Individualisation of Punishment: Challenging The Deterrence and Just Deserts Penal Theories in Handling Terrorists

American Journal of Humanities and Social Sciences Research (AJHSSR) 2022
American Journal of Humanities and Social Sciences Research (AJHSSR)

e-ISSN :2378-703X
Volume-6, Issue-10, pp-48-51
www.ajhssr.com
Research Paper Open Access
Individualisation of Punishment: Challenging the Deterrence and

Just Deserts Penal Theories in Handling Terrorists
Nurhidayat1
1
Program Pascasarjana Doktoral Departemen Kriminologi, FakultasIlmuSosial dan Ilmu Politik Universitas
Indonesia
ABSTRACT:This paper aims to critique the tendency of some Indonesian law enforcement which uses
deterrence and just deserts theories to justify the punishments towards terrorists as a form of crime control.
Though multiple existing literatures have explained the lack of impact of using deterrence and just deserts
theories in controlling crime. Deterrence theory is not applicable due to its „blind‟ nature and how punitive it is,
whereas just deserts theory, though it has brought the element of proportionality still hasn‟t answered the need
to handle how terrorists as a criminal. This paper proposes individualized punishing in response to terrorists.
Individualised punishment aims to solve the root problem on why a person got involved with terrorism through
correctional process. Thus, individualized punishment is the way to „fix‟ terrorists as criminals.
KEYWORDS -terrorism, deterrence, just deserts, individualized punishment
I. INTRODUCTION
Terrorism is a crime that continuously garner high priority from the Indonesian government since the
Bali Bombing I incident in October 2002. This bombing took 200 lives and left hundreds other hurt. To respond
to terrorism, some countries such as the United States used war model, whereas some others—including
Indonesia, adopted the law enforcement model. The consequence of choosing the law enforcement approach is
how terrorism becomes a criminal offence that has to be processed through criminal justice system; starting
from investigation, prosecution, to correction. Each terrorist has to be held responsible for their crime with the
punishment which has been decided its form and severity according to the existing law. The majority of said
punishment involves imprisonment and correctional processes.
Correction in Indonesia is identical to a rehabilitative process which objective hinges on social
reintegration, but unfortunately, said sentiment cannot be judged by a reigning judge in making verdicts. In their
research on the verdicts of terrorism cases, Center for Detention Studies found that though the Supreme Court
have underline that the goal of Indonesian sentencing is to rehabilitate, there are still many judges that stress
upon deterrence effect and the proportionality of punishment and the crime (just deserts) as main factors to
deliberate verdict on terrorists [4][9]. These findings show that there is a discontinuity between the objective of
punishment and the final objective of correction. Consequently, the duration of crime sanction given by the
judge does not allow terrorists to reform and it finally led to repeat their offence after they are free. Previous
researches have found that deterrent effect or just deserts in punishments do not have significant impact on
crime control. This paper aims to discuss the incompatibility of deterrence theory and just desert in handling
terrorist and its effect on the potential recidivism of convicted terrorists.
II. LITERATURE REVIEW: PENAL THEORIES

Penal theory is a reflection of society‟s perspective on crime, criminals, and how to respond to them. It
cannot be taken out of the societal context in which said theories first came to be and how it develop. In general,
there are four penal theories based on rationalisation or the objective of punishment. Said theories are just
deserts and deterrence theories.
Just Deserts Theory
This theory came from the concept of just deserts, in which punishment have to be proportionate to the
criminal‟s mistakes. This theory is driven by the pre-existing excess and the failure of rehabilitation‟s dream
[10]. Believers of this theory understands that punishment is justified as an appropriate moral response towards
crime: those who are guilty of criminal charges deserve to be condemned; this condemnation has to be delivered
AJHSSR Journal P a g e | 48
through „harsh behaviour‟ which is believed to push the criminals to seriously consider said condemnation, but
the amount of said harsh behaviour has to be proportionate to the level of crime, respecting the criminal as a
moral agent [1]. The premise of this theory is that an individual is and has to be treated as a responsible moral
agent though they can be wrong. The political premise is that all individual has to be respected as a moral agent:
offenders are worthy of punishment, but they do not lose all rights on faith and possesses the right to not be
punished disproportionately to their crime.
Proportionality is the key concept of this theory. There are two forms of proportionality. Cardinal
proportionality refers to the severity of punishment, it conditions that a punishment cannot be more severe than
the crime itself: the punishment of five-year imprisonment for a petty theft is clearly not proportionate, just as
months-long punishment for serious crime such as homicide is not appropriate. Ordinal proportionality refers to
the level of relative seriousness of multitude of offences; as an example, to what extent is rape more serious than
mugging. In its practice, a lot is hanging on the offender‟s evaluation, especially from the law enforcer and the
social assumption of traditional crime such as street crime compared to new offences such as commercial fraud
and environmental pollution. Theoretically, ordinal proportionality needs a some sort of a scoring scale that can
be used to evaluate the seriousness of each crime along with factors that may increase or decrease its
punishment that are integrated to said scale.
Deterrence Theory
Deterrence theory sees crime prevention through the threat of criminal sanction as the reason to punish.
First offence may be punished lightly or even unpunished, whereas recidivists may incur heavier punishments
due to the undeterred element in the second offence. The seriousness of offence becomes less important than
preventing repeat offences. The trace of this approach can be detected in the actions taken towards recidivists
and what constitutes as „dangerous offences‟ in contemporary punishing.
In deterrence theory, much of the focus is on the general deterrence effect for the people which
involves calculating punishments based on what will deter other people from doing the same offence. Utilitarian
scholars such as Bentham and economic theory expert Posner developed the thoughts in which criminals are
threatened with extremely heavy punishments, even more than what is deemed necessary [11]. The understood
premise is that most of criminals are rational and calculating individual—a premise that may be questioned by
criminologists. The political premise is that the greater good for the many represents the highest value and the
punished individual is only one against thousands or even millions of law-abiding individuals. Thus, it is
justified to punish one person harshly to effectively prevent other people from offending, therefore ignoring the
aspect of proportionality.
III. DISCUSSION
As shown by previous researches, the effectiveness of punishments based on deterrence and just deserts
are not supported by substantial evidence. But within the context of punishing terrorists in Indonesia, the
majority of judges still use these theories as the main factors for their deliberation to punish terrorists. There are
huge shortcomings in punishing terrorists in Indonesia shown by the number of recidivisms occurring in
convicted terrorists. Institute for Policy Analysis of Conflicts found that 90 ex-convicted terrorists are involved
once more with their terrorist groups after correctional processes [5]. Thus, this paper will challenge the
compatibility of using deterrence or just deserts as the basis for punishing terrorists.
From deterrence side, punishments done to utilise deterring effects will not be effective due two
reasons. First, it cannot solve the root problem or the criminogenic factor that causes someone to be involved
with terrorism in the first place. Second, it goes against what justice stands for since all terrorists are considered
equally at fault.
As an example, if we are to punish everyone involved in terrorism as heavily as possible—such as 15
to 20 years of imprisonment or even lifelong sentences and death sentence—without factoring the role they play
in the act of terrorism, the severity of their crime, and the whydunnit aspect, then it can be said that justice is not
served in the criminal justice system. Fair punishment is dealt when the punishment itself suits the severity of
losses caused by the crime, as understood by believers of just deserts theory.
Moreover, there is no guarantee that with punishing someone as heavily as the system can will deter
the terrorist from doing it again. Heavy punishments unaccompanied by rehabilitation process or guidance will
only borne the feeling of anger and the desire for revenge. Repressive punishments that are „blind‟ in nature can
be used by terrorist groups as a fuel to enact rebellion and recruiting new members. Whereas for the convicted
terrorists, imprisonment can increase their status in their militant groups. As if after imprisoned, their status will
be „better‟ due to the sentiment that they have undergone a huge trial given by the „enemy‟ group (the law
enforcement). Thus, adding to to the findings of previous researches, the act of deterrence does not go hand-in-
hand with crime control.
From the just deserts side, it has been previously mentioned that a fair punishment is one that is
proportionate to the criminals‟ crime. This is the core belief of the just deserts theory. But in practice, the
application of this theory is not entirely accurate. In punishing, other than seeing the criminals‟ offence, we also
need to consider the characteristics of the offender; such as the factors which caused them to do crime.
Punishments dealt out purely based on just deserts will borne uniform punishments, whereas criminals are
individuals with different needs. Thus, fair punishment is not only proportional, but also individualised.
Individualised punishments redefine responsibility based on faults to responsibility based on the
characteristics of criminals. In judging a case, judges are expected to deliberate the motifs and objective of
someone who‟s done a crime, how the crime is done, the offender‟s life history and socioeconomic background,
and the offender‟s actions after doing said crime. With individualisation of punishment, the objective is not only
serving justice, but also rehabilitating the criminals to achieve social reintegration.
Individualising punishment is born amidst the development of modern penal theories. Someone‟s
accountability is no longer based on subjective charges, but on the severity of the criminal. Punishment is
determined to be no longer effective to prevent crime because moral responsibility is no longer the base for
sentencing. Punishments have to be determined scientifically based on the severity of danger posed by the
offender towards society and the motifs underlying the offenders‟ actions. Scientific determination here refers to
how a judge is expected to give room for psychologist, anthropologist, sociologist, criminologist, and
psychiatrist when sentencing. This is so the judge can diagnose and categorise offender in a criminal
classification so that the offender can undergo suitable treatment for their condition. The existence of the
offenders‟ individual factors will make it that people who‟d done the same crime with similar effects to society,
or doing said crime together, be sentenced differently than one another.
As an example, those who went together to Syria to join ISIS can be sentenced differently to one
another. In social defence theory, each criminal has to receive different treatments suited to their conditions to
heal certain social conditions [6]. To illustrate, a person who went to Syria to join ISIS but refuses to take arms
will be handled differently than those who joined ISIS to war. This comparison already exists in Indonesia. In
the case of Dwi Joko Wiwoho, he had succeeded in going to Syria and had undergone military training, but he
had refused to take arms for ISIS‟ sake, thus he received lighter punishment than others who had the full
intention to take arms [6].
With individualised punishment, the duration of imprisonment is not determined by the crime, but by
the time needed to rehabilitate criminals, hence there is no set duration like ones championed in the classical
approaches [6]. Individualised approach requires experts from various fields to be involved in penal processes
[2]. Obviously, it will be difficult to demand judges to master the previously mentioned expertise, hence the
existence of a post titled Pembimbing Kemasyarakatan (Correctional Guide—PK) within Indonesia‟s criminal
justice system. The PK‟s role is to objectively evaluate criminals and report them in a Penelitian
Kemasyarakatan (Correctional Research—Litmas). One of the Litmas‟ purposes is to be used as a deliberating
factor for a judge to determine criminal sanction for criminals, but in so far, the role of Litmas is only limited on
cases involving children.
IV. CONCLUSIONS
Punishments based on deterrence and just deserts are ineffective as a response to terrorists. Deterrence
approach underlines the pain of punishment and deterring effect gave birth to an equally heavy punishments to
all criminals without considering the role they play in the crime. This blind sort of punishments may potentially
cause grudge and gave way to an even bigger radicalisation in the terrorist groups. Whereas the just deserts
approach, though it has solved the blind nature of deterrence approach with its proportionality principle, is still
unable to deliberate the differing needs and characteristics of each individual criminals. An individual who had
done similar crimes with similar effects may not incur the same sentence due to the different needs to handle
them. The time needed for the handling process should also be considered in sentencing, so the convicted
criminals will not repeat their offences once they are free.
To solve the limitation of deterrence and just deserts-based punishments, an approach that is able to
identify the problems of each offender as unique individuals and determine the accurate solutions is needed.
Thus, this paper concludes that an individualised punishment approach, where each punishment is individually
tailored to the criminals‟ profile—which includes the root problems of why they do crime, their socioeconomic
background, psychological condition, and so on—can potentially answer the challenges faced by deterrence and
just deserts-based punishments. Obviously, individualised punishments are much more complicated than
deterrence and just deserts-based punishments. But individualised punishment rings closer to Indonesia‟s vision
of rehabilitating terrorists rather than the deterrence and just deserts-based punishments that places a much
higher emphasis on punishment for the sake of punishing.
REFERENCES
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[4]. D‟Alessio, S. J., &Stolzenberg, L. (2019). Should Repeat Offenders Be Punished More Severely for
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American Journal of Humanities and Social Sciences Research (AJHSSR) 2022

American Journal of Humanities and Social Sciences Research (AJHSSR)

Individualisation of Punishment: Challenging the Deterrence and

KEYWORDS -terrorism, deterrence, just deserts, individualized punishment

II. LITERATURE REVIEW: PENAL THEORIES

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