I have always been a skeptic about the deterrent effect of punishment. But in a recent argument before the Supreme Court, in a case in which a prosecutor seeking the death penalty implored the jury to "send a message" to like-minded, potential offenders, Justice Kennedy said deterrence is one of the reasons we have the death penalty. If deterrence is a proper goal of sentencing, would not a severe sentence upon a celebrity such as Paris Hilton or a high public official such as "Scooter" Libby serve that purpose, because the world would be watching and the message would receive far wider dissemination than with some unknown defendant.
Likewise, should not a judge take into consideration that a person who has had every advantage that money, education, position and power can offer, nonetheless violates the law? Would it be inappropriate to treat that person more harshly than the person who has had none of those advantages? Should not a well-educated person holding a high position in the government receive a harsher sentence for obstruction of justice and perjury than an unemployed, uneducated street criminal?
The judge in the Hilton case also might have wanted to dispel the common perception in this country that the rich and powerful can escape the consequences of their actions, while the poor and minorities must suffer punishment for their conduct. We make distinctions all the time in sentencing. We treat the man who robs the grocery store to feed his family differently from the one who does it to feed his drug habit. The crime is identical, but the motive is not.I spent 15 years imposing sentences---in the hundreds, maybe in the thousands. There is nothing more difficult or agonizing for a judge. Equal treatment under the law is an elusive concept. We do not want the rich and famous to receive leniency because of their status, but is there some justification to treat them more harshly because of it?