The Morning After

• Author: Kelly R. Damphousse,Chris Shields
• Date: 01 May 2007
• Published date: 01 May 2007
• DOI: 10.1177/1043986207301362
• Subject Matter: Articles

174

Journal of Contemporary

Criminal Justice

Volume 23 Number 2

May 2007 174-194

© 2007 Sage Publications

10.1177/1043986207301362

http://ccj.sagepub.com

hosted at

http://online.sagepub.com

The Morning After

Assessing the Effect of Major

Terrorism Events on Prosecution

Strategies and Outcomes

Kelly R. Damphousse

University of Oklahoma, Norman

Chris Shields

University of Arkansas, Fayetteville

A major terrorism event has several important consequences for officials involved in

the investigation and prosecution of terrorist activities. Such events are likely to bring

increased scrutiny by both public policy officials and the media. The article uses data

from the American Terrorism Study to compare the period before and after two of the

most dramatic terrorist events on U.S. soil: the Oklahoma City bombing and the 9/11

attacks. The results suggest that whether intentional or not, major terrorism events

result in the government’s pursuing cases that are generally less serious and less com-

plicated, and those cases are treated much more like “traditional” crimes by the prose-

cution. Following the aftermath of a major event, terrorist defendants are more likely

to behave like traditional offenders and are less likely to be convicted as a result of a

trial than are terrorists who are indicted before major events.

Keywords: terrorism; sentencing; 9/11; Oklahoma City; prosecution

In the history of terrorism in America, there are two watershed events to which all

other events are compared. The Oklahoma City bombing was the first successful

large-scale attack by extremists on U.S. soil—attacking what was perceived to be

America’s heartland. For many Americans, the attack highlighted a little known

threat: the modern militia movement that had gained a foothold on our soil. The

attacks of 9/11, on the other hand, highlighted the growing threat to the American

way of life from outside the country. The deaths of nearly 3,000 victims, the wars in

Iraq and Afghanistan, and the dramatic changes to “everyday life” resulted in most

Americans denoting 9/11 as the date when everything changed. These two events not

only awakened Americans to the risks posed by international and domestic terror-

ism, they also focused tremendous attention on the agents who are charged with

maintaining public safety—notably law enforcement and prosecutors. Terrorism

events of this scale challenge each level of government, but it is the federal govern-

ment, specifically the FBI and the Office of the U.S. Attorney General, that has the

mandate to respond. Because of increased public scrutiny on effectively combating

Damphousse, Shields / Terrorism Events 175

terrorism, and because of the adoption of new rules (e.g., Uniting and Strengthening

America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism [USA PATRIOT] Act) in the wake of these events, we expect that officials

working for the FBI and the Office of the U.S. Attorney General have changed the

way they operate. The goal of this article is to assess the extent of these changes in

the context of (a) the history of how terrorism has been prosecuted in the past 25

years and (b) the theoretical explanations that predict specific outcomes as a result

of critical events such as these.

The fact is, terrorism cases are rare in the American criminal justice system. When

they do occur, their unique qualities present judges and prosecutors with legal and

extralegal issues that are not typically encountered in other cases. Terrorism cases are

more difficult to prosecute than traditional cases, even for similarly situated defen-

dants who are charged with the same offense (Smith, 1994; Smith & Damphousse,

1998; Smith, Damphousse, Jackson, & Sellers, 2002; Smith, Damphousse, Yang, &

Ginther, 2005). One unique quality of terrorism cases, for example, is the fact that

persons identified as terrorists are far more likely to end up going to trial than tradi-

tional defendants (Shields, Smith, & Damphousse, 2006; Smith & Damphousse, 1996,

1998; Smith et al., 2002). In addition, the public sentiment and media coverage

focused on the defendants, their motivation, and their victims can compound the dif-

ficulties of winning a conviction.

By their very nature, major terrorism incidents such as the Oklahoma City bomb-

ing and the September 11, 2001, attacks often result in intense national media atten-

tion that places the spotlight on prosecution strategies and case outcomes (Chermak,

2003a). This added media attention is exacerbated by the fact that a relatively high

percentage of terrorism cases result in a trial, so there is much to report on. Following

the 9/11 attacks, media attention on the prosecution of terrorism cases has been espe-

cially focused and critical (see, e.g., Long & Merzler, 2005; O’Hagan, 2004).

Despite the media attention on terrorism cases, few research studies have assessed

the effect that “major” cases have had on terrorism investigations and prosecutions.

The need for more research is particularly salient when one considers the tremen-

dous resources that are currently being devoted to fighting terrorism.

This article focuses on changes in terrorism prosecution strategies by the federal

government from 1980 to 2002 in response to two major events: the Oklahoma City

bombing and the 9/11 attacks. Our analyses allow us to assess the relationship

between these major events (and the presumptive media attention that resulted from

the attacks) and the types of strategies used by prosecutors following the event.

To accomplish this task, it is important to place our discussion in context. We do

this by describing the historical background of prosecuting terrorism cases in the

United States and then provide a brief description of the differences between terrorism

cases and traditional cases. After a review of the pertinent literature,we establish a the-

oretical framework using structural contextual theory (Hagan, 1989) and the trickle-up

perspective (the “hydraulic effect”) (Walker, 2005) to test our research questions.