DOING MORE GOOD THAN HARM: ALTERNATIVES TO INCARCERATION FOR YOUNG PEOPLE CHARGED WITH CRIMES OF TERRORISM.

• Author: Stephens, Nora Leslie

Introduction 198 I. Who Are Material Support Defendants and How Are They Sentenced? 202 A. The Material Support Crime 202 B. The Sentencing Guidelines and the Terrorism Enhancement 205 C. Numbers and Types of Terrorism-Connected Prosecutions 209 D. Monetary Costs of Imprisonment 211 E. The Current State of Diversion Programs in the Federal Court System Generally, and in the Eastern and Southern Districts of New York Specifically 211 II. Incapacitate or Rehabilitate: What Is in the Nation's Best Interest? 215 A. What Best Ensures the Nation's Safety? 215 i. Differing Theories on Deterrence and Incapacitation 216 ii. The Realities of Radicalization in Prison and the 20-Year Maximum Sentence 219 iii. The Role of Supervised Release 222 B. Young People's Ability to Rehabilitate 225 i. United States v. Ceasar: Why an EDNY Judge Disregarded Sentencing Recommendations for a Young Material Support Defendant 229 III. The Current State of Terrorism-Related Diversion Programs in the United States and Beyond 230 A. Minneapolis's Diversion Program for a Young Person Charged with Material Support 230 i. The Minneapolis Diversion Program's History 231 ii. Critical Aspects of the Minneapolis Program 232 B. What Can Be Learned from Other Countries That Successfully Utilize These Programs 235 C. Avoiding Pitfalls of Diversion Programs Generally and Countering Violent Extremism Programs Specifically 239 i. Pitfalls of Diversion Programs 239 ii. Pitfalls of Countering Violent Extremism Programs 240 IV. An SDNY-EDNY Diversion Program for Young People Charged with Material Support 241 A. Judges Who Have Expressed A Need for Material Support Diversion Programs 242 B. U.S. Attorney's Office for the Eastern District of New York Created a Deradicalization Program 243 C. What an SDNY-EDNY Diversion Program Could Look Like 245 i. Re-Pluralization 246 ii. Choice 248 iii. The Role of Family and Community 248 iv. Opportunity to "Fail" Without Drastic Repercussions 250 Conclusion 252 INTRODUCTION

At age 18, over pinball and pickup basketball games, Abdullahi Yusuf was first introduced to ISIS propaganda via YouTube videos. (1) ISIS served as a solution to the teen's alienation. (2) Yusuf was drawn to the allure of extremist beliefs, that one organization could solve his problems. (3) A few months later, he left for the Minneapolis-Saint Paul International Airport to board a flight to Syria. (4) Yusuf was attempting to join ISIS. (5) Instead, he was arrested and charged with providing material support to a Foreign Terrorist Organization (FTO). (6)

But Yusuf was granted an opportunity most other material support defendants are not: participation in a rehabilitation program structured by his judge, the U.S. Attorney's office, and a world-renowned expert on deradicalization. (7) The expert, Daniel Koehler, believes that giving people an opportunity to change is core to living in "a democratic, pluralistic society." (8) Yusuf s successful completion of the program meant he would not spend the next decade or two behind bars. (9)

"Young people," defined as those under 25, (10) make up the majority of the U.S. population charged with the federal crime of providing material support to an FTO. (11) Material support statutes are the principal means of confronting would-be terrorists, including those in the early stages of indoctrination (12)--the material support statutes are deliberately broad to facilitate arrests before any violence occurs. (13) Material support conduct includes actions such as donating funds, communicating online, and intending to move abroad to join an FTO. (14) Although most material support offenders can receive up to a statutory maximum sentence of 20 years, most receive a lesser sentence. (15)

When a defendant is offered and has completed a tailored alternative to incarceration program, judges are generally more likely to opt for a sentence below the maximum. (16) Such a program may also help the public feel safer once a material support defendant returns home. The only such diversion program specifically created for young persons charged with material support was in Minneapolis, Minnesota, through the District of Minnesota. (17) In 2016, the Minneapolis program aimed to rehabilitate a young person charged with material support to ISIS. (18) Yusuf, who was 18 at the time of his arrest, pursued a path of re-pluralization as opposed to a possible double-digit long prison sentence. (19) "Re-pluralization," a term coined by German radicalization expert Daniel Koehler, (20) is "the careful reintroduction of problems and solutions into a radicalized person's life, so that they can [choose to] no longer devote all their mental energy to stewing over [extremist thinking]." (21) "Through positive and supportive personal relationships, mentoring, capacity building, [and] education," Yusuf chose to understand that no one organization can solve his problems. (22) Re-pluralization education teaches that decisions need not be binary, that much of life is made out of the gray, not the stark black and white. That teenager is now 23 years old and leading a successful life in Minneapolis. (23) No matter where on the radicalization spectrum the defendant is, it is best for the broader community if the defendant has an opportunity to deradicalize.

Although Yusuf is the first and, so far, the only graduate of the 2016 Minneapolis program, (24) the program's monumental goals warrant emulation. The Minneapolis program's success should serve as inspiration for the Southern and Eastern Districts of New York, where nearly 20% of all ISIS-related cases are prosecuted. (25) This means that two of the nation's 94 federal district courts hear nearly one out of every five ISIS-connected cases. (26) Thus, the Southern District of New York (SDNY) and the Eastern District of New York (EDNY), separated by a ten-minute subway ride, should consider implementing their own material support diversion program--either pre-trial or post-sentencing.

This Note argues that a tailored diversion program for young people charged with material support will combat excessively harsh sentences and do more to prevent terror than incapacitation prevents. (27) The enactment of a diversion program for young material support defendants in SDNY and EDNY would be a first step towards rehabilitating individuals and preventing further radicalization. Part I explains the material support statutes and how the terrorism enhancement applies under federal sentencing guidelines. Part I also describes the number and types of prosecutions for terrorism-related charges, the various costs of long-term imprisonment, and the status of current diversion programs in the federal system and in SDNY and EDNY. Part II questions what is in the nation's best interest: long terms of incarceration rooted in specific deterrence or rehabilitation for vulnerable young people who might further radicalize in prison? Part II also explains how the attenuated material support statutes, coupled with the terrorism enhancement, impact young defendants and considers why young people should be sentenced differently than adults. Part III examines the outcomes of the District of Minnesota's terrorism diversion program and of other countries' terrorism diversion programs. Part III also explains some of the pitfalls of diversion programs in general and the specific concerns of relevant stakeholders most interested in seeing the program succeed. Part IV contends that for EDNY and SDNY to successfully rehabilitate people convicted of material support, it is most effective to provide these defendants with a structured program focused on re-pluralization, which includes family, community, choice, and the ability to make mistakes.

1. WHO ARE MATERIAL SUPPORT DEFENDANTS AND HOW ARE THEY SENTENCED?

   1. The Material Support Crime

      Material support is typically prosecuted under two federal criminal statutes: 18 U.S.C. [section] 2339A for providing material support to terrorists and 18 U.S.C. [section] 2339B for providing material support or resources to designated FTOs. (28)

      The 1993 World Trade Center bombing was the impetus for the first material support statute. (29) It was amended in 1996 after the Oklahoma City bombings. (30) The September 11, 2001, World Trade Center attacks led to further amendments through the Patriot Act. (31) In the statutes' first six years, from 1994 to 2000, there were only six material support cases. (32) By contrast, 92 material support cases were brought in the three years following September 11. (33) After September 11, material support became the Justice Department's most frequent anti-terror charge. (34) Convictions under the material support statutes "require no proof that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism." (35) Therefore, "what makes the law attractive to prosecutors--its sweeping ambit--is precisely what makes it so dangerous to civil liberties." (36)

      18 U.S.C. [section] 2339A defines "material support" as:

      any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation.... (37) Material support violation sentences range from time served to the 20-years maximum. (38)

      A wide range of conduct constitutes material support. Everything from raising $300 for Al Shabab (39) to boarding a plane with the intent to find and join ISIS abroad to helping prepare an attack on U.S. soil with those who will execute it. (40) The statutes were written with the intent of broad use, and the government has prosecuted individuals under this extensive scope. Professor Sameer Ahmed explains: "As part of the War on...