ABSTRACT

This module aims to assess the main advantages of alternatives to imprisonment. It first considers the pros and cons of alternative strategies at the pretrial stage before assessing the effectiveness of community sanctions compared the use of imprisonment. This final section also briefly looks at which groups might benefit most from alternatives to imprisonment as well as highlighting some examples of good practice from different jurisdictions.

Sentencing is in the manner in which the courts interact with a defendant when he or she has pleaded guilty or proven guilty  in other words it is in what occurs at the time that the individual convicted with the crime stops to be simply the victim and is the offender. There is no substantive or case law concept of sentence. This does of course involve a punishment such as a fine or a custodial term , levied by the judge on the defendant for the crime. It should also include orders imposed on the offender on conviction  which  can  not properly be described as punishments. It has been suggested that sentencing is an art not a science so it must be learned by the practice of doing so, rather than approached by a set of rules.

THE PROS AND CONS OF ALTERNATIVE STRATEGIES AT THE PRETRIAL STAGE

Compared to the deprivation of liberty , the overriding benefits of alternative strategies and measures at the pretrial stage include:

• Observing fundamental human rights and the right to be presumed innocent
• Avoiding unnecessary use of imprisonment
• Preventing ill-treatment during detention
• Reducing overcrowding in prisons
• Reducing criminal justice costs
• Encouraging access to appropriate and tailored interventions
• Reducing the risks of stigmatization , social isolation and exclusion from families, friends and communities as a consequence of pretrial detention
• Protecting individuals , families and communities from the debilitating consequences of impriosnment

Yet, alternative measures prior to sentencing have also been criticized for being unduly  lenient poorly evaluated expanding social control over alleged offenders widening the net of the criminal justice system and for bearing additional administrative and financial costs in monitoring compliance.

EFFECTIVENESS OF COMMUNITY SANCTIONS

Given the multiple aims and objectives of community sanctions as well as the differing  rationales for imposing punishment it may be difficult to establish the effectiveness of community sanctions. The extent to which community sanctions provide an alternative measure to prison is difficult to ascertain. Limited data are available globally, but some recent studies reveal that prison populations have continued to rise despite the increase in the  use and development of alternative measures. This has been shown across European countries and in the united states where there is a trend towards mass supervision of offenders as well as mass incarceration suggesting that community sanctions have been serving as an add on rather than an alternative to incarceration.

As noted earlier enthusiasm for community sanctions can lead to the problem of net widening whereby sanctions are imposed in addition to rather than instead of imprisonment. This has the effect of increasing rather than decreasing the total number of individuals in the criminal justice system for example the introduction of the fiscal fine penalty in Scotland in the 1980 was set up as a diversionary mechanism to reduce the number of criminal prosecutions. Public prosecutors in Scotland were able to offer alleged offenders the chance to avoid prosecutors in Scotland were able to offer alleged offenders the chance to avoid prosecution by paying immediate financial penalty. In a study on the introduction of the fiscal fine in Scotland however found that most offenders who received a fine would previously have found their cases disposed of by a nopro or a warning letter and that a considerable degree of net widening was taking place.

AGRRAVATING AND MITIGATING CIRCUMSTANCES

Aggravating circumstances make a felony more severe or worse. Popular aggravating factors involve a long criminal record of the offender or whether the offence inflicted significant harm to the victim.

Mitigating circumstances are facts that appear to mitigate the seriousness or penalty of a felony by rendering the actions of the criminal more reasonable or less guilty. Extenuating factors can involve the early age of the suspect psychiatric disorder or addiction or a small involvement in the case. Individuals often violate the  rules for example when acting in accordance with their moral or culture values so this may be called an extenuating situation.

In law, the definition of extenuating condition often referred to as mitigating circumstances is large and can imply various things to various jurists. Often it applies primarily to the conditions that hinder the punishment process. In  many  cases, it applies to something short of a remedy that renders the alleged conduct of the offender less reprehensive and resulting in a less severe offence or punishment.

Decision making in the criminal justice system such as police officers, lawyers , judges , and jurors, often recognize extenuating conditions along with certain other considerations , when determining how best to treat a situation. If an individual with an intellectual impairment steals candy from a shop , a police officer may decide not to make an arrest , a lawyer may agree not to prosecute a suspect or prosecute an individual with a less severe offences , a jury may agree not to convict or judge can condemn to a lighter penalty than the limit.

AGGRAVATING  FACTORS

At the sentencing hearing presentation of evidence by the prosecutor of aggravating factors would resulting a harsher sentence. There exists different criminal statutes that specify the factors resulting in harsher punishments. The seriousness of the offence is judge based upon the circumstances of the case such as the gravity of the injury usage of weapons etc. the seriousness of the offence is the prerequisite factor in deciding the length of the sentence. Some of the factors are as follows:

• REPEAT OFFENCES:   it is often argued that the court should treat the previous conviction of the offender as an aggravating factor provided the conviction before has relation to the current offence and the time has passed since the conviction. It is regarded that a sentence can be imposed considering the failure to respond to previous non-custodial sentences.
• VICTIM VULNERABILITY:  there might be situations where the court may impose a harsher sentence based on the vulnerability of the victim. It states when an act is performed by the defendant against a child the elderly would be considered an aggravating factors. It also involves causing mental and physical injury , disability and illness.
• LEADERSHIP : If the defendant played an influential role in the minds of individuals leading to the commission of offence then the court would consider it as an aggravating factor.
• HATE CRIMES: There exist states which have enacted laws on hate crimes .  different  statues have categorized hate crimes on the basis of caste , religion , gender , and national origin.
• THE CULPABILITY OF AN OFFENCE:  intention , negligence , recklessness , and knowledge play a crucial role in determining the culpability of an offence. It is also regarded  as an aggravating factor provided that the defendant has deliberately caused more harm than required and has targeted a vulnerable victim.

MITIGATING FACTORS

Production of evidence on mitigating factors would help the defence in bringing leniency in sentencing. The factors that can be considered by the judge while sentencing is:

• The offender was coerced, threatened to commit the offence. It would not constitute a complete defence but would slightly affect the sentencing process.
• The involvement of the offender in the crime was a more accessory.
• The offender was extremely careful in carrying out in the crime.
• It was because of provocation the act was committed.
• A belief possessed by the defendant that he or she holds a rightful claim over the property.
• Under the situation of necessity the offender was forced to provide aid to his or her family.
• With mental or physical instability at the time of the commission of offense would reduce the culpability of the offender.
• Lack of forming a rational judgement because of his or her age.
• The offender under unusual circumstances committed an offense provided there does not exist sufficient intent to violate the law.

AGGRAVATING AND MITIGATING FACTORS IN SENTENCING

Study of the criminal laws of our country shows that the distribution of the sentence is left entirely to the discretion of the judges for almost all offenses and as a result the sentences sometimes handed down for almost the same offences by two different judges are grossly disproportionate. Since the offenses have been defined in general terms only maximum penalty terms have been indicated. Judges, therefore must allocate the amount of the penalty according to the gravity or otherwise of the various offenses within the limits prescribed.

Judges face the problems in situations where they have to abide by the basic principles. As a consequence there has been a disparity in the sentences levied by various courts over specific kinds of offenses often without recourse to the standards set down which are meant to mitigate differences. Such ideas are not specifically laid out in the indian penal code 1860 or any other substantive legislation which will have a contractual impact on judges. They have also followed specific standards with their own guidance conferences variations in methods are not addressed or reconciled.

DEATH SENTENCE

The mitigation factors that are considered by the judge before execution the death sentence are:

• That the offense was committed under the influence of extreme mental or emotional disturbance
• The age of the accused if the accused is young or old he shall not be sentenced to death
• The likelihood that the accused would not commit acts of violence as a continuing threat to society the likelihood that the accused may be reformed and rehabilitated
• The state shall prove by evidence that the conditions are not met that the accused acted under the pressure or domination of another person and that the condition of the accused showed that the he was mentally defective and that the defect had impaired his ability to appreciate the criminality of this conduct.

The death penalty is neither an unreasonable limitation on the freedom to life nor an impermissible violation of the due process on justice under article 21 of the constitution. The death penalty or death warrant can not be defined as new as this kind of execution has been with us from ancient times right up to the present day.

DIFFERENCE BETWEEN AGGRAVATION AND MITIGATING FACTORS

Aggravating factors which are facts or factors that could lead a court to believe that act was more harmful or more transgression than those facts might be lacking. Many of the aggravating factors are defined by the law in any jurisdiction while most of the mitigating factors are a matter of fairness or judicial discretion.

Many important aggravating factors include the age of the victim whether the perpetrator was a police officer or a civil official previous criminal background extent of premeditation  and preparation or certain considerations that might cause the court to levy a greater sentence due to the egregious nature of the offense.

On the other hand mitigating circumstances under the law are facts or factors that could lead a court or a finding of fact to believe that the act was less harmful or less of a transgression than those facts might be lacking.

CONCLUSION

Balancing is what is expected when an offender is convicted. The balancing has to be done between the rights of the accused and the needs of society at large. It would also be a daunting challenge to preserve the trust of citizens when the using the authority of the courts to convict or execute. To evaluate it is also a daunting thing for the convicted to be guilty and therefore executed with a proper penalty without any fool proof method. The sentence handed down to the convict should be appropriate and the crime has been committed.