CRS Report – Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues, July 2, 2021: “Federal statute defines domestic terrorism to include dangerous criminal acts intended to intimidate or coerce a civilian population or to influence or affect government policy or conduct within the jurisdiction of the United States. Despite the federal statutory definition, no federal criminal provision expressly prohibits “domestic terrorism.” Nevertheless, numerous federal statutes offer prosecutors options in charging violent and destructive conduct consistent with the statutory definition of domestic terrorism. Some of these statutes can be characterized as expressly focused on terrorism, listing criminal offenses to include, among others, providing material support or resources to terrorists and engaging in terrorism transcending domestic boundaries. Other generally applicable federal criminal laws may also be relevant to domestic terrorism prosecutions. For example, depending on the defendant’s motive, target, or means, various federal criminal statutes protecting certain property or persons, prohibiting violence motivated by particular biases, or criminalizing possession or use of specific weapons may apply. Depending on the circumstances, prosecutors may also rely on accomplice liability or inchoate offenses such as attempt, conspiracy, or solicitation to charge conduct consistent with the definition of domestic terrorism. Beyond applicable offenses, domestic terrorism may be relevant in federal sentencing, either through specific statutes that authorize additional penalties in the domestic terrorism context or through the United States Sentencing Guidelines, which include an upward adjustment for offenses connected to terrorism. Civil disturbances over the past year have reportedly heightened interest in laws governing domestic terrorism, a topic that has long been a matter of congressional concern. As a number of proposals introduced in the 116th and 117th Congresses reflect, Congress remains interested in additional legislation addressing domestic terrorism, and any legislative action in this area would take place against the backdrop of a broader discussion of potential policy concerns and constitutional considerations. For instance, some observers dispute whether there is a gap in the existing federal domestic terrorism legal regime that leaves some violent or destructive conduct outside the scope of federal jurisdiction, and, if so, what new criminal provisions would be required. Additionally, certain constitutional constraints, such as First Amendment protections, Fourth Amendment restrictions on government searches, and broader federalism-based limitations on federal jurisdiction, may be relevant should Congress consider new domestic terrorism law..”
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