Expert Commentary

Terrorism sentencing: Challenges for criminal prosecutors in the U.S. and abroad

2015 roundup of academic research and scholarly literature that looks at the challenges that criminal prosecutors in the U.S. and aboard face in determining appropriate prison sentences for those convicted of participating in terrorism-related activities.

World Trade Center after 9/11

Among the men suspected of helping carry out the Nov. 13, 2015 Paris terrorist attacks is Samy Amimour, a 28-year-old French citizen who already had been charged with terrorist conspiracy in 2012. He is not the first person to be charged with a terrorism-related crime and then later to be associated with a serious attack. In January 2015, two brothers — Chérif and Saïd Kouachi – killed 12 people at the Paris offices of the Charlie Hebdo satire magazine. A decade earlier, Chérif Kouachi was charged with conspiring to commit acts of terrorism, for which he served 20 months in prison. An ongoing investigative series by ProPublica has raised questions about Europe’s sentencing policies and their role in the ongoing threat of terrorism.

In the United States, the legal framework for sentencing terrorism-related crimes has not received much attention from scholars, despite an increase in prosecutions since Sept. 11, 2001, according to a 2014 article by University of South Carolina Law School Professor Wadie E. Said. While the U.S. appears to take a stronger stance on terrorism crimes, scholars such as Said have voiced concerns about how the U.S. prosecutes crimes that may be linked to terrorist behaviors. A special sentencing “enhancement” allows courts to drastically increase the penalty for an activity that “involved, or was intended to promote, a federal crime of terrorism,” as defined by Congress. Said offers the example of a defendant who is convicted of obstructing a federal investigation by refusing to testify before a grand jury in a case involving terrorist fundraising allegations. Without the special enhancement, the defendant faces a prison term of 24 to 36 months. The sentencing enhancement boosts the sentence to 135 months.

Since Sept. 11, 2001, more than 250 people have been convicted in the U.S. “for their involvement in homegrown violent jihadist plots,” terrorism specialist Jerome P. Bjelopera said in a statement prepared for the U.S. House of Representatives’ Subcommittee on Counterterrorism and Intelligence. Because of their long sentences, most of these “terror prisoners” remain behind bars. There are concerns, however, about how the nation eventually will handle their release and whether released convicts will return to terrorist plotting. In October 2015, the Subcommittee on Counterterrorism and Intelligence held a hearing on the issue. The subcommittee chairman, Peter T. King, indicated that more than 100 federal prisoners with links to terrorism would be released within five years. At the hearing, Bjelopera testified that it is unclear whether spending time in U.S. prison fosters a deeper commitment to violence among convicted terrorists.

Below is a roundup of academic research that looks at crime associated with terrorism and the challenges of determining appropriate prison sentences. For journalists covering such issues, the Center on Law and Security at New York University has completed a number of statistical analyses and reports related to the charges, convictions, plea bargains and sentences of alleged terrorists in the decade after September 2001.



Timing is Everything: The Role of Contextual and Terrorism-Specific Factors in the Sentencing Outcomes of Terrorist Offenders
Amirault, Joanna; Bouchard, Martin. European Journal of Criminology, April 2015. doi: 10.1177/1477370815578194.

Abstract: “The punishment of terrorist offenders remains a relatively unexplored topic. Research is especially needed in the United Kingdom in light of the continued criminalization of terrorism-specific offences and the July 2005 bombings. Using a sample of terrorist offenders convicted in the United Kingdom (n = 156), the current study examines the impact of legislative and incident-based contextual factors on sentencing outcomes. The findings indicate that changing contextual environments significantly affect sentencing outcomes, and that the effects of being adjudicated at different time points have unique implications for offenders motivated by an Islamic extremist ideology. Further, evidence of a temporal effect is uncovered, and the potential of a lingering 9/11 effect is addressed.”


A Group-Based Recidivist Sentencing Premium? The Role of Context and Cohort Effects in the Sentencing of Terrorist Offenders
Amirault, Joanna; Bouchard, Martin. International Journal of Law, Crime and Justice, December 2015. doi: 10.1016/j.ijlcj.2014.12.002.

Abstract: “Despite recent interest in terrorism little is known about the sentencing of terrorist offenders, and the impact of cohort effects on the sentencing patterns of offenders over the course of a terrorist campaign remains virtually unexplored. The ‘recidivist sentencing premium’ states that offenders who continually engage in criminal activities should be sanctioned more harshly as their careers progress. Unknown, however, is whether a penalty is applied to first time terrorist offenders as a result of the campaign’s collective criminal involvement. The current study analyzes changes in the sentencing outcomes of members of the Front de Liberation du Quebec (n = 108) over the 10 years that the group was active. The findings indicate that context plays a role in both the actions and adjudication of offenders. Cohort effects are uncovered, and offenders sanctioned later in the campaign are generally sentenced more severely than those at the onset for similar offenses.”


Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, and the Courts
Brown, George D. Cornell Journal of Law and Public Policy, Spring 2014.

Description: “There is considerable uncertainty surrounding the law and policy of federal sentencing … This uncertainty has serious consequences for the ‘War on Terror.’ The Article III courts are the principal forum in which terrorism suspects are tried. If guilty, the suspects’ sentences will often be pushed sharply upward by the operation of the ‘terrorism enhancement’ of the Guidelines. Courts are split on how to apply the enhancement.”


Is Terrorism a Crime or an Aggravating Factor in Sentencing?”
Saif-Alden Wattad, Mohammed. Journal of International Criminal Justice, 2006. doi: 10.1093/jicj/mql078.

Abstract: “Common law systems, in criminal cases, distinguish between the guilt/innocence proceedings and the sentencing stage. This is not the case in civil law systems where criminal trial consists of a single phase, combining the inquiry into guilt with sentencing. Under common law practice many facts relevant for sentencing are considered irrelevant at the stage of finding guilt for the commission of the crime. Aggravating elements, therefore, address a fundamental distinction of substantive criminal law between guilt and dangerousness: guilt is a determination of responsibility for a prior wrongdoing; dangerousness is a speculative future determination. The intensification of terrorist activity in the past few years has made terrorism one of today’s most pressing problems. But is terrorism a crime or an aggravating factor in sentencing? In this article, the author challenges conventional wisdom regarding the meaning of ‘terrorist crimes’, by providing a conceptual understanding of ‘terrorism’, as well as articulating a theory of guilt. Terrorists seldom express ‘guilt.’ The word ‘terrorism’ describes, instead, an overriding motivation, a way of acting, rather than the objective circumstances of acting. Terrorism is nothing but common crimes although committed with an overriding motivation of imposing extreme fear on the nation as such. The author presents the conceptual grounds of the phenomenon of terrorism as it has evolved through history, before enquiring into the meaning of ‘terrorist crimes’: the overriding motivation associated with the concept of terrorism constitutes the degree of cognate dangerousness of terrorist crimes.”


Federal Prosecution of Terrorism-Related Cases: Conviction and Sentencing Data in Light of the ‘Soft Sentence’ and ‘Data Reliability’ and Critique
Chesney, Robert. Lewis & Clark Law Review, 2007.

Summary: “This symposium article examines two critiques associated with post-9/11 criminal prosecutions in terrorism-related cases. The data-reliability critique attacks the reliability of the statistics reported by the Justice Department in connection with such cases, while the soft-sentence critique suggests that claims of success in such cases might be overstated in light of the relatively short sentences they produce.”


The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law
Drumbl, Mark A. George Washington Law Review, August 2007.

Introduction: “In Hamdan v. Rumsfeld, the United States Supreme Court — invoking domestic law and international law incorporated by reference thereto — ruled that the military commissions that the Executive had proposed to prosecute a small number of detainees captured in the ‘War on Terror’ could not proceed. In terms of international law, the Court specifically held that Common Article 3 of the 1949 Geneva Conventions applied to the non-international armed conflict against al Qaeda, a non-state actor, in this case in Afghanistan where Hamdan — alleged to be Osama Bin Laden’s driver and bodyguard — was captured.”


Deporting Terrorist Suspects with Assurances: Lessons from the United Kingdom”
Middleton, Ben. Connecticut Public Interest Law Journal, Fall-Winter 2012.

Introduction: “The inability to find acceptable ways to deal with terrorist suspects in the absence of sufficient admissible evidence to substantiate a criminal conviction, perhaps even in military tribunals, is a problem shared by other Western democracies that are partners in the War on Terror, and the dichotomy between Anglo and American approaches has weakened over recent years. The British and American governments appear committed to reining in some of the emergency terrorism powers sought by their predecessors; both governments are committed to well-defined counter-terrorism strategies including executive ‘risk-management’ of terrorist suspects. Transatlantic counter-terrorism strategies place at their heart a continuing emphasis on securing the removal of high-risk terrorists from home soil.”

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