Introduction to Political Theory

and seek redemption (and you do not have to believe in heaven and hell to maintain

this view). A retributivist would have less problem in supporting execution because

retributivism, unlike consequentialism, maintains respect for the executed person:

the murderer is paying the price for his actions, but we do not assume he is evil.

Furthermore, although a consequentialist can maintain that a person survives his

physical death in a legal sense – this must hold if we are to make sense of a person’s

Last Will and Testament – retributivists have a stronger idea of survival. This may

have theological roots, but a secular retributivist would recognise that a dead person

has a moral integrity that survives death.

We are using people

If we argue that punishment is intended to deter then are we not using people as

a means to an end – the end being to deter murder – rather than as ends in

themselves? Is this not a violation of their integrity? In itself this is an objection

entirely directed at consequentialists, because a retributivist would argue that a

person wills his own execution and is therefore acting autonomously. Certainly, if

you deliberately execute an innocent person – something which might be justified

on a very crude consequentialist theory (recall the example of a child murder) –

then it is hard to resist the objection that we are using someone. However, on a

more sophisticated consequentialist theory – one which incorporates the retributivist

intuition that only the guilty should be punished – a person would not be executed

unless we believed him to be guilty: in choosing to commit murder a person in effect

authorises his own execution. It should be noted that this objection to capital

punishment applies to all forms of punishment, unlike the first three, which were

objections specifically to the death penalty.

Capital punishment is arbitrary

This was at the core of Furman and although attention has now shifted to the mode

of execution (see later), it remains a concern that sentencing and execution is racially

biased: in the United States 80 per cent of death sentences are for the murder of

white people although 50 per cent of murder victims are white. The ethnicity of

the murder victim is the biggest predictor of whether someone will be executed.

Does arbitrariness matter? Van den Haag argues not: that some people (literally)

‘get away with murder’ is not an argument for refusing to execute any murderers

(Van den Haag, 1986: 1665). However, we need to make a few distinctions and a

relatively trivial example will help: there are speed cameras at various points along

a road and these are public cameras. Furthermore, drivers know that only every

tenth person will be fined (although the light flashes every time a speeding car passes

so no driver knows whether or not he or she is the tenth). We assume that the

‘every tenth driver rule’ is based on consequentialist reasoning: it is enough to deter

without overwhelming the police and courts. Is this arbitrary? No, for two reasons,

only one of which is analogous to capital punishment: (a) the ‘every tenth driver

rule’ does not discriminate on the basis of racial, gender or other such characteristics

(relative to the prevalence of speeding among any particular demographic); (b) the

chances are that speeders will eventually get caught (and the sanction is relatively

light). Capital punishment will always fall foul of (b) – you can only be executed

158 Part 1 Classical ideas