DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY,

LUCKNOW

A PROJECT ON

Criminal Law

(UNDER THE SUPERVISION OF Dr. Grijesh shukla SIR )

Retributive Theory of punishment

SUBMITTED TO SUBMITTED BY

Dr. Grijesh Shukla Sir Vimal Singh

Faculty of Law Roll No 60
B.com.LL.B (Hons.)
D.S.M.N.R.U (2015-16)
 Annexure A Front-page and Cover

TITLE OF PROJECT

----------------------------------------------------------------------------------

----------- Retributive Theory Of Punishment------------------

---------------------------------------------------

Submitted by

Vimal Singh

-----------------------------------------

B.COM L.L.B(Hons.) 3 rd Semester

Roll No60

Of

Faculty of Law

Dr. Shakuntala Misra National Rehabilitation University, Lucknow

Under the guidance of

Dr. Grijesh Shukla

Facualty Of Law
 Annexure B Certificate

CERTIFICATE

The project entitled Retributive Theory Of Punishment" submitted to the

Faculty of Law, Dr. Shakuntala Misra National Rehabilitation University,
Lucknow for Law of Crimes-I, as part of Internal assessment, is based on
my original work carried out under the guidance of Dr. Grijesh Shukla Sir.

The research work has not been submitted elsewhere for award
of any degree. The material borrowed from other sources and incorporated
in the thesis has been duly acknowledged. I understand that I myself could
be held responsible and accountable for plagiarism, if any, detected later
on.

Signature of the candidate

Vimal Singh
 ACKNOWLEDGEMENTS

I would like to express my special thanks of gratitude to my teacher Dr. Grijesh

Shukla as well as our Head of Department Mrs. Shephali Yadav who gave me the
golden opportunity to do this wonderful project on the topic "Retributive Theory Of
Punishment", which also helped me in doing a lot of Research and i came to know
about so many new things I am really thankful to them.

Secondly i would also like to thank my parents and friends

who helped me a lot in finalizing this project within the limited time frame.
 Table of Contents

Annexure A....2

Annexure B .....3

Acknowledgement .......................4

Index Of Authorities ...6

Retributive Theory Of Punishment.............7

Advantage of Retributive theory 8-

Critisim Of retributive theory..9-

10

Cases On Retributive Theory Of Punishment.....10-

35

Bibliography...
34
INDEX OF AUTHORITIES
CASES

1. Sunil Batra vs. Delhi Administration AIR 1880 SC 157

2. Shobha Suresh Jumani vs Appellate Tribunal, Forfeited AIR 2001 CR.LJ 2583

3. State Of Gujrat vs. Ibrahim AIR 1988 Cr.Lj 631

4. Ashok Kumar vs. State (Delhi Administration) AIR 1980 SC 636

5. Jagmohan Singh VS. State Of U.P AIR 1973 SC 947

6. Harnam vs State Of U.P AIR1976 2071

7. Raj Narain VS. State Of U.P AIR 1975 SC 865

8. Furman v. Georgia , 408 U.S. 238 (1972):

9. Gregg v. Georgia , 428 U.S. 153 (1976)

10. Witherspoon v. Illinois , 391 U.S. 510 (1968)

11. Woodson v. North Carolina , 428 U.S. 280 (1976)

12. Coker v. Georgia , 433 U.S. 584 (1977)

13. Enmund v. Florida, 458 U.S. 782 (1982)

14. Ford v. Wainwright, 477 U.S. 399 (1986):

15. Batson v. Kentucky, 476 U.S. 79 (1986)

16. McCleskey v. Kemp, 481 U.S. 279 (1987):

17. Thompson v. Oklahoma, 487 U.S. 815 (1988):

18. Penry v. Lynaugh, 492 U.S. 302 (1989):

19 .Stanford v. Kentucky, 492 U.S. 361 (1989):

20. Atkins v. Virginia, 536 U.S. 304 (2002):

 Retributive Theory of Punishment

INTRODUCTION

Retributive theory of punishment is a theory of justice which holds that the best
response to a crime is a proper punishment inflicted for its own sake rather than to
serve an extrinsic social purpose, such as deterrence or rehabilitation of the offender.
Retributivists hold that when an offender breaks the law, justice requires that the
criminal suffer in return. They maintain that retribution differs from revenge, in that
retributive justice is only directed at wrongs, has inherent limits, is not personal,
involves no pleasure at the suffering of others and employs procedural
standards.In ethics and law, the phrase "Let the punishment fit the crime" is a principle
that means that the severity of penalty for a misdeed or wrongdoing should be
reasonable and proportionate to the severity of the infraction. The concept is common
to most cultures throughout the world and is evident in many ancient texts.
Proportionality requires that the level of punishment be scaled relative to the severity
of the offending behaviour. An accurate reading of the biblical phrase "an eye for an
eye" in Exodus and Leviticus is said to be: 'only one eye for one eye' or "an eye in place
of an eye". However, this does not mean that the punishment has to be equivalent to the
crime. A retributive system must punish severe crime more harshly than minor crime,
but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism
with utilitarianism. For utilitarians, punishment is forward-looking, justified by a
purported ability to achieve future social benefits, such as crime reduction. For
retributionists, punishment is backward-looking, justified by the crime that has been
committed and carried out to atone for the damage already done. Depending on the
retributivist, the crime's level of severity might be determined by the amount of harm,
unfair advantage or moral imbalance the crime caused. There are two distinct types of
retributive justice. The classical definition embraces the idea that the amount of
punishment must be proportionate to the amount of harm caused by the offence. A more
recent version advocated by the philosopher Michael Davis dismisses this idea and
replaces it with the idea that the amount of punishment must be proportionate to the
amount of unfair advantage gained by the wrongdoer. Davis introduced this version of
retributive justice in the early 1980s, at a time when retributive justice was making a
resurgence within the philosophy of law community, perhaps due to the practical
failings of reform theory in the previous decades.
ADVANTAGES OF THE RETRIBUTIVIST
THEORY

1. Emphasizes proportional punishment :

Retributivist theory focus on punishment to only those who deserve it. Unlike deterrence
theory, an innocent can never be punished. Since they are backward-looking, they are not
concerned with the possibility of a person committing a crime. For punishment to be meted out,
a person must be found guilty. Retributivist theory emphasizes the need of proportionality of
the punishment to the desert. Instead of restitution where the wrong does repays the society
what he gained from the crime ,but such a punishment is flawed. A person who has stole a sum
of money should not only give back the money but should also suffer to the extent he made the
victim suffer. Even if the relative seriousness of crimes cannot be judged in all cases, the overall
severity can be judged. Also ,such proportional punishment gives a sort of protection against
severe and portion punishments for crimes.

2 .Retributive punishment sends out a message :

The idea of punishment as a form of denunciation of the criminal and his act by the society has
been envisioned by scholars like Morris, Hampton and Sir. Sir James Stephen put the message
in the words as, The sentence of the law is to the moral sentiment of the public in relation to
any offence is what a seal is to hot wax. It converts into a permanent final judgment what might
otherwise be a transient sentiment. In his evidence to the Royal Commission on Capital
Punishment, Lord Denning observed, ultimate justification of any punishment is not that it is
a deterrent but that it is the emphatic denunciation by the community of a crime. In the opinion
of Hart, punishment should not be for sake of denunciation alone but a deserved punishment
does serve as a denunciation. According to him, we do not live in society in order to condemn
though we may condemn in order to live. Morris contended that by punishing wrongdoers each
citizen learns the particular significance of the evil underlying offenses and the degree of
seriousness. Hampton opined that punishment is somehow representative of the pain
suffered by the victim of crime and hence by inflicting punishment the wrongdoer shall
understand the immorality of the action .

CRITICISMS OF THE RETRIBUTIVIST THEORY

The requirement of desert required to punish crimes has in itself some difficulties. The
very
Nature of morality being subjective makes it difficult to deliver punishments for crimes.
The immorality of crimes needs to be comparable. For this, a sort of gold standard is
required to assess a crime. A society has its citizens adhering to very different
conceptions of good and bad. For some, using drugs is a matter of personal liberty while
for some it is seen to be an reprehensible act. Nations have varying laws on subjects
like prostitution, drug use etc. The very question of setting a common moral standard
seems every bit fair since it involves asserting ones view over others. Hence the
process of unifying morality for punishing evil is far complicaed than what it might
appear. Another problem of retributivist theory is with dealing with amoral crimes.
Although most crimes are both illegal and immoral like rape, murder, theft etc., there
are crimes like traffic offences and jaywalking which although illegal cannot be said to
be immoral.
Retributivists are uncomfortable with mercy and pardons. Sometimes a greater good
can be achieved by pardoning a criminal instead of punishing him. However, Kant
famously quoted that if justice goes, there is no longer any value in human beings
living on the earth. A bloody war is more acceptable than avoiding it through injustice.
Modern common law systems have a system of plea bargaining where in the accused
admits to the guilt in lieu of a reduced sentence. The state justifies such sentences on
the grounds of saving of taxpayers money and courts time. Hence, the criminal does
not get what his deserved punishment was.

Cases on Punishment

1. Sunil Batra vs. Delhi Administration AIR 1880 SC 1579

CITATION :- 1880 SC 1579

CITATOR INFO :-

1980 SCR (2) 557

APPELANT : -

Sunil Batra

RESPONDENT : -

Delhi Administration

JUDGES :-

KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)

FACT : - The petitioner, a convict under death sentence, through a letter to one of
the Judges of this Court alleged that torture was practice upon another prisoner by
a jail warder, to extract money from the victim through his visiting relations. The
letter was converted into a habeas corpus proceeding. The Court issued notice to the
State and the concerned officials. It also appointed amicus curiae and authorised them
to visit the prison, meet the prisoner, see relevant documents and interview necessary
witnesses so as to enable them to inform them selves about the surrounding
circumstances and the scenario of events. The amicus curiae after visiting the jail and
examining witnesses reported that the prisoner sustained serious anal injury because a
rod was driven into that aperture to inflict inhuman torture and that as the bleeding
had not stopped, he was removed to the jail hospital and later to the Irvin Hospital. It
was also reported that the prisoner's explanation for the anal rupture was an unfulfilled
demand of the warder for money, and that attempts were made by the departmental
officers to hush up the crime by overawing the prisoner and the jail doctor and offering
a story that the injury was either due to a fall of self-inflication or due to piles.
Allowing the writ petition.

HELD :-

The court held that fundamental right flee the person as he enters the prison although
they may suffers shrinkage necessitated by incarceration. Hard labour in section 53 of
the IPC has to receive by humane meaning. A girl student or a male weakling sentenced
to rigorous imprisonment may not be forced to break stones for nine hours a day. The
prisoners cant demand soft jobs but may reasonably be assigned congenial jobs and
sympathy are not enemies of penal asylums.

2. Shobha Suresh Jumani vs Appellate Tribunal, Forfeited AIR 2001

CR.LJ 2583

CITATION :- 2001 Cr.lj 2583

PETITIONER : -

Shobha Suresh Jumani

RESPONDENT : -

Appellate Tribunal, Forfeited Proper & Anr.

JUDGES :-

B.N. Agrawal, M.B. Shah & Ruma Pal

QUESTION RAISED :-

Consideration in this appeal is whether wife whose husbands property is ordered to be forfeited
under the Smugglers And Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(hereinafter referred to as the SAFEMA) is entitled to file an appeal as person aggrieved
under Section 12(4) of the Act?

FACTS : -

An Appeal was filed by a woman whose husbands property was ordered to be forfeited
under the Smugglers And Foreign Exchange Manipulators ( Forfeiture of Property) Act,
1976.

HELD : -

For controlling the cancerous growth of corruption apart from further deterrent
provision illegally acquire property by means of corrupt practices should be forfeited.
Section 61 and 62 of IPC were deleted by IPC act, 1921. But considered the situation
prevailing in the society, it appears that the said provision are required to be re-
introduced so as to have deterrent effect on those are bent upon to accumulate wealth
at the cost of the society by misusing their post or power. We hope that the Legislature
would consider this aspect appropriately.

3. State Of Gujrat vs. Ibrahim AIR 1988 Cr.Lj 631

CITATION : - AIR 1988 Cr.Lj 631

PETITIONER : -

Ibrahim

RESPONDENT : -

State of Gujrat

FACTS : -

Ibrahim , the accused was prosecuted for violating the provisions of the Customs Act,
as well as Gold Act. He was sentenced to suffer seven years rigorous imprisonment and
fine under the provision of Customs Act and awarded a sentence of four years rigorous
imprisonment for six months and to fine of RS. 2lacs, in default further rigorous
imprisonment for six months under the gold act. The accused pleaded that if the
sentence of long term has been imposed, fine ordinarily should not be imposed.

HELD : -

In a trasaction involving crores of rupees, and that too in offences of economic

nature, imposition of a heavy fine is a must and it cannot be laid down as a blanket
proposition that a long-term sentence should ordinarily persuade the court not to impose
a sentence of fine along with sentence of imprisonment.

4. Ashok Kumar vs. State (Delhi Administration) AIR 1980 SC 636

CITATION : - AIR 1980 SC 636

PETITIONER : -

Ashok Kumar

RESPONDENT : -

State

JUDGES : -

Krishna Iyer and Pathak

FACTS : -

The accused in 1971 while he was a 19 years old college student, tried his hand at stealing a
scooter. He was arrested but bailed out and while on bail was accused of committing car theft.
Both these cases were tried and he was found guilty. The appellant was convicted and
sentenced to two years' imprisonment and fine of Rs. 2,000 and imprisonment for six months
and fine of Rs. 500 for car lifting and scooter poaching.

HELD : -

Appeal Allowed. On the question of sentence the court observed the long protacted litigation
from 1971 onwards is some deterrent for a young man in his 20s. the youthful age of the
offender is a factor which deserves consideration. A long period of incarceration may brutalize
a boy and blunt his finger sensibilities so that the incarceration may perhaps be more criminal
than the one at the point of entry. The offender having served a term of nearly six months must
have realized that the game of crime does not pay.
5. Jagmohan Singh VS. State Of U.P AIR 1973 SC 947

CITATION : - AIR 1973 SC 947

PETITIONER : -

Jagmohan Singh

RESPONDENT : -

State Of U.P

JUDGES:-

Sikri, S.M., Ray, A.N., Dua, I.D., Palekar, D.G., Beg, M. Hameedullah

FACTS :-

Some six or seven years before the present offence, one Shivraj Singh, father of Jagbir Singh,
a cousin of the appellant, was murdered. The deceased Chhotey Singh was charged for that
murder but was eventually acquitted by the High Court. As a result of that murder, there was
ill-feeling between Chhotey Singh, on the one hand, and the appellant and Jagbir Singh, on the
other. Both of them were minors at the time of the murder of Shivraj Singh. But by now they
had grown up and it is plain from the evidence that Chhotey Singh's murder was the result of
this ill-feeling. Chhotey Singh was murdered on September 10, 1969 at about 5.00 P.M. A day
earlier, there was a quarrel between Jagmohan Singh and Jagbir Singh, on the one hand, and
Chhotey Singh, on the other, on the question of a right to irrigate their fields. However, the
dispute was settled by persons who reached the spot at the time and nothing untoward happened.
Next day, however, the appellant armed with a country made pistol and Jagbir Singh armed
with a lathi concealed themselves in a bajra field and emerged from the same as Chhotey Singh
passed by to go to his field for fetching fodder. The appellant asked Chhotey Singh to stop so
that the matter between them could be settled once for all. Naturally Chhotey Singh tried to run
away but he was chased by the appellant and shot in the back. Chhotey Singh fell down after
running some distance and died. That is how the murder was committed. On the facts and
circumstances of the case, the learned Session judge held that the appellant deserved the
extreme penalty. The High Court, while confirming the death sentence, observed that there
were no extenuating circumstances and the sentence of death awarded to the appellant was just
and proper.

ISSUES : -

The question is whether this Court should interfere with the sentence?
HELD : - In the result, the appeal fails and is dismissed. The court held that Article 72(1)(c)
and 134 of the constitution and entries 1 and 2 in list 3rd of the seventh scheduled to the
constitution show that the constitution makers had recongnized death sentences as the
permisible punishment and had made constitutional provisions for appeal reprieve, and the like.
According to article 21 deprivation of life is constitutionally permisible if that is done according
to procedure established by law. Thus the death sentence imposed after trial in accordance with
legally established pr5ocedures under crpc and the Indian Evidence Act is not unc0nstitutional
under article 21.

6. Harnam vs State Of U.P AIR1976 2071

CITATION : - AIR 1976 ,2071

PETITIONER : -

HARNAM

RESPONDENT : -

State OF U.P

JUDGES : -

BHAGWATI, P.N.

SARKARIA, RANJIT SINGH

FACTS : -

Harnam Singh petitioner aged 70 years, a Mahant of Bunga Sohal in Amritsar and Mst.
Rattan Kaur wife of Dewan Singh aged about 40 years resident of Bunga Inder Kaur,
Sarai Bazar, Amritsar, were sent up to be tried under Sections 3 and 4 of the Suppression
of Immoral Traffic in Women and Girls Act, 1956, for running a brothel and for acting
as a pimp for procuring Mst. Rattan Kaur for the purposes of prostitution. The story for
the prosecution is that on the 14th of June 1962 Puran Chand was proceeding towards
Bunga Solanwala in Amritsar City to have sexual intercourse with Mst. Rattan Kaur.
He had received information that she would be available to him on payment of Rs. 15/-
. On the way he came across Mukhtiar Singh and also a police constable in plain clothes.
The police official took Puran Chand to the Deputy Superintendent of Police who also
had similar information about the misconduct of Harnam Singh and Mst. Rattan Kaur.
Puran Chand told him the purpose of his visit and produced a ten rupee currency note
before the Deputy Superintendent of Police which he had to pay to Harnam Singh in
order to have sexual intercourse with Mst. Rattan Kaur. On the above allegations
Harnam Singh and Mst. Rattan Kaur were sent up for trial under the said Act. Mst.
Rattan Kaur was acquitted but Harnam Singh was convicted under Section 4 of the said
Act and sentenced to 6 months' rigorous imprisonment. Harnam Singh went up in
appeal which came up before Shri Brijinder Singh Sodhi, Additional Sessions Judge,
Amritsar, who dismissed the same vide his order dated the 15th March, 1963, against
which this revision has arisen.

HELD : -

The petitioner when examined denied the allegations against him and produced four
witnesses in defence who stated that the petitioner in this case was a man of good
character.

7. Raj Narain VS. State Of U.P AIR 1975 SC 865

CITATION : - AIR 1975 SC 865

CITATOR INFO : - 1975 SCR (3) 333)

PETITIONER : -

Raj Narain

RESPONDENT : -

State Of U.P

JUDGES : -

Das, S.K.

FACTS : -

Raj Narain had contested the Indian general election, 1971 against Indira Gandhi, who
represented the constituency of Rae Bareilly in the Lok Sabha, the lower house of the
Indian Parliament. Gandhi was re-elected from Rae Bareilly by a two-to-one margin of
the popular vote, and her Indian National Congress (R) party won a sweeping majority
in the Indian Parliament. Narain filed a petition to appeal the verdict, alleging that Indira
Gandhi used bribery, government machinery and resources to gain an unfair advantage
in contesting the election. Narain specifically charged Gandhi of using government
employees as election agents and of organising campaign activities in the constituency
while still on the payroll of the government. Mrs Gandhi was represented by the noted
lawyer Nani Palkhiwala, Raj Narayan by Shanti Bhushan. After Mrs Gandhi imposed
emergency on 26-June-1975, Palakhiwala resigned as her lawyer to protest against the
decision. When Janata Party came to power in 1977, Palakhiwala was appointed
Ambassador to US. Shanti Bhushan became a minister in the Janata Party government.

HELD :-

On 12 June 1975, Justice Jagmohanlal Sinha found Indira Gandhi guilty of electoral
malpractices. Sinha declared the election verdict in the Rae Bareilly constituency "null
and void", and barred Indira from holding elected office for six years.While Sinha had
dismissed charges of bribery, he had found Indira guilty of misusing government
machinery as a government employee herself. The court order gave the Congress (R)
twenty days to make arrangements to replace Indira in her official posts. This was
unprecedented. Its impact finally led to the fall of Congress regime at the centre
immediately after emergency. Raj Narain became a national hero for overthrowing
Indira's and Congress regime after 30 years of independence, initially by trouncing
Indira in judicial battle and later in 1977 Loksabha elections. This fulfilled an unrealised
dream of his friend and mentor Dr Ram Manohar Lohia. Indira appealed the verdict to
the Supreme Court of India, which granted a conditional stay of execution on the ruling
on 24 June 1975. On 7 November 1975, the Supreme Court of India formally
overturned the conviction.

8. Furman v. Georgia , 408 U.S. 238 (1972):

CITATION : - 408 U.S. 238 (1972)

APPELLANT : -

Furman

RESPONDENT : -

Georgia

FACTS : -

Petitioners Furman, Jackson, and Branch-all black were sentenced to death, one of them
for murder, and two for rape in Georgia and Texas. Certiorari was granted to review
decisions of the Supreme Court of Georgia, affirming the death penalty on defendants
convicted of murder and rape, and the Court of Criminal Appeals of Texas, affirming
death penalty for rape.

ISSUES : -

Would the imposition and carrying out of the death penalty constitute cruel and unusual
punishment in violation of Eighth and Fourteenth Amendments?

HELD : -

The Court held that the imposition and carrying out of the death penalty in these cases
constituted cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments. There were nine separate opinions. The Court reached this conclusion
based on the evidence that the application of the penalty was unequal, often
discretionary and haphazard. Some of the Justices in the majority noted that the death
sentence has been disproportionately imposed and carried out on the poor, black, and
the members of unpopular groups. The death penalty is unusual if it discriminates
defendant by reason of his race, religion, wealth, social position, or class, or if it is
imposed under a procedure that gives room for the play of such prejudices. The
judgment in each case was therefore reversed insofar as it left undisturbed the death
sentence imposed, and the cases were remanded for further proceedings.

9. Gregg v. Georgia , 428 U.S. 153 (1976):

CITATION : - 428 U.S. 153 (1976)

PETITIONER : -

Gregg

RESPONDENT

Georgia

FACTS : -

Petitioner was sentenced to death for armed robbery and murder of two men in Georgia.
On appeal the Georgia Supreme Court affirmed except as to the imposition of a death
sentence on robbery charges. The U.S. Supreme court granted certiorari.
ISSUES : -

Did imposition of death sentence for the crime of murder under the Georgia statute
constitute "cruel and unusual" punishment in violation of the Eighth and Fourteenth
Amendments?

HELD : -

Petitioner argued that the changes in Georgia's sentencing procedures after Furman
have not removed the elements of arbitrariness and capriciousness, that the prosecutor's
decisions in plea bargaining or in declining to charge capital murder are standardless
and will result in the wanton or freakish imposition of the death penalty, and that certain
statutory aggravating circumstances are too broad or vague.

The court holds that the punishment of death for the crime of
murder does not, under all circumstances, violate the Eighth and Fourteenth
Amendments. The Eighth Amendment, according to evolving standards of decency
forbids the use of punishment that is "excessive" either because it inflicts unnecessary
pain or because it is grossly disproportionate to the severity of the crime. This does not
mean, however, that a legislature is required to select the least severe penalty possible
and that capital punishment for the crime of murder is invalid per se. Retribution and
possibility of deterrence are permissible considerations in determining whether the
death penalty should be imposed. Thus, Georgias statutory system under which the
punishment and guilt portions of the trial are bifurcated, with the jury hearing additional
evidence and argument at the sentence phase, under which jury is instructed on statutory
factors of aggravation and mitigation, and under which Georgia Supreme Court
performs proportionality reviews, is constitutional.
10. Witherspoon v. Illinois , 391 U.S. 510 (1968):

CITATION : - 391 U.S. 510 (1968)

APPELLANT : -

Witherspoon

RESPONDENT

Illinois

FACTS : -

Petitioner was convicted in Illinois for murder and sentenced to death. At the time of
his trial, an Illinois statute allowed the state to challenge any juror who expressed
conscientious scruples against capital punishment. The prosecution has been given
wide discretion to dismiss jurors and as a result eliminated nearly half the venire of
prospective jurors. From those who remained, jurors were chosen who ultimately found
the petitioner guilty and sentenced him to death.

ISSUES : -

Does the Constitution permit a state to execute a man pursuant to a verdict of a jury so
constituted that they would more likely find the petitioner guilty and sentence him to
death?

HELD : -

The court held that it had not been shown that this jury was biased with respect to the
petitioner's guilt. But in its decision, whether his sentence should be imprisonment or
death, the jury fell woefully short of that impartiality to which the petitioner was
entitled under the Sixth and Fourteenth Amendments. When the State had excluded
not only those prospective jurors who stated in advance of trial that they would not even
consider returning a verdict of death, but also all who expressed conscientious or
religious scruples against capital punishment and all who opposed it in principle, the
State crossed the line of neutrality. As a result, the State produced a jury uncommonly
willing to condemn a man to die. Thus, to execute this death sentence would deprive
petitioner of his life without due process of law.
11. Woodson v. North Carolina , 428 U.S. 280 (1976):

CITATION :- 428 U.S. 280 (1976)

APPELLANT :-

Woodson

RESPONDENT :-

North Carolina

FACTS :-

Petitioners were convicted of first-degree murder as the result of their participation in

an armed robbery of a convenience food store where the cashier was killed and a
customer was seriously wounded. The Supreme Court of North Carolina upheld their
sentences under the new North Carolina statute, which required death sentences for all
defendants convicted of that crime. Certiorari was granted to challenge the statute's
constitutionality.

ISSUES : -

Does North Carolina's statute imposing mandatory death sentence for a first-degree
murder violate the Eighth and Fourteenth Amendments?

HELD :-

The Court concludes, that mandatory death penalties are incompatible with
contemporary values and cannot be applied in consistency with requirement that the
State's power to punish "be exercised within the limits of civilized standards. Another
deficiency of North Carolina's mandatory death sentence statute is its failure to provide
a constitutionally tolerable response to Furman v. Georgia's rejection of jury discretion
in the imposition of capital sentences. Finally, the Eight Amendment requires
consideration of various aspects of the character of the individual offender and the
circumstances of the particular offense as a constitutionally indispensable part of the
process of imposing the ultimate punishment of death. The North Carolina statute did
not allow such a particularized approach.

Therefore, North Carolina's mandatory death penalty statute is in violation of the Eighth
and Fourteenth Amendments and must be set aside.
12. Coker v. Georgia , 433 U.S. 584 (1977):

CITATION :- 433 U.S 584 (1977)

APPELLANT :-

Coker

RESPONDENT :-

Georgia

FACTS :-

While serving various sentences for murder, rape, kidnapping, and aggravated assault,
petitioner escaped from a Georgia prison and, in the course of committing an armed
robbery and other offenses, raped an adult woman. He was convicted of rape, armed
robbery, and the other offenses and sentenced to death on the rape charge. The jury
found two of the aggravating circumstances present for imposing such a sentence, that
the rape was committed (1) by a person with prior capital-felony convictions and (2) in
the course of committing another capital felony, armed robbery. The Georgia Supreme
Court affirmed both the conviction and sentence. The U.S. Supreme court granted
certiorari.

ISSUES :-

Is death is a disproportionate penalty for rape of an adult?

HELD :-

The Eighth Amendment also bars those punishments which are excessive and
disproportionate to the severity of a crime. The Court held that rape without doubt
deserves serious punishment. But in terms of moral depravity and of the injury to the
person and to the public, it does not compare with murder, which does involve the
unjustified taking of human life.
The disproportionality of the death penalty for rape is supported by the general attitude
of state legislatures and sentencing juries concerning the acceptability of such a penalty,
and the fact that Georgia was at that moment the only State authorizing the death
sentence for rape of an adult woman.

13.Enmund v. Florida, 458 U.S. 782 (1982):

CITATION :- 458 U.S. 782 (1982)

APPELANT :-

Emmund

RESPONDENT :-

Florida

FACTS :-

Petitioner was a participant in a robbery of two elderly persons at their farmhouse, in

the course of which both victims were killed. His role was to wait in a car parked by
the side of the road near the farmhouse and help the robbers. Petitioner was convicted
of first-degree murder and robbery and sentenced to death. The Florida Supreme Court
affirmed the decision of the trial court, holding that this was enough under Florida law
to make petitioner a constructive aider and abettor and hence a principal in first-degree
murder.

ISSUES :-

Is death a valid penalty under the Eighth and Fourteenth Amendments for one who
neither took life, attempted to take life, nor intended to take life?

HELD :-

Following the individualized approach taken in Locket and Woodson, the Court
focused on Petitioners culpability and considered relevant facts of character and record
of the individual offender. Petitioner did not kill or intend to kill and therefore his
culpability is different from that of the robbers who killed; it must be limited to his
participation in the robbery, and his punishment must be tailored to his personal
responsibility and moral guilt. The Court came to the conclusion that the death penalty
in this case, in the absence of proof that Petitioner killed or attempted to kill, and noting
that he neither intended nor contemplated that life would be taken, is excessive and
disproportionate punishment prohibited by the Eighth and Fourteenth Amendment.

14.Ford v. Wainwright, 477 U.S. 399 (1986):

CITATION :- 477 U.S. 399 (1986)

APPELLANT :-

Ford

RESPONDENT :-

Wainwright

FACTS : -

In 1974 Ford was convicted of murder in a Florida state court and sentenced to death.
In early 1982 he began to show gradual changes in behavior, indicating mental disorder.
Counsel for Ford invoked the procedures of Florida law governing the determination of
a condemned prisoner's competency. According to the procedures, the Governor of
Florida appointed a panel of three psychiatrists to evaluate whether Ford had "the
mental capacity to understand the nature of the death penalty and the reasons why it
was imposed upon him." The psychiatrists disagreed on the exact diagnosis but agreed
on the fact of Fords sanity. The Governor without explanation or statement signed a
death warrant for the execution. Fords attorneys unsuccessfully sought a hearing in
state court for determination of his competency and then filed a habeas corpus petition.
Federal district and appellate courts denied relief.

ISSUES : -

The Supreme Court granted certiorari to determine :-

(1) whether the Eighth Amendment prohibits the execution of the insane and, if so,
(2) whether the District Court should have held a hearing on petitioner's claim.

JUDGEMENT :-

With respect to the first issue the Court held that the Eighth Amendment prohibits the
state from inflicting the penalty of death upon a prisoner who is insane and not aware
of his impending execution and of the reasons for it. The rationale for this conclusion,
found in English common law, is that such an execution has questionable retributive
and no deterrence value, and, thus, simply offends humanity.

As to the second issue, the Court concluded that Florida's procedures for determining
sanity of a death row prisoner were not "adequate to afford a full and fair hearing" on
the critical issue. First, Ford was denied a fact-finding procedure and evidentiary
hearing on the question of his competence to be executed and thus precluded from
presenting material relevant to his sanity. Second, he was denied an opportunity to
challenge or impeach the state-appointed psychiatrists' opinions, thus creating a
significant possibility that the ultimate decision made in reliance on those experts was
distorted. And finally, the Court held that any procedure, which places the ultimate
decision wholly within the Executive Branch, is necessarily inadequate. Accordingly,
Ford was entitled to de novo evidentiary hearing in the federal district court on the
question of his competence to be executed.

15.Batson v. Kentucky, 476 U.S. 79 (1986):

CITATION :- 476 U.S. 79 (1986)

APPELLANT :-

Batson

RESPONDENT :-

Kentucky
FACTS :-

During the criminal trial in a Kentucky state court of petitioner, a black man, the judge
conducted voir dire examination of the jury venire and excused certain jurors for cause.
The prosecutor then used his peremptory challenges to strike all four black persons on
the venire, and a jury composed only of white persons was selected. Defense counsel
moved to discharge the jury on the ground that the prosecutor's removal of the black
veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a
jury drawn from a cross-section of the community, and under the Fourteenth
Amendment to equal protection of the laws. Without expressly ruling on petitioner's
request for a hearing, the trial judge denied the motion, and the jury ultimately
convicted petitioner. Affirming the conviction, the Kentucky Supreme Court observed
that recently, in another case, it had relied on Swain v. Alabama, 380 U.S. 202, and had
held that a defendant alleging lack of a fair cross-section must demonstrate systematic
exclusion of a group of jurors from the venire.

DECISION :-

The principle announced in Strauder v. West Virginia, 100 U.S. 303, that a State denies
a black defendant equal protection when it puts him on trial before a jury from which
members of his race have been purposefully excluded, is reaffirmed. A defendant has
no right to a petit jury composed in whole or in part of persons of his own race. Strauder
v. West Virginia, 100 U.S. 303, 305. However, the Equal Protection Clause guarantees
the defendant that the State will not exclude members of his race from the jury venire
on account of race, or on the false assumption that members of his race as a group are
not qualified to serve as jurors. By denying a person participation in jury service on
account of his race, the State also unconstitutionally discriminates against the excluded
juror. Moreover, selection procedures that purposefully exclude black persons from
juries undermine public confidence in the fairness of our system of justice.
16.McCleskey v. Kemp, 481 U.S. 279 (1987):

CITATION :- 481 U.S. 279 (1987)

APPELLANT :-

McCleskey

RESPONDENT :-

Kemp

FACTS : -

Petitioner, a black man, was convicted in a Georgia trial court of armed robbery and
murder, arising from the killing of a white police officer during the robbery of a store.
His habeas corpus petition to the federal District Court included a claim that the Georgia
capital sentencing process was administered in a racially discriminatory manner in
violation of the Eighth and Fourteenth Amendments. In support of the claim, petitioner
proffered a statistical study (the Baldus study) that purports to show a disparity in the
imposition of the death sentence in Georgia based on the murder victim's race and, to a
lesser extent, the defendant's race. The study is based on over 2,000 murder cases that
occurred in Georgia during the 1970's, and involves data relating to the victim's race,
the defendant's race, and the various combinations of such persons' races. The study
indicates that black defendants who killed white victims have the greatest likelihood of
receiving the death penalty. The court denied his petition: it assumed the validity of the
Baldus study but found the statistics insufficient to demonstrate unconstitutional
discrimination or to show irrationality, arbitrariness, and capriciousness under Eighth
Amendment analysis.

ISSUES :-

Does a complex statistical study that indicates a risk that racial considerations enter into
capital sentencing determinations prove that petitioner's capital sentence is
unconstitutional under the Eighth or Fourteenth Amendment?
JUDGEMENT :-

The Baldus study does not demonstrate that the Georgia capital sentencing system
violates the Eighth Amendment. Petitioner failed to establish that the sentence in his
case is disproportionate to the sentences in other murder cases. Since petitioner's
sentence was imposed under Georgia sentencing procedures that focus discretion on
the particularized nature of the crime and the particularized characteristics of the
individual defendant, it may be presumed that his death sentence was not wantonly
and freakishly imposed, and thus that the sentence is not disproportionate within any
recognized meaning under the Eighth Amendment. The Baldus study does not establish
that the administration of the Georgia capital punishment system violates the Fourteenth
Amendment. Although the Court has accepted statistics as proof of intent to
discriminate in the context of a State's jury selection, petitioner failed to prove that the
decisionmakers in his case acted with discriminatory purpose.

17.Thompson v. Oklahoma, 487 U.S. 815 (1988):

CITATION :- 487 U.S. 815 (1988)

APPELLANT :-

Thompson

RESPONDENT

Oklahoma

FACTS :-

Petitioner, when he was 15 years old, actively participated in a brutal murder. Because
petitioner was a child as a matter of Oklahoma law, the District Attorney filed a
statutory petition seeking to have him tried as an adult, which the trial court granted.
He was then convicted and sentenced to death, and the Court of Criminal Appeals of
Oklahoma affirmed.

ISSUES:-

Would the execution of a person who was under 16 years of age at the time of his
offense violate the constitutional prohibition against the infliction of cruel and unusual
punishments?
JUDGEMENT :-

Being guided by the evolving standards of decency that mark the progress of a
maturing society, the Court analyzes relevant legislative enactments and jury
determinations. It finds that state statutes and the behavior of juries, as evidenced by
statistical materials, support the conclusion that it is generally abhorrent to the
conscience of the community to execute a person who was less than 16 years old at the
time of his or her offense. That conclusion is also consistent with the views expressed
by respected professional organizations, by other nations that share the Anglo-
American heritage, and by the leading members of the Western European community.

The Court also concludes that because the Eighth Amendment requires special care in
decisions that may lead to the imposition of the death penalty, there is a considerable
risk that, in enacting a statute authorizing capital punishment for murder without setting
any minimum age, and in separately providing that juvenile defendants may be treated
as adults in some circumstances, the Oklahoma Legislature effectively renders 15-year-
olds death eligible. Accordingly, based on this evidence of a national consensus
forbidding the imposition of capital punishment for crimes committed before the age of
16, the Court holds that petitioner may not be executed pursuant to a capital punishment
statute that specifies no minimum age and, thus, violates the constitutional prohibition.

18.Penry v. Lynaugh, 492 U.S. 302 (1989):

CITATION :- 492 U.S. 302 (1989)

APPELANT :-

Penry

RESPONDENT :-

Lynaugh

FACTS :-

Petitioner was sentenced to death for capital murder in Texas. He was found competent
to stand trial, although a psychologist testified that he was mildly to moderately retarded
and had the mental age of a 6 1/2 -year-old. The psychiatric testimony showed that
petitioner suffered from a combination of organic brain damage and moderate
retardation, which resulted in poor impulse control and an inability to learn from
experience. The evidence also indicated that he had been abused as a child. The State
introduced testimony that petitioner was legally sane but had an antisocial personality.
The jury rejected petitioner's insanity defense and found him guilty of capital murder.
At the penalty phase, the trial court rejected petitioner's request for jury instructions
defining the terms in the special issues and authorizing a grant of mercy based upon the
existence of mitigating circumstances. The Texas Court of Criminal Appeals affirmed,
rejecting petitioner's contentions that his death sentence violated the Eighth
Amendment, because the jury was not adequately instructed to consider all of his
mitigating evidence and because the special issues' terms were not defined in such a
way that the jury could consider and give effect to that evidence in answering them;
and, and further his contention that it is cruel and unusual punishment to execute a
mentally retarded person. The federal District Court and the Court of Appeals upheld
petitioner's death sentence in habeas corpus proceedings. Although it denied him relief,
the Court of Appeals nevertheless found considerable merit in petitioner's claim that
his mitigating evidence of mental retardation and childhood abuse could not be given
effect by the jury, under the instructions given, in answering the special issues.

ISSUES : -

1. Was petitioner sentenced to death in violation of the Eighth Amendment because the
jury was not instructed that it could consider and give effect to his mitigating evidence
in imposing its sentence?

2. Does the Eighth Amendment categorically prohibit Penry's execution because he is

mentally retarded?

JUDGEMENT :-

With respect to the first issue, the Court held that because of the absence of instructions
the jury was not provided with a vehicle for expressing its "reasoned moral response"
to the evidence in answering the three special issues and rendering its sentencing
decision. Furthermore, because the punishment imposed should be directly related to
the personal culpability of the defendant, the sentencer must be allowed to consider and
give effect to mitigating evidence relevant to a defendant's background, character, and
crime.

As to the second issue presented to this court since the matter was on an appeal of a
petition for a writ of habeas corpus the Court held that as a threshold matter, a new rule
would not be applied or announced in cases on collateral review. Defendant's request
that mental retardation be a bar to capital punishment would have been a new rule,
however it falls within one of the exceptions to exclusion of new rules. The Eighth
Amendment does not categorically prohibit the execution of mentally retarded capital
murderers of petitioner's reasoning ability. It cannot be said that all mentally retarded
people of petitioner's ability-by virtue of their mental retardation alone, and apart from
any individualized consideration of their personal responsibility-inevitably lack the
capacity to act with the degree of culpability associated with the death penalty.
Moreover, the concept of "mental age" is an insufficient basis for a categorical Eighth
Amendment rule, since it is imprecise, does not adequately account for individuals'
varying experiences and abilities, ceases to change after a person reaches the
chronological age of 15 or 16, and could have a disempowering effect if applied to
retarded persons in other areas of the law, such as the opportunity to enter contracts or
to marry. The judgment is affirmed in part and reversed in part, and the case is remanded
for further proceedings.

19.Stanford v. Kentucky, 492 U.S. 361 (1989):

CITATION :- 492 U.S. 361 (1989)

APPELLANT :-

Stanford

RESPONDENT :-

Kentucky

FACTS :-

A defendant who was approximately 17 years and 4 months old at the time he
committed a murder in Kentucky was convicted of murder, sodomy, robbery and
receiving stolen property and was sentenced to death. In another case, a defendant who
was approximately 16 years and 6 months old when he committed a murder in Missouri
was certified for trial as an adult and sentenced to death. The Supreme Court granted
certiorari for both cases.

ISSUES :-

Does the imposition of capital punishment on an individual for a crime committed at

16 or 17 years of age constitute cruel and unusual punishment under the Eighth
Amendment?

JUDGEMENT :-
The Court affirmed, rejecting the contention that the sentences violated the Eighth
Amendment. First, in determining whether a punishment violates evolving standards of
decency, petitioners failed to prove a settled national consensus against the execution
of 16- and 17-year-old offenders. Of the 37 States that permit capital punishment, 15
decline to impose it on 16-year-olds and 12 on 17-year-olds. Second, there is no support
for petitioners' argument that a demonstrable reluctance of juries to impose, and
prosecutors to seek, capital sentences for 16- and 17-year-olds establishes a societal
consensus that such sentences are inappropriate. Next, the Court rejected the argument
that the laws cited by petitioners and their amici which set 18 or more as the legal age
for engaging in various activities, ranging from driving to drinking alcoholic beverages
to voting are of any relevance to this case. According to the Court, it is absurd to think
that one must be mature enough to drive carefully, to drink responsibly, or to vote
intelligently in order to be mature enough to understand that murdering another human
being is profoundly wrong, and to conform one's conduct to that most minimal of all
civilized standards.

Finally, the Court also rejected petitioners' argument that capital punishment of
16- and 17-year-old offenders should be invalidated on the ground that it does not serve
the goal of deterrence because juveniles, possessing less developed cognitive skills than
adults, are less likely to fear death; and it fails to exact just retribution because juveniles,
being less mature and responsible, are also less morally blameworthy.
20.Atkins v. Virginia, 536 U.S. 304 (2002):

CITATION :- 536 U.S. 304 (2002)

APPELLANT :-

Atkins

RESPONDENT :-

Virgina

FACTS :-

Petitioner was convicted of abduction, armed robbery, and capital murder. In the
penalty stage, a forensic psychologist who had evaluated Atkins before trial concluded
that he was mildly mentally retarded. His conclusion was based on interviews with
people who knew Atkins, a review of school and court records, and the administration
of a standard intelligence test, which indicated that Atkins had a full scale IQ of 59.
Compared to the population at large, that means he was in the lowest one percentile in
intelligence. The jury sentenced Atkins to death, but the Virginia Supreme Court
ordered a second sentencing hearing because the trial court had used a misleading
verdict form. At the re-sentencing, the State presented an expert rebuttal witness, who
expressed the opinion that Atkins was not mentally retarded, but rather was of average
intelligence, at least, and diagnosable as having antisocial personality disorder. The
jury again sentenced Atkins to death. The Supreme Court of Virginia affirmed the
imposition of the death penalty, and relying on the holding in Penry rejected the
contention that Atkins thus could not be sentenced to death. The court was not willing
to commute Atkins' sentence of death to life imprisonment merely because of his IQ
score. However, dissenters concluded that the imposition of the sentence of death
upon a criminal defendant who has the mental age of a child between the ages of 9 and
12 is excessive. Because of the gravity of the concerns expressed by the dissenters, the
U.S. Supreme Court granted certiorari.

ISSUES :-

Is the execution of a defendant with mental retardation cruel and unusual punishment
prohibited by the Eighth Amendment?

JUDGMENT :-
In its reasoning the Court confirms the previous opinions that a punishment is excessive
if it is not graduated and proportioned to the offense and that such claim should be
judged by evolving standards of decency. Proportionality review under those
evolving standards should be informed by objective factors, the most reliable of which
legislation enacted by states. In particular, the large number of States prohibiting the
execution of mentally retarded persons (and the complete absence of legislation
reinstating such executions) provides powerful evidence that today society views
mentally retarded offenders as categorically less culpable than the average criminal.
The Court, next, makes an independent evaluation of the issue and agrees with the
legislative consensus for the following two reasons. First, retribution and deterrence of
capital crimes, principal justifications for the death penalty, do not apply to mentally
retarded offenders. Second, mentally retarded defendants face a special risk of wrongful
execution because of the possibility that they will unwittingly confess to crimes they
did not commit, their lesser ability to give their counsel meaningful assistance, and the
facts that they are typically poor witnesses and that their demeanor may create an
unwarranted impression of lack of remorse for their crimes.

Holding: Executions of mentally retarded criminals are cruel and unusual

punishments prohibited by the Eighth Amendment.
 Bibliography

Books Referred:-
1. Criminal Law - PSA Pillai's

2. The Handbook of Comparative Criminal Law :-

By Kevin Jon Heller; Markus D. Dubber

3. Criminal Law :-

By Vageshwari Deswal

Sites/ Links
1. https://indiankanoon.org

2. www.e-lawresources.co.uk