In his commentary on Moussaoui's defense team's strategy for avoiding the death penalty, Alan M. Dershowitz casts a skeptical eye on using "demographics, socioeconomics, or history" as mitigating factors in the sentencing phase.
JohnLex7 and HLS2003 engage in a robust back-and-forth on the validity of the so-called abuse excuse, with JL7 attacking the very phrase as offensive:
Playing into the "popular" way of phrasing things is NOT a good thing for any lawyer, even as one as renowned and accomplished and famous as Alan Dershowitz. Take, for example, the phrase "the abuse excuse." That is shorthand that prosecutors always use to denigrate the mitigation evidence that a defendant puts on in a capital case. It completely mischaracterizes a) the evidence and b) the jury's role at this phase of the trial.
First, capital sentencing proceedings are designed to allow the jury to know everything about a defendant's life. This is obviously going to include the bad things that the defendant did (killed the victims of this crime, and committed other crimes) and the good things that the defendant did (helping little old ladies across the street). By necessity, it is also going to include evidence of how the defendant became the person he became. No human being arrives at the point of being the defendant in a capital trial after being in a vacuum his or her whole life. To believe that the things that happen to a person when they are young don't affect what they do when they are older is to reject reality. A favorite question of prosecutors to siblings who testify in these trials is "well, you were abused, and you didn't kill anyone, right?" That question is inane because even siblings do not have the same brain chemistry, did not have all the same experiences, and would not necessarily react the same way to the same stimuli. The evidence is not provided to "excuse" any behavior, it is provided to give the jury a complete picture of the person who is then before them, and whose life they now control.
The second problem with the phrase is that it implies that the default penalty that the jury must start with in a capital trial is death, and the only way not to impose death is if they accept some "excuse" for the defendant's actions. This position is completely legally incorrect. When a prosecutor tells the jury that the defendant is raising "the abuse excuse" he is telling the jury that the defendant has not presented sufficient evidence to allow you not to kill him. The burden at a capital sentencing proceeding, as in all other proceedings, is on the prosecution. By using the phrase "the abuse excuse," prosecutors subtly shift the burden to the defendant by implying that they have to show an "excuse" for their behavior in order to avoid a death sentence.
Expanding on Dershowitz's reasoning, HLS2003 writes:
…once you accept poor upbringing as a necessary condition, you also make it a relevant condition for prevention. This is his profiling point. Once you say that a lousy upbringing (or being an Arab, or being poor, or whatever) is a "necessary but not sufficient" condition to the commission of a heinous crime, and is thereby relevant for consideration in culpability, then you have admitted the relevance of necessary conditions as risk factors in crime.
Once you do that, the theoretical rationale against profiling collapses. (There may be prudential reasons against it that still survive, but they are much weaker). The theoretical rationale against profiling is that since being poor, or black, or Arab, or whatever is not a sufficient condition to determine anyone's crime propensity -- evidenced by the vast majority of people with those characteristics who do not commit crimes -- that it should not be permitted to incur suspicion.
JohnLex7 shoots back:
Sentencing decisions are supposed to be individualized. Yes, there may be a number of people who share his same characteristics, and yes, some of those people may not have reacted the same way that Moussaoui did, and some might have. Yes, some who don't look at the whole picture might use this evidence to stigmatize an entire sector of the population. But, the evidence of his upbringing, and yes, even the role that race played in his upbringing, is relevant to the jury's decision whether to sentence him to death, if sentencing is truly individualized. If, as has been stated, that the death penalty is supposed to be for "the worst of the worst" how are we to know if an individual is the worst of the worst without knowing what that individual has experienced throughout life?
Read HLS2003's response here.
mallardsballad thinks Moussaoui's lawyers have overlooked a potentially more compelling line of defense:
To use the abuse excuse on not only a self proclaimed terrorist, but someone who is considered "the other" is not only a desperate tactic on the part of the defense attorneys, but an incompetent one…
The better argument would be, that Moussaoui wants to be a martyr. That's all he has left. Like a lot of these terrorist losers, pride is everything to them.
Take that away from him. To him, execution is a celebrated warrior's death, with promises of those 90 virgins or whatever childish promises were offered to him. Let him rot away in a prison, where there are obviously no female virgins to molest.
… The only satisfaction the victims families would derive from his execution is that the state could have control over exactly when that would be and maybe he suffers a little. That's immediate gratification, but personally I'd like him to suffer a lifetime of the State's control over almost every aspect of his life, with no redemption.