NATIONAL SEMINAR ON PROBATION DEVELOPMENT ‘MADRAS . SENTENCING POLICY AND PRACTICE WITH-REFERENCE TO PROBATION IN_INDIA Dr. N.R. Madhava Menon Director National Law School of India University. Bangalore, vc s+ Among the altematives to prison sentence, ‘probation! constitutes ‘the most ‘civilised, scientific, cost-effective and universally accepted method of dis position of convicted offenders. If the major goal. of sentencing is avoiding future crimes by helping the defendant learn to live as a laweabiding-citizen and thereby enhance the prospects for social defense by reducing criminal acts by previously convicted persons, probation is the device par excellence ! Through counselling, guidance, assistance, surveillance and restraint, offenders are enabled by probation to re-integrate themselves into society as productive members, Probation in essence is orientation of criminal sanction to the social setting. It is not: leniency or concession, puré ahd simple, as some people generally believe. It is @ positive instrument of correction which partakes the. character of education and socialisation. While it is of immense benefit to 4 defendant, it is equally beneficial to the society which is Sought to’be served by the ‘sentencing. process. Despite this, probation has hot picked up in India and imprisonment continues to be the normal sentencing pattern, In comparison £0 over 4 lakhs of persons sent to prison each'year, the number of persons put on probat{on account only to 25,000 or less, Is'this the result of judicial indifference? Are we pursuing ® sentencing policy inimicelto social interests an@ unfair to defendants? SENTENCING CLIMATE: A look-on available sentences: under the Indian Criminal Law and the conventional systehi of Sentencing adopted by the courts make one believe that prison is the proper sentence for most crimes unless strong extenuating Cizeumstances exist to deviate from this normal practice. Even if such a view was acceptable in an earlier period, it ds certainly not a sound starting point in the formulation of appropriate criminal sanction. Today one would argue that the starting point in sentence determination qught to be probation which can be disregaided provided there are aggre vating factors warranting forced removal of the defendant from his normal environment. Repressive sentences may be appropriate in some cases; but they are exceptions to the rule in an intelligent scheme of criminal justice administration.If the criminal justice system has failed to protect society, it is in no small measure due to the poverty of Sentencing undér which gufficient alternatives have not been provided for the proper disposition of individual offenders: pro often a sentencing judge js,faced with the Hobson's choice of sending an offenter to an over crowded, poorly managed prison which functions qs 3,nursery for further crimin@lisation or giving a probation term in situations where neither super Sisdon nor eesistance is available for. social reintegration. Tf this is the sentencing climate “that obtains in the country, ft is no wonder that criminal, justice ‘syStem is destined to fail despite the best of legislative intentions. Competent probation services adequately funded and -effectively integrated Pa the criminal judicial process is a pre-requisite for treative sentencing. In such a climate:probation can lead to Significant results in the prevention of crime and treatment ef offenders. Experience elsewhere has proved that such Stntencing framework saved substantially ‘expenses on correction SSninistration and policing. The economics of probation = ae ented sentencing is so compelling that'no criminel justice planner cen avoid giving the pride of place to probation in future crime contral schemes. q Primarily: it is thé function of’ Legislatures to ghoose Appropriate sentences, They:not only fix the nature Stopanishment for particular offences but algo decide on caiman limit. The contemporary trend appears to be to decide maximene mandstory minimum sentence also thus cireunseri blag the eiseretion of the Court. A proper sentencing policy, it fe submitted, should aim at increasing the -seritencing Siseretion of the judge rether. than decreasing it. If sone judges abuse the: discretion contrary to legislative intention, jpesee ely lies in judicial treining, supervision by superior the ton appellate procedures and guidelines through 2 manual or a separate Sentencing Act. After having given probation @ liberal thrust in Criminal Justice through the Probation of Offenders Act, the legislative tendency has been to exclude probation 19 different types of offences, delimiting its scope and applicability. Tee fmpression which the enforcement agencies gather from the Statutory framework. 1s not very supportive of/a Liberal’ frobation policy excepting perhaps in the case of chiiaren. Breet ev ebsion is revinforeed by the actions and omissions of the governments in different States in not appointing enovgn probation officers or by not giviing the probation apparatus the Independence and professionalism it deserves. SENTENCING DECISION: imé bentencing decision does not receive the attention it deserves in criminal courts. The new Criminal seeei Code does Give sentence hearing @ special status ip Penetpal erials.” Even then, the traditional neglect persists in many situations and sentencing decision has not assumed the many Shee the system expected of it. Among the fectors which contributed to this situation are:(a) The confused and often conflicting, goal perceptions. Should Criminal Justice aim primarily to condemn offenders’ conduct ana re-inforce societal values or,to rehabilitate offenders? (b) The absence of an éfficient probation service (c) The pressure of work and the. non-availability of supportiye services (a) Lack of proper supervision, effective co-ordination and standards of judicial actountability in criminal justice administration. It is not that always the judge is forced to choose one goal subordinating all other goals or thet the choice of goals will necessarily lead to different sentencing decisions. Prison may be.the obvious choice for serious economic offences though such offenders méy not. pose immediate threat to social defense, Similarly, a young offender involved in a very serious crime may normally get probation though he is a risk to social defense, In all, these circumstances it is the duty of the trial: jydge to accommodate diverse goals within the statutory authority conferred on him. The Statutes, besides offering sentending, alternatives (though inadequately) gives a lot of discretion not only to choose the type of sentence but also its. size and degree of intensity. The standards eré flexible and the guidelines, if any, are too broad and general. Of course, the capacity of the Judge to decide on appropriate sentence is very limited in so far as he oes not have. the right knowledge on.the deterrent or rehabilitative impact of a given sentence in a given individual. In most cases the judge does not even have sufficient information on the offender's background because of poor and inadequate probation services. For a proper sentencing decision what then are the pré-requi sites? (a) Judges who are aware of the modern principles of "penology,.and of the importance of the sentencing “process for effective criminal justice administration. ‘ (b) ‘Competent ‘probation service which gives adequate ' and timely assistance to the Judges. (c) Availability of maximum information on the offence and the offender (a) Proper légai afd through cqunsel in otder to fix a fai and just sentence in accordance with law. I£ these input’ are not available inadequate measure the sentencing de¢ision,is likely to temain a ‘casual exercise, with unpredictable consequénces. The fact is that in most. sityations throughout India the ideal cénditions ao. riot” exist which leads one to.contlude that in the existingwae ‘ circumstances #robation is unlikely to:inake any difference in the status of. criminal, justice. administration. TOWARDS CREATIVE: SENTENETUG: ‘he problem in Criminal Justice administration in India today is lack of proper planning, clear-cut policies and effective monitoring and co-ordination, Judiciary is one department of government relatively untouched by the technological. 2nd infotination reyolutions and modern methods of management. Chronic delays and outmoded procedures have sapped the vitality of ‘the’ system to achieve any meaningful goais. The system functions as if it is an end in itself. Excellent ideas and institutions introduced from time to time into different segments, of the systém have suffered the same fate drifting the systeni without directions and sometimes at cross-purposes. If this analysis is true, the prospects for reform in senténcing.are not very’ bright even if everyone concerned is convinced of the efficacy of probation in crime control through correction, Creative sénténciag is a product of clear thinking, ‘tat justice and humane approach to’ social defense, Though ‘the ‘human: element involved in the process"is decisive in many respects, one cannot belittle the importancé of the statutory and institutional frameyork within which the persoancl of the | system have to operate. There is a lot to be done for evolving an appropriate legal framework for,creative sentencing. The Probation of Offenders Act and. The Juvenile Justice Act ate important milestones in this direction. Superior Courts have in a number of Gecisions attempted: to evolve & new Sentencing philosophy conducive to creative sentencing under these and similar statutes. These new philosophies and principles need to be consolidated and communicated to every sentencing Judge through 2 model sentencing Code or sentencing manual. Neither the professional assistance nor the institution support now available to the trial judge can competently perform the task which a manual or Code can do under the present circumstances... Therefore the first, task involved in this direction is clarification of goals and guidelines for intelligent, imaginstive and socially productive sentencing policy through a carefully prepared manual gr Code. ‘The articulation of polfcy should be followed up with effective communication to thé entire judicial hierarchy through on-going training and continuing education programmes. Performance audit through proper supervision by superior courts ig necessary to sustain the tempo of the.change in sentencing practice, Success and failure stories should be analyzed to give new directions to policy implementation. This is a task only the Judiciary can perform... And even if the policy is thereby taken beyond the original legislative intention, it can be justified and is bound to receive popular support But, would the Judiciary do it?Creative sentencing through probation is not entirely the product of judicisl standards and accountablity. The legal profession an@ the probation service have important roles -in proper sentencing decision which, it is submitted, are not being performed for a variety of reasons. Public prosecutors: and defense lawyers traditionally devote very little professional time and expertise to assist the Judge in the sentencing decision. Probably they do not have the training and the interest in this part of the trial proceedings with the result the sentence hearing which is now statutorily mandated ends up by and large as a mere formality. It hardly supports creative, sentencing. Proper probation decision“is a casualty in the process. Probation gets into the lawyers! training through courses in Criminology which is still optional in the law curriculum, It is not surprising that most lawyers and quite a few judges have not absorbed enough of the importance and status of probation in modern criminal justice administration. The confusion is worse confounded by a probation Service which is either non-existent for all practical purposes or incompetent for the job in hand. Knowing this, the judge does not give the attention it deserves to probation report or probation supervision, Conscious of an uncertain probation system and of his obligations to Society, he adopts what he considers as the lesser evil, namely imprisonment, pressure of work and:absence of institutional support tend to make the process rather mechanical excepting in exceptional circumstances, There is thus hardly any creativity in sentencing or attempt to redeem the offender for which Probation is af outstaneing device. ~~ sthareiene While pursuing efforts for a more informed and creative sentencing decision from the Judicial apparatus, what enlightened men of the probation esteblishment can do in co-operation with scholars and academics is to document and popularise probation work in its creative dimensions. We need to know the history and status of probation in each State or region, Success and failures in probation experiments have to be studied and publicised through pamphlets, journals, films and television. Voluntary probation service should be strengthened by involving knowledgeable persons from the educated elite and from the professions, Training manuals for probation officials and training of trainers should be part of the plan for development. Industries, professional associations, social organization and Universities should be institutionally involved in probation work. Bureaucratisation of probation should be scrupulously avoided and probation should remain a community programme linking criminal justice apparatus of the State with the community at all levels. If and when that happens probation would become the automatic choice of the sentencing Judge.