Volume 109

Irredeemably Violent and Undeterrable: How Flawed Assumptions Justify a Broad Application of the Terrorism Enhancement, Contradict Sentencing Policy, and Diminish U.S. National Security

by Stephen Floyd

Some see the terrorism enhancement as a “draconian” measure that treats disparate crimes alike and is founded on a “monolithic perception of terrorism.” Others declare terrorism a “modern-day . . . bubonic plague” and note that the enhancement reflects Congress’s explicit legislative intent. From this perspective, the enhancement’s severity and sweep are justified because terrorists are “unique among criminals.” Driven by ideology, they are irredeemable, undeterrable, and refractive to rehabilitation. Following the Supreme Court’s decision in United States v. Booker—that the Guidelines are merely advisory in nature—federal courts have had to chart their own courses through these philosophic contradictions and competing objectives.

The first three Parts of this Note explore the divergent ways federal courts have sought to reconcile this conflict and apply the terrorism enhancement to material support offenses. Part I examines how courts have interpreted Section 3A1.4’s requirements to create a framework in which a broad array of material support offenses can trigger the enhancement. In Parts II and III, this Note explores the split among federal courts over when the enhancement should apply. Some courts justify its broad application by reasoning that terrorists are distinct from other criminals and refractive to rehabilitation. These courts apply the terrorism enhancement even when first-time offenders are convicted of nonviolent, material support crimes. In Part III, however, this Note highlights several decisions in which courts distinguish defendants who directly facilitated violent attacks from those with more attenuated involvement. In these cases, judges have refused to apply the terrorism enhancement or justified a downward departure based on a defendant’s unique history, the nature of the offense, and the potential for rehabilitation.

Part IV then examines whether research into the nature of violent extremism supports the assumption that terrorists and their supporters are truly distinct from other criminals. In reviewing the work of psychologists who have explored such issues, this Note finds that a categorical approach, which treats all terrorists and facilitators alike, does not align with current understandings of radicalization and ignores the potential for rehabilitation. After considering disengagement and rehabilitation efforts in the Netherlands and Italy, this Note finds that a more nuanced approach to terrorism sentencing could enable some nonviolent offenders to disengage from violent extremism and lead productive lives in society.

The final Part of this Note argues that the broad application of Section 3A1.4 to material support offenses is ultimately counterproductive because it may actually increase the chance of recidivism, facilitate further radicalization, and impede overarching U.S. counter-terrorism goals. This Note finds that the sweeping application of the terrorism enhancement to disparate crimes not only undermines the legislative intent of the Sentencing Guidelines but is also unsupported by empirical research and decreases U.S. national security. Ultimately, this Note recommends that Congress and the Sentencing Commission revise the terrorism enhancement to apply more narrowly and exclude material support offenses.

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