Introduction

The latter half of the twentieth century saw major upheavals in sentencing systems, especially in the common-law world. Disenchantment with the reformative theory of punishment had grown. There was also skepticism about the perceived unbridled discretion that sentencing judges enjoyed. These developments led to calls for restricting sentencing discretion, and for more uniformity in sentencing. While the United States turned to sentencing guidelines to curtail discretion, Britain and a few other countries in the Commonwealth tried to find judiciary-led solutions to the perceived problem of unwarranted disparity in sentencing, though more recently these countries have also turned to sentencing guidelines.

As I noted in Chapter 1, however, the sentencing guideline movement of the twentieth century bypassed India until recently. Only in the last decade have there been discussions about the need for structuring judicial discretion in sentencing through the introduction of sentencing guidelines. Before introducing sentencing guidelines, of course, we must examine the extent and causes of sentencing disparity. The choice of the guideline model depends on the nature of the problem identified.

In Chapter 4, using rape sentencing as a case study, I demonstrated how unwarranted disparity exists in sentencing in India. I argued that such disparity and arbitrariness in sentencing arises for three reasons – stereotyping, inconsistency in the use and application of theories of punishment, and the consideration (by courts) of irrelevant factors (concomitant with the inconsistent consideration of relevant factors).

In this chapter, I will examine how sentencing guidelines have been used as a tool to reduce unwarranted disparity. I will consider various guideline models, examining how they have fared, their strengths and their weaknesses. The chapter is divided into four parts. First, I trace the history of judicial discretion in sentencing in England and the United States. Through this discussion, I provide the context and background for later parts of the chapter and the rest of this book. Second, I examine the rationales that have been offered for sentencing guidelines. I also present the arguments against structuring sentencing discretion. Third, I discuss three guideline models: legislative, judicial and administrative (sentencing commissions). Within legislative models, I discuss three sub-categories: sentencing laws that stipulate only the maximum penalty and provide judges with discretion within that range; laws that provide for mandatory penalties; and laws that provide guidance through general principles or standards.