restorative justice can be summarised: (a) there must be a deep exchange between
offender and victim – and it must be mutual; (b) the offender must acknowledge
the harm – especially psychological harm – which they have caused: there is an
element of ‘shaming’ involved; (c) there must be a tangible ‘redemption’ – this part
comes closest to the ‘sentence’ handed out in traditional punishment.
There are problems with the theory. First, the ‘mutuality’ of the exchange implies
that the victim – or, perhaps, the ‘community’ – carries some responsibility: ‘I (the
criminal) have hurt you, but there are reasons.. .’. Second, saying sorry may come
easily to an offender – the test of the effectiveness of restorative justice is the
recidivism rate after punishment. Third, the victim may not achieve closure. Fourth,
allowing victims to determine punishments can lead to inequitable outcomes – and
if victims do not determine the outcome, then what is the point of restorative justice?
Finally, the shaming element of restorative justice conflicts with the idea of building
up the self-respect of the offender which is implied in the idea of mutuality.
Because capital punishment is extreme it illustrates in a stark way the different
theories of punishment discussed above. Although our primary concern is with the
moral arguments for and against capital punishment, there is an interesting political
dimension to the debate. Protocols 6 and 13 of the European Convention on Human
Rights (ECHR) prohibit member states of the Council of Europe from reintroducing
the death penalty under any circumstances, and ratification of the ECHR is a
condition for membership of the European Union. Prohibition on capital punishment
in Europe has – at least for the political elites – become part of European
consciousness and a way of defining America as ‘other’. Europe has, in effect,
declared an absolutist position on capital punishment. This raises the question
whether it is possible to be a non-absolutist opponent of the death penalty: there
might be strong arguments against the death penalty but no single argument leads
to the conclusion that it is alwayswrong. To address this issue requires structuring
the debate around retributivist and consequentialist theories of punishment.
In Britain, as in most European countries, the history of the practice of capital
punishment over the past 200 years has been one of increasing restriction in its use,
eventual abolition, and, through ECHR commitments, absolute prohibition on its
reintroduction. The United States has followed a different course. Since there is a
huge focus on the USA in debates over capital punishment it is useful to outline
the salient features of its present use:
- Capital punishment exists in 32 of the 50 states. In addition, Federal and military
execution is permitted. Execution of a minor (someone under 18) is not allowed.
- Conviction rates vary considerably between states. Since clemency is possible the
conviction-to-execution rate – that is, percentage of death sentences actually
carried out – also varies significantly.
- Capital punishment was suspended between 1972 and 1976. In the consolidated
case Furman v.Georgiathe Supreme Court found the death penalty to be in
violation of the Eighth Amendment of the US Constitution, on grounds of it
152 Part 1 Classical ideas