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Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions - Part 8


A Report by Human Rights Watch

July 21, 2014

V. Disproportionate Sentences

Sentences in terrorism and terrorism-related cases vary considerably. In the 494 terrorism and terrorism-related prosecutions we reviewed based on Department of Justice data, defendants who went to trial received a median sentence of 11.3 years, while those who took plea agreements received a median sentence of 3.2 years. More than one-third of those who took a plea deal received either no prison sentence or a sentence of time served. [546]

However, 91 defendants received sentences of 15 years or more, including 19 life sentences (which, in the federal system, means life without the possibility of parole).[547] Over one in ten of defendants who were convicted by trial received a life sentence.[548] In many of the cases we documented, these lengthy sentences appeared disproportionate to the underlying offense.

Lengthy sentences violate international human rights law and US constitutional law when they are grossly disproportionate to the offense committed and the individual’s culpability.[549] Both US and international human rights jurisprudence on sentencing emphasize the importance of a judicial determination based upon individualized consideration of the defendant.[550]

Disproportionate sentences are a pervasive problem in the US criminal justice system, as Human Rights Watch has documented in various contexts.[551] Under federal law, sentences should be no longer than necessary to further the purposes of punishment.[552] In the terrorism context, disproportionate sentences can occur due to the use of “terrorism adjustments” which may be based on allegations of terrorist involvement that are not proven in a criminal trial.

The “Terrorism Adjustment”

Federal judges making sentencing determinations for any federal crime are to take into account as a starting point the guidelines issued by the US Sentencing Commission. Because the guidelines are advisory, judges may depart from the sentencing ranges they establish to lengthen or reduce sentences.[553] By statute they must consider a range of factors in sentencing, including the individual characteristics of the defendant and the purposes of sentencing as applied to a particular case.[554]

The sentencing guidelines establish sentencing ranges based on a matrix, which cross-references 43 “offense levels” with six “criminal history” categories.[555] For example, the offense level for homicide is the highest, 43, while involuntary manslaughter starts at level 12.[556] The guidelines also contain “adjustments” based on qualities of the offense, the offender, or the victim. These adjustments have the effect of raising, and in some cases lowering, the offense level or criminal history category level. [557]

Among all of the adjustments in the federal sentencing guidelines system, the terrorism adjustment has the most drastic effect of lengthening sentences, and it stands out for applying across a wide range of conduct.[558] (The history of the adjustment is briefly explained below.) The adjustment raises the offense level by 12, and if the resulting offense level is less than 32, it creates a minimum offense level of 32—regardless of the character of the actual crime. It also automatically raises a defendant’s criminal history level to category 6, the highest category, regardless of the defendant’s actual criminal history.[559] As one judge in a terrorism case put it, the effect is to “impute to a defendant who has had no criminal history a fictional history of the highest level of seriousness.”[560]

The government has successfully sought the terrorism adjustment for 259 individuals since 2002, the first year statistics are available. In 2012, the adjustment applied to 46 defendants, while in previous years, it applied to an average of 28 cases per year, according to our calculations based on information publicly available on the US Sentencing Commission website.[561]

In real terms, application of the terrorism adjustment results in an absolute minimum sentence of 17.5 years for an offense (unless the offense carries a lesser statutory maximum). On its own, an increase of 12 offense levels can add as much as 20 years to a sentence, while a jump to the highest criminal history categorization can also add several years to a sentence. Taken together, the two aspects of the terrorism adjustment have the potential to add 30 years to a sentence or lead to life imprisonment for a crime that, without the adjustment, might otherwise entail only a sentence of five years. [562]

In addition, mandatory minimum sentences require judges to impose specified minimum prison terms. Created by various federal statutes, mandatory minimum sentences are typically triggered by aspects of criminal offense conduct or a defendant’s criminal history, and result in longer sentences.[563] As Human Rights Watch has reported in the past, mandatory minimums are one of the most significant obstacles to fair sentencing in the criminal justice system.[564]

Lengthy Sentences Based on Unproven Conduct

Under the federal sentencing system, sentences are not limited to the conduct for which an individual was charged or convicted but rather are based on a court’s determination of a defendant’s “actual conduct.”[565] As a result, an individual’s sentence may be dramatically lengthened based on accusations of conduct that were not assessed by a jury, let alone determined beyond a reasonable doubt. (Mandatory minimum cases are a recent exception.)[566] Although this sentencing scheme has been upheld by the Supreme Court,[567] it raises due process concerns particularly in the context of the terrorism adjustment, where the potential for government abuse—making inflammatory suggestions of a terrorism connection, invoking secrecy to explain evidentiary gaps—is too high, and the cost of a vastly lengthened sentence is too great.

For example, Abdelhaleem Ashqar was sentenced to about 11 years (135 months) for obstruction of justice and criminal contempt, after he refused to testify before a grand jury (see section IV). These offenses usually carry sentences of five years or less, but after the trial and during the sentencing stage the prosecution asserted Ashqar had “engaged in numerous violations of federal law”—offenses that it had not charged or convicted him on—“all in the service of a terrorist organization.”[568] It asserted that Ashqar’s refusal to testify before a grand jury was likewise “in the service” of a terrorist organization, although this question was never put to a jury.[569]

To punish defendants for conduct that was not alleged or proven at trial deprives them of the opportunity to fully develop the facts and evidence necessary to refute accusations of terrorist connection or affiliation. Moreover, it creates perverse incentives for the government, which can charge lesser conduct that is easier to establish at trial, and then invoke inflammatory allegations of terrorist connection at the sentencing stage.[570]

Lengthy Sentences Based on Non-Violent Conduct

When the terrorism adjustment was first introduced in 1994, it applied to a relatively small category of offenses: any felony that “involves or is intended to promote international terrorism” if the felony did not already involve terrorism as an element of the crime.[571] However, in April 1996—in a law passed in response to the 1995 Oklahoma City bombing—Congress directed the US Sentencing Commission to expand the terrorism adjustment to apply domestically, without requiring an international nexus.[572]

Today, the terrorism adjustment applies to any “federal crime of terrorism”—a category that is defined expansively by statute. Accordingly, the terrorism adjustment may apply as much to violent offenses—such as using weapons of mass destruction and missile systems designed to destroy aircraft—as it does to non-violent offenses such as engaging in financial transactions with a country supporting international terrorism. Indeed, between 2006 and 2011, 46 of the terrorism adjustments applied were for material support to a foreign terrorist organization, according to information publicly available on the US Sentencing Commission website.

In the Holy Land Foundation case, Shukri Abu Baker was convicted of conspiracy to provide material support and providing material support (see sections III and V)—charges that each carry a statutory maximum of 15 years. Yet Baker was sentenced to 65 years in prison based on a terrorism adjustment.[573] The government did not allege that the Holy Land Foundation or Baker was involved in violent activity of any kind, or that Baker or the organization ever provided money directly to a terrorist organization. Instead, the allegations were that by contributing to charitable work in the Occupied Palestinian Territories, the Holy Land Foundation helped Hamas gain supporters among the civilian population. Though Baker had no criminal history whatsoever, his sentence was based on a criminal history level equal to that of someone who had been convicted of second-degree murder.[574]

After Sabri Benkahla was acquitted of charges that he had attended a terrorist training camp and fired weapons there, he was questioned by the FBI and subpoenaed to testify before a grand jury on the same matter. The government then launched a second prosecution, charging that Benkahla had lied to the FBI and a grand jury by denying his personal involvement and knowledge of acquaintances’ involvement in training camps. After a second trial, Benkahla was convicted of obstructing justice on account of false declarations to a grand jury and of making false statements to the FBI. Though the judge reasoned that Benkahla’s false declarations “neither directly ‘involved’ nor were ‘intended to promote’ a federal crime of terrorism,” he applied the terrorism adjustment, reasoning that the false declarations had actually obstructed the FBI’s investigation of a terrorism crime.[575] Without the adjustment, Benkahla faced a sentence of two and three-quarters to three and a half years (33 to 41 months). With it, he faced a sentence of about 17 to 22 years (210 to 262 months)—the same or worse sentence as defendants who committed “more severe, violent offenses,” like the kind of which Benkahla was acquitted in his first trial.[576]

Judges have the discretion to “depart downward” from sentences that the Guidelines recommend, but even where they exercise their discretion, the terrorism adjustment drives up the length of sentences significantly. In Benkahla’s case, the judge concluded the likelihood he would commit another crime was “infinitesimal,” and he sentenced Benkahla to 10 years. Yet this was still almost seven years more than Benkahla would have faced without the terrorism adjustment.[577]

Lengthy Sentences in Informant Cases

In some of the cases we reviewed involving informants; defendants received particularly harsh sentences based on elements of the crimes that informants suggested.

The Newburgh Four case (see section II) is perhaps the most egregious example. The informant in the case introduced the idea of attacking Stewart Air Force Base with a Stinger missile and provided the fake missile to the defendants. As District Judge Colleen McMahon explained:

There is no way that these four defendants would have dreamed up the idea of shooting a Stinger missile at an airplane or anything else; there is certainly no way they could have acquired a Stinger missile, operative or inert, unless the government provided them one.[578]

Without the Stinger missile, the government could still have sought life imprisonment for the defendants based on other aspects of the case; however, the men would have been eligible for a judge’s discretionary reduction in sentence length. The Stinger missile element enabled the government to use a mandatory minimum sentence to ensure that if convicted, the defendants would receive at least 25 years.[579] The judge concluded that she had no discretion to sentence the defendants to anything less, though she expressed concern that “the only reason the Government introduced the missile element into this case was to prohibit me from sentencing the defendants to less time than that.”[580]

The terrorism adjustment can result in individuals charged with conspiracy and attempts receiving the same sentences imposed for actual commission of murder.[581] This outcome is of particular concern especially where the defendants did not propose the conduct that served as the basis for the terrorism adjustment, as in the case of the three Duka brothers, who were sentenced to life imprisonment in the Fort Dix Five case (see section II), based on a fake plot negotiated in conversations held in Arabic between one of the informants and the co-defendant Mohammed Shnewer; the Duka brothers, who spoke English and Albanian alone and did not understand Arabic, were not included in any discussions about a plot.[582] The Dukas were convicted of one count of conspiracy to commit murder and three counts of illegal possession of firearms. Conspiracy to murder, without the terrorism adjustment, carries a sentence ranging between 12 ¾ years to 24 ½ years (135 months to 293 months), depending on the defendant’s criminal history, but with the terrorism adjustment the guidelines recommend the same sentence that first-degree (premeditated) murder carries: life imprisonment.[583] The Duka brothers were in their 20s at the time of their sentence; without the adjustment, they would have been middle-aged men at the time of their release, while with it they will spend perhaps as much as 60 years in prison, and die there.

[546] See sections Methodology and Appendix.


[548] Ibid.

[549] Under international human rights law, the “essential aim” of a penitentiary system should be the “reformation and social rehabilitation” of prisoners, and sentencing that is solely retributory is disfavoured. See ICCPR, art.10(3) (“The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”); UN Human Rights Committee, General Comment 21, Replaces general comment 9 concerning human treatment of persons deprived of liberty (Art. 10) (Annex VI, B) (Forty-fourth Session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.9 (Vol.1) (1994), (accessed June 20, 2014), Para. 10. (“No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner”). Excessive punishment may constitute cruel, inhuman, or degrading punishment in violation of the ICCPR and the Convention against Torture, and it may constitute arbitrary deprivation of liberty in violation of the right to liberty. See ICCPR, arts. 7 and 9; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 22, 2006, art.16; see also, Dirk van Zyl Smit and Andrew Ashworth, “Disproportionate Sentences as Human Right Violations,” Modern Law Review, vol. 67, no. 4 (July 2004), p. 543; Roper v. Simmons, 543 U.S. 551, 572 (2005).

[550] See Kennedy v. Louisiana, 552 U.S. 407 (2008); see also, Vinter and Others v. the United Kingdom, nos. 66069/09, 130/10 and 3896/10, § 93, 17 January 2012.

[551] See, e.g., Human Rights Watch, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty (New York: Human Rights Watch, 2013),; Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States (New York: Human Rights Watch, 2012),; and Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, Cruel and Unusual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2(B), March 1997,

[552] 18 U.S.C. § 3553.

[553] Congress created the US Sentencing Commission (USSC) in 1984 and authorized it to promulgate mandatory guidelines, with the aim of reducing “unwarranted sentencing disparities.” Sentencing Reform Act of 1984, 28 U.S.C. § 991. A 2005 Supreme Court case made the guidelines advisory. United States v. Booker, 543 US 220 (2005).

[554] See 18 U.S.C. § 3553(a)(1)-(7); see also, Gall v. United States, 522 U.S. 28 (2007).

[555] United States Sentencing Commission (USSC), “2012 Federal Sentencing Guidelines Manual,” November 1, 2012, (accessed June 29, 2014), chapter 1; See Human Rights Watch, An Offer You Can’t Refuse.

[556] In addition, mandatory minimum sentences require judges to impose specified minimum prison terms. Created by various federal statutes, mandatory minimum sentences are typically triggered by aspects of criminal offense conduct or a defendant’s criminal history, and result in longer sentences. USSC, “2012 Federal Sentencing Guidelines Manual,”, chapter 1 or 2. Taking into regard criminal history, first-time offenders have a criminal history level of 1, which increases to 2 to 6 usually depending upon the number, duration, and nature of previous sentences. Ibid., chapter 4.

[557] In addition, mandatory minimum sentences require judges to impose specified minimum prison terms. Created by various federal statutes, mandatory minimum sentences are typically triggered by aspects of criminal offense conduct or a defendant’s criminal history, and result in longer sentences. Ibid., chapter 1. See also, USSC, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, (accessed June 28, 2014), p. 4; USSC, “2012 Federal Sentencing Guidelines Manual,”, chapter 1. In addition, mandatory minimum sentences require judges to impose specified minimum prison terms. Created by various federal statutes, mandatory minimum sentences are typically triggered by aspects of criminal offense conduct or a defendant’s criminal history, and result in longer sentences.See USSC, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,”, p. 4.

[558] All other independent enhancements set forth in chapter 3 (the “Adjustments” chapter) of the Guidelines (that is, enhancements that are not tied to any particular offense, but rather may be applied to any of them) entail an increase of only 1 to 5 levels. Though some specific offenses also involve upward adjustments, none exceeds the severity of the terrorism enhancement since it increases both the offense level increase and criminal history category assignment. See generally, USSC, “2012 Federal Sentencing Guidelines Manual,”, chapter 3. All other independent enhancements set forth in chapter 3 (the “Adjustments” chapter) of the Guidelines entail an increase of only 1 to 5 levels. Though some specific offenses also involve upward adjustments, none exceeds the severity of the terrorism enhancement since it increases both the offense level increase and criminal history category assignment.

[559] Ibid., § 3A1.4(a)-(b). accessed June 27, 2014).e?373

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[560] Sentence, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2009) (No. 1:09-cr-10017-GAO).

[561] This average is based on the years 2007 to 2011, including 2008 when it was applied only 11 times. Between 2002 and 2006, the adjustment was applied to between 8 and 13 cases per year, with the exception of 2004 when it applied to 22 cases. Human Rights Watch analysis of United States Sentencing Commission Federal Sentencing Statistics, (accessed June 29, 2014).

[562] For example, Stanislas Gregory Meyerhoff, an environmental activist who was charged with conspiracy to commit arson and destroy an energy facility, faced a sentence of 70 to 87 months without imprisonment; with the terrorism adjustment it “leaps to 30 years to life imprisonment.” Defendant’s Memorandum of Law in Opposition to Application of the Terrorism Enhancement, United States v. Meyerhoff, No. 6:06-cr-60078 (D. Or. June 2, 2014).

[563]See USSC, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,”, p. 4.

[564] Human Rights Watch, An Offer You Can’t Refuse, pp. 30-31.

[565] See U.S.S.G. § 1A1.1, editorial note, Pt.A(4)(a). USSC, “2012 Federal Sentencing Guidelines Manual,”, chapter 1, p. 5.

[566] However, in 2013, the Supreme Court held that in mandatory minimum cases, any fact that increases a mandatory minimum is an “element” of the crime that must be submitted to the jury. See Alleyne v. United States, 133 S.Ct. 2151 (2013).

[567] In Booker v. US, the Supreme Court held that mandatory sentencing guidelines were unconstitutional where they imposed punishment for conduct without proof to a jury beyond a reasonable doubt. However, the Court’s remedy was not to bar the use of non-proven conduct; rather, it was to make the guidelines advisory. See Booker v. United States, 543 U.S. 220, 243-44 (2005). See also, United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) (“When applying the Guidelines in an advisory manner, the district court can make factual findings using the preponderance of the evidence standard.”).

[568] Government’s Memorandum In Response to Defendant Ashqar’s Objection to PSR and Sentencing Position Memorandum at 22, United States v. Marzook, 435 F. Supp. 2d 778 (N.D. Ill. 2006) (No. 03 CR 978).

[569] Ibid.

[570] See Kate Stith, "The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion," Yale Law Journal, vol. 117 (2008), p. 1479 (noting that where prosecutors do not have to have prove the facts that are the basis for enhancements, they have less incentive to exercise discretion by agreeing to a plea and sentence bargain more favorable to defendants); James P. McLoughlin, "Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations,"Law and Inequality, vol. 28, no. 1 (2010), p. 93 (the enhancements give prosecutors "overwhelming leverage" over defendants). Human Rights Watch has previously reported on how prosecutors use the threat of sentencing enhancements to obtain pleas. See Human Rights Watch, An Offer You Can't Refuse.

[571] See USSC, “Appendix C (Volume I) - Amendments to the Guidelines Manual,” November 1, 2003, (accessed June 26, 2014), amendment 526; Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322 (1994), sec. 120004 (“The United States Sentencing Commission is directed to amend its sentencing guidelines to provide an appropriate enhancement for any felony, whether committed within or outside the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element of the crime.”). Prior to 1994, the Sentencing Guidelines did not include an enhancement for conduct relating to terrorism offenses. Instead, the Guidelines included a policy statement that provided: “If the defendant committed the offense in furtherance of a terroristic action, the court may increase the sentence above the authorized guideline range.” See USSC, “1994 Federal Sentencing Guidelines Manual,” November 1, 1994, (accessed June 26, 2014), § 5K2.15.

[572] See USSC, “Appendix C (Volume I) - Amendments to the Guidelines Manual,”, amendment 539; Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. p. 104-132, sec. 730 (“The United States Sentencing Commission shall forthwith, in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that section had not expired, amend the sentencing guidelines so that the chapter 3 adjustment relating to international terrorism only applies to Federal crimes of terrorism, as defined in section 2332b(g) of title 18, United States Code.”); 18 U.S.C. Ch. 113B (defining “federal crime of terrorism”); see also, 18 U.S.C. § 2332B(g)(5) (defining other offenses as federal crimes of terrorism when those acts are “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”).

[573] United States v. Abu Baker, No. 3:04-CR-0240-P-2 (N.D. Tex. May 29, 2009).

[574] USSC, “2012 Federal Sentencing Guidelines Manual,”, §§2A1.2, 2M5.3. The base offense level for second-degree murder is 38. The base offense level for providing material support to a foreign terrorist organization is 26 and with the terrorism enhancement, becomes 38. Instead of starting in a potential range of 63 to 78 months, the terrorism enhancement automatically placed him within a base range (not taking into account another form of upward departure) of 235 to 293 months. Ibid., p. 394 (Sentencing Table).

[575] The judge speculated that Benkahla “may have been motivated out of a desire not to be seen as involved with illegal activities” or “have been concerned about potential hardship he might cause others.”United States v. Benkahla, 501 F.Supp.2d 748, 751,  759-61 (E.D. Va. 2007), aff’d, 500 F.3d 300 (4th Cir. 2008).

[576] Ibid.

[577] Ibid.

[578] Decision on Sentencing Entrapment/Manipulation, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[579] 18 U.S.C. § 2332g(c)(1).

[580] Ibid.

[581] Since 2006, courts have applied the terrorism adjustment to 28 attempt or conspiracy to murder cases, compared to just eight cases of first-degree murder, compared according to statistics we calculated based on information publicly available on the US Sentencing Commission website. See USSC Research and Federal Sentencing Statistics, (accessed June 28, 2014).

[582] The Arabic-speaking informant, Mahmoud Omar, testified at trial that two of the brothers “have nothing to do with the matter,” that is, that they had no knowledge of any plot. Trial Transcript at 3289, United States v. Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[583] The base offense level for conspiracy to commit murder is 33, and the resulting sentence could have been anywhere from 135 months, with the lowest criminal history category, to 293 months with the highest criminal history category. Due to the terrorism adjustment, the Duka brothers’ criminal history category levels were raised to the highest criminal history category level and the offense level was raised 12 levels, to the highest level of 43, the same base offense level as first degree murder. See USSC, “2012 Federal Sentencing Guidelines Manual,”, p. 394 (Sentencing Table).

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