The 9/11 conspirator and the death penalty

The defence in the trial of the 9/11 conspirator have been pleading with the jurors not to give Moussaoui what he wants - a marytr's death:

"Gerald Zerkin, defending, said Moussaoui's contempt for the victims and the trial "is proof that he wants you to sentence him to death". He went on: "He is baiting you into it. He came to America to die in jihad and you are his last chance."

Mr Zerkin said the jury can instead "confine him to a miserable existence until he dies and give him not the death of a jihadist ... but the long, slow death of a common criminal"."

I don't believe in the death penalty but I wish those who shared this view would not make such poor arguments for this position. Moussaoui will never be a martyr because even if he is executed, he would not die because of his faith but because he is implicated in mass murder. The sick fantasy that this has anything to do with 'martyrdom', while certainly a delusion held by the ranks of Al-Qaeda and their imitators, should not be considered as a factor in criminal justice even for a second.

Neither should the idea that executing Moussaoui will inflame the rage of Al-Qaeda. The prosecution responded to this by saying:

"He wants you to think Osama bin Laden will be mad at us," Mr Raskin said. "Do you think Osama bin Laden gives a damn about what happens here? That is a joke."

Indeed. And one could add that even if he did, this should not be something that decides the sentence in a case like this. In any event, and despite his latest meglomaniac rantings, one doubts Bin Laden is in a position to do anything much these days.

The utilitarian theory of criminal justice has at its core the idea of a pleasure-pain calculus. It is problematic at the best of times and surely it can be agreed that what ever its merits might be under normal circumstances, it is not much use when dealing with people for whom pleasure is something to be rejected in favour of death?