Throw Away the Key? On Longer Sentences for Terrorist Offences

(Originally published: 2 January 2020)
One priority outlined by the Conservative government in last month’s Queen’s Speech was tougher sentences for terrorists. A forthcoming bill will bring in longer stretches in prison for those convicted of terrorist offences. This continues a global trend of treating terrorism as qualitatively different from similar sorts of crime, and consequently punishing it more harshly than these other offences. Such practices are found in legal systems across the world.

Opposition to this legislative agenda is unlikely to be especially vocal. The general public show little concern for those involved in terrorism, and this tends to foster an arms race among politicians to present themselves as taking the toughest stance against it. Nonetheless, it makes sense to question whether terrorist sentencing enhancements (as they are often known) can be justified. For one thing, common intuitions suggest that there are legitimate upper bounds on how much people can be punished for given crimes. Punishing those who are convicted of terrorism too harshly might thus wrong them. For another thing, criminal punishment requires significant resources to be redirected from other projects, and we should therefore be sure that it is serving valuable social purposes.
What possible justifications, then, might there be for giving terrorists longer prison sentences than other sorts of criminals? To answer this, we must consider what functions punishment is supposed to serve, and then examine whether those functions are best pursued by giving terrorists more punishment.
One obvious goal that the criminal justice system aims at is the reduction of crime. It might do this in a number of ways. First, it might provide disincentives to would-be criminals, who may refrain from undertaking criminal acts because of the fear of going to prison. Second, it might simply ensure that people who are prone to committing crimes are prevented from doing so because they are locked up. Finally, it might reform those who have committed crimes to ensure that their risk of recidivism is reduced. Will longer sentences for terrorists be required to reduce this category of crime via the three identified routes? I think that this is far from clear.
It may be argued that, because of the strength of commitment to their cause that terrorists typically exhibit, greater threats are needed to provide the necessary disincentives. But such an argument assumes a picture of terrorists making a cost-benefit analysis that does not match up with empirical realities. The decision to employ terrorist tactics is seldom made in such a rational manner, but instead results from deep-seated psychological and social factors. The fear of any punishment is unlikely to play much on their minds.
If criminal punishment is also valued because it ensures that dangerous individuals are kept away from opportunities to commit crime, it might be suggested that longer sentences for terrorists are justified to reduce crime in this way. After all, someone who murders another person in a crime of passion may be very unlikely to re-offend when released, whereas we can suppose that a committed terrorist will almost certainly seek to continue their mission once they have done their time. But removing opportunities to commit crimes can be done through other means apart from prison. Monitoring individuals once they are released from prison, and stepping in if it is clear that they are going to re-offend. may be an option The fact that terrorists often operate as part of a network, communicating with co-conspirators through electronic means, suggests such a strategy will be particularly useful with respect to this class of criminals (although the increasing prominence of so-called “lone wolf” terrorists, who operate largely independently from others, complicates matters).
Finally, perhaps longer sentences are needed because reforming terrorists will take a longer time than reforming other criminals. Terrorists motivations, which are political, religious, or ideological (as the term is defined in UK law), may require more concerted effort to be removed. On the other hand, since terrorists often link their cause with a wider group identity, this opens up the possibility of using moderate voices within their communities to encourage switching to non-violent tactics. Such strategies may not be available with other categories of criminal.
The case for harsh sentences for terrorists based on the need to avoid crime, then, is not clear cut. But some legal philosophers suggest that criminal punishment is not only justified by its effects on crime rates. Retributivists claim that punishment is justified even when we set aside its overall consequences. Some argue, for instance, that it gives criminals what they deserve. It might be thought, then, that we should give terrorists longer sentences because they deserve to suffer more.
In order to explain why terrorists deserve to suffer more than other criminals who commit similar crimes, we must explain why their actions are worse. The UK legal definition of terrorism distinguishes it from other criminal acts (in part) by requiring the intention of causing fear. If person A kills person B in an act of revenge, they are a murderer; if C kills D in order to intimidate the wider public, they are a terrorist. Because of the greater number of people negatively affected by their actions, we might think that terrorists are morally worse. This thought might be used to justify longer sentences for them.
There are problems with this line of argument, though. Although causing fear may generally be morally wrong, it is not usually the sort of thing we think best responded to with criminal punishment. Politicians often cause fear by pointing out the (real or imagined) security threats facing their country and its population. While we may decry their cynicism, we may not be inclined for criminal charges to be brought against them. I suspect that this is, at least in part, because of the difficulty in determining intentions like these. One might avoid this issue by re-defining terrorism as an act that, in fact, causes fear, irrespective of the actors’ intentions. But then criminals would be punished more if they cause a high level of irrational fear in others, which we may find undeserved. If a Muslim who commits a crime will cause greater fear in the wider public because of the prejudiced belief that any Muslim who commits a crime is inevitably acting as part of a wider conspiracy to bring down the West, this line of argument would suggest tougher sentences are in order.  Few would support such a policy.
There is no simple reason for why terrorist offences should be sentenced more harshly that other, similar offences. As I have argued elsewhere, the term “terrorism” is of limited significance and usefulness. We would do better to judge each criminal action based on the specific context in which it is conducted, rather than whether it counts as terrorism on our favoured definition.