Here's a question for people who deny that the modern American death penalty is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.
Suppose that the State of Texas passed a law to make truly massive Enron-level corporate fraud punishable by death. Could that law be constitutional? Or would executing property criminals be considered cruel and unusual punishment?
Executing Enron executives may sound extreme, but lets consider for a moment the true scale of the wrongdoing by Ken Lay and his cronies at Enron. I would argue that if you support the death penalty at all, you should support capital punishment for the top-level Enron execs.
I don't support the death penalty, but if I did, Kenny Boy would have been first in line. Ken Lay did far more harm than the average murderer, or even the average terrorist. He left thousands of people destitute, including workers whose pensions evaporated and students whose college savings disappeared. How many people will die in poverty because of Lay? How many students lost the opportunity to go to college because of the Enron swindle? How many lives were shortened because the innocent employees of Enron and Arthur Andersen lost their jobs and health benefits?
On the larger scale, Lay's crimes also undermined trust in the stock market. His influence peddling damaged the integrity of American government. Enron money helped the Republicans take the White House. It's not for nothing that Kenny Boy got to sleep in the Lincoln Bedroom.
Let's not forget that Enron inflicted deliberate power outages in order to extort money from the energy consumers of California. Did anyone die as a result? If you kill someone in the process of holding up a liquor store in a death-penalty state, you're liable to be executed for your crime, even if you didn't intend to kill the victim.
If the severity of the punishment is supposed to be proportionate to the severity of the crime, Ken Lay did enough harm for capital sentence, several times over.
In practice, applying the concept of felony murder wouldn't work for massive white collar crime because there's too much diffusion of responsibility. Unless the state were prepared to execute a very large number of equally complicit people, it would be unfair to single Ken Lay out for death because a pedestrian got run over during an illegal power outage, or because a patient on a respirator died when the power went off during one of Enron's extortion attempts.
However, I don't see why people who already support the death penalty for "the worst of the worst" shouldn't include truly massive and unremediable white collar frauds as among the worst possible offenses.
My purpose here isn't to argue for the expansion of the death penalty. In fact, I'm an abolitionist. However, I'm curious about the implications the concept of evolving standards of decency for reviving capital punishment for extremely harmful property crimes.
Most contemporary Americans have a strong intuition that capital punishment should be reserved for cold-blooded killers. The idea that the state might execute someone for a theft or a swindle, no matter how large, strikes them as barbaric. Punishing petty theft by death is a classic example of a punishment that might have been acceptable to the community in its day, but which has become cruel and unusual in light of our evolving standards.
So, the question for discussion is this: If you deny that the death penalty in America today is cruel and unusual, what would you say about the right of a state to expand the death penalty to include those convicted of massive property crimes that caused extreme harms to large numbers of individuals and to society as a whole?