TABLE OF CONTENTS

SR. NO. HEADINGS PAGE NO

1. Introduction 2

2. Types of Non-Custodial Sentence

1. Fine and other monetary penalties
2. Admonition / Absolute discharge / Conditional discharge 3-5
3. Compensation
4. Probation
5. New forms of community-based sentence

3. Post Sentencing Stage

1. Parole
2. Pardon 5-7
3. Remission of Sentence
4. Temporary Release Mechanisms
5. Open Prisons

4. General Principles Relating to Non-Custodial Measures 8-10

5. Comparative Stud of Non-Custodial Measure in UK and US 11-16

6. Bibliography 17
 INTRODUCTION

The increasing use of imprisonment has failed to decrease the crime rate. The relationship
between incarceration rate and crime rate is indeed complex. Dissatisfaction with the present
system is widespread. Imprisonment as a punishment often fails offenders, victims of crime
and wider community. The practice of locking up human beings in conditions of captivity
challenges some of the basic principles of humanity. Even construction of new prisons to

2
accommodate the increasing prison population is an unsustainable solution, as there is a limit
to provision of public funds for this purpose. However, imprisonment is costly in terms of not
just financial expenditure, it also has social costs. It damages people socially and
psychologically making the process of reintegration difficult and challenging.

A parsimonious and proportionate use of imprisonment is in accordance with the Human

Rights approach to Criminal Justice System. Hence, an important challenge today is
increasing and exploring new terrains of justice where prison no longer serves as our major
anchor. The need for penal reforms has never been greater. The introduction of concerns for
human rights concerns in the field of non-custodial sanctions and crime prevention area is of
a more recent date. The use of non-institutional methods must ensure that peace, good order
and security are maintained in society.

Crime as a social phenomenon has existed throughout the history of mankind. However, it
has been increasingly realised that it is possible to reduce the crime rate and the deleterious
effects on the society in particular on the victims, if a constructive and meaningful policy is
adopted. There is a growing awareness that one such constructive approach is the change
from custodial measures of punishment to non-custodial measures. This policy is in line with
the crime control programmes. In all societies efforts are being made to control crime as well
as to relieve offenders, their families and society as a whole from the ill effects of crimes by
adopting community oriented programmes of punishment. But the fact remains that a large
number of offenders are still dealt with by custodial measures of punishment. A majority of
them are short termers who are serving sentences for the commission of petty offences who
could otherwise be dealt with by non-custodial measures.
 TYPES OF NON-CUSTODIAL SENTENCE

1. Fine and other monetary penalties:

Fine and other monetary penalties are imposed for various minor offences on the offenders at
the pre-trial stage. It is expected this measure will lead to reduction of the large percentage of
pre-trial detention of under trials. Fines are economical in terms of both money and man

2
power and are also humane alternative as it inflicts minimum damage to the offender.
However, fines cannot be used for poor offenders who cannot pay. Many times, prisoners are
committed to prison in default of payment of fine. It is for such cases that community service
will be a better option than simple imprisonment.

2. Admonition / Absolute discharge / Conditional discharge:

Under Sections 360 and 361 of the Cr.P.C, 1973, an admonition is available for juvenile
cases involving juvenile offenders. Admonition is used for first time offenders who commit
an offence punishable with imprisonment for less than 2 years. Courts are empowered to
release an offender after admonition in respect of certain specified offences. A conditional
discharge means that the offender is subject to the condition of not committing any further
offences during the period fixed by the Courts. Judicious use of this provision by the courts in
appropriate cases shall obviate the need for imprisonment in many more cases that is being
done today.

3. Compensation:

Under Sections 357 to 359 of the Cr.P.C, 1973, the Courts may order offenders to pay such
compensation as the court thinks reasonable for loss or injury caused to any person by the
commission of the offences. The courts order compensation along with any other addition
sentence. It is not an independent sentence alternative to short term imprisonment.
 4. Probation:

Probation is one of the outstanding non-custodial measures which is designed to work for
early reformation and re-socialization of criminals while they remain in the communities as
ordinary citizens by subjecting them to certain conditions with which they must comply.
Under the provisions of Probation of offenders Act, 1958, these measures can be applied to
offenders who have committed minor crimes for the first time. They can be released on

2
probation with the supervision of probation officers. Offenders may be released on probation
without the supervision of probation officers on condition that they promise to conduct
themselves well. There is also a restriction on imprisonment of offenders under 21 years of
age, if they have not committed an offence punishable with life imprisonment. Such an
offender must be released either on admonition or probation unless there are reasons to be
recorded having regard to the nature of offence and character of offender. In some states of
India, probation is under the Department of Prisons while in other States, it is looked after by
the Department of Social Welfare. There is a need to strengthen the probation system in India
and see that it is more effectively used. Coordination with the judiciary is essential in this
regard.

5. New forms of community-based sentence:

Community-based sentences have yet to emerge as alternatives to imprisonment in the legal

framework of our country. The Indian Penal Code (1860) has still not been revised. However,
there have been certain new changes and developments in some specific laws for instance,
the State of Gujarat, has introduced an amendment in the Prohibition Act, whereby
Community Service Scheme has been introduced as an alternative to imprisonment.

Gujarat Government had made amendment in the Community Services of Offenders Act,
1949.Similarly, Andhra Pradesh has come up with a draft of The Andhra Pradesh Community
Service of Offenders Act, 2003. The Andhra Pradesh Legislation will apply to persons
convicted for minor offences punishable with imprisonment of either description for a term
not exceeding two years or with fine, or with both. The kind of community services are – to
undertake work in a welfare institutions involved in care of old or disabled persons,
environmental improvements e.g. tree plantation, maintenance, construction and renovation
of buildings like that of schools, hospital, etc. This legislation is at present pending with the
Government of India for its concurrence. The key objective of the community service is to
promote among offenders a sense of responsibility towards society. It is recommended that
community service should be added as one of the methods of punishment in the Indian Penal
Code, 1860.

2
POST SENTENCING STAGE

In India, different alternatives are available in variable spells. In order to avoid

institutionalization and to assist offender in their early reintegration into society, measures
include various forms of parole, furlough, remission, pardon, work camps and open prisons
are available as alternatives to imprisonment.

1. Parole

Parole as a non-institutional treatment results in conditional release of the offender from the
prison before termination of his sentence. It is a conditional suspension of sentence for a short
duration in order to enable the prisoners to attend to their personal problems at home like
agricultural, harvesting, etc. or to attend family related emergent needs.

2. Pardon

Since offences are committed against the State, the Indian law does not permit the victim to
grant pardon. The power to grant pardon or executive clemency is vested to the Head of the
State i.e. the President of India or Governor of the State (Articles 72 and 161 of Constitution).
In addition to this, State Governments also commute the sentence for all categories of
prisoners in commemoration of certain special events. This has the effect of shortening the
period of imprisonment of convicted prisoners, thereby reducing the prison population. The
Supreme Court is also looking at the issue of granting pardon by the Heads of the State
Governments with a view to rationalizing the grounds of pardon.
 3. Remission of Sentence:

As an incentive for good work and for keeping good behaviour and contributing to prison
discipline, remission can be granted to prisoners by the State Government and Head of the
prison Department or Head of the Jail. There are three kinds of remission i.e. ordinary
remission, special remission and state Government remission. Remission can be earned by

2
inmates through getting formal education in the prison in some states. It is suggested that
acquiring formal education should also be a criterion for earning remission. The system of
earned privileges should be uniformly set out.

4. Temporary Release Mechanisms

The temporarily released prisoners serve their sentence outside the prison for a given period
of time and then return back to serve the remaining sentence. These include work release and
furlough or leave. In India, furlough is granted as a leave to a prisoner to visit his family for a
short period which counts towards his sentence, after he undergoes certain period of sentence.
The difference between parole and furlough is that parole is a suspension of sentence while
furlough is treated as part of sentence. Different states give furlough for good conduct to
prisoners not involved in heinous offences.

5. Open Prisons

All prisoners are not dangerous criminals and not even some of those who have committed
serious offences. Open prisons in one form or another have been in existence in India for a
long time. In India, there are 26 open prisons having capacity of a 4353. Open prisons have
developed better in some states of India than in others for a variety of reasons. Prisoners
serving life sentence on the basis of their good conduct are shifted to the open prisons. In
some states of India, different initiatives for open prisons have been taken. The Open Prisons
restore the dignity of the individual and give a sense of self-confidence and self-reliance by
instilling a sense of responsibility in the individual. Several States in India have such opens
prisons. The positive effects of open prisons are –
  It lessens the damage to offenders and society
 It reduces the overcrowding in prisons
 It costs far less for the State to have people living in open prison than to pay
for their upkeep in the jails.
 It inculcates a sense of social responsibility towards family and society

2
However, the concept of open prisons needs to be given more publicity in our country to
bring the focus of society to reformed offenders. A part from agricultural based open prisons
it is suggested that there should be open prisons with an industrial / manufacturing base as
well. Open Prisons for women should also be encouraged.
 GENERAL PRINCIPLES RELATING TO NON-CUSTODIAL MEASURES

Rules 1 to 4 of the Tokyo Rules lay down in some detail the general principles guiding
recourse to non-custodial measures as alternatives to imprisonment, and, apart from the
saving clause in Rule 4, these principles describe the fundamental aims, the scope, and the
legal safeguards of non-custodial measures. This section will highlight the most salient

2
aspects of these general principles.

A. The fundamental aims of non-custodial measures

According to Rule 1.1, the two fundamental purposes of the Tokyo Rules are to
provide:

 “a set of basic principles to promote the use of non-custodial measures”; and

 “Minimum safeguards for persons subject to alternatives to imprisonment”.

The Tokyo Rules thus begin by establishing an important balance between their two
fundamental purposes in that they simultaneously encourage recourse to non-custodial
measures and aim at guaranteeing a just application thereof based on respect for the human
rights of the offenders; such guarantees are required in order to prevent disproportionate
recourse to control measures.

According to the Commentary to the Tokyo Rules, non-custodial measures are of

“considerable potential value for offenders, as well as for the community”, and can be an
appropriate sanction for a whole range of offences and many types of offenders, and in
particular for those who are not likely to repeat offences, those convicted of minor crimes and
those needing medical, psychiatric or social help.

In these cases, imprisonment cannot be considered an appropriate sanction, since it severs

community ties and hinders reintegration into society and thereby also reduces offenders’
sense of responsibility and their ability to make their own decisions.
On the other hand, non-custodial measures have the unique characteristic of making it
possible to exercise control over an offender’s behaviour while allowing it to evolve under
natural circumstances.

Consequently, the use of non-custodial measures also diminishes social costs, given that the
administration of criminal justice imposes a very heavy financial burden on States. Since not
only the individual offender, but also society as a whole, benefit from the use of non-

2
custodial measures, this positive potential should encourage community involvement in their
implementation.

Next, Rule 1.2 describes the further aim of promoting both “greater community involvement
in the management of \ criminal justice, specifically in the treatment of offenders, as well
as ... a sense of responsibility towards society” among offenders. Involvement of the
community is essential in reintegrating the offender into society and may reduce the risk of
stigmatization.11According to Rule 1.3, the Tokyo Rules “shall be implemented taking into
account the political, economic, social and cultural conditions of each country and the aims
and objectives of its criminal justice system”. 1Consequently, the Rules are not intended to
describe a model system of non-custodial measures, and such a task would in any event be
precluded by the variety of criminal justice systems throughout the world; the intention is
rather that this diversity should allow for a fruitful exchange of ideas about methods and
developments.

Mindful of the objectives of a criminal justice system and the balance that has to be struck
between the different individual interests, Rule 1.4 provides that “when implementing the
Rules, Member States shall endeavour to ensure a proper balance between the rights of
individual offenders, the rights of victims, and the concern of society for public safety and
crime prevention”.

While emphasizing the promotion of non-custodial measures and the application of

individualized penal sanctions, the Tokyo Rules consequently also fully support the general

1
See UN doc. ST/CSDHA/22, Commentary on the United Nations Standard Minimum Rules for Non-custodial
Measures (the Tokyo Rules)(hereinafter referred to as Commentary), p. 2.
aim of the criminal justice system, which is to reduce crime and the need to recognize the
important role of the victims of crime.

Lastly, according to Rule 1.5, “Member States shall develop non-custodial measures within
their legal systems to provide other options, thus reducing the use of imprisonment, and to
rationalize criminal justice policies, taking into account the observance of human rights, the
requirements of social justice and the rehabilitation needs of the offender.”

2
According to the Commentary, the reference to “the observance of human rights, the
requirements of social justice and the rehabilitation needs of the offender” means, inter alia,
that, while the Tokyo Rules aim at guaranteeing more frequent use of non-custodial
measures, such use should not lead to an increase in the number of people subject to penal
measures or to an increase in the intensity of such measures; by emphasizing the observance
of human rights, the Tokyo Rules seek to avoid the abuse of discretion in the implementation
of non-custodial measures.
 COMPARATIVE STUDY OF NON-CUSTODIAL MEASURE IN UNITED KINGDOM
AND UNITED STATES.

United Kingdom

There has been considerable recent debate about overcrowding in UK prisons. The system is
struggling to accommodate the growing number of young offenders being given custodial
sentences. This project sets out the scale of the problem and looks at recent trends in

2
sentencing, with a particular focus on young offenders. It examines the factors linked with
offending and asks whether better understanding of these can be used to target early actions
aimed at deterring young people from offending. Finally, the project examines alternatives to
custodial sentencing and assesses how successful these have been in practice.

2
Background

Trends in sentencing

Courts have a range of options open to them when sentencing offenders. These include:

1. Custodial sentences in prisons, detention centres, young offender institutions, secure

training centres, or secure children’s homes. While the number of offenders sentenced

2
www.justice.gov.uk/docs/population-in-custody-dec07.pdf
 through the courts in England and Wales declined between 1996-06, the proportion
given custodial sentences increased (from 5.9-6.8%).

2. Community sentences. As detailed later, a wider range of community sentences have

been introduced in the last few years. Since 1996, the overall number of community
sentences given by the courts has risen, particularly for young offenders aged 10-17
(Table 1).

2
3. Fines and other measures (such as conditional or absolute discharges or guardianship
orders). The number and proportion of offenders given such sentences have declined
since 1996. The prison population the rise in custodial sentencing has resulted in
considerable pressure on the prison estate, which is currently running very close to
full capacity. According to the National Offenders Management Service (NOMS) on
the 9th May 2008, the total population in custody (male and female) was 82,323 3. At
the same time, NOMS estimates the total useable operational capacity of the UK
prison estate to be 82,949. This is defined as the sum capacity of all establishments on
the estate minus 1,700 places to make allowance for operating margins such as the
need to provide separate housing for males and females, different categories of
prisoners, etc.

A substantial proportion of those in custody are young men: on 31/12/2007, the prison
population comprised:

 2,188 15-17 year old, 2,128 of whom were male;

 9,220 18-20 years old, 8,790 of whom were male;
 68,081 adults (21+), 64,242 of whom were male.

The government has increased prison places by nearly 20,000 since 1997 and has begun a
new building programme to deliver an additional 8,000 by 2012. Lord Carter’s Review of
Prisons recommended in December 2007 that a further 6,500 new places would be needed by
2012.4 It also advised changes to sentencing legislation to encourage use of alternative

3
www.hmprisonservice.gov.uk/assets/documents/100039760 9052008_web_report.doc
4
www.justice.gov.uk/docs/securing-the-future.pdf
remedies for some low risk offenders and offences, in line with the government’s strategy for
reserving custody for the most serious and dangerous offenders.

Alternatives to custodial sentencing

The Criminal Justice Act, the Courts Act and the Anti-Social Behaviour Act were all passed
in 2003. They were designed to rebalance the criminal justice system in favour of the victim

2
and the community. As discussed below, the new system embraces a number of approaches
including restorative justice, community sentencing, and electronic monitoring.

Restorative justice

Restorative justice aims to promote accountability through reconciliation and reconnection to

the community. In practice it usually involves direct (face-to-face) or indirect (through a
mediator) communication between victims and offenders, but can also involve financial
restitution ordered by a court. A review of restorative justice in the UK and abroad showed
that it:

a. Substantially reduced repeat offending for some, but not all, offences. In particular,
restorative justice seemed to work best in reducing re-conviction rates for more
serious crimes involving personal victims such as violence and, to a lesser extent,
property crime.

b. Reduced re-conviction rates for some, but not all, offenders. In particular, restorative
justice was more effective than prison in reducing re-conviction rates among adult
offenders, and gave similar re-conviction rates as prison for young offenders.

c. Delivered benefits to the victims where the process involved face-to-face conferences.
Benefits included reduced post-traumatic stress symptoms in the short-term, and
possibly also longer-term health benefits.

d. Delivered cost benefits when used as an alternative to conventional criminal justice,

and in terms of reduced costs of healthcare for victims. The Home Office funded three
restorative justice schemes from 2001 through its Crime Reduction Programme.
 These included the Connect scheme in Inner London, the Justice Research
Consortium which operated at three sites (London, Thames Valley and Northumbria)
and the Remedy scheme in South Yorkshire. These offered a range of direct and
indirect mediation to offenders and victims. An evaluation of the schemes reported
higher levels of satisfaction following direct mediation than with indirect mediation.

However, the report noted that indirect mediation allowed those not wishing a direct meeting

2
with the other party to access restorative justice.

Community sentencing

As part of the reform of sentences brought about by the Criminal Justice Act 2003, the
generic community sentence was introduced in 2005. It is used as one of the four orders
detailed in Box 1 and is designed to allow the sentence to be tailored to the offender/offence
through one or more of the following 12 requirements:

 compulsory (unpaid) work on community projects;

 participation in specified activities, such as education
 or training;
 participation in Offending Behaviour Programmes;
 prohibition from certain activities;
 electronic curfew;
 exclusion from certain areas (usually monitored electronically);
 residence requirement (such as an approved hostel);
 mental health treatment;
 drug treatment and testing;
 alcohol treatment;
 supervision (by an offender manager from the Probation Service);
 Attendance at a centre offering structured activities.

In May 2007, the Ministry of Justice’s Penal Policy paper outlined the Government’s
intention to develop higher intensity community orders as an alternative to short term custody
(under 12 months). This approach is being developed initially in Derbyshire for
implementation in March 2008. In January 2008, the Ministry of Justice announced an
additional £13.9 million over the next three years for such projects.

Electronic monitoring

As well as being used as a condition of bail or to enable early release from prison, electronic
monitoring can also be imposed as a sentence following conviction for an offence. Introduced

2
nationally in 1999, community orders using electronic monitoring require an offender to stay
at a particular address during specified times, usually overnight. Two types of electronic
monitoring is currently available, both involve a ‘tag’ on the ankle: radio frequency
technology alerts a monitoring company when offenders go ‘out of range’ (usually as a result
of leaving their house); satellite tracking uses the GPS system to track an offender’s
whereabouts away from the home address.

A Home Office evaluation of electronic monitoring showed that 80% of offenders

successfully completed their curfew orders but two-year reconviction rates were fairly high,
at 73% (compared with 66% for those serving custodial sentences).

United States

In the United States, the factors to be considered when imposing a sentence include the grade
of the offense; mitigating or aggravating factors; that nature and degree of harm caused by
the offense (including whether it involved property, irreplaceable property, a person, a
number of persons, or a breach of public trust); the community view of the gravity of the
offense; the public concern generated by the offense; the deterrent effect a particular sentence
may have on the commission of the offense by others; and the current incidence of the
offense in the community and in the Nation as a whole. The primary aim of deprivation of
liberty should be the reform and social re-adaptation of the offender. Many actors consider
that deterrence and retribution should also be aims of deprivation of liberty, but this is
increasingly rejected by international norms.
Alternatives to Incarceration

According to the Tokyo Rules, as well as regional standards from the Americas, Africa, and
Europe, states should develop non-custodial measures in order to provide greater flexibility to
make sentences proportional to the nature and gravity of the offence and reduce the use of
imprisonment.5 The personality and background of the offender and the protection of society
should be taken into account, with an eye to avoiding the unnecessary use of imprisonment.

2
The number and types of non-custodial measures available should be determined in such a
way that consistent sentencing remains possible. The introduction, definition, and application
of non-custodial measures must be prescribed by law, and the imposition of a non-custodial
measure must be based on an assessment of established criteria regarding the nature and
gravity of the offence and the personality and background of the offender, the purposes of
sentencing, and the rights of victims. The sentencing authority must be able to exercise
discretion, but with full accountability and in accordance with the rule of law.

Non-custodial dispositions may include:

(a) Verbal sanctions, such as admonition, reprimand and warning;
(b) Conditional discharge;
(c) Status penalties;
(d) Economic sanctions and monetary penalties;
(e) Confiscation or an expropriation order;
(f) Restitution to the victim or a compensation order;
(g) Suspended or deferred sentencing;
(h) Probation and judicial supervision;
(i) Community service orders;
(j) Referral to an attendance centre;
(k) House arrest;
(l) Any other mode of non-institutional treatment; or
(m) Some combination of the measures listed above.
The sentencing authority may impose practical and precise conditions on the offender during
the non-custodial sentence, aimed at reducing the likelihood of recidivism and increasing the
chance of social reintegration, but taking into account the interests of the victim.

5
Rule 1.5. of United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules).
 BIBLIOGRAPHY

1. https://www.parliament.uk/documents/post/postpn308.pdf

2. http://www.bprd.nic.in/WriteReadData/userfiles/file/6515844528-Part%20V.pdf

3. https://www.nidirect.gov.uk/articles/non-custodial-sentences

2
4. http://shodhganga.inflibnet.ac.in/bitstream/10603/52352/12/12_chapter%204.pdf

5. https://www.google.com/search?

q=types+of+non+custodial+measures+in+america&client=firefox-b-

ab&ei=NxlxW4ToDsj6vgSQwpOICw&start=30&sa=N&biw=1366&bih=654

6. https://archive.nytimes.com/www.nytimes.com/books/first/c/currie-crime.html?

CachedAt

7. https://www.independent.co.uk/news/uk/crime/the-big-question-what-are-the-
alternatives-to-prison-and-do-they-work-5330852.html