Terror Enhancement Penalties

ABC has sent me an email promoting a story entitled, “Should a Group of Radical Environmentalists Be Considered Terrorists?”

The FBI has called them “the No. 1 domestic terrorism threat,” and their members include four of the Bureau’s 11 Most Wanted homegrown terrorists. Yet in more than 1,100 acts of arson and vandalism, the members of the Earth Liberation Front have never killed a single person. When sentencing begins today, however, they could receive terrorist sentences.

The government saw it 16 months ago when federal agents arrested 10 members of the loose-knit activist group and an affiliate organization, the Animal Liberation Front, in an action called Operation Backfire. At the time of their arrest, Attorney General Alberto Gonzales called the cell’s $40 million dollar arson campaign — which targeted, throughout five Western states, a horse slaughterhouse, SUV dealerships, a scientific research center, logging companies and a ski resort — “a pattern of domestic terrorism activities.”

Lawyers and activists defending the saboteurs insist, however, that the terrorist label is a scare tactic. Acts of arson and property damage, they claim, have never been the stuff of terrorism indictments, and the label is intended by the government to stir public outrage, increase the length prison terms and augment the government’s rolls of imprisoned terrorists.

Today in Eugene, Ore., a federal judge will sentence Stanislas Meyerhoff, 29, the first of the 10-member cell that called itself “the family.” The other nine defendants will each be sentenced over the next several weeks. If government prosecutors can convince Judge Ann Aiken that Meyerhoff and the others — all of whom have pleaded guilty to conspiracy and arson charges — are terrorists, then they will be sentenced following federal “terrorism enhancement” guidelines, which could multiply their sentences sevenfold and land them in supermax prisons.

It seems to me we have two distinct questions: 1) Are ALF and similar groups “terrorists”? 2) Should those we label “terrorists” be treated differently for the exact same actions as those we do not label “terrorists”?

The first seems rather easy, four pages* of handwringing by ABC notwithstanding. Of course they’re terrorists. Is it a terrorist act when the Ku Klux Klan burns a cross in a black family’s yard in the middle of the night? The use of criminal violence to incite fear and affect political change is, by most any definition, “terrorism.”

The second question also seems rather easy, at least as framed. Arson is arson. Murder is murder. Harassment is harassment. Battery is battery.

Yet, we have a long tradition of creating separate categories of crime treating those who commit illegal acts for motivations that we have deemed politically repugnant. Thus those who commit vandalism, arson, battery, or murder motivated by racial animus are charged with “hate crimes” and given much harsher penalties. Those who assemble to intimidate abortion clinic workers are charged under RICO whereas those who assemble to intimidate potential replacement workers and other would-be picket line crossers are generally let be.

Giving government officials the power to designate certain perpetrators as “special” and thus more deserving of harsher treatment for the same offense obviously gives them the power to abuse that discretion. Special tools given to law enforcement to go after organized crime, drug lords, and terrorists are going to be used to go after particularly slick criminals who would not have been envisioned when those tools were created. Further, the ability to charge someone with a “super crime” can be used as a lever to coerce people into giving up their right to due process, settling instead for a plea bargain to the crime for which they probably should have been charged to begin with.

It’s far from clear that’s happening here. ALF is arguably as dangerous as the “militia” and white supremacist groups for whom this law was created. Still, that it could happen is problematic. And I’m not at all sure that people who burn down buildings because they love animals are any more deserving of harsh treatment than those who do it because they like seeing things burn down or because they want the insurance money.

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*I share Megan McArdle‘s pet peeve about web editions that split articles into multiple pages as if they were somehow limited as they are in print.

FILED UNDER: Law and the Courts, Terrorism, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tlaloc says:

    “Hate crime” laws are idiotic. The proper way to take into account a racist motivation is during sentencing. Why? because it indicates that there is a strong possibility for the offender to commit the crime again.

    Similarly mobsters and gangsters should recieve harsher sentences not because their crimes were worse but because of their voluntary association with groups that encourage such crimes, meaning once again they are more likely to re-offend.

  2. Tlaloc says:

    Considering the ELF and the ALF as serious domestic terrorist threats is a joke. We have a number of groups in this country that have committed actual murder. And yet the property damage of the EFL/ALF is ranked higher.

    What does that say about our values?

  3. James Joyner says:

    I think it says that we treat groups who commit thousands of crimes more seriously than those who commit a handful.

  4. Do not the offending websites get more page hits or a chance to display more ads by splitting an article into multiple page views? That would seem a more fitting rationale than being limited by a “hardcopy” mentality.

    To consider something a hate crime means that the state must necessarily judge thoughts rather than actions. A slippery slope indeed. Mr. Orwell was, once again, quite prescient on this topic.

  5. James Joyner says:

    Yeah, I get the ad thing. Some of Megan’s commenters noted that as well. Still, annoying.

  6. yetanotherjohn says:

    I would tend to put this in the category of a hate crime, i.e. let the existing laws handle it. By the way, absent the terrorism multiplier, doesn’t the judge have discretion to have the defendants serve out their sentences in parallel or in series? Even if you only have 3 months per arson charge, 11,000 acts should keep them off the street if they ran in series.

    On the other hand, while I’m not a fan of RICO, isn’t this exactly the sort of thing it is supposed to handle? A group of people conspiring to commit a series of crimes.

  7. Tlaloc says:

    I think it says that we treat groups who commit thousands of crimes more seriously than those who commit a handful.

    Perhaps then Critical Mass should be the #1 terrorist organization. They violate thousands, if not millions, of traffic laws every time they have a gathering.

    Or maybe the severity of the crime is rather important. Serial Jaywalkers are far less serious than even one time murderers, and all that, wouldn’t you say?

  8. just me says:

    Considering the ELF and the ALF as serious domestic terrorist threats is a joke. We have a number of groups in this country that have committed actual murder. And yet the property damage of the EFL/ALF is ranked higher.

    But the monetary loss isn’t small, and people may see their businesses and livlihoods destroyed.

    Not to mention that choosing to use arson as a tool to state their cause is extremely risky, just because somebody hasnt died that doesn’t mean they won’t.

    All that said I am not too keen on enhancement of sentences based on motivations, I am not a fan of hate crimes legislation and I am not a big fan of the various RICO statutes-I think we should simply define the crimes and punish according the crime committed-whether they did it for the fun of it, or did it to make a political statement.

  9. Tlaloc says:

    But the monetary loss isn’t small, and people may see their businesses and livlihoods destroyed.

    As opposed to being murdered which opens up all kinds of economic doors…

    I’m not saying they aren’t committing crimes. I’m saying placing them on the wanted list above groups that have killed people is insane.

    Which is a bigger threat the ELF of the KKK? One has a record of toe tags. The other doesn’t. Question answered.

    Not to mention that choosing to use arson as a tool to state their cause is extremely risky, just because somebody hasnt died that doesn’t mean they won’t.

    Even *IF* that happens they still aren’t murderers. Guilty of homicide? Sure. But there’s a big difference between someone who *WANTS* to kill (see KKK above) and someone who didn’t mean to and just made a mistake (see hypothetical fantasy ALF/ELF).

    It is a sick society that ranks property damage a worse crime than deliberate premeditated murder.

  10. Mark says:

    I’m not saying they aren’t committing crimes. I’m saying placing them on the wanted list above groups that have killed people is insane.

    So hypothetical – say the KKK never lynched anyone, they simply placed crosses in front of black people’s homes and maybe burned the home down when no one was there. Is that terrorism? After all, it’s just simple “property damage” according to Tlaloc.

    The American Heritage Dictionary defines terrorism as such:

    The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons.

    I would say based on the definition, groups like ALF and ELF fit the definition of terrorism pretty well.

  11. just me says:

    Tlaloc just curious but how many people has the KKK killed in the last 10 years?

    Most of the KKK action I have seen in the news involves idiotic parades through predominately minority areas of cities and towns (or at least demands to be allowed to do so). Not outright murders.

    And all racially motivated murders do not equal action by the KKK as an organization.

  12. Bandit says:

    Considering the ELF and the ALF as serious domestic terrorist threats is a joke.

    No doubt Being avowed terrorists, making terrorists threats, kidnapping, torture, arson is a big effing joke.