once! To avoid (b) you either abolish capital punishment or try to ensure that it is
consistently practised – but that is extremely difficult because every case is different.
On the other hand (a) can, in principle, hold but does not do so in practice:
sentencing is racially (and class) biased (relative to crime rates among different
demographics) (Nathanson, 1985: 153–4).
There are problems in selecting juries
Support for the death penalty is strong in the United States but there is still a
significant minority opposed to capital punishment. In addition, the USA has a strict
requirement to do jury service. This creates a problem: a person who has a profound
moral objection to the death penalty must either be forced to participate in a
practice they find repugnant, or else be excused service on this occasion, but with
the result that the jury is not representative of society. In a democratic society there
must be not merely a majority in favour of such a controversial policy but an
overwhelming one (as there is for jailing people: only a very small minority has a
principledobjection to imprisonment). This is indeed a problem and it illustrates
the danger of moving from the premise that ‘murderers deserve the death sentence’
to the conclusion ‘therefore, they should be executed’. This is a non sequitur: there
are considerations of legal process – of trying to operationalise the death penalty –
that make it undesirable to execute people.
Most murderers are not really responsible for their actions
Even if capital punishment were not arbitrarily imposed, it is a fact that murderers
are drawn disproportionately from the most disadvantaged sections of society.
Behind many murders there is a very sad story of neglect and abuse. Of course,
this objection to capital punishment applies to punishment in general – it applies,
for example, to the prison population. However, it could be argued that at least
prisoners can be reformed and education provided (literacy classes, anger manage-
ment and so on). Capital punishment, on the other hand, is final. This objection to
capital punishment derives from a more fundamental concern with personal
responsibility: are we responsible for our actions? Perhaps the most that can be said
in answer to this question is that (a) people are capable of formulating reasons for
their actions, even if they are bad reasons, which suggests that we do not just act
on instinct; (b) people learn from their mistakes, so that human beings are self-
correcting beings; (c) people want to be held responsible for their actions: the test
of responsibility is not whether a person could have done other than he did – the
obsession in the free will–determinism debate – but whether he accepts responsibility
for his actions (Dennett, 2003: 220–2). A person who really does not want to accept
responsibility is most likely a person who is not, in fact, responsible for his actions
and we judge him to be suffering from ‘diminished responsibility’ and make him a
subject of treatment rather than punishment.
Capital punishment is cruel
The recent debate over the death penalty in the United States has focused on whether
a person suffers a very high level of pain when he is executed by lethal injection.
Chapter 7 Punishment 159