Stumbling and Mumbling: What to do with Moussaoui?

May 05, 2006

What to do with Moussaoui?

In a post glib even by the standards of Harry's Place, David T reckons it's good that Zacarias Moussaoui is spared the death penalty. I don't see this at all.
Life in solitary imprisonment is not obviously a more humane punishment than death. Given the choice between the two, I think I'd prefer the death penalty. The Groan's claim that the sentence "was far more merciful than many expected" doesn't make sense to me.
Indeed, this was precisely John Stuart Mill's unjustly neglected argument. Capital punishment, he said, is "the least cruel mode in which it is possible adequately to deter from the crime":

What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards--debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet?

Second, there's the argument that, if we are to affirm the importance of life, we must sometimes kill those who murder. Peggy Noonan puts it well:

[The death penalty] says the deliberate and planned taking of a human life is so serious, such a wound to justice, such a tearing at the human fabric, that there is only one price that is justly paid for it, and that is the forfeiting of the life of the perpetrator. It is society's way of saying that murder is serious, dreadfully serious, the most serious of all human transgressions.
It is not a matter of vengeance. Murder can never be avenged, it can only be answered.

Nor is it obvious to me that keeping Moussaoui alive stops him being a martyr, except in the narrowest literal sense. Men in prison can be a more powerful rallying point for supporters than the martyr'd dead. In the anti-apartheid movement, "Free Nelson Mandela" was a more powerful slogan than "Remember Steve Biko."
I can only think of two reasons to want to keep Moussaoui alive, given that his guilt is beyond doubt. One is vengeance - life in solitary is a crueller punishment than death. The other is that the state just shouldn't take people's lives. But the guys at Harry's Place can't believe the latter, can they?

May 05, 2006 in Law & order | Permalink

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Technorati Tags: supermax, zacarias+moussaoui Earlier this week Zacarias Moussaoui, as we all know, was given a life jail term for his role in the 9/11 terrorist attacks: having prepared to participate and failed to alert the authorities while detained... [Read More]

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"The other is that the state just shouldn't take people's lives."

that seems like reason enough not to execute somebody.

Posted by: stu | May 05, 2006 at 04:27 PM

I think the death penalty, the question of whether it's right to take a life as punishment, is one of those issues where rational argument is almost irrelevant, it's a gut decision.

I understand the points about life imprisonment being worse and about asserting the sanctity of life. But I could still never agree with the idea of the state deliberately and legally taking a human life.

Perhaps there is no "fitting" punishment for some crimes?

Posted by: Matt M | May 05, 2006 at 07:04 PM

I like your last point. If it were chess, that would be a fork, no?

I don't have much sympathy for Peggy Noonan's sophistry, though. To "answer" murder with the death penalty is certainly to avenge it: vengeance is most definitely a response. Scapegoating comes into play, since we tend not to execute people who have merely made a contribution to killing: the act which is supposedly so beyond the pale. Munitions factory workers, for example.

Imprisonment looks like a complex business to me. It's surely possible in principle to separate the prophylactic element (making a repeat offense impossible), the deterrent element and the rehabilitation element. Prophylaxis doesn't have to involve making the experience of incarceration like "a living tomb", although deterrence might seem to call for that. And rehabilitation calls for the opposite. We could also usefully distinguish between "imprisonment without possibility of parole" and jail terms that are just very long. The latter must be, in principle, rehabilitative. So we're talking access to radio, television, newspapers, books; some sort of life of the mind. Even in the case of "life means life" sentences there's the possibility of association with other prisoners - unless 24 hour solitary confinement is your aim. Better get to work soundproofing those cells ...

... and such were the times Mill was living in. According to the architectural historian Robin Evans, there was a collaboration in the 1830s between Michael Faraday and Abel Blouet, a French architect, to design walls for Millbank Penitentiary that would prevent prisoners in adjacent cells communicating. They built test structures and had people shout at the walls. Apparently, the best compromise was not total sound absorption (by mass) but the construction of cavity walls in which the interior faces of the cavity had irregular reflecting surfaces. This scrambled the sound sufficiently to obliterate meaning. Hanging sail cloth in the cavity helped further.

Posted by: Charlie Whitaker | May 05, 2006 at 08:17 PM

To me it was a conundrum, Moussaoui wanted to get his 72 clear raisins and be a shaheed.

If we executed him we would be aiding him in his quest.

If we could have found an appropriate way of thwarting his ambition, like throwing him into a pen of hungry feral pigs, while accomplishing our ends, I would have wanted to see him dead.

Everything considered, the rest of his life in supermax and no press releases sounds like a good compromise. those of you who do not know about supermax should check it out:

http://en.wikipedia.org/wiki/ADX_Florence

You might rather be dead.

Posted by: Robert Schwartz | May 05, 2006 at 08:40 PM

You've got both Kantian and utilitarian arguments against the idea that life-imprisonment for Moussaoui is a 'good thing' - generally seen as mutually-exclusive. Which do you find most persuasive?

I find your post here very challenging - I've been opposed to the death penalty all my life but increasingly feeling in my old age that I don't have any particularly good reasons for holding this position.

Posted by: Shuggy | May 05, 2006 at 09:35 PM

Well there's this to consider:
http://www.washingtonpost.com/wp-dyn/content/article/2006/05/04/AR2006050401698.html

In short the jury failed to find it obvious that he was guilty and if it had he would have been executed.

I think the suggestion that the Apartheid regime would have better pursued its own interests if it had executed Nelson Mandela is a poor argument in favour of executing people. The roleMandela subsequently played in the surprisingly peaceful transition was a good even from an apartheid point of view so there is room for argument on even that pragmatic ground.

Restricting the states use of violence is always a good thing but clearly that is not a point I would expect to see at Harry's Place.

Noonan's prose may be pretty but it is also unintelligible. It's not what it says to me and if I haven't heard it she hasn't said it. It is a slightly slicker version of the Chewbacca defence.

Posted by: Jack | May 06, 2006 at 10:38 AM

I tend to agree with the last commentator, that the jury's decision not to use the available death penalty was not an expression of objection to the death penalty, but an expression of doubt as to his "guilt", in the sense of his personal responsibility in relation to 9/11. Most criminal law systems have difficulty with the notion of ascribing guilt on the basis of omission. And doubt about guilt is the third reason for objecting to the death penalty that you don't include in your list.

This is such a civilised blog. How do you manage it?

Posted by: Bondwoman | May 06, 2006 at 01:08 PM

[Given the choice between the two, I think I'd prefer the death penalty. ]

Revealed preference goes way against you, however; people in the USA who face the possibility of the death penalty work like hell through their lawyers to get it commuted to whole-life imprisonment and death row prisoners even more so.

Posted by: dsquared | May 06, 2006 at 05:37 PM

There's something of fine words in Peggy Noonans' pronouncement there. And it would be nice if murder were that cleanly defined, but in practice, "society" would want to say something different to teenaged Christopher Craig than to Myra Hindley - and to all the shades of murderer in between. Not that society would be delivering the message itself, of course: executioner is rarely a middle-class kind of appointment.

Life is a terrible sentence, of course, and it's interesting that murderers given life actually serve longer average terms now than they did pre-1964. I find something especially ghastly about the modern practice of telling certain lifers that their sentences - perhaps already twenty years underway - are to be "whole life tariffs". But I would still prefer inconsistency in the application of life sentences to what we had pre-1964, politically-motivated inconsistency in the application of the death penalty.

Posted by: James Hamilton | May 06, 2006 at 06:05 PM

It's only the worst of the worst, all of them actual murderers, who have received whole-life tariffs in the UK since the 1960s: the likes of Dennis Nilsen and Hindley and Brady. And these were highly aggravated murders, and they were not sent straight to Supermax (which we don't have, even at places like Belmarsh) with the promise of life in solitary confinement.

I fail to see why Moussaoui's offence merits this particular treatment, even if it merits life in jail. He was a bit-part player; he did not (like Hindley) lure children and assist in their torture, knowing from past experience that they would be murdered, and he did not keep bodies, or bits of bodies, in his freezer or whatever it was that Nilsen did. Supermax is surely meant to be for the most difficult prisoners such as those who kill in custody or run gangs from behind bars, not a means of inflicting gratuitous cruelty as seems to be the case here. Even at Alcatraz they did not send people straight there and did not keep them there for life.

Posted by: Yusuf Smith | May 06, 2006 at 07:56 PM

Yusuf: OK throw him into a pen of hungry feral pigs.

Posted by: Robert Schwartz | May 07, 2006 at 05:19 AM

Robert, are you... well, damaged? I ask because you seem to be deriving sensual pleasure from the idea of brutal, sadistic murder.

I disgree with the death penalty, but, if we were to have it, surely it would not be on the grounds of societal sadism?

Posted by: Andrew Bartlett | May 10, 2006 at 12:41 PM

Posted by: Cathy | June 24, 2007 at 01:14 AM

Posted by: Rose | June 24, 2007 at 01:14 AM

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Stumbling and Mumbling

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May 05, 2006

What to do with Moussaoui?

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