Citizens’ Perceptions on the Role of Court Sentencing in Crime Control: A Survey of Mthatha High Court Juridical Area in South Africa

For over a century, the role of court sentencing on crime deterrence has generated significant debate. In this study, we explored the citizens’ perceptions on the role of court sentencing in South Africa’s Mthatha area. The findings are looked in the context of the broad theories of punishment namely: retributive theory, deterrence theory, preventive theory, reformative theory and compensation theory. A total of purposefully sampled 90 respondents were invited to participate in this study through closed-ended questionnaires. The univariate perception results of the study reveal that reformation of the offender, protection of the offender from being harmed by the victim in retaliation, and ensuring that the victims get justice are the most significant roles of court sentencing. Collectively, the reality that severe sentence scares potential criminals not to commit crime stands out and is the most correlated role of court sentencing. Court sentencing was also viewed to be having two pronged preventive effect on criminal activities. First, the criminal is incapacitated from engaging in criminal activities during the time of imprisonment; and second, the offender is removed from the environmental factors that led to offending. As part of the conclusion, the study recommends sentencing policies that mainly support reformation of offenders.

Taking Guilt Seriously

This chapter identifies two kinds of guilt and considers how the retributive theory of punishment sits in relation to them. It draws on two lines in psychoanalytic theory, Melanie Klein’s object relations approach, and the Hans Loewald and Jonathan Lear development of the later Freud’s structural theory in terms of an ontology of love. The two kinds of guilt may be termed ‘early’ and ‘mature’, where the former entails a punitive and persecutory attitude of condemnation to a perpetrator, the latter an account which emphasizes restoration or atonement through making good. Considering Jeffrie Murphy’s account, I argue that the problem for retributivism is that there is at least an historical logic in how it is deployed in modern society, in terms of an early guilt which tends to the punitive and persecutory. An alternative guilt that is restorative and atoning might inform another retributive theory, one that was mature in its understanding of how serious violation should be addressed.

Sider’s Puzzle and the Mormon Afterlife

There is a puzzle about divine justice stemming from the fact that God seems required to judge on the basis of criteria that are vague. Justice is proportional, however, it seems God violates proportionality by sending those on the borderline of heaven to an eternity in hell. This is Ted Sider’s problem of Hell and Vagueness. On the face of things, this poses a challenge only to a narrow class of classical Christians, those that hold a retributive theory of divine punishment. We show that this puzzle can be extended to the picture of divine judgement and the afterlife found in Mormon theology. This is significant because at first glance, the Mormon picture of the afterlife looks like it fails to co-operate with Sider’s puzzle. In Mormon theology, there are not two afterlife states, but three: a low, a middle, and a high kingdom. There is no afterlife state quite like Hell, and the states that function similarly to Hell aren’t places of eternal suffering. We argue that appearances are misleading. While it may be true that no place in the Mormon afterlife is bad in the sense that its inhabitants suffer eternal bodily harm, it is true that many of the places in the Mormon afterlife are bad in the sense that their inhabitants lack access to significant goods. This allows Sider’s puzzle to re-engage as a puzzle about distributive Justice. After setting out this alternative version of the puzzle, we argue that Mormon theology has sufficient resources to reject proportionality as a constraint on divine judgment by adopting a nuanced version of universalism called escapism.

The Metric of Punishment Severity

The principle of proportionality, a cornerstone of retributive penal philosophy, requires (ceteris paribus) the severity of the punishments imposed to be a function of the seriousness of the crimes committed. This principle cannot be applied without a metric or common denominator to assess whether two impositions of punishment are equal or unequal in severity. To identify such a metric, we must first decide whether it is wholly objective or at least partly subjective, involving an essential reference to the psychological response of whoever is punished. Even when this issue is resolved, no single measure of punishment severity may exist. Instead, all we might be able to say is that a given instance of punishment is more severe along one dimension and less severe along another, with no clear means to specify which is more or less severe, all things considered. This conclusion has potentially grave implications for the adequacy of a retributive theory of punishment that takes desert and proportionality as central. No solution is readily available without a substantial retreat from ideal theory. Perhaps the best way forward is to adopt a deflationary role for proportionality and desert rather than to abandon them altogether.

Of One-eyed and Toothless Miscreants

Interest in retributive theory, and emphasis on proportionality between crime and punishment as a requirement of justice, revived in English-speaking countries in the 1970s. After less than a half century, however, retributivism’s influence is waning. It is beset by challenges. Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists. Others, such as trade-offs between proportionality and crime prevention, relate to real-world applications. Both sets of challenges can be explored in their own terms, and solutions can be sought. The bigger question, though, is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment. Only time will tell whether retributivism is in terminal decline. Most likely, the difficulties contemporary philosophers face are as much a reflection of a change in the zeitgeist, in prevailing sensibilities, in mentalités as of sudden realization that retributive ideas offer less guidance for thinking about punishment than was widely understood.

Love in Law’s Shadow: Political Theory, Moral Psychology and Young Hegel’s Critique of Punishment

Modern theory of punishment conflates two types of question. The first concerns the justification of state punishment, the second the moral damage that occurs when a person is violated, and how the resulting damage can be repaired. The first question leads to political theory and a particular legally based moral grammar of wrongdoing and punishment. The second goes in the direction of a different moral psychology involving a grammar of violation, grieving and reconciliation. Retrieving the young Hegel’s analysis takes us in the second direction. It provides a critical vantage point from which to view the dominant liberal political theory, including Hegel’s own mature position as a founder of retributive theory. The modern theory of state punishment is legitimated by its public association with a moral psychology of violation, which it at the same time suppresses in favour of its own very different moral grammar.

KEBIJAKAN PEMBERATAN PEMIDANAAN PADA PELAKU KEKERASAN SEKSUAL TERHADAP ANAK DALAM PERSPEKTIF TUJUAN PEMIDANAAN

The existence of Law No. 23 of 2002 on Child Protection is part of the state's commitment to protect children. The Law has been amended for the second time through Perpu No. 1 of 2016. The emphasis in this second amendment is to aggravate the punishment of offender of sexual violence against children to provide a deterrent effect and prevent comprehensively the occurrence of sexual violence against children. This study used primary and secondary legal materials, with normative-juridical, policy, and philosophical approaches. This study concluded that punishment regulatin policy in Perpu No. 1 of 2016 reflects the purpose of punishment in the form of a combined theory that compromises between relative theory and retributive theory. While the policy of chemical chemistry regulation as a treatment reflects the purpose of punishment as rehabilitation.