Global Comparison On Sentencing Procedure As Per Therapeutic Jurisprudence
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
GLOBAL COMPARISON ON SENTENCING PROCEDURE AS
PER THERAPEUTIC JURISPRUDENCE
Ekata Deb, LLM-Criminal & Security Laws, REVA University, Bengaluru
ABSTRACT
This comparative analysis examines how principles of Therapeutic Jurisprudence shape sentencing procedures in the United States, United Kingdom, and India, focusing on cases involving Legal Insanity, Battered Woman Syndrome (BWS), and Post-Partum Psychosis (PPP) leading to homicide or filicide. By evaluating statutory frameworks, landmark case laws, and specialized courts or provisions—such as NGRI and GBMI verdicts in the U. S. , diminished responsibility and the Infanticide Acts in the U. K. , and the M’Naghten-derived provisions in India—this study highlights divergent paths toward rehabilitative justice. The analysis reveals that while the U. K. most comprehensively integrates therapeutic jurisprudence through hospital orders and infanticide statutes, the U. S.
exhibits a patchwork of reforms via mental health courts, and India remains predominantly punitive with limited therapeutic measures. Keywords: Therapeutic Jurisprudence, Legal Insanity, Diminished Responsibility, Battered Woman Syndrome, Postpartum Psychosis
Introduction
Therapeutic Jurisprudence posits that legal processes themselves can have therapeutic or anti-therapeutic effects on those who come in contact with them. In the context of criminal sentencing, advocates in this line for procedures recognize and address underlying mental health issues rather than solely imposing punitive sanctions. This essay undertakes a global comparison of such informed sentencing in the United States, United Kingdom, and India, focusing specifically on three categories of cases: defendants pleading legal insanity, women offenders suffering from Battered Woman Syndrome who commit spousal homicide, and mothers experiencing postpartum psychosis in the aftermath of childbirth leading to infanticide or filicide. By scrutinizing statutory provisions—such as the NGRI and GBMI verdicts in the U. S.
, the Criminal Procedure (Insanity) Act 1964 and Infanticide Act 1938, in the U. K. , and Section 84 of the Indian Penal Code (IPC) [also, Section 22 of Bharatiya Nyaya Sanhita (BNS), 2023]—alongside landmark judicial decisions and specialized diversion mechanisms, this study elucidates the extent to which each jurisdiction balances rehabilitation with retribution. Through critical examination of both legislative design and practical implementation, the paper identifies best practices and gaps, offering insights for policy reform and the broader integration of therapeutic ideals into criminal justice systems. United States Insanity Pleas and Sentencing: U. S. law generally follows a rule-based test (M’Naghten or its variants) for criminal insanity. A defendant found Not Guilty by Reason of Insanity (NGRI) is usually committed to a psychiatric facility rather than prison12.
The Model Penal Code test (lack of substantial mental capacity) is adopted in many states, though after the case of Jr. Hinckley (1982) the federal government tightened its standard (Insanity Defense Reform Act, 1984). Some states allow a “Guilty but Mentally Ill” (GBMI) verdict: this yields a normal criminal sentence plus mandated psychiatric treatment. The GBMI approach “ostensibly permits society to offer compassion and rehabilitation to the offender, while 1 ChoudharyLaxmi Narayan and Deep Shikha, “Indian Legal System and Mental Health” (2013) 55 Indian Journal of Psychiatry . 2 Death Penalty Information Center, “Andrea Yates Found Not Guilty by Reason of Insanity--Prosecutors Had Originally Sought Death” Death Penalty Information Center (March 14, 2025) . condemning the crime and providing for State control over the offender”3.
In practice, many defendants found GBMI receiving mental health care while serving their prison term. Across jurisdictions, however, insanity pleas are rare (typically .
4 ibid
5 ibid-3
6 By Krishna Khakhria, “Kiranjit Ahluwalia
The Woman Who Set Her Husband on Fire” (April 3, 2019) .
7 “Postpartum Psychosis: A Way out for Murderous Moms? | Office of Justice Programs”
landmark example: initially convicted of capital murder for drowning her five children, she however got acquittal over an appeal. In 2006 a jury found her NGRI (based on postpartum psychosis), and she was transferred to a state mental hospital for treatment8. Similarly, postpartum psychosis was central to reducing murder to manslaughter (by proving inability to know wrongfulness). These cases exemplify U. S. “therapeutic” interventions, but such relief is the exception. Therapeutic Jurisprudence in Practice: The U. S. has aggressively experimented with problem-solving courts and diversion programs. By 2020 there were hundreds of mental health courts nationwide (one of the first in Dade County, Florida, 1989, known as drug court)9 that divert mentally ill offenders into supervised treatment plans instead of jail.
These specialty courts are explicitly founded on principles underlying therapeutic-jurisprudence – combining judicial supervision with mandated counseling and case management. Likewise, drug courts, veterans courts, and other “specialty” courts exemplify the shift toward rehabilitation. Corrections systems also sometimes offer Mental Health Treatment Facilities separate from prisons. Nevertheless, the U. S. still struggles with punitive defaults: incarceration remains common, especially where mental illness is unrecognized. Only recently (Illinois, 2018) have state legislatures begun to formally codify therapeutic sentencing for postpartum illness. Illinois’ PA 100-0574 (2018) explicitly names postpartum depression and psychosis as mitigating factors, and allows resentencing petitions for women convicted in such episodes
10. Absent such laws, however, most U.S. jurisdictions rely on plea bargaining, expert
testimony, and judicial discretion. In death-eligible cases, courts and juries have oscillated on whether to treat postpartum psychosis as a “mental disease or defect” exempting defendants from capital punishment11. Overall, the U.S. system shows pockets of therapeutic jurisprudence-oriented practice (GBMI verdicts, mental health courts, recent statutes) but 8 Death Penalty Information Center, “Andrea Yates Found Not Guilty by Reason of Insanity--Prosecutors Had Originally Sought Death” Death Penalty Information Center (March 14, 2025) . 9 Petrila, John and Redlich, Allison, "Court Review: Volume 43, Issue 4 – Mental Illness and the Courts: Some Reflections on Judges as Innovators" (2007). Court Review: The Journal of the American Judges Association.
234. https://digitalcommons.unl.edu/ajacourtreview/234
10 Susan Benjamin Feingold and Barry M Lewis, “The New Law in Illinois PA 100-0574
Ground-Breaking Legislation” [2018] The Champion Magazine .
11 Ibid-6
remains predominantly retributive. United Kingdom Insanity and Mental Health Orders: English law still follows the M’Naghten Rules for legal insanity (Criminal Procedure (Insanity) Act 1938), meaning a defendant “laboring under such a defect of reason” cannot be held criminally responsible. A successful insanity plea results in detention under the Mental Health Act, 1938, typically a hospital order (s. 37 & s. 41) rather than prison. Where the criteria are met, judges regularly impose hospital treatment with or without restrictions. Apart from complete insanity, the UK does recognize partial mental impairment: the Homicide Act of 1957 allows a murder conviction to be reduced to manslaughter if the defendant suffered “substantial impairment of mental responsibility. ” This plea of diminished responsibility has often benefitted psychiatrically ill offenders.
Thus, mental illness is a prominent sentencing factor: the Sentencing Council instructs courts to consider psychological disorders in mitigation. Moreover, for community sentences the law explicitly provides a Mental Health Treatment Requirement. Under the Criminal Justice Act 2003, judges may attach up to twelve months of mandated psychiatric or psychological treatment as part of a Community Order12. However, available data show such treatment orders remain rare (1% of community orders) despite high rates of mental illness among offenders13, indicating a gap between law and practice. Battered Woman Syndrome (Domestic Homicide): UK courts have long grappled with wives or partners who kill their abusive husbands. In trial, the history of domestic abuse and BWS traditionally figured in defenses relating to provocation or diminished responsibility.
At sentencing, judges may treat prolonged abuse as a mitigating factor. A 2016 case under Court of Appeal illustrates this trend: a woman serving contraband in prison (with no prior record) received a suspended term after her counsel showed she suffered PTSD and BWS from a history of domestic violence14. This was hailed as a “significant departure” from earlier 12 Helen – Milton Keynes MHTR Demonstrator Project, “Mental Health Treatment Requirements – A Guide to Integrated Delivery” .
13 ibid
14 Amy Hughes, “Court of Appeal Makes Significant Departure in Sentencing of Appellant with Battered Woman Syndrome” (Garden Court Chambers, September 25, 2024) . practice (where immediate custody was typical). More famously, cases like Sally Challen15 (2019) relied on fresh psychiatric evidence of decades-long coercive control, leading to a successful appeal against a life sentence for murder. Such cases exemplify a therapeutic impulse: recognizing the psychological impact of abuse, not just punishing the act. Nonetheless, there is no statutory BWS defense; courts must fit the facts under existing headings. The law’s response varies by judge and jurisdiction. UK sentencing guidelines now list domestic abuse as an aggravating factor when the killer is a perpetrator, but they do not list it as mitigation for victims.
In practice, many defensive arguments reduce murder to manslaughter through diminished responsibility or infanticide rather than resulting in wholly new sentences. Postpartum Psychosis (Infanticide): The UK has a distinct legal regime for maternal infanticide. Under the Infanticide Act, 1938, if a woman causes the death of her infant (under
12 months) and her mind was disturbed by “childbirth or its effects,” the offence is infanticide,
not murder. Infanticide carries a maximum penalty equivalent to manslaughter (life imprisonment) but courts usually emphasize psychiatric treatment. In practice, a mother found guilty of infanticide is almost never imprisoned beyond treatment – they are sent to a secure hospital under the Mental Health Act, 1938. Scholarly summaries note that in the UK, a new mother who kills her baby is assumed to be mentally ill; “in lieu of prison... these women receive psychiatric treatment and rehabilitation”16. The Infanticide Act thus embodies therapeutic jurisprudence: it presumes a temporary mental breakdown due to childbirth, mandates hospital care, and explicitly substitutes rehabilitation for punitive justice. Even when the infant’s age exceeds one year, courts may invoke diminished responsibility if postpartum illness can be shown.
Diversion and Therapeutic Measures: The UK has implemented a number of programs reflecting principles underlying therapeutic jurisprudence. Since 2014 the Liaison and Diversion service identifies and diverts mentally ill suspects and defendants (at the police or courtroom stage) into treatment. Probation officers routinely work with psychiatric teams, and Community Treatment Requirements provide supervised therapy in the community. The
15 [2019] EWCA Crim 916, Court of Appeal
16 Susan Benjamin Feingold and Barry M Lewis, “The New Law in Illinois PA 100-0574
Ground-Breaking Legislation” [2018] The Champion Magazine .
Thames Valley- Mental Health Treatment Requirement [MHTR] “demonstrator” ( April, 2014) showed good engagement: offenders under court orders reportedly complied with therapy, improving outcomes17. However, specialist mental-health courts (as in the U.S.) do not formally exist. The closest equivalents are Drug and Alcohol Treatment Orders and police Crisis Intervention Teams. Overall, British sentencing law formally incorporates mental health – via hospital orders, infanticide, and treatment requirements – more systematically than the U.S., reflecting a rehabilitative ethos. Yet critics note that these measures are under-used; a
2013 MoJ report found only 800 MHTRs that year despite widespread need18. Access to secure
psychiatric facilities (e. g. high-security hospitals) is limited, sometimes resulting in delayed transfers from prisons. Thus, while UK jurisprudence is structured to be therapeutic in these cases, resource and backlog issues can frustrate the intent. India Insanity Defence (IPC S. 84) and Sentencing: Indian criminal law incorporates the M’Naghten rule in IPC S. 84: no person is guilty if, by reason of unsoundness of mind,” they did not know the nature or wrongful ness of the act19. This is the sole statutory insanity defence. If proved, the accused is deemed not criminally liable and is usually confined to a mental hospital under provisions of the Code of Criminal Procedure (CrPC S. 329). In practice, courts presume sanity, placing the burden on the defendant to establish insanity20.
Supreme Court jurisprudence has held that only those incapables of appreciating the wrongfulness in their acts are excused. If insanity is established, the person is “committed to the psychiatric hospital” rather than sent to prison21. There are few constructive alternatives: India does not have a statutory “diminished responsibility” for murder, so partial insanity (e. g. severe depression) does not reduce charges except possibly via the general defence of grave and sudden provocation. Notably, Indian courts sometimes show mercy in sentencing when mental illness is present. Significant cases
17 Ibid 3-12
18 Ibid 4-10
19 ChoudharyLaxmi Narayan and Deep Shikha, “Indian Legal System and Mental Health” (2013) 55 Indian
Journal of Psychiatry .
20 ibid
21 ibid
have illustrated that trial courts can choose the least severe sentence when a defendant’s mental state is fragile. Otherwise, the usual punishment (including life or death for homicide) applies. Battered Women and Domestic Homicide: Indian laws have no concept of “battered woman syndrome” as such. Domestic violence is criminalized (e. g. S. 498A, IPC, 1860 for cruelty), but this does not translate into a defence for homicide or filicide. In practice, if a woman kills an abusive husband or family member, courts will examine the facts under homicide provisions. Sometimes dowry death or suicide abetment charges arise, but these rarely benefit the accused women. There is no statutory provocation defence that recognizes sustained abuse. Thus, accused mothers do not receive leniency under a specific legal rubric of battered woman syndrome.
On the other hand, Indian courts have occasionally shown sympathy for extenuating circumstances: as noted, they may impose life imprisonment (not death) for mentally distressed offenders22. But as a rule, a woman convicted of killing a husband or family member faces the same sentencing framework similar as any other murderer. No dedicated diversion (e. g. counseling programs) exists for domestic violence offenders. Postpartum Psychosis and Filicide: Likewise, BWS, India has no unique provision for mothers who kill their children under the influence of postpartum depression or psychosis. The IPC contains no infanticide statute; a mother who kills a newborn would ordinarily be tried for murder or homicide. In theory, a defence of insanity S. 84 of IPC, 1860 could apply if her psychotic conditions meet the legal test.
However, the stigma and resource gaps in India’s mental health system shows that such are seldom asserted or accepted. Until recently, there was little public or judicial awareness of postpartum mental illness as a factor. (An exception is the commutation of death sentences on mental health grounds: in rare mercy petitions, the Supreme Court has ruled that mentally ill convicts should not be executed. In general, though, a woman who commits filicide will face traditional punishment; there is no presumption of temporary impairment as in the UK. Indian courts can, at best, treat her mental condition as a mitigating factor at sentencing. To date there are virtually no reported cases in India where postpartum depression or psychosis was explicitly recognized, even in appeal.
Therapeutic Jurisprudence in India: India has begun to reform its mental health laws (Mental Healthcare Act, 2017) and is party to United Nations international standards
22 ibid
(CRPD23), but the criminal justice system remains mostly punitive. There are no mental health courts, no statutory treatment alternatives in sentencing, and only limited use of probation. Judges may ask for psychiatric reports (Sections 328–330, CrPC) if sanity is in doubt, but otherwise little effort is made to treat offenders’ illnesses. Diversion programs are virtually nonexistent – non-violent offenders with mental illness are not routinely directed into hospitals or community care. The concept of therapeutic jurisprudence has had minimal uptake. A 2023, Mumbai Law Review article noted that resource constraints and institutional inertia hinder any Therapeutic Jurisprudence inspired sentencing reforms in India24.
Indian sentencing law does allow acquittal on the grounds of insanity (a nod to rehabilitation), but in practice criminal cases involving mental illness are handled much like any other case. Women in extremis (suffering from battered syndrome or postpartum psychosis) typically receive no specialized relief and remain subject to standards prescribed as per IPC penalties. Efforts by activists and lawyers to introduce concepts like “partial insanity” or domestic violence provocative defenses have so far had little success in Indian Cases. Conclusion The comparative analysis underscores significant variations in the adoption of Therapeutic Jurisprudence across the three jurisdictions.
The United Kingdom leads with comprehensive statutory provisions—such as hospital orders, diminished responsibility, and a dedicated infanticide regime—that explicitly channel offenders into psychiatric care units rather than prisons. The United States demonstrates innovative, albeit uneven, reform through mental health courts, GBMI verdicts, and selective legislative amendments addressing postpartum mental illness. India, while acknowledging insanity under IPC Section 84, 1860, largely maintains a punitive framework with scant diversionary options or specialized defenses for BWS and postpartum psychosis. This disparity highlights the need for broader legislative and institutional commitment to therapeutic objectives. Emphasizing rehabilitation, mental health treatment integration, and procedural safeguards, policymakers can draw on the U. K.
23 Convention on the Rights of Persons with Disabilities (CRPD)
24 Mnlum Law Review Blog, “Role of Judges in Integration of Therapeutic Jurisprudence in the Criminal Justice System: A Critical Analysis with Focus on India” (December 20, 2023) . and U. S. models to advance India's Therapeutic Jurisprudence potential, thereby promoting humane and effective sentencing practices globally. Comparing the three systems reveals a spectrum of approaches. The U. S. has enthusiastically embraced many mechanisms under Therapeutic Jurisprudence (mental health courts, GBMI verdicts, some statutory mitigation) but still relies heavily on punishment. The UK embeds therapeutic principles in law (hospital orders, infanticide statutes, treatment requirements), though practical gaps remain. India’s framework is closest to the traditional punitive model, recognizing mental illness only in-so-far as old colonial-era provisions permit acquittals on the basis of insanity.
Across all jurisdictions, landmark cases have pushed toward a more nuanced view of defendants’ psychological states highlighting postpartum and abuserelated disorders – though a lag in systemic reforms remain. The UK’s statutory infanticide regime and community-based requirements offer a model of Therapeutic Jurisprudence oriented laws that U. S. and Indian systems largely lack. In all countries, scholars argue for greater incorporation of therapeutic jurisprudence: more diversion, better integration of mental health care, and a shift from retribution to rehabilitation. As of 2025, however, only the UK and parts of the U. S. have meaningfully institutionalized these ideals, while India remains in the early stages of reform.
References • “Andrea Yates Found Not Guilty by Reason of Insanity--Prosecutors Had Originally Sought Death” Death Penalty Information Center (March 14, 2025) • “Guilty but Mentally Ill Verdict and Due Process | Office of Justice Programs” • “Indian Legal System and Mental Health” (2013) 55 Indian Journal of Psychiatry 177 • “Indian Legal System and Mental Health” (2013) 55 Indian Journal of Psychiatry 177 • “Mental Health Treatment Requirements – A Guide to Integrated Delivery” • “Postpartum Psychosis: A Way out for Murderous Moms?
| Office of Justice Programs” • “The New Law in Illinois PA 100-0574: Ground-Breaking Legislation” [2018] The Champion Magazine • “The New Law in Illinois PA 100-0574: Ground-Breaking Legislation” [2018] The Champion Magazine • • • Blog MLR, “Role of Judges in Integration of Therapeutic Jurisprudence in the Criminal Justice System: A Critical Analysis with Focus on India” (December 20, 2023) • Center DPI, “Andrea Yates Found Not Guilty by Reason of Insanity--Prosecutors Had Originally Sought Death” Death Penalty Information Center (March 14, 2025) • Feingold SB and Lewis BM, “The New Law in Illinois PA 100-0574: Ground-Breaking Legislation” [2018] The Champion Magazine • Helen – Milton Keynes MHTR Demonstrator Project, “Mental Health Treatment Requirements – A Guide to Integrated Delivery” • Hughes A, “Court of Appeal Makes Significant Departure in Sentencing of Appellant with Battered Woman Syndrome” (Garden Court Chambers, September 25, 2024) • Khakhria BK, “Kiranjit Ahluwalia: The Woman Who Set Her Husband on Fire” (April 3, 2019) • Narayan C and Shikha D, “Indian Legal System and Mental Health” (2013) 55 Indian Journal of Psychiatry https://pmc.
ncbi. nlm. nih. gov/articles/PMC3705679/#:~:text=Indian%20Penal%20Co de%2C%201860%20states,There%20have • Petrila, John and Redlich, Allison, "Court Review: Volume 43, Issue 4 – Mental Illness and the Courts: Some Reflections on Judges as Innovators" (2007). Court Review: The Journal of the American Judges Association. 234. https://digitalcommons. unl. edu/ajacourtreview/234