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The Sentence of Death

I was a staunch opponent of the death penalty, but in recent years I have had a change of mind on the issue. I now support the death penalty, but only for the privileged. This is not meant to be funny.

There are generally two arguments made in favor of the death penalty: deterrence and proportionality. The deterrence argument is really about defending the public welfare, the idea being that if a would-be perpetrator of capital crimes knows it might mean their death if they are caught, they are less likely to commit such crimes. The proportionality argument has to do with retributive justice; some crimes are so horrific, it is argued, that justice can only be served by the ultimate punishment.

Neither of these arguments is supportable in the present system, which is partly why I previously opposed the death penalty. The overwhelming majority of death sentences are handed down for crimes committed by persons who did so at least in part out of some sort of mental defect. I don’t mean insanity, exactly; in most cases it is a mix of ignorance, sociopathy, post-traumatic stress, psychopathy, or schizophrenia—any of which are likely brought on by conditions beyond the control of the perpetrator.

Also in many cases the capital crime was occasioned by some form of extreme emotional or physical duress, despair, or desperation. This is as true of the private aggravated murder as it is of the mass murder, such as the recent ones in Colorado, Wisconsin, and Norway. In no such case is the death penalty’s deterrence potential likely to be a factor in the perpetrator’s cogitations, and to the exent that it might be it is surely countered by the implicit endorsement of societal violence that state-sanctioned killing represents.

The proportionality argument fails on two counts. First, to be just, the degree of punishment must be independent of any factors other than the crime committed and its circumstances. But it is incontrovertible that the likelihood of receiving the death penalty in the present system depends not on the crime but upon the race and economic status of the defendant.

Second, a crime that results in at most a few dozen deaths may attract the death penalty but a crime that results in thousands of deaths, say by falsifying research results in order to rush a new drug to market, goes effectively unpunished. This cannot under any analysis be considered proportional.

However, when it comes to persons who occupy top leadership positions in the public or private sector, or to those whose great wealth itself establishes them in positions of extraordinary privelege (the categories of course overlap quite a bit), both the deterrence argument and the proportionality argument have great merit.

One generally cannot become privileged without being a rational actor. Indeed, leaders and the financially successful must be capable of determining to a very fine precision the effects and consequences of their actions. They are perhaps best able to weigh the possible repercussions of their choices against their perceived benefits. For such a person the knowledge that a given choice might mean their life is highly likely to be a factor in their decision whether to commit a capital crime. The death penalty for such men and women is, in short, apt to be a deterrent, in most cases a very strong one.

Moreover, while the lone deranged gunman may mow down dozens in a manic rage, this is very small potatoes next to the mass death and destruction that the privileged may visit upon their victims. The corporate CEO or bank president who destroys the household savings of millions in the service of his own greed, the politician who visits the devastation of war upon whole societies in service to corruption and ambition or who betrays his oath of office by subverting the rule of law and weakening the very fabric of democratic government—measured by their harm these are the crimes of greatest proportion, and surely call for the greatest punishment society deems fit to impose. Surely, too, these are the crimes that we should most wish to deter.

There is ample precedent for reserving to the most privileged actors the most severe punishments. The Nuremburg trials of World War II are perhaps the foremost example of the principle in action: it was not the mid-level managers overseeing the Holocaust, nor the guards at the camps, but the top leaders who were hanged, to the general approval of the civilized world.

Even contemporary Americans recognize the validity of this principle—at least when it is applied to others—as shown in the outpourings of public approval at the hanging of Saddam Hussein and the execution in captivity of Osama bin Laden.

In a just society it is not the weakest transgressors who suffer the severest public wrath, but those who by dint of previlege can betray the greater trust and bring the greatest harm. In our society it is reversed: those least able to defend themselves are likeliest to meet the executioner, while our most privileged miscreants have become effectively immune to legal justice. It is past time to restore the proper balance. Let responsibility attend privelege, let accountability be the mantle of leadership, and let culpability be the measure of our retribution.

B. Sidney Smith is a recovering math professor, gardener, and creative loafer. He may be reached through his website, bsidneysmith.com.

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