A proper sentence is a composite of many factors, including the nature of the offense, the extenuating or aggravating circumstances related to the offense, the prior criminal record (if any) of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education, home life, sobriety, and social adjustment, the emotional and mental conditions of the offender, the prospect for the rehabilitation of the offender, the possibility of treatment or training for the offender, the potential for the sentence to serve as a deterrent to crime by this offender or others, and the current community need (if any) for such a deterrent in relation to the specific type of offense involved.

It is the felonious propensity of an offender that requires consideration when dealing with the question of imposing the death sentence. However, that alone cannot be the sole basis; all other factors related to the commission of the crime, including the motive, manner, magnitude, age, composition of the family, and the circumstances under which the offense was prompted, must also be taken into consideration. The socio-economic status, religion, race, caste, or creed of the accused or the victims are irrelevant considerations in sentencing policy.

Some judges count the number of fatal wounds, while others consider the nature of the weapons used. Some focus on the age or sex of the offender, and there are even those who examine the time lapses between the trial court’s award of the death sentence and the final disposal of the appeal. Motives, provocations, primary or constructive guilt, mental disturbance, old feuds, the savagery of the murderous moment, or the premeditation leading up to the killing-all these odd factors enter the sentencing calculus for some judges. Interestingly, a well-considered death sentence by the trial court may sometimes be overturned by the Supreme Court due to delays in the legal process.

Courts have directed the execution of murderers who are mentally impaired and do not fall within the McNaughten Rules because of the intense fury of the slaughter. Subjectivism, preferences for old English precedents, theories of modern penology, behavioral emphasis, social antecedents, judicial hubris, and human rights—all these forces play a part in the erratic pendulum of sentencing justice.

Precedent, the applicability of statute law, the separation of powers, legal presumptions, statutes of limitations, rules of pleading and evidence—all these factors enable judges, in most cases, to stay within the bounds of established norms. However, when these prove inadequate, especially in courts of last resort or Supreme Constitutional Courts, judges must rely on their own value systems. Thus, it can be said that a judge’s philosophy is the most important aspect.--Richard B. Brandt

Written By: S Kundu & Associates
Email: [email protected], Ph No: +9051244073