Essay on the Origin of Indeterminate Sentence !
Historically, the system of indeterminate sentence is known to have originated from Spanish prisons in 1835. The practice of lodging young offenders in work-houses until the time they were completely reformed was, however, prevalent in certain American States even a century earlier. Under the Spanish system, the prisoners were organised into groups of 1000 to 1500 called a “company”.
One of the prisoners was to lead the company and control and supervise the prisoners under him. He was called the commander of the company. Thus, the system was modelled on military pattern. Under this arrangement, good behaviour of the prisoner entitled him to proportionate reduction in his sentence to the extent of one-third. Later, Bolivia also adopted a similar system and established Prison Aid Societies to supervise the released prisoners.
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Dr. Marsongy, a French penologist wrote his ‘Preparatory Liberation’ in 1846, which contained an elaborate discussion on topics connected with the power of pardon, conditional liberation, ticket on leave system, aid to the discharged prisoners, etc. In this work, he pointed out that detention of inmates in prison was rather inhuman and at the same time an additional burden on the State exchequer.
He therefore, supported indeterminate sentence on the ground that it gave moral courage to the offenders and offered them opportunities for proper education and discipline, thus helping them to improve their socio-economic condition. With the introduction of the system of probation in 1859, France succeeded in amalgamating suspended sentence with probation.
The Irish penal system also preferred indeterminate sentence to the determinate one. The inmates were kept in reformatories for an indeterminate period until they were reformed for normal life. The system was greatly appreciated in U.S.A. and subsequently it received statutory recognition in New York State in 1867. Brookway tried to mobilise public opinion in favour of indeterminate sentence through his learned paper entitled “The Ideals of Prison System” read before the National Prison Association in 1870.
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The Elmira Reformatory accepted indeterminate sentence as an essential part of its correctional programme in 1869. The offenders between the age group 3f 16 to 30 years as well as the first offenders were committed to indeterminate sentence, the term of which was finally to be decided by the Board of Managers of the Reformatory. Relapsed criminals were also admitted to indeterminate sentence in exceptional cases.
The Board of Managers consisted of a General Superintendent with five other members to be appointed by the Senate for a period of five years. They were all honorary officials and received no salary for this job. It was a social service agency associated with the Reformatory which functioned to consider the cases of prisoners to be discharged on parole.
The Reformatory provided education to the inmates in various disciplines such as religion, morality, social culture, science, physical education etc. The period of indeterminate sentence usually varied from 14 to 24 months. While in custody, the inmates were to be kept under supervision and monthly report was to be submitted in each case.
The report was to be attested by a clergy or a teacher. The period of indeterminate sentence prescribed for the first offenders varied from a minimum of one year to a maximum as fixed for particular crime under the State law.
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In 1928, Prof. E.V. Burgass in his work entitled. “The Working of the Indeterminate sentence, Law and the Parole system in Illinois” surveyed the entire functioning of these corrective measures and the extent to which they succeeded in bringing about rehabilitation of offenders in the State. This was a substantial contribution to the available criminological literature on correctional penology in early twentieth century.
The Congress of United States in 1958 enacted uniform laws which provided that an inmate could be released on parole any time after he had spent at least one-third of the maximum sentence imposed on him. This was intended to give expression to society’s disapprobation for a given act as also to minimise the chances of securing early release by bringing undue pressure on the Administrative Boards. This, at the same time enabled to the Parole Board to observe the inmate and diagonise the course of action in his case.
Indeterminate sentencing in USA came under severe attack from most quarters in late 1960’s and early 1970’s because of its over-emphasis on individualised justice. It was criticised mainly on two grounds, namely, (i) whether sentencing should be based on rehabilitative considerations; and (ii) procedure to determine the form and length of sentence leaves sufficient margin for miscarriage of justice.
As to the desirability of indeterminate sentence, Dr. Sutherland observed that as a treatment reaction to crime this mode of sentence is essentially selective in nature as its application is restricted only to a few categories of offenders, mostly juveniles and the first offenders. It has generally been argued that indeterminate sentence is most unsuited in case of serious offenders and habituals or recidivists and those who are guilty of white collar crimes.
The reason being that in such cases deterrence still remains a most significant sentencing factor. Again, like the need for laying down a minimum statutory sentence, the need for a legal maximum sentence is justified on the ground that in absence of such a maximum limit, the Administrative Board may by mistake or inadvertence; keep certain prisoners confined for unduly long period though they might otherwise be well suited for an early release.
In other words, the discretionary power of Prison Board cannot be circumscribed under the law. But Dr. P. K. Sen has expressed a contrary view in this regard. In his opinion, it would suffice to lay down only the maximum limit of sentence for a particular crime and no minimum need be laid down.
The Indian penal law, however, does not provide for indeterminate sentence for the reason that similar objective is attained by resorting to certain other correctional techniques such as probation, parole and open air camps for prisoners. In fact, the system of parole is itself a modified form of indeterminate sentence. Moreover, certain Indian penologists have expressed a view that adoption of the system of indeterminate sentence would extend the scope of discretion for the magistracy which might be detrimental to the interests of criminal justice.
But it must be stated that this apprehension is rather misleading because the Judges in India have accepted sentencing as a part of their solemn duty towards law and discharge their obligation in a realistic manner so as to attain the objective of social defence.