England and Wales According to historical English and Welsh procedure, the jury has no power to determine the punishment to be awarded for an offense. The sentence, with certain exceptions in capital cases, is within the sole discretion of the
judge, subject to the statutory prescriptions as to the kind and maximum of punishment. It is common practice for juries to add to their verdict,
guilty or
not guilty, a rider recommending the accused to mercy on the ground of grave provocation received, or other circumstances which in their view should mitigate the penalty.
India According to the Indian procedure the provision of Section 235(2) of Criminal Procedure Code calls upon the Court that the convicted accused must be given an opportunity of being heard on the question of sentence. This provides the accused an opportunity to place his antecedents, social and economic background and mitigating and extenuating circumstances before the court. Besides the statutory provisions, the Constitution of India also empowers the President and the Governor of the State to grant pardon to the condemned offenders in appropriate cases. These powers are, however, co-extensive with the legislative powers. The power to cut short a sentence by an act of executive in India and elsewhere. The controversy raised in this regard in Nanavati's case has been settled by the Supreme Court once for all in the case of SARAT CHANDRA V/S. KHAGENDRA NATH which affirmed the principle that sentencing power of judiciary and executive are readily distinguishable. Quite independently of any recommendation by the
jury, the judge is entitled to take into account matters proved during the trial, or laid before him/her after verdict, as a guide to determining the quantum of punishment. The Supreme Court in
Penry v. Lynaugh, and subsequently the
Fifth Circuit Court of Appeals in
Bigby v. Dretke, remanded cases in which the
jury instructions in death penalty cases did not ask the jury to consider as mitigating factors the defendant's
mental health, saying that the jury be instructed to consider mitigating factors when answering unrelated questions. The Supreme Court's rulings have broadened the definition of mitigating evidence in the United States and systematically removed the procedural barriers to jury consideration and weight of that evidence. The effect of these decisions is to broaden the definition of mitigating factors related to mental illness within the U.S. justice system, and to be more consistent with standard psychiatric and psychological findings that correlate specific behaviors to identifiable mental disorders. As a result of these decisions, even in the absence of a direct connection between the illness and the illegal action (as is required in the guilt phase of the insanity defense), the court acknowledges that the effects of a severe mental illness have pervasive effect on a person's behavior and can therefore be a relevant consideration in death penalty considerations. If all relevant mitigating factors are not considered in a death penalty case, the punishment can be considered "cruel and unusual", the Supreme Court ruled in
Tennard v. Dretke, a case in which the prosecution sought to exclude evidence of a low IQ in the penalty phase of the trial.{{cite journal
Limits The Supreme Court held in
Lockett v. Ohio that a defendant facing the death penalty is entitled to present any aspect of character or record, and any circumstance of the offense that might serve as a basis for a sentence less than death. The court may limit evidence not pertaining to these issues as "irrelevant". Although it has been argued that the defendant should be able to offer evidence questioning the morality of the death penalty or descriptions of the execution process, no court has allowed such testimony.{{cite book ==See also==