INTRODUCTION I. CRIMINAL SENTENCING IN THE WARS ON TERROR AND DRUGS A. War on Terror 1. The Sentencing Guidelines Terrorism Enhancement 2. The Exceptionality of Terrorism Sentencing B. War on Drugs II. JUSTIFYING LENGTHY SENTENCES IN THE WARS ON TERROR AND DRUGS A. War on Terror 1. Justification for Terrorism Sentencing 2. Sentencing Young, Nonviolent American Muslims a. Material Support Offenses i. Shelton Bell ii. Ali Shukri Amin b. Informant Plots i. James Cromitie ii. Rezwan Ferdaus c. Making False Statements i. Sabri Benkahla ii. Abdel Hameed Shehadeh 3. Terrorism Sentencing Is Based on an Unsupported Premise a. Ideology Is Not the Primary Motivation for Many Who Commit Terrorism Offenses b. Terrorism Sentencing Is Not Supported by Empirical Evidence c. Individuals Who Commit Terrorism Offenses Can Be Deterred d. Individuals Who Commit Terrorism Offenses Can Be Rehabilitated B. War on Drugs III. THE NEGATIVE EFFECTS OF LENGTHY INCARCERATION ON AFRICAN AMERICAN AND AMERICAN MUSLIM COMMUNITIES A. War on Drugs B. War on Terror 1. Differences Between Communities Affected by the Wars on Drugs and Terror 2. Negative Consequences of the War on Terror a. Discrimination and Stigmatization b. Distrust of Law Enforcement c. Failure To Effectively Rehabilitate Offenders IV. ADDRESSING THE NEGATIVE EFFECTS OF LENGTHY INCARCERATION A. War on Drugs B. War on Terror CONCLUSION INTRODUCTION
Since 9/11, the U.S. government has undertaken an aggressive War on Terror to target violent extremist groups like AI Qaeda and ISIS that are based in Muslim-majority countries. In recent years, a handful of violent shootings and bombings by self-identified Muslims in Boston, San Bernardino, and Orlando--in addition to more deadly attacks in Europe, Africa, South Asia, and the Middle East--have exacerbated fears of terrorism and the need to combat it. For the most part, the United States has adopted a zero-tolerance, preventative counter-terrorism strategy of arresting anyone who may support foreign terrorist groups and incapacitating them with lengthy terms of incarceration. Federal law enforcement has a variety of tools at its disposal to implement this policy, including "material support for terrorism" statutes to prosecute offenders and sentencing guidelines to put them away for decades in prison. These tactics have been used even when the offenders' conduct cannot be tied to any act of violence in the United States or abroad. A primary justification given for these extraordinarily punitive measures is that those affiliated with terrorist activity--primarily young Muslim men--are uniquely dangerous: because they cannot be deterred or rehabilitated, they must instead be incapacitated to protect society from their ideologically violent goals.
Twenty to thirty years ago, similar accusations were levied against another group of individuals--young African American men--in the War on Drugs. Concerned about the rise of drug and gang violence in the 1980s and 1990s, government officials argued that remorseless inner-city "super-predators" must be incapacitated to stem the tide of death and destruction across the United States. (1) To address the problem, the government instituted a series of harsh penalties to significantly increase the criminal sentences for a wide range of drug-related conduct. However, the majority of individuals sentenced were not hardened violent criminals, but rather nonviolent low-level drug offenders. (2) Many now recognize that these War 011 Drugs policies have caused significant and disproportionate harm to African American communities, where one-third of African American men are expected to be incarcerated during their lifetime. (3) In recent years, changes in Supreme Court precedent, the United States Sentencing Guidelines, and charging policies have led to a reduction in the length of drug-related sentences, and policymakers have focused on alternative means of addressing drug crimes and rehabilitating offenders.
Similar to the War on Drugs, many of the individuals that have been sentenced in the War on Terror are not hardened remorseless terrorists. In fact, a number are young, disaffected American Muslims with little to no criminal history, whose anger over the killings of Muslims throughout the Middle East and the discrimination against Muslims in the United States has made them susceptible to the views of terrorist groups like ISIS. (4) Furthermore, just like the War on Drugs, the government's sentencing policies--in particular the Sentencing Guidelines' Terrorism Enhancement--fail to take into account the differences between a violent terrorist who has killed dozens and an American Muslim teenager who tweets support for ISIS online. Despite these similarities, this Feature contends that the lessons learned from counterproductive War on Drugs sentencing laws have not yet been translated to the War on Terror. Instead, terrorism sentencing policies have caused harm to Muslim communities similar to that of African American communities in the War on Drugs. This is despite the fact that Muslims convicted of terrorism offenses make up only a few hundred of the millions of Muslims living in the United States. (5) And, like the War 011 Drugs, the War on Terror policies have failed to serve the purposes of criminal sentencing or to contribute to an effective counter-terrorism policy.
This Feature proceeds in four Parts. Part I provides a background of the sentencing policies of the Wars on Terror and Drugs that have led to long prison terms. It argues that these policies fail to take into account the seriousness of the offense and the characteristics of the individual defendant. Part II demonstrates how policymakers justified these laws by arguing that the "unique" nature of the individuals who commit certain drug and terrorism offenses makes them unable to be rehabilitated or deterred. This Part further argues that this premise has no support, and as a result, young Muslims and African Americans have received sentences for nonviolent conduct that far exceed the purposes of federal sentencing delineated by Congress. While acknowledging that the percentage of African Americans imprisoned under the War on Drugs policies has been much higher than that of Muslims imprisoned under the War on Terror policies, Part III explains how these lengthy sentences have negatively impacted African American and Muslim communities in similar ways, including increased discrimination, distrust of law enforcement, and the failure to effectively rehabilitate offenders. Part IV explains how recent reforms have been implemented to counter these harmful consequences of the War on Drugs, leading to lower sentences and a renewed focus on rehabilitating drug offenders. However, the lessons learned from the War 011 Drugs have not been applied to the more recent War on Terror. The government has failed to sufficiently address similar concerns in the War 011 Terror largely due to an oversized fear of foreign terrorists groups as well as the desire of government officials to be viewed as "tough" on terrorism without realizing the significant adverse consequences of their policies. Just as with the recent changes to drug sentencing policies, a more effective and just counter-terrorism strategy would provide for greater nuance in sentencing terrorism offenders and focus on rehabilitation rather than only on lengthy punitive incarceration.
CRIMINAL SENTENCING IN THE WARS ON TERROR AND DRUGS
War on Terror
Soon after 9/11, the U.S. government launched the War on Terror to destroy AI Qaeda and other like-minded terrorist groups that threatened the United States and its allies. (6) As part of the War on Terror, the government adopted a strategy of proactively preventing terrorist attacks before they take place and incapacitating any individual who supports terrorist organizations. Attorney General John Ashcroft instructed the Department of Justice to "prevent first, prosecute second. (7) To achieve this goal, the government expanded a series of laws and policies to allow law enforcement officials to arrest individuals well before they can commit or support violent acts and sentence them to lengthy terms of incarceration. (8) These changes included broadening the Sentencing Guidelines Terrorism Enhancement and federal terrorism statutes. (9) As George Brown writes, "If prevention is at the heart of counter-terrorism, harsh sentences seem appropriate here as well." (10) The government does not want to "wait until there are victims of terrorist attacks to fully enforce the nation's criminal laws against terrorism." (11)
The Sentencing Guidelines Terrorism Enhancement
The primary reason why individuals convicted of terrorism-related conduct have received extraordinarily long criminal sentences is due to section 3A1.4 of the United States Sentencing Guidelines, also known as the "Terrorism Enhancement." (12) The Terrorism Enhancement significantly increases the sentencing range (known as the "Guidelines range") that federal judges use when deciding the appropriate term of incarceration.
The Terrorism Enhancement is just one of many adjustments contained in the Guidelines created by the United States Sentencing Commission. (13) The Guidelines establish various sentencing ranges based on a chart cross-referencing forty-three "offense levels" with six "criminal history" categories. (14) For example, someone convicted of a serious crime with an offense level of forty-two and a lengthy criminal history (Category VI) would receive a Guidelines range of 360 months to life, while someone convicted of a lesser crime with an offense level of twelve and very little criminal history (Category I) would receive a Guidelines range of ten to sixteen months. (15) The Guidelines also contain many adjustments based on the characteristics of the offense, the offender, or the victim. (16) The adjustments can increase or decrease the offense level and/or the...