ACTIVISM OR DOMESTIC TERRORISM? HOW THE TERRORISM ENHANCEMENT IS USED TO PUNISH ACTS OF POLITICAL PROTEST.

• Author: Johl, Madeline

Introduction 466 I. Political Origins of the Terrorism Enhancement 470 A. Enactment of the Terrorism Enhancement 471 B. The Role of the Sentencing Judge 474 C. Expansion of the Terrorism Enhancement's Scope 476 II. The Terrorism Enhancement in Use 480 A. Issues of Scope: A Politicized Sanction's Use (and Misuse) 480 1. Overly Broad Application: Non-Violent Protest as "Terrorism" 481 2. Overly-Severe Application: When the Punishment Does Not Fit the Crime 484 B. Selective Application of an Indiscriminate Sanction 486 III. Criminalizing Terrorism: Rationales and Abuses 489 A. Criminalizing Terrorism to Counter Political Opposition 489 B. Criminalizing Terrorism to Protect Public Safety 492 IV. Amending the Terrorism Enhancement 494 A. Rewording the Statute 495 1. Reducing the Enhancement's Triggering Acts 495 2. Re-Centering the Harm of the Enhancement's Motivational Element 498 3. Lessening the Enhancement's Penalties 500 B. Political Realities: The Difficulty of Reducing a "Tough-on-Crime" Statute 501 Conclusion 502 INTRODUCTION

In the summer of 2016, climate activist and member of the Catholic Workers' Movement Jessica Reznicek participated in marches, rallies, boycotts, encampments, and hunger strikes to try to halt construction of the Dakota Access Pipeline. (1) Reznicek was one of thousands who participated in the Indigenous-led protests that year, motivated by concern that the pipeline would leak crude oil into the drinking water and soil for the nearby Standing Rock Sioux reservation. (2) Despite this fierce resistance, construction began in Reznicek's home state of Iowa that fall. (3) Feeling frustrated, on election night 2016, Reznicek and fellow activist Ruby Montoya set fire to a bulldozer and other construction equipment along the pipeline. (4) In the following months, they did further damage by melting holes in three valves along the pipeline using oxy-acetylene torches. (5) The two later held a press conference claiming responsibility for the property destruction, (6) asserting that "the system is broken and it is up to us as individuals to take peaceful action and remedy it, and this we did, out of necessity." (7)

Unsurprisingly, Reznick was charged with nine felony counts, (8) and pled guilty to conspiracy to damage an energy facility. (9) However, climate activists were shocked when District Judge Leigh Goodgame Ebinger applied the terrorism enhancement to Reznick's sentence. (10) The enhancement changed what would have been a 37 to -46-month sentence to an eight year prison term followed by three years of supervised release. (11) This decision was reaffirmed by the Eighth Circuit in May 2022. (12)

Conversely, two months earlier District Judge Dabney Friedrich opted not to apply the terrorism enhancement against Guy Wesley Reffitt for his involvement in the January 6th Capitol Hill attack. (13) Equipped with a handgun, body armor, a helmet, radio, and flex cuffs, Reffitt threatened to "physically attack, remove, and replace" (14) Democratic lawmakers, saying "I didn't come here to play games... I just want to see Pelosi's head hit every f***ing stair on the way out." (15) Video recording showed Reffitt climbing a stone banister and confronting a U.S. Capitol Police officer near scaffolding meant to keep the protestors out. (16) Reffitt gestured to the crowd behind him, in an apparent attempt to get them into the building. (17) Prosecutors argue that this confrontation was one of the moments in which the police lost control of the crowd. (18) While Reffitt never got into the Capital, he helped ignite the crowd "into an unstoppable force." (19)

Reffitt was sentenced to a little over seven years after being found guilty by a jury of two counts of civil disorder, one count of obstruction of an official proceeding, one count of entering and remaining on restricted grounds with a firearm, and one count of obstruction of justice. (20) However this sentence is half of what prosecutors sought under the terrorism enhancement. (21) If applied, it would have increased his sentence to 15 years. (22) The sentencing judge resisted labeling Reffitt a domestic terrorist, stating that other defendants who engaged in more dangerous conduct than Reffitt on January 6th did not face the terrorism enhancement. (23) Clinton Broden, Reffitt's attorney, said that the push to apply the enhancement was an attempt to "make an example" of Reffitt in this highly politicized trial. (24)

Why was Reznicek's act of property destruction labeled domestic terrorism, but Reffitt's armed attack on the Capitol not? The inconsistent application of the terrorism enhancement reveals a larger issue in the law: it has proven difficult to articulate a definition of domestic terrorism that does not implicate the right to political protest. (25) The right to protest is critical to a functioning democracy (26)--but so too is the ability to live free from a persistent threat of violence. (27) It is thus difficult to express when, exactly, we should label an act that is meant to create political pressure as an act of terrorism. This difficulty is compounded when new domestic skirmishes give rise to calls for new tools to police and deter certain behaviors. (28) As Daniel L. Byman from the Brookings Institution acknowledges, "[o]ne person's terrorist is another person's freedom fighter." (29)

There is no single federal crime of domestic terrorism. (30) 18 U.S.C. Sections 2331(5) and 2332b(g)(5) offer definitions of terrorism, (31) but neither act as a criminal enforcement statute in itself. (32) Actions that meet the statutory definition must be prosecuted under other criminal statutes. (33) This has led many to call for new domestic terrorism sanctions, with increasingly severe punishments. (34) However, others have noted that a myriad of vehicles for criminalizing domestic terrorism already exist. (35) In fact, scholars have said that it is "unlikely" that Congress understands the "full scope of the government's power" to prosecute terrorism. (36)

This Note focuses on one of these federal sentencing tools, the so-called "terrorism enhancement:" section 3A1.4 of the United States Sentencing Guidelines. It is a powerful tool that allows the government to prosecute those who act in ways deemed politically radical. Its scope is broad, and its effects are punishingly severe. This Note explores how the terrorism enhancement has emerged as an effective weapon wielded against those who intentionally commit criminal acts as a form of political protest. Ultimately, this Note argues that the enhancement may be used to punish acts meant to cause mass panic, however it must not be used to suppress legitimate forms of political protest.

Part I reviews the statutory language of the terrorism enhancement, the legislative intent of the Congresses that enacted and amended it, and how judicial interpretation of the enhancement has dramatically increased the breadth of its potential application. (37) Part II explores some of the ramifications of the terrorism enhancement's broad scope and language, and its use in cases of political protest. (38) Part III evaluates the underlying purposes of criminalizing domestic terrorism, and the validity of the various policy goals inherent in the enhancement's language. (39) Lastly, Part IV proposes amending the terrorism enhancement so that it applies in a much narrower set of cases. (40)

1. POLITICAL ORIGINS OF THE TERRORISM ENHANCEMENT

   A confluence of political factors emerged in the 1990s and 2000s that allowed policymakers and Circuit Court judges to turn the terrorism enhancement into a broadly applicable tool of criminal sentencing. Already deep into the tough on crime era, (41) three attacks on American soil within a ten year period--the 1993 World Trade Center bombing, the 1995 Oklahoma City attack, and the September 11th attack--shocked the American public. (42) Congress responded, in part, by creating the terrorism enhancement and expanding its scope with each subsequent attack. (43) As described below, the resulting enhancement gave courts a "far-reaching power" (44) to severely punish many individuals, some of whom may lack a motivation to incite terror.

   This Part outlines the language and legislative history of the terrorism enhancement. Section LA reviews the terrorism enhancement's passage, its language, and the function it serves in criminal cases. Section I.B then explores the relationship between the jury and the sentencing judge, and how the terrorism enhancement evolved into a recommended guideline for sentencing judges--but not juries--to consider. Finally, Section I.C explains how the terrorism enhancement has dramatically expanded in scope in the decades after its passage, through both Congressional direction and judicial interpretation.

   1. Enactment of the Terrorism Enhancement

      In 1993, a bomb attack in the parking garage of the World Trade Center killed six people and wounded thousands more. (45) This attack shocked the nation, and prompted Congress to crack down on acts of international terrorism. (46) As part of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), Congress directed the Sentencing Commission to "provide an appropriate enhancement for any felony... that involves or is intended to promote international terrorism." (47)

      The VCCLEA was an enormous bill that dramatically increased criminal punishments for a whole host of acts. (48) Part of a national strategy of getting tough on crime, Republicans and Democrats alike used this bill as an opportunity to demonstrate their commitment to mass incarceration. (49) While the terrorism-related provisions were only a small portion of the bill, this rhetoric was just as prevalent in justifying new terror sanctions. (50) Senator Charles Schumer called the World Trade Center attack a "wakeup call, [] a shot across the bow, importuning us to act." (51)

      Following Congress's directive, the Sentencing Commission added the...