Alternatives to Imprisonment: Practices of reformative punishment « प्रशासन
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Alternatives to Imprisonment: Practices of reformative punishment


११ आश्विन २०७७, आइतबार


Sentencing is defined as the formal pronouncement of the judgment and the punishment to the defendant following his/her conviction of crime. When the objective of criminal law is to determine whether the accused person is guilty of the offence s/he is charged with and to prescribe suitable punishment.

Punishment is a means of social control. It is given to offenders with the aim to prevent them from committing further crimes and to reform them for social integration. Punishment not only seeks to deter offenders but also other members of the society from committing similar acts. It also serves to extend sympathy to the victim or to his/her relatives. The concept of punishment thus, is infliction of some sort of pain on the offender for his/her violation of law. In the past, punishment was justified mainly for the purpose of retribution. However, modern society considers crime control as one of the chief objectives of punishment. For this purpose imprisonment as a means of punishment is used to attain twin aims of reforming and treating criminals so that they will commit no further crime after their release. Furthermore as society seeks protection from criminals, prison isolates criminals from the community for a certain time serving the very purpose.

While sentencing judge’s task is to determine the type and quantum of sentence appropriate to the facts of the case and this judgment must be made in accordance with the relevant statutory provision and appellate principles. Sentencing law speaks in only general terms so that it is left to the judge to develop and apply the working rules required to give detailed effect to the provisions and principles in actual cases. Hence, judges, generally enjoy wide discretion in determining the sentence to be imposed, against an accused.

Punishing people certainly needs a justification, since it is almost always something that is harmful, painful or unpleasant to the recipient. Imprisonment, for example causes physical discomfort, psychological pain, indignity and general unhappiness along with a variety of other disadvantages (such as impaired prospects for employment, social life and so forth). Deliberately inflicting suffering on people is at least prima facie immoral and needs some special justification.

For the first time in Nepal, the sentencing act ,an instrumental in modernization of criminal justice system,is being practiced.The objective of this piece of writing is to analyse the provision focused in alternatives to imprisionment within the parameter applying the practices of reformative punishment.

We can practise the alternative to imprisionment or reformative punishment in three stages ie pre-trial stage,sentencing stage and post sentencing stages.

Pre-Trial Stage
The national criminal procedure codes categorically has the provision of detaining an offender either in judicial custody or freeing in bail during the hearing process.Bail,plea bargaining,diversion,administrative fines,non penal fines,juvenile justice can be best practice in pre-trial justice than holding the accused in detention. If, based on the evidence available for the time being, any person accused of the following offence appears to be guilty of the offence or there is any reasonable ground, based on such evidence, to believe that such person is guilty of the offence, the court may remand such person in detention for trial, recording the reason for such detention:
– Offence punishable by the sentence of imprisonment for life,
– Offence under Schedule-1 or Schedule-2 which is punishable by a sentence of imprisonment for a term exceeding three years, or
– Offence of attempt to, abetment of, or criminal conspiracy to, or being accomplice to, the offence set forth in above.
The court may, in any of the following circumstances, remand such accused in detention for trial as may be punishable by a sentence of imprisonment in accordance with law:
– If the accused pleads guilt of the charge made against him or her before the court,
– If the accused charged with an offence punishable by a sentence of imprisonment for a term of one year or more has no permanent abode in Nepal and there is a possibility that the accused might abscond and might not be apprehended subsequently if he or she is not remanded in detention,
– If the accused, being default in making appearance within the time-limit in pursuance of the warrant for arrest issued, has been arrested and produced accordingly, and fails to show any satisfactory reason for being unable to appear in the court,
– If the accused was convicted of an offence andsentenced to imprisonment within the period of three years immediately before this instant charge against him or her.

Notwithstanding anything contained above, the court may, in relation to an offence other than that punishable by a sentence of imprisonment for a term exceeding ten years, remand on bail/bond or guarantee any accused who is a child or infirm due to physical or mental disease or woman with pregnancy of more than seven months or the aged above seventy-five years of age.

Except in the above case, the court may ask for a bail/bond, guarantee or bank guarantee from the accused if there exists a reasonable ground for proving the charge gainst the accused. Provided that the bank guarantee shall be unconditional and renewable at such times as may be specified by the court.

Sentencing stage
The sentencing in the case of criminal offence is of strict construction .However, there are many circumstances where judges have given discretion in deciding the sentencing period considering various factors.

Community Service
An offender who is sentenced to imprisonment for a term not exceeding six months, having regard also to the offence committed by the offender, the age, conduct of the offender, the circumstances and the manner of the commission of the offence, it appears to the court that it is not appropriate to imprison the offender, the court may order the offender to do the community service or to do the community service for the remaining period after the offender has served the sentence of imprisonment for such period as the court deems appropriate in relation to such offence. Doing a public work for free, serving at a hospital, elderly home, orphanage for free, doing environment protection related work for free, teaching or serving at a public or community school for free, providing or causing to be provided sports training for free, doing work at a benevolent organization for free, appearing before such rehabilitation or reform organization as designated by the court and doing such work as specified by such organization..

Fine and other monetary penalties
Payment of money in lieu of imprisonment: If, in view of the age of the offender who is convicted, at the first instance, of any offence punishable by a sentence of imprisonment for a term of one year or less, gravity of the offence, manner of commission of the offence and his or her conduct, as well, the court does not consider it appropriate to confine the offender in prison and is of the view that there will be no threat to the public peace, law and order if he or she is released, and the court, for the reasons to be recorded, considers it appropriate to dispense with the requirement of undergoing imprisonment upon payment of a fine in lieu of imprisonment, the court may order that the offender be not liable to undergo imprisonment if he or she makes payment of money in lieu of imprisonment.

Suspended Sentence
Sentence of imprisonment may be suspended: In cases where an offender on whom a sentence of imprisonment for less than one year has been imposed has committed the offence for the first time and, having regard to the offence committed by the offender, the age, conduct of the offender, the circumstances and the manner of the commission of the offence, it appears to the court that it is not appropriate to imprison the offender, the court may, without implementing the sentence of imprisonment imposed on such offender, suspend such imprisonment. until three years from the date of its determination. no sentence of imprisonment imposed on an offender other than a child held guilty of any of the following offences may be suspended: (a) murder, (b) rape, (c) human trafficking and transportation, (d) arms, ammunition and explosive, (e) corruption, (f) taking of hostage and kidnapping, (g) robbery, (h) counterfeiting of currency or government stamps, (i) foreign exchange, (j) offence relating to narcotic drug trafficking and transaction, (k) relating to ancient monument, (l) relating to forest and wildlife, (m) organized crime, (n) money laundering, (o) offence relating to torture or cruel, inhumane or degrading treatment, (p) crime against humanity.

Post Sentencing stage
The sentencing act has some provision that helps the inmate to socialize and integrate in society if he/she demonstrate good conduct and repent his/her misdeed and tries to begin new life. The concept of Parole,remission,pardon,temporary release and open Prisons are some of the landmarks provision introduced in this act. As the act has accepted significant reformative forms of sanctions,the implementation is major concern.

Administration of justice in Nepal still is very traditional. Hence its reform on the basis of our experiment and social set up is very essential. Alternative to prison system has to be searched and only offenders who are serious threat to the society and who have committed grave offences must remain in custodial sentence. The rest may be treated with other measures under alternative system. Presumptive sentencing model should be introduced in our system to bring objectivity in adjudication. Similarly parole and probation should be implemented along with appropriate provision to ensure restitution of victims.

Justification of sentencing is lacking in the judgment of the court. So the Judges should also give reasons for the sentence. Separate hearing of sentencing to ensure proper and proportionate punishment to the convict must be more effective and not as formality. Even though, Penal Code has been introduced to address shortcomings of the existing law and it has indeed brought some new concepts in administration of criminal justice system regarding sentencing policy. The Code, however, has not reformed all the problems that affect existing system. The Code has not helped to remove confusion regarding some anomalies of existing system like liability on greater offence. Moreover, Code is more oriented towards deterrence and retributive theory of punishment. However, newly introduced open prison and community service is yet to be evaluated in practice. However, traces of reformative approach can be seen in such provision.

(Mr Marasini holds master degree in English literature and public Administration with degree in law. A government lawyer, currently works in office of the high attorney , Butwal. Above are the views expressed individually and does not represent the organisatiion and position.

 

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