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Not Every Violent Crime is Terrorism: Why Edward Archer Should Not Be Prosecuted Under PA’s Criminal Terrorism Statute

Susan Lin, Esq. on 5/16/2016
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In her April 26 article, "Calling a Terrorist a Terrorist: Why Philadelphia's Cop-Shooting Jihadist Should Be Prosecuted Under PA's Criminal Terrorism Statute," Amara Chaudhry Kravitz suggests that the Philadelphia District Attorney should bring terrorism charges against Edward Archer. Archer, an apparently mentally ill man who shot a Philadelphia police officer, already faces an extensive array of charges which, if convicted, could keep him imprisoned for the rest of his life. Chaudhry Kravitz's suggestion flies in the face of decades of evidence that longer sentences do little or nothing to promote public safety, and that our system of mass incarceration has had devastating consequences for poor communities of color. Her proposal also has considerable First Amendment implications.

Importantly, Chaudhry Kravitz failed to mention that Archer may suffer from a serious mental illness. Archer's family reported that he sustained traumatic brain injuries as a child and was hearing voices in his head prior to this incident. At his March 10 preliminary hearing, his attorney suggested that Archer may not have been able to differentiate between right and wrong at the time of the crime. See Greg Adomaitis, Mental health issues, not Islam, is why man shot Philly cop, lawyer says, NJ.com (Mar. 10, 2016). No matter what further investigation reveals about his mental health, Archer may well be convicted anyway. Across the country, jails and prisons are bursting at the seams with people suffering from serious mental illness. There is a general consensus that prisons have been unable to provide meaningful mental health care, and piling on additional charges hardly seems like an appropriate replacement for mental health treatment.

Furthermore, Archer has already been charged and bound over for trial on extremely serious charges, including attempted murder, assault of a law enforcement officer, unlawful possession of a firearm by a prohibited person, receiving stolen property, and other related offenses. Although Chaudhry Kravitz expressed concern that the maximum possible sentence that Archer could face for attempted murder is not long enough, assault against a law enforcement officer under 18 Pa. C.S. § 2702.1 is punishable by up to 40 years' incarceration, the same as the Pennsylvania terrorism statute. Indeed, all told, Archer could already face 97 years in prison if convicted of all of the charges he is currently facing.

At a time when mass incarceration has reached crisis levels and leaders from across the political spectrum are busily devising policies to reduce prison populations, Chaudhry Kravitz's demand to pile on tenuous criminal charges in order to extract an even longer prison sentence simply misses the mark. Long criminal sentences are part of the reason that the United States has 5% of the world's population, yet 25% of its prisoners. Pennsylvania has the highest incarceration rate in the northeast, spending about $2 billion per year on corrections. Philadelphia has the highest incarceration rate of any large American city. And it's not clear what we get in return. Research shows that to the extent that prison sentences reduce crime, it is the certainty of conviction and not the length of sentence that matters.

Finally, charging Archer under the terrorism statute, as advocated by Chaudhry Kravitz, would constitute prosecutorial over-reach and could potentially vastly redefine the general understanding of a "terrorist." From what has been reported in the press, this simply is not a case that is appropriate for a terrorism charge under 18 Pa.C.S. § 2717. Despite Archer's apparent rantings, Philadelphia prosecutors have found no evidence that Archer has any links to terrorist organizations.

Chaudhry Kravitz seems to advocate a terrorism charge because Archer reportedly stated in a police interrogation that he acted in the name of Islam and that police enforce laws contrary to his faith. According to Chaudhry Kravitz, these statements "suggest" a desire to either "[i]nfluence the policy of a government by intimidation or coercion" or otherwise "[a]ffect the conduct of a government."

To charge individuals with terrorism regardless of ties to terrorist cells or intent to sow fear in the general population would greatly expand the general understanding of what terrorism means. Many crimes could be labeled a terrorist offense if so little is required. Chaudhry Kravitz's proposed use of the terrorism statute could have particularly harsh consequences for protestors. Civil disobedience, by definition, is illegal conduct designed to influence government policy. Getting into a physical scuffle with an officer during a political protest could now be interpreted as a crime of violence committed with the intent to "affect the conduct of a government." Are we willing to label as terrorists protestors in Ferguson, Baltimore, and Chicago (some of whom were charged with assault against officers)?

A terrorism charge should be reserved for those who truly intend by their violent actions or threats to terrorize the community at large. It should not be a means of lodging further punishment against people with mental illness, and it should be used sparingly, in recognition of the incontrovertible fact that piling on charges and sentences will add to our already overburdened corrections system. And it certainly shouldn't be used routinely to punish people's political ideologies and, potentially, their free speech rights.

Susan Lin is a criminal defense and civil rights attorney at Kairys, Rudovsky, Messing&Feinberg. Prior to joining KRMF, Ms. Lin was an assistant federal defender in the trial and appellate units and a local public defender in Philadelphia. Ms. Lin is a 2004 graduate of Yale Law School and a 2000 graduate of Swarthmore College. Ms. Lin has co-counseled civil rights cases with the ACLU of Pennsylvania and serves on the Legal Committee of the Greater Philadelphia chapter of the ACLU.

Editor's note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Philadelphia Bar Association.

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