Sentencing process and policies

Introduction

Penology

Penology is the study of the penal system and the theories and practices of punishment
for crimes committed by individuals or groups. It encompasses the various methods
used by governments and societies to control and punish criminal behavior, including
incarceration, probation, parole, rehabilitation, and community service. The goals of
penology include deterrence, retribution, rehabilitation, and social protection.
Penologists seek to understand the effectiveness of different approaches to
punishment, their impact on offenders and their families, and their social and
economic costs. The purpose of penology is to study and understand the various
methods of punishment and rehabilitation of offenders,

Penology also plays a critical role in promoting social justice and ensuring that
punishment is administered fairly and impartially. This includes examining issues
such as racial and ethnic disparities in the criminal justice system and developing
strategies to address these disparities.

Sentencing

Sentencing refers to the legal process by which a judge or magistrate imposes a

penalty or punishment on a person who has been convicted of a crime. The purpose of
sentencing is to hold the offender accountable for their actions and to promote
deterrence, rehabilitation, and public safety. Sentencing may include a range of
penalties, such as imprisonment, fines, community service, probation, or restitution.
The type and severity of the sentence depend on a variety of factors, including the
nature and severity of the crime, the offender’s criminal history, and any mitigating or
aggravating circumstances surrounding the offense.

The purpose of sentencing is to serve multiple goals, including retribution, deterrence,

rehabilitation, and public safety. Retribution refers to the idea that the offender
deserves to be punished for their wrongdoing, in order to provide a sense of justice to
the victims and the community. Deterrence aims to prevent future crimes by making
an example of the offender and sending a message to others that criminal behavior
will not be tolerated. Rehabilitation aims to address the underlying causes of criminal
behavior and help the offender become a productive member of society. Public safety
aims to protect the community from the offender’s future criminal behavior.

Theories

Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people

in the society would perceive it as, is the most basic, yet inconsiderate theory of
inflicting a penal sentence over a perpetrator. It is based on a very small doctrine,
namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’.
Now, if looked at from the perspective of very serious and heinous offences, like the
Delhi gang rape case, people may feel that it is better to inflict such retributive
punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future.

Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing
any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals
from attempting any crime or repeating the same crime in future. So, it states that
deterring crime by creating a fear is the objective; to set or establish an example for
the individuals or the whole society by punishing the criminal. That simply means,
according to this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it may result maybe that the people of the society will be or
may be aware of the severe punishments for certain kinds of crimes and because of
this fear in the minds of the people of the society, the people may stop from
committing any kind of crime or wrongful act.

Preventive Theory of punishment
Preventive theory of punishment seeks to prevent prospective crimes by disabling the
criminals. Main object of the preventive theory is transforming the criminal, either
permanently or temporarily. Under this theory the criminals are punished by death
sentence or life imprisonment etc. 

Incapacitation Theory of punishment

Meaning: 

The word “incapacitation” means ‘to prevent the offence by punishing, so that the

future generation fears to commit the criminal act.’ Incapacitation happens either by
removing the person from the society, either temporarily, or permanently, or by some
other method, which restricts him due to physical inability. One of the most common
way of incapacitation is incarceration of the offenders, but in case of severe cases,
capital punishments are also applied. The overall aim of incapacitation is preventing
or restraining the danger in the future.

Compensatory Theory of punishment

Definition: 

The main look out in the law of crimes is to penalize the criminal, and/or to seek his
reformation and rehabilitation with all the resources and goodwill available through
the Courts and other Governmental and non-Governmental organizations. It must be
seen that the criminals should get proper judgement for their crimes so caused and the
harassment caused to the victim and towards their family members and property. The
victims in a crime can be compensated on mainly two grounds, namely-

1. A criminal who had inflicted an injury against the person (or group of persons),
or the property must be compensated for the loss caused that has caused to the
victim, and

2. The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.

Compensation is the true essence of deterrent, reformative and a necessary

contribution of retribution.
Reformative Theory of punishment

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object of
discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way, an
exertion ought to be made to change him/her during the time of his/her detainment.
For example, he may have executed bad behaviour under conditions which may never
happen again. Hence an effort should be made to transform him during the hour of his
confinement. The object of order should be to accomplish the moral difference in the
liable party. He ought to be told and perform some craftsmanship or industry during
the hour of his confinement with the objective that he may have the alternative to start
his life again after his conveyance from jail.

Stages of sentencing and various factors affecting sentencing

The process of sentencing involves several stages, each with its own set of
considerations and factors that can impact the outcome of the case. Here are the stages
of the sentencing process and the factors that can influence them:

Pre-sentence Investigation: Before sentencing, a pre-sentence investigation is

conducted to gather information about the offender and the crime. This includes the
offender’s criminal history, personal circumstances, and any aggravating or mitigating
factors related to the offense.

Sentencing Hearing: The sentencing hearing is an opportunity for the judge to hear
arguments from both the prosecution and the defense, and to consider any additional
evidence or testimony that may impact the sentence. At this stage, the judge will
consider the following factors:

Severity of the Offense: The judge will consider the nature and circumstances of the
crime, including the harm caused to the victim and the level of violence or aggression
involved.
Criminal History: The judge will review the offender’s prior criminal history,
including any past convictions or probation violations.

Mitigating and Aggravating Factors: These are factors that can either lessen or
increase the severity of the sentence. Mitigating factors may include the offender’s
age, mental health, or lack of criminal history. Aggravating factors may include the
use of a weapon, the commission of a hate crime, or the involvement of a vulnerable
victim.

Restitution: The judge may order the offender to pay restitution to the victim, which is
a financial penalty intended to compensate the victim for any losses or damages
incurred as a result of the offense.

Community Impact: The judge may consider the impact of the crime on the
community and any other relevant social or cultural factors.

Imposition of Sentence: After considering all of the above factors, the judge will
impose a sentence, which may include imprisonment, probation, fines, community
service, or other penalties.

There are several factors that can impact the outcome of the sentencing process. Here
are some of the most significant:

Type of Offense: The severity of the offense is one of the most significant factors that
can impact the sentence. More serious offenses, such as murder or rape, typically
result in longer prison sentences or even life imprisonment. Less serious offenses,
such as minor drug offenses, may result in shorter prison sentences or probation.

Criminal History: The offender’s criminal history is another key factor that can impact
the sentence. Offenders with a history of prior convictions are more likely to receive
longer prison sentences, while first-time offenders may be eligible for alternative
sentencing options, such as probation or community service.

Mitigating and Aggravating Factors: The presence of mitigating or aggravating factors

can also impact the sentence. Mitigating factors, such as the offender’s age or mental
health status, may result in a less severe sentence, while aggravating factors, such as
the use of a weapon or the involvement of a vulnerable victim, may result in a more
severe sentence.

Plea Bargaining: In some cases, the defendant may negotiate a plea bargain with the
prosecution in exchange for a reduced sentence. Plea bargains are more common in
cases where the evidence against the defendant is strong, and the defendant is unlikely
to receive a favorable outcome at trial.

Other factors that can influence the sentence include the offender’s age, mental and
emotional state, and personal circumstances. For example, a young offender may be
more likely to receive a more lenient sentence than an older offender, and an offender
with a history of mental illness may be more likely to receive treatment rather than
incarceration.

Finally, the sentence may be influenced by broader societal factors, such as public
opinion, political pressure, and the availability of resources for correctional treatment.
For example, public concern about a particular type of crime may lead to harsher
sentences for offenders convicted of that crime, or budget constraints may limit the
availability of treatment programs and lead to increased reliance on incarceration.

Role of victims in sentencing

In India, victims have a crucial role to play in the sentencing process. The criminal
justice system recognizes that victims have suffered harm as a result of the crime, and
their participation in the sentencing process can help ensure that the punishment is
appropriate and just.

The role of victims in sentencing is reflected in several provisions of the Indian Penal
Code and the Code of Criminal Procedure. For example, Section 235(2) of the Code
of Criminal Procedure requires the trial court to hear the victim on the question of
sentence, and to take into account any representations made by the victim in this
regard. The Supreme Court of India has also emphasized the importance of
considering the victim’s perspective in the sentencing process. In several cases, the
court has held that the trial court must take into account the victim’s views on the
appropriate sentence, and that failure to do so could result in an error of judgment.
The court has also recommended the use of victim impact statements in cases of
sexual harassment, domestic violence, rape, and witness protection.

Delhi Domestic Working Women’s Forum v. Union of India (1995)

This case dealt with the issue of sexual harassment of women at the workplace. The
Supreme Court held that victims of sexual harassment have the right to a safe and
secure workplace and that employers have a duty to prevent and redress such
harassment. The court also recognized the importance of victim impact statements in
sentencing and recommended that they be used in cases of sexual harassment.

State of Rajasthan v. Manoj Kumar Sharma (2011)

In this case, the Supreme Court emphasized the importance of considering the
victim’s perspective in the sentencing process. The court held that the trial court must
take into account the victim’s views on the appropriate sentence, and that failure to do
so could result in an error of judgment. The court also stated that the victim’s views
on the sentence should be given due weight and that the trial court should explain the
reasons for deviating from them, if necessary.

National Commission for Women v. State of Delhi (2010)

This case involved the issue of domestic violence against women. The Supreme Court
held that victims of domestic violence have the right to be protected from such
violence and that the state has a duty to provide them with effective remedies. The
court also recognized the importance of victim impact statements in sentencing and
recommended

In conclusion, the Indian legal system recognizes the importance of victims in the
criminal justice system and has taken several steps to ensure that their rights are
protected. The Supreme Court has emphasized the importance of considering the
victim’s perspective in the sentencing process and has recommended the use of victim
impact statements in cases of sexual harassment, domestic violence, rape, and witness
protection. These cases demonstrate the evolving role of victims in the sentencing
process in India and the courts’ recognition of the importance of their participation in
the criminal justice system.

Types of Sentences

Probation

Probation is a type of sentence in which an offender is allowed to live in the

community under supervision instead of serving time in prison. It is typically used as
an alternative to incarceration for offenders who are considered low-risk and have
committed non-violent crimes.

The goal of probation is to help offenders rehabilitate and reintegrate into society
while also protecting the public from potential harm. During the probation period, the
offender is required to comply with certain conditions, such as regularly reporting to a
probation officer, attending counseling or treatment programs, and avoiding contact
with certain individuals or places. Failure to comply with these conditions can result
in the offender being sent back to jail.

Probation can have several benefits, including reducing the cost of incarceration and
allowing offenders to maintain their employment and relationships. It can also provide
an opportunity for offenders to receive treatment for underlying issues, such as
substance abuse or mental health problems, which may have contributed to their
criminal behavior.

Statutory Provisions Dealing With Probation

S.360 of The Code of Criminal Procedure, 1974.It reads as follows:- ‘When any
person not under twenty-one years of age is convicted of an offence punishable with
fine only or with imprisonment for a term of seven years or less, or when any person
under twenty-one years of age or any woman is convicted of an offence not
punishable with death or imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the Court before which he is convicted, regard
being had to the age, character or antecedents of the offender, and to the
circumstances in which the offence was committed, that it is expedient that the
offender should be released on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be released on his entering
into a bond, with or without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Court may direct and in the
meantime to keep the peace and be of good behaviour’.

The Probation of Offenders Act, 1958 and S.360 of the Code of Criminal Procedure,
1973 exclude the application of the Code where the Act is applied. The Code also
gives way to state legislation wherever they have been enacted.

The object ofS.360 CrPCis to prevent young persons from being committed to jail,
where they may associate with hardened criminals, who may lead them further along
the path of crime, and to help even men of more mature years who for the first time
may have committed crimes through ignorance, or inadvertence or the bad influence
of others and who, but for such lapses, might be expected to be good citizens. It is not
intended that this section should be applied to experienced men of the world who
deliberately flout the law and commit offences.

The Hon’ble Supreme Court in Jugal Kishore Prasad v. State of Bihar[1],explained

the rationale of the provision:
“The object of the provision is to prevent the conversion of youthful offenders into
obdurate criminals as a result of their association with hardened criminals of mature
age in case the youthful offenders are sentenced to undergo imprisonment in jail.”
Section 3
Power of court to release certain offenders after admonition.—When any person is
found guilty of having committed an offence punishable under section 379 or section
380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of
1860) or any offence punishable with imprisonment for not more than two years, or
with fine, or with both, under the Indian Penal Code, or any other law, and no
previous conviction is proved against him and the court by which the person is found
guilty is of opinion that, having regard to the circumstances of the case including the
nature of the offence, and the character of the offender, it is expedient so to do, then,
notwithstanding anything contained in any other law for the time being in force, the
court may, instead of sentencing him to any punishment or releasing him on probation
of good conduct under section 4 release him after due admonition.

Section 4
Power of court to release certain offenders on probation of good conduct.—(1) When
any person is found guilty of having committed an offence not punishable with death
or imprisonment for life and the court by which the person is found guilty is of
opinion that, having regard to the circumstances of the case including the nature of the
offence and the character of the offender, it is expedient to release him on probation of
good conduct, then, notwithstanding anything contained in any other law for the time
being in force, the court may, instead of sentencing him at once to any punishment
direct that he be released on his entering into a bond, with or without sureties, to
appear and receive sentence when called upon during such period, not exceeding three
years, as the court may direct, and in the meantime to keep the peace and be of good
behaviour.

Provided that the court shall not direct such release of an offender unless it is satisfied
that the offender or his surety, if any, has a fixed place of abode or regular occupation
in the place over which the court exercises jurisdiction or in which the offender is
likely to live during the period for which he enters into the bond.
Section 6
Restrictions on imprisonment of offenders under twenty-one years of age.—(1) When
any person under twenty-one years of age is found guilty of having committed an
offence punishable with imprisonment (but not with imprisonment for life), the court
by which the person is found guilty shall not sentence him to imprisonment unless it is
satisfied that, having regard to the circumstances of the case including the nature of
the offence and the character of the offender, it would not be desirable to deal with
him under section 3 or section 4, and if the court passes any sentence of imprisonment
on the offender, it shall record its reasons for doing so.

In Keshav Sitaram Sali v. State of Maharashtra[2], it was held by the Supreme

Court that in a case of petty theft the High Court should have extended the benefit of
either section 360 of the Code of Criminal Procedure or sections 3 and 4 of the
Probation of Offenders Act to the appellant instead of imposing a sentence of fine on
him.
In Basikesan v. State of Orissa[3], a youth of 20 years was found guilty of an offence
punishable under section 380 of Indian Penal Code, 1860 and no previous conviction
was proved against him. It was held by the court that the offence committed by the
accused was not out of deliberate preparation or design but it was a fit case for
application of section 3 and he be released after due admonition.

In Daulat Ram v. State of Haryana[4], it was held that the object of section 6 is to
ensure that juvenile offenders are not sent to jail for offences which are not so serious
as to warrant imprisonment for life, with a view to prevent them from contamination
due to contact with hardened criminals of the jail. Therefore, the provision should be
liberally construed keeping in view the spirit embodied therein.

Salient Features of The Probation of Offenders Act, 1958

·The Probation of Offenders Act, 1958 is intended to reform the amateur offenders by
providing rehabilitation in society and to prevent the conversion of youthful offenders
into obdurate criminals under environmental influence by keeping them in jails along
with hardened criminals.

·It aims to release first offenders, after due admonition or warning with advice, who
are alleged to have committed an offence punishable under Sections 379, 380, 381,
404 or Section 420 of the Indian Penal Code and also in case of any offence
punishable with imprisonment for not more than two years, or with fine, or with both.
·This Act empowers the Court to release certain offenders on probation of good
conduct if the offence alleged to have been committed is not punishable with death or
life imprisonment.

·The Act insists that the Court may order for payment by the offender such
compensation and a cost of the proceedings as it thinks reasonable for loss or injury
caused to the victim.

·The Act provides special protection to persons under twenty-one years of age by not
sentencing them to imprisonment.
·The Act provides freedom to the Court to vary the conditions of bond when an
offender is released on probation of good conduct and to extend the period of
probation not to exceed three years from the date of original order.

·The Act empowers the Court to issue a warrant of arrest or summons to the offender
and his sureties requiring them to attend the Court on the date and time specified in
the summons if an offender released on probation of good conduct fails to observe the
conditions of bond.

 ·The Act provides an important role to the probation officers to help the Court and to
supervise the probationers put under him and to advise and assist them to get suitable
employment.
Duties of A Probation Officer

Sec 14of the Act deals with the duties of a probation officer. It states:-
A probation officer shall, subject to such conditions and restrictions, as may be
prescribed -
(a) enquire, in accordance with any directions of a court, into the circumstances or
home surroundings of any person accused of an offence with a view to assist the court
in determining the most suitable method of dealing with him and submit reports to the
court;
(b) supervise probationers and other persons placed under his supervision and, where
necessary, endeavour to find them suitable employment;
(c) advise and assist offenders in the payment of compensation or costs ordered by the
Court;
(d) advise and assist, in such cases and in such manner as may be prescribed, persons
who have been released under section 4;

(e) perform such other duties as may be prescribed.

Fine, Imprisonment and death sentence

The Indian Penal Code, 1860, provides for several types of sentences that can be
imposed on a person who is convicted of a criminal offense. These include:

Fine (Section 63): A fine is a monetary penalty that can be imposed on a person who
is convicted of a crime. The amount of the fine can be determined by the court based
on the severity of the offense and the financial capacity of the offender.

Imprisonment (Section 53): Imprisonment is a custodial sentence in which the

offender is confined to a jail or prison for a specified period of time. The length of the
imprisonment sentence can vary depending on the nature and severity of the offense.
(simple and rigorous)

Life Imprisonment (Section 55): Life imprisonment is a type of imprisonment

sentence in which the offender is sentenced to remain in jail for the remainder of their
natural life. This sentence is typically reserved for the most serious offenses, such as
murder.

Death Penalty (Section 302): The death penalty, also known as capital punishment, is
the most severe form of punishment that can be imposed on an offender. It is reserved
for the most serious offenses, such as murder.

Probation (Section 360): Probation is a type of sentence in which the offender is

allowed to live in the community under supervision instead of serving time in jail.
This sentence is typically reserved for non-violent offenders who are considered low-
risk.
Community Service (Section 53): Community service is a type of sentence in which
the offender is required to perform a specified number of hours of unpaid work for the
benefit of the community.

Restitution (Section 357): Restitution is a type of sentence in which the offender is

required to compensate the victim for any harm or loss suffered as a result of the
offense. It is important to note that the type of sentence that is imposed on an offender
will depend on a variety of factors, including the nature and severity of the offense,
the offender’s criminal history, and the circumstances of the case. The court will
consider these factors in determining an appropriate sentence that is proportionate to
the offense committed.

Community service

Community sentencing, also known as community service, is a type of sentence that

involves performing unpaid work in the community as a form of punishment for an
offense. Community service can be ordered by the court as an alternative to
imprisonment or as a supplement to a more traditional sentence, such as a fine or
imprisonment.

Community sentencing has been recognized as an important tool for rehabilitation and
reintegration of offenders into society. It is aimed at addressing the root causes of
criminal behavior, such as substance abuse, lack of education, and unemployment,
while also providing restitution to the community.

In India, community sentencing is recognized under Section 3 of the Probation of

Offenders Act, 1958. The Act provides for the release of first-time offenders on
probation and allows the court to order the offender to undergo a period of probation,
during which the offender must comply with certain conditions, such as regular
reporting to a probation officer and undergoing counseling or treatment programs.

The Act also provides for community service as a form of probation. Under Section 4
of the Act, the court can order the offender to perform community service in lieu of
imprisonment or as a supplement to another sentence. The offender is required to
perform unpaid work for a specified number of hours per week for a period of up to
three years.

Community service can take many forms, such as cleaning public areas, assisting in
hospitals or schools, or participating in environmental or social welfare programs. The
aim is to provide a constructive and productive outlet for the offender while also
benefiting the community.

The effectiveness of community service as a form of punishment depends on the

quality of supervision and support provided by probation officers. It is important that
the offender is properly assessed and monitored to ensure that the community service
is appropriate and meaningful.

Community sentencing has several advantages over traditional forms of punishment,

such as imprisonment. It can be less expensive than incarceration and can also reduce
the likelihood of reoffending by addressing the underlying causes of criminal
behavior. It also provides an opportunity for offenders to make amends for their
actions and to contribute positively to society.

However, there are also some challenges associated with community sentencing. It
can be difficult to monitor and enforce compliance with the conditions of the sentence,
and there is a risk of offenders not taking the sentence seriously or not fulfilling their
obligations. There is also a risk of stigmatization, as offenders may be seen as having
received a lenient sentence.

Overall, community sentencing has the potential to be a valuable tool in the criminal
justice system in India. It can help to reduce the burden on the prison system and
promote rehabilitation and reintegration of offenders into society. However, it is
important that community service is properly assessed, monitored, and supported to
ensure that it is effective and appropriate for the offender and the community.

Restorative Justice
Restorative justice is a philosophy and approach to justice that emphasizes repairing
harm caused by criminal behavior and addressing the needs of both the victim and the
offender. It is based on the principles of accountability, dialogue, and community
involvement, and seeks to promote healing and reconciliation rather than punishment
and retribution.

Restorative justice recognizes that criminal behavior can have a wide range of effects
on victims, offenders, and communities. Rather than simply punishing the offender
and ignoring the harm caused to the victim and community, restorative justice seeks to
address the harm in a more holistic and inclusive way.

Restorative justice processes typically involve a facilitated dialogue between the

victim, the offender, and members of the community. The dialogue may take place in
a variety of settings, such as a face-to-face meeting or a mediated conversation, and
may involve the exchange of apologies, restitution, or other forms of reparative action.

The goal of restorative justice is to help the victim heal and move forward, while also
holding the offender accountable and promoting their rehabilitation and reintegration
into society. It is also aimed at repairing the harm done to the community and
promoting social harmony.

Restorative justice is often contrasted with traditional criminal justice, which is

focused on punishing the offender and enforcing the law. Proponents of restorative
justice argue that the traditional approach is often ineffective, costly, and
dehumanizing, and that it fails to address the underlying causes of criminal behavior.

Restorative justice has been implemented in a variety of settings, including schools,

prisons, and community-based organizations. In some cases, restorative justice has
been incorporated into the formal criminal justice system, such as through the use of
victim-offender mediation programs or restorative justice conferencing.

The effectiveness of restorative justice has been the subject of much debate and
research. Some studies have shown that restorative justice can lead to higher levels of
victim satisfaction, reduced recidivism, and increased offender accountability. Other
studies have been more mixed, highlighting the challenges and limitations of
restorative justice in practice.