GROUP WORKSHOP REPORTS
GROUP 1
EFFECTIVELY INCORPORATING REHABILITATIVEPERSPECTIVES INTO PENALTIES AND CASE DISPOSITIONS

Chairperson
Co-Chairperson
Members

Advisers

Rapporteur: Ms. Supattra Warotamasikkhadit (Thailand)
Co-Rapporteur: Ms. Belinda Mumbua Kiilu (Kenya)
Ms. Ana Cristina Bandeira Lins(Brazil)
Mr. Pamila Ratnayake(Sri Lanka)
Ms. Marietta Roseline Behiri(Cote d’Ivoire)
Mr. Laimo Asi(Papua New Guinea)
Mr. SHIRASHI Atsushi(Japan)
Ms. INADA Mitsuyo(Japan)
Prof. WATANABE Machiko(UNAFEI)
Prof. FUTAGOISHI Ryo(UNAFEI)
I. INTRODUCTION

During the 174th UNAFEI International Seminar, it was noted, through the diverse
discussions, that many countries are still using the criminal justice system as a way topunish, more than to guarantee the rehabilitation of the offenders and to avoid recidivism.
After almost 30 years since the adoption of the “Tokyo Rules” by the United Nations
General Assembly, many countries are not adequately using all instruments for noncustodial measures. Moreover, in many of these countries the judiciary and otherdecision-making institutions do not sufficiently consider the individual risks and needs ofthe offenders or their rehabilitative perspectives.
Although it has been demonstrated that prison is not necessarily the best solution forrehabilitation and prevention of reoffending, and it less cost-effective than non-custodial
measures, it is still the preferred disposition in cases of criminal sentencing in many
countries.
The main purpose of this group workshop was to discuss the reasons as to why inmost of our jurisdictions it is preferable to use custodial instead of non-custodial
measures, to suggest possible solutions in order to effectively use non-custodial measuresin sentencing and to explore effective policies and practices to incorporate rehabilitative
perspectives into dispositions and sentencing.
There are several non-custodial and rehabilitative measures which are considered asimportant mechanisms, as well as effective modes of treatment of offenders, in order toemphasize rehabilitation. Moreover, several challenges, both legal restrictions anddifficulties of implementing non-custodial measures, and how to overcome thoseproblems, were discussed. The following aspects were studied by comparison of the legalsystems and practices in the countries represented in the group.

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II. ISSUES AND CHALLENGES
A. Current Situation of Incorporating Rehabilitative Perspectives into Penalties
and Case Dispositions
It was identified that most countries have adopted some kind of non-custodial
measures, but some of them use basically suspended sentence and fine as alternatives toprison. Others have many alternative dispositions, as summarized in the Table 1.
Table 1 Types of non-custodial measures in the participating countries
Restrictionof rights

NonProsecutionSuspensionofproceeding

Suspended
sentence

Fine

Communitywork

BrazilCôted’Ivoire(transaction)





PNG
ThailandJapan
Sri Lanka
Kenya
-
-
(not(judicial review)
implemented)





Healthtreatment

Community
fine

Restorative
justice


-

--






-





When considering the issuance of non-custodial measures in their jurisdictions, mostof the countries have several considerations and criteria to be used, mainly as follows:
personal background, criminal history, type of crime, repentance and related individual
circumstances. The views of the victims or their consent to the non-custodial measure isimportant; for example, in domestic violence cases, in some jurisdictions, the victims’views are considered by the authorities.
Most of the members of the group believe that, in their countries, there is satisfactory
information collected about the offender during investigation or criminal procedure.
However, for some countries, the willingness of offenders to give such information could
prove difficult, as some systems principally use direct interviews with the offender and do
not have special tools or human resources to collect personal information about theoffender, for instance, from his community or work.
In the case of juvenile offenders, most of the countries do consider rehabilitative
perspectives and provide treatment for them, such as training schools for juvenile
rehabilitation. The members of the group agreed that rehabilitative perspectives are vital
principles for treatment of juvenile offenders. However, in the case of adult offenders,rehabilitative perspectives are still not the major consideration in sentencing or casedisposition. Besides the adoption of the Tokyo Rules, some of the countries also havenational laws or guidelines imposing rehabilitation as a factor or as the aim of the penal
system. In reality, decision-makers do not take this into consideration much, and they still
give much value to punishment and retribution.
The mindset of the authorities about the advantages and importance of the use of noncustodial measures, the absence or inefficiency of the probation service and the pressure
made by the society in order to send offenders to prison as retribution still represent thereality in most jurisdictions.

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Prisons in many countries are overcrowded and, instead of preventing recidivism,
they are places where offenders learn more about crimes and are integrated into criminalorganizations.
B. Legal Impediments and Practical Challenges
In most countries, statutes place a limitation on imposing non-custodial measures forsome types of crimes or maximum penalties, or exclude their use in “grave crimes” (orcrimes with violence and drug trafficking). The lack of some non-custodial measures insome countries (such as restriction of rights and community service) was identified as alegal impediment that limits the consideration of rehabilitative perspectives in casedispositions.
One of the biggest obstacles identified is the attitude, both from the public and theauthorities, towards the use of non-custodial measures in the pre-trial phase, as well as
non-custodial sentences/measures in final case dispositions. This mindset can be
attributed to the following reasons:a.

framing of sentencing laws that place an emphasis on custodial measures;b.

the belief of the authorities that pre-trial detention is the best method to ensure
court attendance;c.

the belief that pre-trial detention is the best way to ensure non-interference in theinvestigation and to ensure public safety and security;d.

the media influence on the general public and the pressure on prosecutors andjudges to mete out custodial sentences/measures;e.

the belief that custodial measures are the best to protect the community; andf.

prison being seen as the most effective punishment and means of deterrence towould-be criminals.

The lack of analysis by authorities of the individual risk and needs of the offender is
identified as a practical challenge for rehabilitation.
In most countries, the different criminal justice players each have a role that they play,and information is often not shared between the various agencies. The lack of synergy
between the agencies does not provide a true picture of the offender, affecting theoffender’s rehabilitative prospects.
III. POSSIBLE SOLUTIONS TO PROMOTE THE INCORPORATION OF
REHABILITATIVE PERSPECTIVES INTO PENALTIES AND CASEDISPOSITIONS
Law and Policy Review – the revision of laws and offender-treatment policies should
be considered where needed in order to create more options for meting out non-custodial
measures that achieve rehabilitation and avoid recidivism. Introducing the importance ofusing imprisonment as a last resort might also help change the mindset of authorities. The147

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possibility of decriminalizing certain offences, such as the use of drugs and instead ofincarcerating the addict they are offered treatment in drug rehabilitation facilities throughthe health care system (and not by criminal justice), is also a measure that would focus
more on rehabilitation and that could be considered by some jurisdictions.
Alternatives to pre-trial detention – it was agreed that, in some cases, instead of pretrial detention, the possibility of non-custodial measures, such as a judicial review toimpose restriction of rights (e.g. impounding passports, house arrest, imposition ofcurfews, electronic monitoring), bail or bonds, could be considered. The use of pre-trial
judicial hearings to collect testimonial evidence can also be effective in avoiding pre-trial
detention as a way to prevent the manipulation of testimony and to ensure the availabilityof credible testimony at trial.
Use of evidence such as statistical data – Evidence-based methods on the benefits ofnon-custodial measures should be collected and provided to the community andauthorities. The prison-overcrowding and reoffending statistics should be publishedcontinually, and evidence illustrating the effectiveness of the use of non-custodial andcustodial measures should be shared.
Identifying individual needs – It was identified that the creation or improvement ofprobation services might help to identify best individual solutions for rehabilitation
instead of, or complementary to, imprisonment. After identification of the individualneeds, a better rehabilitation programme or treatment can be designed specifically foreach offender in order to prevent recidivism. For the reintegration of offenders into thecommunity, it is important to have an aftercare system to promote offenders’ reinsertion
into the labour market. This can be done by having skills training and helping offenders tofind jobs, accommodation and also by giving social or psychological support to theoffenders and their family members.
Promote awareness and the benefits of the use of non-custodial measures – Generally,
there is a need to promote awareness of the effectiveness of non-custodial measures toprevent reoffending and rehabilitate ex-offenders, as well as awareness of the fact that
non-custodial measures have a lower cost to society (budgetary considerations), incomparison to incarceration.
a) Encourage judicial officers and practitioners to use more non-custodial measuresby raising their awareness about the advantages of non-custodial measuresthrough the use of statistics, training seminars, among others.
b) Keeping the media accountable and encouraging the media to report responsibly,
especially on criminal justice matters, is also fundamental for the acceptance of
non-custodial measures and the incorporation of rehabilitative perspectives intopenalties.
c) Creating public awareness of the importance of rehabilitative perspectives of noncustodial measures is fundamental. This can be done by providing information to
the general public on the advantages of non-custodial sentences. Further,promoting the acceptance of ex-offenders back into the community helps to avoid
reoffending. The public can also be involved in projects supporting the offenders,such as the volunteer probation officer programme in Japan and the Yellow
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Ribbon Project in Singapore; such efforts can also contribute to changing themindset of the general public.
Creation of synergy – The creation of synergy between the criminal justice chain andthe criminal justice authorities (police, prosecutors, judges, correctional and probationofficers) would also help to foster attitudinal change in case dispositions.
IV. CONCLUSION
Statistics prove that non-custodial measures are more effective in offender
rehabilitation, community reintegration and preventing recidivism. Non-custodial
measures are more cost-effective in both monetary terms and rehabilitative aspects thancustodial measures. The creation and strengthening of synergy within the criminal justicesector chain will enhance the effectiveness of incorporating rehabilitative aspects inpenalties and case dispositions.

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