WHAT SENTENCE FOR OSAMA BIN LADEN, AND OTHER TERRORISTS?: A Crucial But Neglected Question >

Now, three months after September 11, the Taliban regime finally has fallen; Al-Qaeda is crumbling; and Osama bin Laden is on the run. If bin Laden is not killed first, he will be apprehended and prosecuted for a variety of criminal offenses.

Regardless of whether bin Laden is tried in a United States civilian court, a military tribunal, or some other criminal court here or abroad, the possibility of a conviction raises a question that few have considered to date: What sentence should bin Laden, and terrorists in general, receive?

Or, to paraphrase our President, assuming we do not bring justice to bin Laden, what justice do we bring bin Laden to?

The sentencing of terrorist offenders is a critical issue for our criminal justice system. With over one thousand persons currently detained in the United States in connection with the terrorist attacks, and hundreds more abroad, indictments already are being handed down - with dozens, perhaps hundreds, of convictions soon to follow. Each of these convictions will require a sentence, and we need to take care that these sentences will be just.

The Multiple Purposes of Sentencing, and How They Apply to Terrorists

For many, the answer to the terrorist question is so obvious that the question is absurd. The only sentence for bin Laden-indeed, for terrorists in general and all those who assist them-is death. Even those who do not support the death penalty for other crimes, may support it in this exceptional instance.

Still, although bin Laden and his ilk may deserve such a punishment, retribution is not the only purpose a sentence serves. Indeed, according to the U.S. Code, the purposes of sentencing are these:

(1) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (2) to afford adequate deterrence to criminal conduct; (3) to protect the public from further crimes of the defendant; and (4) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment.

Put more succinctly, sentencing is concerned with (1) retribution or "just deserts," (2) deterrence, (3) incapacitation, and (4) rehabilitation.

How do these purposes apply when it is a terrorist being sentenced? The statutory definition of "a federal crime of terrorism" is helpful in providing guidance. To fit the definition, a crime must be an offense that "is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." In short, the motive for the offense is central to whether the offense is considered an act of terrorism.

Let us consider, in turn, how the three utilitarian purposes of sentencing might apply to a terrorist - and what role terrorists' motives, both political and fueled by national hatred, may plan in either mitigating or aggravating their sentences.

Deterrence, Rehabilitation, and Incapacitation for Terrorists?

To begin, it is the nature of terrorists, individually and in general, not to be deterred by the possibility of even the most severe sanction. Even death is not a deterrent to them: Their political motivations are so strong that many willingly kill themselves for their causes in the most gruesome ways.

What about incapacitation through incarceration - that is, the protection of society from future offenses that the offender might otherwise have committed? Unfortunately, this purpose, too, does not really work for terrorists.

On the contrary, as Professor John F. Murphy recognized over fifteen years ago in his book Punishing International Terrorists, incarcerating a terrorist may result even in more terrorism - through colleagues who seek to "forc[e] his release." And as the President himself has recognized, incapacitating bin Laden either through incarceration or "termination" will do little, if anything, to reduce the incidences of terrorism.

Nor is rehabilitation likely to work. A terrorist commits his offense in order to influence some political body, usually a government or civilian population. Thus, with a terrorist, any "rehabilitation" would have to focus on his political motive; only some form of brainwashing or re-education, which morally we could not condone, might work.

With other offenders, who may struggle with addiction, aberrant sexual desires, anger control, or economic desperation, various combinations of counseling and vocational training, among other things, may be able to help. Not so for terrorists.

Retribution: Looking Not Just to the Harm Produced, But Also to Culpability

Since the three purposes of deterrence, incapacitation and rehabilitation cannot really be served when the convict is a terrorist, the only purpose left is retribution. Although commonly thought of as "vengeance," retribution, as understood in the federal criminal justice system, connotes instead the dispassionate imposition of a deserved sanction for the offense committed.

Those who believe in retribution argue that the punishment an offender deserves for his offense must be proportional to the seriousness of the offense; more serious offenses deserve more severe sentences. In order to determine the seriousness of the offense, one must consider both the offender's culpability and the harm the offense produced.

By its very nature, terrorism often results-or at least is intended to result-in the production of grave and serious harm. But that alone does not warrant a severe sanction; culpability matters, too.

For example, if an offender commits a murder but at the time had a diminished mental capacity, was experiencing extreme emotional disturbance, or committed a "mercy killing" of a terminally ill relative, he may not deserve as great a sanction. Motive matters for determining the severity of the sanction deserved.

Sympathy for the Devil: Do Terrorists' Political Motives Mitigate Their Culpability?

How culpable is a terrorist? One controversial argument holds that because terrorism is, at its core, a politically motivated crime, culpability is, to some degree, diminished.

As Professor Murphy has noted, "One man's terrorism is another man's heroism," and thus:

By analogy, stealing from the rich in order to give to the poor or the hungry may deserve a less severe sanction than stealing from the rich in order to enrich oneself.

Avoiding a Perceived Greater Harm: Should Terrorists' Sentences Be Reduced?

As the Federal Sentencing Guidelines recognize, if "a defendant . . .commit[s] a crime in order to avoid a perceived greater harm[, i]n such instances, a reduced sentence may be appropriate." The idea is that when the convict has sought to avoid harm to others, rather than acting for his own gain, he is less culpable.

A mercy killing provides an apt example: The killer acts to avert another's future pain. And both domestic and international terrorists have availed themselves of this argument for a reduced sentence.

Consider, for example, the recent sentencing hearing for a militant member of Al-Qaeda who had been convicted of taking part in the bombing of the U.S. embassy in Kenya. The defense utilized testimony of former Attorney General Ramsey Clark to provide that the rationale behind Mohamed Rashed Daoud al-'Owhali's act of terrorism was to get the U.S. to cease its sanctions against Iraq - which he perceived as contributing to the deaths of thousands of Iraqi children.

In short, al-'Owhali thought that by murdering innocents, he could save the lives of many innocents in Iraq. According to press reports, 10 of the 12 jurors agreed that this motive mitigated against imposing the death penalty. In the end, al-'Owhali was not sentenced to death, but for an unusual reason: Some jurors felt that life imprisonment was a more severe, and therefore more appropriate, sanction because other aggravating factors outweighed the mitigating ones.

Consider also the penalty phase of Timothy McVeigh's trial. Evidence was offered to show that McVeigh believed that he murdered innocents in order to avenge the deaths of innocents and protect us from a perceived police state. Jurors were asked to consider whether some of McVeigh's motives-revenge for the deaths of the Branch Davidians, and the deaths of the Weavers at Ruby Ridge, and fear of a federal police state-mitigated against imposing the death penalty. All twelve agreed - though they still imposed the death penalty based on the balance of aggravating and mitigating factors.

In summary, even in our federal criminal justice system, we recognize that the motive to prevent a perceived greater harm can mitigate (but may not justify or excuse) even otherwise vile criminal offenses. Yet as the Federal Sentencing Guidelines also recognize, this motive should not mitigate culpability if "the interest in punishment or deterrence is not reduced" by the motive.

That may happen when, contrary to the defendant's perceptions, the criminal conduct in fact produces a greater harm than that perceived to be avoided. Thus, the juries in the al-'Owhali and McVeigh sentencings were not compelled by the law to recognize the defendants' perceptions as mitigating; they could have refused to recognize the perception of harm as mitigating because the actual harm inflicted was so great.

Terrorism as a Hate Crime

Just as motive can be a mitigating factor, it can also be an aggravating factor in sentencing - as was the case for al-'Owhali and McVeigh, who received credit for their erroneous perception that they were averting a greater harm, but were faulted because they acted in hate.

Consider the category of hate crimes - which arguably includes terrorism. Under the Federal Sentencing Guidelines, the severity of an offender's sentence is increased if he intentionally commits the offense because of the victim's "race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation."

The atrocities of September 11^th undoubtedly were the product of not just opposition to American foreign policy, but also pure, unadulterated hate against Americans based on their national origin. The attacks of September 11^th therefore may be more akin to hate crimes than to political offenses.

Justice Even For Terrorists

We cannot rehabilitate, deter, or incapacitate terrorists; all we can do is punish them. But if the punishment is to be legitimate, we must punish terrorists in accordance with what justice, in the calm of cool reflection, demands. It could very well demand the severest of sanctions, but we should not assume this is a necessity in every case.

In order to do justice, we must first understand the role and central importance of motive to ensure that terrorists actually do receive their just deserts. The motives behind terrorism can run the entire spectrum of emotions, from a benign wish to prevent harm to Iraqi children, to a malignant and despicable wish to kill as many Americans as possible.

As the poet Kahlil Gibran, in his masterpiece The Prophet, recognized, this presents a difficult question: "[H]ow prosecute you him who in action is a deceiver and an oppressor,/ Yet who also is aggrieved and outraged?" Terrorists' mixed motives mean future sentencing proceedings - like al-'Owhali's and McVeigh's - may be more complex than one might think.