The Sentence of Death

The Most Privileged Actors Deserve the Most Severe Punishment

By B. Sidney Smith
Counter Punch
August 27, 2012

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 privilege
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

http://www.counterpunch.org/2012/08/24/the-sentence-of-
death/