No death for Moussaoui

Justice: Emotions of Sept. 11 don't merit expanding federal death penalty standard.

March 21, 2002

IF HE is found guilty, how gratifying would it be to see Zacarias Moussaoui, the so-called 20th hijacker from Sept. 11, get what he deserves? To see our government render the same judgment against him that he and his buddies passed over some 3,000 innocents in New York and Washington six months ago?

Payback, revenge, call it what you want. There's just no denying the visceral feeling that death is the only appropriate punishment if this turns out to be the one living soul who can be held directly responsible for the terror that has caused so much pain to so many Americans.

But that's not a reflection of our better instincts -- or this nation's predilection for justice over naked reciprocity. It's certainly no way to conduct federal law.

Whatever links can be established between Mr. Moussaoui and the other hijackers, whatever plotting or abetting he engaged in before this crime unfolded, there's one fact that can't be disputed: He did not commit the acts that killed. He was in jail when they happened.

If there were a case to be made for the execution of conspirators, this would be the case. But putting Mr. Moussaoui to death would constitute a grotesque expansion of the concept behind both federal and state standards for ultimate punishment.

It could open the floodgates for capital prosecutions against low-level participants or hapless helpers who might not even have had the intent to kill. Anyone who meets the legal definition of a "conspirator" might qualify, according to legal experts.

That would chip away at our national sense of morality in a way that mocks the memories of those who died on Sept. 11. And it would make us that much more like the enemies we're trying now to defeat.

Earlier this week, federal prosecutors acknowledged that they would like to seek death against Mr. Moussaoui if the Justice Department says it's OK. Already, they've greased the skids a little to increase their likelihood of success.

Even though Mr. Moussaoui was arrested trying to buy flight simulator time in Minnesota (he's the one who wanted to learn only how to steer) and was originally charged in New York, his case was moved to Virginia in December.

Citizens of that state tend to poll much more heavily in favor of the death penalty than the nation at large, so prosecutors might have a smaller hurdle to clear with a jury on the idea of expanding capital punishment this way.

Virginia -- like Maryland -- is also a member of the 4th U.S. Circuit Court of Appeals, widely known as one of the nation's most conservative benches and one that has rarely eyed a capital conviction it couldn't rubber stamp.

No doubt, many people think that's fine, and we would be the last to argue that Mr. Moussaoui deserves any form of leniency.

But the crimes with which he is charged aren't what the death penalty is for. In modern legal history, it has been used almost exclusively to punish killers, those who actually commit the acts that take life.

No state makes it applicable to those who plan, discuss or talk about murder but fail to actually carry it out. And federal death penalty law, though it contains provisions for conspirators, has never been used that way.

Former Attorney General Janet Reno -- the first to deal with a revived federal death penalty statute -- confined prosecutions to the narrowest of eligible defendants, the worst of the worst.

But federal defense attorneys say current Justice Department chief John Ashcroft has expanded that universe to include many criminals for whom death is not so clearly appropriate. He has also ordered federal prosecutors to seek the death penalty (even though they didn't request it) at more than twice the rate Ms. Reno did. The Moussaoui case would mark an even lower threshold for capital prosecutions. It would essentially constitute a warping of current law to justify a nation's outrage over the Sept. 11 tragedies.

That wouldn't mark the first time the Bush administration has disappointed by using the terror attacks to rationalize the suspension of legal rights. But it would be the worst.

The Justice Department would be better off here seeking a more appropriate sentence -- and sparing Americans a further degradation of the values they hold dear.

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