Prosecuting Terrorism in State Court

Earlier this month, 18-year-old Mahin Khan of Tucson, Arizona pleaded guilty to terrorism, conspiracy to commit terrorism, and conspiracy to commit misconduct involving weapons. The plea is unusual because it was entered in state court rather than federal court, making it Arizona’s first terrorism-related case.

State terrorism prosecutions are extremely rare, despite the fact that at least 33 states passed sweeping anti-terrorism legislation in the wake of 9/11. In the intervening fifteen years there have been over 400 federal terrorism prosecutions, but only a handful of state terrorism charges. (See examples of state prosecutions here, here, and here).

State Terrorism Statutes

State anti-terrorism laws create a substantive offense for “domestic terrorism” that does not exist in federal law. Broadly speaking, these statutes criminalize and define an “act of terrorism” as attempting, conspiring, or committing a specified offense with the intent to intimidate the civilian population or influence government conduct or policy. (See, for example, the New York and Michigan laws). Florida and Michigan’s statutes specify that the act must be a “violent felony” or an “act dangerous to human life,” while New Jersey’s statute includes an enumerated list of offenses. The state crime of “terrorism” does not include the requirement of a foreign nexus nor litmus test for ideological motivations—the controlling element is merely the intent to intimidate the population or government. That means that, in theory, both white supremacists and ISIS-supporters who commit acts of violence aimed at intimidating the population are subject to state prosecution as terrorists, while gang members involved in street violence are not.

State terrorism statutes also incorporate to varying degrees the substantive offenses in 18 USC Ch. 113B, which is the terrorism section of the federal criminal code. Some state statutes include an analog to 18 USC 2332b(a)(2), the federal provision that criminalizes threats to commit acts of terrorism transcending national boundaries. These state versions proscribe threats to commit an “act of terrorism” as defined by the state statute. States have also adopted versions of 18 USC 2332a, which prohibits the use of weapons of mass destruction, by designating the criminal possession and criminal use of chemical or biological weapons as a state terrorism offense. (See, for example, Ohio).

Some states have also embraced the material support sections of federal law, found at 18 USC 2339A and 2339B. Most states follow the approach in 2339A and define the offense as providing support or resources in furtherance of an “act of terrorism,” as defined by state statute. Michigan’s material support provision is somewhat of a hybrid, criminalizing support for “terrorists” and “terrorist organizations.” Michigan’s approach essentially combines 18 USC 2339A and 2339B by defining “terrorist organization” as one that is designated by the State Department as engaging in or sponsoring an act of terrorism, and "terrorist” as “any person who engages or is about to engage in an act of terrorism.”

Concurrent and Exclusive Jurisdiction

Some offenses only qualify as terrorism under either state or federal law, but not both. Other offenses give rise to concurrent jurisdiction, where either state of federal terrorism charges are available. States have exclusive jurisdiction to prosecute an offense as terrorism when the conduct qualifies as “domestic terrorism" under state law, but does not meet the elements of foreign-nexus or designated instrumentality required for federal terrorism offenses. The federal government has exclusive jurisdiction over a range of terrorism offenses that exceed state jurisdiction—for example, international offenses. And terrorism crimes which involve threats, WMDs, or material support can give rise to concurrent state and federal jurisdiction.

The interplay of state and federal jurisdiction can be complex in practice. For example, material support and WMD charges only fall within state jurisdiction where the state has an applicable provision in its terrorism statute. Not all do.

And threats typically fall within either the federal sphere or the state sphere because the actual laws are quite different. The federal statute mandates that the threatened conduct (homicide, kidnapping, or assault) “transcend[s] national boundaries.” State provisions, such as Michigan’s, prohibit threats to commit an “act of terrorism,” thereby incorporating the intent element of the state definition of “terrorism” and excluding the foreign nexus requirement of federal law. Therefore, only a narrow set of threats will satisfy the elements of the federal and state statutes so as to come within both spheres. For example, a threat to commit a school shooting in the name of ISIS or Al Qaeda will give rise to concurrent jurisdiction, but a threat to commit a school shooting will not.

Finally, the mere fact that there is no federal crime of domestic terrorism does not mean that conduct which qualifies as “domestic terrorism” chargeable under state terrorism statutes cannot be charged as terrorism at the federal level. These cases can give rise to a federal terrorism investigation and prosecution where the conduct “transcend[s] national boundaries” or the perpetrator uses a WMD. When either fact is present, the case typically falls under both federal and state terrorism statutes. Where an act of violence is intended to intimidate the population or influence government conduct or policy, does not have any international connection or foreign inspiration, and also does not involve a WMD (more commonly a bomb), then it can only be prosecuted as “terrorism” at the state level. For example, the Planned Parenthood shooter in Colorado Springs could theoretically be prosecuted as a terrorist in state court, but could not be charged as a terrorist in federal court. This is not to say that non-terrorism federal charges are unavailable, as state “domestic terrorism” offenses often qualify as federal hate crimes or violations of federal firearms statutes. The Planned Parenthood shooter, who currently faces first-degree murder charges in Colorado, would have been chargeable at the federal level under the FACE Act among other federal statutes.

International terrorism falls exclusively within the federal sphere because states lack the jurisdiction to criminalize these offenses. Paradigmatic examples are the 1998 bombings of the American Embassies in Kenya and Tanzania. The federal government has exclusive jurisdiction over the killing, attempted killing, or serious bodily injury of U.S. nationals overseas. 18 USC Ch. 113B grants and limits extraterritorial jurisdiction to cases where the violence was intended to “coerce, intimidate, or retaliate against the government or civilian population.”

Choosing Between State and Federal Charges

When a terrorism case falls within the overlapping state and federal spheres, both state and federal agencies have authority to investigate and prosecute the offense. Often, they undertake an investigation jointly, with the FBI, local and state police departments, and the FBI’s Joint Terrorism Task Forces working together on an investigation. The Boston marathon bombing and recent bombings in New York and New Jersey are examples of extensive state and federal cooperation. Because both of those cases involved a WMD and also a foreign nexus, the resources of the national security apparatus were deemed necessary for the investigations and ultimately led to federal indictments and prosecutions.

For cases that do not involve WMDs or a foreign link, there is a preference for state investigations and prosecutions. Mass shootings are often prosecuted as murder at the state level. This preference arises from the simple fact that, absent a foreign nexus, mass shootings do not fit within the federal sphere of terrorism cases, nor is there a federal murder statute. (For detailed analyses, see here and here).

Once a terrorism case subject to concurrent jurisdiction moves from investigation to prosecution, the preference for state and federal collaboration disappears. The U.S. Attorney’s Manual, 9-2.031 Dual Prosecution Policy explains that limited resources militate against joint prosecutions in cases of overlapping jurisdiction:

In order to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.

The only policy guidance for determining which forum is most appropriate appears in 9-27.240 of the U.S. Attorney’s Manual, Principles of Federal Prosecution. When charges can be brought in another jurisdiction, the policy instructs federal prosecutors to consider: (1) “the strength of the other jurisdiction’s interest in prosecution, (2) the other jurisdiction’s ability and willingness to prosecute effectively, and (3) the probable sentence or other consequences if the person is convicted in the other jurisdiction.” Some defendants, however, do face both state and federal charges with Charleston shooter Dylan Roof being a notable recent example.

As noted above, for cases of homegrown violent extremism that do not involve a foreign connection, the choice of jurisdiction typically hinges on the instrumentality used. Generally speaking, in practice, federal prosecutors handle homegrown violent extremist cases that involve explosives and state prosecutors handle shootings.

But unsurprisingly, in most terrorism cases involving either actual or inspirational connection to foreign groups such as Al Qaeda and ISIS, the overwhelming majority of cases are brought at the federal level. One reason for this is the common reliance on material support charges, which frequently depend on information acquired through the federal national security apparatus. Material support cases represented 80% of federal ISIS-related prosecutions from 2014–2016.

A few state cases, however, break that mold. State terrorism charges have been brought in cases of concurrent jurisdiction involving WMDs and foreign inspiration. The precise reasons why some cases go against the established pattern for venue are unclear, but the indictment of Mahin Khan and a similar New York case may shed light on the factors at play.

Mahin Khan was under investigation by the FBI’s Joint Terrorism Task Force before he was indicted in state court on terrorism, conspiracy to commit terrorism, and conspiracy to commit misconduct involving weapons charges. Khan had been in communication with a person he believed to be a member of ISIS about obtaining pipe bombs. Notably, there is no indication he actually built a pipe bomb or committed an “overt act.” Even though the case involves WMDs—a good indicator of federal prosecution—it is possible that the activity here was insufficient to pursue federal charges in which an overt act is a required element for conspiracy to commit terrorism. Under the applicable Arizona statute that Khan was charged under, however, there is no overt act requirement for conspiracy to commit terrorism, opening the door to a state terrorism prosecution.

Another notable exception to the preference for federal prosecution in WMD cases is the New York state prosecution of Jose Pimentel. Pimentel is a naturalized American citizen, born in the Dominican Republic. He was inspired by Al Qaeda and plotted to set off bombs in New York City. Pimentel had been under NYPD surveillance for two years before he was arrested in his home in 2011. Officials said he was an hour away from completing three bombs. Pimentel was charged under New York’s anti-terrorism statute with weapons possession, conspiracy, and providing support to an act of terrorism. He pleaded guilty to one count of terrorism and was sentenced to 16 years.

Officials provide different explanations for why Pimentel was prosecuted under state law. New York Police Commissioner Ray Kelly said the case came together too quickly for the Justice Department to handle the charges. Several anonymous sources, however, told the New York Times that DOJ declined the case because the FBI had concerns about the role of the confidential informant and entrapment questions. And the former head of the investigation division of the Manhattan DA’s Office, Adam Kaufmann, noted that the state statute was better suited for the case, because it allowed prosecutors to charge Pimentel with a one-man conspiracy, which federal law does not allow. The last explanation highlights the fact that, in some cases, like Khan and Pimentel, it is easier to bring terrorism charges in state rather than federal court.

It is unlikely that state terrorism cases will ever become as prevalent as federal cases, even though the Center on National Security reports that there has been a “trend towards the use of guns and blades,” among ISIS-supporters. Some critics laud the potential of state prosecutions to fill a needed gap in law enforcement. Others warn that a shift to the states raises the possibility that less rigorous state-law statutes in the context of terrorism prosecutions—where suspicions of racial and religious prejudice are heightened—could lead to lower standards ripe for abuse in a fearful society.