Foreword

Corinna Barrett Lain *

In the absence of a federal statute criminalizing domestic terrorism, the United States turned to an unlikely proxy: the death penalty. This Comment argues that capital punishment is used to define domestic terrorism, particularly when statutory tools cannot capture white supremacist attacks. Although former President Biden commuted most federal death sentences to life imprisonment without parole, three individuals whose attacks met the legal definition of domestic terrorism were excluded from clemency. Examining several cases from Timothy McVeigh to Luigi Mangione reveals a trend of defendants whose crimes meet the legal definition of domestic terrorism receiving the death penalty, even when they were never labeled terrorists. But this reliance on the death penalty is deeply flawed: public perception of terrorism is skewed, the government risks creating martyrs rather than preventing radicalization, and selective use of the death penalty for an inherently political crime takes away the state’s credibility to use such a punishment.

This Comment looks at why society views terrorism as uniquely deserving of the death penalty. It argues for the consistent application of the terrorism label at the outset of prosecution to enable counterterrorism resources to be allocated realistically. This would also provide public condemnation of violence against the state, rather than relying on the spectacle of execution to symbolically deliver justice.