New research published on Perspectives on Terrorism looks at the imbalance of sentencing in Federal terrorism cases, as recent mass casualty attacks in the U.S. have reignited debate around the need for new legislation to effectively prosecute domestic terrorism.
Key Takeaways:
- Domestic terrorism defendants 10x more likely to be acquitted
- Non-custodial sentences given to 12% of domestic cases, 5% international
- 42.9% of domestic terrorism defendants given probation rather than prison time
- International terrorism defendants received prison sentences more than double the length given to domestic extremists
- Under 10% of domestic defendants prosecuted on terrorism charges for failed attacks, compared to over 64% international
- 34.6 years avg. prison time for International defendants in cases involving at least one injury but no deaths. Domestic defendants received avg. 8.6 years
- International defendants probationary sentences 3.1-8.1x longer
- International extremists sentenced for attacks resulting in casualties received avg. 22.1 years supervision upon release, domestic defendants, 2.9 years
- Prosecutors almost 4x more likely to pursue a terrorism enhancement in international cases
The research article, authored by Michael A. Jensen and Elena Akers; researchers at the National Consortium for the Study of Terrorism and Responses to Terrorism (START), University of Maryland, highlights the differing opinions of those who advocate for a new terrorism law and those who are against.
Those for, argue that shortcomings in U.S. laws pose challenges for prosecuting domestic extremists, creating inconsistent sentencing for international and domestic terrorism cases, while critics of proposals for a domestic terrorism law say that the legal code offers flexibility for the courts to punish domestic extremists to the same extent as their international counterparts, but neither side has presented solid evidence to support either claim.
Jensen and Akers address the research gap in the article, entitled: Prosecuting Terror in the Homeland: An Empirical Assessment of Sentencing Disparities in United States Federal Terrorism Cases, which analyses data from 344 US federal terrorism cases initiated between 2014 and 2019.
Their research found regular occurrences of inconsistency in federal terrorism prosecutions, with the main differences being the length of imprisonment; time spent on supervision after release; and the use of restrictive monitoring conditions. The data suggests that cases of international terrorism are more severely sentenced in all three sentencing decisions, with a disproportionate use of terrorism laws in international terrorism cases compared to domestic extremists who are often prosecuted using more typical criminal charges, such as weapons violations.
The research assessed the sentencing of international and domestic terrorism across a six year period, examining the differences in terms of sentence length, the use of terrorism charges and sentencing enhancements, rate of acquittal, probation terms and post-incarceration monitoring sentences.
Among the key findings, data showed that domestic terrorism defendants are 10x more likely to be acquitted of their charges, with 23 domestic defendants having their case dismissed or being found not guilty, whilst only one international terrorism defendant was acquitted during the reviewed period. Elsewhere, the research shows that domestic defendants are over two times more likely to receive non-custodial sentences, and all international extremists prosecuted for plotting violent attacks were sentenced to time in federal prison,
The international extremists who were prosecuted for plotting violent attacks were all sentenced to serve time in federal prison, regardless of how far they progressed in their criminal schemes. By comparison, 42.9% of the domestic terrorism defendants were given probation rather than time in prison.
In terms of prison sentences, international terrorism received, on average, double the sentence length of domestic extremists, 13.9 years to 6.9. The report adds that, in cases where a violent attack was plotted but failed, international defendants received an average prison term of 11.2 years, compared to just 1.6 years for domestic extremists who engaged in similar schemes.
Along similar lines, 64.1% of international terrorism defendants who were involved in foiled or failed attacks were sentenced on terrorism charges, and sentenced to an average 19 years in prison, whilst 29.4% of domestic extremists who plotted similar attacks were prosecuted for making interstate threats and were sentenced to 2.7 years.
Additionally, only 9.8% of domestic defendants who plotted foiled or failed attacks were prosecuted using terrorism charges. However, the report notes that, in these circumstances, there was no discrepancy in sentencing, with the average defendant 19.7 years in prison.
In attacks that resulted in no deaths but at least one injured victim, international terrorism defendants were sentenced 34.6 years in prison, on average, which is higher than four times the 8.6 years average for domestic extremist attacks.
In cases where defendants were accused of killing at least one person, international defendants were sentenced to roughly 10 years more prison time than domestic extremists, and life sentences were issued in 10% of international cases, in contrast to the 5.7% of domestic defendants accused of similar crimes.
In regards to sentencing enhancement requests, the research found Prosecutors were four times more likely to pursue a terrorism enhancement in international cases than they were in cases for domestic extremism. The data also shows that defendants were sentenced to 13.8 years in prison on occasions where an enhancement was requested, compared to 6.9 years when no request was made.
Looking at the data for post-imprisonment probation, the researchers discovered that international terrorism defendants received probationary sentences between 3.1 and 8.1 times longer than domestic extremists, with the average length of supervision following release from prison being just over 22 years for international extremists who committed attacks resulting in casualties, whilst domestic defendants had an average of just under three years supervision for similar attacks.
Overall, international terrorists convicted of terrorism charges received supervision orders lasting anywhere between 4.8 to 13.4 times longer than domestic defendants who committed similar crimes.
On top of this, international defendants were more likely to have their location monitored, sit for recurring polygraph tests, and receive no contact orders prohibiting any association with co-defendants or members of extremist groups.
The length of these supervisory conditions varied, with 74% of domestic extremists having to comply for three years or less, whilst 27% of international defendants had to comply for the rest of their lives. Only 2.9% of domestic cases received the same lifelong order.
To conclude, the authors suggest that the debate over proposed domestic terrorism legislation would benefit from both sides recognizing the consequences of maintaining the status quo and finding solutions that also protect civil rights and liberties, adding that the research highlights “a significant obstacle to promoting judicial fairness in the prosecution of terrorism,” under the legal regime.
