Federal Prosecution of Terrorism-Related Cases: Conviction and Sentencing Data in Light of the 'Soft Sentence' and 'Data Reliability' and Critiques
51 Pages Posted: 13 Aug 2007 Last revised: 16 Mar 2009
This symposium article examines two critiques associated with post-9/11 criminal prosecutions in terrorism-related cases. The data-reliability critique attacks the reliability of the statistics reported by the Justice Department in connection with such cases, while the soft-sentence critique suggests that claims of success in such cases might be overstated in light of the relatively short sentences they produce.
I conclude that the data-reliability critique largely reflects disagreement regarding the types of cases that ought to be coded as terrorism-related. This dispute came to a head in the spring of 2007 in connection with a report issued by the Department's Inspector General, prompting the Executive Office for United States Attorneys (EOUSA) to revise its case code definitions. Whether the revised codes will suffice to resolve the data-reliability critique remains to be seen.
The soft-sentence critique in turn reflects the definitional dispute underlying the data-reliability critique; the Department's inclusion of preventive charging cases (and other such cases not involving overt allegations of involvement with terrorism) in its terrorism-related statistical categories inevitably leads to relatively brief aggregate sentences. It does not follow, however, that the Department has obtained similarly-brief sentences in cases that do involve allegations of conduct relating in some fashion to terrorism. Rather than examining disposition and sentencing data solely based on the controversial EOUSA case categories, therefore, I advocate reliance also on data developed on a per-offense basis. I conclude the paper with an example of such a study, focused on two statutes: 18 U.S.C. - 2339B (prohibiting the provision of material support to designated foreign terrorist organizations) and 50 U.S.C. - 1705 (criminalizing transactions in violation of sanction orders issued under the International Emergency Economic Powers Act). The study includes all prosecutions under both statutes between 9/01 and 7/07 (for the IEEPA statute, it lists only those prosecutions arising out of terrorism-related IEEPA orders), and finds that they yield sentences considerably more substantial than the low numbers emphasized in the soft-sentence critique.
Keywords: terrorism prosecution statistics
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