A PROJECT ON

Sentencing Guidelines of UK, USA and India

SUBMITTED TO:

Mrs. Priyanka Dhar,

Faculty, Criminal Law

SUBMITTED BY:

Saurabh Bara,

IXth Semester,

ROLL NO- 142.

Date of Submission: 25th October 2018

HIDAYATULLAH NATIONAL LAW UNIVERISTY, RAIPUR

 Declaration

I hereby declare that this project titled “Sentencing Guidelines of UK, USA and India” is an
original work and represents my own ideas, and where others ideas or words have been
included, I have properly cited and referenced the original sources. I also declare that I have
adhered to all principles of academic honesty and integrity and have not misrepresented or
fabricated or falsified any idea/data/fact/source in my submission.

-SAURABH BARA

SEMESTER IX,
ROLL: 142

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 Acknowledgements

I would like to take this opportunity to express my deep sense of gratitude towards my course
teacher, Mrs. Priyanka Dhar, for giving me constant guidance and encouragement throughout
the course of the project.

I would also like to thank the University for providing me the internet and library facilities
which were indispensable for getting relevant content on the subject, as well as subscriptions
to online databases and journals, which were instrumental in writing relevant text.

Special thanks goes out to my seniors who have been relentless in their help and supporting
providing any material whenever required and my colleagues, who always stood by me,
irrespective of the decisions taken by me. Without their support this project would not have
seen the light of the day.

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 Contents

1. Introduction...................................................................................1
2. Sentencing Guideline of United Kingdom....................................3
3. Sentencing Guideline of United States of America.....................7
4. Sentencing Guidelines of India.....................................................10
5. Conclusion....................................................................................12
6. Reference......................................................................................13

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 Introduction

Sentencing guidelines are a set of standards that are generally put in place to establish
rational and consistent sentencing practices within a particular jurisdiction.  To better
understand sentencing guidelines, it is important to understand a little bit about what
preceded them.

Prior to the creation and development of sentencing guidelines, all states had a system
of indeterminate sentencing.  Under that system, the legislature defined criminal conduct and
established high maximum sentences.  Judges had almost complete discretion to impose any
sentence up to the statutory maximum, and rather than pronounce a sentence with a specified
prison term, the court would pronounce a range of time (e.g., 0-10 years).  Parole boards had
broad discretion to determine how much of any prison sentence had to be served.
Indeterminate sentencing then, was a system in which the sentence was not fixed; rather it
was subject to discretion at many points such that the true sentence could not be known until
it had been fully served.  Moreover, sentences for similarly situation offenders could vary.

In the 1970s, many states began moving towards a system of determinate

sentencing. Determinate sentencing means that the sentence is a fixed term.  It is either not
subject to discretion or is subject to a lesser degree of discretion than under indeterminate
sentencing.  For example, in Minnesota, the Guidelines establish the presumptive prison
range, and state law requires that offenders serve two-thirds of the pronounced prison term in
prison and one-third on post-prison supervised release, subject to any disciplinary infractions
while in prison.1  Thus, in a determinate sentencing system like this, both the offender and
victim have a good idea of how much time the offender will actually serve when the sentence
is pronounced. 

Sentencing guidelines are one mechanism that can be used to implement determinate
sentencing. Sentencing guidelines are a system of recommended sentences based upon
offense and offender characteristics. 

 Offense Characteristics: Most guidelines systems have rules for ranking the
seriousness of offenses.  This ranking is typically based on how the crime is defined
by the legislature, not on how a particular offender committed a particular crime.   For
example, theft of an unoccupied building would be ranked as less serious than assault
with a weapon.  

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  Offender Characteristics: Offender characteristics are things that are unique to a
particular offender.  Examples include the number and type of prior offenses (i.e.,
felonies, misdemeanors, juvenile adjudications) or whether the offender was under a
custody status at the time of the offense (e.g., probation or jail).

The offense and offender characteristics are then placed on a sentencing grid or are assigned
points on a worksheet, and the recommended sentence is derived from those sources.  The
recommended sentences are generally believed to be appropriate for all “typical” cases
sharing the same or similar offense and offender characteristics.

Sentencing guidelines systems can typically be characterized by one or more of the following
goals and purposes:

 Rational and Consistent Sentencing Standards: Sentencing decisions should be well-

reasoned, and based on clearly-articulated sentencing standards that are consistently
used by the judiciary in sentencing.

 Proportionality: Punishment severity should generally be proportionate to the

seriousness of the offense, while taking into account the unique characteristics of each
case.

 Uniformity: Similar offenders who commit similar crimes should receive similar
sentences.

 Ensuring Public Safety: The recommended punishments should serve public safety by
ensuring that violent offenders are recommended to prison and that the recommended
punishments address not only the punishment the offender deserves, but also the
punishment that will aid in the offender’s rehabilitation and reintegration with society.

Additionally, when sentencing is implemented uniformly, as under sentencing guidelines, the

resulting sentences are fairly predictable and jurisdictions can begin to use that information to
forecast and manage correctional resources. By tracking both recommended guidelines
sentences and actual sentencing decisions, a jurisdictions can create a rich data set from
which it can develop a long-term forecasting model or gauge the impact of pending
legislation or guidelines modifications.

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 1. Sentencing Guidelines of United Kingdom

The English justice system considers that sentences imposed on offenders should reflect the
crime committed and be proportionate to the seriousness of the offense.  It has a Sentencing
Council that is responsible for producing, issuing, and reviewing guidance to the courts on
what factors should be considered when sentencing offenders and the range of sentences that
should be awarded, among other things.  The guidance should be followed, unless it is not in
the interests of justice to do so.  The aim of the guidance is to ensure consistency in
sentencing across the country.

The rationale behind the adoption of the guidelines is to provide guidance on factors the court
should take into account when sentencing an offender, promote transparency, and ensure that
courts across the countries are consistent in sentencing offenders.  The guidelines do provide
judges with the flexibility to deviate from them if it is in the interests of justice to do so.

The Sentencing Council

The Sentencing Council is an independent non departmental body of the Ministry of Justice. 
It was established in 2009 by the Coroners and Justice Act and is responsible for issuing
guidelines for sentencing that must be followed by the courts unless it is contrary to the
interests of justice to do so.  Its role includes

 developing sentencing guidelines and monitoring their use;

 assessing the impact of guidelines on sentencing practice. . . . and

 promoting awareness amongst the public regarding the realities of sentencing and
publishing information regarding sentencing practice in Magistrates’ and the
Crown Court.

When conducting the above functions, the Sentencing Council must take into account the
impact of sentences on victims of crime, monitor how the guidelines are applied in practice,
and help increase public confidence in the sentencing and criminal justice system.

The council is accountable to Parliament in terms of achieving it’s statutory remit, to the
Permanent Secretary at the Ministry of Justice to show efficient and proper use of public

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funds, and to the Director General of the Justice Policy Group at the Ministry of Justice to
account for effective oversight of the body.  The Council must report annually to the Lord
Chancellor, who must lay this report detailing the Sentencing Councils activities before
Parliament.  The report is also published by the Council and available publicly.

The Adoption Process for Guidelines

As noted above, the Sentencing Council is responsible for preparing sentencing

guidelines.  The Council initially identifies the priorities where guidelines should be revised
or are needed.  In some cases, statutes may also require the Council to examine a particular
area of the law and produce guidance.  When drafting sentencing guidelines, the Council is
required to take into account

(a)  the sentences imposed by courts in England and Wales for offences;

(b)  the need to promote consistency in sentencing;

(c)  the impact of sentencing decisions on victims of offences;

(d)  the need to promote public confidence in the criminal justice system;

(e)  the cost of different sentences and their relative effectiveness in preventing re-offending;

(f)  the results of the monitoring carried out under section 128.

The Council then undertakes a policy and legal review and writes an initial draft, which is
discussed internally.  Once the Council agrees on a broad structure, it then consults the Lord
Chancellor, as well as any other person he wishes to direct; the Justice Select Committee of
the House of Commons; and any other person the Council considers appropriate.
This process  takes approximately twelve weeks.  The Council then considers the responses
and publishes the final guidelines.   Publication is not the last step of the Council and it
constantly monitors the application of the guidelines.

 Sentencing Guidelines

The sentencing guidelines are made available publicly and include a number of common
factors due to the requirements in the Coroners and Justice Act 20091.  This Act requires the
Council to specify a range of sentences in the guidelines (known as the sentence range) with a

1
https://www.gov.uk/how-sentences-are-worked-out

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starting point, and to list any factors or mitigating circumstances that could affect the
sentence (known as the category range).  Such factors or circumstances should include, but
are not limited to, the offenders’ culpability in committing the crime, the degree of harm
caused by the offense, and any aggravating or mitigating circumstances.  The Council must
also provide guidance to determine how previous convictions should affect any sentence that
may be imposed.

Sentencing guidelines are published for most of the significant offenses heard in the
Magistrates’ Court and a wide range of offenses heard in the Crown Court. 2  An overview of
the structure of sentencing guidelines that apply for the offenses of rape, aggravated
burglary, corporate manslaughter, and manslaughter by provocation, is provided below. 
There are guidelines in place for the offense of attempted murder, but the structure of these
vary slightly to the ones listed above.  There are currently no guidelines for human trafficking
or the smuggling of goods.

The guidelines apply for offenders age eighteen and older.  Specific guidelines apply for
youth sentencing.  The guidelines provide a step-by-step process in determining the
sentence.  Step one of the guidance provides that the court should determine the offense
category—that is, how much harm was caused and the offender’s level of culpability.  Three
categories are provided:

Category 1: Greater harm and higher culpability

Category 2: Greater harm and lower culpability or lesser harm and higher culpability

Category 3: Lesser harm and lower culpability.

A number of offense-specific factors are in the guidance that must be taken into account
when determining which category the offender falls within.  If the offense does not fit within
a category, the guidelines require the court to consider each factor of the crime and make a
decision as to which category is most appropriate. The length of the sentence should then be
considered, with the starting point varying according to the applicable offender category.

Once the sentence range has been determined, factors that could lead to a reduction in the
sentence should be taken into account, such as whether the offender has assisted the
prosecution.  Reductions are also available for those who have pled guilty.  In cases where

2
https://www.defence-barrister.co.uk/sentencing-guidelines/

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the offense is a specified serious offense the dangerousness of the offender should also be
taken into account in determining whether the offender should be given a life sentence,
receive an extended sentence, or be imprisoned for public protection.

The court is also required to consider the principle of totality—that is, whether the offender is
being sentenced for multiple offenses or if the offender is already serving a sentence.  If the
offender is already serving a sentence, the total sentence must be just and proportionate to the
offense(s) committed.  The court must then consider whether to make an award of
compensation or an ancillary order.

Once the sentence has been determined the court must provide the reasoning for, and explain
the effect of, the sentence.  Any time that the offender has spent on remand or on bail should
then be taken into account.

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 2. Sentencing Guidelines of United States of America

The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for
convicted Federal defendants in the United States Federal Court system. Originally, the
Federal Sentencing Guidelines were styled as mandatory, the Supreme Court's 2005 decision
in United States v. Booker , found that the Guidelines, as originally constituted, violated the
Sixth Amendment right to trial by jury, and the remedy chosen was excision of those
provisions of the law establishing the Guidelines that made them mandatory standards. In the
aftermath of Booker, the Guidelines are discretionary, meaning that judges may consider
them but are not required to adhere to their standards in sentencing decisions. Although they
are not mandatory, Federal Judges almost invariably use the Guidelines at least as a starting
point when sentencing federal criminal defendants. Additionally, there is specific federal case
law that indicates if the Judge is to increase or decrease that recommended sentence by more
then a certain percentage, there must be written reasons why they are departing from that
sentence.

How does a judge figure out the length of a sentence in USA?

In the federal courts, the judges use the US States Sentencing Guidelines ("Guidelines" or
"USSG")3. They work like a math formula that calculates a prison term based upon several
factors:

 Seriousness of the crime

 The defendant's criminal history

 Aggravating and mitigating factors

Some states follow the federal Guidelines, and some states have their own version.

Seriousness of Crime

Figuring a sentence under the Guidelines starts with the base level . Each type of crime is
assigned a base level in USSG Chapter 2. Basically , the more serious the crime, the higher

3
https://www.ussc.gov/guidelines/archive

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the base level. For example, the crime of trespass has a base level of 4, while first-degree
murder has the highest base level, 43.

Specific Conduct

The base level may be increased or decreased depending on "specific offense characteristics"
of the crime. These are the crime's particular facts and circumstances. They're different for
each crime. They're listed along with the base level in Chapter 2. For example, robbery has a
base offense level of 20. If you displayed a firearm during the robbery, the base level
increases 25. If you fired the gun during the robbery, the base level goes to 27.4

Adjustments

The base level may go up or down because of adjustments, which are set out in USSG
Chapter 3. There are:

 Victim-related adjustments. For example, the base level will go up if the victim of
the crime was young and had a mental disorder, or if the victim was restrained during
the crime

 Adjustments based on your role in the crime. If you played a major role in the crime
- you were the leader - the base level goes up. If you had a minor role, it goes down

 Obstruction of justice adjustments. If you obstructed or impeded justice, such as by

destroying evidence or threatening witnesses, the base level goes up

 Acceptance of responsibility adjustments. Your base level may go down if, in the
judge's opinion, you accept responsibility for the crime. The judge takes into account
whether you truthfully admitted your role in the crime; whether you made restitution
before you were convicted, and; whether you pled guilty

Criminal History

Once the base level is determined, the next step in the Guidelines calculation is to look at the
defendant's criminal history. In Chapter 4 of the Guidelines, a defendant is placed into one
of the six "categories" based on his criminal history. Category I is for defendants with little or
no criminal record. This includes many first-time offenders. Category VI is the most serious
category and includes defendants with extensive criminal records.
4
https://www.ussc.gov/guidelines/organizational-guidelines

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The Guideline Range: How Long's the Sentence?

Once base level and criminal history are fixed, it's time to figure the final offense level. This
is a simple calculation of taking the base offense level and then adding or subtracting from it
any specific offense characteristics and adjustments that apply. You then look at
the Sentencing Table for the point where the final offense level and the criminal history
category intersect. This will give the sentencing range: The minimum and maximum number
of months in jail you may receive.

For example, the guideline range for a defendant with a criminal history category of I and a
final offense level of 20 is 33 to 41 months.5 Generally, it's up to the judge to determine
exactly how many months between minimum and maximum a defendant will spend in jail.
The judge has to explain the sentence in his written sentencing order.

Departures

After the range is determined, the actual sentence may be increased or decreased once again,
depending on if there are aggravating or mitigating circumstances. This is called "departure"
from the Guidelines. Aggravating circumstances make the crime more serious and usually
lead to a harsher sentence. Mitigating factors may lead to a lighter sentence. They're listed
in Chapter 5, but good examples include:

 Using a gun or killing a victim during the crime. These are aggravating factors

 Giving the government substantial help with a criminal investigation or committing

crime while suffering from some mental incapacity. These are mitigating factors

Do They Have to Be Followed?

The Guidelines were created in the 1960's, and for decades they were mandatory. Judges had
to impose sentences based on the Guideline's formulas. In a 2005 case, the US Supreme
Court ruled that the mandatory nature of the Guidelines violated a defendant's right to a jury
trial under the Sixth Amendment. Now, the Guidelines are advisory only. That means that
federal judges have to look at them and do the calculations, but they're not required to impose
Guidelines-based sentence. The judge still must explain her reasons for a sentence.
5
https://www.federalregister.gov/documents/2017/08/25/2017-18076/sentencing-guidelines-for-united-
states-courts

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As a practical matter, judges typically follow the sentences suggested by the Guidelines.

3. Sentencing Guidelines of India

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In India neither the legislature nor the judiciary has issued structured sentencing guidelines. 
Several governmental committees have pointed to the need to adopt such guidelines in order
to minimize uncertainty in awarding sentences.  The higher courts, recognizing the absence
of such guidelines, have provided judicial guidance in the form of principles and factors that
courts must take into account while exercising discretion in sentencing.

Absence of Structured Sentencing Guidelines

Currently India does not have structured sentencing guidelines that have been issued either by
the legislature or the judiciary.  In March 2003, the Committee on Reforms of Criminal
Justice System (the Malimath Committee), a body established by the Ministry of Home
Affairs, issued a report that emphasized the need to introduce sentencing guidelines in order
to minimize uncertainty in awarding sentences, stating,

The Indian Penal Code prescribed offences and punishments for the same.  For many
offences only the maximum punishment is prescribed and for some offences the minimum
may be prescribed.  The Judge has wide discretion in awarding the sentence within the
statutory limits.  There is now no guidance to the Judge in regard to selecting the most
appropriate sentence given the circumstances of the case.  Therefore each Judge exercises
discretion accordingly to his own judgment.  There is therefore no uniformity.  Some Judges
are lenient and some Judges are harsh.  Exercise of unguided discretion is not good even if it
is the Judge that exercises the discretion.  In some countries guidance regarding sentencing
option[s] is given in the penal code and sentencing guideline laws.  There is need for such
law in our country to minimise uncertainty to the matter of awarding sentence.  There are
several factors which are relevant in prescribing the alternative sentences.  This requires a
thorough examination by an expert statutory body.

The Committee advised further that, in order to bring “predictability in the matter of
sentencing,” a statutory committee should be established “to lay guidelines on sentencing
guidelines under the Chairmanship of a former Judge of Supreme Court or a former Chief
Justice of a High Court experienced in criminal law with other members representing the
prosecution, legal profession, police, social scientist and women representative.”  In 2008, the
Committee on Draft National Policy on Criminal Justice (the Madhava Menon Committee),
reasserted the need for statutory sentencing guidelines.  In an October 2010 news report, the
Law Minister is quoted as having stated that the government is looking into establishing a

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“uniform sentencing policy” in line with the United States and the United Kingdom in order
to ensure that judges do not issue varied sentences.

In 2008, the Supreme Court of India, in State of Punjab v. Prem Sagar & Ors., also noted the
absence of judiciary-driven guidelines in India’s criminal justice system, stating, “[i]n our
judicial system, we have not been able to develop legal principles as regards sentencing.  The
superior courts[,] except [for] making observations with regard to the purport and object for
which punishment is imposed upon an offender, had not issued any guidelines.”  The Court
stated that the superior courts have come across a large number of cases that “show
anomalies as regards the policy of sentencing,” adding, “whereas the quantum of punishment
for commission of a similar type of offence varies from minimum to maximum, even where
[the] same sentence is imposed, the principles applied are found to be different.  Similar
discrepancies have been noticed in regard to imposition of fines.”  In 2013 the Supreme
Court, in the case of Soman v. State of Kerala, also observed the absence of structured
guidelines:

Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our
country, it is the weakest part of the administration of criminal justice.  There are no
legislative or judicially laid down guidelines to assist the trial court in meting out the just
punishment to the accused facing trial before it after he is held guilty of the charges.

However, in describing India’s sentencing approach the Court has also asserted that “the
impossibility of laying down standards is at the very core of the Criminal law as administered
in India, which invests the Judges with a very wide discretion in the matter of fixing the
degree of punishment.”

Sentencing procedure is established under the Code of Criminal Procedure, which provides
broad discretionary sentencing powers to judges.  In a 2007 paper on the need for sentencing
policy in India, author R. Niruphama asserted that, in the absence of an adequate sentencing
policy or guidelines, it comes down to the judges to decide which factors to take into account
and which to ignore.  Moreover, he considered that broad discretion opens the sentencing
process to abuse and allows personal prejudices of the judges to influence decisions.

Conclusion

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So far neither the Parliament nor the judiciary has issued structured sentencing guidelines.
The need to adopt such guidelines in order to minimize uncertainty in awarding sentences is
crucial for a well ordered society. While higher courts provided judicial guidance in the form
of principles and factors that courts must take into account while exercising discretion in
sentencing, judges have wide discretion in awarding sentence within statutory limits. Each
judge exercises discretion according to his own judgment and there is therefore, no
uniformity. This discretion in the sentencing process results in ambiguity, and two persons,
similarly or identically placed are sentenced differently. The need of the hour is to do away
such ambiguity which breaches both Article 14 & Article 21 of the Constitution.

There is a need to introduce legislation for ascertaining parameters and a sentencing policy to
provide a framework within the existing range of sentences while leaving discretion to the
Courts to act within those legislatively drafted parameters. Till such legislative change
happens, such parameters can be engrafted in each High Court‟s Rules which have legislative
backing and provide guidance to subordinate Courts.

References

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Websites:

 https://www.nolo.com/legal-encyclopedia/federal-sentencing-guidelines-

mandatory-not.html

 https://www.justice.gov/usao/justice-101/sentencing

 https://www.unl.edu/eskridge/cj211sentence.html

 https://www.theguardian.com/law/2018/mar/01/longer-jail-terms-likely-

for-knife-and-acid-possession

 https://www.cps.gov.uk/legal-guidance/sentencing-mandatory-and-

minimum-custodial-sentences

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