On November 30, 2021, a mass shooting occurred at Oxford High School in Oakland County, Michigan where four students were killed and seven people were injured. Law enforcement arrested 15-year old high school sophomore Ethan Crumbley as a suspect in the shooting. The Oakland County Prosecutor’s Office charged Mr. Crumbley with one count of terrorism causing death, four counts of first-degree murder, seven counts of assault with intent to murder, and twelve counts of possession of a firearm in the commission of a felony. The terrorism charge took many people by surprise. When most people think of terrorism, they tend to think of lengthy pre-planned and coordinated efforts involving multiple people such as the 9/11 attacks or the Oklahoma City bombing. However, there is nothing under Michigan law that precludes prosecution for terrorism when someone acts alone or something was hastily planned.
All state terrorist-type crimes are codified under Michigan’s Anti-Terrorism Act, Public Act 113 of 2002 passed shortly after the wake of the 9/11 attacks against the United States. “A person is guilty of terrorism when that person knowingly and with premeditation commits an act of terrorism.” MCL 750.543f(1). An “act of terrorism” means a willful and deliberate act that is ALL of the following:
- “An act that would be a violent felony under the laws of this state, whether or not committed in this state.” MCL 750.543b(a)(i). “Violent felony” means “a felony in which an element is the use, attempted use, or threatened use of physical force against an individual, or the use, attempted use, or threatened use of a harmful biological substance, a harmful biological device, a harmful chemical substance, a harmful chemical device, a harmful radioactive substance, a harmful radioactive device, an explosive device, or an incendiary device.” MCL 750.543b(h).
- “An act that the person knows or has reason to know is dangerous to human life.” MCL 750.543b(a)(ii). “Dangerous to human life” means “that which causes a substantial likelihood of death or serious injury…”. MCL 750.543b(b).
- “An act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” MCL 750.543b(a)(iii).
Terrorism is a felony punishable by imprisonment for life or any term of years or a fine of not more than $100,000.00, or both. MCL 750.543f(2). If death was caused by the terrorist act, the person shall be punished by imprisonment for life without eligibility for parole. Id.
ELEMENTS OF COMMITTING ACT OF TERRORISM
To prove the charge of committing an act of terrorism, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 38.1):
- First, that the defendant committed a “violent felony”, which is one that has an element of the use, attempted use, or threatened use of physical force against an individual, or of the use, attempted use, or threatened use of a harmful biological substance, a harmful biological device, a harmful chemical substance, a harmful chemical device, a harmful radioactive substance, a harmful radioactive device, an explosive device, or an incendiary device.
- Second, that the defendant acted deliberately when committing the violent felony, which means that the defendant considered the pros and cons of committing the crime and thought about it and chose his or her actions before he or she did it. There must have been real and substantial reflection for long enough to give a reasonable person a chance to think twice about committing the crime. The law does not say how much time is needed but committing the crime cannot have been the result of a sudden impulse without thought or reflection.
- Third, that the defendant knew or had reason to know that committing the felony was dangerous to human life, meaning that committing the felony would cause a substantial likelihood of death or serious injury, or that the felony involved a kidnapping.
- Fourth, that, when committing the felony, the defendant intended to intimidate or coerce a civilian population, or influence or affect the conduct of government or a unit of government through intimidation or coercion.
If the prosecutor is seeking the penalty enhancement of life without the possibility of parole, he or she must also prove beyond a reasonable doubt a fifth element that the commission of the felony caused the death of an individual.
SCOPE OF THE MICHIGAN ANTI-TERRORISM ACT
In People v Quigley, unpublished per curiam option of the Court of Appeals decided January 19, 2016 (Docket No. 322482), the defendant was convicted, in part, of committing acts of terrorism contrary to MCL 750.543f and was sentencing to 10 to 15 years in state prison.
“This case arises from defendant’s misguided attempt to have law enforcement check on his friend, Sarah Mazue, because he feared for her safety. After being unable to reach Mazue by phone for a time, defendant became convinced that she had become a victim of human trafficking or forced prostitution. He sought assistance from the Westland Police Department, the Federal Bureau of Investigation, and the Department of Homeland Security, all to no avail. Defendant then went to the Westland City Hall and held the mayor’s executive secretary, Shannon Ackron, as a hostage until she escaped several hours later. Defendant told Ackron and others that he had a bomb and would detonate it if his demands were not met. After defendant surrendered, police officers discovered that he had only a small flashlight and a cellular telephone charger, not a bomb.” Slip op. at 1.
The defendant contended on appeal that “the legislative history of the Michigan Anti-Terrorism Act (‘the Act’) reveals that the Legislature did not intend the Act to apply to a defendant unless he or she targeted a larger population with the intent to bring the government down, severely cripple government’s ability to efficiently function, or keep the populace in a state of fear or terror, and that defendant did not intend any of the foregoing.” Slip op. at 2. As a result, he contends that the Legislature did not intend for terrorism to apply to his actions. The Court of Appeals disagreed:
- “The Act was passed in the wake of the September 11, 2001 terrorist attacks on the United States and proscribes both actual terrorist activity and threats or false reports of the same. MCL 750.543f; MCL 750.543m. Among various other provisions, MCL 750.543b(a)(iii) defines an “act of terrorism” as one “that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” Under the Act, “[a] person is guilty of terrorism when that person knowingly and with premeditation commits an act of terrorism.” MCL 750.543f.” Slip op. at 2.
- “Regardless of the legislative history defendant provides in his brief on appeal, we determine legislative intent by focusing on the statute’s plain language. Although defendant contends that a necessity for prosecutorial restraint—that is, that prosecutors would only charge a defendant under the Act when the defendant possessed a certain, narrow intent—was implicit in and vital to the Legislature’s passage of the Act, the plain language of the statute does not support such a conclusion. It is true that under the Act a person must have intended ‘to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion’ to perform an act of terrorism under MCL 750.543b(a)(iii)… But the answer does not lie in these general principles, but through an application of the sections at issue, and whether those sections apply to defendant’s circumstance.” Slip op. at 3.
Committing acts of terrorism does not have to be limited to activities designed to overthrow the government, but rather are applicable to any violent felonies that were premediated, were dangerous to human life, and intended to intimidate or coerce a civilian population. This can apply to situations such as a multiple hostage-taking situation during an armed bank robbery, hijacking a plane or bus with innocent civilians and making demands to lawful authorities, and even school shooting cases where multiple individuals are wounded or killed.
OFFENSE VARIABLE 20 IN MICHIGAN’S SENTENCING GUIDELINES SCHEME
Michigan has an indeterminate sentencing scheme, meaning that offenders are usually sentenced to a prison term that has a minimum and maximum term of years. Someone who is convicted of committing acts of terrorism might receive a sentence of twenty years to forty years in prison from the judge. The twenty-year minimum sentence is the earliest opportunity that the offender may be released on supervision by the parole board. The forty-year maximum is the “tail” that the offender could serve if they were unable to be released on parole.
For the trial court to determine the appropriate minimum sentence, it must calculate the range under Michigan’s sentencing guidelines scheme. This is done by referring to a chart that requires the court to score points for certain prior record variables (up to 75 points) and certain offense variables (up to 100 points). Prior record variables are aggravated by the existence of a prior criminal or juvenile record, while offense variables are aggravated by factors such as the use of a weapon, number of victims, acting as the leader in a group, intent to kill, sadism, or the existence of death or bodily injuries. As an example, when considering the offender’s prior record and certain facts related to the conviction, the sentence guidelines may recommend that the minimum term should be somewhere between 81 months and 135 months. The trial court can select a minimum term from that range (unless there is some kind of legal basis to exceed or deviate below those guidelines).
One of the offense variable factors that the court must consider when scoring sentencing guidelines is whether an act of terrorism was committed.
According to MCL 777.49a, “[o]ffense variable 20 is terrorism. Score offense variable 20 by determining which of the following applies and by assigning the number of points attributable to the one that has the highest number of points:”
- “(a) The offender committed an act of terrorism by using or threatening to use a harmful biological substance, harmful biological device, harmful chemical substance, harmful chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or explosive device…… 100 points.”
- “(b)The offender committed an act of terrorism without using or threatening to use a harmful biological substance, harmful biological device, harmful chemical substance, harmful chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or explosive device…… 50 points.”
- “(c) The offender supported an act of terrorism, a terrorist, or a terrorist organization…… 25 points.”
- “(d) The offender did not commit an act of terrorism or support an act of terrorism, a terrorist, or a terrorist organization………………… 0 points.”
A person convicted of committing an act of terrorism will automatically have at least 50 points in offense variable scoring assigned to them, meaning that the minimum sentence range will begin between 42 months and 70 months. If a harmful biological substance, harmful biological device, harmful chemical substance, harmful chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or explosive device was threatened or used, then the scoring is 100 points and the minimum sentence range will begin between 108 months and 180 months! These are just the bare minimums if no other factors are considered. The actual minimum sentence range will be affected by the existence of a prior criminal record, other aggravating factors during the sentencing offense, and habitual enhancements on possible maximum sentences from prior felony convictions.
Remember, if a death occurred during committing an act of terrorism, the mandatory sentence is life without the possibility of parole so the sentencing guidelines scores will not matter.
THE BOTTOM LINE
Prosecutors and judges will take any acts of terrorism against any individuals or groups serious and will punish any offenders to the fullest extent of the law. Anyone that is accused of a crime has the absolute right to have a skilled criminal defense lawyer in their corner to aggressively defend them. When you are staring at the possibility of life in state prison, you cannot settle for any less than the best legal representation to stand up for your rights. Remember, the prosecutor has the absolute burden of proving guilt beyond all reasonable doubt. A criminal defense lawyer worth their salt will independently investigate the matter, file motions to challenge the admissibility of the evidence, and assert every possible defense under the law.
If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.