T H E 2 5 T H A N N I V E R S A RY S E M I N A R O F
THE UNITED NATIONS STANDARD MINIMUM
RULES FOR NON-CUSTODIAL MEASURESREPORT OF THE SEMINAR
From 7 to 9 September 2015, the United Nations Asia and Far East Institute for thePrevention of Crime and the Treatment of Offenders (UNAFEI) hosted the 25th Anniversary
Seminar of the United Nations Standard Minimum Rules for Non-Custodial Measures(hereinafter, the “Seminar”). This report summarizes the proceedings and general discussion
held throughout the Seminar. (The list of participants is provided in Annex 1.)
Proceedings
1. Director YAMASHITA Terutoshi of UNAFEI opened the Seminar by delivering awelcome address, noting UNAFEI’s role in drafting the Tokyo Rules and UNAFEI’scontinued efforts to promote them through its international training courses and technicalassistance. (The text of his comments is provided in Annex 2.)
2.

Mr OKOCHI Akihiro, Director of the International Safety and Security Cooperation
Division of the Ministry of Foreign Affairs of Japan, delivered welcome remarks
highlighting Japan’s commitment to promoting international cooperation not only inregard to non-custodial measures but also in areas such as terrorism, illicit drugtrafficking, trafficking in persons and cybercrime. (The text of his comments is provided
in Annex 3.)

3.

Mr HINO Masaharu, Chairman of the Board of Directors of the Asia Crime Prevention
Foundation, delivered congratulatory remarks on the 25-year history of the Tokyo Rules.
In reflecting on his five-year tenure as the Director of UNAFEI, he outlined the work
undertaken at UNAFEI to facilitate the preparation of the first three drafts of the Tokyo
Rules, the discussion at the Eighth United Nations Congress on the Prevention of Crimeand the Treatment of Offenders (Havana, 1990), and the subsequent approval of theTokyo Rules by the General Assembly. (The text of his comments is provided in Annex
4.)

4.

Following the welcome remarks, presentations were made by: (1) Mr Sven Pfeiffer,
Crime Prevention and Criminal Justice Officer, Justice Section of the United Nations
Office on Drugs and Crime (UNODC) on the “Key Elements of the Tokyo Rules andtheir Implementation in Practice”; (2) Professor MINOURA Satoshi of UNAFEI on “TheImplementation of the Tokyo Rules in the Asian Region”; (3) Professor AKASHI Fumikoof UNAFEI on “Community-based Treatment and Non-custodial Measures in AsianCountries”; and (4) Professor HIROSE Yusuke of UNAFEI on “Non-custodial Measures
in Japan — A Judge’s Perspective”.

5.

On 8 September 2015, presentations were made by: (1) Mr IMAFUKU Shoji,
Rehabilitation Bureau of the Ministry of Justice of Japan, on the “Implementation of
Non-custodial Measures in Japan and Future Perspectives”; (2) Dr Kittipong Kittayarak,1

Executive Director of the Thailand Institute of Justice, on “Non-custodial Measures inThailand, Including for Vulnerable Groups”; (3) Dr Matti Joutsen, Director of theEuropean Institute for Crime Prevention and Control, affiliated with the United Nations(HEUNI) on “International Patterns in the Use of Community-based Sanctions”; and Mr
Gary Hill, Director of Staff Training of the International Corrections and Prisons
Association (ICPA) and Scientific Coordinator of the International Scientific andProfessional Advisory Council (ISPAC), and Mr MATSUTOMO Ryo, Certified Social
Worker at the Tokyo District Public Prosecutors Office, delivered presentations
addressing multiagency cooperation and public participation in non-custodial measures.
The presentations were followed by a thematic discussion on multiagency cooperation
moderated by Professor Minoura.
6.

On 9 September 2015, presentations were made by: (1) Dr WU Zongxian, Professor andDirector of the Institute of Crime and Corrections, China-US Center for Forensic
Psychology, College for Criminal Law Science of Beijing Normal University (CCLS) on“Chinese Practices Related to The Tokyo Rules: New Developments”; and (2) Mr Pfeifferof the UNODC on “Challenges of the Implementation of the Tokyo Rules and Future
Perspectives”. The presentations stimulated a thematic discussion, which was moderated
by Professor Minoura of UNAFEI. The discussion was followed by the presentation of
the report of the Seminar by Mr Thomas L. Schmid of UNAFEI.

General Discussion
7. Mr Pfeiffer (UNODC) provided an overview of the implementation and key principles of
the Tokyo Rules, emphasizing the need to focus efforts on professional training anddissemination. The aims of the Tokyo Rules are to promote non-custodial measures inorder to avoid unnecessary imprisonment, enhance social reintegration and reduce
recidivism, and promote community involvement and human rights in the administrationof justice. Key principles of the Rules include non-discrimination, minimum intervention,
the presumption of innocence, and proportionality. Mr Pfeiffer provided examples ofsuccessful application of the Tokyo Rules in countries around the world at the different
stages of the criminal justice process. Examples from the pre-trial stage included theintroduction of pre-charge warnings in New Zealand, conditional and unconditional
discharge in Germany, non-monetary bail in Costa Rica, and police bail in England andWales. In Malawi, increased access to counsel has decreased pre-trial detention by almost
20% over seven years. In Ghana, the “Justice for All” programme provides judicial
review of pre-trial detention, resulting in a 10 percent reduction in the number ofdetainees. Successful examples from the trial and sentencing stage included the use ofcommunity service in Zimbabwe and Sweden, and the use of volunteer probation officers
in Kenya. The private sector also had a role to play, for example in electronic monitoringin England and Wales. As for the post-sentencing stage, Mr Pfeiffer referred to theexperience with individual pardons in El Salvador, the somewhat mixed experiences withcollective pardons in Italy, and early release programmes in Uruguay, Kazakhstan and
Nigeria. Mr Pfeiffer further provided examples of non-custodial measures for offenders
with specific needs, such as the consideration in Costa Rica of gender-specific mitigating
factors, two diversion programmes in the United States of America addressing specificneeds of women, fines and community service for drug offenders in Guyana, and the useof pardons and more proportionate sentences for drug offenders in Ecuador. Mr Pfeiffer
concluded by noting that although implementation of the Tokyo Rules varies worldwide,
non-custodial measures present positive alternatives to imprisonment. Countries should
continue to work towards implementing coherent and comprehensive penal policies,2including legislative reform, monitoring and evaluation, improving infrastructure andresource allocation, and increased training and public awareness of the use ofnon-custodial measures.
8.

During the discussion, a question was raised regarding the role of the UNODC inenhancing uniformity of the implementation of rules. It was suggested that uniformity
may not be the best solution, since practice must take each country’s unique
circumstances into account. Bilateral treaties are an option for facilitating international
cooperation in the implementation of non-custodial measures on a country-by-country
basis, and it was noted that the UNODC has been very involved in promoting treaties thatwould allow offenders sentenced in one country to serve their sentence in their homecountry. In addition, the model treaty on extradition, as well as the United Nations
Convention on Transnational Organized Crime and the United Nations Convention on
Corruption, may be applied to suspects as well as sentenced offenders. Scarcity offinancial resources presents a practical challenge to invoking these procedures for thetransfer of persons sentenced to non-custodial sanctions. Another issue is that theseprocedures, in practice, apply primarily to serious offences, for which non-custodial
measures are not often applied. In part, this is because the formal process for mutual legal
assistance is typically a costly and lengthy procedure. However, this need not be the case,and it was reported that the process is typically more efficient in Europe. Regarding theimportance of public support for non-custodial measures, Rule 18 of the Tokyo Rules
recognizes the need for public support to achieve full implementation of non-custodial
measures. In its efforts to disseminate the Rules, the UNODC collaborates withpractitioners from all sectors of the criminal justice system to design assistanceprogrammes for the public. In response to a question regarding assistance in the African
region, it was noted that for example UNAFRI and the Raoul Wallenberg Institute are
currently providing assistance to countries in Africa on request.

9.

Professor MINOURA Satoshi (UNAFEI) presented the results of his survey that
addressed the implementation of the Tokyo Rules in the Asian region. The survey focusedon all ten ASEAN countries plus China, Japan and South Korea. After analysing theresults of the survey, it was found that the status of non-custodial measures in the
countries surveyed could be classified into three categories: (1) countries withwell-implemented legal frameworks (i.e., Japan, the Philippines, Singapore, South Korea
and Thailand); (2) countries that allow many measures but lack effective implementation(i.e., Brunei, Indonesia, Malaysia, Myanmar, and Vietnam); and (3) countries with few
measures implemented (i.e., Cambodia and Laos). Professor Minoura cited researchsuggesting that countries with more social fairness, as measured by the “Gini coefficient”,
tended to have lower incarceration rates, as did countries that spent more on health andmedical services. Based on the survey results and other data, Professor Minoura
concluded that countries in the ASEAN+3 region have generally experienced similar
trends. The statistics suggested that social welfare services have a positive and practicalinfluence on criminal justice: paraphrasing the words of Franz von Liszt, “the best penal
policy is an effective social policy”. Thus, instead of focusing on imprisonment, it isimportant to consider how social welfare services could be used more effectively in crime
prevention and the social reintegration of offenders. At the same time, criminal justiceagencies are responsible for public safety. Therefore, it is important that offenders areappropriately placed either in prisons or in society based on their needs and the risks ofrecidivism. Professor Minoura also reviewed several non-custodial measures
implemented in the region, including Thailand’s compulsory drug treatment programme3and South Korea’s use of electronic monitoring. Referring to the situation in Japan, he
noted that electronic monitoring is not used and has been criticized on grounds of a
possible invasion of privacy. Nonetheless, he suggested that electronic monitoring in
conjunction with professional and volunteer supervision might improve non-custodial
treatment in Japan. Finally, he concluded that the “welfare model” will be one of thesolutions for promoting the non-custodial measures referred to in the Tokyo Rules in
Asian countries.
10. Professor AKASHI Fumiko (UNAFEI) introduced UNAFEI’s activities to promote theTokyo Rules by focusing on public participation in community corrections. In January
2015, the 159th International Senior Seminar was held at UNAFEI, during which theparticipants agreed that community-based treatment is important not only to address theissue of prison overcrowding but also to reduce recidivism. In that light,
community-based treatment is not a “soft” option, but a “smart” option. UNAFEI has
also hosted the Volunteer Probation Officer (VPO) Seminar 47 times since 1985, during
which Japanese VPOs exchange opinions on offender treatment with participants at
UNAFEI international training courses. UNAFEI also has a long history of providing
technical assistance to requesting countries. From 2003 to 2010, UNAFEI assisted thePhilippines in the development of its Volunteer Probation Aide (VPA) System, increasing
the number of VPAs from 78 in 2002 to 11,851 in 2012. Also, from 1989 to 2013,
UNAFEI provided assistance to Kenya in the introduction of volunteer probation officers
into Kenya’s juvenile justice system. In July 2014, UNAFEI invited probation officers
and volunteer probation officers to attend the Asia Volunteer Probation Officers Meeting,which was the first international meeting of volunteer probation officers. At the meeting,
VPOs and officials responsible for community-based treatment in China, Kenya, thePhilippines, Singapore, South Korea, Thailand and Japan shared their countries’ bestpractices and challenges regarding topics such as recruitment, training and developmentof VPOs, securing the safety of VPOs, and reducing stress and financial burdens of VPOs.
The meeting culminated in the adoption of the Tokyo Declaration, confirming the key
roles played by VPOs through their personal interactions and mobilization of community
resources, and resolving to enhance international networking. The Seminar for Promoting
Community-based Treatment in the ASEAN Region was jointly hosted by the Thailand
Department of Probation, the Thailand Institute of Justice, the Japan International
Cooperation Agency and UNAFEI. The participants at the seminar noted that all thecountries represented at the Seminar either have or are developing community-based
treatment strategies. Further, the Seminar also confirmed the need for continuous training
and professional networking in the field of community corrections.
11. During the discussion, the issue of compulsory non-custodial treatment was raised,particularly in the context of drug treatment programmes and electronic monitoring. The
UNODC encourages voluntary participation in drug treatment programmes, althoughseveral countries reported that participation is required by law. Regarding electronicmonitoring, some concerns were raised regarding the dignity of the person, due to thestigma associated with monitoring devices and the intrusion upon the private lives ofoffenders. However, others felt that current devices are less stigmatizing because they are
relatively inconspicuous. Moreover, personal privacy is still respected because theinformation obtained is merely location data. The goal is to use the least restrictive means
possible to monitor offenders while maintaining community safety. It was also stated thatelectronic monitoring can be used to monitor compliance with restraining orders; in othercases, it is an alternative to imprisonment. Thus, it is important to consider the use of4

electronic monitoring case by case.
12. Professor HIROSE Yusuke (UNAFEI) presented on the implementation of the Tokyo
Rules in Japan from the perspective of the judiciary. At the stage before trial, Japanutilizes police discharge, summary order procedure and suspended prosecution as
diversion measures. In Japan, 95 percent of cases cleared are referred to prosecutors, but
only 30 percent of those cases are actually prosecuted. Suspension of prosecution does
not require court approval, and in reaching their decision, prosecutors consider thegravity of the offence and facts and circumstances of the suspect and the crime. Under
Japan’s summary order procedure there is no public trial, and judges analyse
documentary evidence in chambers. Imprisonment cannot be imposed as a sentence insuch cases, and the consent of the accused is necessary to invoke the procedure. In 2013,78 percent of all cases were disposed using this procedure. Suspension of execution ofsentence promotes social reintegration and avoids the adverse effects of imprisonment. It
can be imposed with or without probation, and applies to imprisonment terms up to three
years; the suspension period is one to five years. Under certain conditions, sentences canbe suspended for a subsequent offence, provided that the offender is also placed on
probation. In 2013, 58 percent of all imprisonment sentences were suspended. Since 2008,
the number of sentences requiring probation has increased due to new legislationencouraging rehabilitation, the implementation of special treatment programmes andpublic participation in Japan’s newly implemented lay judge (saiban-in) system.
Professor Hirose concluded by acknowledging the need for judges to understand key
concepts of rehabilitation, as well as the need for cooperation between governmental
agencies.
13. During the discussion, an issue was raised regarding the delicate balance between the useof suspension of prosecution on the one hand and the rights of victims and the public tosee justice carried out on the other. Questions also arose about the relationship between
diversion programmes and recidivism rates. Although there are no formal statistics
regarding the recidivism rates for suspended prosecution, 1 it was explained that Japaneseprosecutors often meet with victims of sexual assault, bodily injury and domestic
violence. Victims and the offenders sometimes resolve their disputes outside of court
through financial settlements or other arrangements, and the prosecutors do their best to
confirm and comply with the victims’ wishes. In addition, if there is dissatisfaction with a
non-prosecution decision, a review panel of 11 lay people can review the decision. If it isfound that the decision was improper, then the prosecution must reopen the case. The
discussion also addressed Japan’s increased use of probation since the adoption of the lay
judge (saiban-in) system, and the question arose whether the Japanese public had morefaith in custodial sentences than did judges. In fact, the answer depends on the type ofcrime; lay judges have a tendency to lean toward probation because there is a feeling that“probation is better than nothing”, meaning that government will be involved insupervising the offender. Thus there is a tendency for the lay judge system to suspend
sentence with probation, as opposed to without.
14. Mr IMAFUKU Shoji (Ministry of Justice of Japan) presented on the implementation of
non-custodial measures in Japan, focusing on community-based treatment of adults.
Although the Japanese system does not rely significantly on custodial measures, the rate1

For information on Japanese criminal justice statistics, interested parties are encouraged to consult Japan’sWhite Paper on Crime, published annually by the Research and Training Institute of the Ministry of Justice.
5

of re-imprisoned inmates has increased to 58.9 percent. Many of these offenders have nohome to return to upon release, and so providing offenders with support that facilitates
their social reintegration is the critical point of the government’s policy to prevent
recidivism. Japanese probation is founded upon three pillars: (1) offender treatment
programmes, including cognitive-behavioural therapy and community service, (2)guidance for offenders through collaboration between professional probation officers andvolunteer probation officers, and (3) rehabilitation assistance utilizing a holistic approach
including multi-agency, private sector, and community collaboration. This approach torehabilitation relies on the support of volunteer probation officers, who provide personalcounselling to help offenders build a sense of self-efficacy. Further, governmental
agencies and private employers collaborate to provide job and housing assistance (forexample by relying on Japan’s 14,488 registered cooperative employers to provide
assistance in obtaining employment), as well as providing social and medical services tothe elderly and disabled. Community-based treatment will also be a centrepiece ofJapan’s newly implemented “partial suspension of execution of sentence”. Under thissystem, offenders, in particular drug abusers, will serve a shorter custodial sentence
followed by a probation period served in the community. This system removes drug
abusers from the cycle of drug use during the custodial phase, and then reintegrates theminto the community, providing drug treatment and supervision during the probation
period. Regarding future challenges, in addition to continually improving rehabilitation
practices, Japan is considering implementing pre-sentence investigations in order toensure that appropriate offenders receive probation.
15. During the discussion, it was noted that drug and alcohol abuse is a disease, and thequestion of how Japan handles addiction among correctional and rehabilitation staff wasraised. The Ministry of Justice of Japan has a policy of dismissing any employees who
use stimulant drugs. The response to alcohol dependency depends on the seriousness ofthe problem. However, there is a process for providing treatment to staff.
16. Dr Kittayarak (Thailand Institute of Justice) presented on non-custodial measures inThailand, noting the high rate of incarceration in Thailand and in many countries in the
ASEAN region. In addition to applying non-custodial measures in the pre-sentencing andsentencing phases, Thailand utilizes collective pardons as a measure to reduce prison
population. In 1986, Thailand established its volunteer probation officer programme toassist probation officers and to bridge the gap between the needs of the local communityand offenders. Thailand’s 14,696 VPOs supervise offenders in the community and draw
on community resources to support offender reintegration. Recruiting of active andmotivated VPOs is one of the continuing challenges facing the programme. Restorative
justice is another measure that has been implemented to increase diversion and place
greater emphasis on victims through Family Community Group Conferencing. Thailand
faces significant prison overcrowding due to the rise in stimulant drug offences, and it
was reported that 80 percent of female inmates and 70 percent of male inmates areincarcerated for drug offences. In response, Thailand has shifted its emphasis to crime
prevention and the diversion of drug offenders to treatment programmes. The Narcotics
Addict Rehabilitation Act of 2002 relies on the discretion of arresting officers todetermine whether drug offenders are suitable for diversion programmes. Although the
Act authorizes detention for 15 to 45 days for the assessment of drug offenders, 70
percent are released on bail. The Community Justice Network, established in 2003, is a
new paradigm to empower the community to work as a partner with the criminal justicesystem. The Network comprises more than 800 community justice centres with 124,668
6

community justice members. Community justice members receive complaints, reportcrimes, provide counselling to victims and supervise probationers, among many otheractivities. In line with the Bangkok Rules, Thailand also promotes non-custodial
measures that focus on the unique needs and characteristics of the female offenders, suchas the tendency for their offences to be non-violent, their roles as primary caretakers,
history of victimization, and so on. To address these characteristics, the Criminal
Procedure Code provides alternatives to imprisonment, such as early release andconfinement outside of prisons for pregnant or nursing mothers. Moreover, social
investigation reports prepared by probation officers have been used to assist courts in
imposing gender-sensitive sentences. Dr Kittayarak concluded that non-custodial
measures are not merely alternatives to imprisonment but they are better sentencing
options. Enhancement of these measures requires engagement of the community,
continued training and research on the effectiveness of such measures.
17. During the discussion, the topics addressed included Thailand’s compulsory drug
treatment programme, measures to address the spread of HIV in prisons and efforts tosuppress the supply of drugs. It was explained that the compulsory treatment programmein Thailand was intended to encourage drug addicts to seek voluntary treatment. As there
are 100,000 drug addicts involved in the programme, confinement during the 45 day
assessment period has been criticized, despite that fact that bail is granted in 70 percent of
the cases. Determining whether assessment is necessary depends on the nature of the drug
addiction, and guidelines have been developed to facilitate the assessment. It is hopedthat the guidelines will reduce the need for detention to conduct the assessment.
Punishing drug traffickers and being more lenient towards mere possession of drugs
might be the best policy. Regarding the role of the police in the compulsory treatment
programme, it was emphasized that the police encourage offenders to pursue voluntarytreatment programmes; however, the police are not focusing on medical care. Hospitals
and clinics should be encouraged to have open-door policies, which it is hoped will
reduce the need for compulsory treatment. Regarding efforts to curtail the spread of HIV,
offenders with HIV or other major diseases are prioritized for collective pardons because
the institutional setting may not be the most appropriate for their medical treatment.
Regarding efforts to suppress the supply of drugs, it was explained that the Thaigovernment is taking efforts to address supply; however, the border with Myanmar
remains porous. Thailand has multi-lateral agreements with neighbouring counties tocombat drug trafficking and is taking measures to suppress precursors. The government isalso working with impoverished regions through “alternative development” to encouragecommunities to cultivate coffee and other legal crops instead of drugs.
18. Dr Matti Joutsen (HEUNI) presented on international patterns in the use ofcommunity-based sanctions. Specifically, his presentation addressed the sanctions ofprobation, community service, electronic monitoring, monetary payments and restorative
sanctions. Historically, restorative justice was the traditional approach to criminal justiceuntil states began imposing sanctions of a retributive nature. Modern systems are
blending the aims of general prevention with rehabilitation. Imprisonment is a relatively
new sanction taken into wider use during the 1800s. In light of this evolution, it is worth
considering whether non-custodial measures, as opposed to imprisonment, should be thecornerstone of the penal system. Data on imprisonment demonstrates that there are global
patterns in imprisonment. In Africa, for example, imprisonment rates are generally low
despite increases in the crime rates. These trends challenge the view that high crime rates
necessarily lead to high incarceration rates. Illustrative of the trend toward non-custodial
7

sanctions, the role of probation is expanding to include citizen volunteers and the private
sector. Community service orders were developed in the 1970s and are being rapidly
adopted in many countries, as is the newer trend of electronic monitoring. Moreover,restorative justice is returning as a dispute resolution mechanism that applies to a broad
range of offences and at all stages of the criminal justice process. In addition to thesemeasures, monetary sanctions take many forms, including fines, diyya (financial
settlements under Islamic law), personal reparation, confiscation, compensation orders
and day-fines. In Germany, fines have become the most common criminal sanction,
filling the gap left by the steady decline of imprisonment from over 75 percent of all
sanctions in 1862 to below 10 percent in 2012. Dr Joutsen considered whether changes incriminality, changes in views on punishment, and changes in availability of non-custodial
sanctions could explain increases or decreases in the use of imprisonment and of
non-custodial sanctions. He concluded that there is no clear correlation between the useof any specific sanction and factors such as the amount or seriousness of the crime,
attitudes towards crime, or the availability of sanctions. As a result, the extent to which
we use imprisonment is not predetermined, and it is necessary to reconsider the view thatimprisonment is inevitable. In sum, the theoretical underpinnings of punishment throughthe criminal justice system, including retribution, deterrence and rehabilitation, can inmany cases be better achieved through non-custodial sanctions.
19. Mr Gary Hill (ICPA & ISPAC) presented on multiagency cooperation and public
involvement in non-custodial measures. Studies have shown that increasing incarceration
has little impact on reducing crime rates; however, there are direct links between crimeand factors such as employment, poverty and education. Practitioners can use simple
measures to facilitate non-custodial measures, such as providing detainees with the nameof a bail bondsman or helping them access legal services, but the scope of these measuresincreases by relying on volunteers, NGOs, non-judicial agencies and other community
resources. Mr Hill provided a striking example of how coordinated efforts can mobilize
public participation and achieve collaborative solutions. In Isfahan Province in Iran, acommitment was made to reduce the prison population in response to the spread of HIVwithin the prison. An executive committee was established to set policy and to plan. The
strategy was further coordinated by arranging meetings with the prosecution, the judiciary,
politicians, and provincial boards. Measures to secure public support included
coordination with victims’ groups to obtain support for the use of conditional release andpardons, holding parties and fundraisers to provide funds to support released prisoners, aone-day conference and making a short film on the reduction of the use of incarceration.
As a result of these efforts, the inmate population was decreased by 11.5 percent within
the first five months.
20. Mr MATSUTOMO Ryo, Social Welfare Advisor at the Tokyo District Public Prosecutors
Office, presented on support for the rehabilitation of suspects and the accused. Because
those who are incarcerated typically require social welfare support, the rehabilitation
process must begin as soon as possible. This support is known as “rehabilitation support
before entry”. Coordination of social welfare services and rehabilitation support are key
components of support before entry. Such methods in Japan include the Nagasaki Modeland the New Nagasaki Model, which coordinate social welfare services during the trial
and prosecution phases, respectively. In Japan, a number of agencies and organizations,such as public prosecutors offices, law firms and bar associations, collaborate withcertified social workers. The Tokyo District Public Prosecutors Office began social
reintegration support in January 2013. Social workers are placed in prosecutors’ offices as8part-time workers who handle individual cases and advise on and coordinate social
welfare services. Support is provided for cases of suspended prosecution, cases wherefines are imposed, and cases where sentences are suspended. The programme addresses
minor offences such as theft, fraud, trespass, etc., so it is expected that social welfare
support will have an impact. Many of these offenders are homeless, and they do not havestable jobs. Others have mental disabilities and require medical support. Mr Matsutomo
stressed the importance of relying on family members to provide rehabilitation support,
as well as pursuing informal support when formal support is unavailable. Futurechallenges include the development of social resources, long-term follow-up activities,
improving the skills of specialists, establishing systems for collaboration with social
workers and expanding citizen understanding and participation in the programme.
21. A panel discussion on multiagency cooperation was moderated by Professor Minoura of
UNAFEI, who suggested that sectionalism and the lack of leadership are significant
challenges to the success of multiagency cooperation. Mr Hill, Dr Joutsen and Mr
Matsutomo were asked for their opinions on overcoming these challenges. Mr Hill statedthat solutions involve training, management, oversight and education. Dr Joutsen
suggested emphasizing “coordination” by showing each agency how it will benefit fromcollaboration and making sure that each agency understands its role in achieving common
goals. Mr Matsutomo stated that the multiagency approach is difficult in Japan because
agencies operate under the “silo” mentality. He stressed the importance of identifying aclear strategy, tapping leaders and developing an institutional desire for coordination.
22. Following the panel, an open discussion session addressed restorative justice, electronicmonitoring and strategies for improving public perception of non-custodial measures. A
noteworthy example of restorative justice is its application to manslaughter cases bycourts in Kenya. In such cases, victim impact statements are included in pre-sentence
investigation reports, as well as any resolution of the case that may have been negotiatedthrough village elders. The application of restorative justice to cases of violence against
women was discussed. There was an expression of concern over the use of mediation insuch cases, in which an abuser is presumed to exert physical or mental control over theabused. The power differential between the abuser and the abused was acknowledged, as
was the fact mediation may often be inappropriate. However, there were also concernsthat a prohibition against mediation of such cases would be too absolute. It was alsostressed that informed consent must be a prerequisite to mediation. Another issue
discussed was strategies for encouraging victim participation in restorative justiceprogrammes. It was stressed that consent by all parties is fundamental to restorative
justice. One of the most important things for victims is to understand why the crime
happened. They also want to be compensated for their losses, as well as receive someform of recognition.
23. On the issue of electronic monitoring, the discussion considered whether such monitoring
had any deterrent effect. It was stated that electronic monitoring is widely used in China,
but there are no statistics establishing any deterrent effect, and practical experiencesuggests that monitoring is unlikely to have such effect. Although monitoring can locate
an offender, it does not reveal what the offender is doing. It was suggested that the
purpose of electronic monitoring is not to reduce crime but rather to be used as a tool forsupervision. The positive effect of monitoring is that it frees up the time for probation
officers to perform other valuable rehabilitation services. It was also stated that electronicmonitoring is usually successful, although some will commit drug offences or abuse9alcohol. On the other hand, an offender’s criminal behaviour may continue also while inprison.
24. The session closed with a discussion on strategies for improving public perception of
non-custodial measures. Dr Kittayarak stated that alternative measures are not popularamong the Thai public due to concerns about public safety, and he stressed the need tofind ways to persuade the public that non-custodial measures do not mean releasing
dangerous offenders into the community. Mr Hill stated that we should not “sell”
alternatives to imprisonment as a solution to overcrowding, but rather as the appropriate
sentence to protect the public, punish the crime, help the victim and rehabilitate theoffender. Community supervision is used because the offender is not dangerous, andprison resources are reserved for dangerous offenders. Reducing the prison population
should be accomplished through legislation and the principle of the least restrictivemeans. Dr Joutsen stated that it is important for the public, prosecutors, judges, the media,
and so on to understand that non-custodial treatment involves programmes to meet
offenders’ specific needs and that prisons can make offenders worse.
25. Dr Wu (CCLS) presented on China’s experience related to the implementation of
non-custodial measures. Since the 1980s, Chinese scholars have been studying
community corrections, with emphasis on the need to reduce the prison population.
Legislation establishing community corrections was formally adopted in 2011. Under
current law, offender supervision and community corrections are administered by thepeople’s procuratorates. Four categories of offenders are eligible for community
corrections: (1) those sentenced to public surveillance, (2) those placed on probation, (3)those granted parole, and (4) those allowed to serve their sentences outside prisons.
Probation is the most commonly used measure, with 86 percent of non-custodial
sentences resulting in probation. Dr Wu elaborated on the key components of China’s
community corrections system, such as offender supervision and administration,
providing education and rehabilitative treatment, and providing practical help andassistance to reintegrate offenders into society. Recent innovations in community
corrections include incorporating enforcement of penalties into the framework ofcommunity corrections, the implementation of social investigation of offenders during the
pre-trial stage, and the utilization of volunteers in community corrections. Other
innovations include paid service to community organizations, the use of probation orders,
and the creation of community corrections teams composed of government employees,social workers, volunteers and offenders’ families. These teams promote the efficiency ofadministration and assistance efforts. Finally, Dr Wu introduced the numerous efforts
undertaken by CCLS to research and promote community corrections.
26. During the discussion, training for judges and prosecutors on the implementation of
non-custodial measures was addressed, as well as efforts to increase public awareness. It
was acknowledged that training judges and prosecutors and informing the public are very
important, and the Chinese Ministry of Justice has issued notices on implementation ofpilot projects in community corrections since 2003. At the same time, local governments
have issued their own implementation documents identifying specific measures. Other
dissemination, training and public awareness measures include seminars, professional
journals, reports and evaluations conducted by the media, and television dramas.
Regarding the recently adopted community corrections law, specific procedures oncommunity corrections are prescribed, including compulsory measures, and efforts weretaken to ensure that due process is strictly observed. To encourage offender rehabilitation,10the law provides rewards for success, as well as sanctions for non-compliance. The law
also contains measures designed to encourage public participation in community
corrections.
27. Mr Pfeiffer (UNODC) addressed the challenges facing the implementation of the Tokyo
Rules. He recalled the advantages of non-custodial measures over incarceration, statingthat they provide a more adapted response to crime, avoid the adverse effects ofincarceration, reduce prison overcrowding and the cost of sentence execution, and are
more effective at offender rehabilitation. Despite these advantages, non-custodial
measures are underutilized for several reasons including a lack of appropriate legislationand implementation, lack of administrative structures and resources, lack of interagency
cooperation, and lack of support among criminal justice officials and the public. Mr
Pfeiffer also identified challenges in the use of non-custodial measures, such as balancing
the rights and interests of victims and offenders, concerns over “net-widening”, andinsufficient attention to particular categories of offenders. For example, non-custodial
measures must strive for gender sensitivity and should be used to mitigate thedisproportionate stigmatization of female prisoners. Likewise, non-violent drug offenders
account for a large percentage of prisoners and many of them have specific treatment
needs. As the criminal justice community continues to evaluate non-custodial measures, it
is also necessary to ensure that they are part of coherent and comprehensive criminal
policies, which may include such important aspects as decriminalization anddepenalization, sentencing reform (including mandatory minimums and life sentences),
access to legal aid, offender treatment, the promotion of social reintegration and so on.
Setting the stage for the thematic discussion, Mr Pfeiffer identified several issues that
may warrant further action at the UN level: (1) focusing on global overuse of pre-trial
detention; (2) closing the global data gap by improving the collection of data on
non-custodial measures; (3) the need for international standards on minor drug offences;and (4) the need for UN guidance on probation, electronic monitoring or other measures.
28. During the thematic discussion, the participants addressed a wide range of issues,
including the global data gap, non-custodial measures for women, pre-trial detention, anddecarceration. Further, the need for and desirability of UN guidance on probation,
electronic monitoring, and minor drug offences were discussed. Regarding the global data
gap, the insufficiency of data on non-custodial measures was acknowledged, and it wassuggested that the UN Programme Network Institutes (PNI) may be utilized to help inclosing the global data gap. It was noted that the research-oriented role of the PNI is well
suited for the collection and objective analysis of such statistics. Regarding women
offenders, there is a need to identify best non-custodial practices. It was noted that the
UNODC has a guidance note on non-custodial treatment for women. The issue of
pre-trial detention was identified as a critical area for non-custodial measures. It wasobserved that pre-trial detention is connected with the issue of speedy trial. Regarding
decarceration, significant political attention is being paid to this issue in countries such as
the United States, Russia and China. It was suggested that Japan—due to its history of
involvement with the Tokyo Rules, its experience with volunteer probation officers in
non-custodial treatment, and its role as the host of the Fourteenth United Nations Crime
Congress—is uniquely positioned to raise this issue at the next Congress. Regarding theneed for guidance on probation, it was suggested that such guidance would be welcome
because some countries, particularly in Asia, do not have legislation or do not know how
to implement it. Regarding electronic monitoring, some observed that the development oftechnology may make it ripe for UN guidance, and that useful guidance would state11which techniques are best and which groups of offenders should be targeted.
29. Much of the discussion focused on the need for and desirability of UN guidance on minor
drug offences, and the moderator presented the question of whether minor drug crimes
should be addressed in or building on the Tokyo Rules. Some viewed such guidance as a
top priority in order keep the high percentage of non-violent drug offenders out of prison.
It was noted that the UN views drug dependency as a health issue and that it should not
be criminalized. In Thailand, minor drug offences are common, and drug laws are quite
strict, as a result of which possession of a small number of tablets can result in 10 yearsof imprisonment. It was reported that the Thai government is trying to change drug abusefrom a criminal to a health issue. It was also suggested that assessment of drug users isvery important in the criminal justice process and that those with addiction should bediverted to treatment. However, some concern was expressed over guidance for minor
drug offences because some countries, particularly in Asia, do not view any drug offences
as minor; therefore, it may be difficult to achieve consensus. It was also suggested thatminor drug offenders require closer scrutiny to determine whether mere possession is the
only reason the offender is incarcerated. It was noted that even non-violent drug crimes,
such as driving under the influence, have the potential to cause serious harm, andsignificant percentages of drug offenders often have links with organized crime.
Nevertheless, in Japan, despite strict drug laws, first time offenders, once sentenced, arevery unlikely to face incarceration. Likewise, in the Western world—including the UnitedStates, where 70 percent of offenders have a history of drug use—most minor drug
offences do not result in imprisonment, although drugs are often viewed as the underlying
reason for the crime. As the discussion concluded, it was suggested that the continued
dialogue on non-custodial measures, in addition to focusing on global standards and bestpractice, might benefit by considering the broader purposes underlying each criminal
sanction that is imposed.

9 SEPTEMBER 2015
TOKYO, JAPAN12