[Mb-civic] Justice for Moussaoui - Jeff Jacoby - Boston Globe Op-Ed

[William Swiggard]

  Justice for Moussaoui

By Jeff Jacoby  |  April 9, 2006  |  The Boston Globe

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 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 blind vengeance.

''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 sign 
of a nation ''acting out of fear and hatred."

But if the death penalty is revenge, so is life imprisonment. 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.

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. 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 
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.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/04/09/justice_for_moussaoui/
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