Sentencing and Punishment

Bishal Khanal
May 2020
 A - Sentencing
1. Introduction to sentencing
• Sentencing is pronouncing punishment by judge or jury
• Punishment is justified based on different theories -as
Retributive, Utilitarian( greatest happiness of greatest
number), and Reformative theories
• Sentencing punishment must be done according to law
• Punishment requires justifications in the form of
reasoning etc in the judgment
• Punishment makes deprivation, restriction and positive
obligations to the wrong doer.
 B. Sentencing Law in Nepal ( faujdari- kasoor sajay nirdharan tatha
karyanayan Ain, 2074)

1. Why sentencing (under the Act)

• Setting punishment in criminal offences
• Enforcing/adjudicating the judgments
• Maintaining just, fair and amicable society

2. Legal effect- sentencing shall be held based on

the law in effect at the time of sentencing (not law
of time of commission of offence) – Section (S)- 5
• Punishment shall be determined after determination of convict
(s-8)

• Punishment shall be set within 30 days of determining guilt (s-9)

• Separate hearing for sentencing shall be held on the offences

subject to more than 3 years of imprisonment and Rs. 30000.00
of fine. Hearing for determining punishment will be done by the
judge who sentenced before.

• Hearing shall be conducted in the open court

• Hearing on sentencing may be made in the absence of legal
counsel as well

• In case, accused could not be produced to the court, it can

discuss with her/him via video

• Convict will be liable on severest offence if committed multiple

offences (s-11)

• Court may ask for report from probation/parole officers about

the state of convicts (s-12)
3. Matters to be considered while sentencing (s-13)
• Discourage to commit crime
• Safety and security of the society
• Restitution to victim
• Re-integration of convict
• Feeling of expiation/guilt by convict
• Denouncing evil conduct of convict
• Social boycott of the convict
4. Basis of determining punishment (s-15)

• Severity or gravity of offence

• Amount of guilt
• Personal background/ situation
• Conduct of offender
• Offender’s earlier activity records
5. Basis of determining delinquencies on juveniles (s-16)

• Best interest of child

• Severity of offence
• Amount of guilt
• Personal condition/background
• Restitution / reintegration measures- for livelihood
• Feeling of apology/ guilt
• Willingness to better livelihood
6. Sentencing order should contain as below (s-17)
• Reason for punishment
• Amount of fine/date (state installment if needed)
• Duration of imprisonment
• Kind of community services and duration
• Reformatory house
• Re integration center and condition
• Parole condition and condition
• Compensation
7. Guarantee against fine - If convict deemed unable to pay fine
instantly, he may be released on guarantee (jamanat) and pay the
fine later

8. Community services (s-22)

• One sentenced up to 6 months may be released on parole
(community service) after staying prescribed period in prison, if
convict so wishes
.
• Community service may include voluntary public work, environment
protection, hospital, elderly homes, disabled homes, public schools,
sports training, welfare homes and place determined by court
9. Provisions relating to imprisonment (s-23)

• Accused would be imprisoned if fine and community services

deemed to be insufficient gravity based on the of offence .(S-
23)

• Considering the condition of offender imprisonment below 1

year may be suspended.

• Imprisonment below 3 years may be suspended in the

condition set by the court
10. Provisions relating to reformatory homes (s-25)

• Offender having less than 2 years to complete imprisonment

period may be sent to reformatory home based on the report
of parole officer.

• Offenders of drugs offences may be sent to rehabilitation

center ( s- 26)

• Offenders sentenced for less than 1 year may complete prison

duration by staying in the weekend or in night time.
11. Open Prison (s-28)- Prisoner completing 2/3 duration may
be sent to open prison by district judge based on report of
prison officer on good conduct

12. Parole – Prisoner completing 2/3 duration in prison in

general crimes may be sent to parole based on report of
good conduct from the prison

13. Physical labor in lieu of detention- (s-31)- Person

sentenced for more than 3 years may reduce prison duration
on daily basis via daily physical labor.
14. Permission to visit out of prison- ( s-32)-
Prisoner may be allowed to attend final rites
( kaj kriya) and visit ill relatives

15. Probation and Parole board- (s-38 & 49)- will

be chaired by the Attorney General at the
Center and Chief Attorney at the Provinces.
Parole and probation officers would be
appointed by GoN.
16.Prisoners with mental health shall be sent to
the hospital- (s-34)

17. Victim Relief Fund- be established (s-48)

• Person not paying amount of compensation

shall be imprisoned ( s-41)
 C. Objectives of Sentencing
1. Rehabilitation of offenders
• Offenders may be reformed
• Punishment is withheld or suspended
• Provided socialization (including Relief, Rehabilitation,
Resettlement, Reintegration, Rescue, Repatriation)
psychological, economic and life skills support
• Likelihood of reducing crimes- among many,
Netherlands follows this policy, were large number of
inmates reduced, many jails are rented out to other
countries like Norway
2. Deterrence- Reduction of crime due to fear of
punishment- imprisonment, death penalty
• Prevent offenders to involve in crime– jail, house arrest,
death penalty
3. Incapacitation- To reduce chances of doing crime
• Keep offender separate/away from society- jail, prison,
banishment, exile
4. Retribution- Social rejection to criminal conduct- tit for
tat
• Prevent crime- Bible says ‘eye for eye’, ‘tooth for tooth’
 D. Theoretical Basis of Sentencing
1. Context- Punishment is justified in order to ensure greatest
happiness of greatest number

• Every punishment needs justification. No punishment without

law

• Punishment makes restraints, depreviation and positive

obligation

• In the course of development punishment are made liberal,

less painful and less harsh
2. Utilitarian Theory (Bentham and JS Mill) -
• A forward looking theory.
• Purpose of law is to increase happiness of people
• Avoid/ decrease unpleasant/painful punishment
• Crime/ punishment both are unpleasant/ undesirable
• In the perfect world/ society, crime does not exist
• Though pain of punishment is fair/justifiable
• Punishment reduces the incidence of crime due to fear
• To meet hedonistic desire usually people commit crime
Forms of punishments under the theory
i. General deterrence-
• This rule is largely followed
• Some one is punished to convince community to stop
criminal conduct in future
• Punishment used as a lesson for community
• Punishment teaches against not-permitted conduct of
people
• It instills fear of punishment so reduce occurance of
crime
ii. Specific(individual) deterrence

• Alternative to right above rule

• Punishment to deter future misconduct of some one
• It can be done in the form of –
a. Deterrence by incapacitation ( as imprisonment
stops committing crime)
b. Deterrence by intimidation-(once released, deters
self to commit due to fear/threat of punishment)
iii. Rehabilitation ( for reform)
• Self reform opportunities provided to reduce future
crimes
• By correction of offenders –probation, parole
• By helping to avoid bad taste including fear – therapy for
drugs, life skills, education
3. Retributive Theory-
• Theory looks backward and has moral questions
• Very old theory- Bible- punishment is justified when it
deserves- In 1970s known by desert theory
• Wrong doers chose to violate rules- but not to follow
• They should be punished whether/ not reduce
offences
• Emmanuel Kant- theory is immoral and backward
• Punishment should be morally appropriate response
to crime- this theory has not
4. Other Theories
a. Desert theories- retributive, wilderness, inhumane,
cruel, traditional
b. Deterrence - preventive to further crimes
c. Rehabilitation -reform, therapy, counseling, skills
d. Incapacitation- detention, disqualification
e. Restorative/reparative- relief, compensation
reparation, - as TRC
f. Social - punishment is function of society
g. Traditional- vengeance, retribution, deterrence
etc
 E. Kinds of Sentencing
• Positive school of criminology observes – ‘punishment fits to
the offender’
• Wide discretion to judges makes sentencing disparity
• Penal law of Nepal has very wide discretionary powers

a. Rigid Sentencing- Stiff or uncompromising or ficed form of

sentencing
• Not negotiable in punishment in minor cases too
• Until 18th century- death penalty to witches in US, rigorous
labor in detention for uncertain period, isolated confinement
b. Disproportionate sentencing

• Not proportionate, not reasonable, not rational, not harmonious

• In Apr 2017, 6-7 inmates sentenced to death penalty in US were

planned to kill in 2 weeks period due to expiry date of lethal
injection

• After great debates of disproportionateness- it was stopped

• In history life imprisonment to pick picketers

Weems v US, 1910

• Fact in brief- Weems US official stationed in Philippines (US colony)

coast- charged with falsifying official cash book- for some Peso.
• Decision of lower courts- sentenced for 15 years hard labour,
wearing chains, life long loss of certain rights, fined 4000 Pesos and
court cost
• Issue- Does this disproportionate sentence violates 8 th amendment
rights against cruel and unusual punishment ?
• SC US- It does violate 8th amendment of US Cons so unlawful
/inhumane as charge is small and penalty is big.
c. Intermediate sentencing (on rehabilitative approach)
• When judge has wide discretion to sentence a term of
5 to 10 years in prison, judge can award 5 yrs in one
case and 10 yrs in other
• Francis Allen- indeterminate nature of sentencing is
good for rehabilitative nature of sentences
• Michael M.D. Hear- in his article “original intent of
uniformity of federal sentenceing-2006 observed
primary purpose of punishment is to make change
character, attitude and conduct of offenders”
• Introduced in late 19th century in NY by releasing in
parole then in probation
• Legally recognized in first half or before middle of
20th century
• Reformatory in nature – giving pardon, parole,
probation
• Social defense is needed against unwanted behaviors
• Also should consider for welfare and satisfaction of
society
 F. Sentencing Disparity
• Sentencing disparity meant for awarding
different sentences for similar crimes committed
in similar circumstances
• Texas Penal Code provides 5-99 year of
imprisonment for first degree murder
• Sentencing disparity may not be corrected unless
taken to Appeal
• Presently measures are being taken to reduce
sentencing disparity
ii. Mandatory sentencing- to discourage SD some states provide
mandatory sentences in law so no room for discretion
• Mandatory sentencing is criticized as it may be rigid and it is
contrary to applying theories of equity, justice and good
conscience by judges
ii. Presumptive sentencing – Law gives limited discretion to
judges
• In some states, punishment is less and in other more on the
similar offences
• Judges have opportunity to rationalize punishment by
comparing laws of different states.
 G. Protection from Cruel and Unusual
Punishment
• The 8th amendment of US Cons abolished
cruel/unusual punishment
• “excessive bail shall not required, nor excessive fine
imposed, nor cruel and usual punishment inflicted “
• Cruel and unusual - jail conditions, death sentence,
torture
• Though- death penalty, whipping, stoning to death,
prison congestion, sanitation, dignity issues still
exists in many countries
 H. Sentencing Procedure
1. Introduction
• Plea bargaining (defendant, prosecutor, jury)
• Presenting case to the bench/judge/jury
• Disclosure of case file
• Counsel’s representation
• Plea agreed after bargain, plea acceptance,
plea rejection ( defendant + prosecutor),
questioning by judge.
2. Determining sentence-
a. Probation- terms and conditions
b. Imprisonment- imprisonment terms and conditions
c. Parole (supervised release) – terms or release and
conditions
d. Fine, forfeiture and restitution- individual’s fine,
forfeiture, restitution, assessment
e. Confinement/ sentencing options- home detainees,
community confinements, community services,
occupational restrictions, intermittent confinements
3. Specific Characteristics of offenders-
• Age, race, sex, creed
• Mental/emotional conditions
• Skills and employment records
• Criminal history
• Family ties
• National origin
• Socio-economic status
 4. US Federal Sentencing Guidelines, 1987
• From 1970 sentencing law underwent changes

• Adopted different form of sentencing policies as Rigid,

Intermediate, Determinate Rehabilitative

• In 1984 Congress constituted a commission to developing

guidelines that issued in 1907

• Some courts observed that the process interfered to the court’s

power and function
• Congress issued the guidelines in 1987 as a mandatory law,
however seems advisory.

• Half of US states have made their own sentencing guidelines

• States sentencing guidelines have both mandatory/

discretionary provisions to state courts
• Main objectives of Fed guidelines are-
– To adopt uniform sentencing policy in Federal Courts
– To avoid sentencing disparities
5. Sentencing Guidelines –India
• Neither legislature nor judiciary has issued separate/ structured
sentencing guidelines

• Statutes including Code of Criminal Procedure provides broad

discretionary powers to judges in awarding sentences or setting the
degree of punishment

• In March 2003, Committee on Reforms of Criminal Justice System

(Malimath Committee), formed by Ministry of Home, realized need of
sentencing guidelines to minimize uncertainty in awarding sentences,
• In order to bring “predictability in the matter of sentencing,”
the Committee suggested to form statutory committee to
draft sentencing guidelines.

• Committee may be comprised with former SC/HC judge,

prosecution, legal profession, police, social scientist and
women representative

• In 2008, the Committee on National Policy for Criminal

Justice (Madhava Menon Committee), reasserted need for
statutory sentencing guidelines
• In State of Punjab v. Prem Sagar & Ors, 2008
case SC noted that, “ in our judicial system, we
have not been able to develop legal principles as
regards sentencing”

• In 2010 Law Minister stated that government is

looking to make “uniform sentencing policy” in
line with the USA and the UK to ensure that
judges do not impose varied sentences
• In Soman v. State of Kerala,2013 SC observed
absence of structured sentencing guidelines

• In Soman v. Kerala, SC cited a number of

principles that it has taken into account “while
exercising discretion in sentencing,”

• Principles include proportionality, deterrence,

and rehabilitation.
• As part of proportionality analysis, mitigating and aggravating
factors should also taken into account

• Though the courts have evolved certain principles

• The twin objective of the sentencing policy is deterrence and

correction

• Sentencing policy help make sentencing/ punishment rational,

reasonable, equitable avoiding discrepancy and difference in
punishment in similar nature of offences.
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