Punishing Terrorists

• Author: Mindy S. Bradley-Engen,Kelly R. Damphousse,Brent L. Smith
• Date: 01 December 2009
• Published date: 01 December 2009
• DOI: 10.1177/1057567709348357
• Subject Matter: Articles

Punishing Terrorists

A Re-Examination of U.S. Federal

Sentencing in the Postguidelines Era

Mindy S. Bradley-Engen

University of Arkansas, Fayetteville, Arkansas

Kelly R. Damphousse

University of Oklahoma, Norman, Oklahoma

Brent L. Smith

University of Arkansas, Fayetteville, Arkansas

The empirical literature on the theory and practice of sentencing politically motivated

offenders such as terrorists in U.S. federal courts is limited. Thus, we know relatively little

about the dealings between terrorist offenders and the criminal justice system or how these

interactions may be influenced by changes in American legal or political context. This

study summarizes previous findings relative to sentencing disparity among terrorists and

nonterrorists in U.S. federal courts prior to the imposition of the U.S. Sentencing

Guidelines. We then identify events occurring after the advent of the guidelines, including

the early acts of terrorism on American soil. We evaluate the sentencing of terrorists versus

nonterrorists following the confluence imposition of the guidelines and these events. We

determine whether and how the sentencing disparity between terrorist and nonterrorist has

changed since the implementation of the U.S. Sentencing Guidelines and the terrorist events

of the early 1990s. Based on our findings, we put forth suggestions as to the possible ways

these conditions may have affected sentencing outcomes.

Keywords: police training; police perceptions; youth-related incidents; police work; law

enforcement

Introduction

Investigations of interactions between justice agencies and terrorists may often be hin-

dered by political, legal, practical, and public safety concerns. As a result, research on

this issue is often limited by the unavailability of data. Thus, although the growing body

of literature on terrorism investigates patterns of global terrorism (e.g., LaFree, Morris,

Dugan, & Fahey, 2006), terrorist networks (e.g., Asal, Nussbaum, & Harrington, 2007),

media coverage (Chermak & Gruenewald, 2006), and societal responses to terrorism

(e.g., McCauley, 2006), relatively less attention has centered on correlates of punishment

Authors’ Note: Please address correspondence to Mindy S. Bradley-Engen, Department of Sociology and

Criminal Justice, University of Arkansas, 211 Old Main, Fayetteville, AR 72701; e-mail: mwbradl@uark.edu.

International Criminal

Justice Review

Volume 19 Number 4

December 2009 433-455

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of convicted terrorists. In a notable exception, the U.S. Sentencing Commission did provide

sufficiently detailed records involving defendants in terrorism trials during the 1980s that

allowed researchers to derive a comparative sample of terrorists and nonterrorists convicted

of the same lead offenses during the presentencing guidelines era. These results were

reported in a series of articles (Smith & Damphousse, 1996, 1998).

This research revealed at least three important findings. First, terrorists received substan-

tially longer sentences than similarly situated nonterrorists. Smith (1994) and Smith and

Damphousse (1996) found that for terrorists, governmental response is significantly more

severe and uncompromising than for traditional federal offenders convicted of similar fed-

eral crimes. Terrorist sentences during the study era (1980–1987) were, on average, about

4½ times longer than those for nonterrorists matched by year and primary offense code.

Second, they found that political motive—whether the polity ‘‘labeled’’ the offender as a

terrorist or not—was the best predictor of sentence length, despite controls for numerous

demographic variables, offense severity, and disposition.

Finally, Smith and Damphousse (1998) found that the ability to predict the sentences of

terrorists appeared to be substantially better than the ability to predict the sentences of non-

terrorists. Explained variance was approximately four times higher among a terrorist sam-

ple than among a matched nonterrorist sample using the same predictor variables.

Furthermore, they found that the level of explained variance was highest under conditions

reflective of Hagan’s (1989a) structural-contextual theory and the ‘‘liberation hypothesis,’’

that is, under conditions of a proactive political environment (as in terrorism) and where

crime severity was ‘‘high’’ (Smith & Damphousse, 1998, p. 81).

Whether these findings remain relevant, however, is questionable. While the 1998 article

found support for both structural-contextual theory and the liberation hypothesis, it is

not known whether these models remain useful predictors. The findings may be mere

artifacts—relevant only in the presentence guidelines era. The criminal justice processes

that lead to sentencing outcomes for terrorists are not static. In the current study, we hope

our re-examination of prior research questions can provide new insight into criminal justice

responses to terrorism in light of historical and legal events.

Literature Review

Currently, we do not know whether and/or how the sentencing of terrorists may have

changed since earlier studies during the preguidelines era. In addition, we do not know

whether the variables that explained sentence disparity between terrorists and nonterrorist

in the presentence guidelines era remain the same or have become more or less important as

a result of implementation of the federal sentencing guidelines. Perhaps more importantly,

the effect of the confluent implementation of the federal guidelines and the public’s emer-

gent fear of extremism following the terrorist attacks of the 1990s suggest that the previ-

ously found sentencing disparities between convicted terrorists and their nonterrorist

counterparts may have substantially changed. That is, although earlier studies did provide

information on the sentencing of terrorists then, the sentencing patterns of terrorists versus

nonterrorists may be very different now.

Thus, although previous research found significant disparity in the punishment of terror-

ists and similarly situated nonterrorists convicted during the 1980s (Smith & Damphousse,

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