The first-of-its-kind analysis, completed by terrorism researchers at the University of Maryland, was provided exclusively to The Associated Press.
People convicted of crimes related to domestic extremism face far shorter prison terms than those convicted in international terrorism cases, even when the crimes are similar, a new report on the outcomes of hundreds of federal criminal cases has found.
The first-of-its-kind analysis, completed by terrorism researchers at the University of Maryland, was provided exclusively to The Associated Press.
It comes after federal officials and researchers have repeatedly identified domestic violent extremists such as white supremacists and anti-government groups as the most significant terror threat to the U.S. And it follows scrutiny of the outcomes of Jan. 6 cases, including for some Oath Keepers and Proud Boys who received sentences years lower than what was called for by prosecutors and sentencing guidelines.
President Joe Biden has echoed the concerns about domestic terrorism, calling it a “stain on the soul of America” and the “ most urgent terrorism threat ” faced by the country, yet the new analysis shows that on average, domestic extremists receive more lenient penalties.
“This research is significant in confirming empirically what many have long argued: international terrorism cases are sentenced more harshly than domestic cases, even when the conduct is the same, and that these disparities are due to a combination of differences in the law and biases in implementing them,” said Shirin Sinnar, a professor at Stanford Law School, who was not involved in the research but reviewed it at the request of the AP.
Researchers at the University of Maryland's National Consortium for the Study of Terrorism and Responses to Terrorism, or START, and its Center for Health and Homeland Security examined federal criminal cases between 2014 and 2019 that were brought against people radicalized in the U.S. who were pursuing political, social, economic or religious goals.
International terrorism cases were defined by the researchers as those in which the defendants had links to or were acting in support of terrorist groups or movements based outside the U.S., while domestic cases involved defendants connected to groups or movements that operate primarily inside the U.S.
The analysis looked at 344 cases, including 118 international cases and 226 domestic cases, and found the disparities are caused by multiple factors, including the charges federal prosecutors choose to file, the laws that are on the books, as well as the sentencing decisions made by judges.
Jan. 6 cases are not included in the analysis, which has not yet been peer reviewed. START's Michael Jensen, a principal investigator of the study, said 2019 was chosen as a cutoff to ensure final outcomes of even the most complex cases were captured.
Still, he said, sentencing gaps in the Jan. 6 cases that he's analysed also reflect this disparity. Federal prosecutors have even taken the rare step of appealing the sentences of some Jan. 6 defendants, including leaders of the Oath Keepers and Proud Boys, some of whose sentences were years below what federal sentencing guidelines had laid out.
START's analysis found wide disparities in prison terms for similar conduct, which were most pronounced in certain kinds of cases. The largest was in cases where defendants plotted violent attacks that ultimately failed or were foiled, where international defendants received an average prison sentence of 11.2 years, compared with 1.6 years for domestic defendants.
For violent cases that led to injuries, domestic defendants received on average 8.6 years, versus 34.6 for international defendants. The disparity was smaller, but still significant, in violent fatal attacks with domestic cases at about 28.8 years and international cases at about 39.2 years.
Even terms of supervision after prison showed differences, with people charged in domestic cases getting an average of 3.5 years, compared with more than 19 years supervision for international terrorism defendants. The researchers at START point out that this is despite evidence that the recidivism rate is about 50 percent for domestic extremists — about the same rate for all federal offenders — and “vanishingly low” for international terror defendants.
START controlled for factors already known to contribute to sentencing disparities, such as race, gender, criminal history and the use of so-called sentencing enhancements that increase the possible prison time for certain crimes. Even accounting for these other factors, international defendants still receive harsher punishments on average.
Pete Simi, a Chapman University sociologist who has studied extremism for decades, said the imbalance in treatment of domestic and international cases reflects differences in the broader criminal justice system.
“That imbalance extends well beyond the courts and sentencing but also infects policing and intelligence gathering and analysis,“ said Simi, who was not involved in the research.
Federal law makes a distinction between international and domestic terrorism. The State Department has formally designated dozens of groups operating abroad as foreign terror organisations and even marginal support to such groups that doesn't result in violence can be punishable by up to 20 years in prison. There is no comparable designation for domestic extremists such as the Proud Boys, Atomwaffen or other groups with a history of violent plots and acts.
Sinnar, who has written extensively about terrorism cases, said the disparities are indicative of numerous biases throughout the criminal justice system.
“At least for Muslims, many cases that might be labeled failed or foiled' plots were likely plots generated by government informants trying to goad individuals into crimes in the first place, and then foil them in order to arrest the supposed perpetrators,” Sinnar wrote in response to AP questions.
“It's exactly in these preventative' cases where you would expect to see the biggest differences -- as opposed to the rarer cases that actually lead to fatalities, in which homicide charges are available regardless of the international/domestic distinction.”
Indeed, a federal judge in March freed three men convicted in a post-9/11 terrorism sting after deeming their lengthy sentences “unduly harsh and unjust.” The judge decried the FBI's role in radicalizing them in a plot to blow up New York synagogues and shoot down National Guard planes, and reduced their mandatory minimum 25-year prison sentences imposed in 2011 to time served plus 90 days.
In the cases studied, terrorism-specific charges and sentencing enhancements that increase prison time were disproportionately applied to international defendants. Chief among those is the material support statute that can only be used for cases linked to international terrorist groups; a related statute that may be used for domestic terrorism was rarely invoked. Federal prosecutors used the international material support charge in 50 percent of international cases; it was just half a percent in domestic ones – a single case.
People charged in violent domestic cases also often faced less serious charges not often associated with crimes of terror, like illegal possession of firearms, the study found. The so-called terror enhancement that increases prison time was used in 60 percent of international cases, compared with just 15.4 percent in domestic ones.
George Varghese, a former national security prosecutor, said prosecutors had been hamstrung by how the law treats international terror differently than domestic extremism, but that courts also bear some responsibility.
“These domestic terrorists are being treated more like run-of-the-mill criminal defendants and receiving sentences far below those of international terrorism defendants,” he said.
One judge, U.S. District Judge Timothy Kelly, imposed terms years below the federal guidelines when he sentenced Proud Boys including ex-national chairman Enrique Tarrio and another leader, Zachary Rehl, both of whom were convicted of seditious conspiracy. The judge said at Rehl's sentencing that he had assaulted law enforcement by spraying a chemical irritant at them, then lied about it at trial.\
Still, Kelly sentenced Rehl to 15 years, half of the lowest amount set out in federal sentencing guidelines, as he mused: “I wonder if I will ever sentence someone to 15 years below the guidelines in my entire career.”
In both Tarrio and Rehl's cases, the judge said their conduct wasn't comparable to a scenario he would typically associate with terrorism, such as blowing up a building or taking up arms against United States troops, with an intent to kill.
Kelly, through a court spokesperson, declined to comment.
In the end, terrorism experts and the study's authors said they didn't expect Congress to address these issues with new legislation anytime soon, but noted that there are current laws that could be used to help close the gap.
Jensen said the research found prosecutors were not always using all the laws available to them. When domestic extremists were charged with hate crime laws, for example, it wiped out the disparity, he said.
“The problem is, for the six years that we reviewed, the (hate crimes) charge was used 12 times. It was only used in cases that had extraordinary outcomes, in other words people died. Those are not typical terrorism events,” he said. “The use of hate crime laws would absolutely close the gap.”
The disparities are most apparent in lower-profile cases where Jan. 6 rioters assaulted police officers, Jensen told AP. He said he found that the average sentence for those defendants is 4.5 years.
”You can't find a single case of an international terrorist who injured or hurt people who got less than 20 years in prison,” he said.