Right verdict, wrong reason

By Charles Krauthammer Published:

By Charles Krauthammer

WASHINGTON -- I am no great fan of the death penalty. I oppose it in almost all cases, though not on principle. There are crimes -- high, monstrous and rare -- that warrant the ultimate sanction.

Not because it is a deterrent; the evidence for deterrence is very equivocal. And not, as our Oprah-soaked sentimentalism suggests, in order bring closure to the victims family. Family has nothing to do with it. It is The State v. The Miscreant, not the family v. the miscreant. And punishment is meant to do more than just bring order to the state; it brings moral order to the universe. Some crimes are so terrible that the moral balance of the universe remains disturbed so long as the perpetrator walks the earth.

Eichmann, for example. Or, at the lower end of the scale, Timothy McVeigh. Goering was an excellent candidate until he cheated the hangman by poisoning himself in prison. So is Saddam Hussein, champion mass murderer of our time, whose execution will bring a modicum of rebalance to the universe.

But a civilized society should be loath to invoke the death penalty for anything short of that. Theres a remarkable passage in the Talmud that says that a Sanhedrin (high court) that executes a person once in seven years is considered murderous. One sage says, once every seventy years.

Does Zacarias Moussaoui meet that kind of high standard? I think not. Had I been on the jury, I too would have voted for life in the Colorado Supermax. But not for the reasons most of the jury cited.

In the Moussaoui case, there were three plausible grounds for mitigation: insignificance, lunacy or deprivation. Insignificance would have been my choice. Moussaoui was hardly even a cog. If he had any role in 9/11, which is doubtful, it was very peripheral. He was a foot soldier in an army of evil, but he never got a chance to practice his craft. That warrants life, not hanging.

The government tried to argue that if he hadnt lied to the FBI, the 9/11 plot would have been discovered and lives would have been saved. But if youre going to execute someone, you ought to prove commission, rather than omission. Albert Speer knew a lot more about a lot more killing, and yet the Nuremberg court spared him execution. Its hard to argue that Moussaoui was a greater monster than Speer.

Yet the bit-player argument seems to have been a mitigating circumstance for only three of the 12 jurors. And none cited a second possible factor, weaker than the first but still plausible: psychosis.

As one of the few who favored John Hinckleys acquittal on grounds of insanity, I take delusions and paranoia pretty seriously. Hinckley was a marginal insanity case, as was Moussaoui. The extreme case is the guy who is delusionally convinced that your head is a pumpkin before he proceeds to open it with a machete. The harder case is the guy who is delusionally convinced that Jodie Foster is in love with him and that to consummate the romance he must shoot the president.

Moussaoui is more in that equivocal Hinckley category. He clearly is delusional, but he is also clever, aware, and savagely cruel, as he demonstrated in taunting the 9/11 families. Nonetheless, he seemed to me just deranged enough to be spared execution on an admittedly close insanity call.

But that appears not to be why the jury spared him. Instead, fully nine of 12 jurors found mitigation in his unstable early childhood and dysfunctional family, lack of structure and emotional and financial support and hostile relationship with his mother. Plus the father with the violent temper.

You read that jury form and you despair for your country. Have we sunk so low? So Moussaoui had a tough childhood. Im sure Pol Pots was no bed of roses either. Who gives a damn? On those grounds, there is not a killer in history who cannot escape judgment. What next? The Twinkie defense -- the junk food made me do it -- for Khalid Sheik Mohammed?

The Moussaoui verdict came out right, but the process was atrocious. The jurys reasons for mitigation were risible. And the entire process was farcical, a four-and-a-half-year charade manipulated by a self-declared terrorist gratuitously given a world platform by those he was working to destroy. We need no more lessons in the obvious: Civilian court -- with civilian procedures, civilian juries and civilian sensibilities -- is not the place for those who make war upon us.

2006, The Washington Post Writers Group

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