Humane Criminal Deterrence Formula through Restorative Justice and Economic Analysis of Penal Law Approaches

Abstract

This paper proposes a theoretical idea of mathematical and economic value-based criminal deterrence formulation that ensures crime does not benefit the crime’s perpetrator, while ensuring humane penal sentencing that is just for the victim(s), society, and the perpetrator. This proposed formulation of criminal deterrence could be what is needed in answering how to achieve the criminal/penal justice’s purposes as no formulation has ever been presented elsewhere, while entrusting penal sentencing formulation entirely to the judges or the sentencing structure to the lawmakers is still highly problematic. This research uses a normative approach with a counter synthesis from the weaknesses discovered through economic analysis of penal law, especially in its sentencing, in current Indonesia Penal Code (/KUHP), Indonesia’s newest 2023 Penal Code (KUHP 2023), and some examples from other nations, while doing it in a conceptual and eclectic approach based on Integrative Sentencing Purposes Theory by Muladi that integrates the retributive sentencing purpose, the rehabilitative sentencing purpose, and restorative justice theory as one system. This proposed humane criminal deterrence formulation ensures the punishment’s weight must be greater than the crime’s profit, as one of Bentham’s sentencing rules requires while giving meaning, certainty, and economic reasonability for imprisonment. This formulation proposes the following standards: a. the penal sentence’s economic value should at least be equal to the sum of its victim(s)’ restitution and its fine sentence; b. the penal sentence must be in double or dual-track system through alternative penal sentencing treat mode with financial sentences or imprisonment format, and; c. imprisonment should be treated as forced labour equivalent to the economic value gained by any person working legally in the worst condition in that area and time, which ensuring the priority for the perpetrator to choose imprisonment as the last resort.