Are All Terrorizers “Terrorists”?

By Sean K. Driscoll*

Gang violence undoubtedly terrorizes residents of neighborhoods like the Parkchester section of the Bronx, New York. But does violence alone make gang members “terrorists” in the eyes of the law? Not according to People v. Morales, a recent decision from the New York State Court of Appeals.

Edgar Morales was an admitted member of the St. James Boys, a Mexican-American street gang in the Bronx. In 2002, Morales and other members of the St. James Boys went to a christening party that a rival gang member also attended. Feeling slighted that their rival did not leave, the St. James Boys assaulted him. During the fight, Morales fired five rounds, paralyzing another rival gang member and killing ten-year-old Melanny Mendez, a guest at the party.

At trial, Morales faced charges of murder and manslaughter (for killing Mendez), attempted murder (for shooting his rival), and conspiracy. However, in a novel twist, the Bronx District Attorney’s Office charged these offenses as “crimes of terrorism” under New York State Penal Code §490.25, which enhances sentences for specified violent crimes carried out “with intent to intimidate or coerce a civilian population.” (The law was passed days after the September 11^th terrorist attacks, but had never been used previously.) The prosecution argued that the St. James Boys were “terrorists” within the plain language of the statute because the gang’s “objective was to carry out a systematic campaign of intimidation in which gang members preyed upon hard working, law abiding citizens, including fellow immigrants from Mexico.”

A jury convicted Morales of manslaughter, attempted murder, and conspiracy as crimes of terrorism, but acquitted him of the most serious charge: murder in the second degree. Last month, however, the New York Court of Appeals ruled that the terrorism statute was inappropriately applied, and vacated Morales’ convictions because “the spillover effect” from “the aura of terrorism looming over the case” made his trial unfair.

While many news accounts have depicted the decision as holding that gang violence cannot qualify as “terrorism,” in reality, the New York State Court of Appeals held only that Morales’s specific actions did not meet the elements of §490.25, for two reasons. First, the prosecution offered no proof that shooting a rival gang member—as opposed to an indiscriminate act of violence against the public—was intended to intimidate the neighborhood’s civilian population. Second, the Court rejected arguments that a rival gang could qualify as a “civilian population” under the statute. If the Court were to rule otherwise, Justice Graffeo warned, “the People could invoke the specter of ‘terrorism’ every time a Blood assaults a Crip.”

Notably, however, the Court left open the possibility that gang violence targeting civilians could qualify as “terrorism” under §490.25. The opinion quoted legislative history implying that crimes targeting a small geographic area or a sub-population based on ethnicity or religion (citing the 1994 killing of Ari Halberstam) could fall within the terrorism statute’s ambit.

Given the legal risks—and sheer novelty—why did Bronx prosecutors charge Morales as a terrorist? The answer is simple: mandatory minimum sentences. Under the New York State Penal Code’s sentencing provisions, manslaughter and attempted murder are class B felonies, carrying a minimum sentence of only one year in prison (with discretion given to the sentencing judge). The terrorism enhancement elevated Morales’ convictions to class A-1 felonies, guaranteeing a minimum sentence of twenty-five years. (This disparity has prompted some commentators to argue that legislators should pass gang-specific sentencing enhancements.)

In the end, however, People v. Morales may be a lesson for prosecutors not only on the limits of what crimes constitute “terrorism,” but also on the risks of letting juries “choose” between higher and lower charges. Had the jury convicted Morales of murder in the second degree—instead of manslaughter—for killing Melanny Mendez, he would have faced twenty-five years to life even without the terrorism enhancement. However, despite convicting Morales of intentionally shooting his rival and causing the death of Melanny Mendez with a stray bullet—which together satisfies all of the elements of second degree murder (by transferred intent)—the jury acquitted Morales of murder, choosing the lower manslaughter charge instead.

* J.D. candidate, Harvard Law School, 2013; B.A., University of Virginia, 2004.