WASHINGTON -- I am no great fan of the death penalty. I oppose it in almost all cases, though not on principle. There are crimes -- high, monstrous and rare -- that warrant the ultimate sanction.

Not because it is a deterrent; the evidence for deterrence is very equivocal. And not, as our Oprah-soaked sentimentalism suggests, in order bring closure to the victim's family. Family has nothing to do with it. It is The State v. The Miscreant, not the family v. the miscreant. And punishment is meant to do more than just bring order to the state; it brings moral order to the universe. Some crimes are so terrible that the moral balance of the universe remains disturbed so long as the perpetrator walks the earth.

Eichmann, for example. Or, at the lower end of the scale, Timothy McVeigh. Goering was an excellent candidate until he cheated the hangman by poisoning himself in prison. So is Saddam Hussein, champion mass murderer of our time, whose execution will bring a modicum of rebalance to the universe.

But a civilized society should be loath to invoke the death penalty for anything short of that. There's a remarkable passage in the Talmud that says that ``a Sanhedrin (high court) that executes a person once in seven years is considered murderous." One sage says, ``once every seventy years."

Does Zacarias Moussaoui meet that kind of high standard? I think not. Had I been on the jury, I too would have voted for life in the Colorado Supermax. But not for the reasons most of the jury cited.

In the Moussaoui case, there were three plausible grounds for mitigation: insignificance, lunacy or deprivation. Insignificance would have been my choice. Moussaoui was hardly even a cog. If he had any role in 9/11, which is doubtful, it was very peripheral. He was a foot soldier in an army of evil, but he never got a chance to practice his craft. That warrants life, not hanging.

The government tried to argue that if he hadn't lied to the FBI, the 9/11 plot would have been discovered and lives would have been saved. But if you're going to execute someone, you ought to prove commission, rather than omission. Albert Speer knew a lot more about a lot more killing, and yet the Nuremberg court spared him execution. It's hard to argue that Moussaoui was a greater monster than Speer.

Yet the bit-player argument seems to have been a mitigating circumstance for only three of the 12 jurors. And none cited a second possible factor, weaker than the first but still plausible: psychosis. Continued...