Legitimacy Issues in the Enforcement of Post-Sentence Detention Measure for the Prevention of Recidivism

Abstract

          Post-sentence detention measures constitute one of the recidivism pre vention measures prescribed under the Act on Measures for the Prevention of Re cidivism in Sexual Offences or Violent Offences B.E. 2565 (2022). Such measures may be imposed upon persons whom the court has convicted of sexual offences or vi olent offences in order to detain such persons where there are reasonable grounds to believe that they are likely to commit sexual offences or violent offences again, and where no other measures are available to prevent such recidivism. Considering the nature of these measures, which involve restrictions on the rights and liberties of persons subject to detention orders in order to prevent the commission of further offences, post-sentence detention measures inevitably assume the characteristics of criminal punishment. Therefore, such measures must also comply with the fun damental principles governing criminal penalties.

          This research article demonstrates that the enforcement of post-sentence detention measures, which are imposed solely on the basis of reasonable grounds to believe that an individual may commit a repeat offence, without requiring the occurrence of any new act on the part of the person subject to such measures, is contrary to the criminal law safeguards, particularly the principle that punishment must be based upon the existence of an act. It also conflicts with the principle prohibiting double jeopardy, as well as the principle of proportionality in punishment. Furthermore, such measures may lead to the neglect of the responsibilities of the criminal justice system during the execution of imprisonment, which should focus on the rehabilitation and reintegration of offenders so that they are prepared to return to society without committing further offences or engaging in recidivism. This research article proposes amendments to the Act in relation to post-sentence detention measures. It is proposed that post-sentence detention measures should only be imposed where it is established that some new act or conduct has occurred on the part of the person who would be subject to such measures. In addition, the implementation of post-sentence detention measures should be significantly differ entiated from the execution of imprisonment by placing emphasis on rehabilitation and preparation for reintegration into society. This is intended to enhance the legit imacy of the enforcement of such post-sentence detention measures.