What the Moussaoui Sentence Teaches About "Mitigating" Evidence

By MICHAEL C. DORF
Wednesday, May. 10, 2006

Last week, a federal jury in Alexandria, Virginia failed to reach unanimous agreement that Zacarias Moussaoui--who pled guilty to participation in the 9/11 conspiracy--should be put to death for his crime. Consequently, Moussaoui was sentenced to life imprisonment without possibility of parole. Although the jurors determined that Moussaoui's degree of complicity in the plot was sufficient to render him eligible for the death penalty, not all the jurors thought that execution was warranted.

No doubt the verdict left many Americans scratching their heads. Moussaoui had pled guilty to the crime of conspiracy and during the sentencing hearing, he brazenly took glee in the suffering his co-conspirators' acts had caused. If the only person to go before a jury for the single greatest act of mass murder in U.S. history does not deserve to die, who does? If we are going to have a death penalty for any crimes, how can we impose it on street criminals for drug deals gone bad, but not on the likes of Moussaoui?

I try to answer these questions below. I also discuss an intriguing suggestion that the jurors formally rejected, but that may, nonetheless, have played at least a subconscious role in their deliberations: the idea that execution was unwarranted because it would only make a martyr of Moussaoui and thereby invite further attacks.

The Application of Federal Death Penalty Law in Moussaoui's Case

Federal law permits the imposition of the death penalty for a specified list of crimes only if a unanimous jury first finds that the defendant is "eligible" for the penalty. The jurors found Moussaoui death-eligible because they determined that he satisfied two out of three of the statutory aggravating factors. Under federal law, a finding of even one such factor requires the jurors then to consider non-statutory aggravating factors, as well as all relevant mitigating factors, in order to determine whether a death-eligible defendant should actually be executed.

In the end, the jurors did not unanimously agree that a sentence of death was warranted for Moussaoui. According to the detailed sentencing form they returned to the judge, nine jurors thought that the abuse Moussaoui suffered as a child somewhat mitigated his culpability, while three jurors found that he was severely affected by racism. Three jurors--we do not know from the form whether these were the same three--were also concerned that Moussaoui was only a peripheral figure in the 9/11 plot and had limited knowledge of the attack plans.

Moussaoui's Abusive Childhood

Although nine jurors found that Moussaoui was subject to abuse as a child, it is not clear how many of them ultimately thought that this abuse was a reason not to impose the death penalty. The verdict form lists the number of jurors that gave affirmative answers to specific questions about aggravation and mitigation, but it does not break down the bottom-line vote.

Nonetheless, there is a fair probability that at least one juror was moved to spare Moussaoui based on his abusive childhood and experience of French racism against him as a Moroccan. If so, that is arguably a miscarriage of justice.

There is no question that Moussaoui's lawyers introduced substantial evidence that he had a harsh childhood and adolescence. He was beaten by his mentally unstable father, placed in orphanages, and then marginalized as a poor North African.

But as the prosecution pointed out, the vast majority of people subject to similar conditions do not become terrorists. Conversely, most capital defendants--including most capital defendants who are ultimately sentenced to death--have had troubled pasts. The question is not whether Moussaoui was a victim of abuse; he was. The question is whether the abuse was so severe as to differentiate him from other killers.

Indeed, there is a conceptual problem with the whole notion that suffering abuse as a child or adolescent should be seen as a mitigating factor when it comes to deciding what punishment to impose for crimes as an adult:

Some abuse victims are so damaged by the experience that they lose, or never develop, the ability to control their actions. Such persons cannot be held liable for crime --either because they cannot form the necessary mental state ("mens rea" in legal jargon) or because they qualify for the insanity defense. However, when a defendant who can, and has, been held liable for a crime, later offers evidence of an abusive childhood as a mitigating factor at the sentencing stage, we accept that the defendant is not such a person --that is, we accept that he has the capacity to make choices--but we do not hold him fully responsible for those choices. The abuse, rather than the defendant's will alone, in some sense is said to have caused the criminal act.

The difficulty with this idea is that all human conduct is, in the same sense, externally caused. Human character is always some combination of genetic and environmental factors, and nobody is responsible for either. The sociopath who is born evil no more chose to be born that way, than did the child who grew up to be violent as a result of repeated abuse. Thus, if the fact that external factors caused behavior mitigates responsibility at all, then it is unclear why it does not mitigate responsibility entirely.

Did the Jurors Contradict Themselves With Respect to Moussaoui's Complicity?

What are we to make of the fact that when it came time to decide whether Moussaoui should be executed, three jurors had doubts about his complicity in the 9/11 plot? Such doubts seem to contradict their unanimous finding that he was death-eligible, for in making the death-eligibility determination, they unanimously found, beyond a reasonable doubt, that Moussaoui "knowingly created a grave risk of death to one or more persons in addition to the victims of the offense," and that he "committed the offense after substantial planning and premeditation to cause the death of a person or to commit an act of terrorism." Yet when it came time to choose a sentence, some jurors found him insufficiently complicit to warrant execution. Apparently, as former federal prosecutor Andrew McCarthy observed, at least three jurors "had buyer's remorse."

Buyer's remorse is a plausible account of the sentencing determination if one assumes that in finding Moussaoui death-eligible, the jurors believed beyond any doubt that he was a central figure in the 9/11 plot. There are, however, at least two other possible explanations of the death-eligibility determination.

How Much Did Moussaoui Know About the 9/11 Plot?

First, the jury may have concluded that Moussaoui was sufficiently connected to the 9/11 plot to establish complicity, but that he was in the dark about key details relating to its horrifying scope and scale. Three jurors specifically wrote this explanation onto the verdict form. Perhaps they thought that Moussaoui was technically complicit in the plot as a whole, but only morally responsible for a small part of the damage it caused.

To be sure, this explanation runs contrary to Moussaoui's own statements during the sentencing hearing, in which he affirmatively boasted about the death and destruction the plot caused. But in light of the sketchy evidence the government itself produced tying Moussaoui to the 9/11 conspiracy, and Moussaoui's own obvious emotional instability, the jurors could well have concluded that his boasting was mere grandiose puffery (albeit of a despicable sort).

Residual Doubt

Second, whatever the degree of connection the jury concluded existed between Moussaoui and the 9/11 hijackers, at least some jurors may have found that connection beyond a reasonable doubt but not beyond all doubt. In other words, these jurors may have had "residual doubt" about Moussaoui's involvement in the crime at all.

The notion of residual doubt is straightforward enough. Proof beyond a reasonable doubt can still leave a lingering doubt. A juror nagged by residual doubt reasons more or less as follows: "I'm very sure this guy is guilty. Thus, he can be locked up for life. But I'm not absolutely, 100% sure. It's at least conceivable that new evidence could surface showing he's innocent. Hence, I don't want him executed, just on the tiny chance that such evidence surfaces and he should be freed."

Earlier this year, in Oregon v. Guzek, the Supreme Court suggested (but technically did not decide) that a capital defendant has no right to present evidence at his sentencing hearing aiming to establish "residual doubt" about his guilt. Moreover, the verdict form did not expressly ask the Moussaoui jurors about residual doubt. Nonetheless, the pattern of answers given by at least three jurors suggests that such doubts may have played a part in the ultimate verdict.

The Relevance of Moussaoui's Hope for Martyrdom

Perhaps the most intriguing explanation for the Moussaoui verdict is formally ruled out by the verdict form. The form asked the following three questions: (1) Should Moussaoui be spared because life imprisonment would actually be a harsher form of punishment than execution? (2) Should Moussaoui be spared because he actually desires martyrdom and the rewards he believes it entails? (3) Should Moussaoui be spared because executing him would make him a martyr for al Qaeda? Not a single juror answered "yes" to any one of these questions.

Still, we cannot be sure--indeed, the jurors themselves cannot even be sure--that factors such as these played no role at all in the jury's ultimate conclusion. The defense attorneys emphasized in their closing the perversity of imposing the death penalty on one who openly hopes to die for his cause, and Moussaoui's own self-defeating conduct during the sentencing hearing would have led the jury to wonder whether he was not, in fact, angling for a death sentence.

Thus, we are left to contemplate for ourselves whether it is proper for a death penalty jury to consider a defendant's hope for martyrdom, or to consider how his fellow conspirators still at large might react to a death sentence.

How to Weigh the Defendant's Wish to Die

Clearly, a defendant's wish for the death penalty ought not to count as a reason in favor of its imposition. Although we permit defendants to cooperate in their own executions by waiving various procedural rights, such as appeals, it is still up to the jury (or in states in which capital sentencing is solely the judge's prerogative, the judge) to decide whether a death sentence is warranted in the first place. And that decision should be based on the defendant's crime and character, not his wishes. To impose a death sentence because the defendant desires it, is nothing more than jury-assisted suicide.

Conversely, a defendant's wish for the death penalty may seem like it could count as a reason against its imposition. Punishment is perhaps the most important goal of sentencing, and denying a defendant what he wants certainly seems punitive, at least if what he is actually given--in Moussaoui's case, life imprisonment in a super-maximum security prison with virtually no contact with other human beings--is itself highly undesirable.

Here too, however, it is hardly clear that the defendant's wishes should be deemed relevant, mainly because of the risk of manipulation. Moussaoui's willingness to play the role of a suicide bomber and his inflammatory conduct during the sentencing hearing indicate that he wished to be sentenced to death; yet his statement after the verdict--"America, you lost, I won"--muddies the picture. More broadly, a rule of law that permitted sentencing juries to count a defendant's wish to receive the death penalty as a reason not to impose it, would simply encourage defendants to feign eagerness to die.

The Relevance of External Reaction

At one level, the fear that execution of the defendant will inflame his sympathizers, and thereby lead to further violence, seems obviously relevant to the question whether to impose the death penalty. Many people who support the death penalty do so because they believe it deters future crimes, and so if, in particular cases, it appears that a death sentence will likely have the opposite effect, shouldn't that count as a reason to spare the defendant?

Perhaps not. For one thing, the evidence of the death penalty's deterrent effect is weak. Most serious defenders of capital punishment these days rely on theories of retribution (and, where there is a risk of the defendant's perpetrating violence in prison, they describe death as the ultimate form of incapacitation). And as far as retribution is concerned, the likelihood of further acts of violence by others is simply not relevant.

Moreover, to consider the possible reaction of al Qaeda to the execution of one among its number is to succumb to a kind of blackmail. The Supreme Court's capital jurisprudence is all about making sentences proportionate across cases. As between two otherwise equally death-worthy defendants, it hardly seems fair to say that the one supported by a network of terrorists threatening further harm should be spared, while the other one should be executed.

And yet, there is something perverse about imposing a sentence that is likely to lead to further violence against innocents. We appear to have here a clash between two forms of proverbial wisdom: On the one hand, let justice be done though the heavens may fall. On the other hand, don't cut off your nose to spite your face.

My own tentative judgment in this matter is that the Moussaoui jury got it just about right. As a practical matter, we cannot--nor should we expect jurors completely to --ignore a likely adverse reaction to their verdict by the public, or even by a terrorist network. But that does not mean jurors should expressly invoke such considerations in adopting a sentence or, in a guilt-phase proceeding, in deciding whether to convict.

If I'm right in that judgment, then it makes no sense even to ask the jury whether possible further violence in response to a death sentence has mitigating force. Whatever else we make of such a risk, there is no meaningful sense in which Moussaoui's connection to al Qaeda should count as mitigating his responsibility for the 9/11 crimes, however much responsibility he did or did not bear.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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