Prosecuting International Crimes in Africa - PULP - University of ...

Sentencing practice of the Special Court for Sierra Leone 123
limitations. 25 This is notwithstanding that the operation of retribution in
the ancient world resulted in harsh and indiscriminate punishment without
regard to the particularities of the offender and his crime. 26
By contrast, utilitarians hold the view that any punishment should
achieve some purpose and that punishment is generally a bad thing
because it causes unhappiness to the offender. 27 The originators of
utilitarian penology were Cesare Beccaria, Jeremy Bentham and John
Stuart Mill, who derived their conception of utilitarianism from Baron
Helvetius. 28 Utilitarian penology has been identified as a system based on
utility. 29 This means that it gauges the appropriateness of the sentence by
reference to social costs of wrongful conduct and the social costs necessary
to prevent it. 30 According to the utilitarian theory, if there are several
forms of punishment which produce the same good consequences, society
must opt for the one which is the least pleasant to the offender 31 or one that
will maximise utility. 32 Utilitarians appreciate that it is not possible to have
a crime-free society but they endeavour to inflict only as much punishment
as is required to prevent future crimes. 33 Accordingly, laws that spell out
punishment for criminal conduct should be designed to deter future
criminal conduct by a particular individual or society in general by way of
putting them on notice that future criminal conduct will not go
unpunished. 34
Another utilitarian rationale for punishment is rehabilitation. 35 The
aim of rehabilitation is to prevent people from committing future crimes by
giving them the opportunity and ability to succeed within the confines of
the law. 36 Rehabilitation is another utilitarian rationale for the
incarceration of offenders. From this perspective, some of the actions of
the criminal are as a result of a general breakdown in the social norms and
laws and to that end proper punishment can address some of those
criminal tendencies. 37 Many penal reforms are geared towards the
rehabilitation of offenders as there is a general belief that some criminal
tendencies can be easily corrected through proper punishment. The main
25
26
Cahill (n 22 above).
M Sigler ‘The story of justice: Retribution, mercy, and the role of emotions in the
27
28
capital sentencing process’ (2000) 19 Law and Philosophy 339.
Bagaric (n 13 above) 102.
G Binder ‘Punishment theory: Moral or political?’ (2002) 5 Buffalo Criminal Law Review
29
30
31
32
33
333.
As above.
Binder (n 28 above).
Bagaric (n 13 above) 103.
Binder (n 28 above) 323.
http://law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html
34
35
36
(accessed 14 April 2010).
As above.
Kumari (n 11 above) 1.
http://law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html
37
(accessed 14 April 2010).
As above.