Who should be labeled a terrorist? Jan. 6 sentencing fuels the debate

(WASHINGTON) — A 49-year-old Texas man was sentenced by a judge to more than seven years in prison Monday for his role in the Capitol attack, the harshest sentence yet for a Jan. 6 defendant — but legal and national security experts say another decision made by the judge could carry potentially broader implications.

In handing down an 87-month sentence to Guy Wesley Reffitt, U.S. District Judge Dabney Friedrich declined to characterize the defendant as a domestic terrorist, as prosecutors had requested.

Prosecutors had sought a 15-year prison term for Reffitt, predicated on the use of an increasingly rare legal tool called the “terrorism enhancement,” which empowers judges to issue sentences above the federal guidelines for certain crimes. Federal sentencing guidelines in Reffitt’s case called for a prison sentence between nine and 11 years.

On Monday, Friedrich brushed aside the government’s motion for a terrorism enhancement, citing other Jan.6-related defendants whose conduct appeared to be more serious than Reffitt’s — and for whom the Justice Department chose not to pursue the terrorism enhancement.

Experts said Fridrich’s decision demonstrates the challenge prosecutors face in meeting the exceptionally high standard to formally label someone a terrorist under the law.

“In the court of common sense, individuals who went into the Capitol to engage in destructive behavior and disrupt a lawful government proceeding may have, by definition, committed an act terrorism,” said John Cohen, a former Homeland Security official who is now an ABC News contributor. “But the challenge for prosecutors is to prove that a defendant has met the specific legal elements of a terrorism offense.”

The terrorism enhancement, codified in section 3A 1.4 of the federal sentencing guidelines, traces its roots back to the 1995 Oklahoma City bombing, after which Congress enacted tougher penalties to deter acts of “intimidation or coercion” aimed at the government or civilian population.

In the intervening years, terrorism sentences have most frequently been applied to defendants with ties to ISIS or al-Qaeda, or to violent domestic extremists like Cesar Sayoc, who pleaded guilty in 2018 to mailing pipe bombs to members of Congress.

But critics complain that the law is too broad and too inconsistently applied.

In 2017, for example, prosecutors secured a terrorism enhancement for Jessica Reznicek, a climate activist who pleaded guilty to damaging pipeline infrastructure across the Midwest. A federal appeals court upheld her sentence in June.

Meanwhile, neither Dylann Roof, who pleaded guilty to massacring nine people at a Charleston bible study, nor James Fields, who was convicted of killing a Charlottesville demonstrator with his car, were sentenced with the terrorism enhancement.

Reffitt, for his part, brought a weapon to the Capitol on Jan. 6 and threatened to “physically attack, remove, and replace” lawmakers, making him a “quintessential” case for the enhancement, prosecutors wrote in a July sentencing memorandum. In March, a jury found him guilty on five felony counts, including obstruction of justice, as well as entering and remaining in a restricted building or grounds with a firearm.

The case marked the first time the Justice Department sought to have a terrorism enhancement applied to a Jan. 6 defendant.

“We do believe that what he was doing that day was domestic terrorism and we do believe that he’s a domestic terrorist,” Assistant U.S. Attorney Jeffrey Nestler told Judge Friedrich Monday, before the judge declined to apply the terrorism enhancement.

In rejecting the enhancement, Friedrich sided with Reffitt’s defense counsel, who accused prosecutors of utilizing the tool as retribution for Reffitt taking the case to trial.

“This is the only case where the government has asked for the terrorism enhancement, and this is the only case where the defendant has gone to trial,” said Clinton Broden, a lawyer for Reffitt. “I don’t think it takes a rocket scientist to figure that out.”

Friedrich’s decision to reject the enhancement in Reffitt’s case serves as further evidence of its “undisciplined, arbitrary use” in federal cases, according to Bill Quigley, a lawyer for Reznicek.

“How can Jessica Reznicek be a terrorist in the eyes of the law, and this person who stormed the Capitol and threatened members of Congress not be?” Quigley said.

“It is ironic that prosecutors managed to secure this enhancement for a person who damaged infrastructure belonging to a private company, but the courts failed to apply the same label to someone who used violence to further their extremist ideological beliefs in the seat of our democracy,” Cohen said.

Jordan Strauss, a former national security official in the Justice Department, pointed out that the government’s pursuit of a terrorist enhancement against Reffitt could mark a shift in its handling of Jan. 6-related cases — and could foreshadow a more aggressive approach in future cases.

“This case is noteworthy in that it may reflect a policy change for January 6th cases moving forward,” said Strauss, who now serves as the managing director at the Kroll Institute, a corporate consulting firm. “We should expect to see more enhancements sought, particularly if there are guilty verdicts in the more complex sedition cases.”

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