The news that Zacarias Moussaoui had not received the death penalty came as a relief. Despicable though the man might seem, his trial made it clear that however desperately (and ghoulishly) he wants to take responsibility for 9/11, his logistical connection to the events of that day was tenuous. Since under federal law, the death penalty is handed out only for murder or for proven involvement in a conspiracy to murder, the sentence appeared to reflect a happily rational judgment by the jurors, rather than a visceral hunger for national revenge.
Yet look closely at the New York Times' coverage of Wednesday's sentencing decision, and a striking fact confronts you: Of the mitigating factors named in the sentencing decision, the Times reported, nine of 12 jurors checked off Moussaoui's "unstable early childhood and dysfunctional family," and "his being placed in orphanages and having a home life without … emotional and financial support." Nine of the 12 also pointed to the fact that Moussaoui's "father had a violent temper and physically and emotionally abused his family." Only three checked off that Moussaoui's role in 9/11 was, if anything, "minor," or cited as a factor that he had "limited knowledge of the 9/11 attack plans." In other words, the jury implicitly attributed Moussaoui's demonstrable imbalance largely to a traumatic childhood, rather than to a confluence of other factors (among them, say, biological determinism, or the inflaming influence of fundamentalist Islam).
What Alan M. Dershowitz dismissively called the defense team's "abuse excuse"—enjoining jurors to turn a deaf ear to it—seemed to have won the day. The primary reason Moussaoui shouldn't be killed, jurors evidently feel, is that he had a childhood right out of Oprah. It seems easy, at first, to see why American jurors would be swayed by such considerations: The portrait drawn by Moussaoui's lawyers was of a poor family traumatized and splintered by their position as marginalized Muslims in an intolerant French society, and of a violent father who beat his wife and his daughters.
Nonetheless, the childhood-abuse defense that saved Moussaoui is usually not a particularly successful tactic with death-penalty juries, though it is frequently evoked. As scholar William Bowers and others showed in a study published in the Cornell Law Review, childhood abuse was the least influential of the mitigating factors rated as "very important" by former death-penalty jurors. According to the study, 63 percent of jurors cited as "very important" their lingering doubt about the defendant's guilt; 44 percent cited mental retardation; 44 percent cited mental illness; and 38 percent cited the defendant's being under 18. But only 26 percent agreed that being seriously abused as a child was a "very important" mitigating factor.
So, why were the jurors in the Moussaoui case—where you might have expected jurors to be especially hard-nosed—so receptive to this idea? Perhaps what the Moussaoui jury's rationale really reflects is a desire to see Arab anger at the United States as something we can understand in the familiar terms of our own therapeutic narratives—as something shaped in the way that emotions and allegiances are shaped here in our country. The abuse Moussaoui suffered as a child is horrifying, but it's no worse than that of many death-row inmates whose past was not deemed "mitigating" when it came to their sentencing phases. That jurors made Moussaoui one of the exceptions suggests that we're still trying hard to understand the level of anger directed at us by Muslims, unable to merely accept it as largely the product of religious belief. It is hard—maybe even impossible—for us to grasp what it is like to be a Muslim in a Muslim society battling a demon America. It is easier for us to understand the impact of oppression, and of what it might be like to be driven mad by the pain of watching your weaker family members harmed. The Moussaoui decision represents a final effort to avoid demonizing an alien culture by, in a sense, domesticating it.
Moussaoui himself reportedly called his defense strategy "a lot of American B.S." Dershowitz wrote that "impoverished French Muslim syndrome" is not an excuse for becoming a terrorist. It's not. But might it be a reasonable mitigating factor—in this instance, at least? The real reason for Moussaoui to evade the death penalty, of course, is not that we can empathize with the horrors of his childhood, but that there simply is not enough evidence that Moussaoui was concretely involved with 9/11. Still, in acting out this fantasy of forgiveness and empathy, the jury was able to overcome the fantasy of revenge that led to this situation in the first place. As Dahlia Lithwick argued back in April, the playing out of the death-penalty phase reflected the fantasy that somehow we could correct our own government's oversights—only it dovetailed all too neatly with the martyrdom fantasy of the defendant himself, who had waxed enthusiastic about dying in battle rather "than in a jail on a toilet." It's important to be wary of secularizing the motives of religious terrorism, yet in this case, the man on trial is crazy, and his delusions ought not to tempt us into playing into his own hands. For once, two wrongs helped make a right.
Thanks to Richard Dieter of the Death Penalty Information Center.