JUDICIAL DISCRETION IN TEMPORARY RELEASE OF CRIMINAL DEFENDANTS: A COMPARATIVE LEGAL ANALYSIS OF THAILAND, JAPAN, AND THE UNITED STATES

Abstract

This research aims to 1) examine the principles and judicial discretion of Thai courts in granting temporary release of criminal defendants; 2) compare the legal frameworks governing temporary release in Japan and the United States; and 3) propose amendments to Section 108 of the Thai Criminal Procedure Code to ensure that judicial discretion in Thailand is transparent, fair, and standardized. The study employs a qualitative research methodology using documentary research, analyzing Thai legal provisions such as the Constitution of the Kingdom of Thailand B.E. 2560 (2017) and the Criminal Procedure Code, as well as academic literature, Supreme Court judgments, and comparative laws from Japan and the United States.

The research findings reveal that:

1. The exercise of judicial discretion by Thai courts in granting temporary release remains based on general principles that allow judges to consider factors such as the seriousness of the charge, the credibility of the applicant, and the likelihood of flight or interference with evidence. However, the absence of a clear structural framework for risk assessment results in inconsistent judicial decisions and potential inequality before the law.


2. In comparison, both Japan and the United States have established clearer frameworks governing judicial discretion. Japan’s Hoshaku (bail) system specifies detailed conditions for temporary release and grants prosecutors a supervisory role, whereas the United States, under the Bail Reform Act of 1984, employs risk assessment tools and pretrial services to guide judicial decisions, reducing subjective bias and enhancing transparency within the justice process.


3. Although Thai law grants defendants the right to request temporary release under Section 108 of the Criminal Procedure Code, in practice, the lack of standardized criteria and effective oversight mechanisms has led to inconsistent and potentially inequitable outcomes. Therefore, this study proposes the establishment of a pre-release inquiry and structured risk assessment system, along with uniform judicial guidelines, to ensure transparency, consistency, and compliance with international human rights standards in the exercise of judicial discretion in Thailand.