Thai Prisons/Non-Thai Prisoners: Policy, Policing, Courts & Prisons in the Thai Criminal Justice System
Ashley Hayes Benjamin Hoffart Sena Ku Katherine Kunz I. Introduction
Bang Kwang Central Prison sits aside a surprisingly wide and quiet street in the otherwise crowded and hectic north Bangkok neighborhood of Nonthaburi. Guards in neatly pressed khaki uniforms and mirrored sunglasses walk briskly from their shaded posts to repeatedly and forcefully remind passersby to take “no picture” of the dirty white walls, rows of rusting barbed wire, and foreboding guard tower. Nicknamed the “Big
Tiger” by locals for its ability to “eat men alive,”1 Bang Kwang houses nearly 8,000 men serving sentences of thirty years to life imprisonment in notoriously unsanitary, hot, humid, overcrowded, and violent conditions frequently described as “hell” by former inmates.2 Even though Bang Kwang is just one of twenty-six central prisons and one of nearly 160 correctional institutions in Thailand housing nearly 260,000 prisoners,3 the prison has achieved particular notoriety outside of Thailand both for its shocking conditions and for the proportionally high number of foreign prisoners behind its walls.
While Bang Kwang may be the Thai prison best known outside of Thailand due to the relatively high number of Western prisoners that it holds, the reported conditions are highly indicative of those found in most Thai prisons. The United States Department of
State stated in its most recent country report on Thailand that “[p]rison conditions were poor and overcrowded. […] Sleeping accommodations were insufficient. Medical care was inadequate, and communicable diseases were widespread in some prisons. […]
1 This World: The Real Bangkok Hilton (BBC television broadcast Jul. 22, 2004) [hereinafter This World: The Real Bangkok Hilton], transcript available at http://news.bbc.co.uk/1/shared/spl/hi/programmes/this_world/transcripts/this_world_bangkok_hilton22070 4.txt. 2 See SEBASTIAN WILLIAMS, SEND HIM TO HELL: JOHN DAVIES’ 17 YEARS OF SUFFERING IN THAILAND’S PRISONS (2008); COLIN MARTIN, WELCOME TO HELL: ONE MAN’S FIGHT FOR LIFE INSIDE THE BANGKOK HILTON (2005); WARREN FELLOWS, THE DAMAGE DONE: TWELVE YEARS OF HELL IN A BANGKOK PRISON (1999). 3 Department of Corrections, Ministry of Justice, Thailand, Statistics (May 31, 2002), available at http://www.correct.go.th/statis.htm.
1 There were credible reports that guards physically abused detainees in some detention centers. Overcrowding and a lack of basic medical care continued to be serious problems.”4
Many of the prisoners in Bang Kwang, and virtually all of the facility’s foreign
(non-Thai) prisoners, were arrested as part of Thailand’s “war on drugs,”5 under which former Prime Minister Thaksin Shinawatra promised to send drug dealers and traffickers
“to meet the guardian of hell.”6 Moreover, in summarizing Thai drug sentencing in its latest travel report on Thailand, the United States Department of State stated that
“[p]enalties for the possession of, use of, or trafficking in illegal drugs in Thailand are severe. Convicted offenders can expect long prison sentences under harsh conditions, and often heavy fines as well. Thailand also has a death penalty for serious drug offenses, and has executed convicted traffickers.”7 Moreover, many human rights groups, news media outlets, and foreign governments have commented on the practice of systematic, extra-judicial killings as part of Thailand’s fight against drugs, with reported numbers of executed drug traffickers reported between 2,000 and 3,000.8 It is therefore
4 U.S. Dept. of State, Country Reports on Human Rights Practices: Thailand (2006). 5 This World: The Real Bangkok Hilton, supra note 1 (“There are serial killers and multiple rapists locked up [in Bang Kwang]. But most prisoners are in for drug dealing offenses.”). 6 Frederik Balfour, In Thailand, a Leader Feels the Heat, BUSINESSWEEK, Oct. 12, 2004, available at http://www.businessweek.com/bwdaily/dnflash/oct2004/nf20041012_9993_db087.htm. 7 U.S. Dept. of State, Country Specific Information, Thailand (Nov. 6, 2007), available at http://travel.state.gov/travel/cis_pa_tw/cis/cis_1040.html. 8 See United Kingdom Foreign & Commonwealth Office, Country Profiles, Thailand (Oct. 29, 2007), available at http://www.fco.gov.uk/en/about-the-fco/country-profiles/asia-oceania/thailand?profile=all (“The Thai Government's 'Campaign against Drugs' in 2003 attracted adverse international attention. Although official figures record the deaths of over 2,600 people, including over 40 killed by the police, the Thai authorities claim that only a small number of these individuals were killed by the police, who were acting in self-defense, and that the remainder were killed by rival drug gangs or their own gang-leaders. Few if any of these deaths have been satisfactorily investigated.”); Amnesty International, Thailand: Extrajudicial Killing is not the Way to Suppress Drug Trafficking, (Feb. 20, 2003), available at http://www.amnesty.org/en/library/asset/ASA39/001/2003/en/dom-ASA390012003en.html (“The effect of the government's campaign against drugs trafficking has been a de facto shoot-to-kill policy of anyone believed to be involved in the drugs trade.”); Human Rights Watch, Human Rights Abuses in the War on
2 unsurprising, considering the active government campaign against drugs and harsh drug sentencing in Thailand—which commonly carry fifty years or life imprisonment, but can range from a minimum of twenty-five years to the death penalty9—that a majority of the general Thai prison population has been convicted of drug-related offenses.10
Confronted with a system and conditions so ostensibly appalling and dissimilar from the United States’ criminal justice system, our group traveled to Thailand to study a particular facet of the Thai criminal justice system: the treatment of and rights afforded to foreign (non-Thai) inmates awaiting trial or serving sentences in Thai prisons. In particular, we focused our research on the treatment and handling of detainees from
Western, English-speaking countries such as the United States, United Kingdom, Canada, and Australia because of the striking disparities between the Thai criminal justice system and the systems in the inmates’ home countries.11
We were particularly interested in the severity of Thai sentencing, especially for offenses carrying comparatively short prison time, probation, or a fine in most Western nations. For example, in Thailand, even first-time offenders found with 100 grams or
Drugs, available at http://www.hrw.org/reports/2004/thailand0704/4.htm (“In the first three-month phase of the crackdown that began on February 1, 2003, the Royal Thai Police reported that some 2,275 alleged drug criminals had been killed. Most were shot with handguns.). 9 This World: The Real Bangkok Hilton supra note 1. Thailand has not executed a prisoner since 2003, although over 900 inmates remain on death row in Thailand. See Death Penalty, Department of Corrections, Ministry of Justice, Thailand, http://www.correct.go.th/eng/deathpenalty.htm. Thailand executed four prisoners in 2003 and eleven prisoners in 2002 primarily for drug related offenses. See United Kingdom Foreign & Commonwealth Office, Country Profiles, Thailand (Oct. 29, 2007), available at http://www.fco.gov.uk/en/about-the-fco/country-profiles/asia-oceania/thailand?profile=all (“The Thai Government has used the death penalty as a high profile part of its fight against drugs. In 2002, there were 11 executions, mostly for drugs related offences. There were four executions in 2003 for murder and drugs related offences.”). 10 Thailand Department of Corrections: Statistics, available at http://www.correct.go.th/eng/Stat/statistic.htm#_Prison_Population_breakdown_by%20Type_1. 11 Within Thailand, the term “foreign prisoner” is more commonly understood to refer to the thousands of Burmese, Lao, Cambodian, and Vietnamese prisoners incarcerated in Thai jails. While the plight of these prisoners and both their home government and Thai government response would be a fascinating topic of study, we contained our research to prisoners of Western origin.
3 more of heroin can be sentenced to death or life imprisonment.12 However, the maximum punishment for a first-time offender caught with 100 grams of heroin under the United
States’ Federal Sentencing Guidelines is seventy-eight months (six and one-half years).13
To receive the minimum Thai sentence of twenty-five years for heroin trafficking, a first- time offender convicted on American soil would need to be caught with more than thirty kilograms of the drug.14 Moreover, it is not uncommon for accused prisoners in Thailand to spend several months, and in some cases years, in the general Thai prison population surrounded by the country’s most violent offenders, waiting to be brought to trial. This juxtaposition of seemingly minor offenses with a sluggish legal system prone to assigning lengthy jail sentences presents a fascinating research topic, not only for American law students, but also for anyone with more than a passing interest in prisoners’ basic human rights.
By traveling to Thailand our group sought first-hand insight on numerous topics including: Thai prisons and reported prison conditions, the adequacy of legal counsel for
Western prisoners, the role of outside sources of prisoner support (embassies, activists,
NGOs, friends), and the prison life of a non-Thai inmate. Through our research, we attempted to confirm or refute the depictions of the Thai criminal justice system that are presented by entertainment and journalistic media, by foreign governments (such as the
12 Mark Baker, Life or Death Verdict Looms for Heroin Convict, http://www.theage.com.au/articles/2003/06/06/1054700391521.html (“Under Thai law, offenders caught with more than 20 grams of heroin are treated as traffickers and face up to life imprisonment, while the threshold for the mandatory death penalty is 100 grams. But if a conspiracy to export drugs is established, the total seized is judged to be the amount handled by each offender.”). 13 U.S. Sentencing Guidelines Manual § 2D1.1 (2007). 14 Id. Interestingly, the thirty kilogram threshold is the highest amount of heroin specified by the Sentencing Guidelines and, for a first-time non-violent offender carries a maximum sentence of 293 months, or just shy of twenty-five and one-half years. Accordingly, to receive the minimum Thai sentence of twenty-five years for heroin trafficking, a first-time American offender would need to possess one or more “escalating” factors—such as use of a gun—in addition to possession of more than thirty kilograms (sixty-six pounds) of heroin.
4 United States Department of State and the United Kingdom’s Foreign & Commonwealth
Office), and by the Thai government. By comparing and contrasting the information and views provided by our interview subjects with the numerous reports and depictions of the
Thai system that we absorbed prior to our travel, we hoped to gain a practical understanding of the situation faced by a foreign prisoner through the entire criminal justice process, from arrest to trial, to incarceration, and release.
A. Foreign Representations of the Thai Criminal Justice System
1. The Western Media
A common conception of the Thai justice system might follow the typical story arch of a Hollywood movie depicting arrests and life in a Thai prison: tourists trust their luggage to a drug-planting cab driver, a routine airport search finds the narcotics, interrogations are conducted entirely in Thai, printed statements or confessions printed in
Thai are pushed upon the accused, and after a hasty trial with inadequate legal support, the accused lands in a deplorable prison facing an impossibly long sentence or the death penalty.15 Documentaries supply a similar, if only slightly different, view. In many documentaries, the depiction is of an impoverished Westerner living or traveling in
Thailand who agrees to transport drugs for debt relief or simply for paid transport back to their home country. After they are detained, the would-be drug courier confesses and pleads guilty in attempt to receive a more lenient sentence or to escape the death penalty only to land in a deplorable prison facing life imprisonment.16
While the origins of the drugs and the culpability of the accused may differ
15 th See BROKEDOWN PALACE (20 Century Fox 1999); BANGKOK HILTON (Kennedy Miller Productions 1989). 16 See This World: The Real Bangkok Hilton, supra note 1. See also Life in a Thai Jail—Thailand (Journeyman Pictures 1999), available at http://www.youtube.com/watch?v=lSiGyGS6u8M.
5 between the two types of film, numerous parts of the story remain constant: a drug trafficking-related offense, the presumption of guilt, a severe sentence, and horrific prison conditions. Andrew Hawke, a British prisoner serving a fifty-year sentence in Bang
Kwang, described his path into a Thai prison and his feelings about the length of his sentence in a BBC television interview:
Director: What led you to the decision to try to do this?
Andrew Hawke: Desperation. Financial and personal. I was homeless at the time [. . .] I really didn’t want to do it, everything screamed against me not to do it. But I went ahead and did it anyway. I was at the end of the rope, frankly . . . slowly getting drunk and somebody whispered over my shoulder, “I know a way you can make some money to get you out of your financial problems.” “What?” He said, “You can you can [sic] fly over and do a job for me over in Thailand. Give you some money be a tourist for a couple of weeks and fly back.” I said okay. That must have been about 3 or 4 in the morning. By half past two the next afternoon, hungover and pretty drunk, got taken to the airport and put on a plane. I was here. And once I was here I was pretty much committed because I didn’t have a return ticket or enough money to buy one for that matter. I was arrested right before I entered the aircraft. It was a metal detector thingy you’ve gotta to [sic] walk through. God knows what triggered it off. I just remember my heart going like a trip hammer and was waiting . . . I waited for at least a half an hour before the customs guy showed up. And they checked the stuff and one of the customs guy said that maybe it’s milk powder and I just looked at him and said yeah I bloody well hope so. But it wasn’t. Arrived here April fools day. Very funny.
Director: Hawke was sentenced to death, cut to 50 years when he pleaded guilty.
Andrew Hawke: I deserve to be punished, I certainly do. But the punishment is so severe.17
Hawke’s fellow inmate at Bang Kwang, Michael Connell, who escaped the death penalty in favor of a ninety-nine-year sentence by pleading guilty to bringing 3,400 ecstasy tablets into Thailand described the almost unfathomable prison conditions found at Bang Kwang:
17 This World: The Real Bangkok Hilton, supra note 1.
6 I’d say the beds are about that big--about 5 foot long--and me [sic] feet are always sticking over the bed. You are always touching someone in the room. It’s really hard. [. . .] There is [sic] a lot of people who are losing their minds. I am sleeping next to a guy now; he just walks around all day talking to himself. I’m in the room next to him at night, and I have seen a dog scratch less. Last night he was itching so much there must have been three different places bleeding from. And a week before he was bleeding again and he actually got blood on my bed.18
For these prisoners, the possibility of release or exoneration through the Thai justice system appears hopeless. Perhaps the 1999 film Brokedown Palace, in which an
American high school student portrayed by Claire Danes was wrongly incarcerated for drug trafficking, describes it best:
I actually believed if we could just hold on until the trial it would all be over soon, like a nightmare. See, I didn’t know then that it is all rigged here—like those birds in the marketplace that you think you are setting free when all the time they are trained to fly back to their cages. Because that’s all that freedom is—an illusion.19
2. Foreign Governments and NGOs
Criticism of the Thai criminal justice system and of Thai prison conditions have not all come from media sources. The United States Department of State has routinely criticized Thailand’s handling of accused criminals. In its 2007 report on human rights in
Thailand the State Department reported that
[Thai] security forces continued to use excessive, lethal force against criminal suspects and committed or were connected to numerous extrajudicial, arbitrary, and unlawful killings, including killings by security force personnel acting in a private capacity . . . According to the Ministry of Interior's Investigation and Legal Affairs Bureau, during the year[,] 751 persons died in prison or police custody, 52 due to the actions of police officers. Authorities attributed most of the deaths to natural causes.20
The Departments’ report also commented extensively on the availability of a quick and
18 Id. 19 th BROKEDOWN PALACE (20 Century Fox 1999). 20 United States Department of States, Country Reports on Human Rights Practices 2007, Thailand, available at http://www.state.gov/g/drl/rls/hrrpt/2007/100539.htm.
7 fair public trial as provided by the Thai constitution:
Although the judiciary generally was regarded as independent, it was subject to corruption and outside influences. According to human rights groups, the lack of progress in several high-profile cases involving alleged abuse by the police and military diminished the public's trust in the justice system and discouraged some victims of human rights abuses (or their families) from seeking justice.21 [. . .]
[Moreover, t]here is no trial by jury. [. . .] While most trials are public, the court may order a closed trial, particularly in cases involving national security, the royal family, children, or sexual abuse. [. . .] There is no discovery process, so lawyers and defendants do not have access to evidence prior to the trial.22
The Department’s report also made note of the lackluster prison conditions, and the lack of any segregated holding facilities for pretrial detainees:
Prison conditions were poor. Prisons and detention centers were overcrowded, with a population of approximately 167,000 inmates in facilities designed for 112,000 prisoners. Sleeping accommodations were insufficient, medical care was inadequate, and communicable diseases were widespread in some prisons.23 [. . .]
Approximately 25 percent of the prison population consisted of pretrial detainees, who were not segregated from the general prison population.24
B. Questions For Research
Amidst these depictions of the Thai justice system, our group identified four areas that would be of particular concern to non-Thai persons navigating the Thai system: policy, policing, courts, and prisons. In this paper, we attempt to assemble an overview of each of these areas as they relate specifically to foreigners. Part II examines the governmental policies shaping the Thai criminal justice system. Part III outlines the relevance and impact of these policies on foreigners who find themselves entangled in the
21 Id. 22 Id. 23 Id. 24 Id.
8 Thai legal system. Part IV studies Thai criminal procedures and describes the respective roles that police, defense lawyers, and judges play. Parts V and VI examine Thai sentencing practices and prison conditions, respectively. Part VII proposes several avenues for reforming Thailand’s criminal justice system. In the end, we conclude that while depictions of the Thai justice system may be fairly accurate, there is some evidence that the system is reforming not only as a result of the strain caused by increasing number of foreigners in the system, but also due to some endogenous factors, including a push for greater rehabilitation of drug offenders and the possibility of deportation rather than incarceration for certain crimes.
II. Government Policies
Given the harsh Western view of the Thai criminal justice system and the notorious corruption in Thailand’s police force, we began to wonder whether Thailand’s government policies reinforce or weaken this perspective. Although there is very little textual evidence that indicates what the central principles guiding Thai government policies are, our interviews reveal a striking tendency for the Thai government to act outside the judicial system when it comes to enforcing criminal laws. Given this tendency, as well as our knowledge of Thailand’s relatively severe sentencing practices, it becomes apparent that Thailand’s government policies are structured under a model of deterrence. This section explores the history of Thailand’s criminal justice system and its relevance in shaping the current government policies that underlie Thailand’s justice system.
A. Historical Development: Monarchical and Western Influences
Founded in the thirteenth century as a monarchy, Thailand’s legal system reflects
9 the development of a relationship between a king and his subjects. In the thirteenth century, this relationship exhibited paternalistic traits in which the “father” loving governed his “children,”25 and everyone was entitled to bring their disputes directly before the king.26 This view of the king’s legal authority began to evolve, however, from one derived from benevolent paternalism to one divined from the gods in the mid- fourteenth century.27 As the king became a god-like power with absolute authority,
Thailand began to look more like a feudal society; at the same time, justice began to take on stratified overtones. Although the king still heard some cases—particularly when they involved matters or persons closer to the royal court—he established the nation’s first
“court system”28 to investigate inquiries and adjudicate disputes for general matters on his behalf.29 These courts, however, were not governed by any formal standards of procedure, and law was often tenuously applied.30 Nevertheless, this court system served as the basis of Thailand’s criminal justice system over the next few centuries.31
Reforms to Thailand’s criminal justice system were instigated, in part, by Western influences. As Thailand developed stronger ties and conducted more business with
Western nations in the eighteenth century, Westerners made their opinions about the Thai criminal justice system known. They refused to be tried in Thai courts, citing the lack of procedural standards, the sluggish pace of proceedings, and pervasiveness of “cruel” and
“old-fashioned” punishments.32 Moreover, Thailand, by this time, had also adopted
25 BENJAWAN POOMSAN BECKER & ROENGSAK THONGKAEW, THAI LAW FOR FOREIGNERS 2 (2008) 26 Id. 27 Id. at 2–4. 28 Id. 29 Id. 30 Id. 31 Id. at 6. 32 Id. at 7.
10 Indian principles of jarit nakhonbaan, literally translated as “torturing the suspect until he confesses,” as the primary way of proving innocence in criminal cases33—a move that was abhorrent to Western conceptions of justice. As such, Western countries established their own courts in Thailand.34
In an attempt to reconcile these justice systems and revise the view of Thai justice around the world, the Thai government abolished royal justice—that is, prostration in front of the king—in the late nineteenth century and established a new “professional” legal system run by judges and lawyers who would be required to pass a standard legal exam in order to practice.35 Under this new system, every defendant would be entitled to a lawyer.36 Reforms continued into the early twentieth century, with the establishment of the Thai Legal Studies Council in 1916, which was commissioned with working to make
Thai law and the legal system consistent with those of other countries,37 and a shift from a common law to a code law system in 1924.38
Today, Thailand is a civil code jurisdiction with a fully integrated court system; foreigners in Thailand no longer have the privilege of a separate justice system.
Moreover, with the exception of laws regarding access to interpreters, there are no criminal laws that specifically expand or restrict foreigners’ rights. And although
Thailand’s monarch is no longer the arbiter of disputes, there are still a few vestiges of the royal connection to justice. Each of Thailand’s national constitutions in recent history—with the exception of the short-lived 2006 Constitution of Thailand, which was
33 Id. 34 Id. 35 Id.; The Judiciary of Thailand (English), available at http://www.judiciary.go.th/eng/thejudiciary.htm. 36 BECKER & THONGKAEW, supra note 25, at 7. 37 Id. at 8. 38 Id. at 8.
11 replaced in 2007—have provided that “[t]he trial and adjudication of cases are the power of the Courts,” but are conducted “in the name of the King” (emphasis added).39 The current constitution also requires judges to take loyalty oaths to the king before taking office.40 Nevertheless, Thailand’s clear movement away from royal justice towards a more uniform and professional legal system suggests that its legal system has been adapted to be more accommodating to international legal and procedural standards. As such, we might expect more flexibility when it comes to criminal enforcement matters involving foreigners. However, our research indicates that many of the same concerns that existed three centuries ago—regarding “loose” procedural standards, slow proceedings, and disproportionately harsh punishments—still exist today.
B. Principles Guiding Government Policy On Criminal Justice Matters
Although Thailand’s legal reforms, in the past, have been motivated by a desire to match international standards, there is little evidence to suggest that these are the motivations that drive government policies and reforms in the criminal justice system today. What, then, are the modern principles that guide Thai government policy on criminal justice matters? In order to answer this question, we examined two sources of information: the language used by the Thai government to reflect the purposes of the criminal justice system and the policies and actions taken by the national government.
39 Constitution of the Kingdom of Thailand 2007, Chapter X, Part 1, Section 197, available at http://www.asianlii.org/th/legis/const/2007/1.html#C10; Thailand, Constitution of the Kingdom of Thailand, available at http://www.parliament.go.th/files/library/b05-b.htm; Constitution of the Kingdom of Thailand 1997, Chapter VIII, Part 1, Section 233, available at http://www.asianlii.org/th/legis/const/1997/1.html#C008. 40 Constitution of the Kingdom of Thailand 2007, Chapter X, Part 1, Section 201, available at http://www.asianlii.org/th/legis/const/2007/1.html#C10 (“I, (name of the declarer) do solemnly declare that I will be loyal to His Majesty the King and will faithfully perform my duty in the name of the King without any partiality in the interest of justice, of the people and of the public order of the Kingdom. I will also uphold and observe the democratic regime of government with the King as Head of the State, the Constitution of the Kingdom of Thailand and the law in every respect.”).
12 1. The Textual Evidence
We examined the language used by three important and relevant actors in the Thai criminal justice system: the Office of the Judiciary, the 2007 Constitution of Thailand, and the Department of Corrections. However, a textual analysis revealed very little about the principles underlying the Thai concept of justice. Where representations were made, they were often ambiguous; at other times, our research (discussed in Part II.B.2) suggested that some of the representations were somewhat misleading. Overall, the amount of textual evidence available to us that could elucidate the principles guiding the
Thai government’s actions with regard to criminal defendants was underwhelming.
The first source we examined were statements issued by Thailand’s Office of the
Judiciary, which serves as the independent secretariat to the Courts of Justice and reports directly to the President of the Supreme Court. However, any clarity that the Office could provide was somewhat obscured by the overweening administrative focus of the
Office of the Judiciary. According to the Office of the Judiciary, the mission of the
Office of the Judiciary is
laying down policies concerning personnel, budget, and development plan in compliance with the principle of the Good Governance; serving as a secretary to the Judicial Commission, the Judicial Administration Commission, and the Commission for Judicial Service; recruiting qualified judges and judicial officials as well as developing the work potential and skills of those persons systematically and continuously; promoting research programs for the development of laws and system of the Courts of Justice; monitoring and evaluating the output of works, defining the effective indicators and unit cost; [and] cooperating with other relevant agencies for the purpose of human right protections.41
Although these goals are certainly merit-worthy, none speak to the philosophy underlying
Thailand’s conception of justice itself. The Office’s vision statement was equally
41 The Judiciary of Thailand (English), available at http://www.judiciary.go.th/eng/thejudiciary.htm.
13 unhelpful:
[We hope to see that by 2012,] the Courts of Justice will be an intelligence organization with systematic and efficient judicial and administrative works. This aim will be pursued with honesty, impartiality, equality, rightfulness, convenience, speed and modern [sic] in accordance with international standards towards leadership as a model in justice process, legal academic and services, ethic and virtue widely recognized domestically and internationally.42
We next compared and contrasted Thailand’s various constitutions and the guarantees provided to criminal defendants. Because Thailand has rewritten and replaced its national constitutions so frequently, each of its constitutions is arguably a gauge of the government policies that underlie each executive administration. In making this assumption, it is notable that the 2007 Constitution eliminated the many rights granted to criminal defendants in the 1997 Constitution. Whereas suspects and defendants were constitutionally guaranteed a plethora of rights under the 1997 Constitution—including the rights to be informed of the charges against them, to notify others of their arrest, to have their detention reviewed by a court within forty-eight hours of their arrest, and to be arrested only where there is reasonable evidence that they have committed a crime;43 the right to be free of an unreasonable search in a “private place”;44 the right to a bail that is not excessive, unless bail can be refused as a matter of law;45 the right to have an allegedly unlawful detention reviewed by a court;46 the rights to “a speedy, continuous and fair inquiry or trial,” to a lawyer in the interrogation room, to inspect a copy of his statements and the investigation files held by the public prosecutor, and to know the
42 Id. 43 Constitution of the Kingdom of Thailand 1997, Chapter VIII, Part 1, § 237, available at http://www.parliament.go.th/files/library/b05-b.htm. 44 Id. § 238. 45 Id. § 239. 46 Id. § 240.
14 evidence against him and the opinion of the prosecutor;47 the right to have a lawyer and the government’s assistance in securing one;48 the right to be protected against self- incrimination, especially if deceit, physical force, or other unlawful inducement is involved;49 the right to appropriate compensation if found innocent;50 and the right to appeal a criminal punishment51—criminal defendants under the current Constitution have only a few dedicated rights. Section 39 of the Thai Constitution dictates that the accused shall be subject to the laws enacted at the time of offence, presumed innocent, and shall not be treated as a convict until proven guilty.52 Section 40 provides accused criminals the rights of easy, comfortable, quick, and indiscriminant access to the judicial process; the right to public trial; the right to prompt and fair trial; and the right to defend their case.53 The diminution in the number of rights that suspects and criminal defendants hold under the current Constitution suggests that the current administration is more concerned with bolstering the power of law enforcement officials, and less concerned with protecting innocent suspects or the integrity of the legal process.
Perhaps the clearest picture of government policy, however, can be gleaned by the statements issued by Thailand’s Department of Corrections, whose official vision is “[t]o take the offenders in custody with professional skills and [t]o rehabilitate them with meaningful and effective activities.”54 It further expounds upon this rehabilitation- oriented message in a six-part mission statement—a statement that would not be entirely
47 Id. § 241. 48 Id. § 242. 49 Id. § 243. 50 Id. § 246. 51 Id. § 247. 52 Constitution of the Kingdom of Thailand 2007, Chapter III, Part 4, § 39, available at http://www.asianlii.org/th/legis/const/2007/1.html#C03P04. 53 Id. § 40. 54 Thailand Department of Corrections: Vision, available at http://www.correct.go.th/eng/vision.htm.
15 out of place in many Western corrections systems. Among the goals sought by the Thai corrections system are community protection, convict rehabilitation, alternative program development, prison conditions matching United Nations standards, development of non- imprisonment programs, and continuing the development and promotion of knowledge about corrections techniques.55 To that end, the Department of Corrections website provides several examples of what might be considered progressive rehabilitation, treatment, and vocational programs.56
While it appears from these statements that rehabilitation is a central goal of
Thailand’s criminal justice system, the Department has also offered other statements that appear inconsistent with this message. For example, in discussing its reasons for maintaining the death penalty, the Department argues:
55 Thailand, Department of Corrections, Mission, available at http://www.correct.go.th/mission.htm. Compare id. (“To provide public protection by keeping the offenders in custody and by aiding the prevention of recidivism. Responsibilities 1. To provide a level of supervision and custody that offers maximum protection to the community 2. To rehabilitate convicted offenders in order to achieve a successful adjustment upon their return to society 3. To provide various alternative programs for convicted offenders 4. To provide institutional environment that is consistent with the United Nation standard minimum rules for the treatment of prisoners and related recommendation so far as existing circumstances allow 5. To reduce overcrowding by encouraging the use of various alternative non imprisonment programs for the offenders who are not suitable for institutional confinement 6. To promote the knowledge of correctional techniques through systematic evaluation and research), with State of Illinois, Department of Corrections, Mission Statement, available at http://www.idoc.state.il.us/mission_statement.shtml (“The mission of the Department of Corrections is to protect the public from criminal offenders through a system of incarceration and supervision which securely segregates offenders from society, assures offenders of their constitutional rights and maintains programs to enhance the success of offenders' reentry into society.”). 56 See UNESCO Institute for Education, Liberation Through Education, available at http://www.correct.go.th/temp_image/inmate.htm (highlighting education programs in Thai prisons); Dhamma for Rehabilitation, NATION, available at http://www.correct.go.th/temp_image/dunang1.htm (detailing a collaborative effort between Buddhist monks and prison officials to instill positive values in prisoners); Live and Learn (Thailand Department of Corrections), video available at http://www.youtube.com/watch?v=p4QFzOF_LXg.
16 It is believed that to enforce the death penalty is an effective way to prove credibly that any heinous wrongdoers is unacceptable and should be removed from the society . . .57
Many surveys relating to public's attitudes towards the death penalty revealed that it is still necessary to carry out the death penalty in the country. Some major reasons are: • [The] Death Penalty has been a significant tool for tackling high rate of serious crimes[;] • [The] Death Penalty can result in reducing negative effects and violence from victims’ retribution[; and] • [The] Death Penalty is a special deterrent to prevent heinous criminals that thereby fosters social safety[.]58
This absence of a coherent government policy to address criminal justice matters places considerable power in the hands of the national government and each administration in power. More must be done not only to create stable policies, but also to articulate consistent goals.
2. The Reality: Deterrence
Although the statements promulgated by official actors in the Thai criminal justice system appear to be ambiguous, our research indicates that deterrence plays a central role in shaping governmental policies on criminal matters. Our research drew upon information in two particular areas: sentencing practices and government enforcement policies.
Nowhere is Thailand’s policy of deterrence more obvious, perhaps, than in
Thailand’s sentencing practices, which seem markedly more severe than sentencing practices in Western countries. Although examples of the differences between Thai and
Western sentencing practices are sprinkled throughout this paper, particularly in Parts I and III, perhaps the most notable differences are those that pertain to drug laws. As
57 Thailand Department of Corrections: Death Penalty, available at http://www.correct.go.th/eng/deathpenalty.htm. 58 Id.
17 mentioned previously, drug-related offenses—even for first-time offenders—carry sentences ranging from twenty-five years to the death penalty in Thailand,59 whereas the same offense may carry six and one-half years in the United States.60 Moreover, although Thailand allows for a wide range of penalties in criminal matters—from fines and confiscation of property to incarceration, detention (also known as “house arrest”), and execution61—sentences that involve neither a fine nor incarceration are rare.62 Most often, convicted criminals receive sentences that combine fines with incarceration; if the convict does not have enough money to pay the fine, they are incarcerated to pay off the debt at a rate of 200 baht per day, which is roughly equivalent to $6.50.
Government enforcement policies also reveal a deterrent character—if not a sinister side—to the Thai criminal justice system. These policies revolve around the evidentiary support required to prosecute suspected criminals. Although evidence is necessary to any prosecution-related decision, much less to a finding of guilt, there are many factors that can influence the integrity of the evidence against the defendant. More will be discussed on this point elsewhere in this paper.63 Where evidence is lacking, however, the Thai government has occasionally pursued other policies that obviate the need to create a body of evidence and avert long investigation and prosecution processes; these policies often seem to rely on questionable law enforcement tactics.
One notable example of these policies is the policy instituted by Prime Minister
Thaksin Shinawtra, via executive order, during his “war on drugs” campaign. The policy
59 This World: The Real Bangkok Hilton, supra note 1. 60 U.S. Sentencing Guidelines Manual § 2D1.1 (2007). 61 BECKER & THONGKAEW, supra note 25, at 32; Thailand—Criminal Code, available at http://www.country-data.com/cgi-bin/query/r-13818.html. 62 BECKER & THONGKAEW, supra note 25, at 32. 63 See infra Part IV.
18 was simple, designed not only to circumvent the need to get evidence to convict offenders—which was often nearly impossible—but also to deter others from engaging in the drug trade.64 In short, police officers were encouraged to “eliminate” as many suspected drug dealers, by whatever means possible.65 In return, officers would receive financial incentives, such as bonuses, the amount of which were tied to the size of the
“taking.”66 The financial rewards could be huge, leading Prime Minister Thaksin to boast that “at three Baht per methamphetamine tablet seized, a government official can become a millionaire by upholding the law, instead of begging for kickbacks from the scum of society.”67 On the other hand, police officers who failed to engage in these activities or
“produce evidence of success” risked transfer, demotion, or unemployment.68 As a result of this policy, most sources have estimated that about 2,000 to 3,000 people were killed.69
64 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 65 Id. Mr. Piched is a former public prosecutor in Thailand. 66 Meryam Dabhoiwala, A Chronology of Thailand’s “War on Drugs” (June 2003), available at http://www.article2.org/mainfile.php/0203/84/. 67 Id. 68 Id. 69 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008); e-mail interview with Byron Bales (Mar. 1, 2008). See United Kingdom Foreign & Commonwealth Office, Country Profiles, Thailand (Oct. 29, 2007), available at http://www.fco.gov.uk/en/about-the-fco/country-profiles/asia- oceania/thailand?profile=all (“The Thai Government's ‘Campaign against Drugs’ in 2003 attracted adverse international attention. Although official figures record the deaths of over 2,600 people, including over 40 killed by the police, the Thai authorities claim that only a small number of these individuals were killed by the police, who were acting in self-defense, and that the remainder were killed by rival drug gangs or their own gang-leaders. Few if any of these deaths have been satisfactorily investigated.”); Susanne Ilchman, Thousands Dead as a Result of Thailand’s “War on Drugs” (May 9, 2003), available at http://www.wsws.org/articles/2003/may2003/thai-m09.shtml; Amnesty International, Thailand: Extrajudicial Killing Is Not the Way to Suppress Drug Trafficking, (Feb. 20, 2003), available at http://www.amnesty.org/en/library/asset/ASA39/001/2003/en/dom-ASA390012003en.html (“The effect of the government's campaign against drugs trafficking has been a de facto shoot-to-kill policy of anyone believed to be involved in the drugs trade.”); Human Rights Watch, Human Rights Abuses in the War on Drugs, available at http://www.hrw.org/reports/2004/thailand0704/4.htm (“In the first three-month phase of the crackdown that began on February 1, 2003, the Royal Thai Police reported that some 2,275 alleged drug criminals had been killed. Most were shot with handguns.”).
19 These deaths were also driven, in part, by severe interprovincial competition.70
Under the Thaksin regime, national administrators would meet monthly with provincial governors from each of Thailand’s seventy-six provinces to monitor drug enforcement records.71 Those who failed to fill government quotas were duly warned by the Interior
Minister:
Any provincial governor or police chief who continues to take it easy . . . is weighing down the government's war against drugs. They should check out history books about what King Naresuan did to his generals who failed to keep up with him on the battleground. The King had all of them beheaded.72
Although Prime Minister Thaksin Shinawtra’s administration ended with the military coup in September 2006,73 and although the new government has established a special governmental committee to investigate these killings, the Thaksin government’s accountability is questionable; the former Attorney General under Thaksin has been appointed to head the committee.74
Moreover, many of these enforcement policies still have large public support, and there are indications that such policies may be renewed by the new administration.
Recently, new Prime Minister, Samak Sundaravej announced a new “war on drugs” in
Thailand: “My government will decisively implement a policy against drug trafficking.
Government officials must implement this policy 24 hours a day, but I will not set a
70 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008); Meryam Dabhoiwala, A Chronology of Thailand’s “War on Drugs” (June 2003), available at http://www.article2.org/mainfile.php/0203/84/. 71 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 72 Meryam Dabhoiwala, A Chronology of Thailand’s “War on Drugs,” June 2003, available at http://www.article2.org/mainfile.php/0203/84/. 73 Associated Press, Thai Military Launches Coup Against PM, Sept. 19, 2006, available at http://www.msnbc.msn.com/id/14906669/. 74 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008).
20 target for how many people should die.”75 Interior Minister, Chalerm Yubamrung further commented: “When we implement a policy that may bring 3,000 to 4,000 bodies, we will do it.”76
As the Thai government escalates its “tough talk” and “zero tolerance” policies concerning drug traffickers, the Thai people and politicians continue to grapple over the rights that should be afforded to accused criminals—including drug traffickers—in
Thailand.77 However, with these issues unresolved, deterrence remains the primary theoretical justification underlying Thailand’s criminal justice policies.
There is evidence of small change in some areas, however. Beginning approximately two years ago (with the coup), the new government instituted a policy that appears to promote rehabilitation—rather than incarceration—for drug users.78 However, one of our sources suggested that this change was realized not because of any weakening in the deterrence justification, but, in part, because of it. Previously, both drug dealers and drug users were thrown in prisons together, serving sentences side by side.79 This changed, however, when government officials began to notice not only high rates of recidivism, but also that drug users were returning to prison as drug dealers.80 They realized that throwing these populations in prison together was aggravating the drug trade problem: while in prison, drug dealers were networking with drug users, often recruiting
75 Thomas Bell, Thailand Threat to Shoot 4,000 in Drug War, DAILY TELEGRAPH, Feb. 26, 2008, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/02/23/wthai123.xml. 76 Id. 77 See Marwaan Macan-Markar, Constitution Changes for Thailand, ASIA TIMES, Apr. 11, 2008, available at http://www.atimes.com/atimes/Southeast_Asia/JD11Ae01.html. 78 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 79 Id. 80 Id.
21 them to help with the drug trade.81
Finally, any discussion of the principles guiding Thailand’s criminal law enforcement would be incomplete without a discussion of pardons. In Thailand, it is the king who is empowered with granting amnesty to prisoners.82 As such, there are traditionally two kinds of amnesty in Thailand: (1) general pardons—which are granted on special days with royal significance, such as the King or Queen’s birthdays, to large segments of the prison population, excluding those who have committed serious drug- related crimes; and (2) specific pardons—which are granted to specific individuals by petition when they become very old or sick and have served a significant amount of their sentence.83 The reasons underlying these amnesty decisions, however, do not weaken the deterrence justification embedded within the Thai criminal justice code and governmental policies; rather, because the motivation behind amnesty is to relieve overcrowding,84 the amnesty framework may be viewed as empowering harsh sentencing practices.
III. The Relevance of Thai Criminal Policies on Foreigners
Given that there are no explicit laws that pertain to the treatment or rights of foreigners in Thailand, the harsh penalties that accompany a deterrence framework may be relatively surprising to Westerners who become criminal defendants in the Thai justice system. As compared to Thai penalties, penalties in Western countries may appear relatively more forgiving.85
Moreover, as compared to Thai sentencing, Western countries generally
81 Id. 82 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 83 Id. 84 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 85 See supra Parts I and II.B.2; Life in a Thai Jail—Thailand (Journeyman Pictures 1999), available at http://youtube.com/watch?v=lSiGyGS6u8M.
22 discriminate to a greater degree among types of offenses as they relate to sentencing. For example, the Thai criminal code categorizes libel, actions against the royal family, crimes against Buddhism, acts against public order and safety, sexual offenses, crimes against the person, and crimes against property as among the felonies that can provoke decades- long sentences or even the death penalty.86 Depending on the severity of the crime,
Western countries may classify many of the crimes falling within these categories as misdemeanors—if they are considered a crime at all.
In some cases, these differences have sparked indignation by the international community and embarrassment for the Thai government. One recent example, involving a fifty-seven year old Swiss national who plead guilty to drunkenly spray-painting over images of the Thai king (a felony) grabbed international headlines when it was announced that he faced a potential sentence of seventy-five years’ imprisonment.87
However, pressure by the international community, led by the media, and the defendant’s admission of guilt led to a reduced sentence of ten years.88 This tension between international and Thai views of justice percolates throughout the Thai criminal justice
86 Thailand—Criminal Code, available at http://www.country-data.com/cgi-bin/query/r-13818.html. Thailand’s Criminal Code classifies the following twelve types of offenses as felonies: (a) crimes against the security of the kingdom, including those against the royal family, treason, espionage, and acts that damage friendly relations with foreign countries; (b) crimes relating to public administration, such as malfeasance in office and offenses against public officials; (c) crimes relating to justice, such as perjury or offenses against the police or the judiciary; (d) crimes against Buddhism; (e) acts against public order and safety; (f) offenses relating to the counterfeiting of money, seals, stamps, and documents; (g) crimes against trade, including the use of false weights and measures and misrepresentation of goods; (h) sexual offenses; (i) crimes against the person; (j) crimes against liberty and reputation, such as false imprisonment, kidnapping, and libel; (k) crimes against property; and (l) offenses such as misappropriation and receipt of stolen property. Id. 87 See BBC News, Swiss Man Admits to Thai King Insult, Mar. 12, 2007, available at http://news.bbc.co.uk/2/hi/asia-pacific/6440645.stm; 88 See id.; Associated Press, Swiss Man Insults Thai King, Lands 10-Year Jail Term (Mar. 2007), available at http://www.cbc.ca/world/story/2007/03/29/thai-insult-070329.html (“Bangkok's Criminal Court said its national database, which goes back a decade, showed that no foreigner had been convicted of lese majeste [insulting the monarchy] charges in at least 10 years. A handful of foreigners have faced similar charges in the past, but most eventually were deported to their home countries.”)
23 system.
A. The Treatment of “Foreign” Crimes
Despite the Western view of Thai law as overly harsh, the enforcement of Thai law is driven, in part, by Thai perceptions of certain crimes. For example, one of our sources—a former public prosecutor in Thailand—indicated to us that while murder was viewed as a serious crime, some forms of murder are regarded more heinously than others and provoke stiffer penalties—usually because of their association with foreigners and “lower-class” persons.89 He indicated that
One to two percent of major crimes in Thailand are by foreigners, usually Burmese or Laotian . . . Many come to work as maids in houses here, and a few kill the families and try to steal money [. . .] The way they commit murder is different. They kill with knives; it’s more serious, more personal [. . .] It’s not like with guns.90
He further indicated that these types of murderers are more likely to receive the death sentence, in part because of pressure applied by the public.
Other “low-class” crimes receive similarly strict enforcement and harsh sentencing; among these are the drug-related crimes.91 Given this tendency to impose harsher penalties, it is not surprising that 60% of all prisoners, and nearly half of all foreign prisoners, are in prison for violating narcotics laws.92 Looking strictly at Western prisoners, the statistics closely mirror those of the general population; about 60% of all
Western prisoners are in prison for drug-related crimes.93 In the spectrum of drug-related crimes, however, Westerners tend to engage in more serious violations of Thai narcotics
89 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 90 Id. 91 BECKER & THONGKAEW, supra note 25, at 110. 92 Id. 93 Id.
24 laws. Whereas Thai citizens are more often prosecuted for drug use and addiction,94
Westerners are more likely to be prosecuted for drug trafficking,95 which carries exponentially stiffer penalties.
Foreign Prisoners by Offense (2006) Type of Offense Percentage Violation of Narcotics Laws 48.2 Violation of Immigration Laws 29.6 Property-Related 6.1 Risking Life, Injury to Others 5.3 Perjury, Fake Documents 4.2 Violation of Forest Law 2.4 Sexual Assault 0.9 Violation of Firearms Law 0.5 Others 2.8 Total 100.0 (Source: Thai Law For Foreigners (2008), p. 112)
Western Prisoners by Offense (2006) Type of Offense Percentage Violation of Narcotics Laws 60.0 Perjury, Fake Documents 12.2 Property-Related 11.0 Risking Life, Injury to Others 7.7 Violation of Immigration Laws 2.6 Sexual Assault 2.6 Other 3.9 Total 100.0 (Source: Thai Law For Foreigners (2008), p. 113)
Strict enforcement of Thai drug laws is not driven solely by Thai perceptions, however. Thai drug enforcement agencies also seek and receive assistance from
94 Interview with Panrit Daoruang in Samut Prakan, Thailand (Mar. 20, 2008); see generally PANRIT “GOR” DAORUANG, GOR’S THAILAND LIFE (2007). 95 See e.g., Life in a Thai Jail—Thailand (Journeyman Pictures 1999), available at http://www.youtube.com/watch?v=lSiGyGS6u8M.
25 international agencies;96 one of the most notable of their partners is the United States
Drug Enforcement Agency (USDEA). According to one American private investigator living in Thailand, if the USDEA gets involved,
that American can pretty much kiss his ass goodbye, because the [US]DEA will make certain that the Thai police don’t take bribes on certain cases because the [US]DEA wants the (Action Report) credit. A long list of solid cases earns the [US]DEA guys extra time over here, and that's pretty much all they care about. It's called a Hardship Posting, which is absurd; U.S. Government employees and most other Americans [are able to] live better [in Thailand than they ever could] live in the States….97
This incentive structure complements the deterrent principles underlying the Thai criminal justice system by encouraging DEA officials to seek out more and stricter enforcement of drug-related laws.
B. Bilateral Prison Transfer Treaties
Although the treatment and enforcement of “foreign” crimes are relatively strict, the Thai government maintains several bilateral treaties that may mitigate their impact on foreigners. Under the Thailand Legislation Procedure for Cooperation between States in the Execution of Penal Sentences Act, “foreign nationals convicted of a crime in Thailand
[ . . .] may apply for a prisoner transfer to their home country if a treaty providing for such transfer is in force between Thailand and the foreign country involved.”98 As a result, the number of foreigners incarcerated in Thai prisons system represents a smaller amount than the number of foreigners actually convicted and sentenced through the Thai criminal justice system. This disparity is particularly noticeable with regard to Western prisoners in Thai prisons.
96 National Efforts to Control Narcotics, THAI ILLUSTRATED MAGAZINE, available at http://thailand.prd.go.th/ebook_bak/story.php?idmag=19&idstory=128. 97 E-mail interview with Byron Bales (Mar. 1, 2008). 98 Thailand Department of Corrections: International Transfer of Prisoners, available at http://www.correct.go.th/eng/Transfer/transfer.htm.
26 Foreign Prisoners by Nationality (2006) Rank Country Number Rank Country Number 1 Burma 5,913 16 Indonesia 42 2 Cambodia 2,310 17 UK * 41 3 Laos 2,217 18 Bangladesh 35 4 Mayalsia 431 19 Iran 34 5 China 292 20 Japan 28 6 Other 245 21 Philippines * 28 7 Singapore 109 22 Korea 21 8 Taiwan 109 23 South Africa 19 9 Nigeria * 87 24 Congo 17 10 Hong Kong * 72 25 Germany * 16 11 India 64 26 France * 16 12 Pakistan 57 27 Sri Lanka 16 13 Ghana 55 28 USA * 14 14 Nepal 53 29 Netherlands * 13 15 Vietnam 47 30 Australia * 11 (Source: Thai Law For Foreigners (2008), p. 112) * Bilateral prison transfer treaty arrangement
Currently, Thailand maintains bilateral prisoner transfer treaty agreements with
twenty-four—mostly Western—nations, including Australia, Austria, Canada, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Hong Kong, Israel, Italy, Mali,
Nigeria, Netherlands, Norway, the Philippines, Poland, Portugal, Spain, Sweden,
Switzerland, U.S.A., and the United Kingdom.99 It is also in the process of negotiating
similar treaties with Vietnam, China, Belgium, and Cambodia.100 These treaties allow
convicted prisoners, upon petition, to be transferred to prisons in their home country after
they have served a certain amount of their sentence in Thailand.
Although the bilateral treaty arrangements obligate the home countries to
maintain the terms of the transferred prisoners’ Thai sentences, actual enforcement of this
99 Id. 100 Id.
27 policy differs from country to country.101 A couple of our sources indicated that the
United States, on the one hand, is more likely to commute a sentence imposed by a Thai judge.102 On the other hand, the United Kingdom is more likely to strictly enforce a Thai sentence,103 although there are some exceptions.104
Convicted Prisoners Transferred To Their Home Country (2006) Rank Country Number 1 Nigeria 395 2 Hong Kong 83 3 USA 75 4 Spain 33 5 France 29 6 UK 28 7 Germany 18 8 Canada 17 9 Sweden 15 10 Italy 7 11 Switzerland 6 12 Estonia 5 13 Denmark 3 14 Australia 3 15 Israel 3 16 Austria 2 17 Norway 1 Total 734 (Source: Thai Law For Foreigners (2008), p. 113)
Of the 12,528 foreign prisoners in Thai jails in 2006, 734 convicted prisoners— roughly six percent of the entire foreign prisoner population—were transferred to prisons
101 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 102 Id.; interview with Jiles Ungpakorn, in Bangkok, Thailand (Mar. 21, 2008). 103 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008); interview with Jiles Ungpakorn, in Bangkok, Thailand (Mar. 21, 2008). 104 See Gordon Currie, Fury as Drug Smuggler Freed from Thai Jail is Caught with Heroin, SUNDAY MAIL (GLASGOW, SCOTLAND), Apr. 20, 2008, available at http://www.sundaymail.co.uk/news/scottish- news/2008/04/20/fury-as-drug-smuggler-freed-from-thai-jail-is-caught-with-heroin-78057-20388346/.
28 105 in their home countries.
IV. Criminal Procedure in Thailand
Given government policies governing criminal enforcement in Thailand, it comes as no surprise that criminal defendants, particularly foreign criminal defendants, are unquestionably disadvantaged in the Thai criminal justice system. Problems begin at the evidence-gathering stage, when the immense power that Thailand’s police force wields over the criminal justice system and the endemic corruption become most readily apparent. In addition, foreign criminal defendants face challenges in communicating with their attorneys and mounting legitimate defenses for themselves in court. Finally, the trial process itself is unfavorable to foreign criminal defendants, as it is conducted entirely in Thai and subject to a trial record controlled entirely by the presiding judge.
A. The Role of the Police
The police in Thailand exert far more authority over the process of prosecuting criminals than the United States’ police exerts in our criminal justice system. The police have three main avenues by which to exert this control: apprehension of criminals, control of evidence, and recommendation to prosecute.
1. Apprehension of Criminals
As in the United States, Thai police are the first line of defense for apprehending violators of Thai laws. Also, as in the United States, different branches of the Thai police are responsible for enforcing different facets of those laws. However, these internal divisions in the police force have created wide disparities in how the law is enforced with regard to certain populations and to geography. One of our interview contacts (who
105 BECKER & THONGKAEW, supra note 25, at 113.
29 wished to remain anonymous) told us that while certain subsections of the police, such as the Tourist Police, are regarded as relatively trustworthy, others, such as the Provincial
Police, are viewed as corrupt and “mafia-esque.”106 Our source particularly singled out the Chonburi province, which lies in close proximity to Bangkok, as being plagued with police brutality and rampant corruption.107
While the relative integrity of the Tourist Police may seem promising for the treatment of foreigners in Thailand, tourists have no guarantee that the Tourist Police will be the officers who apprehend them if they encounter legal trouble—especially in situations where the police themselves are involved in creating it. For example, one common scam cited by one of our sources involves roadside cops who flag down motorists for a driving violation, which may be real or imagined. These alleged violations commonly consist of an illegal U-turn that ordinarily drivers perform without
106 Telephone interview with anonymous source, in Bangkok, Thailand (Mar. 18, 2008); see also The Thai Police: A Law unto Themselves, ECONOMIST, Apr. 17, 2008, available at http://www.economist.com/world/asia/displaystory.cfm?story_id=11058580 (reporting incidents of police corruption in Thailand, many of which involved high-ranking officials). The reliance of recent prime ministers (Thaksin Shinawtra, previously, and now Samak Sundaravej) on the police as a means of bolstering their official power helps to legitimize police corruption and prevents remedial measures, like an independent police-complaints board, from being introduced. Id. 107 Telephone interview with anonymous source, in Bangkok, Thailand (Mar. 18, 2008). Other news outlets seem to support our source’s statements. See, e.g., Asian Human Rights Commission, Thailand: Extremely Brutal Torture of a Man at Chonburi Provincial Police Station, June 23, 2005, available at http://www.ahrchk.net/ua/mainfile.php/2005/1138/ (stating that a suspect in custody was “repeatedly electrocuted on his testicles and groin over about four hours and also beaten on his body with a stick” in an effort to extract a confession). Police reputation and accuracy in Chonburi seems questionable at best; a recent investigation into the deaths of two Korean tourists seems to indicate if not a police conspiracy to hide the identity of the women’s attacker, at the very least a lack of investment in a thorough pursuit of realistic outcomes. Compare Investigation Closed in Korean Death Case from Larn Island, PATTAYA CITY NEWS, Apr. 16, 2008, available at http://www.pattayacitynews.net/news_16_04_51.html (reporting that the police have closed the case in the deaths of two Korean tourists in Pattaya, a vacation destination in Chonburi Province, as “self-inflicted following a night of heavy drinking”), with Two Korean Girls Murdered on Koh Larn, Pattaya, PATTAYA DAILY NEWS, Apr. 12, 2008, available at http://www.pattayadailynews.com/shownews.php?IDNEWS=0000005666 (noting that initial police reports stated that “the victims must [have been] attacked and robbed by at least two people, by hitting a hard object on their heads”).
30 incident, or “illegally” driving in the wrong lane.108 Once the driver pulls off the road, the officer confiscates the driver’s license and demands some fee (often anywhere from
300-1000 baht) to receive the license back immediately rather than having to go down to the police station for a ticket. For expediency’s sake, the driver will likely consent to the fee, which goes no farther than the officer’s own pocket.
The police target tourists (or, at the very least, farang-looking people) for these scams because they are most likely to be unfamiliar with Thai driving regulations or are simply terrified of the prospect of incarceration in a Thai prison and are, therefore, most willing to pay the “fine.” Some savvy tourists have taken matters into their own hands to avoid paying these bribes at all;109 however, the reality is that most victims of this scam have no choice but to pay, reinforcing the cycle of corruption.
Corruption is rampant in Thai police ranks because of the low salaries paid to policemen;110 an average Thai cop receives approximately $500 a month in salary
(16,000 baht).111 Because of their low salaries, the Thai police have a great incentive to engage in corrupt practices to supplement their income. As one source told us, “The
108 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008). 109 See, e.g., The Traveling Guys, http://www.travelingguys.com (Aug. 28, 2006) (relating a story of tourists being flagged down on their motorcycles by Thai police for an invented driving violation, having the police confiscate their licenses and demanding 900 Baht for their return). Interestingly, these tourists attempted at first to wait for the Tourist Police to arrive to help them out of their predicament, which so agitated the roadside policeman that he insisted that the tourists accompany him immediately to his police station. Id. A neat bit of driving allowed the tourists to escape without paying the fine, though they did abandon their licenses. Id. 110 Telephone interview with anonymous source, in Bangkok, Thailand (Mar. 18, 2008). 111 Posting of Stephen Cleary to Thai-Blogs, http://www.thai-blogs.com (Feb. 17, 2008, 12:52 THA) (“My present salary is approx. 12,000 baht, then I get 3,000 danger money and 1,000 rank bonus – so my monthly salary is basic 16,000. Then, if I or my colleagues make a big important arrest or meet or targets etc…. we receive financial awards to share out between us.”) Furthermore, Thai police work very rigorous schedules, with no days off: “A shift is 8 hours, any time of the day, so if we swap shifts that means we have to work 16 hours straight. We are though, allowed ‘leave’ but for this we have to ask our boss and give him a good excuse.” Posting of Stephen Cleary to Thai-Blogs, http://www.thai-blogs.com (Feb. 25, 2008, 13:47 THA). Additionally, police officers often have to take second jobs in order to make enough income to live on; these jobs are usually night security positions at private businesses. Interview with Tida Phongwilai, in Bangkok, Thailand (Mar. 20, 2008).
31 police salaries are low, but the police drive BMWs, Mercedes, wear Rolexes . . . The money has to come from somewhere.”112 This source also suggested that corruption is not limited to traffic scams, but can affect arrests for more serious crimes, as well:
After your arrest, you have a window of time during which you’re driven down to the station. If you have a gold chain on you, or if you can convince the police that if you make a phone call, you could get some money . . . you have a very real chance of being released before you ever make it to the police station.113
This ability to “escape” en route is very important, as Thai law requires police officers to pursue a case if a report is filed.114 Thus, although foreigners are at greater risk of being arrested by corrupt police hoping to extract a bribe, either through a real or illusory offense, they also often have greater opportunity to use their personal financial resources to extract themselves from the grasp of the Thai criminal justice system.
2. Control of Evidence
In addition to controlling the “apprehension” of criminals, Thai police control the procedures by which evidence is gathered from a crime scene. Unfortunately, Thai evidence-collection mechanisms are primitive at best, and, when coupled with an overworked, underpaid police staff, are far from thorough. Unlike the criminal forensic infrastructure that U.S. police use to investigate crime scenes, Thailand has no regulated system by which to collect and examine police-gathered evidence.115 Police regularly contaminate or destroy crime scenes, sometimes inadvertently, but often because they
112 Telephone interview with anonymous source, in Bangkok, Thailand (Mar. 18, 2008). 113 Id. 114 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 115 Id; see also Press Release, Asian Legal Resource Centre, ALRC Statement on “Flawed Policing, Maladministration of Justice and Forensic Science in Thailand” Received by Commission on Human Rights, ¶ 8 (Apr. 6, 2005), available at http://www.alrc.net/pr/mainfile.php/2005pr/91/ (“Another related area that should be of particular concern for the international community is the state of forensic science in Thailand.”).
32 feel no obligation to be careful or systematic about evidence collection when they are paid so little and lack the necessary resources to investigate a crime scene properly.116 As one source told us, “Police do not want to get their uniforms dirty. Instead, they hire out contractors to move the bodies . . . The contractors will take the bodies alive or dead, and will take their money, too.”117 Our source referred to these contractors as “Chinese foundation trucks,” or foreign companies that act as glorified pick-up truck services for taking bodies to the morgue (or, occasionally, to hospitals). Because the emphasis is on completing the job as expeditiously as possible, copious forensic evidence is lost in this process—as are, invariably, any valuables on the body. As a result of both the lack of the physical tools and the incentive to investigate forensic evidence properly, the validity of findings recorded in police reports may be called into question.
Despite these evidentiary failings, the reports that the Thai police ultimately write are nearly unassailable. As our source told us, “No one will refute the police report— especially if the coroner is tied into the police, as well.”118 The police are given broad discretion to include any information in their reports that they deem “relevant,” and the accused against whom the report stands has little—if any—recourse to challenge the police findings.119 Seemingly, the police themselves would be the appropriate body to investigate improper facts in police reports; unsurprisingly, they are rarely willing to confront one of their own about such failings.
Perhaps most challenging for foreigners faced with arrest in Thailand, is the fact that the reports are entirely in Thai, and the police are under no obligation to translate the
116 Telephone interview with anonymous source, in Bangkok, Thailand (Mar. 18, 2008). 117 Id. 118 Id. 119 Id.
33 reports for a farang suspect in a crime who does not read Thai.120 The accused is asked to sign off on the report based solely on oral assurances by police that the report is accurate. These reports hold immense power in Thai court and, consequently, over a prisoner’s future, regardless of whether the prisoner signs the report.
3. Recommendation to Prosecute
Perhaps the greatest control that Thai police have over criminal procedure is in their capacity to recommend cases to be prosecuted in the court system. Unlike federal and state prosecutors in the United States, who prosecute cases at their own discretion,
Thai prosecutors act at the behest of the police department.121 After concluding their investigation of a case, Thai police make a recommendation to the prosecutor as to whether to prosecute in this matter. Though the prosecutor can, in turn, decline the recommendation to prosecute, the Chief of Police has the authority to overrule the prosecutor and insist that the case be prosecuted in criminal court.122 If the police file is insufficient for the prosecution to proceed, the prosecutor can send an interrogatory to the police for more information. The police have one week to respond to this request, technically; however, the “week” usually stretches into a month or more, which adds further delay to an already lengthy trial process.123
120 Id. 121 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 122 Id. 123 Id. There is no guarantee for a “speedy trial” in the Thai constitution, and one might go so far as to argue that Thai courts instead proceed with “all deliberate speed”—cases can, and often do, take several years to complete. For example, the police can detain a suspect without charge for forty-eight hours. Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). If the suspect has been arrested for a crime in which the penalty is for less than six months’ imprisonment, the trial must take place seven days after that initial forty-eight hour period. Id. For a crime for which the penalty is six months’ to ten years’ imprisonment, the trial must take place within forty-eight days (the police may request twelve-day extensions from the judge four times). Id. For crimes for which the penalty is more than ten years’ imprisonment, the trial must take place within eighty-four days (up to seven police requests for twelve-day extensions). Id.
34 The police’s power to recommend prosecution is not necessarily a poor facet of the Thai criminal justice system in and of itself. However, coupled with the rampant corruption that plagues many factions of the Thai police, as well as, the inadequate evidentiary standards used to collect information from crime scenes to form the basis of the police report, relying on police recommendations in criminal prosecutions seems reckless at best. For foreigners used to having post-arrest opportunities for their counsel to examine evidence against them or question police findings, the general acceptance of police findings in the Thai justice system creates an uphill battle in mounting a successful defense for the accused. One of our interview subjects championed the Thai government’s raising of judicial salaries, in an attempt to weed out corruption in the Thai court system.124 While judges now are less susceptible to financial inducements, the fact remains that their holdings are based upon arrests and evidentiary conclusions crafted by poorly paid police officers inculcated in an atmosphere of cut corners and corruption.
Without a commitment to higher police salaries, foreign criminal suspects (as well as,
Thai suspects) cannot be guaranteed a truly fair trial.
B. The Role of the Defense Lawyer
Foreign suspects in Thai criminal proceedings are disadvantaged primarily in two ways: a lack of qualified legal counsel and a lack of a fundamental “right” to assert one’s innocence at trial. First, foreign suspects are often burdened with inadequate legal counsel for the purposes of their trial. Police officers arresting foreign suspects are often willing to call a suspect’s embassy to let them know that one of its nationals has been arrested;125 however, most embassies are unwilling to actually pay for an attorney, but
124 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 125 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008).
35 instead forward a list of potential legal contacts to the suspect’s next-of-kin.126 Although court-appointed attorneys are available for criminal defendants without the resources to find a private attorney,127 these attorneys rarely speak English, creating a nearly insurmountable hurdle in communicating with a foreign defendant.128 As the charges filed against the suspect, the police report, and the trial itself are all in Thai, a non-
English-speaking129 attorney is scarcely able to advocate on his client’s behalf if that client cannot convey his own statement of the facts and his legal decisions to his attorney.130
In contrast, private attorneys are more likely to speak English, and they can also provide translators for their clients (at the client’s expense, of course).131 However,
English-speaking attorneys in Thailand are most frequently found practicing business law, not criminal law.132 One possible reason for this disparity is that criminal defendants often lack the funds to pay their attorney’s fees, meaning that defense attorneys front costs that they ultimately must absorb.133 Attorneys with options to practice other forms of law where they have more of a guarantee to see a return on their investment of time and resources are, thus, likely to migrate to those practice areas, leaving a talent gap for
126 One exception is the Kuwait Embassy, who has retained a law firm as legal counsel for any Kuwait citizens on trial in Thailand. Id. 127 Id. 128 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 129 We refer throughout this paper to “English” as a default foreign language standard, with the understanding that our initial goal was to research treatment of Western prisoners in the Thai justice system. “Western” includes languages other than English, and foreigners speaking any non-Thai language would be equally disadvantaged by these limitations of Thai court. 130 In contrast to U.S. legal procedures, the ABA Model Rules of Professional Conduct strongly encourage lawyers to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” MODEL RULES OF PROF’L CONDUCT R.1.4(a)(2), (b) (1983). 131 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 132 Id. 133 Id.
36 future criminal defendants. Another difficulty facing English-speaking defendants is the
Thai government’s prohibition on foreigners practicing law in Thailand.134 Thus, the foreign defendant is tasked with the challenge of finding a Thai-born lawyer who speaks
English, is willing to handle his criminal case, and—perhaps most significantly—is not corrupt.
Just as the Thai police force fights corruption, criminal defendants are also at risk of hiring corrupt attorneys to represent them. One interviewee related a story of a friend who had gotten into trouble with the law and had hired a Thai attorney who kept raising fees arbitrarily, often scheduling meetings for payment at the close of the business day only to arrive late and then insist that the client pay for another day of service because the banks had, by then, closed.135 Small scams like this undoubtedly plague many foreign defendants in Thai courts, and, while one might not complain if the quality of legal counsel received in return were worthwhile, the sense that we got from our interviews was that unscrupulous attorneys, who spent more time devising ways to part their clients from their money than they did mounting an adequate defense, were fairly prevalent.136
In addition to the struggles associated with obtaining adequate legal defense counsel, foreign defendants are also faced with a criminal justice system that does not truly guarantee a “right” to be assumed innocent. One interviewee with whom we spoke—a former public prosecutor—assured us that the Thai legal system operates on an
“innocent until proven guilty” standard, with the burden of proof on the prosecutor to
134 Id. Foreign lawyers can, however, act as advisors for businesses or investments or as private investigators. Id. 135 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008). 136 Id. As another source told us, “There's a whole routine for bribing people to get what one wants. It's the expected, accepted way of busing business. Don't believe otherwise.” E-mail interview with Byron Bales (Mar. 1, 2008).
37 show that the defendant committed the crime for which he is charged.137 However, another interviewee—a Thai criminal defense attorney with considerable experience representing foreign defendants—repeatedly stated that he always asks his clients if they are guilty, and actually recommends that they plead guilty regardless of whether they committed the crime in order to obtain a reduced sentence.138 This willingness to focus on receiving the shortest sentence for a client, rather than even attempting to mount a not- guilty defense, may not be unique, especially considering the dramatic sentence reductions given to guilty pleas and other factors—such as the above-mentioned police reports—that favor the prosecution. This strategy to plead guilty is also often aroused by an implicit assumption that a defendant will be found guilty; the best option, therefore, is to mitigate the effects of the inevitable prison sentence rather than attempt to acquit the client of the charges against him. Thus, the lack of true “defense” strategies by Thai criminal defense attorneys may be more reflective of the hopelessness within the criminal justice system than of the attorneys’ lack of ambition or initiative, though it may, in fact, be some combination of the two. Regardless, the situation is bleak for a foreigner facing a criminal trial in Thailand.
C. Trials and the Courtroom
As might be expected, a foreign defendant’s trial experience in Thailand is just as difficult to navigate as the steps that lead the defendant to the trial. The most difficult factors of a trial for a foreign defendant are the judicially-controlled trial record and the trial process itself (e.g., the lack of a speedy trial).
137 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 138 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). The common judicial practice is to reduce a defendant’s prison sentence by as much as half of the original sentence when the defendant has plead guilty. Id.
38 Courtroom procedure in Thailand poses hurdles for any criminal defendant, whether or not the defendant is foreign. There is no trial-by-jury in Thailand; every trial is a bench trial.139 Part of the reason for this may be cost. One of our interviewees advocated for the bench trial system in Thailand because of its cost-effectiveness (“juries are expensive”) and reliance on legal professionals; reforming the system and instructing average Thai citizens on how to become proper jurors would be time-consuming and extremely difficult.140 While a judge almost certainly has a better grasp of Thai law than a jury of Thai peers would have, this system promotes unitary, top-down punishment rather than punishment by law viewed through a lens of community standards, as is promoted in the United States via the Sixth Amendment.141
Compounding the problems of a foreigner’s unfamiliarity with courtroom procedure is the slow pace of courtroom proceedings; criminal defendants in Thailand have no right to a speedy trial. In contrast, defendants in U.S. courts are guaranteed that right,142 and while trials in the U.S. court system endure their fair share of delays and continuances, they pale in comparison to the duration of Thai trials and judicial deliberations. Cases can take years to resolve, and even if the trial itself does not last particularly long, the judge may take months to deliver a decision.143 During this period, the defendant is detained in central prisons with the general prison population, unless they have the resources to make bail.
139 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008); interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 140 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 141 U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a […] trial, by an impartial jury of the State and district where in the crime shall have been committed…”). 142 Id. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”). 143 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). The appeals process is no less lengthy; prisoners may wait years before their appeal is heard. Interview with Richard Barrow, in Samut Prakhan, Thailand (Mar. 20, 2008).
39 In addition to the hardship that defendants face in being imprisoned for the duration of these lengthy trials, they face evidentiary concerns. When cases take years to resolve, key witnesses may be lost or essential evidence may deteriorate past the point of being challenged in court by the defense.144 While such delays and evidentiary losses would raise serious due process concerns in the United States, the Thai criminal justice system faces no such outcry. To the contrary, our interviewees uniformly evoked the general sense that this is simply the way things are done in Thailand, and that little can be accomplished to improve the efficiency of a Thai trial.
However, perhaps the largest obstacle for criminal defendants in Thailand is the lack of an independent trial record. U.S. trials are characterized by the presence of a stenographer in the courtroom, taking a detailed record of every official statement of the case for future use in making objections or appealing factual or procedural violations. In
Thailand, however, the judge has complete control over the contents of the official trial record.145
In making the record, the judge decides the legal and factual points that he deems most important to the case and records them verbally into a tape recorder;146 he is obliged only to record the information that he deems important.147 If a lawyer objects to a judge’s ignoring of a particular piece of information, the lawyer can (and will) repeat himself in the hopes that the judge decides to include the information in the trial
144 Interview with anonymous source, Bangkok, Thailand (Mar. 18, 2008). 145 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). Of particular concern to foreign defendants is the fact that trials are conducted entirely in Thai; the judicial record is notated in Thai, as well. Id. 146 Id.; visit to Thai Criminal Court (Mar. 19, 2008). 147 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008).
40 record.148 Lawyers can also plead with the judges to include the information (“Please record it!”), but the decision to add to the record remains the exclusive province of the judge.149
This judicial power and consequent discrepancies in the record create tension between attorneys and the judge, and may ultimately detract from an attorney’s ability to advocate rigorously for his client if he is distracted by problems with the judicial record.
Although attorneys can appeal problems with the trial record, appellate courts are equally sensitive to the trial court judge’s power to craft the record that he deems important, and are thus extremely reluctant to overturn a trial judge’s decision.150 The Thai attorneys we interviewed seemed generally discontent with this practice, and at least one voiced a preference for a legal system in which judges are required to record everything that transpires in the courtroom.151 As one interviewee told us: “It is a conflict between dignity and justice, and very often the judge will prefer to save face than to preserve justice.”152 Thus, with judicial ego on the line, criminal defense attorneys face an uphill battle to rectify errors in the judicial record; when they fail to do so, the defendant may pay a heavy price.
Finally, because the record and the proceedings are all conducted in Thai, a farang defendant likely has no idea whether or not his attorney even needs to be objecting. As it is, objections by opposing counsel are rare occurrences.153 During a two-hour observation of a portion of a criminal trial, there was no point in which the
148 Visit to Thai Criminal Court (Mar. 19, 2008). 149 Id. 150 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008). 151 Id. 152 Id. 153 Id.
41 prosecution objected to anything that the defense attorney was saying to the judge.154
Compared to a U.S. trial, in which opposing counsel frequently lodges objections to inclusions of evidence, leading questions, or other procedural problems, the Thai trial seemed downright staid. One reason for the lack of objections by opposing counsel could be the very fact that the judge controls the record; one of the purposes of lodging objections in U.S. courts is to bring procedural and evidentiary problems to the judge’s attention, as well as, to have them recorded on the record for appeal. However, if the judge controls the trial record (and, of course, ultimately determines the outcome of the case), ostensibly there is an incentive not to draw the judge’s attention to his own errors, particularly if they only affect the opposing party. In this way, there may be a chilling effect on objecting to error in Thai courtrooms, putting criminal defendants at even greater risk of losing their case.
V. Sentencing
Although the Thai government’s criminal enforcement policies may be seen as based primarily on a deterrence principles, retribution—or the idea of proportional punishment—may also play a part in sentencing in Thailand. A Thai study of the Thai criminal justice process, which examined the theories of punishment considered by more than one thousand Thai judges when sentencing criminals,155 concluded that the judges considered more than one theory of punishment in determining a penalty, although the judges usually had one primary theory from which they determined the sentence, while
154 Visit to Thai Criminal Court (Mar. 19, 2008). 155 Utid Suparp, The Philosophy of Criminology When Sentencing in Thai Courts: A Case Study of Intentional, Negligent and Provoked Criminals, available at http://members.tripod.com/asialaw/articles/sentencingsuparb.html.
42 other, secondary theories supplemented their decision.156 For example, if the case involved a serious offense, the judges stated that they relied primarily on retribution.157
For less serious offenses, the judges claimed to use rehabilitation to guide their sentencing practices; for cases involving recidivists, however, the judges were comfortable to turn to deterrence principles.158
Unfortunately, these conclusions seem to belie reality. Although the Thai Penal
Code allows different types of punishment, the sentence is ultimately determined by a judge’s discretion.159 And overwhelmingly, the primary punishment imposed by Thai judges through the Thai criminal justice process, for any sort of crime, is incarceration.
However, judicial sentencing practices are not solely to blame for the problems in Thai prisons caused by these sentencing practices; the legislature may also assume some responsibility for creating the system. Superficially, the legislature appears to provide some checks on judicial discretion by setting maximum and minimum limits to fines and imprisonment terms, and by proscribing that the penalties imposed must be reasonable.160
However, they fail to provide any specific factors—such as age, background, or prior criminal history—that should be considered in sentencing.161
Indeed, to much of the Western world, Thai sentences seem archaic. There are, however, some indications that Thailand is moving forward. For example, Thailand no longer uses sadistic methods of punishment—such as beheading by sword, the so-called
156 Id. 157 Id. 158 Id. 159 Utid Suparp, The Philosophy of Criminology When Sentencing in Thai Courts: A Case Study of Intentional, Negligent and Provoked Criminals, http://members.tripod.com/asialaw/articles/sentencingsuparb.html (last visited Apr. 22, 2008). 160 Id. 161 Id.
43 “elephant ball” and “confession hook,”162 and blind firing squads, where only an opaque screen separates the executioner from the criminal—as forms of punishment.163
Nevertheless, Thailand still has a ways to go before it reaches Western standards of humane punishment. For example, the government’s practice of promoting extrajudicial killings of suspected drug dealers, discussed above in Part II.B.2, clearly violates human rights standards.164
Moreover, because Thailand’s bias towards incarceration has led to severe overcrowding, the Thai government has taken steps toward alternative sentencing programs. First, the government has begun deporting foreigners who commit petty crimes, such as stealing from duty free shops at the airport, rather than imposing mandatory one-year prison sentences.165 Although this crime would likely go unpunished in the United States, or else incur probation and a fine, deportation can be viewed as a progressive step for a country in which the government is only beginning to acknowledge that greater systemic change is necessary in order to solve problems with the prison system. Second, the government has started sending drug users to rehabilitation centers instead of prison.166 Aside from the problems associated with incarcerating drug users
162 The museum maintained by the Thai Department of Corrections in Bangkok includes displays of many “creative” punishment devices previously used in Thai prisons. For pictures and descriptions of two of these devices see “The Elephant Ball,” http://www.corkscrew-balloon.com/misc/prison/1c.html, and “The Confession Hook,” http://www.corkscrew-balloon.com/misc/prison/1b.html (last visited Apr. 22, 2008). 163 Public beheading was the official form of execution until King Rama VII abolished the practice in 1934. Many other sadistic punishment and torture methods, such as the Elephant Ball and Confession Hook, were discontinued in the early years of the 20th Century. See The Bangkok Corrections Museum – Prison Life in a Thai Jail, Buzzle.com, http://www.buzzle.com/editorials/4-22-2006-94120.asp (last visited Apr. 22, 2008). 164 See supra Part II.B.2. 165 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008). 166 Interview with Piched Niamnud, in Bangkok, Thailand (Mar. 17, 2008).
44 with more serious offenders of the narcotics laws,167 this policy of rehabilitating drug users gives the Thai government alternatives in alleviating overcrowding in the prison system.
VI. Differential Treatment in the Thai Prison System
Once a defendant is convicted and sentenced in Thailand, he is sent to one of
Thailand’s central prisons, each of which host a number and diverse mix of foreign prisoners.168 The conditions in these prisons, however—particularly the overcrowding— often come as a shock to foreigners. Often, upwards of fifty prisoners are housed in each cell, which contains no furniture of any kind and are kept lit at all times;169 in order to accommodate the overcrowding in cells, prisoners are forced to sleep on their sides, head to feet.170 Prisoners have little respite from these conditions; they spend upwards of fourteen hours a day in their cells.171
Despite these universally poor conditions in Thai prisons, the experience of foreign prisoners can be fairly disparate. One of our sources—a Thai human rights professor at one of the country’s most distinguished universities—suggested that there were three unofficial tiers to prisoner treatment:172 Western prisoners reside along the top tier, receiving the best treatment; Thai citizens operate within the middle tier; and
167 Discussed in Part II.B.2, supra. 168 Foreign Prisoner Support Services, Prisons & Prisoners—Thailand, available at http://www.phaseloop.com/foreignprisoners/prisoners-thailand.html . 169 Richard Barrow, Overcrowding in Thai Prisons, Thai Prison Life, March 11, 2008, available at http://www.thaiprisonlife.com/index.php?option=com_content&task=view&id=127&Itemid=121. 170 Id. 171 Id. This source claims that, within the 139 prisons in the country, there exists an estimated total of 245,033 sq.m. of sleeping room; the Thai Department of Corrections stipulates that each prisoner should have around 2.25 sq. m. each in which to sleep. Given this average space requirement, the total Thai prison population should round out to about 108,900 prisoners. In 2006, however, Thailand’s prisons housed more than 151,500 prisoners. 172 Interview with Jiles Ungpakorn, in Bangkok, Thailand (Mar. 21, 2008).
45 regional foreigners, such as Laotian and Burmese nationals, receive the worst treatment, due to cultural biases and discrimination.173
Several factors appear to play into this differential treatment. For example, one reason why certain foreign prisoners may receive better treatment may be due to embassy involvement. Although embassies generally limit their contact with their imprisoned citizens in order to reduce their liability, behind-the-scenes pressure on the Thai government may work to the prisoner’s advantage.174 At the very least, having one’s embassy involved means that some other government is keeping tabs on the prisoner.
Because the Thai government has shown sensitivity to the international perceptions, the embassy’s nominal involvement may be sufficient political pressure to treat Western prisoners better.
In addition to embassy involvement, Westerners are more easily able to draw international media attention to the conditions within the Thai prison system; as a result, the Thai government may feel pressure to treat Western prisoners better. For example, when several Australian citizens were incarcerated in Thailand for smuggling heroin in the 1990s, their imprisonment was widely reported in the international media.175 Most likely due to this international attention, the Thai government commuted their death sentence to fifty-year terms.176
Greater financial resources are another possible reason for the superior treatment of Western prisoners. As several of our sources indicated, money can purchase many
173 Id. 174 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008). 175 See e.g., Life in a Thai Jail—Thailand (Journeyman Pictures 1999), available at http://www.youtube.com/watch?v=lSiGyGS6u8M. 176 Id.
46 things in Thai prisons.177 Although prisoners cannot actually touch money inside the prisons, prisoners have cash accounts from which they can purchase a wide variety of items.178 Prisoners use their accounts not only to purchase items from the prison’s canteen, but also to pay prison guards or other prisoners for additional privileges, such as extra sleeping room.179 Using these cash accounts, prisoners can also buy their own food, thus bypassing standard prison-issued meals, which Westerners often complain are too spicy.180 The added costs of these privileges are relatively low by Western standards; however, they are often beyond the reach of the average Thai citizen.
Finally, bilateral prisoner transfer treaties, such as those discussed above in Part
III.B, provide extra options for some foreigners in the prison system. They not only allow citizens of signatory countries to be transferred back to their home country to serve the remainder of their Thai sentence, upon which the home country may or may not decide to commute the prisoner’s sentence, they also permit prisoners who have lengthy sentences to serve their sentence closer to their families and loved ones. However, a few
Western prisoners have chosen not to take this option for fear that they will receive worse treatment while serving their sentences at home.181 For example, one French man declined his transfer when he discovered he would receive less time outdoors at a French prison.182
Moreover, because many European countries differentiate among their prison
177 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008); interview with Panrit Daoruang, in Samut Prakan, Thailand (Mar. 20, 2008); interview with Jiles Ungpakorn, in Bangkok, Thailand (Mar. 21, 2008). 178 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008). 179 Id. 180 Id. 181 Interview with Rujira Bunnag, in Bangkok, Thailand (Mar. 19, 2008). 182 Id.; interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008).
47 population in order to segregate prisoners based on the severity of the crimes committed—which usually correlate with punishment terms183—prisoners transferred back to their home countries may be incarcerated in higher security prisons than they would have been had they committed the crime at home. Similarly, they may be placed together with more violent offenders. In contrast, the Thai system houses all types of offenders together; the location of a prisoner’s sentence is dictated by the geographic location of their crime.184
VII. Concluding Thoughts and Recommendations
Depictions of the Thai justice system, such as those described in Part I, were reaffirmed by much of our research. Foreigners in the Thai criminal justice system face, what may seem to be, insurmountable challenges: deterrence-oriented government policies unchecked by enforceable due process rights, a corrupt police force, a lack of
English-speaking defense attorneys, confounding courtroom procedures and slow trial proceedings, sentencing practices favoring incarceration, and overcongested prison facilities. However, these depictions also fail to fully characterize the changes that are occurring not only as a result of foreigner involvement, but also as a result of internal activism. One such aspect of this change can be seen in Thailand’s expanding drug rehabilitation programs for drug users. Another aspect may be seen in Thailand’s decision to consider deportation options, rather than incarceration, against foreigners who commit petty crimes.
However, there is much room for further reform. As such, we propose several avenues for reforming the Thai criminal justice system.
183 Interview with Richard Barrow, in Samut Prakan, Thailand (Mar. 20, 2008). 184 Id.
48 First, because corruption in the Thai police force is one of the main sources of problems with the Thai criminal justice system, we propose to increase police officers’ pay. Low police wages encourage a culture of bribery to improve these officers’ standards of living, and as the corruption becomes commonplace within factions of the police force, it becomes ever more difficult to eliminate. By paying police officers a more realistic living wage, there would ostensibly be less of an incentive for these officers to accept bribes or falsely accuse both Thai citizens and foreign tourists of crimes to extort rewards, either from the accused or from their superiors in recognition of a job
“well done.”
The problem is, of course, determining what that realistic wage might be, particularly given that officers who engage in corruption often are able to live well beyond their means through the purchase of luxury goods. A modest increase in monthly salary (1000-2000 baht) initially would show a good-faith effort on the part of the government to begin to rectify the salary disparity; if more funds are available to increase pay further in the future, the government should make every effort do so. The obvious difficulty with this proposal, however, is determining where the funds to pay the police will come from. Nevertheless, as police control not only who goes to trial, but also the evidence presented against defendants at trial, it is essential that Thailand derail corrupt practices by the police. Otherwise, the result is systemically unfair trial practices, particularly for foreign defendants who are not accustomed to the suspect practices of the
Thai police.
Second, we recommend a shift from a criminal justice system with imprisonment as its default standard towards a more hierarchical system whereby smaller crimes and
49 misdemeanors, or first-time offenders, are punishable by fines rather than imprisonment.
Not only would this hierarchy help resolve some of the problems stemming from prison overcrowding, it would also provide an influx of income that could be redirected towards increasing police salaries, constructing new prisons, improving forensic technology, adding police training programs, or financing other needed reforms to the criminal justice system. It could also provide some leverage for police officials and prosecutors when plea bargaining with small-scale offenders; by encouraging them to rat out their conspirators in exchange for lesser charges or lighter sentences, police officials may be more successful at clamping down on serious crime. As Thai police already receive bonuses for apprehending major criminal offenders, they would ostensibly approve of the shift towards a hierarchy of crimes.
Third, we recommend that Thailand invest more resources—possibly using the income generated by recategorizing certain crimes as misdemeanors—toward improving forensic technology and police officer training. The lack of proper evidentiary standards in gathering and preserving crime scene evidence creates numerous problems when lawyers and judges attempt to rely upon this information at trial. Though it will undoubtedly take decades to improve Thai forensic standards to anything near the vast scientific infrastructure of which police forces in the United States can avail themselves, even small amounts of training in such areas as proper evidence-gathering, could go far in improving the integrity and longevity of evidence. Stronger evidentiary standards would also certainly assist criminal defendants’ efforts to challenge false charges levied against them.
Finally, in addition to creating a more differentiated, hierarchical scheme of
50 crimes and penalties, there are several other possible solutions that could alleviate the overcrowding problem in Thai prisons. The obvious solution, of course, is to build more prisons. Building more prisons would help spread out the prison population, thereby reducing the ratio of prisoners to cells. However, constructing and staffing prisons are extremely expensive endeavors, and Thailand’s corrections funding is recognizably limited.
Given these resource constraints, a better approach may be drug education.
Because the overcrowding of Thai prisons is largely the result of the aggressive Thai war on drugs,185 the Thai government should consider remedies to the overcrowding issue that might be available as part of a comprehensive drug eradication strategy. Even though the Thai government has made advances toward distinguishing between drug dealers and drug users and has initiated treatment programs rather than incarceration for drug addicts, the overwhelming focus of Thai drug policy remains on the capture and imprisonment of drug dealers and traffickers. While this strategy has been successful in taking many dealers off the streets and curtailing the supply of drugs in Thailand, it does not address the demand for drugs within Thailand, and ultimately reflects an incomplete, short-term, and even deleterious answer to the country’s drug issues. As one interview subject, Panrit “Gor” Daoruang, a former drug user himself, writes:
After the government’s war on drugs was finally over, the Prime Minister kind of thought that the project was successful. They had made it more difficult to find drugs. A lot of people had finally decided to quit. If someone came over and asked me, was this project successful? My answer would be; yes, but only for a while [. . .] A few months later, the drugs were being sold again even though the price had gone up five times higher. [. . .] Because of the high price of drugs, there started to be more
185 See supra Part II.B.2. For a discussion of prison overcrowding see Richard Barrow, Overcrowding in Thai Prisons, Thai-Blogs.com, http://www.thai-blogs.com/index.php/2008/03/09/overcrowding-in-thai- prisons?blog=5.
51 serious stuff going on around the country. We started to see on the front page of newspapers more violent robberies, murders, and gang fighting.186
In our view, a more effective strategy would be a system that addresses both drug supply
(traffickers and dealers) and drug demand (drug users). In short, the Thai government should do more to promote anti-drug education in schools, temples, and through media aimed at children and young adults. As Gor states,
In my own opinion, I now kind of disagree with the method the government used. I think they really should have been focusing more on stopping people from taking drugs in the first place. They could easily do that by educating youngsters through the media and in every school about how bad drugs are. They have done this kind of thing in the past but the method wasn’t always successful. Maybe they should ask people like me to talk to students about the horrors of drug addiction.187
Even though such outreach and education programs would not solve the immediate problem of overcrowding in Thai prisons, programs aimed at reducing domestic demand for drugs are an affirmative step toward mitigating future prison overcrowding, and may be part of a more successful war on drugs.
The major obstacles to reform, however, are the lack of resources and the entrenchment of police corruption. Unfortunately, the generalized culture of corruption within the Thai police force will be difficult to combat, even with increased police salaries. One suggestion to combat police corruption may be the implementation of an independent police review board, which would hold officers accountable for illicit police actions. Although independent review boards have been suggested in the past by the
Thai government in response to allegations of police corruption, prior rationales for the review board tended to be political in nature, serving more as a check on the Prime
186 PANRIT “GOR” DAORUANG, GOR’S THAILAND LIFE 319 (2007). 187 Id.
52 Minister’s power than as an actual review of police standards of behavior.188 If such a board were created, it would not only need to be truly independent and free of political entanglements, but it also would need to have the teeth to enforce its rulings in order to act effectively as a check on corrupt police practices.
In the end, we believe that Thailand’s criminal justice system has significant potential to further improve its services to foreigners. Because many of the problems that foreigners face are also systemic issues, however, change will be difficult. Nevertheless, by the same token, foreigner involvement can also serve to elevate the rights of Thais in the system.
188 The Thai Police: A Law unto Themselves, ECONOMIST, Apr. 17, 2008, available at http://www.economist.com/world/asia/displaystory.cfm?story_id=11058580 (reporting that a prior recommendation for a police review board “looked suspiciously like an attempt to curb [previous Prime Minister] Thaksin’s power base in the police” and noting that current prime minister Samak “seems to be building bridges with army chiefs to bolster his own power”).
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