THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Tammed v. FSM ,
4 FSM Intrm. 266 (App. 1990)

[4 FSM Intrm. 266]

JOSEPH TAMMED,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APP. NO. Y1-1988
Crim. Case No. 1988-3502
 and
 
RAPHAEL TAMANGROW,
Appellant,)

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

Crim. Case No. 1988-3508

OPINION

Argued:  February 13, 1990
Decided:  July 17, 1990

Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court
     Hon. C. Guy Powles, Designated Justice, FSM Supreme Court*
     Hon. John B. Tharngan, Designated Justice, FSM Supreme Court**

     *Former Judge, Western Samoa, on this Court by designation for this case
     **Chief Justice, Yap State Court, on this Court by designation for this case

APPEARANCES:
For the Appellant:          Robert Coate
                                         Public Defender
                                         Office of the Public Defender
                                         Colonia, Yap 96943

For the Appellee:           Clement Mulalap,
                                         Special Counsel
                                         Office of the Attorney General
                                         State of Yap
                                         Colonia, Yap 96943
 
*    *    *    *

[4 FSM Intrm. 267]

HEADNOTES
Criminal Law and Procedure - Sentencing
     The National Criminal Code does not contemplate routine application of the maximum or any other specific punishment but instead requires individualized sentencing, that is, court consideration of a broad range of alternatives, with the court's focus at all times on the defendant, the defendant's background and potential, and the nature of the offense, with the "overall objective" of the exercise of discretion being to "make the punishment fit the offender as well as the offense."  Tammed v. FSM, 4 FSM Intrm. 266, 272-73 (App. 1990).

Appeal and Certiorari; Criminal Law and Procedure - Sentencing
     In reviewing a sentencing decision of a trial court, an appellate court should follow the standards generally applied in criminal appeals, upholding findings of fact supported by credible evidence but overruling those legal rulings with which the appellate court disagrees.  Tammed v. FSM, 4 FSM Intrm. 266, 274 (App. 1990).

Criminal Law and Procedure - Sentencing
     When, before sentencing, a beating has been administered to a defendant by family and friends of the victim to punish the defendant for the crime for which he is to be sentenced, the sentencing court's refusal to consider the beatings is an inappropriate attempt to achieve a larger social purpose and an unacceptable diversion of the sentencing process when the refusal is not motivated by defendant's guilt or status but instead is an attempt to influence the future conduct of people who were not before the Court and who had not committed crimes similar to those committed by defendants.  Tammed v. FSM, 4 FSM Intrm. 266, 276-77 (App. 1990).
 
Custom and Tradition; Criminal Procedure - Sentencing
     Sentencing courts are not free to bar from considering beatings that were grounded upon, or were products of custom and tradition when considering sentencing, and failure to consider the customary implications of those beatings violates not only the implicit statutory requirement of individualized sentencing, but also mandate of 11 F.S.M.C. 1003, enacted pursuant to article V, section 2 of the Constitution, as well as the judicial guidance clause.  Tammed v. FSM, 4 FSM Intrm. 266, 278 (App. 1990).

Custom and Tradition
     The duty of a national court justice to give full and careful consideration to a request to consider a particular customary practice or value in arriving at a decision requires careful investigation of the nature and customary effect of the specific practice at issue, a serious effort to reconcile the custom and tradition with other constitutional requirements, and an individualized decision as to whether the specific custom or tradition should be given effect in the particular contexts of the case before the court.  Tammed v. FSM, 4 FSM Intrm. 266, 279 (App. 1990).

[4 FSM Intrm. 268]

Constitutional Law - Fundamental Rights; Criminal Law and Procedure
     In adopting the Declaration of Rights as part of the Constitution of the Federated States of Micronesia and therefore the supreme law of the land, the people of Micronesia subscribed to various principles which place upon the judiciary the obligation, among others, to assure that arrests are based upon probable cause, that determinations of guilt are arrived at fairly, and that punishments for wrongdoing are proportionate to the crime and meet prescribed standards.  Tammed v. FSM, 4 FSM Intrm. 266, 281-282 (App. 1990).

Criminal Law and Procedure - Sentencing; Custom and Tradition
     When a trial court is asked to give special mitigative effect to customary punishment during its sentencing proceedings, the court must first consider whether these customary activities have become so imbued with official state action so that the actions of the assailants are seen as actions of the state itself; if so the punishments must be tested by the same standards that would be applied if state officials carried out these punishments directly.  Tammed v. FSM, 4 FSM Intrm. 266, 283 (App. 1990).

Criminal Law and Procedure - Sentencing;
Constitutional Law - Judicial Guidance Clause; Custom and Tradition
     The judicial guidance clause prohibits a sentencing court from giving special effect to customary beatings administered to the defendant, unless the court finds that such recognition would be consistent with the protections guaranteed to individuals by the Declaration of Rights.  Tammed v. FSM, 4 FSM Intrm. 266, 284 (App. 1990).
 
 *    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This consolidated appeal requires the Court to consider whether physical beatings, alleged to have been customary punishments meted out to punish the defendants for their crimes prior to sentencing, may be disregarded by the trial judge in arriving at sentencing decisions, on grounds that if the court were to give such punishment mitigative effect, this might be seen as court approval and could encourage more beatings.

I.
     Joseph Tammed and Raphael Tamangrow both were convicted in separate proceedings of sexual assault.  In both sentencing hearings, it was disclosed that, before their arrests and convictions, the defendants had been beaten severely by persons from the villages of the victims, in retribution for the sexual assaults.

     In both cases, there was no specific evidence concerning custom, but there were references in the presentence reports, affidavits and

[4 FSM Intrm. 269]

representations by counsel all suggesting that the beatings may have been carried out as a result of, or in compliance with local custom.  All parties and the court proceeded on that assumption.  The trial court in each case stated specifically that the beating would not be taken into consideration in mitigation of the sentence, because this might encourage others "to take the law into their own hands."  The defendants now appeal from that refusal of the trial court to give mitigative effect to the beatings.  We reverse and remand these cases to the trial court with instructions to consider the beatings in the course of resentencing the defendants.

II.
     The following facts, none of which is in dispute, may be gleaned from the presentence report, hospital records, affidavits and the transcripts of trial court proceedings.

A.  The Beatings.
     1.  Joseph Tammed - Tammed committed his sexual assault against the victim, a high school student, on March 15, 1988.

     Ten days later, on March 25, 1988, relatives of the victim lured Tammed to a waiting vehicle, forced him into it, and drove him to the home of the victim's father where he was severely beaten.  Aside from kicking and punching Tammed, his captors paid special attention to the hand which they referred to as having wandered mischievously and having held an alleged threatening weapon, a knife. Pinning the hand down, they smashed it with a two-by-four wood piece, breaking several bones in his hand and fingers.  There is some question whether his hand ever will heal properly.  At various times during the ordeal, Mr. Tammed's captors taunted him, threatened him with weapons and urinated upon him.

     Bleeding from his nose and an ear, and with a smashed and broken hand, Tammed finally was left on the road to find his own way home.

     2.  Raphael Tamangrow - Tamangrow committed his sexual assault on July 25, 1988, accomplishing the unlawful sexual penetration by inserting the barrel of an air gun within his victim's vagina, producing mortal fear in her.

     On July 31, 1988, Tamangrow was abducted from his village by fellow villagers of the victim.  He was then beaten with fists and coconut fronds, kicked and slapped, all with a severity similar to the attack upon Tammed.  After this beating, Tamangrow was immediately hospitalized, and remained there until August 5, 1988.

     Hospital records indicate that upon admission, Tamangrow's eyes were swollen shut.  There was general swelling of his face, lips, neck, back and both arms.  He had bruises on most parts of his upper body and extremities.  He was conscious, but vomited when he tried to consume water, and therefore was given intravenous feeding.  Urinary difficulties also ensued and a

[4 FSM Intrm. 270]

catheter was inserted to drain his bladder.
 
B.  Custom and Tradition.
     Although the record reflects no serious effort by any party in either case to establish the precise contours of customary punishments and, particularly in the Tamangrow case, there are contentions that some aspects of the beatings were violative of customary procedures,1 there seems to be general agreement that these beatings have substantial customary and traditional implications.

     The Tamangrow presentence report indicates that some traditional leaders viewed Tamangrow's transgression as especially heinous because he is a lower caste person and his victim is of a higher caste.  One traditional leader is quoted in the report as saying that under custom, the punishment of Tamangrow could have been much more harsh, up to and including death.

     The presentence report concerning Tammed cites members of the victim's family as agreeing with Tammed's father that in a traditional tribunal, the case would be dismissed on the ground that justice was already achieved by the beating of Tammed.

     Counsel for the government essentially agreed that Tammed's beating was "traditionally sanctioned," Tr. 7, relating that he too had been subjected to pressures to engage in a customary punishment.

     Finally, government counsel suggested that, as a matter of customary law, the beating may have restored Tammed fully to the community, not only reducing or obviating the need for further punishment, but entirely cleansing him of liability.2 Tr. 9.  Perhaps the most persuasive indication of the official view of the government concerning the traditional nature of these beatings is the admission of counsel during oral argument in this appeal that, because of the customary nature of the punishment, no prosecution was ever initiated against any of those who attacked either of the defendants.

C.  The Trial Court's Response.
     The same trial judge heard both cases.  Reluctant to take any action that might be interpreted as approving the kinds of beatings that had taken

[4 FSM Intrm. 271]

place in these cases, he refused to give any mitigative effect to the beatings.  In the case of Mr. Tammed, the trial court said:

     I'm sorry I cannot take the beating that you received --    I don't doubt that it occurred -- I can't take that as a mitigating factor in the judgment.  Perhaps that would be reasonable in your case itself.  If I did that people   would take the law into their own hands in all the other cases before me.

Tr. at 12.  Subsequently, the effect of this ruling was confirmed as follows: MALONEY:  "Your Honor, it's -- am I understanding that the beating that my client received is not a mitigating factor?"  COURT:  "I'm not going to reduce the sentence that I would otherwise give because of it."  Tr. at 13.  The court then sentenced Tammed to two years in jail, with provisions for work release incorporated into the judgment.

     The court's response to Tamangrow was similar:

     If this were the only case that the court would ever have where there was a beating -- however, it's not -- and if  the sentences the court gives would have no effect beyond the immediate parties, perhaps I could consider in mitigation the beating that you received, which I don't approve of and which was severe.  That is not the case, however.  The judgments of this court do have an effect    on the community and in future cases a group of men    taking the law into their own hands can say, "It's all right. The Court lets us handle the punishment."  I make that statement not denying that there is apparently,  because it's been raised in two cases now, a Yapese    custom along these lines.  I make the statement, "taking  the law into their own hands," in this sense -- that the government has been adopted with a system of criminal justice which provides for the punishment of people who violate the criminal laws.  The sentence of the Court is that you be confined for a period of two years in the custody of the Chief of Police.

Tr. at 23-24.     

[4 FSM Intrm. 272]

III.
     Both defendants suffered substantial, even brutal, beatings perpetrated by people who saw themselves as somehow representing the victims and their communities.  We find it helpful to begin analysis by considering how courts, in the sentencing process, generally should respond to beatings inflicted by other persons to punish the defendants for the crime under consideration.

A.  Sentencing Goals and Standards.
     1.  Role of the trial court - The defendants in these cases both had been convicted of the crimes of sexual assault, in violation of 11 F.S.M.C. 914(1).  This crime is punishable by imprisonment of up to five years, 11 F.S.M.C. 914(2)(b), and a fine of up to $5,000.  11 F.S.M.C. 1001(2).

     These are maximum, not mandatory or minimum, punishments for sexual assault.  The National Criminal Code does not contemplate routine application of the maximum or any other specific punishment but instead authorizes court consideration of a broad range of alternatives.

     Authorized sentences. -- In any case where the Court    finds that the ends of justice and the best interests of  the public and the defendant do not require that the  maximum sentence permitted by law be imposed on a person convicted of a crime, the Court may impose a sentence consisting of any one or any combination of the following:
  
     (1)  imprisonment for a term less than the maximum allowed by law;

     (2)  imposition of a fine as prescribed by law;

     (3)  suspension of a term of imprisonment and/or   fine upon such reasonable conditions as shall be set by the Court;

     (4)  suspension of imposition of sentence on such reasonable conditions as shall be set by the Court;

     (5)  probation for a period not exceeding the maximum term of imprisonment to which the convicted person could have been sentenced upon such reasonable conditions as shall be set by the Court;

     (6)  appropriate restitution, reparation, or service to the victim of the crime or to his family;

     (7)  confinement to a particular geographical area; and          
 
[4 FSM Intrm. 273]

     (8)  a period of community service.

11 F.S.M.C. 1002.

     This section tells the court what standards to apply in the first instance and, except for the diaphanous nature of the standards themselves, gives the court little or no leeway.  The sentencing court must first assess "the ends of justice and the best interests of the public and the defendant" and determine whether these "require that the maximum sentence permitted by law be imposed."  If they do so require, the sentencing court has no options available and must impose the maximum sentence.

     If those factors do not require maximum sentences, however, then the statute presents the sentencing court with an extraordinarily broad range of sentencing alternatives.  Aside from the 11 F.S.M.C. 1003 mandate that the court shall "give due recognition to the generally accepted customs prevailing in the Federated States of Micronesia," the statute is silent as to the standards to be applied in selecting from among the array of sentencing options.

     This absence of stated standards should not be misinterpreted as permitting sentencing courts to do whatever they wish, so long as sentences are within the prescribed maximum.  Of course, the Court is bound always to consider Micronesian values in its decisionmaking, including sentencing decisions. Moreover, the statute, by presenting a broad range of alternatives, implicitly requires the sentencing court to exercise its discretion in each case to determine what sentence is appropriate for a particular defendant.  This is a hallmark of statutes calling for what has come to be know  as individualized sentencing.

     The "overall objective" of the exercise of discretion in individualized sentencing must be to "make the punishment fit the offender as well as the offense."  J. Israel, Sentencing:  The Dilemma of Discretion, reprinted in National Judicial College, Judicial Discretion 11 (1980).  Of course, this objective allows consideration of related public concerns such as solicitude for the rights and concerns of the victim, affirmation of the values of the community, and the societal wish that others be deterred from committing similar crimes.  Yet given the purpose of the grant of discretion, the trial court's response to subsidiary interests must be consistent with the critical, core requirements of individualized sentencing.  The sentencing court's focus at all times must be on the defendant, the defendant's background and potential, and the nature of the offense.
 
      2.  Role of the appellate court - No constitutional provision, statute or court rule directly prescribes the standard of review to be employed by the FSM Supreme Court appellate division in reviewing a trial court sentencing decision.

     Nor do previous decisions of this Court offer direct guidance.  This is but the third appeal from a sentencing decision.  In the first, the defendant

[4 FSM Intrm. 274]

contended that the trial court had extended its inquiry too far, improperly taking into consideration factors prejudicial to the defendant.  In dismissing that appeal, this Court upheld the authority of the sentencing judge to make a broad inquiry into the background of the defendant but did not find it necessary to discuss standards generally applicable to review of sentences.  Kallop v. FSM, 4 FSM Intrm. 170 (App. 1989).

     Similarly, in the second appeal the Court merely affirmed the trial court's discretion to impose consecutive rather than concurrent sentences, without discussing the general nature of appellate review in the area of sentencing.  Plais v. FSM, 4 FSM Intrm. 153 (App. 1989).

     In absence of more explicit guidance, we look to general principles.  The Constitution, the fundamental source of governmental powers within the Federated States of Micronesia, authorizes the appellate division of this Court to review all cases heard in the national courts.  FSM Const. art. XI, 7.  No constitutional or statutory provision distinguishes review of sentences from any other kind of decision subject to review.  This suggests that the principles to be applied in reviewing trial court sentencing decisions should be the same as those used for review of other trial court decisions in criminal cases.

     In considering criminal appeal cases, appellate courts routinely distinguish between factual and legal rulings.  Factual determinations are upheld if credible evidence supports the finding.  Engichy v. FSM, 1 FSM Intrm. 532, 556 (App. 1984).  On the other hand, legal rulings are not entitled to deference by the appellate court and are freely set aside on appeal.  Laion v. FSM, 1 FSM Intrm. 503 (App. 1984); Dores v. FSM, 3 FSM Intrm. 155 (App. 1987).  We find these standards well suited for sentencing decisions for they permit the trial judge the necessary latitude to assess and balance the various factors that should weigh upon a sentencing decision, but also enable the appellate division to assure that the sentencing decision has been arrived at in accordance with the legal requirement that all sentences be individualized.

     We recognize that in adopting these general criminal appeal standards of review for sentencing purposes, we are departing from the approach employed in some other jurisdictions.  For example, the traditional rule in the United States was that, in absence of statute specifically providing for review, the sentencing decision of a trial court could be reviewed and modified by an appellate court only in the "most exceptional circumstances."  United States v. Martell, 335 F.2d 764 (4th Cir. 1964).3

     However, the reasons for the contrast in the United States between the normal careful appellate review of most criminal matters and the extreme appellate court deference given to sentencing decisions are obscure and, to many judges, even bewildering.  Scott v. United States, 419 F.2d 264, 266 n.2 (D.C. Cir. 1969). Indeed, it has been said that the reason for the "large scale" absence of appellate review of post trial criminal matters in the

[4 FSM Intrm. 275]

United States is "purely historical," and inconsistent with individualized sentencing.  J. Burns and J. Mattina, The National Judicial College, Sentencing 31 (1978) (hereafter "Sentencing").
  
     When a fixed, predetermined punishment automatically followed each conviction, there was indeed little occasion to exercise penological policy or to supervise the activities of any sentencing judge.  But such is no longer the case. The trial for a legally prohibited conduct nowadays is followed by an inquiry into the personality needs of the actor who has engaged in this conduct, so as to arrive at a sentence which, within the framework established by law, is best suited to protect society by treatment (ranging all the way from neutralization and penitence to reformation) of the actor.  Under those changed circumstances, a great deal of human discretion and ingenuity are called for and, in fact, applied. Such exercise of discretion requires legal supervision.  Failure to extend the minimum standards of law to such proceedings does violence to the principles of the constitution and to every maxim of constitutional interpretation.

Id.

     It therefore appears that appellate deference to trial court sentencing decisions is the prevailing rule in the United States today primarily by virtue of the doctrine of stare decisis.  In the Federated States of Micronesia we have no previous decision on the issue and are free to fashion our own rule.4  Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 112 (Pon. 1985);  Panuelo v. Pohnpei, 2 FSM Intrm. 150, 162 (Pon. 1986).

     The task of this Court is to create a system of jurisprudence suitable for the people of the Federated States of Micronesia.  Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).  We should not lightly adopt principles developed in response to unique historical considerations not relevant to the Federated States of Micronesia today.  Federated Shipping Co. v. Ponape Transfer & Storage, 3 FSM Intrm. 256, 259 n.2 (Pon. 1987).      

[4 FSM Intrm. 276]

     We decline to adopt the "purely historical" unexplained rule from the jurisprudence of the United States but instead hold that the standards for appellate review of sentencing decisions are to be based upon the standards generally applied by this Court in criminal appeals.

B.  Unofficial Punishments and Sentencing.
     With these guidelines in mind, we now consider the refusal of the trial court to consider the beatings as a potentially mitigating factor.

     There is no question that the beatings sustained by Messrs. Tammed and Tamangrow flowed directly from the wrongful conduct which brought them before the Court.  These beatings were viewed by the assailants, the defendants and the community as a punishment for the crimes, and distinguished the defendants from other offenders who had perpetrated similar crimes but had not sustained beatings.
 
     We sympathize with the reluctance of the trial court to appear to condone or encourage such harsh and brutal beatings as these.  However, the overriding and unyielding duty of a sentencing court is to strive to take into consideration all factors which are relevant to the justice of a proposed sentence.  We do not rule here that a trial court must always assign a particular effect to every factor that may be relevant to the defendant's sentence.  Whether a specific fact is of sufficient relevance and importance to affect the sentence in a given case normally is a decision for the trial judge, whose decision in that regard is entitled to the deference accorded to findings of facts.

     Here however the trial court was not weighing and balancing the import of the beatings but was excluding them from consideration altogether.  This was not because they were irrelevant or too insubstantial to warrant consideration, or for any other reason pertaining to the justice of the sentences of these two defendants.  Indeed, the trial court recognized the relevance of the beatings, acknowledging to the defendants that it would have been reasonable to consider them if he were considering their cases alone.  This, then, was a policy decision, tantamount to a rule of law, absolutely barring from consideration beatings inflicted upon defendants to punish them for their crimes.  Adoption of such a policy must be tested by the standards applied for review of legal rulings.  If the appellate court disagrees with the trial court on a legal ruling, the trial court's decision must be set aside.

     The court's reason for depriving the beatings of mitigative effect was that giving consideration to them might encourage other beatings.  We find this unsatisfactory for several reasons.

     First, the explanation confirms that the refusal to consider the beatings was not motivated by anything having to do with the status or guilt of the defendants. Instead, this was an attempt to influence conduct of

[4 FSM Intrm. 277]

people who were not before the court and who had not committed crimes similar to those for which the defendants were being sentenced.  Such an attempt to achieve a larger social purpose is an unacceptable diversion of the sentencing process from its primary goal, a just sentence tailored to respond to the defendant, his background and the nature of his crime.5

     We note also that the method by which the court attempted to discourage similar beatings would not necessarily produce that result.  There is no reason to believe that increased punishment to defendants is inconsistent with the aims of assailants who beat them.  That being so, a court's refusal to reduce sentences in response to the beatings would not discourage future beatings.  Indeed, it seems quite likely that one of the primary goals of those who authorize or carry out such a beating is to increase the offenders' overall punishment.  If increased punishment is a goal of those who authorize and carry out beatings, a flat court policy against giving mitigative effect would actually encourage beatings.

     We are confirmed in our view that such beatings should be taken into consideration in arriving at sentencing decisions by an Australian decision in a case with facts remarkably similar to this one.  In that case, the defendant had been convicted of murder.  Before he was sentenced, members of his community severely punished him for the crime, inflicting spear wounds in his abdomen.  At the sentencing hearing, the defense, asserting that this had been a form of customary retribution, asked that the spearing be considered in mitigation and that the trial court simply place the defendant on probation, without further imprisonment.  The trial judge denied that request, sentencing the defendant to seven and one-half years of hard labor.

     On appeal, the Australian Federal Court concluded that the injuries could be regarded "broadly" as a form of customary retribution, but found no adequate showing that the spearing had been carried out pursuant to customary law. Specifically, there was no evidence that the required meeting of the community or its tribal elders had taken place.

     [I]f it is to be asserted that conduct of this sort should be seen as a reflection of the customary law of an Aboriginal community or tribal group, we are of the opinion that there should be evidence before the Court to show that this was indeed the case and that what happened was not simply the angry reaction of friends of the deceased.

[4 FSM Intrm. 278]

     Mamarika v. Regina, 42 A.L.R. 94, 99 (1928).  Nonetheless, despite concluding that the spearing should not be regarded as having been in compliance with customary law, the appellate court suspended the entire sentence, subject to good behavior.  The court explained its reasoning as follows:

     It is of course a fact, and one that cannot and should not be disregarded, that the appellant did suffer serious injuries at the hands of other members of the community....In the circumstances we are of the opinion that this Court should approach the matter on the basis that, by reason of his actions the appellant brought on himself the anger of members of the community and that as a result he received severe injuries from which he fortunately made a good recovery.  So seen, it is a matter properly to be taken into account in determining an appropriate sentence, without giving any sanction to what occurred....

Id. at 99.

     Summarizing, we hold that if the beatings perpetrated upon the defendants were regarded as having been carried out informally, as a kind of vigilante activity, without any customary implications at all, the trial court would have been required to give them careful consideration in each case and, in absence of some compelling reason to the contrary, to give the beatings some mitigative effect.  We hold also that the reasons given by the trial court were not sufficient to justify failure to give consideration to these beatings.

C.  Customary Punishments In Sentencing.
     1.  "Due recognition" - To the extent that these beatings were grounded upon, or were products of custom and tradition, it is even more apparent that the court was not free to bar them from consideration.  The Constitution and the National Criminal Code both send clear signals to this Court that when a customary law or practice is raised, we are required to proceed with great care.  The court must seek to assess the precise nature and implications of the practice and to arrive at a solution that does not pose unnecessary conflicts between custom and the FSM Constitution or statutes.  Article V of the Constitution sets the tone, confirming that, "Nothing in this Constitution takes away a role or function of a traditional leader as recognized by custom and tradition...."  FSM Const. art. V, 1.

     It has been pointed out that the intent of the framers in adopting the judicial guidance clause, FSM Const. art. XI, 11, was to place "affirmative obligations upon an FSM Supreme Court justice in every case that comes before this Court. Our decisionmaking must be grounded upon a new basis which will allow the consideration of the pertinent aspects of Micronesian society and culture." Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 139 (Pon. 1985), quoting SCREP No. 34, II J. of Micro. Con. Con. 821-22.  This

[4 FSM Intrm. 279]

"affirmative obligation" is not limited to those cases in which counsel or parties assert that a principle of custom or tradition applies.  Instead, "the Court has an obligation of its own to consider custom and tradition."  2 FSM Intrm. at 140.

     The constitutional provision of the most direct significance in this case is article V, section 2, which empowers Congress to protect traditions by statute. Congress exercised that power in enacting the National Criminal Code, explicitly mandating this Court to recognize custom in sentencing:  "The Court shall...give due recognition to the generally accepted customs prevailing in the Federated States of Micronesia."  11 F.S.M.C. 1003.  The "applicability and effect of customary law in a criminal case...shall be determined by the Court."  11 F.S.M.C. 108(2).  At the very least, these provisions place on the sentencing court advised of a customary practice or action potentially relevant to the sentence, an "obligation to conduct proceedings...with scrupulous care and sufficient sensitivity to avoid diminishing unnecessarily" respect for custom and traditional practices.  In re Iriarte (II), 1 FSM Intrm. 255, 271-72 (Pon. 1983).  See also FSM v. Mudong, 1 FSM Intrm. 135 (Pon. 1982).

     The record in this case plainly was sufficient to alert the trial court of the possible relevance of customary practices to these sentences.  To be sure, there were serious gaps in the record concerning compliance with customary requirements, and the precise nature and effects of the alleged customs.  It is also true that the National Criminal Code places on the party asserting customary law the "burden of proving by a preponderance of the evidence the existence, applicability, and customary effect of such customary law."  11 F.S.M.C. 108(3). However, this burden applies only when "there is a dispute as to the existence or effect of customary law".  Id.  The records in this consolidated appeal reveal neither any party, nor the court, disputing that the beatings perpetrated upon the defendants had customary implications.  There was no apparent "dispute" within the meaning of section 108(3) and it would be unfair now to point to the absence of concrete evidence as a bar to consideration of the customary aspects of these beatings.  We conclude that the undisputed oral representations made in open court were sufficient to alert the trial court to the existence of customary considerations, and to trigger the court's own affirmative obligation to give "due recognition" to those customary factors.  11 F.S.M.C. 1003.  See also Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 139 (Pon. 1985).

     2.  Trial decisions involving customary practices - The constitutional and statutory provisions already referred to require a national court justice, faced with a request to consider a particular customary practice or traditional value in arriving at a decision, to give that request full and careful consideration.  This typically will require careful investigation of the nature and customary effect of the specific practices at issue, a serious effort to reconcile the custom or tradition with other constitutional requirements, and an individualized decision as to whether the specific custom or tradition should be given effect in the particular context of the case then before the court.       

[4 FSM Intrm. 280]

     A sentencing court engaged in this effort must assess the credibility of witnesses and other evidence, while weighing and balancing numerous competing values and factors.

     3.  Appellate review - Normally, a decision arrived at through this process should receive appellate deference if it has reasonable support in the record.

     In one sense, of course, the trial court did consider the beatings, and perhaps even recognized their customary nature, before announcing that they would not have any effect upon the sentences.  However, as we have already pointed out, the court did not consider these specific beatings on an individualized basis, but instead took a generic view, arriving at an overall policy, or rule of law, for all beatings.  The court was ruling that beatings inflicted upon defendants to punish them for the offenses for which they are being sentenced, will not be given court consideration, regardless of whether those beatings were carried out pursuant to customary law.  These were legal rulings and therefore are subject to full appellate scrutiny.

     We have already held that, even if these beatings were viewed without regard to their customary implications, it was violative of the National Criminal Code's implied mandate of individualized sentencing for the trial court to refuse to consider them in fixing their sentences.  Failure to consider the customary implications of those beatings violates not only that implicit statutory requirement but also the mandate of 11 F.S.M.C. 1003, enacted pursuant to article V, section 2 of the Constitution, as well as the judicial guidance clause, FSM Const. art. XI, 11.
 
 IV.
     These cases will be remanded to the trial court for further proceedings in accordance with this opinion.  It is conceivable that upon remand, the trial court will not find it necessary to focus upon the customary implications of these beatings.  This seems possible because:

     1.  we have held that the beatings are to be given mitigative effect even if they were not in full compliance with custom; and

     2. the adjustment which the trial court concludes should be made to reflect the beatings without regard to their customary or noncustomary nature may satisfy the parties and obviate the need for further consideration; and

     3. no party at the earlier sentencing hearings focused on the customary implications to argue that greater mitigative effect should be accorded these beatings because of their claimed customary nature.

V.
     Yet, it also is quite possible that the trial court, upon remand,

[4 FSM Intrm. 281]

might be requested to give these beatings additional mitigative effect on the grounds that these were customary punishments, not merely vigilante beatings and that the courts, to show respect and support for custom, should give greater mitigative effect to such punishments.

     Lest we be misunderstood, and interpreted as holding that this Court and other governmental officials must affirm and support custom in all of its manifestations, we are compelled to point out that the judicial guidance clause requires that our decisions be consistent not only with customs and traditions but with the balance of the Constitution as well.6

     Measured against that mandate, the kinds of beatings inflicted upon Messrs. Tammed and Tamangrow raise profound and fundamental issues about law enforcement in the Federated States of Micronesia.

     The record suggests that the beatings were carried out by young men from the villages of the victims.  There has been no showing of any careful steps taken in advance to assure that the people to be beaten were in fact the perpetrators of the sexual assaults.  Nor has there been any indication that those who carried out the punishment were selected on the basis of their prudence, responsibility, judgment or self-restraint.  Although there is no direct evidence on the point, the record is open to the possibility that the avengers were entirely self-selected, so that those who participated would have been the persons in the respective villages who most enjoy beating and humiliating helpless victims, or those who were most personally and intensely outraged by the sexual assaults.  Obviously, neither set of characteristics would be conducive to a responsibly administered, proportionate punishment.

     Indeed the record is devoid of proof that any mature, detached, responsible or titled traditional leader:  (1) carefully confirmed either the identity of the wrongdoer or the propriety of a customary punishment; or (2) prescribed the scope of the punishment in advance; or (3) supervised the beatings or took steps of any kind to guard against excessive enthusiasm on the part of the attackers.

     In adopting the Declaration of Rights as part of the Constitution of the Federated States of Micronesia and therefore the supreme law of the land, the people of Micronesia subscribed to various principles which place upon the judiciary the obligation, among others, to assure that arrests are based upon

[4 FSM Intrm. 282]

probable cause,7 that determinations of guilt are arrived at fairly,8 and that punishments for wrongdoing are proportionate to the crime and meet prescribed standards.9

     Obviously, there are serious questions of law and fact as to whether these punishments directly violated any of these constitutional protections of the defendants and whether any court approval of these beatings would be violative of judicial obligations.

     There is an even greater need for caution in this case because of the apparent policies of Yap state officials concerning these kinds of customary punishments, as reflected in the record and explained further in oral argument.  If upon remand it becomes necessary for the trial court to assess the interplay between customary punishments and the Declaration of Rights, the court must begin with a clear recognition that governmental efforts to avoid impingement upon custom and tradition may actually link the government with those actions, transforming both the government and the custom itself.

     For example, government counsel during Mr. Tammed's sentencing hearing indicated to the trial court that if the office of the Yap attorney general makes a determination that a particular punishment has been carried out "in accordance with Yapese custom," then that office "would not file the charges" if the underlying criminal offense was a violation of state rather than national law.

     This practice of course amounts to a substitution of the customary punishment in place of the judicial proceedings and punishment contemplated by the Constitution and state statutes.  Under the policy of the Yap attorney general's office, beating is no longer just a customary punishment, but also serves as the entire official state trial and punishment for that specific offense.  The traditional leaders who authorized the punishment, and the village members who carried it out, may well be transformed through this ratification into governmental agents or officials.

[4 FSM Intrm. 283]

     Adoption of a particular beating may work the other way as well, rendering the governmental officials, through their approval or certification of the punishment, customary decision makers and agents.  By embracing the customary punishment as fulfillment of their own prosecutorial and governmental responsibilities, governmental officials may effectively make themselves participants in the punishments meted out pursuant to custom.  This policy of the office of the Yap attorney general runs the risk of so identifying the Yap state government with attacks upon individuals, which state officials could not carry out directly,10 as to transform those customary punishments into action of the state.

     In the present cases, the partnership between the government and those carrying out customary punishments is not established quite so indisputably.  In contrast to its policy for state law violations, the government does not entirely abdicate its national law prosecutorial responsibilities in deference to customary punishments.

     Yet, even for national law violations, it is evident that state policy, at the very least, is to acquiesce in customary punishments of offenders.  Counsel advised the Court in oral argument that because the beatings of the defendants were considered to be customary punishments, no prosecution had been undertaken against the assailants.  In addition, there is some indication that police officers participated directly in the beatings and that government policy is to permit such conduct by police officers who are related to victims.  Tammed Tr. 6.

     Thus, if upon remand the trial court is asked to give special mitigative effect to these beatings to reflect their customary nature, the court must first consider whether these customary activities have become so imbued with official state action that actions of the assailants must be viewed as actions of the state itself. If that is so, the punishments must be tested by the same standards that would be applied if state officials themselves were to carry out these punishments directly.

     In the same vein, the trial court should keep in mind that its own authority to give special approval, in the name of respect for custom,

[4 FSM Intrm. 284]

to beatings administered to punish offenses for which the National Criminal Code prescribes specific punishments, is quite limited.  This is especially true of course when the customary beatings which the court would endorse are decided upon and carried out by methods that violate the constitutional guarantees provided for persons accused and convicted of crimes.  Judicial action bears the "clear and unmistakable imprimatur of the State," Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), and a court wishing to support custom may not endorse private actions which violate the letter or the spirit of specific provisions of the Constitution.

     Thus, upon remand, the court must consider these beatings and may give them mitigative effect without regard to whether the beatings were in violation of the criminal law or of the civil rights of the defendants.  This does not constitute approval of such beatings,11 but instead is based upon general principles of individualized sentencing and is in furtherance of the goal of assuring a sentence that justly reflects the offense and the circumstances of the defendant.

     However, the judicial guidance clause prohibits giving special effect to the beatings to reflect respect for their customary nature, unless the court finds that such recognition would be consistent with the protections guaranteed to individuals by the Declaration of Rights.

VI.
     The sentences imposed upon Messrs. Tamangrow and Tammed are vacated and the case is remanded to the trial court for resentencing.

     In resentencing the defendants, the court shall first take into consideration and give mitigative effect to the beatings inflicted on them, without regard to the customary implications.
 
      No further steps shall then be called for unless one or both of the defendants, after being apprised of the court's new sentence, requests that further mitigative effect be given to reflect the customary nature of the beatings.  In response to any such request, the court shall consider further evidence submitted by the parties, and may supplement that evidence through court-appointed assessors, in order to determine whether these were indeed customary punishments.  If so the court shall consider whether additional mitigative effect should be given these punishments to reflect their customary nature, but such additional mitigation shall be granted only if the court is satisfied that adjustment of the sentences to reflect judicial respect for the customary nature of the punishments would be consistent with the Constitution, including the relevant parts of the Declaration of Rights.
 
 
Footnotes:

1.  The contentions, voiced principally by Mr. Tamangrow's father as reflected in the presentence report, are that the beating of Mr. Tamangrow violated custom in that the beating was inflicted (1) by higher caste people directly against a person of lower caste; (2) by members of the victim's village, rather than villagers of the person punished; (3) without supervision of the chief responsible for Tamangrow's village; and (4) too long after the sexual assault took place.
 
2.  This position of the office of the Yap attorney general presumably is based upon article III, section 2 of the Yap Constitution, which says, "Due recognition shall be given to traditions and customs in providing a system of law, and nothing in this Constitution shall be construed to limit or invalidate any recognized tradition or custom."
 
3.  Other jurisdictions, including England, Canada, India and Pakistan have permitted appeals from sentences.  Martell, 335 F.2d at 767.
 
4.  In recent years, there have been concerted efforts in the United States to limit by statute the sentencing discretion permitted of a trial judge.  The decided trend has been toward detailed guidelines spelling out factors which must be considered in fixing the sentence, and guiding the court in deciding how much weight should be given to each factor.  See, e.g., The United States Sentence Reform Act of 1984, 18 U.S.C.S. 3551 et seq. (1989 Supp.) and The Sentencing Guidelines Act of 1986, 28 U.S.C.S. 994 (1988).
 
5.  "It is in the legislative phase of the criminal justice system that utility must prevail.  Utility is the main purpose of making laws and of prescribing punishments of violators.  But justice must prevail in the judicial phase, when penalties are distributed to individual offenders.  Retribution must be suffered by individual offenders because it is just, deserved by their offenses, not because it is useful to society.  Hence, utility (mainly) in prescribing, justice in distributing punishment."  Sentencing at 45 (emphasis in original).
 
6.  "Court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia."  FSM Const. art. XI, 11.
 
7.  "The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated.  A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized," FSM Const. art. IV, 5.
 
8.  "A person may not be deprived of life, liberty or property without due process of law, or be denied the equal protection of the laws." FSM Const. art. IV, 3.
 
      "The defendant in a criminal case has a right to a speedy public trial, to be informed of the nature of the accusation, to have counsel for his defense, to be confronted with the witnesses against him, and to compel attendance of witnesses in his behalf." FSM Const. art. IV, 6.
 
9.  "Excessive bail may not be required, excessive fines imposed, or cruel and unusual punishments inflicted." FSM Const. art. IV, 8.
 
10.  This Court has already on several occasions found law enforcement officers guilty of criminal or civil rights violations for acting without court authorization to punish people who had violated the law.  Loch v. FSM, 1 FSM Intrm. 556, 575 (App. 1984) ("Punishment is no part of the police officer's assignment.  A policeman who chooses to mete out punishment violates his office and does so at his peril."); Tolenoa v. Alokoa, 2 FSM Intrm. 247 (Kos. 1986) ("a police officer ... may not use force or violence simply to punish people he dislikes or those he decides have done wrong.  The principle functions of the police officer are to preserve peace and order and to apprehend lawbreakers so that they may be tried by courts and handled justly.")  See also Moses v. Municipality of Polle, 2 FSM Intrm. 270 (Truk 1986).
 
11.  Of course, the proper setting for directly assessing and responding to a beating allegedly carried out in violation of civil rights would be in an action brought pursuant to 11 F.S.M.C. 701.