Sentencing Terrorist Crimes
WADIE E. SAID*
The legal framework behind the sentencing of individuals convicted of
committing terrorist crimes has received little scholarly attention, even with
the proliferation of such prosecutions in the eleven years following the attacks
of September 11, 2001. This lack of attention is particularly striking in light of
the robust and multifaceted scholarship that deals with the challenges inherent
in criminal sentencing more generally, driven in no small part by the
comparatively large number of sentencing decisions issued by the United
States Supreme Court over the past thirteen years. Reduced to its essence, the
Supreme Court’s sentencing jurisprudence requires district courts to make no
factual findings that raise a criminal penalty over the statutory maximum,
other than those found by a jury or 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 of deference by courts of review.
Historically, individuals convicted of committing crimes involving politically
motivated violence/terrorism were sentenced under ordinary criminal statutes,
as theirs were basically crimes of violence. Even when the law shifted to begin
to recognize certain crimes as terrorist in nature—airplane hijacking being the
prime example—sentencing remained relatively uncontroversial from a legal
perspective, since the underlying conduct being punished was violent at its
core.
In the mid-1990s, the development and passage of a special sentencing
enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the
opportunity for district courts to significantly increase the penalty for certain
activity that fell into a defined category of what was termed “a federal crime of
terrorism.” Coupled with the post-9/11 trend of the government using a
relatively new offense, 18 U.S.C. § 2339B, the ban on providing material
support to designated foreign terrorist organizations, as its main legal tool in
the war on terrorism, sentences for such crimes increased significantly, even in
situations where there was no link to an act of violence. The application of
section 3A1.4 invites a district court to find certain facts, under the
preponderance of the evidence standard, which bring the conduct into the
category of a federal crime of terrorism, thereby triggering greatly enhanced
punishment. A review of the reported decisions involving section 3A1.4
reveals, however, that only in rare cases do courts find the enhancement to be
improperly applied. This Article argues that, as currently understood, the
application of section 3A1.4 raises serious concerns about its fidelity to the
Supreme Court’s Sixth Amendment jurisprudence.
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