It isn't clear to me that Zacarias Moussaoui deserves the death penalty. And it isn't clear to me that he doesn't.
On the one hand, the Al Qaeda conspirator admits he was involved in a savage plot to kill many innocent Americans; he
knew about the attacks planned for Sept. 11, 2001, and lied when he was arrested so they could proceed unimpeded. On the
other hand, the federal government failed to follow up the leads it already had about a possible terrorist hijacking; it is not at all
clear that 9/11 would have been prevented had Moussaoui told the truth. In short, there are serious arguments to be made for
and against putting Moussaoui to death. It will be for the jury to decide what justice requires.
Already, the jurors have spent more than a month hearing testimony in this case. Last week they deliberated for 16 hours
before concluding unanimously that Moussaoui's crimes made him eligible for the death penalty. Now, in the trial's second
phase, they will have to consider whether the aggravating factors of those crimes, such as the cruel and terrifying nature of the
victims' deaths, outweigh any mitigating factors, such as Moussaoui's apparent mental instability. The jurors will be spending
most of the next two months listening to often-wrenching testimony from dozens of witnesses. Then will come more perhaps
many more hours of deliberation as they attempt to reach a just verdict.
By that point, not many people will be better qualified to decide what "a just verdict" means in the context of United States
v. Moussaoui than the 12 men and women who will have invested so much time and effort into absorbing the evidence,
studying the witnesses, considering the arguments of the prosecution and defense, and applying the law as instructed by the
judge. Under the American system of due process, the verdict they reach (while subject to appeal) is presumed to be the right
one. If the jurors all agree that Moussaoui should be executed, their agreement will signify that for this particular defendant, in
these particular circumstances, the death penalty was what justice required.
Those who call for abolishing capital punishment, therefore, are really calling for reducing the options available to juries to do
justice. Less justice can hardly be in society's best interest.
Nonetheless, opponents of capital punishment argue that putting Moussaoui to death would amount to nothing more than
"Revenge . . . is sweet," writes Nicholas Coates, an editor at Gulf News; it "is what Americans want more than anything
else." Washington Post columnist Richard Cohen labels Moussaoui's trial "a laborious procedure to carry out what most of us
recognize is nothing more than revenge. Call it justice if you will, we all know what it really is." Elizabeth Hayden, whose
husband was among the murdered passengers on United 175, argues that the death penalty is "pure vengeance," the mark of a
nation "acting out of fear and hatred."
But if the death penalty is revenge, life imprisonment must be revenge as well. How can it be "pure vengeance" to execute a
man, but not to lock him behind bars for the rest of his life? Especially if, as some death penalty critics claim to believe, life in
prison is actually worse than death? A dictionary definition of vengeance is "infliction of punishment in return for a wrong
committed." By that standard, every punitive sanction from a parking ticket on up is a form of revenge. Eliminate the element of
retribution from the penal code, and a lot of prison cells would stand empty. Is that what the opponents of "revenge" have in
Defendants in death penalty cases are no more threatened by runaway emotionalism and rage than any other criminal
defendants. Like every accused criminal, they are shielded by due-process provisions that are specifically designed to take
revenge and hatred out of the legal process. Indeed, death-penalty cases are characterized by "super due process," from the
fine-tooth screening of potential jurors to the mandatory consideration of mitigating factors to the years of appeals that typically
follow any death sentence. Just two weeks ago, the judge in Moussaoui's case suppressed a very large chunk of the
prosecution's case when a government lawyer was found to have improperly contacted witnesses. Was that the act of a
criminal-justice system acting out of fear and hatred, hellbent on putting Moussaoui to death?
Of course not. It was just another illustration of the gulf that yawns between Al Qaeda's values and ours. Those the terrorists
put to death are always innocent, always denied due process, always the victims of hatred and revenge. But Moussaoui will not
be executed if he is executed without first being given a fair trial, an unbiased jury, and the right to appeal. There was no
justice for the victims of 9/11. For Zacarias Moussaoui, there will be.