Whether Zacarias Moussaoui received the death penalty or life imprisonment was never a big issue for me. What was appalling, however, was the way the penalty phase of his trial was conducted.
First, there was the parade of witnesses, including former New York Mayor Rudolph Giuliani, testifying as to the horrifying consequences of the 9/11 terrorist attacks and the terrible pain of those whose loved ones were killed.
What was the point of all this? We already know that murder is a bad thing, big time, not only for the victims but also for those survivors who loved the victims and will carry the emotional scars for years.
That is why there are laws against murder on the books in the first place.
There was a time when murderers were hanged or electrocuted without any of these emotional tabloid TV scenes in the courtroom — and without years, or even decades, of delay while all sorts of legal hand-wringing and nit-picking goes on in the appellate courts.
With our courts often so overcrowded that criminals are out on bail, walking the streets and committing new crimes, while awaiting trial on old charges, do we have the luxury of using up court time emotionalizing the obvious?
Are sentences supposed to fit the crime or to depend on what kind of show is put on in the courtroom?
A rational case could have been made for either the death penalty or life imprisonment. My own preference would be for an automatic death sentence for members of international terrorist organizations.
Talk about "life imprisonment without the possibility of parole" is misleading. There is no such thing as life imprisonment without the possibility of a liberal president being elected and issuing a pardon or an amnesty.
There is no such thing as life imprisonment without the possibility of escape — or of killing a fellow prisoner or a guard. For members of international terrorist networks, there is no such thing as life imprisonment without the possibility of fellow terrorists taking dozens of hostages and killing them if their guy is not set free.
The actual legal basis for the death penalty in the case of Zacarias Moussaoui was that he failed to tell authorities about the impending 9/11 attacks — and thereby contributed to the death of the thousands of victims of that attack.
If we want to repeal the Fifth Amendment against self-incrimination, then let’s talk about that. But so long as the Fifth Amendment is part of the Constitution, a failure to tell all hardly seems like a basis for a death penalty.
None of this, however, seems to have been the real reason for not imposing the death penalty on Zacarias Moussaoui. Among the reasons apparently taken into consideration, according to the New York Times, was "his troubled upbringing in a dysfunctional immigrant Moroccan family in France."
Are only people with blissful childhoods to be held fully accountable for their crimes? Do jurors have any way of knowing how many other people with unhappy childhoods never murdered anybody?
Even if we take a completely deterministic view of crimes — that they are all due to circumstances beyond the individual’s control — why should that lead to lesser punishments?
One of the factors we can control is punishment. But nothing a jury can do will stop people from having unhappy childhoods.
For centuries, we have quarantined innocent people who had some deadly dangerous and communicable disease through no fault of their own. Only in the case of AIDS did we stop doing this because of the political clout of the homosexual lobby.
The point here is that the safety of society usually overrides questions about some cosmic sense of justice for the individual. Jurors cannot act as if they were God on Judgment Day taking all individual circumstances into account. They are not equipped to do that and there is no point pretending that they are.
What people are equipped to do is show common sense. That is what our legal system is increasingly failing to do.