Sentencing Terrorist Crimes - KB Home
Sentencing Terrorist CrimesWADIEE. SAID*The legal framework behind the sentencing of individuals convicted ofcommitting terrorist crimes has received little scholarly attention, even withthe prolferation of such prosecutions in the eleven years following the attacksof September 11, 2001. This lack of attention is particularlystriking in light ofthe robust and multifaceted scholarshipthat deals with the challenges inherentin criminal sentencing more generally, driven in no small part by thecomparatively large number of sentencing decisions issued by the UnitedStates Supreme Court over the past thirteen years. Reduced to its essence, theSupreme Court's sentencingjurisprudence requires district courts to make nofactual findings that raise a criminal penalty over the statutory maximum,other than those found by ajury or admitted by the defendant in a guilty plea.Within those parameters, however, the Court has made clear that suchsentences are entitled to a strong degree ofdeference by courts of review.Historically, individuals convicted of committing crimes involving politicallymotivated violence/terrorismwere sentenced under ordinary criminalstatutes,as theirs were basically crimes of violence. Even when the law shifted to beginto recognize certain crimes as terroristin nature-airplanehiacking being theprime example-sentencing remained relatively uncontroversialfrom a legalperspective, since the underlying conduct being punished was violent at itscore.In the mid-1990s, the development and passage of a special sentencingenhancement, U.S. Sentencing Guidelines Manual section 3Al.4, offered theopportunityfor district courts to significantly increase the penalty for certainactivity thatfell into a defined category of what was termed "afederal crime ofterrorism." Coupled with the post-9/11 trend of the government using arelatively new offense, 18 U.S. C. § 2339B, the ban on providing materialsupport to designatedforeign terrorist organizations,as its main legal tool inthe war on terrorism, sentencesfor such crimes increasedsignificantly, even insituations where there was no link to an act of violence. The application ofsection 3Al.4 invites a district court to find certain facts, under thepreponderance of the evidence standard, which bring the conduct into thecategory of a federal crime of terrorism, thereby triggering greatly enhancedpunishment. A review of the reported decisions involving section 3A1.4reveals, however, that only in rare cases do courtsfind the enhancement to beimproperly applied. This Article argues that, as currently understood, theapplication of section 3AJ.4 raises serious concerns about its fidelity to theSupreme Court'sSixth Amendment jurisprudence.The existence of a terrorism sentencing enhancement also serves as a kind ofstatutory basis to embolden courts of appeals to overturn a sentence as too*Associate Professor, University of South Carolina School of Law. Thanks are due toAmna Akbar, Jack Chin, Tommy Crocker, Nirej Sekhon, Shirin Sinnar, and Spearit for theirhelpful comments on this Article. Special thanks to Ryan Grover for his excellent researchassistance. All errors are my own.
[Vol. 75:3OHIO STATE LAW JOURNAL478lenient, as has been the case in certain high-profileprosecutions,such as thoseof Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As theexamples in this Article demonstrate, those courts of review that have engagedin this practice either fail to appreciate or disregardthe Supreme Court'sinstructions to engage in a highly deferential type of review of a district courtsentence. At the heart of these opinions lies a message that terrorism isespecially heinous, and those convicted of terrorist crimes are particularlydangerous to the point of being irredeemably incapable of deterrence. Whilethese sentiments may or may not be accurate, the courts of appeals adoptingthem cite no evidence or studies in support, creating the impression that acourt of review may overturn a sentence in a terrorism case simply because itdisagrees with the district court, something the Supreme Court has said isimproper. In light of this recent development, this Article recommends thatsome combination of Congress, the United States Sentencing Commission, andthe federal courts establish standards to better help a court decide when aheightened punishment might be warranted, free from unsupportedassumptionsabout the natureof terrorism or a particulardefendant.TABLE OF CONTENTS1.II. 479.INTRODUCTIONCURRENT SENTENCING LAW AND THE STANDARD OF REVIEW.482. 483A. The Creationof the U.S. Sentencing Guidelines. 484.B. The Sixth Amendment Shift1. Apprendi v. New Jersey.4842. Blakely v. Washington.3. United States v. BookerC. Booker andIts Progeny485485. 486.III. SENTENCING TERRORISTS AS CRIMINALS: THE TRADITIONAL.PRACTICE.A. HistoricalExamples1. Puerto Rican Nationalists .2. CroatianNationalists. .3.United States v. El-Jassem.493. 494. 494495.4954964. Airplane Hyacking Cases .IV. SENTENCING TERRORISTS AS TERRORISTS: THE TERRORISMENHANCEMENT. 499. 499A. U.S. Sentencing Guidelines Manual § 3A1.4.502B. The Application of§ 3A. 4. .505.1. 18U.S.C.§2339B506a. United States v. Hammoud .b. The Holy Land FoundationProsecution. . 509. 512.2. Section 3Al4 Post-BookerV. THE COURTS OF APPEALS REBEL AGAINST THE POST-BOOKER
SENTENCING TERRORIST CRIMES2014]SYSTEM OF REVIEW.A. United States v. Abu Ai.479. 517.518B. United States v. Lynne Stewart.519C. The Jose PadillaProsecutionD. United States v. Ressam.E. AnalysisVI. CONCLUSION. 521. 524. 525. 527I. INTRODUCTIONA defendant is convicted of both obstructing justice and criminal contemptand qualifies for a sentence of twenty-four to thirty months in prison, but thegovernment asks the district court to apply a special terrorism-sentencingenhancement, resulting in a 135-month term. The basis for such a radicalincrease in the sentence is that the defendant was convicted of obstructing afederal investigation by refusing to testify before a grand jury looking intoallegations of terrorist fundraising in the United States. That he was acquitted ofbeing a part of the terrorist group and had no link to violent activity was of noimport. The sentence of a man convicted of running a multi-million dollarinterstate cigarette smuggling ring sees his sentence rise from fifty-sevenmonths to 155 years (later reduced to thirty years), based on testimony that 3500 the defendant gave to a cooperating witness was really destined for aterrorist group abroad. The cooperating witness, whose credibility was severelychallenged at trial, could not establish conclusively that the terrorist group everreceived the funds. Finally, a court of appeals throws out the seventeen-yearsentence of alleged "dirty bomber" Jose Padilla for terrorism charges unrelatedto the bomb plot as too lenient, based on his criminal history.' The districtcourt's relatively lesser sentence took into account Padilla's treatment at thehands of the U.S. military while in detention as an enemy combatant, leading tohis severe emotional and mental impairment. 2 The court of appeals was notmoved.The examples detailed above implicate the sentencing framework forindividuals convicted of committing terrorist crimes, an area of law that hasreceived little scholarly attention, even with the proliferation of suchprosecutions in the nearly thirteen years following the attacks of September 11,2001. This lack of attention is particularly striking in light of the robust andmultifaceted scholarship examining the challenges inherent in criminalsentencing more generally, driven in no small part by the comparatively largenumber of sentencing decisions issued by the U.S. Supreme Court over the pastthirteen years. Reduced to its essence, recent Supreme Court sentencingjurisprudence requires district courts to make no factual findings that raise aISee generally United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011).2I
480OHIO STATE LA WJOURNAL[Vol. 75:3criminal penalty over the statutory maximum, other than those found by a juryor admitted by the defendant in a guilty plea. Within those parameters, however,the Court has made clear that such sentences are entitled to a strong degree ofdeference by courts of review.Historically, individuals convicted of committing crimes involvingpolitically motivated violence/terrorism were sentenced under ordinary criminalstatutes, as theirs were basically crimes of violence. Even when the law shiftedto begin to recognize certain crimes as terrorist in nature-airplane hijackingbeing the prime example-sentencing remained relatively uncontroversial froma legal perspective, as the underlying conduct being punished was violent at itscore.In the mid-1990s, the development and passage of a special sentencingenhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered theopportunity for district courts to significantly increase the penalty for certainactivity that fell into a defined category of what was termed a federal crime ofterrorism. 3 Coupled with the post-9/11 trend of the government using arelatively new offense, 18 U.S.C. § 2339B, the ban on providing materialsupport to designated foreign terrorist organizations (FTOs), as its main legaltool in the war on terrorism, sentences for such crimes increased significantly,even in situations where there was no direct link to an act of violence.4 Theapplication of section 3A1.4 invites a district court, under the preponderance ofthe evidence standard, to find certain facts that bring the conduct into thecategory of a federal crime of terrorism, thereby triggering greatly enhancedpunishment. A review of the reported decisions involving section 3A1.4 reveals,however, that only in rare cases do appellate courts find the enhancement to beapplied improperly.This Article argues that, as currently understood, the application of section3A1.4 has veered into unconstitutional territory, particularly in light of theSupreme Court's sentencing jurisprudence and the Sixth Amendment'sstrictures. Perhaps the trend behind the application of section 3Al.4 reflects abelief in terrorism's exceptional nature, rendering crimes with a terrorist bent asjustifying a relaxation of generally applicable legal standards. This phenomenonhas been observed in several other contexts involving terrorism prosecutions,such as the admission of confessions that would otherwise be inadmissible ascoerced, 5 and the prosecution of individuals under statutes banning materialsupport to terrorist groups where there is no link to violence of any kind.6 Theavailability of a special enhancement also affords prosecutors and courts avehicle of an expressive nature, to comment on their deep disapproval andcondemnation of terrorism in a general sense. More debatable, however, is3 U.S. SENTENCING GUIDELINES MANUAL§ 3Al.4 (1995).4 18 U.S.C. § 2339B (2012).5See Wadie E. Said, Coercing Voluntariness, 85 IND. L.J. 1, 1 (2010).6See Wadie E. Said, The Material Support Prosecutionand Foreign Policy, 86 IND.L.J. 543, 544 (2011).
48 1SENTENCING TERRORIST CRIMES2014]whether judges enhance sentences based on a need to be seen as condemningterrorism, and whether it serves the utilitarian or retributive functions ofsentencing, as it is not clear how such sentences improve deterrence of futurecrimes or respond adequately to the harm done in each instance.The existence of a terrorism-sentencing enhancement also serves as a kindof statutory basis to embolden courts of appeals to overturn a sentence as toolenient, as has been the case in certain high-profile prosecutions, such as thoseof Ahmed Abu Ali, Lynne Stewart, and Jose Padilla. 7 As the examples in thisArticle demonstrate, those courts of review that have engaged in this practiceeither disregard or fail to appreciate the Supreme Court's instructions to engagein a highly deferential type of review of a district court sentence.8 At the heartof these opinions lies a message that terrorism is especially heinous, and thoseconvicted of terrorist crimes are particularly dangerous to the point of beingirredeemably incapable of deterrence. From this expressive exercise incondemning terrorists qua terrorists as being worthy of the most serioussentences allowed by law, appellate judges can demonstrate their participationin the project of protecting national security.Even accepting the accuracy of these sentiments, the courts of appealsadopting them cite no evidence or studies to justify sentencing enhancements,creating the impression that a court of review may overturn a sentence in aterrorism case simply because it disagrees with the district court, something theSupreme Court has said is inconsistent with the Constitution. 9 Appellate judgesengaging in this practice thereby rely on their own views of what they imagineterrorism to be, regardless of whether those views jibe with current reality or, atthe very least, the particular circumstances of the individual being sentenced. Inlight of this recent development, this Article recommends that somecombination of Congress, the U.S. Sentencing Commission, and the federalcourts establish standards to help courts better decide when a heightenedpunishment might be warranted, free from unsupported assumptions about the7See Virginia Man Sentenced to Life in Prison for Bush Assassination Plot,GUARDIAN (July 27, 2009, 12:01 PM), da-american-bush-plot; Lizette Alvarez, Sentencefor TerroristIs Too Short, Court Rules,N.Y. TIMES, Sept. 19, 2011, at A12, available at ? r-0;LarryNeumeister,Lynne Stewart, Ex-lawyer Convicted in Terror Case, Seeks Release from Prison Due toCancer, HUFFINGTON POST (May 1, 2013, 5:06 PM), -stewart-ex-lawyer-terror-case-prison-cancer n 3196127.html.background on the individuals, see Jerry Markon & Dana Priest, TerroristPlot To Kill BushAlleged, WASH. POST, Feb. 23, 2005, at A01, available at 05Feb22.html; Greg Sargent, Jose Padilla: Overdue Process,MOTHER JONES, May-June 2006, dilla-overdue-process; Michael Steven Smith, The Sentencing of Lynne Stewart, CENTERFOR CONST. RTS., michael-steven-smith(last visited Apr. 18, 2014).8See infra Part V.9 See infra Part II.C.
OHIO STATE LAW JOURNAL482[Vol. 75:3nature of terrorism or a particular defendant. Otherwise, courts will continue torely on their own assumptions about terrorism and the nature of politicalviolence, irrespective of whether those beliefs are borne out by reality. As aresult, a court's unsupported belief about a complex phenomenon like terrorismthreatens to undermine the efficacy of its sentencing function entirely.This Article proceeds as follows. Part II provides an overview of the currentstatus of sentencing law and examines the Supreme Court's recentjurisprudence governing the sentencing process. Part III offers examples of howpolitical/terrorist crimes fit historically within sentencing jurisprudence, at atime when those crimes fell under the rubric of general criminal statutes. PartIV introduces and critically examines the application of section 3A1.4, whichhas raised serious questions of the enhancement's compatibility with theanimating principles of relevant Supreme Court rulings. Part V then reviews amore recent trend of cases in which the various panels of the U.S. Courts ofAppeals overturned a terrorist defendant's sentence as too lenient, probingwhether those panels have faithfully carried out the Supreme Court's mandateto give proper deference to a district court's sentencing decision.II. CURRENT SENTENCING LAW AND THE STANDARD OF REVIEWA discussion of sentencing defendants convicted of terrorism-related crimesobviously lies within the contours of the debate over the imposition of criminalsentences more generally. Therefore, the brief overview that follows trackswhat has been the critical question: how much discretion does a district judgeenjoy in handing down a sentence? 10 Understanding both the district court'sdiscretion and the court of appeals' review of that discretion is critical when weconsider the sentencing of someone for a terrorist crime, with its attendantimplications for and assumptions about U.S. foreign policy and the nature of anon-state political movement that uses violence.10At the outset it is important to note that there are two methods for a court to change asentence under the US. Sentencing Guidelines, by "departure" or "variance." See UnitedStates v. Brown, 578 F.3d 221, 225-26 (3d Cir. 2009) ("Departures are enhancements of, orsubtractions from, a guidelines calculation 'based on a specific Guidelines departureprovision.' These require a motion by the requesting party and an express ruling by thecourt. Variances, in contrast, are discretionary changes to a guidelines sentencing rangebased on a judge's review of all the § 3553(a) factors and do not require advance notice."(citations omitted) (quoting United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir.2006))). This Article makes use of these distinctive terms only to the extent that such adistinction impacts the trajectory of any analysis involved here. Otherwise, the Article doesnot point out whether a change in a Guidelines sentence calculation was a departure orvanance.
2014]SENTENCING TERRORIST CRIMES483A. The Creation of the U.S. Sentencing GuidelinesIn 1984, Congress passed the Sentencing Reform Act (the Act)," whichhad a three-fold purpose.12 First, the Act strove for "honesty in sentencing" as amethod of eliminating the system of indeterminate sentences that had arisen,with the result that convicted defendants often served only one-third of theiractual sentence. 13 The Act's second goal was "reasonable uniformity insentencing by narrowing the wide disparity in sentences imposed for similarcriminal offenses committed by similar offenders," as a judge in one districtmight impose a far more severe or lenient sentence than a judge in another foressentially the same conduct.14 Finally, the third goal was to ensureproportionate sentences, so as to punish more serious crimes with harshersanctions and prison terms.15 The Act also did away with parole in the federalsystem and significantly hindered the ability to reduce one's sentence throughgood time credits and the like.' 6To further these goals, Congress authorized the creation of a SentencingCommission (the Commission) .to develop a set of Sentencing Guidelines (theGuidelines) that would provide the required uniformity and predictability in theimposition of sentences across the geographic spectrum.1' The first set of theGuidelines was enacted in 1987, and the Commission retained the authority toissue amendments during an express period in which Congress is in session,with those amendments taking effect 180 days after their approval.' 8 Critically,while the Guidelines system allowed a court to depart from the prescribedsentencing range--on condition it provide the reasons for its departure-thedeparture was subject to review by an appellate court for "reasonableness." 19De
sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting
Federal Sentencing: The Basics Sentencing Commission in formulating the guidelines that should result in a sentence" outside of the applicable range. 20. Departures from the range were limited in order to reflect Congress's desire for general uniformity in sentencing of similarly situated offenders, without consideration of several offender
In the US, both men and women engage mostly in crimes against property, including burglary, theft, car theft, and white-collar crimes. Property crimes represent almost 70% of total crimes for women and around 50% for men who are in prison. The share of drug crimes and violent crimes is almost twice as high am
crimes against humanity, the application should be refused. 8. Information relevant to war crimes or crimes against humanity . 8.1 This information will usually consist of one or more of the following; Admission or allegation of involvement in any of the crimes which constitute
of the crimes of genocide, crimes against humanity and war crimes follows the structure of the corresponding provisions of articles 6, 7 and 8 of the Rome Statute. Some paragraphs of those articles of the Rome Statute list multiple crimes. In those instances, the elements of crimes appear in separate paragraphs which correspond to each .
The Terrorist Screening Database and Preventing Terrorist Travel Congressional Research Service Summary After the terrorist attacks of September 11, 2001, the federal government developed a unified regimen to identify and list known or suspected terrorists. The regimen has received repeated
3. Terrorist Financing 4.1 What is "terrorist financing"? Terrorist financing is a general term to describe activity that provides or facilitates the provision of money or property to be used for terrorist purposes. The various terrorist financing offences can be found in Part III of the Anti-Terrorism and Crime Act 2003.
terrorist groups that trade in illicit drugs to fund terrorist operations, and U.S. Attorneys' offices across the country prosecute cases involving terrorist financing, working closely with the Department's National Security and Criminal Divisions. Congress enacted a number of statutes that the Department uses to target the funding of terrorist
Each reference should include everything you need to identify the item. You need to identify the source type (e.g. book, journal article) and use the correct referencing format from this guide to create the reference. If you include items that are not specifically cited but are relevant to the text or of potential interest to the reader, then that is a bibliography. Generally speaking, the key .
