Sentencing process:

A judgement by a court specifying the

punishment of somebody convicted of a crime
It is a final phrase of trial , where the judge have
to play an important role in awarding sentence.
After arriving at the decision of conviction, the
court has to follow the sentencing process
Sentencing process is the series of actions which
followed by the court in awarding correct and
just quantum of sentences.
• The sentencing process involves the
determination of the appropriate action both in
qualitative and quantitative terms.
• Sentencing process is to be appreciated in the
context of individualisation in the administration
of justice
• It means instead of focusing on the offence
sanction should be focused on the offender
• The first movement towards rational sentencing
was introduced by English classical school
• In 18th century, over 200 crimes ranging from
pickpocketing to murder were punishable with
death sentence in England.(Bloody Code)
• Bentham provides few guidelines for the gradation of
offences in terms of punishment:
• The value of punishment must not be less in any case
than what is sufficient to outweigh that of the profit of
the offence.
• When two offences come in competition, the
punishment for the greater offence must be sufficient
to induce a man to prefer the less.
• The punishment should be adjusted in such manner to
each particular offence that for every part of the
mischief there may be a motive to restrain the offender
from giving birth to it.
• The punishment ought in no cace be more than what is
necessary to bring it into conformity with the rules
here given.
• The quantum of punishment should be inverse
proportion to the possibility and time factor
involved in the infliction of Punishment
• Quantum should vary according to the offender’s
capacity to suffer.
• Bentham enumerated 32 variables of capacity for
suffering for eg. Sex, age, physical and mental
health to climate, religion, lineage etc.
• IPC is an example of the influence of Benthamite
theory.
• Gravity of an offence is assessed in terms of
social danger, alarm, social disapproval, harm and
wickedness.
• Factors to be considered for sentencing:
Court shall have the power to award sentence
Hearing of accused on the question of sentence
Question of previous conviction
Benefit of doubt goes to the accused
Purpose of punishment should be considered
according to nature of offence
Courts shall not consider more than prescribed
punishment
Lower degree of punishment is the rule and higher
exceptional
• Alternative sentence to punishment
• Pre-sentence Report
• Victim impact statement
• Individualisation vs Penal sanction
• Probation/suspension v punishment
• Judicial discretion
• Plea bargaining: bargain with accused person in
pleading him guilty
• It consists of the exchange of official concessions
for a defendant’s act of self conviction
• It is recognised in almost all criminal judicial
system
• In India it is by way of settlement in cases where
the offences are compoundable under section
320 of CrPC
• Judiciary never can be a party to the bargaining
for plea guilty.
• In India plea bargaining was never allowed by Supreme
court.
• It was allowed in sub courts including High Courts.
• Madanlal Ramchandra v State of Maharashtra, 1968,
the SC held that offence should be tried and punished
according to the guilt of the accused. The court if it
thinks fit can impose a lighter sentence. But it should
not be a part of plea bargaining.
• State of UP v Chandrika (2000), neither the state not
the public prosecutor nor even the judge can bargain
that evidence not be led or appreciated in
consideration of getting flea bite sentence by plading
guilty.
• State of Gujarat v Lakshman Mangaji Mena(2004)-
sec304 A IPC –Illicit plea bargaining.
• According to SC plea bargaining is not a procedure
established by law under Art. 21 of the Constitution.
• It is unreasonable, unfair , unjust , hence violating Art.
21 of the Constitution(Kasambhai Abdulrehmanbhai
sheik v St. of Gujarat, 1980)
• It would have the effect of polluting the pure fount of
justice, because it might induce an innocent accused to
plead guilty to suffer a light and inconsequential
punishment.
• The SC further observes that the enhancement of
sentence by the appellate or revisional court for the
accused who pleaded guilty in front of a magistrate for
lesser punishment will be injustice and against Art. 21
• Section 4 of Criminal Law (Amendment)Act, 2005
, chapter XXI-A (section 265A to 265L)
• Application of plea bargaining: (offence
punishable with 7 years of imprisonment),
completion of investigation, after taken
cognizance of offence.
• Restrictions: socio economic offences, offences
against woman, any offence against children
below 14 years, it applies to juvenile or child
• Procedure: person accused to file application in
the court
• Trial is pending
• Brief description of the case
• Affidavit of voluntary preference
Not been previously convicted by any other court
for the same case
Court shall issue notice to the public prosecutor or
to the complainant
To the accused to appear on the date fixed for the
case
Court to examine the accused in camera.
If the court satisfies that the accused submitted the
application voluntarily, provide time to public
prosecutor complainant and accused to mutually
satisfactory disposition of the case, which include
victim compensation and other expenses,
thereafter fix a date for further hearing of the case
• If the court finds that the accused involuntarily filed
the application, or convicted of same offence by other
court it shall proceed with the trial.
• Report of mutually satisfactory disposition should
submitted to the court.
• Disposal of the case: award compensation to the victim
• Release on probation
• Reduce the sentence
• Pronouncement of judgement in open court
• Setoff of period of detention
• Statement of plea bargaining should not be used for
any other purposes.
Plea bargaining in US
The classic case of adoption of plea bargaining is the case
of assassination of Martin Luther King Jr . in 1969 accused
James Earl Ray pleaded guilty to the murder of Martin
Luthar King Jr to avoid death penalty . He got 99 years of
imprisonment.
Today about 97 percent of the criminal cases are resolved
by plea bargains. In a plea bargain, the prosecutor
normally offers a reduced prison sentence if the
defendant agrees to forego his right to a jury trial and
admit guilt in a summary proceeding before a judge.
In the recent U.S. Supreme Court decision, Missouri v.
Frye ,(2012) Justice Kennedy, writing the majority
opinion, pointed out the statistics that 97% of federal
convictions and 94% of state convictions are the result of
guilty pleas.
Given the federalist nature of the United States, states
and localities have their own substantive and procedural
laws and regulations. Consequently, data on convictions
by pleas of guilty vary from state to state but they are all
substantial.
In US the accused has three options:
Guilty
Not guilty
Plea of nolo contendere- I do not wish to contend
It is also expressed as an implied confession, a quasi-
confession of guilt, a plea of guilty, substantially though
not technically a conditional plea of quality, a substitute
for plea of guilty, a formal declaration that the accused
will not contend, a query directed to the Court to decide
on plea guilt,
• Plea bargaining was initially not favored in
colonial America but it gained increasing
acceptance with the rise in population by which
courts became overcrowded, and trials became
lengthier.
• The first case of US Supreme Court noticed in
this regard is Brady v. United States13. In this case
the Supreme Court held that merely because the
agreement was entered into out of fear that the
trial may result in a death sentence, would not
illegitimise a bargained plea of guilty.
• The U.S. Supreme Court has approved practices
such as plea bargaining when properly conducted
and controlled. By the twentieth century, guilty
pleas dominated the majority of criminal cases..
• Almost every criminal case is now conducted by Plea
bargaining and today it is often said that the American
Criminal Justice would collapse if plea bargaining is
removed from it.
• In U. S, it is a deal struck between prosecution and
defense. It is much broader and fairness is writ large
over it.
• Voluntariness and judicial scrutiny are two important
aspects.
• The courts have been given a very vital role to play and
it has to see that the entire thing is voluntary and the
accused is given the protection of secrecy and all the
parties may participate freely and no one is subjected
to any coercion or duress of another
• There is no formal process for plea negotiation
in England and Wales
• In general, prosecutors are not allowed to
address the court on issues of sentence, which
remain entirely within the court's discretion
• In all but the most minor cases, however, the
Crown Prosecution Service (CPS) selects the
charge, which allows conversations to take
place between counsel
• Negotiations with the defense are conducted
by the CPS or a barrister representing them
• But any agreement to accept a plea to a lesser charge
cannot provide a high degree of certainty of what sentence
is likely to be imposed
• Also, many judges think they have the power to disallow a
plea of guilt not compatible with the alleged facts
• For example, in R v. Sutcliffe (1981), the famous case of the
Yorkshire Ripper, the judge refused to accept a plea of
guilty to manslaughter by way of diminished responsibility,
despite prosecution willingness to do so and despite
unanimous psychiatric opinions
• A judge may give an indication as to the maximum
sentence on a guilty plea but only if the defense asks for
such an indication, the court retains an unfettered
discretion to refuse to give it or to postpone giving it
• But once given, it is binding on any judge who tries the case
• To encourage plea discussions the Attorney
General has issued guidelines intended to
offer a formal, transparent framework to
facilitate such negotiations to take place
• The new guidelines give prosecutors a new
role as to sentence in the sense of drawing up
a joint recommendation to the court, but they
have nothing to offer by way of discounts,
immunity, or other incentives