Prosecution of ISIS Terrorists in the United States: A Gender Analysis

Robert Fox, Mariah Cady, Marshall Berton, Sofia Mohamed, and Sahar Joshi

Who ISIS is, Why They're Dangerous, and What the U.S. is Doing About It

Even as the international community expresses concerns about the motives of the radical militant group the Islamic State of Iraq and Greater Syria (ISIS), some Westerners support their actions. Like many western powers, the US has declared a ‘war on terror, in which preventing and countering terrorism remains a top priority. “The Department of Justice (DOJ) has worked tirelessly to prevent individuals from leaving America to fight for ISIS and other terrorist groups in Syria and investigate, repatriate, and charge people who willingly left to support these organizations.”However, we find that gender influences prosecution of terrorists connected to ISIS. According to our research using The Intercept’s Trial and Terror database, men convicted of terrorist activity faced sentences more than two times longer than their female counterparts. Out of 17 convicted female terrorists related to ISIS, the average sentencing time was 7.49 years. Men, by comparison, averaged 16.3 years with a sample size of 190. In addition to the gender bias, we also saw a massive gap in sentencing between women who mentioned a husband or lover in their court case versus women who did not. We hypothesize that this gap is caused by the court’s assumption that women with direct relationships with ISIS were coerced or tricked into aiding their cause. Through our gender analysis, we will explore gender stereotypes, demographic factors, and race through an intersectional lens in the prosecution of female terrorists connected to ISIS.

To explore gender dynamics, we will conduct a two part-analysis.

Part One. A Case Study

Samantha El-Hassani, 35, a former resident of Elkhart, Indiana, was sentenced by the US District Court to 78 months in prison and three years of supervised release after pleading guilty to financing terrorism. A statement released by Assistant Attorney General for National Security John C. Demers, "Once again, the Justice Department has held accountable an individual who turned her back on her country to support a terrorist organization." However, we question if El-Hassani was held accountable. We hypothesize that El-Hassani received a lesser sentence due to the nature of her case. After traveling with her husband to Morocco in March of 2015 to start a new life with her family. El-Hassani's husband, Moussa, joined ISIS; however, after being accused of support for international terrorism, she and her defense team have claimed that he has tricked her into supporting the cause, but others disagree. She explains in an interview that she thought that she could cross the border, get her child, and leave. However, it was not that simple. Women with familial connections to terrorist organizations in their trials receive less harsh sentences, as seen in the El-Hassani case, on average, when compared to women seen as acting independently. We also believe that judges in the US see this connection as a result of trickery or coercion by a male family member, denying the women agency.

Part Two. Tying in the Data

Similarly, the data we collected exemplifies a clear gender bias in sentencing. We found that men faced sentences more than two times longer than women. The difference is not solely due to men facing heftier charges than women. To ensure that this wasn't the case, we found that women convicted solely of the charge of material support, a common ruling for those caught aiding ISIS fighters, were sentenced to an average of 7.2 years in prison. Men who were convicted of the same charge were sentenced to 14.8 years in prison on average. Women were thus far less likely to receive hefty sentencing than men convicted of the same crime and magnitude. In addition, we found a massive gap in the sentencing of women who mentioned a husband or lover in their court cases versus women who did not. This reflects the gender dynamics that Samantha El-Hassani, whose story is illustrated above, exploited in her defense in an attempt to reduce her sentence. This plays off of gender stereotypes, in which men may be seen as "in-control," while women are seen as innocent and manipulatable. Based on the data we gathered, of the seventeen women affiliated with ISIS who have been sentenced, the average sentencing for those who mentioned a husband or lover in their court case (n=7 women) was 5.6 years, while the average for women who did not mention a husband or lover (n=10 women) was 8.8 years. This is 3.2 years higher on average than those who had mentioned a relationship. A gap is caused by the court's assumption that women with direct relationships with ISIS are coerced into aiding their cause instead of willing joining of their own accord.

Furthermore, all gender analyses require intersectionality to fully understand how race and ethnicity come into play when investigating terrorist convictions. Caucasian women, in comparison to African Americans, are more likely to receive less harsh sentencing in court cases. An example of this is the story of Jessica Lynch and Shoshana Johnson at Abu Ghraib, which exemplifies that white women are perceived as more innocent than women of other races. In El- Hassani's case, a white woman, in contrast to Jaelyn Young and Keonna Thomas, two African American women who received material support charges, presented a romantic interest, which was used by both of their defense teams to reduce the agency of the women. Although neither woman ended up abroad or on ISIS grounds, the differences in sentencing are extensive. Revisiting the case study above, it is clear that in comparison with Elhassani’s 6.5 years in prison and 3 years of supervised release, Young and Thomas, for example, two African-American women convicted of material support charges, were sentenced to 12 years in prison with 15 years of supervised release, and 8 years in prison with 10 years of supervised release respectively; all for the same crime. Racial norms in the courtroom, in addition to gender norms, could have easily influenced the judge's decision to give Samantha El-Hassani preferential treatment in her sentencing. These results indicate that there is not only a clear difference in the experiences of men and women in American courts when accused of international terrorism crimes but also a clear difference on the basis of race.

Power Dynamics

Despite previous research having shown that women are just as successful as men in the success rate of planned terrorist attacks, previous studies have found that women typically receive more lenient punishment in the American criminal justice system when compared to men (See Alexander and Turkington, Rodriguez et al., Goulette, et. al.) The “chivalry/paternalism thesis,” which hypothesizes that judges feel the need to “protect” women who enter their courtrooms from harsher sentencing, especially if they are visibly wives or mothers, helps to explain why this unwarranted gender disparity occurs. Judges may also be presented with messages from defense attorneys, which paint violence carried out by women as impossible if it were not for the manipulation of men – essentially, the monster, mother, whore trope.

Previous research also shows that racial power dynamics influence sentencing lengths in the courtroom – Black, Hispanic, and other minority groups are likely to receive between 10 and 20% longer sentencing times than their white counterparts committing the same crime (See Smith et al., Rehavi and Starr). Prosecutors are also more likely to pursue higher minimum sentences for defendants of color. In contexts where there is an accusation on behalf of the FBI or governmental agency of accused terrorism, this may especially be true. This power imbalance extends beyond race, however, as it also has a significant influence on gender dynamics in American courtrooms. According to Steffensmeier’s 1998 study of race, gender, and age factors in the courtroom, the greatest variations in sentencing were found between certain age-gender-race (ie, intersectional) categories of defendants. According to our research, this race-gender effect in the courtroom in general is mirrored by the variation in sentences received by accused terrorists in the U.S., as Black women receive the harshest sentencing of any group of people accused of terrorism, besides men, while white women receive the least harsh sentencing of any subgroup of terrorists. Specifically, Black women on average receive an 83% longer sentencing time than White women convicted of the same crime. The answer for why this happens lays in the way in which power dynamics intersect with one another in the courtroom – while women are, on the whole, more likely to be considered nonviolent criminals in court, Black women are more likely than white women to be considered violent. As a result, when prosecutors and judges have the ability to decide who is a terrorist threat and who is not, these racial power dynamics create serious discrepancies in sentencing – discrepancies that target Black women.

"Where Do We Go Next?" Key Take-Aways for Policymakers