Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, and the Courts

Abstract

There is considerable uncertainty surrounding the law and policy of federal sentencing. This uncertainty can be traced to United States v. Booker, in which the Supreme Court struck down the existing system of mandatory Federal Sentencing Guidelines, but preserved them as “advisory.” Federal courts at all three levels have since struggled with the legal status of the Guidelines and how to apply them. The Court’s recent decision in Peugh v. United States seems to treat the Guidelines as true “law.”

This uncertainty has serious consequences for the “War on Terror.” The Article III courts are the principal forum in which terrorism suspects are tried. If guilty, the suspects’ sentences will often be pushed sharply upward by the operation of the “terrorism enhancement” of the Guidelines. Courts are split on how to apply the enhancement. Its status as an advisory mandatory minimum—reflecting a “get tough” policy that originated in Congress—is in tension with goals of individualized sentencing.

This Article examines that tension’s origins in Booker and examines how it has played out at both the trial and appellate levels in cases applying the enhancement. The Article also recommends drawing a distinction between cases where district courts depart from the enhancement based on an individualized application of the basic federal sentencing statute, 18 U.S.C. § 3553(a), and cases based on a policy disagreement with the enhancement. The Article criticizes the latter approach, and calls on appellate courts to overturn sentences based on it. The result may be a set of special rules for terrorism cases. However, the enhancement’s congressional origins and recent Supreme Court decisions in such diverse areas as standing, pleading, and freedom of speech support this approach.