A DEFENSIBLE EXECUTION?
Why The Case Of Alleged September 11 Conspirator Zacarias Moussaoui Presents A Conundrum For Death Penalty Abolitionists

By EDWARD LAZARUS

Thursday, Apr. 04, 2002

The government has decided to seek the death penalty against Zacarias Moussaoui for allegedly conspiring in the terrorist attacks of September 11. Assuming Moussaoui is convicted, as it seems likely he will be, the question of what sentence he should receive will present those of us who are skeptical of how our system enforces the death penalty, but who are not categorically opposed to death as a form of punishment, with a difficult conundrum.

The events of September 11 present the paradigm case for why the death penalty is both morally and legally defensible. Some human acts are so inhuman, in their conception and result, that society has every right to express its moral fury by branding the perpetrators non-human and extinguishing their lives.

A civilized world is not degraded but enhanced when it declares that an Adolph Hitler or a Timothy McVeigh has forfeited his right to live. The masterminds of September 11 deserve no different fate. It is not clear, however, whether Moussaoui - who is charged as a co-conspirator, not an accomplice - deserves that fate as well.

Mercy Even For A September 11 Hijacker?

In my view, the moral arguments that even the September 11 hijackers, had they lived, should not have been executed, are both weak and counterproductive. They remind me of the 1976 oral argument in Gregg v. Georgia, when the Supreme Court was reconsidering the death penalty ban it had imposed four years earlier in Furman v. Georgia.

Anthony Amsterdam, the dean of the anti-death penalty bar, was arguing that the ban should be upheld. Justice Lewis Powell, a potential swing vote, asked whether Amsterdam "could conceive of any crime as to which you could consider the death penalty an appropriate response." Amsterdam said no.

What about air piracy resulting in hundreds of deaths, Powell inquired, or "if some fanatic set off a hydrogen bomb and destroyed New York City?" Still Amsterdam said no.

To such responses (which led one Justice to comment caustically "Now I know what it's like to hear Jesus Christ."), I can only retort: Why on earth not? Is it really more "civilized" to lock people who commit such unconscionable acts in jail for the rest of their lives, than to take their lives as the moral price for their inhumanity? I think not.

Why a Death Sentence for Moussaoui is More Troubling than for a September 11 Hijacker

But to conclude that the terrorist murder of thousands of innocent civilians is a crime warranting the death penalty, does not wholly answer the question of whether the government should seek the death penalty against Moussaoui. As mentioned above, the government has not charged Moussaoui as an accomplice in the events of September 11. It has limited its charge to one of conspiracy.

Thus, while Moussaoui is widely known as the "twentieth hijacker," the government's charge does not reflect an intention to prove he fits that description. Indeed, the limited nature of the charge against Moussaoui raises troubling questions about the propriety of a death sentence in his case.

In the criminal law, the seriousness of an offense is determined by two variables: the nature of the act committed, and the mental state (or level of intent) with which the act is undertaken. Thus, the scale of punishment for an act with extreme consequences, such as homicide, is higher than the scale of punishment for acts intrinsically less serious in nature.

Similarly, with respect to the mental state variable, a defendant who committed a criminal act with a more culpable mental state will be placed higher on the scale of punishment for that crime than a defendant who acted with a less culpable mental state. So, for example, for the act of homicide, a defendant's punishment will depend on whether he acted negligently, recklessly, or with some degree of specific intent to kill.

To date, the Supreme Court has only countenanced the death penalty where the defendant both committed a serious criminal act, and also acted with a fairly high degree of intent. The leading case - and the one on which the government will no doubt rely in part when prosecuting Moussaoui - is Tison v. Arizona.

The Key Precedent of Tison v. Arizona, and the Importance of Specific Intent to Kill

In Tison, the two sons of a man imprisoned for murdering a guard broke their dad and his cellmate out of jail by smuggling guns into the prison and overpowering some guards. When their getaway car broke down, the sons flagged down some passing motorists. The group then robbed the motorists at gunpoint and drove them out into the desert. While the boys went to get some water for the captives, the father and his cellmate shot the motorists. The whole group then continued on with the escape.

The Tison case presented the court with an issue of punishment under the "felony-murder rule." At the risk of oversimplification, that rule provides that a person may be charged with murder if he participates in a felony and, during the course of that felony, a person is killed in a foreseeable manner. For example, suppose that two people rob a convenience store using shotguns. The cashier talks back to one of the robbers, who then kills the cashier. The other robber may be convicted of felony-murder, even if he never intended that a killing take place, so long as the killing was a foreseeable possibility.

The two sons in Tison were clearly guilty of felony murder. The killings occurred during the course of both an escape and an armed robbery. The critical legal issue was whether the Tison boys could be given the death penalty for that felony-murder even if, as the evidence suggested, they did not themselves intend for their compatriots to kill the motorists. (Why bother to go get water for people you are about to kill?)

Previous precedent suggested that the death penalty could only be imposed when the defendant had acted with the mental state of a specific intent to kill. In Tison, though, a closely divided Supreme Court relaxed that mental state requirement.

The Court ruled that that a person guilty of "felony-murder" who did not actually kill or intend to kill the victims, could nonetheless be put to death - if that person had a major role in the underlying felony and acted with the mental state of "reckless indifference to human life." Given the facts of case, under that rule, the Tison boys became death-eligible.

Comparing Tison With Moussaoui's Case

Commentators supporting the death penalty for Moussaoui are already touting Tison as governing precedent. Yet, on closer examination, the ruling sheds little real light on whether Moussaoui may be executed. Indeed, when you compare the act and mental state at issue in Tison with the act and mental state allegedly at issue in Moussaoui's case, the differences are stark.

The crime of conspiracy with which Moussaoui is charged requires two acts. First, Moussaoui must have agreed with at least one co-conspirator to commit the underlying offense charged - in this case, various terrorism-related offenses. Second, Moussaoui must be found to have committed one "overt act" in furtherance of the conspiracy - though this act need not itself be criminal and, indeed, can consist of almost anything. (An aiding-and-abetting charge would require greater involvement in the crime but, again, the government has chosen not to bring one.)

Recall the two death penalty variables - mental state and criminal conduct. Assuming that the government proves its case, Moussaoui will have been guilty of agreeing to commit a crime of monstrous proportions. Thus, he will have been proved to have had a highly culpable mental state. But in terms of his actual conduct, Moussaoui may be convicted of conspiracy for simply making an agreement and committing one overt act to further it. Attending a flight school or even purchasing a flight manual, alone, might count as the required act.

Now compare the situation of the Tison boys. Their mental state was not proven to have been anywhere near as culpable as Moussaoui's. But their proven acts - which included several violent felonies - were much more grave.

In short, Moussaoui's case (highly criminal intent must be proven; only minimal conduct must be proven) presents almost a mirror-image to that of the Tison boys (reckless intent proven; highly criminal conduct proven). As a result, the cases present dramatically different questions. And in my view, the question in Moussaoui's case is even harder to answer than the difficult question that the Court addressed in Tison.

Death for Acts Is Easier to Justify Than Death For Thoughts and Agreements

Tison asked: Can the death-penalty requirement of a highly culpable mental state be relaxed when a person has committed highly criminal acts? In contrast, Moussaoui's case asks: Can the death-penalty requirement of deep personal involvement in highly criminal acts be relaxed when a person's criminal intent is extreme?

I have serious doubts about answering "Yes" to the latter question. I am much more comfortable imposing extreme punishment for what people actually do, rather than what people think. And in Moussaoui's case, at least theoretically, the government's case could consist of his criminal thoughts plus only a single overt act. To me, that is not a sound basis for a death sentence.

Of course, Moussaoui's case is not theoretical. In evaluating the government's decision to seek the death penalty, the key question will be this: How much evidence does the government have of Moussaoui's substantial acts in furtherance of the 9/11 plot? If the government can show Moussaoui to have been an active participant who is not among the dead already only because of the fortuity of his arrest - for instance, if it can show he was, indeed, destined to be the "twentieth hijacker" and that he knew the scope of the mission - then the case for imposing the ultimate punishment may well be sufficient.

But what if the government's proof against Moussaoui, even if sufficient for conviction, consists of nothing more than a bare bones conspiracy case - say, some connection with an Al Qaeda paymaster coupled with flight school training? Such a skeletal case would leave a host of unanswered questions about whether Moussaoui was really involved in the 9/11 plot in any meaningful way as opposed to preparing for some other diabolical mission.

Some might argue that this is enough, that terrorists, even unsuccessful bit players, deserve to die. To me, that is a sentiment worth resisting. Once we set the precedent of executing mere conspirators to terrible crimes, that idea will be set adrift on the treacherous sea of death penalty prosecution. Our system of capital punishment, already rife with caprice and mistake, strains the moral fiber of our judicial system. We should aim to solve that problem, not exacerbate it.

In short, if Attorney General Ashcroft has sought the death penalty in a case with great emotional appeal but only borderline evidence, then he has done the country a disservice. Prosecuting this nation's terrorist enemies comes with the awesome symbolic responsibility of showing how a nation that observes the rule of law lives up to its principles in difficult times. Bending basic precepts of crime and punishment to achieve either the political gain or emotional satisfaction of executing Moussaoui will only hurt that greater cause.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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