Antisemitic Terrorism

Authors

J. Richard Broughton, University of Detroit Mercy School of Law

First Page

1105

Abstract

Recent surges in antisemitic activity—and antisemitic violence, in particular—have led increasingly to conversations about the connections between antisemitism and domestic terrorism. While the nexus between antisemitic violence and domestic terrorism has long been expressed in rhetorical terms, its connection in legal terms—notably, federal criminal law—has been more attenuated. This Article explores that connection and finds that existing federal criminal law requires rethinking: it is underinclusive and thus inadequate to fully capture and punish the threats posed by today’s domestic violent extremism, and particularly antisemitic violence. The Article surveys recent federal prosecution in cases involving actual or threatened antisemitic violence, and finds that prosecutors often rely on civil rights offenses, weapons offenses, and interstate threats offenses. Yet those offenses are largely excluded from coverage in the existing criminal law of terrorism, which tends to focus on conventional terrorism crimes. Therefore, although federal criminal law is more than ample to assure prosecution and punishment of antisemitic violence, the mere availability of general tools is unsatisfactory, as the law often would not permit the Government to express its condemnation of the violence in terms specific to the law of terrorism. This Article suggests some legislative reforms that could accomplish this, and also notes the important steps that the Justice Department has taken to identify and assess cases that implicate contemporary domestic violent extremism and terrorism. Of course, this Article acknowledges, this is an area that demands special caution so as to ensure appropriate limits on federal power and the protection of civil liberties. Nonetheless, this Article contends that rethinking the criminal law of terrorism—expressed in both legislative and enforcement-side reforms—would serve important criminal law and security interests. Those reforms could identify the unique terrorism purpose or motive in cases of antisemitic violence (and thus distinguish them from other forms of criminality) and impose punishment that accounts for the unique harms of domestic terrorism and the distinctive harms done to Jewish people and institutions.

Recommended Citation

J. R. Broughton, Antisemitic Terrorism, 27 Lewis & Clark L. Rev. 1105 (2024).
Available at: https://lawcommons.lclark.edu/lclr/vol27/iss4/6