending considera­ academics so that collaborative efforts could tion by its legislature, could be considered be made in the area of research. by the other countries. Areas for urgent re­ Efforts to rehabilitate offenders would be forms in any of the criminal justice agencies adversely affected not only by the negative and of the entire criminal justice system attitudes of the c01;lmunity but also by the should be identified for possible short-term lack of clear administrative and criminal jus­ and long-term solutions. For example, the tice policies, particularly on correctional pol­ problems of judicial delay, detention pend­ icies. The situation could be exarcebated if ing trial and prison overcrowding could be the economic conditions obtained in a coun­ reduced if innovative criminal procedures uy have reached a critical level as this would could be effected. In some countries, how- prompt the government to give more priori-

274 SESSION 2

ty to other concerns and less priority to the it was expressed that it would be desirable rehabilitation of offenders. It seems that if younger and professional ones could be re­ Peru is in such an unfortunate situation now cruited. and this has elicited a doubtful attitude about Training should also be extended to other the effectiveness of some of the few non­ personnel in the criminal justice agencies. custodial measures existing in the country. Seminars, conferences, with group workshop However, an experimental proposal was sessions preferably, among participants from presented as one possible response to im­ the criminal justice system should be con­ prove the existing treatment programs and ducted regularly. For better results, these services to youthful offenders. Briefly, the could be done on a collaborative and co­ proposal suggested a new model for the re­ ordinative basis among the agencies involved habilitation of such offenders that would and local universities, thus affording repre­ combine both institutional and non­ sentation from criminal justice practitioners institutional strategies, by transferring the and scholars on this field as well. management of a correctional center for Training courses, seminars and confer­ young offenders (Instituto de Menores No.l­ ences in foreign countries could provide and Maranga) from the hands of the government facilitate exchange of information and tech­ to a new non-governmental organization nology and promote cooperation and under­ which could be formed by joining the finan­ standing in certain areas of common concern cial and human resources of non-profit pri­ and interest. vate agencies which work in specific pro­ grams with young people and those of a pri­ V. Methods of Obtaining vate university. The proposal underscored Public Cooperation the need for the active participation and sup­ port of non-governmental organizations since There is no doubt that any government ef­ the prevention of crime and treatment of fort on any program, including crime control offenders is not the responsibility of the state and prevention, could yield better results if alone but it is likewise the concern of the there is public cooperation and support. This community. is truer still when it comes to the implemen­ tation of non-custodial measures which nec­ IV. Recruitment and Trading of essarily requires the understanding, cooper­ Staff for Effective and ation and collaboration of the community Efficient Implementation of members. There are different ways by which Non-Custodial Measures public cooperation can be obtained. The en­ couragement and recognition of non­ Since non-custodial measures generally governmental organizations' roles in commu­ imply supervision over the released offender nity based treatment programs is one such by an authority, the recruitment and train­ mea~ure. This has been successfully illus­ ing of persons involved in the implementa­ trated in the case of voluntary probation of­ tion of these measures assume vital impor­ ficer in Japan. The conduct of seminars, tance. There is general assent among the symposia and similar activities to enable as participants that better and more extensive many people as possible to better understand and intensive training for probation officers and be more aware of the positive effects of would make them more effective and effi­ non-custodial measures is another means. cient in their work. Recruitment of probation Utilization of media information should also officers should consider not only academic be resorted to. qualifications but also their personality and behavior. For voluntary probation officers,

275 REPORT OF THE COURSE

VI. Coordination Among Agencies units or persons could also be effective co­ ordinative mechanisms. Moreover, the spon­ The different components of the criminal sorship by the government of regular nation­ justice system are all parts of a whole sys­ al conferences, seminars and training tem. Any weakness in any of the links which courses for criminal justice administrators form part of a chain could have adverse, if and practitioners could encourage and foster not disastrous, effect on the other links and coordination and integration. Furthermore, the system as a whole. The need has been the government could also strengthen its expressed for a clearer and better under­ linkages with private associations or agen­ standing of the interdependent nature of cies, especially those who are directly in­ these components and the necessity has been volved in rehabilitation services, and whose noted for an integrated approach to crime efforts should be officially given recognition prevention and treatment of offenders, in­ by the government. cluding the implementation of non-custodial On the international level, coordination and measures, without undermining, of course, cooperation could be pursued through mem­ the independence of different departments, berships in and contacts with international ministries or agencies involved. bodies or agencies, attendance in internation­ The integration of the system and the coor­ al conferences, seminars and training pro­ dination of agencies should be initiated from grams, and maintenance of linkages, like the the top level of government. The highest designation of correspondents, with interna­ ranking officials of these agencies should tional agencies, foreign criminological and hold regular discussions am01,g themselves other similar institutes. The participants ac­ and agree to commit themselves and the re­ knowledged the role of the United Nations sources of their respective agencies to the and the United Nations Institutes, especial­ common policies that could be arrived at. ly the UNAFEI, for their efforts and support The policies should be translated into more in this area. specific issuances and guidelines which should be handed down to the lower levels VII. Conclusion for their observance and implementation. Similar coordinative efforts should be pur­ The workshop participants having dis­ sued at the lower levels. Better integration cussed matters connected with the topic pin­ and closer coordination will no doubt result pointed the prevalent laws and processes re­ 111 the avoidance of conflicts and contradic­ lating to non-custodial measures in their tory policies and practices. These will pre­ respective countries. The similarities and dif­ vent, or at least minimize, wastage In human ferences, the perceived strengths and weak­ and financial resources. nesses, the problems and proposals, the Some of the areas identified for integration hopes and doubts about the progress in the related to integrated approach to planning, development and implementation of these criminal justice information system and measures were bought to the fore. It was ob­ training. To facilitate integration and coor­ served that no system in any of the country dination, ad hoc bodies, like the Judges' In­ represented is perfect but yet there is am­ stitute in Sri Lanka, and the multisectoral ple scope for improvement and innovation. councils or committees whose memberships It is hoped that the efforts put in by the par­ are representative of the criminal justice sys­ ticipants would serve as a useful basis to tem, SUC~l as the Peace and Order Council work upon along the areas mentioned in the and the Technical Panel on Crime Preven­ report. tion and Criminal Justice in the Philippines, The workshop participants owe a great could be created. The existence of liaison deal of gratitude to the advisors for their

276 SESSION 3 guidance and advice without which this (a) Programme for long-term prisoners; workshop would not have been fruitful. Fi­ (b) Programme for physically/mentally nally, the participants extend their sincere handicapped prisoners, and; gratitude to the UNAFEI under whose aus­ (c) The treatment of juvenile offenders. pices they were able to enjoy this rare op­ portunity. I. Special Programme For Long-Term Prisoners

Session 3: Treatment Programmes A. General Remarks for Specific Categories of The ultimate aim of corrections in modern Offenders penal philosophy is the rehabilitation of offenders. COlTectional administrators nowa­ Chairperson: Mr. Wijayasiri Piyathilaka days endeavour to provide various social re­ Niyagama Kariyawasam. integration programmes for prisoners so that Gamage (Sri Lanka) after release they can become contributive Rapporieur: Jlr-fr. Rutton, Harchand Singh and participative members of the society (Hong Kong) again. The rehabilitation of long-term Advisers: M1'. Gordon H Lakes prisoners is a particularly important task be­ M1'. Fumio Saitoh cause they are separated from the society for Mr. Masakazu Nishikawa a relatively long period of time and their so­ cial re-adjustment will be more difficult in Introduction comparison with short-term prisoners. Long-term prisoners are often considered The group members consisted of four cor­ to be dangerous or violent offenders due to rectional officers, two police officers, a pro­ the type or nature of crimes which they have bation officer and a judge. committed. Hence, they are usually separat­ All members reported continuing develop­ ed from the general penal population and ment in the approach to the treatment of placed under close observation in maximum offenders in their respective countries, with security correctional institutions. In addition, increasing emphasis on treatment and train­ they are sometimes not allowed to handle ing programmes-as the main means of re­ certain tools or equipment. Thus, correction­ habilitation. All systems now have more al administrators face considerable con­ specialist expertise relating to correctional straints in introducing programmes aimed at policies, programmes and techniques than the rehabilitation of long-term prisoners. Be­ ever before. In the light of these develop" cause of such constraints, programmes for ments, the proposal to formulate ideal the rehabilitation of long-term prisoners are programmes for long-term prisoners, physi­ often limited in scope or may even be cally and mentally handicapped prisoners" ignored. and juvenile offenders was unanimously It is clear that the traditional concern for agreed by an members. Although different institutional security has sometimes inhibit­ countries have different cultures, customs ed the development of programmes for long­ and most important of all resources, we all term prisoners. However, progressive cor­ believed that we could benefit from the rectional administrators should con~ider the knowledge and ideas we gained during our introduction of innovative programmes discussions here and perhaps with some aimed at developing the talents, intellectu­ modification, apply some of the ideas to our ality, physical health, mental maturity, social local systems. We therefore decided to fo­ techniques, and employment skills of long­ cus our attention upon: term prisoners. Such programmes can be

2'17 REPORT OF THE COURSE conducted in such a manner that will impose (2) To Encourage Long-Term Prisoners to practically no security hazards. For example, Settle Down in the Institutions and Ad­ if a long-term prisoner has talent in water just to the Environment colour painting, the practice of painting does All new prisoners should be required to un­ not involve the use of sharp tools and will dergo a course of induction immediately fol­ also promote the mental development and lowing admission. During the induction employment skill of such a prisoner. period, the following talks should be given However, it must be borne in mind that the by suitable staff to assist the inductees to get programmes should not make the long-term acquainted with all aspects of their en­ prisoners a sper:ial type of prisoner with spe­ vironment. cial rights and privileges. The emphasis is on ensuring that, the behaviour of such Staff Topics prisoners is closely observed and effective­ (a) Induction Staff prison routine in­ ly monitored. cluding rules and regulations, rights B. Main Emphasis of the SPecial Programme and privileges, services available, (1) To Provide for the Training of Long­ etc.; Term Prisoners in Industries to E!1:),ble (b) Welfare Staff Individual and fa­ Them to Have Access to High Tech­ mily welfare facili­ nology ties, public assist- It is recognized that the types of Industri­ ance; al Training provided initially for long-term (c) Hospital Staff physical health and prisoners are relatively narrow because some personal hygiene; long-term prisoners, especially those convict­ (d) Security Staff prohibition of gang ed of violent offences, are normally not given activities; access to tools of a dangerous nature. (e) Education Staff library facilities, Nevertheless, a variety of trades may be education courses suitable for them such as: including moral (a) Garment making; education; (b) Printing; (f) Psychological Staff psychological serv­ (c) Computer operating (provided that ices, I.Q. test, etc.; there is no access to outside net.works); and, and, (g) Industrial Staff all aspects of indus­ (d) Operation of sophisticated machinery, tries including in­ etc. dustrial safety.

In an effort to encourage a satisfactory Apart from the talks organized during the work ethic, long-term prisoners should, as induction period, group counseling sessions far as possible, be maintained on a continu­ should be given as soon as the induction peri­ um of employment within a small number of od is over. The aim of this session is to help trades, thereby fostering a type of "work new admissions to adjust to the institutional career development" whilst they are under­ life more easily and to improve their inter­ going their sentences. personal relationships, civic and moral at­ Meanwhile adequate training should be af­ titudes. forded to the long-ternl prisoners so that they The duration and the content of the nor­ can eVf!ntually attain the required shllievel mal induction programme is generally con­ well before release. sidered sufficient and adequate because

278 SESSION 3 usually the long-term prisoners have been at periodic intervals of all formal edu­ remanded for a considerable period of time cation opportunities available to them; and are, therefore, familiar with the prison (i) Every prisoner should be encouraged setting. to enroll in various study courses; It is not considered necessary to provide U) Book~ on related subjects should be a separate or extended induction programme made available in the library to assist for long-term prisoners. However, for some prisoners in their studies; prisoners who become deeply depressed (k) With the assistance of voluntary reli­ when, for example, all avenues of appeal gious service bodies prisoners may car­ have been rejected, an intensive counseling ry out the responsibilities imposed programme may be provided by the psycho­ upon them by their religious beliefs. logical and welfare staff to help them to set­ T!1eir attendance at religious activities tle down. mU.::.t, however, be on a voluntary basis; (3) To Encourage Long-Term Prisoners to (1) Prisoners must learn to take care of More Gainfully Use Their Spare Time their physical health and to develop The following voluntary education their capacity to participate in sports programme and activities should be made and make self-fulfilling use of leisure available to prisoners: time. Because these abilities are con­ sidered to be necessary for emotional (a) Self study courses: offered by qualified health, the recreation programme is schoolmasters to cover the full spec­ viewed as an indispensable part of the trum from beginner to high school programme. It helps each prisoner to level; develop a wholesome regard for his (h) Correspondence courses: offered by health by promoting co-ordination and various outside bodies; muscle tone appropriate to age and (c) External degree courses: offered by general condition. It helps to impose universities/professional bodies; self-confidence through the mastery of (d) Evening education class: conducted by new skills and game rules. It is expect­ charitable organizations or govern­ ed that each of these elements is ap­ ment employees; plicable and transferrable to the life of (e) Participation in public examinations: the prisoner outside the realm of sports both government and professional and recreation so that he may develop bodies; a wholeso'11e attitude towards his own (f) Hobby classes: geared to prisoners' in­ life UpUil release. In addition specialist terests in various fields such as mus­ staff should organize interest groups ic, languages, drawing, painting, whkh offer a wide variety of activities chess, etc.; at leisure hours so that the prisoners (g) In addition, more commercial classes, may learn to make good use of their like book-keeping leading to the attain­ spare time for healthy activities. Such ment of qualifications conferred by the activities may include drawing, paint­ Public Examination Bodies and social ing, pottery, music appreciation, etc. studies which would keep the Moreover, the establishment of formal prisoners abreast of events in the out­ classes serves as a better incentive for side community should be made the prisoners to pursue further available; learning. (h) All prisoners should be informed dur­ ing the induction period and thereafter (4) To Provide Mental Health Services Par-

279 REPORT OF THE COURSE

ticularly with Regard to Problems As­ individually so as to ascertain the need for sociated with Lengthy Imprisonment any further action or treatment. Additional­ The mental health of all prisoners, espe­ ly, arrangements should be made for case­ cially long-term prisoners, must be kept un­ workers to visit those families experiencing der close observation at all times. particular problems related to the imprison­ In-depth individual counseling and assess­ ment of a family member. Case-work coun­ ment should be provided for every long-term seling should be conducted for the purpose prisoner on admission by specially trained of reconciling strained relationships between staff. Any case requiring special attention or prisoners and their families. treatment should be immediately referred to To assist long-term prisoners in maintain­ the appropriate section for necessary action. ing family relationships, the welfare staff Throughout the peliod of imprisonment con­ should closely monitor the frequency of visits tinuous assessments of the prisoners should by family members to ensure that the rate be conducted to review their current emo­ of visiting does not drop in the later stage tional needs and problems. Appropriate ther­ of imprisonment. apy and support should be available for the For those prisoners with no friends and treatment of their emotional/behavioural relatives, the welfare staff should co-ordinate difficulties and to assist them in dealing with visits from appropriate religious or approved problems arising from lengthy incarceration. volunteers. The main emphasis should be to strength­ en the confidence and determination of (6) To Provide Training/Counseling for the prisoners and to help them gain a better in­ Long-Term Prisoners before Transfer to sight into their problems through individual Another Institution and before Their counseling and group therapy. In addition, Release there should be access to crisis intervention It is a common phenomenon that the fami­ facilities when the prisoner experiences ad­ ly tends to pay fewer visits at the later stage justment difficulties or is affected by grief of long incarceration. In addition, prisoners or anxiety brought about by separation from may feel aggrieved when being transferred his family. Nevertheless, it is anticipated that to another institution. After having settled increasing rapport between staff and down in a maximum security institution, prisoners should lead to the containment of some prisoners do express their desire to certain problems before they reach the cri­ stay on even though they know that they can sis level. The sessions should be further in­ be better rehabilitated and resocialized tensified a few months prior to release in through treatment in low security institu­ order to help the prisoners prepare for their tions, where they are encouraged to have a re-integration into society. sense of responsibility and self-regulation. In such cases the welfare staff should make (5) To Provide Assistance to Long-Term contact with the family to encourage more Prisoners in Maintaining Family or Other frequent visits. Normal Relationships with the Outside Individual counseling should be provided World to prisoners before and after transfer by both Talks on welfare services should be includ­ the transferring and receiving institutions in ed in the induction programme for all newly order to resolve the prisoner's adjustment admitted prisoners. All prison.ers should be problems, if any, resulting from the transfer. individually interviewed by welfare staff in V~' herever possible, as an incentive to good an effort to understand their personal or fa­ behaviour, arrangements should be made for' mily problems resulting from their imprison­ well-behaved prisoners to have home leave ment. Follow-up interviews should be made and to stay in a half-way house shortly be-

280 SESSION 3 fore release. Pre-release counseling should find suitable employment once he is released. be organized for them prior to their release It may be necessary to arrange for a place and assistance rendered where necessary. of residence and/or special employment op­ These counseling sessions must be geared portunities through the joint efforts of the to preparing prisoners for their return to so­ correctional authorities and the appropriate ciety and to cultivate in them the right atti­ special agencies in the community. tude towards life. B. Physically Handicapped Prisoners II. Special Programme for Physically/ Mentally Handicapped Prisoners (1) Objective Within a correctional setting, the objective A. General Remarks of the programme can be summarized as Physically or mentally handicapped follows: prisoners are entitled to the same privileges accorded to other prisoners. However they (a) To promote institutional and individual may be unable to participate in all of the nor­ adjustment of physically handicapped mal activities due to their handicaps. There­ prisoners; fore special programmes are considered (b) To help prevent physically han­ necessary for the physically or mentally han­ dicapped prisoners from relapsing into dicapped prisoners in order to prevent any crime; and further physical nr psychological deteriora­ (c) To maximize the residual capabilities tion as a resu1.t of their imprisonment. One of the physically handicapped of the most common programmes for physi­ prisoners so as to enable them to car­ cally or mentally handicapped prisoners is ry on an independent and productive occupational therapy. In order to make oc­ life. cupational therap.v a successful treatment programme for tt.e physically or mentally (2) Classification and Location handicapped prisoners, correctional adminis­ The types of physical handicap usually trators must ensure that qualified personnel found in penal establishments can be sum­ are assigned ta implement appropriate marized as follows: programmes which should be properly resourced. (a) Sensory handicaps (deafness, mute or It must be recognized that an ordinary dumbness, or blindness of various prisoner may face difficulty in returning to degrees); the society even if he is prepared to abide (b) Gross injury or loss of all or part of a by the law and become a contributive and limb or body; and, participative member of the society after his (c) Paralysis of most or only part of the release. However, in the case of a physical­ body. ly or mentally handicapped prisoner, even though he is rehabilitated while in prison, he Some modifications to buildings have to be is likely to experience even more difficulty made for those suffering from gross physi­ in being accepted by the public because of cal defects to make it possible, for instance, his physical or mental handicap. Therefore, for wheelchairs to be accommodated in lava­ it is essential that correctional authorities co­ tories and washrooms. Institutions built on ordinate with social agencies in the commu­ a hilly terrain with many steps or staircases nity so that a physically or mentally han­ are not suitable for physically handicapped dicapped prisoner, who for example has prisoners. The provision of hand rails, PVC learned a trade or skill while in prison cal). mirrors, adequate lighting, call bells, non-slip

281 REPORT OF THE COURSE

flooring, footstools and rubber mats in bath, (6) Education surrounded by rails should be provided. Prisoners who feel the need to study Some supervisory staff should be taught to should be assisted by the school master who conduct sign language, braille and lip­ should establish a purpose-planned educa­ reading classes. tional programme to meet the learning needs of handicapped prisoners. For sensory han­ (3) Psychological Services dicaps, the special education unit should be A psychologist should interview and car­ required to provide appropriate support such ry out tests on the handicapped prisoners to as sign launguage classes for the deaf and assess their psychodynamic state. Adjust­ mute, and braille classes for the blind. ment problems, if evident, should be dealt with by intensive counseling carried out by (7) Welfare Service and Pre-release Care the psychologist or other professionally Welfare staff should provide the disabled qualified staff. The psychologist should work with all possible assistance to solve pl"oblems in close cooperation with the medical officer encountered by them during their imprison­ and other members of the staff to assist the ment. They will need to take note of the pa­ handicapped prisoners to adapt to the differ­ tients' response to the rehabilitation ent life style that is necessary as a result of programme and coordinate with other agen­ their disability. Psychologists should help the cies to establish favourable family relation­ handicapped to attain emotional stability, ships, to solve housing problems; to look for healthy orientation, realistic self-worthiness, suitable employment and to refer to the ap­ a positive self image and to develop the propriate social work organizations for as­ necessary confidence to enable them to face sistance after release from prison. The their future. agency representatives should be en­ couraged to visit such prisoners regularly (4) Physiotherap~T Treatment during their period of imprisonment so as to Therapeutic exercises involving bodily assist them in planning their future. movement may be necessary to correct the impairment, improve muscule skeletal func­ (8) Exercise tion or the maintenance of a state of well be­ Prisoners must be encouraged to partici­ ing. Advice from the physiotherapists and pate in suitable exercise and recreational other specialists shottid be sought and the pa­ games designed and organized by specially tient may be required to regularly attend trained physical training instructors. Those follow-up sessions in an outside Psysiother­ activities will help improve self-esteem and apy Department. confidence.

(5) Occupational and Vocational Training (9) Provision of Prosthesis and Medical Aids Occupational and vocational training Arrangements must also be made to pro­ should commence as soon as the han­ vide prisoners with prosthesis or medical dicapped prisoners are well adjusted to the aids (hearing aids, speech aids and technical correctional setting and to this end, the oc­ aids) as appropriate. cupational therapist should visit regularly. The occupational therapist and the vocation­ c. Mentally Handicapped Prisoner al training officer should work together to de­ vise a training programme to assist (1) Definition rehabilitation and the provision of diversional "Mentally handicapped," in this context, therapy or vocational training as the case refer to mental/ intellectual deficient cases may be, to suit the individual needs. (deficient in both general intelligence and the

282 SESSION 3 behavioural domains) rather than mentally The programmes should include education ill/disordered cases. Deficits in intellectual classes, a social development group, and a functioning are usually identified or con­ skill training workshop. firmed through formal psychological assess­ ment techniques which must be administered (4) Education Classes by qualified examiners. Handicapped prisoners need to be given training in basic educational skills and aca­ (2) Identification demically related behaviour. Such classes To ensure early detection, diagnosis and should take the form of small group learn­ treatment, staff of a correctional institution ing and be based on a specially designed need to take note of the following maladap­ learning package that consists of a varietv tive behavioural manifestations which are of learning activities and teaching aids. Such common to those with intellectual defi­ packages should be jointly constructed by ciencies: the psychological and educational profession­ als according to the special needs of the par­ (a) difficulties in following routine and ticular prisoners. The main object is to consistent inappropriate responses to develop the prisoners, functional reading and instructions; writing abilities, to promote study habits and (b) poor psychomotor co-ordination; general life skills. Taking account of the (c) accident prone; learners' limited learning potential, abstract (d) impulsivity; knowledge should be minimized while appli­ (e) gullibility, easily provoked and cation to daily life or job related situations manipulated by others, and; need to be encouraged. (f) consistently identified as a laughing stock or particularly vulnerable to (5) Social Development Group ridicule. This is a form of group counseling for men­ tally handicapped prisoners with special em­ (3) Special Programme phasis on promoting their social/adaptive To cater for their special needs, special skills. The psychologist should interview the educational, social development and voca­ prisoners and carry out psycho-educational tional programmes should be implemented assessments. Adjustment problems with spe­ with the following objectives: cial concern of their educational progress, will need to be dealt with by intensive coun­ (a) to promote the application of basic aca­ seling and individual treatment programmes. demic skills to daily routine activities; The psychologist should work in close (b) to promote application of appropriate cooperation with the other relevant members reasoning and judgement under differ­ of the institution to promote the prisoner's ent conditions; psychological well-being and life skills. An (c) to train practical work skills and instill educational package for applied academic a proper work habit for future em­ skills should be designed and constructed by ployment; psychologists with the assistance of the (d) to promote social skills and communi­ school masters. c:ltion techniques for better institution­ al adjustment; and (6) Skill Training Workshop (e) to promote reintegration of the intellec­ Bearing in mind their sub-average abilities tually deficient inmates into society af­ in following work instructions and taking ter release. precautions against industrial hazards the mentally handicapped prisoners need special

283 REPORT OF THE COURSE

training in the basic skills of tool manipula­ education, appearance and personal hygiene. tion. The skill training workshop should aim at developing the prisoners' skills in basic (3) Academic Education woodwork and simple manual tasks. In view Inmates who are under school leaving age of their limited learning abilities, it may not must receive compulsory education. All in­ be possible to teach them comprehensive mates upon admission should be given an at­ tainment test to determine their level of craft skills for immediate employment, but academic achievement before being placed rather to develop their psychomotor skills in appropriate education classes. The and facilitate their future learning in other programme should cover academic subjects, specialist rehabilitation centers. All the train­ moral education, life and social skill, leisure ing exercises should put the emphasis on activities and work skill. Specific textbooks manual skill training; the use of power tools should be prepared taking into consideration may have to be limited, at least in the early the unique factors of the inmates who differ stages of training. from normal school pupils in age, social ex­ After-care officers should provide all the perience, learning attitude and motivation. necessary assistance to the mentally han· Regular examinations and tests are to be dicapped prisoners to solve their problems held to monitor their progress. In addition, inmates are to be encouraged to take part in during institutionalization. After or shortly various open examinations. Facilities are to before the prisoner's release, they should be provided for those inmates with educa­ refer them to the appropriate organizations tionallevels beyond the main stream to meet for job placement or further specialized train­ their special needs. In addition to the teach­ ing for the handicapped. ing staff, educational psychologists should be In some cases, mentally handicapped made available to offer assistance in curric­ prisoners may suffer from sensory handicaps ulum planning and development. Particular such as hearing loss or speech deficiencies. attention is to be paid to inmates with spe­ On the recommendation of the medical cial learning needs such as those with in­ officer, prisoners found to have sensory han­ tellectual deficiencies or other learning dicaps should be referred for further assess­ problems. ment by specialists. Speech therapy can be arranged for inmates with severe speech (4) Vocational Training problems and hearing aids should be provid­ Inmates are to be assigned to vocational ed to those suffering from hearing loss. training classes, taking into consideration their interest, past experience and the recom­ III. Programme for Juvenile mendations of qualified staff. Vocational Offenders training serves the following four main purposes: (1) Aim Separate institutions should be established (a) to engage the inmates, both in mind to provide facilities for the training and refor­ and body in productive work; mation of juvenile offenders. The training (b) to help them appreciate the value of should aim at instilling good working habit constructive labour in a decent society; and sense of responsibility so that offender (c) to develop their skill which will lead to may become independent and law-abiding a certificate of achievement; and, citizens upon release. (d) to familiarize them with the trades available in the institution, therebyaf­ (2) The Programme fording them job opportunities upon The programme should provide for full release. time residential training including education­ al and vocational training with special em­ Subjects need not be confined to designat­ phasis on discipline, conduct, moral ed vocational training or construction indus-

284 SESSION 3 try training courses; other skills can be (c) Development of social awareness, included under this heading. should be offered to all inmates prior to (5) Psychological Treatment release. This programme plays an important Psychological treatment are useful to part in preparing inmates to return to the facilitate inmates' general social adjustment community. Temporary release should be and promote the development of insight h­ considered for some inmates to enable them order to effect positive behavioural changes. to take part in workshops and courses run It is to be provided in the form of individu­ by the probation service, preferably in their al/group counseling and psychotherapy by a home area but may also be in the area local clinical psychologist in order to reduce anxi­ to the institution. ety, promote more adaptive behaviour, build morale, increase self-awareness, develop the (8) Aftercare, ability to analyse facts, communicate feel­ After release inmates should undergo a ings, and reduce resistance to training. Is­ period of compulsory supervision under the sues such as alcohol, drug and solvent abuse, guidance of qualified social workers (after­ anger control, AIDs, etc., may all be suita­ care officers) who would ensure that all su­ ble for group sessions. Inmates are to be pervision requirements of the supervision facilitated within the group sessions to im­ order are complied with. The supervises prove their problem solving skills in social should be recalled to the institution should situations so as to generate a sense of suc­ he fail to comply with any of the supervision cess and confidence. requirement during the supervision period. Throughout the supervision period the after­ (6) Physical Education, R{jcreatio12, Hobbies care officer should conduct home and work­ and Sports place visit to ensure that the inmate leads a The physical education syllabus should law-abiding life and to assist him in solving cover a wide range of activities induding problems through legitimate and socially ap­ gymnastics, athletics, circuit training, phys­ proved means. ical training and team work. The purpose of physical education is to promote physical Conclusion well-being and enable the offender to acquire individual skills from which he may derive Great care should be given to prevent the identity, self-respect and a sense of personal gradual development of the "institutionali­ achievement. Activities should be planned to zation syndrome" especially in the case of take account of individual needs, ability, ap­ long-term prisoners, by keeping their minds titude and potential, and they should be or­ and bodies as alert as possible. This can be ganized so as to encourage thought as well maintained through attendances at various as action. kinds of occupational/therapeutic workshops To encourage healthy, socially acceptable where team work and group approach is hobbies and to promote confidence, a varie­ stressed to guard against prisoners becom­ ty of recreational activities should be or­ ing too withdrawn. ganized such as participation in scouting, Special and in-service training for the staff guiding, outward bound courses and commu- concerned is needed to enhance their under­ nity services. . standing of the aims and contents of all these programmes and to promote their awareness (7) Pre-release Programme of the need of these prisoners. A pre-release programme, characterized Private organizations are also expected to by three approaches namely: contribute various social, recreational, ther­ apeutic and counseling programmes to (a) Information of social resourses; prisoners upon their return to the society and (b) Development of studies/career pros­ most important of all to provide them with pects; and, job opportunity.

285 REPORT OF THE COURSE

Only by adopting the right approach and offender is the "correctional officer." He is methods will all the above services and an important agent, who can either make or programmes prove to be a success. The break an offender. The correctional officer guidelines contained in these programmes possesses the prime responsibility of in­ are not exhaustive. These programmes re­ fluencing to a great extent the attitude and quire team work, support and external assist­ behavior of an offender. Studies have shown ance. It is the aim of all correctional admin­ that whatever type of program is given to the istration to help the offenders to re-integrate into the free community and become con­ offender, no result will be produced unless tributive and productive members of the so­ the prisoner himself desires to change and ciety. teform himself. This is the challenge of the correctional officer, that of executing the dif­ ficult task of influencing the offender to Session 4: A Staff Training and Other change. When an offender is incarcerated, Issues Regarding the Im­ he feels rejected and alienated from the rest provement of Corrections of the world. The correctional officer can Administration either reinforce or change that view. His skill and expertise in handling the offender can Chairperson: Mr. Cesar· Ba1'ros Leal (Brazil) help a great deal in restoring in the prisoner Rapporteur: Ms. Resurrecion S. Morales hope, self-respect, dignity and eventually, (philippines) the desire to live a reforn1ed and peaceful life Advisors: Mr. Chan Wa-shek as a law-abiding citizen. Mr. Norio Nishimura Evidently, the success of the rehabilitation Mr. Akio Yamaguchi program depends a great deal on the correc­ tional officer's ability and skill to implement 1. Introduction effectively and efficiently the various institu­ tional activities and undertakings. Corrections is one of the pillars of the It is of paramount importance that the cor­ Criminal Justice System. It plays a very im­ rectional staff be given the necessary train­ portant role in crime prevention and in the ing and preparation to assume an equality over-all maintenance of peace and order in difficult and challenging task. Efforts should the community. Correction lies within the be directed toward the creation and mainte­ broad spectrum of Crime Prevention. The re­ nance of a pool of workers equipped with the habilitation program given to the offender in knowledge, skills and attitudes in handling a correctional institution is in reality a prep­ the various types of offenders and in im­ aration for him in his eventual re-entry into plementing the objectives of the correction­ the free society. An offender is given suffi­ al establishment. cient and adequate education and training The U.N. Standard Minimum Rules No.46 opportunities inside the institution, because (1) states: when he is released, it is the free communi­ "The prison administration shall provide ty where his real challenge will begin. Incar­ for the careful selection of every grade of the ceration can be considered as just half of the personnel, since it is on their integrity, hu­ offender's journey towards reformation. A manity, professional capacity and personal rehabilitated offender who has been success­ suitability for the work that the proper ad­ ful in his re-entry into the free community ministration of the institution depends." diminishes the possibility of a commission of The correctional officer must be familiar another crime. Therefore, corrections is ac­ with the institutional goal, and is at the same tually crime prevention. time, sensitive and responsive to the chang­ The focal element in the rehabilitation of ing needs of times. The training should

286 SESSION 4

awaken in the officer an awareness of the people who play important roles in the reha­ great importance of his responsibility so that bilitation scheme. Likewise, those personnel he will be properly motivated to perform and who have to be carefully recruited, trained comply with his job requirements. and developed can be clearly identified. Staff recruitment, training, and the provi­ The classification of personnel is as fol­ sion of attractive salary, benefits and other lows: incentive schemes, should occupy a priority status in any correctional institution. A well­ (1) Director and his staff-these are the trained and efficiently-managed correction­ policy-makers, and high-level officers al staff will truly make a big difference. It who assume the highest posts in the in­ can be considered as the moving force in the stitution. In other countries the Head pursuit of the goals and objectives of the cor­ of Prisons are called Director-General rectional institution. of the Corrections Bureau, Commis­ Group IV has been assigned this very im­ sioner of Prisons, etc., but they all portant theme, Staff Training and Other Is­ mean the Head of the Correctional In­ sues regarding the Improvement of. Correc­ stitution. . tions Administration. The group decided to (2) Specialists/Medical Personnel­ divide the main subject into four major parts. Doctors, nurses, dentists, psycholo­ First, we will discuss the existing condi­ gists, social workers, teachers, trade in­ tion in our respective countries, in the area structors, agricultural experts, and of staff training and development. Specific other professionals who represent spe­ areas which will be covered are: cialized fields and with technical exper­ tise. a. Recruitment of Correctional Personnel, (3) Administrative Personnel-those pri­ b. Salary Scheme and Other Work Incen marily concerned with clerical work tives, and other day to day operations. Exam­ c. Employment of Specialists, ples are clerks, typists, maintenance d. Training of the Staff workers and the like. (4) Custodial/Security Personnel-those Second, we will zero in on the existing who are charged with custodial, secu­ problems relative to the above-mentioned rity and rehabilitation functions. The areas. group has agreed to focus primarily on Third, we will try to focus on some other the training and development of the related issues regarding the improvement of custodial/security personnel. corrections administration. Lastly, we will present our suggested so­ A. Recruitment of Correctional Staff SPecial­ lutions to the problems. ists, Custodial/Security Officers In all the five countries represented, all ap­ II. Existing Conditions plicants must pass a government examina­ tion first, before they can be considered for The five countries represented in this employment in the Correctional Institution. group (Japan, Philippines, Fiji, Korea, and Having met this general requirement, the Brazil) have agreed to categorize the correc­ prospective employee must possess the spe­ tional personnel. The grouping of the person­ cific qualification required by the Institution. nel is based on the specific functions/duties Generally, the requisites for admission are: performed in the institution. This is done to facilitate the easy identification of responsi­ 1. Age-17-29; bilities of the personnel and to pinpoint those 2. Education-at least elementary or high

287 REPORT OF THE COURSE

school graduate, although the trend now This group of workers comprises the doc­ is that most applicants are college grad­ tors, dentists, nurses, psychologists, sociol­ uates; ogists, social workers, educational teachers, 3. Physical and mental fitness; vocational teachers, agriculturist and other 4. No criminal record. experts. The most commonly employed in the five In Korea, a male applicant must have countries are doctors, nurses, dentists, psy­ served 3 years in the military before he can chologists, and vocational/educational teach­ be considered for admission. But he can per­ ers. Other specialists like sociologists, social form his military dut:;: during the term of of­ workers and agriculturists do not form part fice. of the correctional staff in such countries as Japan, Fiji and Korea. B. Salary Scheme and Other Work Incentives It is a common observation among the The salary of the correctional staff in the members that only a very small number of representative l:Ountries normally follows the these personnel are employed, thereby lim­ salary scale standard set by the respective iting their services to only a minimal num­ governments. In the case of Japan and ber of prisoners. Additionally in some coun­ Korea, the correctional employee who stays tries, some specialists like psychologists longer in the institution gets a higher salary. function only in one specific area of correc­ In the Philippines and Fiji, a correctional tional work, that of classification of employee receives what can be described as offenders. a "sufficient" amount of pay, good enough to maintain his daily needs. D. Training of the Staff The salary of the correctional employees The prevailing system in the area of staff of Brazil depends on the position. The direc­ training which is existing in the representa­ tor and specialists receive comparatively tive countries provides an initial pre-service good salaries. On the contrary, the low-rank training course for new recruits. Orientation employees, specifically the custodial/security courses are likewise given, so as to acquaint officers receive only meager amounts. the new employee with the institution's gen­ The cor{ectional employee in majority of eral rules, regulations and policies. It is, how­ the countries receive the following benefits ever, noted that the duration of the initial aside from their regular salary: course differs from one country to another.

1. living allowance; 1. Japan 2. housing allowance; Two kinds of training courses are provid­ 3. hazard/risk allowance-In Korea, the ed the correctional staff. One is called the correctional employees are solely given Junior Courses which are conducted by the this kind of allowance. In Brazil, this Branch Training Institute for Correctional type of allowance is generally the only Officers attached to the regional correction­ one accorded the correctional employee; al headquarters. The other is the Senior 4. bonus-In Japan, Korea and the Philip­ Courses, which are conducted by the Train­ pines, the employee receives yearly ing Institute for Correctional Officers at the bonuses. However in Fiji, a bonus is main office in Tokyo. given only after 5 years of service. The Junior Courses include: C. Employment of SPecialists a) Primary Course-This is a basic train­ Japan, Philippines, Korea, Brazil and Fiji ing and education in academic and practical employ and utilize the services of specialists. subjects conducted for 220 days and is given

288 SESSION 4 for newly-recruited correctional officers both given courses in professional education, mil­ in the juvenile and adult institutions. itary art and moral education. Newly­ b) Regular Secondary Course I-This recruited senior staffs, I)n the other hand, un­ course which lasts for 3 months provides a dergo a training program which lasts from higher level of training for senior correctional 16 to 22 weeks. officers. The trainees have passed a compet­ For officials who have not undertaken any itive entrance examination and are chosen professional training for 3 to 5 years since from among those working in detention their appointment, the Institute conducts a houses, prisons and juvenile prisons. three week re-training program, in order to c) Regular Secondary Course II-This is develop and maintain skills and abilities rela­ completed in 3 months, and is given for those tive to the performance of their work. All personnel in juvenile training schools, correctional officials undergo a three week juvenile classification homes and women's professional training program. guidance home. The participants to this Instructors from within the institution and course are screened by means of an entrance from outside provide lectures on such sub­ examination. jects as penal administration law, the crimi­ d) Special Courses-These courses tackle nal procedure code, criminal psychology. subjects on specific institutional operation Custodial/Security officials take practical and are given for less than 2 months. Cor­ military art and drills. rectional officers engaged in the specific type Additionally, selected correctional officials of duty are invited to attend. are given opportunities to study abroad and to conduct inspections of correctional facili­ The Senior Courses include: ties in other countries. a) Regular Advanced Course I and Regu­ Also, the government provides study lar Advanced Courses II-Both of these grants for graduate courses in correctional courses last for 6 months and embody a administration for the correctional staff. higher level of training and education de­ signed for senior executives and correction­ 3. Fiji al administrators. Trainees are screened by Two offices had been established to under­ an entrance examination. take the review, assessment and implemen­ b) Advanced Special Courses-The dura­ tation of staff training and development with­ tion is less than 3 months and is given for in the Fiji prisons. One is the Prison Officer's specific rank or group of correctional person­ Training Board which has the following nel to up-date knowledge on various theories membership. and practices of correctional services. c) Research Fellowship Courses-The fel­ Comptroller of Prisons (chairman) lows are selected from among correctional A nominee of the Permanent officers who pursue research work and stud­ Secretary for Home Affairs (secretary) ies on the theory and operational practices A nominee of the l,.Jublic Service Commis­ in the correctional service. sion (member) The Superintendent, Headquarters and 2. Korea Training (member) The Research and Training Institute which is an office under the Ministry of Jus­ This body gives advice to the Comptroller tice takes charge of the education and train­ of Prisons on matters pertaining to prison of­ ing of the correctional staff. ficers training which includes training Newly recruited junior staff have to under­ courses, course contents, examination re­ go 4 to 12 weeks of training wherein they are quirements, etc.

289 REPORT OF THE COURSE

The other is the Staff Training Center for management. Prison Officers, which is the main office ac­ tually performing the staff training and de­ 5. Philippines velopment activities. The Bureau of Prisons has its Personnel Fiji has 4 regular courses given to prison Training School (PTS) which takes charge staff. These are as follows: of the training and development of the cor­ rectional staff. a) Primary Training Course-This is given There are two types of courses given to to newly-recruited personnel and is a require­ correctional employees. These are the Reg­ ment for permanent appointment as a pris­ ular Courses, and the Non-Regular Courses on officer Class "C." A prison officer under­ or Special Courses. going this training is simultaneously subject­ ed to an on-the-job training performance and (A) Regular courses probationary requirements. For new employees, an orientation course b) Subordinate Prison Officers Training is given for one week. Subjects in this course Course-This is given to Class "C" prison include the organizational and functional set­ officers who aspire for promotion to prison up of the institution, prison rules and poli­ officers Class "A" and "B" rank. cies, rehabilitation program of the institution, c) Junior Officers Training Course-For personnel benefits and privileges, etc. This Prison Officers "A" and "B" who intend to also includes a tour of the prison vicinity to assume a junior officer rank. acquaint the new employee with the officials d) Senior Officer Training Course-Junior of the Bureau and the physical plant of the officers undertake this training course to institution. qualify for a senior officer rank. After two to three months of actual work, the new personnel undertakes the other reg­ Basic subjects which make up the curric­ ular courses offered by the P.T.S. ulum include prison procedures and duties, There are five regular courses given by the security, law penology and management. training school. Extensive training in secu­ Management topics center on the teclmiques rity and custody, prison management and of supervision and human relations. techniques, social science subjects such as criminal psychology and the like are provid­ 4. Brazil ed the correctional staff. The five courses are The several states of Brazil differ in the as follows: system and management of penitentiaries. Some states have training institutes for pris­ a.l) Basic Custodial Procedures-given for on staff while others do not have. The ma­ custodial personnel only; jority of the states suffer from the absence a.2) Correctional Administration and of an established training institute for pris­ Treatment Course-given for both on staff. Although the Brazilian government custodial, administrative personnel has a general law which governs penal exe­ and for some specialists; cution, each state, on the other hand, is given a.3) Science of Fingerprint-for those en­ a fair amount of autonomy to handle and gaged in fingerprint work; manage the operation of its penitentiaries. a.4) Leadership Course-for senior cus­ Such system, therefore, which lacks unifor­ todial personnel; mity in the prison management causes prob­ a.5) Senior Management for Penal Institu­ lems in most state penitentiaries. Many pris­ tion-for Supervisors and other rank­ on institutions in the various states experi­ ing prison personnel. ence a deplorable condition in prison staff

290 SESSION 4

(B) Non-regula1' courses follows a general pattern in the five coun­ These are courses specifically developed tries. Specific qualifications standard had to train a group of personnel who will per­ been set in each country, which is followed form particular tasks assigned by the Direc­ and adhered to in selel.:ting its applicants. tor of Prisons. Non-regular courses are spe­ However, some problems exist in the selec­ cial courses developed to meet certain needs tion of applicants. of the institution. The following have been The screening of specialists/medical and developed by the P.T.S. administrative personnel does not pose a con­ siderable problem to the institution, simply b.I) Trainers Development Course-for because these personnel constitute only a middle-level supervisors who will be­ small percentage of the total correctional come lecturers/teachers in the P.T .S.; staff. The bulk of the correctional workers b.2) Records Management Seminar-for are mostly custodial/security personnel and personnel handling and managing the this is the main focus of the recruitment official records of the institution; problem. More importantly, they are the b.3) New Performance Appraisal; ones directly involved in the rehabilitation of b.4) Seminar on the Reception and Initial offenders. Classification of Prisoners; Even though a general criteria has been b.5) Anatomy of Escape. met, it is noted that the prospective employ­ ee is not being evaluated and assessed ex­ The prisons staff is likewise given oppor­ tensively. The applicant's integrity, profes­ tunities to take part in various training and sional capacity and personality make-up are seminars conducted by other organization/in­ not being thoroughly appraised. It must be stitutions outside the Bureau of Prison. noted that these are the most essential qual­ ities which should undergo close scrutiny of III. Problems Existing in Each Country the prison administration. Some countries require a definite educa­ A. Recruitment tional qualification for its applicants. How­ Apparently, the problem of attracting suit­ ever, in certain cases, personnel with low in­ able applicants to fill in the positions in the tellectual capacity and poor perceptive skills correctional organization appears to be a are recruited. This type of workers improve common problem in the five representative minimally, in spite of exposures to some countries. The negative image that has been forms of training and education. With this in­ attached to the offenders is seemingly being tellectual and personality make-up, one can­ carried over to the correctional officers. Al­ not expect an efficient and effective deliv­ though in some countries this is not intense­ ery of institutional service. ly felt, in other countries however, there still Generally, a background clearance is re­ exists a strong resentment and distaste for quired from the applicant. However, this correctional work. Consequently, this condi­ clearance which would show that an appli­ tion decreases the size of the labor market cant has no previous criminal record could for the correctional institution, thereby deny­ not suffice for the needed information re­ ing the organization of a wider choice of suit­ garding his level of integrity and personal able applicants. There is therefore a need to suitability. But in some countries, this is disseminate information regarding the made as the sole reference in ascertaining vacancies in the correctional organization on the aforementioned qualities. A background a wider scale so as to reach as many prospec­ clearance could not provide an accurate ac­ tive applicants as possible. count of how an employee would behave The recruitment of correctional personnel when subjected to manipulations and pres-

291 REPORT OF THE COURSE

sures exerted by the prisoners. Moreover, inite requirements in order to qualify for the applicant's work attitude, motivation and higher positions. In countries like Fiji, there basic principles in life could not be deter­ is a continuous mobility in the position lad­ mined by this clearance alone. der. This is due to the fact that correctional It is of prime importance to assess exten­ personnel have a fixed tenure of office, as sively the personality make-up of a prospec­ stipulated in the employment contract. They tive employee. work for a period of five years after which the work contract is renewed. The renewal B. Salmy Scheme and Othe1' Incentives will depend on the performance of the per­ The salary of the correctional staff in the sonnel and in his interest to continue work­ five countries follows the salary scale stand­ ing. ard set by their respective governments. A In other countries, upward movement in correctional personnel normally receives a the career ladder will depend on the vacan­ salary which is equivalent to what other gov­ cies available. Most often, vacancies occur ernment employees receive. only when old employees retire. The absence In some countries like Brazil and Fiji, the of a concrete system which would provide allowances given to correctional workers opportunities for career advancement in the come in such amount that only a little is add­ correctional organization adds up to the ed to the basic pay. Needless to say that the lowering of morale of the personnel. salary of an ordinary correctional employee could not conveniently suffice for the grow­ C. Employment of SPecialist ing needs of his family. Rule 49 (1) of the United Nations Stand­ In Brazil, there is a wide disparity of pay ard Minimum Rules for the Treatment of scale of the specialists and senior correction­ Offenders states, al officers and the low-rank custodial/secu­ "So far as possible, the personnel shall in­ rity personnel. This causes resentment and clude a sufficient number of specialists, such discontent among the custodial/security as psychiatrists, psychologists, social work­ staff. The salary of the junior security per­ ers, teachers and trade instructors." sonnel is not commensurate to the amount Common among the representative coun­ of work being done. It must be remembered tries, except in Korea, is the insufficient that the custodial staff mostly the junior of­ number of specialists employed in the cor­ ficers is at the baseline of the correctional rectional institution. By specialists, we mean work, performing the difficult task of main­ the doctors, nurses, dentists psychologists, taining security and rehabilitation of sociologists, social workers and offenders. If we are to expect a more effi­ trade/vocational instructors. U nderstanda­ cient work performance from the correction­ bly, this group of people perform very spe­ al personnel, there should be a correspond­ cific functions and with limited area of work. ing incentive to motivate them to work and This is one of the reasons why the correc­ to boost their enthusiasm. tional organization does not opt for a bigger In Japan and Korea, however, a pay in­ number of this group of workers. For in­ crease comes with the length of stay in the stance, a psychologist in most cases, func­ institution. Those who have stayed longer in tions only in the classification of prisoners. the organization, get a higher salary than the Such important work as guidance and coun­ others. seling, group and individual therapy are not With regards to promotion, the system usually being performed and given due em­ varies from one country to another. Appli­ phasis. cants for promotion in some countries have The psychiatrists, psychologists, social to pass certain examinations and to fulfill def- workers and teachers are sometimes not in-

292 SESSION 4

eluded among the prison staff tasked to ment process of the new recruit to the insti­ programme the rehabilitation activities for tution, to his functions and responsibilities, prisoners. Unfortunately, their expertise and is then hampered to a certain degree. technical know-how are not utilized to the It is of great necessity to subject the new fullest, for the benefit of the offenders. The employee to an extensive theoretical and on­ modern practice in penal institutions in ad­ the-job pre-service training programme if he vanced countries focuses on the full utiliza­ is to assume a most challenging task of re­ tion of experts like psychologists and soci­ habilitating the offenders. ologist in the whole rehabilitation program. Another is the lack of a standardized train­ They do not only function in the classifica­ ing manual. Problems are encountered due tion, but are also very much involved in the to the absence of a basic framework with actual interpersonal relationship with prison­ which to identify appropriate training objec­ ers and in the various research projects be­ tives in consonance with the institutional ing done by the institution. goals. Such matters as the choice of train­ The services of specialists are quite expen­ ing courses, methodology, training parapher­ sive and not too many of them would want nalia and other resources pose difficulties to to work in a correctional institution. This is the training staff. Without a training manu­ another problem which has to be faced, that al, priorities cannot be set and training of attracting these people to work in prisons. courses are given using the hit and miss It has also been noted by the members of method. The organizational need therefore Group IV that in most countries, some spe­ cannot be seen from a more comprehensive cialists come in conflict with custodial/secu­ perspective, and training goals become rity personnel. The inability of both staff to vague. see their specific roles and definite areas of The subjects in the courses have also been responsibilities, causes friction in the work­ examined. The group agreed that there is a ing relationship. need to include more behavioural social sci­ Ideally, specialists and security officers ence subjects in the training curriculum for should establish a cooperative effort in the custodial/security personnel. However, the implementation of the rehabilitation method of teaching these subjects should in­ programme. They should work together to cline to a more practical approach, which can attain the goals of the correctional institution. be readily applied in the actual prison situa­ tion. D. Training of the Staff The lack of an adequate number of good One problem in the area of staff training trainers and instructors to implement the which has been discussed by the group is the training program have likewise been point­ implementation of a pre-service training ed out as a problem. The success of a train­ course for new employees. In some coun­ ing course depends on how well the subjects tries, pre-service training is given in a very had been effectively imparted by the train­ short period of time. It therefore happens ers to the trainees. In some countries, lec­ that a new employee enters the prison serv­ turers from within the institution are called ice with less knowledge on the basics of cor­ in to teach in the training institute. These lec­ rectional work. Although some countries turers often lack the skills in teaching and provide an on-the-job training course, the are unable to elucidate on the assigned sub­ others don't have this system. Difficulty is ject matter. This produces a considerable then experienced by the new employee, who strain on the part of the learner, who has to after being provided with theoretical knowl­ undergo a strenuous training schedule and edge, could not reconcile his learnings with yet gain nothing from an ineffective teach­ the demands of the actual work. The adjust- er/instructor. Ultimately, no learning takes

293 REPORT OF THE COURSE place and the time and resources spent in the Board should be composed of experienced program are wasted. ranking prison officers, specialists (i.e. psy­ Also the group brought up the importance chologist) and personnel administrators, who of international training exchange and co­ possess the skill in assessing an individual's operation to enable correctional officers to capability. The members of the Screening compare existing conditions in various coun­ Board can evaluate readily the applicant's in­ tries and learn from each other's experiences tegrity, professional capacity and personal in the area of correctional work. suitability, by means of the question and an­ swer technique. The spontaneity of the ap­ IV. Suggested Solutions plicant's response and his unconstrained reactions during the interview can provide Having discussed the pressing problems in essential information about his capacities and the area of staff training and development, personality make-up. Additionally, certain the group tackled the most appropriate so­ appraisals can be made to predict how he will lutions that could be adapted and implement­ behave in an unlikely situation, when he is ed. It must be noted that the suggested so­ subjected to pressures by the prisoners. The lutions are not perceived to be the best reme­ information taken from the interview, the dy to the difficulties encountered in test results, and the background clearance, correctional administrations. The proposed can help the prison administration assess ex­ solutions should be seen in the light of each tensively and objectively, the applicant's lev­ country's political, social and economic re­ el of integrity, professional capacity and per­ alities. It is however the goal of the group sonal suitability. to provide a starting ground to enable the 3. Although the group believes that there correctional administrators in various coun­ should be no definite educational qualifica­ tries to devise practical solutions to the prob­ tions for an applicant, it was however point­ lems, which suit the local condition. ed out that an applicant should possess an adequate level of intelligence to enable him A. Recruitment to fully grasp, vital information from pre­ 1. To attract a bigger number of suitable service and inservice training and from ac­ applicants, vacancies should be published in tual experience in prison work. various government publications and if pos­ As Rule 47 (1) of the UN Standard Mini­ sible, in academic institutions. This practice mum Rules says, "The Personnel shall pos­ is being done currently in Fiji. The system sess an adequate standard of education and in­ will create a bigger labor market for the cor­ telligence.' , rectional institution and consequently a It is also necessary that the prison person­ wider choice of suitable applicants. nel should have keen perceptive skills and It is also necessary to inform the public of a rational disposition, because he will be the activities of the prisons, its goals and im­ dealing with offenders who can manipulate portance in the society. This will help mini­ and influence him to a large extent. Knowl­ mize, if not erase the negative impression edge, skills and the right attitude in dealing that has been attached to correctional insti­ with problem people like the offenders, are tutions. In relation to the recruitment prob­ a must for a correctional officer. lem, the scheme can help in attracting peo­ ple to work in the prison establishment. B. Salary Scheme and Other Worl~ Incentives 2. In-depth interview of applicants is con­ 1. To attract and retain suitable employ­ sidered an indispensable tool in screening ees it is necessary to provide an attractive and selecting would-be employees. A Screen­ salary scheme and a reasonable benefit pack­ ing Board can perform this procedure. The age. Correctional work is an arduous job, and

294 SESSION 4 a prison personnel is from time to time sub· sonnel are essentially needed in a correction­ jected to the difficult task of maintaining se­ al institution. Some experts like psy­ curity and implementing the rehabilitation chiatrists, psychologists, sociologists, social program for the offenders. There is a need workers, teachers and trade instructors to provide incentives to motivate him to per­ should perform an active role in the rehabil­ form efficiently and to boost his morale and itation program of the institution. enthusiasm for work. As in many countries, recruitment of these As contained in the Rule 46 (3) of the UN specialists poses a difficulty since they de­ Standard Minimum Rules," ... Salaries mand a higher pay and a more convenient should be adequate to attract and retain suit­ working condition in exchange for their ex­ able men and women; employment benefits pertise. Confronted with this problem, the and conditions of service shall be favourable group presented two solutions. in view of the exacting nature of the work." First, vacancies for such position should be Since this is a financial matter which has posted in colleges and universities, so as to to be dealt with in the light of the country's attract a considerable number of newly grad­ economic condition, then it is the prime re­ uated applicants to fill in vacancies. sponsibility of the heads of the department Second, to forge ties or links with educa­ or ministries concerned with correctional tional institutions, so as to get the services work to plan an adequate and sufficient sal­ of specialists from the academe. In con­ ary and benefit package for prison person­ sonance with the agreement, the new grad­ nel. If possible, efforts should be directed to: uates can be required to render services to the correctional institution for a certain pe­ a) allocate resources for the regular pay in­ riod of time, as part of their practical learn­ crease of all correctional personnel; ing experience. The prison institution and b) diminish or check the wide disparity of the specialists will mutually benefit from the pay scale between seniorlranking pris­ arrangement. on officials and junior officers, so as to 2. The range of work of such experts as avoid discontent and apathy among the psychologists should not be confined to one prison staff. specific area. Apparently, the full profession­ al expertise of some specialists are not be­ Also, the giving of awards and scholarship ing utilized sufficiently. in recognition of an employee's achieve­ Psychologists, sociologists and social ments in the service can be used as an in­ workers can also be utilized in the following centive to uplift morale and heighten zealous­ work areas: ness in the performance of job. 2. Another point which has to be consid­ a. Guidance and counseling; ered is the promotion of correctional person­ b. Group and individual therapy; nel. The Prison Management should estab­ c. Research and feasibility studies; lish a career plan which will afford opportu­ d. Facilitating tie-ups or links with the nities for professional advancement in the community; (i.e. civic and religious prison service. Both long range and short groups) range programs should be drawn which will e. Designing work program/educational carefully structure the career path of the cor­ activities for inmates. rectional staff, and allow for an expedient up­ ward mobility in the career ladder. One of the most important functions of a psychologist is to provide information and C. Employment of SPecialists/Medical Personnel theoretical knowledge to custodial/security 1. The services of specialists/medical per- staff, which will help them in assessing and

295 REPORT OF THE COURSE evaluating the offender's behavior. Better New personnel should be taught the basic understanding will ultimately result in bet­ information about the organization, the in­ ter handling of the offenders. stitutional policies and procedures, the man­ 3. Efforts should be exerted to establish a ner of hrmdling the offender and specific harmonious working relationship between duties he will perform after his training the specialist and the security personnel. Co­ course. operation should be cultivated between the Second, the training institutes of the cor­ two and they should be made to realize the rectional establishments should have a stand­ relationship of their functions in the institu­ ard training manual which would embody the tion. institution's goals and missions. It should likewise outline the various D. Training of the Staff courses, prescribed for specific levels of em­ The training of the correctional staff ployees and present methodologies and re­ should be aimed towards the attainment of sources which should be made available in the following goals: the implementation of the program. The training manual must clearly define the train­ 1. The provision of adequate information ing objective which have to be met and at about a trainee's general and specific the same time provide a framework for the duties and responsibilities as a correc­ training staff to plan and design future pro­ tional officer; grams which would cater to the growing 2. The inculcation in the mind of the train­ needs of the institution. ee the importance of his task, and the Third, the group also suggested that be­ loftiness of the social service which he havioral social science subjects should be in­ is undertaking; cluded in the training curriculum for custodi­ 3. The development of discipline, the right al/security staff. The security personnel work attitude and conscientiousness in should not only be equipped with the skills the performance of assigned tasks; in maintaining discipline and security re­ 4. The preparation of a personnel for quirements. They should also be familiar higher position and responsibility and with the fundamental concepts of under­ the development of awareness and ap­ standing human behavior, more specifically propriate responses to the changing de­ criminal behavior. The scientific knowledge mands of the prison service. that can be gained from these subjects can help the security personnel to objectively as­ In the course of the discussion of the prob­ sess, evaluate, predict and ultimately control lems, the group presented the following so­ the offender's behavior. lutions. Additionally, subjects which would tackle First, the pre-service training course management techniques and public service should be given for an adequate period of ethics should also be included in the curric­ time, which would allow ample opportunity ulum. for the trainee to grasp the theoretical aspect Fourth, the group acknowledges the im­ of the curriculum and at the same time ex­ portance of the trainers/teachers in the train­ perience the actual work in the field. This ing program. As far as resources would per­ calls for an on-the-job training program, ac­ mit, the training institutes should utilize the companied by regular evaluation of the learn­ services of a considerable number of teach­ ing gains through practical tests. This pro­ ers/lecturers who can effectively teach the cedure will enable the new recruit to recon­ trainees. The instructors must have full cile theoretical knowledge with practical knowledge in the various methodologies of experience. teaching, in the presentation of the course

296 SESSION 4 content and in the maintenance of a con­ considered as the right of the offender and ducive atmosphere for the learning process. is therefore not permitted. Censorship of Since it is the practice in most countries to mail, without legitimate reasons, is general­ get the services of lecturers from within the ly viewed as an infringement of human institution, then these lecturers have to un­ rights. In many correctional establishments, dergo trainers development courses first be­ this is performed in fulfillment of the secu­ fore they should be allowed to teach in the rity requirement of the institution. The group training institute. believes in respecting of the basic rights of Fifth, there is a recognized need for inter­ an offender. This practice should be strictly national training exchange and cooperation. regulated and should only be done under This will enable correctional officers to see specified conditions. and compare existing conditions in other The group unanimously agreed that the countries relative to penal administration. basic human rights of an offender should be Modern correctional models and advanced protected by all means, but at the same time, prison management systems currently being the enforcement of the operating policies of applied in some countries can be observed the institution should not be undermined. It and can provide substantive grounds for is the primary duty of the prison administra­ comparison with one's own system. Train­ tion to see to it that the prisoner's basic ing of prison officers in other countries also rights are respected, concomitant with the allows for an exchange in experiences, ideas, observance of the prison rules and regula­ theories and concepts in the use of advanced tions. technological equipments in the management of correctional institutions. B. Effectiveness of Institutional Correctional Hopefully, modern and reliable models of Treatment prison management which suit the local con­ From the discussion, the group concluded dition will find adoption in one's country. that it is not easy to measure or determine Attendance to international conferences, the effectiveness of the institutional rehabil­ regional meetings and seminars can also itation program. This is so because, we are widen one's practical and intellectual knowl­ dealing with human beings, who are cons­ edge in the field of correctional management. tantly changing and responding to the vari­ ous environmental influence. V. Other Related Issues Although the rate of recidivism is used as regarding the Improvement of a yardstick to determine to some extent the Corrections Administration success of the institutional treatment, one however cannot make a conclusive opinion A. Protection of the Prisoner's Human Rights in this regard. Generally, in all countries, the constitution­ There are many factors which can affect allaw provides for the protection of human the behavior of an offender. At the correc­ rights. In many penal institutions, there is tional institution, he is influenced by the at­ also a growing consciousness to uphold the titude of the prison officers and by the reha­ basic rights of an offender. However, it has bilitation programs and activities. When he been noted that the manner of interpretation is released, the family condition, employ­ of the law differs from one place to another. ment opportunities and community assist­ Understandably, the political and social sit­ ance are just some of the things which can uations of the country concerned, has to be exert considerable influence upon the taken into account. offender. For example, in some countries, conjugal Inside the prisons, the institution is tasked visit is allowed, while in others this is not to do everything within its means to provide

297 REPORT OF THE COURSE

a wholesome treatment plan for the offender. prison staff must be well-acquainted with A well-trained and an effectively managed their specific duties and functions, and with correctional staff is considered as the mov­ the role they will play in the pursuit of the ing force in the pursuit of the rehabilitation over-all organizational goals. Competence in goals for the offender. fulfilling the security requirements of the in­ Outside the institution, the community­ stitution, and skill in understanding and han­ based treatment is viewed as an effective in­ dling the offender, are a must for the correc­ strument to rehabilitate the offender. But it tional personnel, especially for the custodial is believed that this will be applicable only staff. to certain types of offenders (i.e. first Of equal necessity is the provision of a rea­ offenders). Hardened criminals and repeat sonable compensation package and other in­ offenders will not benefit from this type of centives, to fully motivate the personnel and program. It is also necessary that the gov­ enhance enthusiasm for work. ernment provides support in the implemen­ These were the salient points discussed by tation of this endeavor in much the same way Group Four in the workshop sessions. Ad­ that the community's full assistance should ditionally, two issues were tackled by the be solicited. members. One was the effeCtiveness of in­ stitutionalized treatment. In this connection, Conclusion the group stated that there can be no defi­ nite instrument to accurately measure the ef­ The correctional institution performs the fectiveness of this system, because the very important function of rehabilitating offender is a dynamic being who is constant­ offenders. A most difficult task of influenc­ ly changing and is subjected to mUltiple fac­ ing a prisoner to change, is laid on the shoul­ tors in the environment. Also, the group der of the prison personnel. In this regard, stresses the importance of exploring the the prison management should provide the merits of community-based treatment, as a necessary preparation and assistance to the form of rehabilitative tools, as this scheme correctional staff to enable them to effective­ has gained considerable success in some ly perform their exacting work. countries. Staff training and development must occu­ Lastly Group Four expresses its conviction py a priority status in the management ob­ that the basic human rights of an offender jectives of the institution. This can be real­ should be respected and upheld, and that it ized concretely by exposing the correction­ should be a primary concern of all those al personnel to a well-conceived and a working in the correctional institution. carefully planned training programme. The

298 PART III

Material Produced during Other UNAFEI Activities Report of the Expert Group Meeting on Adolescence and Crime Prevention in the ESCAP Region

I. Organization of the Meeting criminal justice experts to discuss the follow­ ing issues concerning adolescence and crime A. Background prevention in the ESCAP region: patterns of 1. General Assembly resolution 40/35 on the juvenile offence; effects of the social environ­ development of standards for the prevention ment on juvenile offence; and juvenile justice of juvenile delinquency calls on the regional administration. On the basis of its discussion commissions and the United Nations reglon­ of the foregoing issues, the Meeting was ex­ al institutes for the prevention of crime and pected to formulate recommendation~ on the the treatment of offenders to establish joint prevention of juvenile offence and the treat­ programmes in the field of juvenile justice ment of juvenile offenders. The Meeting was and the prevention of juvenile delinquency. also intended to provide a regional contribu­ In particular, that resolution requests the tion to the Eighth United Nations Congress regional commissions and regional institutes on the Prevention of Crime and the Treat­ to devote special attention to: (a) studying the ment of Offenders, to be held at Havana in situation of juveniles at social risk and ex­ 1990, especially with regard to topic 4 of the amining the relevant policies and practices Congress, namely "The prevention of delin­ of prevention within the context of socio­ quency, juvenile justice and the protection economic development and (b) intensifying of the young: policy approaches and efforts in training, research and advisory directions. " services for the prevention of juvenile delin­ quency. B. Attendance 2. In pursuance of the above directive, the 4. The Meeting was attended by 21 experts Expert Group Meeting on Adolescence and from the following ESCAP members and as­ Crime Prevention in the ESCAP Region was sociate members: Bangladesh, Fiji, Hong jointly organized by the Economic and So­ Kong, India, Japan, Malaysia, Nepal, Papua cial Commission for Asia and the Pacific (ES­ New Guinea, Philippines, Republic of Korea, CAP) and the United Nations Asia and Far Singapore, Sri Lanka and Thailand. East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) C. Opening of the Meeting in co-operation with the Government of 5. The Meeting was opened by the Honoura­ Japan. The Meeting was held at UNAFEI ble Mr. Yasutaka Okamura, Vice-Minister Headquarters, Fuchu, Tokyo, from 3 to 10 of Justice of Japan. In his inaugural address, August 1989 the Vice-Minister stated that the nurture of 3. The objective of the Meeting was to pro­ youth, prevention of juvenile crime and vide a forum for social development and delinquency, and strengthening of the juvenile justice system were important poli­ cy objectives of Governments throughout the Asian and Pacific region. He pointed to var­ The designations employed and the presentation of the material in this publication do not imply the expres­ ious socio-economic trends occurring in the sion of any opinion whatsoever on the part of the region, such as the increase in the number Secretariat of the United Nations concerning the legal of youth, the concentration of population in status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its fronti­ the urban areas and rapid industrialization. ers or boundaries. These trends had resulted in the breakdown

301 OTHER UNAFEI ACTIVITY MATERIALS

of the traditional family system as well as the ously financing the Meeting. He also weakening of community support systems. thanked UNAFEI for its excellent substan­ All these phenomena had contributed to in­ tive and organizational support towards the creasing the incidence of juvenile crime and convening of the Meeting. delinquency in the region. In closing, the 9. The Director-General of the United Na­ Vice-Minister pointed to the need for the for­ tions Bureau of the Ministry of Foreign Af­ mulation and implementation of comprehen­ fairs of Japan, Mr. Minoru Endo, in his sive programmes for the prevention of congratulatory address, expressed appreci­ juvenile crime and for the nurture of young ation of the close collaboration between ES­ people. CAP and UNAFEI in promoting criminal 6. The Executive Secretary of ESCAP, in his justice and the prevention of crime in Asia message to the Meeting, stated that the Asi­ and the Pacific. In his view, the prevention an and Pacific region over the last two de­ of juvenile delinquency was the most cades had witnessed a pernicious increase in challenging issue being faced in that field. the incidence and gravity of youth crime and He therefore called on the Meeting to con­ delinquency. Statistically, young people now tribute to the innovation of correctional and constituted the most criminally active por­ rehabilitation programmes for young tion of the population. He noted that partic­ offenders to strengthen criminal justice ad­ ularly alarming trends in the region were a ministration and related policies affecting discernible rise in the number of violent youth. crimes committed by young people, an in­ 10. The Chairman of the United Nations crease in drug-related crimes, a marked rise Committee on Crime Prevention and Con­ in female juvenile crime and delinquency, trol, Mr. Minoru Shikita, in his congratula­ and an increasing incidence of youth crime tory address, stated that the prevention of in the urban environment. adolescent crime and delinquency had long 7. The Executi.ve Secretary emphasized that been and would continue to be a major item the prevalence of youth crime was to a large of the United Nations Congress on the degree symptomatic of the socio-economic Prevention of Crime and the Treatment of deprivation of young people in the ESCAP Offenders. The Committee on Crime Preven­ region. Lack of economic, social and politi­ tion and Control, as the preparatory body for cal prospects was, in fact, the key factor at­ the Congresses, therefore welcomed the con­ tributable to the rising incidence of youth vening of the Meeting. He pointed out that criminal offences. Destitution, inadequate the Committee had high expectations for the housing, malnutrition, illiteracy and poor Meeting in view of its unique composition of quality of education, unemployment and experts from both the social development under-employment were manifestations of and criminal justice sectors. He expressed the marginalization of young people in many the hope that the outcome of the Meeting countries of the region. Those conditions had would constitute an important regional input increased the likelihood of young people be­ to the forthcoming Eighth United Nations coming victims of exploitation or of becom­ Congress on the Prevention of Crime and the ing involved in criminal and other deviant Treatment of Offenders. behaviour. Unless vigorous action were 11. The Director of UNAFEI, Mr. Hiroyasu taken to ameliorate those socio-economic Sugihara, in his welcoming address, conditions, the current trend towards in­ remarked on the relatively low rate of crimi­ creased youth crime and deviance would nality in Japan. He pointed out, however, continue in the Asian and Pacific region. that over 50 percent of all penal offences had S. The Executive Secretary expressed grati­ been committed by those under 24 years of tude to the Government of Japan for gener- age. That pattern reflected a direct correla-

302 ESCAP REPORT ON ADOLESCENT CRIME tion between juvenile delinquency and crimi­ activity for that Conference as it provided an nality in the context of industrialization and opportunity to view social issues concerned urbanization. There was a need to examine with youth and crime from an interdiscipli­ changes in family systems, the social roles nary and multisectoral perspective. of communities, and the quality of education 15. Third, the Meeting could mark a major and residential environments in terms of forward step in co-operation and collabora­ their impact on the character formation of tion between ESCAP and UNAFEI by young people. Noting the expertise of the providing recommendations concerning pri­ participants in fields ranging from social de­ ority areas for regional support to national velopment to law enforcement and urban de­ efforts for the prevention of juvenile delin­ velopment planning, he urged the Meeting quency and the rehabilitation of delinquents. to adopt an integrated approach in the for­ It was observed that the complementarities mulation of prevention and rehabilitation between the respective strengths of ESCAP measures concerning delinquency among and UNAFEI provided a valuable opportu­ adolescents. nity for the Meeting to consider further joint 12. The Chief of the Social Development Di­ activities as follow-up to the present vision of ESCAP, in his keynote address, em­ Meeting. phasized that youth crime and juvenile 16. In closing, the Division chief thanked delinquency constituted a serious and grow­ UNAFEI for its excellent substantive and or­ ing problem in developing countries through­ ganizational support towards the convening out the ESCAP region. With that reality in of the present Meeting and expressed his mind, the task of the Meeting was to formu­ hope that the outcome of the Meeting would late practical recommendations for govern­ provide a useful basis for policy makers in ment and community-based action the ESCAP region to strengthen measures concerning both prevention and rehabilita­ for the prevention of juvenile crime and tion. Those recommendations would also delinquency. serve to guide ESCAP and UNAFEI in their future work. D. Election of Officers 13. He focused on three major practical ends 17. The Meeting elected Ms. Corazon Alma to which the Meeting should turn its atten­ G. de Leon (Philippines), Chairman; Ms. tion. The first was the need to prepare a use­ Lalani Serasinghe Perera (Sri Lanka), Vice­ ful regional input to the Eighth United Chairman, and Mr. Mohd. Ali Abu Bakar Nations Congress on the Prevention of Crime (Malaysia), Rapporteur. and the Treatment of Offenders, especially with regard to the expected discussion at E. Adoption of the Agenda that Congress concerning policies for delin­ 18. The Meeting adopted the following quency prevention, juvenile justice and the agenda: protection of the young. The report of the Meeting could serve that purpose. 1. Opening of the Meeting. 14. Second, he referred to the importance of 2. Election of officers. the report of the Meeting as an input to the 3. Adoption of the agenda. preparation by ESCAP of a regional social 4. Patterns of juvenile offence. development strategy, which would be con­ 5. Effects of the social environment on sidered for adoption at the Fourth Ministerial juvenile offence. Conference on Social Welfare and Social De­ 6. Juvenile justice administration. UQlopment to be convened at Manila in 7. Formulation of recommendations. November 1991. The Meeting was consi­ 8. Adoption of the report. dered a particularly important preparatory

303 OTHER UNAFEI ACTIVITY MATERIALS

II. Patterns of Juvenile Offence offences were a rapid increase in drug­ related crimes, a marked rise in female 19. The Meeting had before it document juvenile crime and delinquency, and an in­ SD/EGM/ACP/1 entitled "Patterns of crease in crimes relating to automobile use. juvenile offence" prepared by Mr. Kunihiro Among junior high school students, shoplift­ Horiuchi of UNAFEI. In his presentation of ing was becoming a problem. the document, Mr. Horiuchi focused on 24. Perceptions of juvenile delinquency and types of juveniles and types of offences. In crime were considered to be strongly in­ relation to delinquency, the presentation fluenced by the official statistics. Those categorized juveniles as neglected, pre­ statistics, in turn, were gathered in keeping delinquent and delinquent. with the norms of social behaviour as reflect­ 20. The presentation noted that street youth ed in the law, the courts, the police, and the were often considered to be neglected in that probation and correctional services. Dis­ they lacked proper support and guidance crepancies between the actual occurrence from their parents, families and communi­ and reporting of offences were thus not eas­ ties. The problems associated with that ily detected, resulting in inaccuracies in the group of juveniles were becoming increas­ statistical reporting of patterns of juvenile ingly serious in some countries in the ES­ offence. The presentation stressed the im­ CAP region. Pre-delinquent juveniles were portance of discussing patterns of juvenile those juveniles who showed strong tenden­ delinquency based on both the official statis­ cies toward committing offences, although tics and practical experience. they had not committed any. Delinquent 25. In the discussion following the presen­ juveniles were those who were over the mini­ tation, the Meeting noted the diverse trends mum age of criminal responsibility and had in the rate of juvenile offences obtaining in committed offences. the Asian and Pacific region. In consonance 21. It was pointed out that there were numer­ with earlier population increases, many ous intercountry differences in the legal defi­ countries of the region had reported an up­ nition of the juvenile age span, and in the ward h"end in juvenile offences. However, in minimum age of criminal responsibility. some countries or areas, particularly Japan, While some countries had no legal definition the Republic of Korea and Thailand, that of minimum juvenile age or of the minimum trend had reversed, while in others, such as age of criminal responsibility, in many coun­ Hong Kong, India and Sri Lanka, the general tries the minimum age ranged from 7 to 14 trend was reported to be relatively stable. years. The age threshold from juvenile to Whether the perception of increase in other adult, on the other hand, ranged in many countries was associated with more effective countries from 15 to 21 years. enforcement of the juvenile laws or whether 22. There were also wide intercountry vari­ it reflected a real rise in the occurrence of ations in the extent to which the treatment juvenile delinquency remained unclear. The of juvenile offenders differed from that of perception of increase or decrease of juvenile adult offenders. Neglected young people and offence depended, inter alia, on the length pre-delinquent juveniles were in some coun­ of the period for measurement and reflect­ tries made the wards of welfare depart­ ed changes in reporting behaviour, the ments. In other countries, they were treated sophistication and vigilance of surveillance under the procedures of the criminal justice methods and the availability of outlets for ex­ administration for juveniles. pressing deviant behaviour. The age from 23. Concerning types of offences the presen­ which a juvenile was considered legally tation noted that in Japan the most notable responsible for his/her behaviour, and the emerging trends in the pattern of juvenile age up to which he/she was considered eligi-

304 ESCAP REPORT ON ADOLESCENT CRIME

ble for a differential approach, was a country­ middle- and upper-mid dIe-class families, ex­ specific issue. The experts viewed that emplified that trend. aspect as an important variable in the trends 29. Experts from Japan, the most affluent so­ in juvenile offence in the region. ciety in the region, described a new form of 26. Concerning gender differences, the ex­ juvenile offence termed "play-type offence." perts noted that in Hong Kong, Malaysia, Unlike conventional juvenile offences, no Nepal, Papua New Guinea, the Republic of deep-rooted motivation could be ascertained Korea and Singapore, juvenile offenders for the commission of "play-type offences" were predominantly male. Although offences except, perhaps, boredom and the search for by female juveniles were far less than those "fun." Play-type offences ranged from by male juveniles, the rate of increase of shoplifting and solvent abuse (i.e., "glue­ offences by females in many countries out­ sniffing") to assault, murder and rape. The paced that for males. However, in the emergence of violent play-type offences in Republic of Korea, the rate of decrease of Japan was of particular concern given that, offences by juvenile females had been in the overall, juvenile offences in Japan were seen range of 30 percent over the past decade to be decreasing. It was pointed out that while male juvenile offences had increased although the incidence of violent play-type by 30 percent in the same period. A common offences was low, they were sensationalized form of female juvenile offence in Hong in the mass media. The Meeting compared Kong and Singapore was shoplifting. There the patterns reported for Japan and the was a low gender ratio for dangerous drug Republic of Korea. In contrast to the Korean offences in Hong Kong, while a marked drop pattern emphasizing physical injury, larce­ in female admissions to drug abuse rehabili­ ny and embezzlement were predominant tation centres had been reported in the forms of juvenile offence in Japan, with as­ Philippines. sault and bodily injury being no more than 27. Among the developing countries of the around 6 percent of offences. Both East Asi­ region, such as Bangladesh, Malaysia, the an countries had registered an increase in Republic of Korea and Sri Lanka, juvenile traffic violations by juveniles and other forms offence was observed to be largely an urban of juvenile offence involvIng vehicles, such phenomenon. The same was true of Japan. as "hot rodder" activities and motorcycle Little information was available on its inci­ gangsterism. dence in rural areas. 30. Shoplifting was seen to be a prevalent 28. In reviewing socio-economic aspects of form of juvenile offence in Fiji, Hong Kong, juvenile offence patterns in the region, the Japan and Singapore. In contrast, in Nepal Meeting noted that, in most instances, the and Sri Lanka, in the relative absence of majority of juveniles who came into conflict department stores and larger shops, house­ with the law were from the low-income breaking, burglary and theft were more com­ groups of urban areas. Attention was also mon. Theft was also reported to be the most drawn to a new phenomenon which correlat­ common form of juvenile offence in India, ed with affluence, i.e. a noteworthy increase the Philippines and Thailand. of offences by juveniles from intact middle­ 31. The commission of offences, mainly theft class families with no apparent financial and robbery, to support drug abuse habits difficulty. Japan was cited as a country in was reported to be a characteristic feature which that phenomenon obtained. The ex­ in Bangladesh, Hong Kong, Malaysia and perts remarked on the emergence of a simi­ Nepal. It was observed that the employment lar pattern in some developing countries. of young persons from low-income groups by Bangladesh, Malaysia and Nepal, where the organized drug trafficking networks ob­ majority of drug abusers were currently from tained in Hong Kong, Nepal and Sri Lanka,

305 OTHER UNAFEI ACTIVITY MATERIALS where young drug addicts financed their categories of such young people. Those habit by drug peddling. The experts noted young people were often exploited for eco­ that alcohol and narcotics use were integral nomic gain by adults, through such means aspects of the traditional culture of some eth­ as pornographic activities, sexual abuse, nic groups in Nepal, and their abuse had cheap labour in service and manufacturing earlier been virtually un:known. Such abuse sectors, begging and drug peddling. It was had, however, since the mid-1970s become reported that in most countries of the region, an alarming feature of juvenile offence in neglected young people were dealt with Nepal. Another expert stated that juvenile separately from juvenile delinquents, admissions to drug abuse rehabilitation through the intervention of community­ centres in the Philippines had dropped stead­ based social welfare agencies. ily since 1983 and had increased slightly in 34. Further, the participants recognized that 1987. The experts considered the involve­ street youth per se could not be considered ment of increasingly younger age groups in synonymous with neglected youth under drug-related crimes as a serious problem in juvenile laws, as many of them led self­ Bangladesh, Hong Kong and Malaysia. The reliant, productive and law-abiding lives. It observation was also made that a low inci­ was emphasized that such young people also dence of juvenile drug abuse obtained in Fiji needed social support for their development. and in the Republic of Korea; in the latter country there was also a very low incidence III. Effects of the Social Environment of alcohol abuse among juveniles. on Juvenile Offence 32. The experts noted that some countries had reported an increase of violent crime in­ 35. The Meeting considered document volvi'llg young persons. Within the context SD/EGM/ACP/2 entitled "Effects of the so­ of a relatively stable overall pattern of cial environment on juvenile offence" pre­ jlJveni1~ delinquency in Sri Lanka, organized pared by Mr. Hira Singh. Mr. Singh, in his violent crime was observed to be an emerg­ presentation of the document, emphasized ing tn~nd, reflective of the current situation that consideration of the social environment in that country. A rapid rise in heinous was intrinsic to the study of juvenile delin­ crimes in the Republic of Korea was ob­ quency as a behavioural phenomenon. He served for the period from 1978 to 1981, but noted that the concept of juvenile delinquen­ 1:h18 had subsided hy 1985. Overall, assault cy varied among the countries of Asia and and battery made up approximately 40 to 50 the Pacific and had changed over time. percent of juvenile offences in the Republic Though no single theoretical framework ex­ of Korea. Violent crime involving young per­ plained fully the genesis of delinquent be­ sons in Papua New Guinea took on a combi­ haviour, the definition and perception of, and nation of offences, induding abuse of societal responses to juvenile criminality akohol, theft of vehicle and/'~r firearm, and were guided by complex processes inherent armed robbery, often compounded by rape in the social environment of each country at and murder. Those groups which engaged a given point in time. Nevertheless, research in hooliganism and vandalism in Papua New on juvenile delinquency in different countries Guinea were termed "rascal gOIngs." They had established that, among other factors, a were predominantly an urban phenomenon definite correlation existed between delin­ and were composed mainly of unemployed quent behaviour and family background, migrants from the rural areas. parental socio-economic status and education 33. The participants r.'.Oted that neglected level, housing conditions, and the nature of young people covered by juvenile laws in peer group contact of the juveniles con­ various countries constituted specific cerned.

306 ESCAP REPORT ON ADOLESCENT CRIME

36. The presentation stressed that industri­ situation was considered serious in many alization processes had a direct bearing on parts of the world. There were considerable rising rates of juvenile offence in many coun­ lacunae of knowledge in this area. Although tries, particularly when the support functions youth crime still constituted only a fraction of traditional social institutions had been dis­ of total criminality in most ESCAP countries, rupted without their replacement with ade­ the emergence of its more volitional forms, quate alternative systems. The such as violence, drug abuse, assault, rob­ heterogeneity, sense of flux and anonymity bery and sex-related crimes was alarming. which characterized the urban social en­ The association between drug abuse and vironment generated a climate that people crime among youth was a matter of grave from traditionally supportive and more struc­ concern in several countries. Among the var­ tured social milieux found difficult to cope ious social factors affecting juvenile crime, with. In developing countries, the large-scale the availability of opportunity was central to migration Df dispossessed persons from vil­ the whole issue. The marginalization of lages to cities, mainly in search of gainful juveniles in several countries had rendered employment, had led to large numbers strug­ them increasingly vulnerable to abuse and to gling on the urban periphery. A new situa­ their eventual induction into criminogenic tion of social marginality had thus emerged subcultures. In many countries, denial of op­ in which the poor and the disadvantaged, in­ portunities for the balanced development of cluding the juveniles among them, suffered the young, lack of social support and care fa­ various kinds of d, o'l:vation in the presence cilities and declining employment prospects of urban abundance. Such socio-economic against the background of poverty, depriva­ disparities in the face of limited legal employ­ tion and backwardness, were among the ment opportunities predisposed the young to other major factors affecting juvenile crime. break the law in their struggle for survival. 39. It was observed that the nature and pace 37. Recognizing the growing sense of alie­ of urban life exposed juveniles to a variety nation, frustration and unrest among young of pressures outside the home. While many people in many countries of the region, the interpersonal relationships outside the home presentation observed that while the gross might be useful in meeting the emotional and national product and per capita income might other needs of young people, there was also statistically increase with industrial growth, a danger that they could be victimized by or­ such figures could not be simplistically ganized criminal syndicates and used to per­ equated with improvements in the quality of petuate criminal activities, such as illicit life of the general population. The presenta­ trafficking in drugs and illegal political ac­ tion urged that early action should be taken tivities. A higher crime rate among minori­ to ensure equitable distribution of develop­ ties, such as foreign migrants and ethnic or ment benefits in order to pre-empt the seri­ religious groups, could also be related to var­ ous consequences of a hiatus between rising ious kinds of socio-cultural and economic dis­ aspirations and the limited means available advantages that such groups were for their fulfilment. The search for means of particularly subjected to. directing industrialization and technological 40. Many countries had formulated ccmpre­ progress towards the creation of social en­ hensive social policies to deal with fun­ vironments in which socio-economic justice damental issues affecting juveniles, prevailed and oppression, frustration and particularly social conditions conducive to conflict were minimized was an issue of par­ juvenile deviance. Although the social atti­ ticular relevance to contemporary youth. tude towards juvenile misbehaviour in most 38. Concerning current trends in and dimen­ developing countries was one of tolerance, sions of juvenile crime, it was noted that the no society regarded delinquency as entirely

307 OTHER UNAFEI ACTIVITY MATERIALS value-free. The resultant dilemma was ad­ panying development were common dressed by a combination of criminal justice precipitating factors in the rising incidence and social welfare procedures and activities. and increasing severity of juvenile crime and However, there was growing awareness that delinquency. These included rapid popula­ socio-economic development should be more tion growth, industrialization, urbanization, carefully directed so as to enable the young youth unemployment and underemployment, to participate fully in and to contribute ef­ breakdown of the family unit, erosion of fectively to the advancement of society. In traditional values and internationalization of this connection, efforts were being under­ behaviour patterns, growing influence of the taken in many countries to strengthen the mass media, weakening of community sup­ functions of the family, the school, the com­ port systems, inadequate provision of social munity and other social mechanisms to help services and inability of the education sys­ stabilize the social environment. tem to respond to new challenges in the so­ 41. It was further stated that contemporary cialization of young people. changes in the social environment in various 44. The Meeting noted with concern that in­ countries had focused special attention on dustrialization and modernization processes the role of the state in the design of juvenile in countries of the region were subjecting the justice policies, programmes and practices. family to pressures that affected its tradition­ In countries where rapid socio-economic al functions. It recognized that those process­ change had led to a deterioration in the sup­ es had eroded the role of the family as an port and guidance provided to youth by the agent for imparting moral values and provid­ family and the community, the state would ing guidance on socially acceptable be­ have to take on the role of surrogate parent. haviour as well as in extending social 42. Emphasizing that no formal system, services to its members. The Meeting point­ however competent, could by itself remove ed to the fact that young people who ha~ the anomalies that existed in the wider so­ been deprived of appropriate family support cial system, the presentation urged that had become more vulnerable to induction strategies for delinquency prevention should into criminogenic culture. The Meeting, extend beyond juvenile justice operations therefore, emphasized the need for national and be built into various sectors of develop­ polices to support the capacity of the family ment within the comprehensive framework to undertake its functions as a cohesive unit of social policy. Such a social policy frame­ in society and at the same time called for work, it was suggested, should be based on: programmes aimed at strengthening paren­ (a) social reconstruction through planned de­ tal skills. velopment, with an accent on the welfare of 45. The Meeting noted that many tradition­ juveniles; (b) social reinforcement of such al functions of the family in the socialization basic institutions of society as were directly of young people had implicitly been trans­ concerned with the care, nurture and de­ ferred to education institutions. It observed velopment of juveniles; and (c) social re­ that, in many countries, the formal education integration of socially deviant and at-risk apparatus was ill prepared to assume those juveniles through an enlightened system of responsibilities on a full-scale basis. In that juvenile justice. connection, one participant pointed to the 43. In its discussion of the issues raised by correlation between the quality of education the presentation, the Meeting considered the and the school drop-out rate. It was further effects of rapid socio-economic change on mentioned that, in one country, juvenile juvenile crime in the Asian and Pacific offenders tended to have low levels of social region. The Meeting was of the view that skills and limited verbal ability. The Meet­ certain socio-economic phenomena accom- ing also observed that the current informa-

308 ESCAP REPORT ON ADOLESCENT CRIME tion boom, in the highly competitive context alization of instances of violent and destruc­ of many education systems in the region, tive behaviour were seen to stimulate overburdened both teachers and students juvenile crime and delinquency. The with information and rote learning. Conse­ popularization of culturally inappropriate quently, teachers were unable to fulfil their role models and indifference to ethical issues responsibilities adequately as advisors on perpetrated through commercial films had ethical issues and to serve as behavioural role effects on young people which were partic­ models. At the same time, students tended ularly insidious in the vacuum created by in­ to view teachers as mere information tech­ adequate socialization processes. The nicians, and not as advisors and role models Meeting observed that the pressures of to be respected. Further, overworked or in­ modern urban lifestyles rendered it ihcreas­ adequately prepared teachers sometimes ingly difficult for both mothers and fathers viewed young people with learning difficul­ to give due attention to building good rela­ ties as disciplinary problems, neglecting to tionships with their children. Television was consider their social background and intellec­ a poor but common substitute for parental tual potential. This kind of approach further involvement with children. Consequently, undermined those young people's ability to television programmes served as a major in­ overcome their difficulties and even pushed put in the socialization of young people. them in the direction of delinquency by in­ 48. The Meeting also pointed to the strong creasing their alienation and frustration. The tendency in the mass media, particularly tel­ Meeting, therefore, called for measures to evision, to stress entertainment over educa­ enhance the quality of the education system, tion in programming. Recognizing the and in particular the teaching profession, to potential beneficial role of the mass media render it more responsive to the needs of in guiding young people to be law-abiding young people. citizens, the Meeting called for measures to 46. The Meeting discussed the experience revise the orientation of the mass media to of the more developed countries of the region assume a more responsible civic role. concerning the effects on students of exces­ 49. Several experts from the more developed sive pressures imposed by highly competi­ ESCAP countries referred to the so-called tive education systems. The primary focus "boredom" or "fun" factor as a cause of on academic achievement in those countries, juvenile crime and delinquency associated at the expense of balanced social develop­ with affluence. Experts from various de­ ment, was considered to have contributed to veloping countries also noted similar pat­ a growing sense of alienation among young terns of behaviour among affluent young people, particularly the large numbers who people in their societies. The frequent ab­ could not succeed in those systems. Experts sence of parents and other adult family mem­ from those countries were of the view that bers, both physically and in a psychologically the rigidity of such education systems ex­ sense, meant that many young people in the acerbated school drop-out rates. The Meet­ urban milieu experienced an unprecedented ing, therefore, underscored the need to degree of freedom from responsible adult restructure the education systems in those care and guidance. Further, the weakening countries to accommodate the learning needs of community ties in the urban milieu meant of all young people and attach priority to that neighbours no longer extended mutual their balanced development. support in the care of young persons. In that 47. Emphasis was placed on the increasing­ situation, young persons often could not de­ ly negative influence of the mass media on velop a sense of belonging to family and com­ behaviour patterns among young people. munity. Many had, therefore, taken to the The glorification of crime and the sensation- streets in search of companionship.

309 OTHER UNAFEI ACTIVITY MATERIALS

Moreover, those young people who faced 52. Another Japanese expert, a Public Pros­ difficulties at home and school were partic­ ecutor in the Tokyo Public Prosecutor's Of­ ularly susceptible to negative peer group in­ fice, reviewed the public prosecution system fluence which, in turn, increased the in Japan. He stated that public prosecutors likelihood of their being trapped in crimino­ in Japan were all trained lawyers and had the genic sub-cultures. The Meeting called for following main functions: to investigate all systematic efforts to create more avenues for offences, including those committed by positive peer group interaction among young juveniles; to file for prosecution in the court, people. It was suggested that informa­ as no victim could directly file for court ac­ tion/counselling centres in locations fre­ tion; to be present in court to ensure the quented by young people (e.g., shopping proper prosecution of cases; and to execute complexes) should be established; recrea­ sentence as passed by the court. He pointed tional facilities should be provided in slum out that in Japan the public prosecutor en­ areas; and holiday camps, group excursions joyed the discretionary power of dropping and socially constructive activities should be the prosecution of a case if he was satisfied organized to involve large numbers of young that there was no prima facie evidence to people. The participants also underlined the prosecute the matter in court. This was a need to create more opportunities for young unique feature of the Japanese system and people to play an active role in improving the had proved the test of time, as it had been social environment for their own well-being, in force for nearly 100 years. previously, such as through the development and juvenile cases had been conducted identically management af youth organizations and with cases involving adults, but after the Sec­ community-oriented development activities. ond World War a different procedure had been introduced whereby the emphasis was IV. Juvenile Justice Administration on the rehabilitation rather than the punish­ ment of the juvenile offender. Japan had be­ 50. The Meeting reviewed selected juvenile come known as a peace-loving country, and justice administration systems in the Asia­ the humanistically-oriented juvenile justice Pacific region (see Annex V). In taking up system had won great credibility among the the discussion on juvenile justice administra­ public. tion, the Chairperson invited five participat­ 53. A third Japanese expert, a Family Court ing Japanese experts to describe the main Probation Office, described the manner in features of the Japanese juvenile justice ad­ which juvenile delinquents were dealt with ministration system as dealt with by the var­ in the family court system. Juveniles within ious government agencies concerned with the age group 14-19 came under the purview the subject. of the family courts. These cases were 51. First, a Councillor attached to the Youth referred to the family court by the law en­ Affairs Administration Management and Co­ forcement agencies. In each family court, as ordination Agency reviewed the role of the soon as a juvenile case was filed, an "intake police in dealing with juvenile delinquents process" was initiated. The primary purpose and juveniles prone to commit offences. He of "intake" was to separate the defaulting stated that in Japan the police contacted the juvenile at the very outset from the purview parents and teachers of such juveniles direct­ of the juvenile justice system to avoid the ly to provide them with necessary advice and stigmatization of such juveniles. The task of guidance. Police officers were given special­ judicial action was assigned to a family court ized training to meaningfully discharge this probation officer at the direction of the judge function as a preventive measure to reduce in view of his special knowledge and ex­ delinquency among juveniles. perience in juvenile investigation. General-

310 ESCAP REPORT ON ADOLESCENT CRIME ly speaking, 40 to 50 percent of juvenile usually had to take up a variety of other cases were diverted and dismissed in this roles, such as training of volunteer probation "intake process." officers, liaison with community groups, pub­ 54. For cases in which the formal hearing lic education, etc. was taken up before the family court, the 58. The expert classified juvenile offences judge after the hearing could place the delin­ into three categories from the point of view quent under the "tentative supervision" of of the probation officer: minor (like shoplift­ a family court probation officer, who would ing, cycle thefts, etc.); in-between offences make every effort, in co-operation with the (which were neither serious nor minor); and parents and others, to rehabilitate the heinous crimes. Disposition was generally juvenile. The family court could also place decided according to the nature of the crime. the juvenile in charge of a private institution For in-between offences, community care by .or individual. In 1987, there were a total of way of education and social control was 4,000 "tentative supervision" cases, which sought. Incarceration was resorted to only were nearly 2 percent of the total number of in the case of heinous crimes. juvenile cases brought before the family 59. The Meeting reviewed the juvenile court. justice systems in various countries of the 55. It was suggested that the family court region. system, having both judicial and social wel­ 60. The Children Act 1974 and rules framed fare functions, should develop more effective thereunder were in operation in Bangladesh. procedures to harmonize the two. In this One juvenile court, one remand home and regard, the family court probation officers, one training institute had been established as legal practitioners, should be skilled in in the country. A large number of juveniles techniques of investigation of their charges' were being referred to the Upazilla and Ses­ social background and psychological profile. sions Courts, where juvenile delinquents 56. The fourth Japanese expert, the Chief were tried along with adult offenders. Un­ Psychologist, Mito Juvenile Classification der the rectification programmes established Home, pointed out that "juvenile classifica­ with the proclamation of the Offenders Or­ tion homes" functioned under the control of dinance, two projects had been taken up, the Correction Bureau and dealt with cases viz., a probation of offenders project and an of delinquent juveniles. These institutions after-care services project. Recently, proba­ studied the behaviour patterns of delinquent tion had been included in the Upazilla social juveniles and sent reports to the family service programme in 400 UpaJ!.illa offices of courts which helped those courts in dispos­ the Social Services Department, which took ing of cases with a view to re-socializing up probation cases for rectifieation and re­ juveniles into society. The expert pointed out habilitation. that juvenile delinquents from middle-class 61. In Fiji, action against suspected or delin­ families were on the increase and that, on ac­ quent juveniles was taken under the Juvenile count of growing laxity of family control, Act. Enquiry was conducted by the Juvenile such juveniles indulged in acts of theft, sex­ Bureau. After the social investigation was ual misbehaviour, rash motorcycle or au­ done, the child was tried in the court, if tomobile driving, etc. This group of juvenile necessary. If the court found the juvenile delinquents required greater attention. guilty, a further report ftom the Social Wel­ 57. The fifth Japanese expert, a Probation fare Department was called for and, depend­ Officer from the Tokyo Probation Office, ing on that recommendation, the child was touched upon the role of the probation released or bound over. If recommended that officer. Apart from handling about 150 cases the child be placed in a correction home, the at a time on average, the probation officer Social Welfare Department took action in

311 OTHER UNAFEI ACTIVITY MATERIALS this regard. ed under the previous Act. 62. In Hong Kong, two Acts/Ordinances 64. The Juvenile Court Act 1947 as revised were in effect: Protection of Women and in 1972 provided the legal basis for juvenile Juvenile Ordinance 1949, which was widely justice administration in Malaysia. Juvenile considered to be outmoded and in need of courts, places of detention, probation hostels drastic change, and the Juvenile Offenders and approved schools had been provided for Ordinance, which had been reviewed in July efficient juvenile justice administration. 1989 and had had certain amendments ef­ There were a variety of options before the fected and provision for education and train­ juvenile courts to deal with delinquents de­ ing of inmates made. Services for juvenile pending upon the nature of the offence, and offenders were run by three Departments, imprisonment was ordered by the court only viz., the Police, Social Welfare and Correc­ as a last resort. There were some bylaws un­ tioral Services Departments. The probation der the 1947 Act which enabled the Govern­ officers were, however, overburdened and ment to provide for the care and protection these services needed to be expanded. of children and juveniles. Schools set up 63. In India, the Juvenile Justice Act 1986 throughout the country took care of the edu­ had replaced the Children Acts formerly in cation and training of young delinquents. A operation in various states and the union ter­ board of visitors was responsible for ensur­ ritories, as it had come into force in 1987 on ing the efficient and purposeful functioning a uniform basis for the whole country. This of these schools. These schools functioned was a comprehensive piece of legislation and under the administrative control of the provided for the care, protection, treatment, Ministry of Social Welfare. development and rehabilitation of neglected 65. In Nepal, apart from the basic law, serv­ and delinquent children and for the adjudi­ ice organizations extended help on a volun­ cation of certain matters relating to the dis­ tary basis in the treatment of cases of position of delinquent children. Under the juveniles in conflict with the law. act, a juvenile was defined as a boy under 66. In Papua New Guinea, the responsibili­ the age of 16 or a girl under the age of 18. ties for the management of juvenile institu­ H provided for the establishment and/or tions were spread among three agencies: the recognition of juvenile welfare boards, Department of Youth Affairs, the Depart­ juvenile homes to look after neglected chil­ ment of Correctional Services and the dren and juvenile courts and special homes Church Charity Organization. Prisoners were for juvenile delinquents. The Act also en­ being trained; trained male and female visaged the establishment of observation prisoners were sent to elementary schools to homes for the temporary reception of erring educate children on the ill effects of a life of juveniles during the enquiry stage and also crime and to teach them to live honest and after-care organizations for the benefit of peaceful lives. delinquents released or granted on probation. 67. In the Philippines, the State Policy on Besides, fit persons or institutions could be Youth was clearly enunciated in Article II, appointed under the Act to take care of the Section 13 of the 1987 Philippine Constitu­ juveniles entrusted to them. A Fund had tion and in the Philippine Development Plan, been created under the Act to tap resources which served as the framework for national from the public and from government development. sources to promote various services under 68. Recent proclamations and enactments the Act. The new law not only filled the lacu­ had enhanced strategies for the protection of nae of the earlier enactments but also provid­ minors and enhancement of youth activities. ed for a more comprehensive infrastructure A Presidential Council for Youth Affairs had to upgrade the level of services contemplat- been created in 1987. Proclamation 13 had

312 ESCAP REPORT ON ADOLESCENT CRIME declared June 1986 to May 1987 as the Year Act in Singapore, the juvenile court judges for the Protection of Filipino Exploited Chil­ had various alternatives before them and dren. The Proclamation had also created a could order juvenile delinquents to be sent task force to develop a plan of action for that to approved schools or homes or place them particular group of children, with the Coun­ under the supervision of probation officers cil for the Welfare of Children co-ordinating for a specified period or commit them to the the agenda set in this plan. These strategies care of fit persons or parents deemed capa­ had been designed to bolster the Judiciary ble of proper care and guardianship. Under Reorganization Act of 1980, as well as Arti­ the Probation of Offenders Act, an offender cles 189 and 204 of the Child and Youth Wel­ was released to the care and supervision of fare Code which provided relevant legal a probation officer for a one to three year provisions for administering cases regarding period. Under a recent amendment, the low­ juvenile delinquents. er limit had been reduced to six months. The 69. In the Republic of Korea, all juvenile Department of Community Development, delinquents booked by the police were with the help of the Police and Prisons referred to the Public Prosecutor's Office. Departments, looked after the problems of The Special Prosecutor designated to deal juvenile delinquents. The Assessment and with juvenile cases looked after most of these Review O~'mmittee reviewed the conduct of cases. After investigation, the prosecutor juveniles placed in Boys Homes. Under the decided either to indict or refer the juvenile Individual Care Plan, delinquents were guid­ to the juvenile court or drop the case condi­ ed through a treatment programme with tionally, as appropriate. The Juvenile realistic goals set for them. Repeated Guidance and Protection System developed juvenile offenders who were inhalant abusers in the Republic of Korea deserved special at­ were sometimes referred by the Director of tention. Within this system a juvenile the Central Narcotics Bureau to an inhalant guidance member, selected from leading pri­ abuse centre for their care and treatment. As vate citizens and appointed by the chief a preventive measure, two Advisory Coun­ prosecutor, was put in charge of a juvenile cils had been set up in 1988, one to look into offender wbn the public prosecutor dropped family and community life and the other on a case or released the offender. This system youth. Boys Clubs had been set up at the had become popular and successful. A Pro­ community level by the police in 1982 to bation System Act had recently been enact­ cater for the recreational needs of youth. ed and the Juvenile Act had been amended. 71. A Children and Young Persons Or­ This had enhanced the discretionary powers dinance and an Ordinance on Youthful of the judiciary, as the court could thereby Offenders (training schools), both enacted in allow the use of probation officers. The Act 1939, provided the legal framework for deal­ also allowed more job opportunities for the ing with young delinquents in Sri Lanka. release or probation of juvenile offenders Some progressive legislation, such as a com­ who were detained in juvenile training posite law on children and young persons schools or juvenile correctional institutions. which would require the courts to commit The amended Juvenile Act provided more young offenders to the Commissioner of restrictions on sentencing capital punish­ Child Care for proper placement and would ment or imprisonment for an indefinite peri­ also require contributions by parents and od. Before amendment, such restrictions guardians towards the maintenance of de­ applied to juvenile delinquents under the age tained young offenders, was under active of 16, but it had recently been extended to consideration for early enactment. cover those under the age of 18 years. 72. In Thailand, an act of 1951 had institut­ 70. Under the Children and Young Persons ed juvenile courts. A police officer who ar-

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OTHER UNAFEI ACTIVITY MATERIALS

rested a juvenile would notify the ed approach to youth development and Observation and Protection Centre (OPC) juvenile justice administration, as contained with essential personal details about the in the report of the above-mentioned ES­ juvenile concerned. The OPC conducted a CAPIUNAFEI Workshop, pre-hearing investigation and the police Noting that adolescence is a transitional officer would send the case to the prosecu­ phase between the dependency of childhood tor along with the investigation report. The and the responsibilities of adulthood and that prosecutor would take up the case in the the situation of rapid social and economic juvenile court; otherwise, the case would be change prevailing in the ESCAP region ex­ sent to the regular courts. The juvenile acerbates the difficulties experienced by offender was admonished, penalized. placed young people in the process of their matura­ on probation or sent to a training school or tion to adulthood, imprisoned, if not below age 14, depending Expressing concern that the growing inci­ on the nature and gravity of the offence com­ dence and widening patterns of juvenile mitted. crime and delinquency in Asia and the Pa­ cific are symptomatic of the functional V. Plan for Action failures of particular socio-economic sys­ tems, institutions and relations in the process 73. The Expert Group Meeting on Adoles­ of rapid development, cence and Crime Prevention in the ESCAP Recognizing that most juveniles who come Region, organized by ESCAP and UNAFEI into conflict with the law live in situations in co-operation with the Government of of deprivation and neglect and do not have Japan and held at Fuchu, Tokyo, 3-10 Au­ equal access to socio-economic opportunities, gust 1989, Recalling General Assembly resolution 1. Recommends that the prevention of 40/35 on the development of standards for crime and the administration of juvenile the prevention of juvenile delinquency, justice should be pursued within a frame­ which calls upon the regional commissions work of integrated social development and and the regional institutes for the prevention that international efforts in this regard of crime and the treatment of offenders to should be directed towards the establishment establish joint programmes for the promotion of a just economic order focusing on the well­ of juvenile justice and the prevention of being of the vulnerable and marginalized juvenile delinquency, young members of society, Further recalling the United Nations Stan­ 2. Requests UNAFEI, which had initiated dard Minimum Rules for the Administration the process for the formulation of the "Beij­ of Juvenile Justice (the Beijing Rules), which ing Rules," to undertake, in co-operation constitute a vital contribution to the protec­ with ESCAP, the formulation of standard tion of young people's rights, and recogniz­ minimum rules for the prevention of juvenile ing the need to strengthen implementation delinquency and youth crime, taking into ac­ of the Beijing Rules in countries of the ES­ count the recommendations of the present CAP region in the context of youth de­ Expert Group meeting and other relevant velopment, United Nations guidelines, Bearing in mind the recommendations of 3. Calls upon donor Governments, interna­ the ESCAPIUNAFEI Workshop on the Role tional funding agencies and other organiza­ of Youth Organizations in the Prevention of tions to provide ESCAP with the requisite Crime Among Youth, held at Fuchu, Tokyo, financial and staff resources to strengthen its 15 to 20 July 1985, provision of advisory services and technical Recognizing the need to adopt an integrat- assistance to members and associate mem-

314 ESCAP REPORT ON ADOLESCENT CRIME

bers of ESCAP in the prevention of juvenile education curricula. delinquency and the administration of 6. In the socialization of young people, in­ juvenile justice and, in this regard, to en­ creased emphasis should be placed on hance linkages among all sectors within a strengthening indigenous cultural values and broad social development framework, a sense of pride in the cultural traditions of 4. Calls upon members and associate mem­ the countries in the region, as a crucial bers of ESCAP to implement the following aspect of strengthening the sense of identi­ recommendations of the present Meeting, ty and belonging of young people in the con­ taking into consideration the situational con­ text of rapid socio-economic change. text of each country. 7. Young persons in conflict with the law should be provided full access to legal pro­ Recommendations tection and legal services, with due care and attention to their long-term well-being. In A. Guiding Principles this regard, differential treatment of juvenile 1. An integrated approach to addressing offenders should be adopted. Further, spe­ broad socio-economic issues in the preven­ cial consideration should be given to the fol­ tion of juvenile offence should be developed lowing characteristics of juvenile and implemented by all government agencies delinquents: chronological age, mental age, whose activities affect youth development, social background, nature of crime, motiva­ including those in the fields of education, em­ tion to commit crime and determination to ployment, social services and juvenile justice be reformed. However, excessive tolerance administration. of juvenile crime should not be encouraged. 2. Socio-economic development policies, 8. Young persons in conflict with the law particularly in relation to industrialization should be provided with appropriate oppor­ and urbanization, should be carefully tunity to mature into responsible and produc­ planned and implemented with a yiew to tive citizens through education and causing minimum disruption of family cohe­ rehabilitation programmes aimed at improv­ siveness and weakening of social relations in ing their social and vocatiOli·:>.l skills and the community. In this regard, poverty al­ strengthening their moral values and self­ leviation policies should receive the highest esteem. priority in developing countries. 9. Alternatives to detention of juvenile 3. Systematic efforts should be made to ex­ offenders should be considered. Detention pand and strengthen the capacity of the fa­ and incarceration should be used as a last mily and community to undertake the resort and, in that process, no minor or socialization of the young, to mobilize peo­ juvenile should be exposed to victimization ple's participation in the care and protection and/or subjected to the negative influence of of the young and to prevent juvenile delin­ adult criminals. quency and youth crime. 10. Juveniles who are incarcerated in cor­ 4. Guidance, counselling and other suppor­ rectional institutions should be provided with tive social services should be provided not academic education, vocational training, so­ only for young persons but also for their par­ cial skills training, recreation, religious ents and other caretakers of youth to provide guidance and other services necessary for means for early intervention and to prevent the improvement of their character and so­ the young from drifting into juvenile delin­ cial adaptiveness, while bearing in mind that quency and youth crime. the maintenance of positive contact with the 5. Ethical conduct, respect for the law and family and community would facilitate their the development of social skills should be in­ re-integration into society. corporated, in an appropriate manner, into 11. Non-institutional correctional measures

315 OTHER UNAFEI ACTIVITY MATERIALS for delinquent adolescents should be fully uti­ tries and agencies working in the social field, lized and should be expanded to the fullest with particular attention to youth-related extent possible so that incarceration in cor­ matters. rectional institutions would be the last resort 3. Policy makers and planners in the eco­ in the absence of other, more appropriate nomic sector should take into consideration measures. the social implications of economic 12. Community-based programmes estab­ programmes on young people. They should lished in lieu of the incarceration of juvenile pay special attention to the effects on youth delinquents should be structured by both of economic adjustment policies, through government agencies and non-governmental those policies' effects on employment, organizations so as to include all sectors of prices, the balance of trade and the availa­ the community in the effort to prevent bility of such essential social services as edu­ juvenile delinquency and recidivism. cation, health, shelter, minimum income maintenance and the like. B. Preventive Social Measzu·es 4. Non-governmental organizations should be given every opportunity to play an in­ (a) Overall National Development Planning tegral role in national policy-making and 1. Governments should, within the context planning in the field of youth development. of their overall national planning systems, In this connection, government agencies and adopt an integrated and intersectoral ap­ non-governmental organizations should co­ proach to youth development as a means of operate in a concerted manner to promote preventing juvenile delinquency and youth the delivery of social services to young peo­ crime. In this connection, each country ple. Further, Governments should provide in­ should institute a national co-ordinating body stitutional and other support to comprising the various concerned sectors non-governmental organizations to ensure dealing with youth-related issues, such as their continued viability as providers of so­ youth development, social services, employ­ cial services to youth. ment, education, health, housing and justice. 5. Youth development policies, plans and The co-ordinating body would be responsi­ programmes should address the concerns of ble for monitoring the youth development­ specific target groups of youth, including related work of each concerned agency/sec­ such disadvantaged and vulnerable groups tor to ensure a coherent approach to address­ as migrant youth, street children, school ing youth concerns. drop-outs, disabled youth, and youth in 2. National development planning agencies criminogenic situations such as drug abuse should not only focus on direct investment and prostitution. in the economic sectors but should give due 6. Governments should strengthen their in­ consideration to social investment in youth, formation and research systems capabilities particularly investment in young human in youth-related sectors so as to provide a resources and such aspects of their quality sufficient body of information and analysis of life as health, education, social services, for effective policy-making and planning for housing and culture. Such investments in youth development. youth would over the long run provide high 7. Adequate provision should be made by social rates of return and contribute to eco­ Governments to promote the preservation of nomic growth and social development indigenous values and traditions as a coun­ through their impact on the productivity of termeasure against the negative effects of young human resources. Governments modernization on youth. should, therefore, provide sufficient alloca­ tion of financial and other resources to minis- (b) Family

316 ESCAP REPORT ON ADOLESCENT CRIME

1. National policies and programmes management skills to ensure the successful should be instituted and strengthened to sup­ implementation of self-employment projects port the capacity of the family to fulfil its by young people. functions as a cohesive unit in society and 5. Outreach programmes should be estab­ as a provider of basic social services. lished in receiving communities for new 2. Programmes to strengthen parental migrant youths to facilitate their assimilation skills should be consciously planned and im­ in the new environment. plemented by national Governments. fL Structured programmes should be in­ 3. Family life education should be incor­ Eltituted in communities to guide refractory porated in school curricula to prepare young juveniles to become reintegrated in commu­ people for adulthood. Such education nities. programmes should focus on such issues as 7. Efforts should be made to promote posi­ the changing role of men and women in so­ tive peer group influence within the commu­ ciety (including the sharing of parental and nity. In this connection, the formation of domestic responsibilities), sex education, fa­ youth clubs managed by young people them­ mily planning and family life. selves should be encouraged so that positive 4. Twenty-four-hour crisis care services peer group influence could be extended to should be established to provide information involve youth in socially constructive ac­ and assistance to family members, particu­ tivities. larly young people who are victims of exploi­ tation and abuse. (d) Education 1. The status of the teaching profession (c) Community should be upgraded so as to attract into the 1. Governments should make adequate education system additional well-qualified provision for the establishment of strong teachers who are highly responsive to the community-based social institutions run and needs of young people. organized by the community and its young 2. Innovative alternatives to formal class­ people. These would include such institu­ room education, such as "street educators," tions as community associations, youth and on-the-job education, apprenticeship educa­ other recreational clubs, counselling centres tion and education programmes through the and residential committees. mass media should be considered so as to ex­ 2. Policies favouring the decentralization tend education to all sectors of the commu­ of relevant industries and featuring the pro­ nity, including street children, young slum vision of training skills and credit facilities dwellers, working youth and others. for the self-employment of young people 3. The education system should, aside should be devised in order to stem the tide from providing academic training, also pro­ of youth migration from rural to urban areas. vide avenues for vocational training to ena­ 3. Effective training programmes for ble young people who are not academically voluntary community workers and youth inclined to obtain marketable skills. leaders should be implemented to ensure .±. Parent-teacher associations should be leadership continuity in community associa­ made an integral part of the school system tions and youth clubs. This should help to en­ to enable parents to playa greater role in the sure that community-level programmes and academic and social progress of their activities related to the needs of young peo­ children. ple would be effectively implemented. 5. The concept and practice of student 4. The private sector, particularly en­ counselling should be promoted in the edu­ trepreneurs, should be mobilized to provide cation system. guidance to young people on business 6. Programmes should be undertaken by

317 OTHER UNAFEI ACTIVITY MATERIALS schools and non-governmental organizations careful classification of juvenile offenders en­ to promote non-sexist and non-violent be­ trusted to the care of institutions, the com­ haviour among young people, particularly munity or fit persons, for the improved with a view to pre-empting sex-related rehabilitation of those juveniles. crimes and other forms of violent behaviour. 5. Measures should be undertaken to pro­ 7. Human rights awareness programmes vide and strengthen after-care services to should be introduced into the educational discharged juvenile offenders both by curricula to increase the social responsibili­ government agencies and non-governmental ty of youth. organizations, especially with a view to the S. In recognizing the potential beneficial prevention of recidivism. role of the mass media in guiding young peo­ 6. Research and evaluation of institution­ ple to be law-abiding citizens, the mass me­ al and community-based training and re­ dia should be called upon to assume a more habilitation programmes should be responsible civic role. In particular, televi­ undertaken with a view to strengthening the sion should incorporate positive social values positive impact of such programmes on in programming. At the same time, efforts juvenile offenders. should be made to minimize programmes 7. Measures should be undertaken to en­ that stimulate juvenile crime and delinquen­ hance the role of community organizations cy, particularly those that glorify crime and in the rehabilitation of juvenile offenders and sensationalize instances of violent and des­ their reintegration into society. tructive behaviour. S. The countries of the region should make special efforts to incorporate the "Beijing C. Measures on Juvenile Justice Adminis­ Rules" in their respective legal, administra­ tration tive and social development frameworks. 1. Efficient juvenile justice administration should be promoted through the re-education D. Regional Co-operation and reorientation of the police personnel en­ 1. The "international year of the family," gaged in handling juvenile delinquents. Spe­ which is expected to be proclaimed by the cial juvenile justice bureaux should be set up United Nations General Assembly, should fo­ and should be manned by personnel who are cus on the socialization of young persons as specially trained to deal with young one of its main themes. The effectiveness of offenders. Further, an integrated approach socialization would serve as a preventive to training on broad socio-economic issues measure against juvenile Jelinquency and should be emphasized in juvenile justice ad­ youth crime. ministration. 2. The formulation by ESCAP of a regional 2. Standard national guidelines should be social development strategy, mandated by evolved in line with the Beijing Rules to as­ the Commission in its resolution 45/1, should sist the prosecution agencies in investigat­ include measures dealing with crime preven­ ing cases of juveniles in conflict with the law. tion and criminal justice administration, tak­ 3. Frequent consultation between judges ing into account the Beijing Rules and other and personnel of other concerned agencies relevant international instruments. should be undertaken to promote better un­ 3. ESCAP and UNAFEI should take joint derstanding of the social circumstances of action to support national implementation of juvenile offenders so as to enable all crimi­ the Beijing Rules and the "Guidelines on So­ nal justice personnel to adopt a more humane cial Measures for the Prevention of Crime and realistic approach in the disposition of Among Youth and on Juvenile Justice" as cases. well as follow-up of the recommendations of 4. Efforts should be made to undertake a the present Meeting.

318 ESCAP REPORT ON ADOLESCENT CRIME

4. ESCAP and UNAFEI should periodical­ crime and the treatment of young offenders. ly examine the efficacy of efforts concern­ 7. Efforts should be made by UNAFEI and ing youth crime prevention and criminal ESCAP, in co-operation with government justice administration of young offenders agencies in the field of social development through the convening of regional meetings and justice, to develop a standardized sys­ among social development and criminal tem for the collection and comparative anal­ justice personnel. ysis of information pertaining to the 5. ESCAP and UNAFEI should jointly as­ prevention of crime among youth and the ad­ sist Governments in strengthening national ministration of justice for young offenders. co-ordinating bodies for youth development with a view to promoting an integrated ap­ VI. Closing of the Meeting proach to the prevention of crime among youth and the administration of criminal The Meeting adopted its report on 10 Au­ justice with particular reference to young gust 1989. persons. In this regard, assistance should be A closing address was delivered to the provided to national co-ordinating bodies to Meeting by Mr. MinollI Shikita, Chairman establish mutually supportive linkages with of the United Nations Committee on Crime other concerned agencies in diverse sectors Prevention and Control. Farewell statements of national development. were also made by the Director of UNAFEI 6. ESCAP and UNAFEI should explore and the Chief of the Social Development Di­ the possibility of forming mobile interdis­ vision, ESCAP. ciplinary training teams to provide technical Mr. Minoru Shikita presented certificates support services at the national and of participation to each of the experts at the subregional levels to formulate and imple­ closing ceremony. ment strategies for the prevention of youth

319 OTHER UNAFEI ACTIVITY MATERIALS

Annex I

List of Participants

A. Experts Mr. Masatoshi Ebihara Probation Officer Ms. Salma Chowdhury Tokyo Probation Office Deputy Director Tokyo Social Services Department JAPAN Dhaka BANGLADESH Mr. Takeo Momose Public Prosecutor Mr. Moses Driver Tokyo District Public Prosecutors' Superintendent of Police Office Fiji Policy Academy Tokyo Fiji Police Force JAPAN Suva FIJI Mr. Yutaka Sawata Chief Psychologist Mr. Y.F. Hui Mito Juvenile Classification Home Director Mito-shi Hong Kong Council of Social Service JAPAN HONG KONG Mr. Jouji Yoshihara Mr. Miranda Lai-foon Chung Chan Councillor Superintendent Youth Affairs Administration Ma Tau Wei Girls' Home Management and Co-ordination Agency Kowloon Prime Minister's Office HONG KONG Tokyo JAPAN Mr. J oginder Singh Badhan J oint Secretary Mr. Masato Yoshitake Department of Justice Family Court Probation Officer Ministry of Home Affairs Yokohama Family Court Government of India Yokohama New Delhi JAPAN INDIA Mr. Mohd. Ali Abu Bakar Mr. Hira Singh (Resource person) Director-General of Youth Director Ministry of Youth and Sports National Institute of Social Defence Kuala Lumpur Ministry of Welfare MALAYSIA Government of India New Delhi INDIA

320 ESCAP REPORT ON ADOLESCENT CRIME

Ms. Chandni Joshi Ms. Saisuree Chutikul Chief Secretary-General Women Development Programmes National Youth Bureau Ministry of Panchayat and Local De­ Bangkok velopment THAILAND Lalitpur NEPAL Mr. Siri Srisawasdi Deputy Director-General Mr. Martin Balthasar Department of Corrections Assistant Commissioner Ministry of Interior Division of Education and Training Bangkok Correctional Services Headquarters THAILAND Boroko PAPUA NEW GUINEA B. Secretariat

Ms. Corazon Alma G. de Leon ESCAP Undersecretary for Field Operations Mr. Edward Van Roy Department of Social Welfare and De­ Chief velopment Social Development Division Quezon City Mr. Larry C.Y. Cheah Manila Senior Social Affairs officer PHILIPPINES Social Development Division

Ms. Nenalyn Palma Defensor Mr. Iwao Inuzuka Division Chief II Regional Advisor on Crime Prevention Probation Administration and Criminal Justice Department of Justice Social Development Divisiqn Manila PHILIPPINES Ms. San Yuenwah Social Affairs Officer Mr. Kie Bae Yi Social Development Division Senior Public Prosecutor Seoul District Public Prosecutor's Ms. Nanda Krairiksh Office Social Affairs Officer Seoul Social Development Division REPUBLIC OF KOREA Ms. Suneerat Songphetmongkol Ms. Tay Lu Ling Administrative Clerk/Secretary Principal Rehabilitation Officer Social Development Division Prison Headquarters SINGAPORE UNAFEI Mr. Hiroyasu Sugihara Ms. Lalani Serasinghe Perera Director Senior Assistant Secretary (Legal) Ministry of Justice and Parliamentary Mr. Kunihiro Horiuchi Affairs Deputy Director Colombo SRI LANKA

321 OTHER UNAFEI ACTIVITY MATERIALS

Mr. Norio Nishimura Mr. Masakazu Nishikawa Professor Professor

Mr. Akio Yamaguchi Mr. Fumio Saito Professor Professor

Mr. Shigemi Satoh Mr. Kazutoshi Nagano Professor Chief of Administration

Mr. Itsuo Nishimura Mr. Katsutoshi Tsumura Professor Deputy Chief of Administration

Mr. Yutaka Nagashima Professor

Annex II

List of Documents

SD/EGM/ACPiL.1 SD/EGM/ACP/2 Provisional agenda Effects of the social environment on juvenile offence * * SD/EGM/ACP/L.2 Annotated provisional agenda SD/EGM/ACP/3 Guidelines for the formulation of SD/EGM/ACP/1 recommendations Patterns of juvenile offence *

.. Prepared for the secretariat by Mr. Kunihiro Horiuchi, Deputy Director, UNAFEI. "* Prepared for the secretariat by Mr. Hira Singh, Director, National Institute of Social Defence; Ministry of Welfare, India.

Annex ill

List of Reference Papers

1. United Nations, IlJuvenile justice and the 2. United Nations, "Discussion guide for the prevention of juvenile delinquency, includ­ interregional and regional preparatory ing the principles, guidelines and priori­ meetings for the Eighth United Nations ties with respect to research on youth Congress on the Prevention of Crime and crime" (E/AC. 57/1988/11). the Treatment of Offenders" (A/CONF.

322 ESCAP REPORT ON ADOLESCENT CRIME

144/PM.1). 4. United Nations, "United Nations Stan­ dard Minimum Rules for the Administra­ 3. United Nations, "Report of the inter­ tion of Juvenile Justice (The Beijing regional preparatory meeting for the Rules)," Department of Public Informa­ Eighth United Nations Congress on the tion, 1986. Prevention of Crime and the Treatment of Offenders on topic IV: Prevention of 5. Hira Singh, Contemporary trends in juvenile delinquency, juvenile justice and the pro­ justice administration. tection of the young: Policy approaches and directions" (AJCONF. 144/IPM. 3). 6. John C. Freeman, Alternatives to the prose­ cution of juveniles and the rights of children.

Annex N

List of Country Papers

Bangladesh Japan "Adolescence and crime prevention in "Recent trends of juvenile delinquen­ Bangladesh," prepared by Ms. Salma cy and its characteristic features," pre­ Chowdhury, Deputy Director, Social pared by Mr. Takeo Momose, Public Services Department, Dhaka Prosecutor, Tokyo District Public Prosecutors' Office, Tokyo Hong Kong "Adolescence and crime prevention in Japan Hong Kong," prepared by Mr. Y.F. "Juvenile classification home," pre­ Hui, Director, Hong Kong Council of pared by Mr. Yutaka Sawata, Chief Social Service, Hong Kong Psychologist, Mito Juvenile Classifica­ tion Home, Mito-shi Hong Kong "Adolescence and crime prevention in Japan Hong Kong," prepared by Ms. Miran­ "Type and the present state of juvenile da Lai-foon Chung Chan, Superinten­ delinquency in Japan," prepared by dent, Ma Tau Wei Girls' Home, Social Mr. Jouji Yoshihara, Councillor, Youth Welfare Department, Hong Kong Affairs Administration, Management and Co-ordination Agency, Prime India Minister's Office, Tokyo "Adolescence and crime prevention in India," prepared by Mr. J.S. Badhan, Japan Joint Secretary, Department of Justice, "Juvenile justice system in Japan­ Ministry of Home Affairs, New Delhi focused on the functions of the family court probation officer," prepared by Japan Mr. Masato Yoshitake, Family Court "Juvenile probation and parole in Probation Officer, Yokohama Family Japan," prepared by Mr. Masatoshi Court, Yokohama Ebihara, Probation Officer, Tokyo Pro­ bation Office, Tokyo

323 OTHER UNAFEI ACTIVITY MATERIALS

Malaysia Republic of Korea "Adolescence and crime prevention in "Trend in juvenile delinquency in Malaysia," prepared by Mr. Mohd. Ali Korea," prepared by Mr. Kie Bae Yi, Abu Bakar, Director-General of Youth, Senior Public Prosecutor, Seoul Dis­ Ministry of Youth and Sports, Kuala trict Public Prosecutors' Office, Seoul Lumpur Singapore Nepal "Adolescence and crime prevention in "Not legal provision alone: juvenile Singapore," prepared by Ms. Tay Lu delinquencies-a multi-dimensional Ling, Principal Rehabilitation Officer, problem," prepared by Ms. Chandni Prison Headquarters. Singapore Joshi, Chief, Women Development Programmes, Ministry of Panchayat Sri Lanka and Local Development, Lalitpur "Adolescence and crime prevention in Sri Lanka," prepared by Ms. Lalani S. Papua New Guinea Perera, Senior Assistant Secretary (Le­ "Adolescence and crime prevention in gal), Ministry of Justice and Parliamen­ Papua New Guinea," prepared by Mr. tary Affairs, Colombo Martin Balthasar, Assistant Commis­ sioner, Division of Education and Thailand Training, Correctional Services Head­ "Juvenile offence in Thailand," pre­ quarters, Boroko pared by Ms. Saisuree Chutikul, Secretary-General, National Youth Philippines Bureau, Office of the Prime Minister, "Adolescence and crime prevention in and Mr. Siri Srisawasdi, Deputy the Philippines," prepared by Ms. Director-General, Department of Cor­ Corazon Alma G. de Leon, Undersecre­ rections, Ministry of Interior and Ms. tary for Field Operations, Department Nathee Chitsawang, Chief, Research of Social Welfare and Development, and Planning, Department of Correc­ and Ms. Nenalyn Palma Defensor, Di­ tions, Bangkok vision Chief II, Probation Administra­ tion, Case Management and Records Division, Manila

324 ESCAP REPORT ON ADOLESCENT CRIME

Annex V

Summary of Selected Juvenile Justice Administration Systems in Asia and the Pacific

Is there an Can a juvenile Country Definition Fundamental law independent be sentenced or of concerning juvenile juvenile to a penal area juvenile * 1 delinquency court? institution?

Bangladesh (1) 7 yrs Children Act, 1974 Yes No (2) 16yrs Fiji (1) 10 yrs Juvenile Act, 1973 Yes Yes (2) 17 yrs Japan (1) 14 yrs Juvenile Law, 1948 Yes Yes (2) 20 yrs Hong Kong (1) 7 yrs Juvenile Offenders' Yes Yes (2) 16 yrs Ordinance, 1975 India (1) _*2 'Juvenile Justice Act, 1986 Yes No (2)M: 16yrs F:18yrs Malaysia (1) 7 yrs Juvenile Court Act, 1947; Yes No (2) 18yrs revised 1972 and 1975 Nepal (1) 8 yrs Right of the Child Act, 1980 No Yes (2) 16yrs Papua New (1) 8 yrs Child Welfare Act, 1983 Yes No Guinea (2) 16 yrs Phlippines (1) 9 yrs Child and Youth Welfare No Yes (2) 18 yrs*3 Code, 1974 Republic (1) 14 yrs Juvenile Act, 1958 Yes Yes of Korea (2) 20 yrs Singapore (1) 7 yrs Children and Young Persons Yes Yes (2) 16 yrs Act, Chap. 38, 1985 Sri Lanka (1) 8 yrs Children and Young Persons Yes Yes (2) 16yrs Ordinance, 1939 Thailand (1) 7 yrs Act Instituting Juvenile Yes Yes (2) 18 yrs*4 Courts, 1951; Juvenile Court Procedure Act, 1951

Notes: * 1: (1) = minimum age, (2) = maximum age, *2: juvenile defined as all persons below indicated maximum age, M: male, F: female, *3: except for drug offenders, *4: pertains to unmarried persons only.

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