But as the Supreme Court has long said, and pointed out again on Monday, “the death penalty is different from other punishments in kind rather than degree.” And it is reserved for the worst murders. There’s a huge difference between taking someone’s money — even a huge amount of it — and taking away their very life. There’s just no proportionality there, in the context of current jurisprudence.

Of course, if you look at it with a coldly rational eye, there is in fact proportionality for the death sentence for even seemingly minor offenses. Take a pickpocket whose actions wind up delaying a Manhattan subway train for 15 minutes during morning rush hour. Let’s say the value of his life, as measured by lifetime earnings and nonmonetary contributions, is around $200,000. The jammed subway car has about 100 people inside already, so there’s about 1,000 people on that 10-car train. And the twenty trains behind that one are also being held up. So that’s 20,000 people who are losing 15, 20, 30 minutes of their lives as the delays build up. That’s about 400,000 minutes, or 6,667 hours. At an average of $50/hr in lost productivity as measured by wages or salary, that’s $333,350 in losses to society caused by his stupid little petty theft. That far outweighs the value of his life, so why not impose the death penalty?

Because we don’t value life this way in the context of punishment. There’s an intrinsic enormity of human life — any human life — that precludes a mere balancing of worth. Mere economic value like my (admittedly bizarre) example just now isn’t ever going to overcome that enormity. It will never look proportionate. Not to modern sensibilities.

The difference between that example and your proposal is one of degree, not of kind.

Arguendo:

The damage that white collar criminals impose on society is vast. Consider the number of families impoverished by the ENRON collapse and Charles Humphrey Keating’s American Continental Corporation and the Lincoln Savings and Loan Association frauds. Literally thousands of innocents have been irreparably harmed by these “white collar” criminal acts.

Consider the damage that the average murderer does to society – s/he takes a life and causes irreparable harm to the victim and a small circle of family, friends and community.

That said, we resolutely and routinely sentence murders to death for their crime.

What I suggest is that a penalty proportional to the harm inflicted by a white collar criminal demands nothing less than the ultimate penalty.

If the death penalty would ever be an effective deterrent it should deter the bright, privileged, educated and comfortable white collar criminal.

Would Madoff and Dreier have committed their crimes if Boesky and Milkin had been executed in the ’80s?