When James Jackson allegedly stabbed Timothy Caughman to death in Manhattan in March, people across the country denounced the act as a hate crime and Jackson as a white supremacist. But the New York County District Attorney’s Office gave Jackson an additional label — terrorist.
The DA indicted Jackson last week on two state terrorism charges never before used in Manhattan: murder in the first degree (in furtherance of an act of terrorism) and murder in the second degree as a crime of terrorism. States rarely levy these kinds of charges because terrorism is almost exclusively dealt with by the federal government.
Jackson pleaded not guilty on Wednesday.
“It’s really interesting what gets called terrorism and what doesn’t,” said Emily Berman, assistant professor of national security law at the University of Houston Law Center. “Usually, it means that a Muslim did it. Whereas if a white person did it, they’re ‘crazy’ or something along those lines.”
But Jackson is white, and there’s no evidence that he is connected to jihadi groups like al-Qaida or the Islamic State group. If New York State successfully convicts him, the case has the potential to change how America defines and prosecutes terrorism.
The limits of “domestic terrorism”
Investigators said Jackson traveled to New York City with one mission: to kill black men.
The Baltimore native told investigators he’d hated black people since childhood and targeted New York because of its diversity and status as a media hub. He took several days to settle on his first target, the 66-year-old Caughman. While Caughman was bent over a recycling bin near his home, Jackson allegedly stabbed him in the chest with a “sword” multiple times.
“Last week, with total presence of mind, he acted on his plan, randomly selecting a beloved New Yorker solely on the basis of his skin color, and stabbing him repeatedly and publicly on a Midtown street corner,” New York County District Attorney Cy Vance said in a statement. He called Jackson’s plan “a campaign of terrorism.”
“This means a tremendous amount to my community,” New York City Councilmember Robert E. Cornegy Jr. said of the terrorism charges. “You charge him with a hate crime, he goes to prison, and that’s it…. We as a country have to wake up and begin to address this in a way that protects all Americans.”
After Dylann Roof murdered nine black churchgoers in Charleston, South Carolina, in 2015, there were multiple calls for Roof to face terrorism charges. But while the federal government broadly outlines what constitutes domestic terrorism in laws like the Patriot Act, it can’t charge someone with domestic terrorism per se.
“There is no specific domestic terrorism statute,” then–U.S. Attorney General Loretta Lynch said at a press conference announcing that Roof would be indicted on hate crime charges. The feds can tack on enhanced penalties for domestic terrorism, but federal statutes target terrorists who are linked to, or inspired by, foreign terrorist organizations and ideologies.
“There’s this whole long list of things that can be deemed terrorism in the international sphere,” said Heidi Beirich, who studies hate groups at the Southern Poverty Law Center. “But domestically, it is a very limited legal state.”
Unlike many so-called “jihadis” in the U.S., far-right domestic extremists don’t tend to associate with international groups, meaning they often escape being labeled “terrorists” even if their crimes otherwise fit the bill. In a study of more than 60 planned and executed domestic terrorists attacks between 2009 and 2015, the Southern Poverty Law Center found that more than 90 percent of the attacks were the work of just one or two people operating within the United States.
The states step in
Though the federal government may not be able to charge people with domestic terrorism, most states can. Few, however, actually have, especially for crimes perpetrated by alleged far-right terrorists like Jackson.
In the wake of the Sept. 11, 2001, terrorist attacks, at least 33 states passed legislation that defined terrorism and created new terrorism-related crimes, according to a tally by the National Conference of State Legislatures. New York was one of those states, passing the Anti-Terrorism Act of 2001 days after 9/11.
Still, while the federal government has prosecuted nearly 500 cases of international terrorism over the past 15 years, there have been only a “handful” of state prosecutions across the country, said Karen Greenberg, director of Fordham University’s Center on National Security. The feds tend to have much more experience and resources at their disposal than states do when dealing with terrorism.
And Stephen Vladeck, a professor at the University of Texas School of Law, argues that state terrorism statutes may be misused and thus “cheapen the things that really are terrorism.”
“If the question is whether [Jackson’s crime] falls within the terms of the statute, the answer may well be yes. Does that strike me as the kind of crime that we can and should [charge] as terrorism? My answer is emphatically no,” Vladeck said. “There’s been so much pressure to expand the definitions in these criminal laws that we’ve lost sight, at least to some degree, of why we ever treated terrorism differently in the first place.”
In 2007, Edgar Morales became the first person prosecuted under New York’s anti-terrorism law for killing a 10-year-old girl in a gang gunfight. Because the prosecution successfully argued Morales sought to terrorize the local Mexican-American community, he was initially convicted of three terrorism-related crimes, including manslaughter as a crime of terrorism in the first and second degrees. But an appeals court later found that while Morales may have been a gang member, he wasn’t a terrorist.
“[Morales] acted for the purpose of asserting his gang’s dominance over its particular criminal adversaries, namely, members of rival gangs,” the appeals court’s ruling reads. “Such conduct falls within the category of ordinary street crime, not terrorism.”
The future of “terrorism”
New York has successfully used its anti-terrorism statutes in at least two earlier cases. In May 2011, Ahmed Ferhani was arrested on state terrorism charges for plotting to attack a Jewish synagogue. A few months later, Jose Pimentel was also charged with terrorism for plotting to build and detonate bombs in the city after being inspired by an al-Qaeda cleric. Both men faced state instead of federal charges because the Justice Department reportedly declined to take on the cases.
That experience may prove vital in prosecuting Jackson. “[The district attorney’s] office has developed an expertise in terrorism over the last eight years,” Vance said at a March 30 New York City Council committee hearing. “[Jackson’s] case falls squarely within what we believe domestic terrorism statutes are designed to address and prevent.”
While President Donald Trump refers repeatedly and almost solely to “radical Islamic terrorism,” Jackson’s prosecution and other cases involving similar state charges could expand people’s definition of terrorism.
“When we don’t call domestic terrorism what it is, it causes the public to not think this problem is as big as it is,” Beirich said, adding that attacks by white supremacists and anti-government extremists are far more widespread than most people know. That’s why Jackson’s case, Beirich says, could help Americans reckon with the country’s “indigenous terrorist problem.”