OV 20 — Terrorism | Michigan Criminal Sentencing Guidelines

Offense Variable 20 (OV 20) measures whether the offender committed or supported an act of terrorism. OV 20 was created by 2002 PA 137 (effective April 22, 2002) when "terrorism" was removed from OV 7's scoring provisions and addressed in a dedicated variable. OV 20 is scored for all felony offenses. MCL 777.22.

Scoring Table

MCL 777.49a — OV 20 Scoring Provisions
Points	Scoring Provision
100	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. MCL 777.49a(1)(a).
50	The offender committed an act of terrorism without using or threatening to use one of the enumerated harmful substances or devices. MCL 777.49a(1)(b).
25	The offender supported an act of terrorism, a terrorist, or a terrorist organization. MCL 777.49a(1)(c).
0	The offender did not commit an act of terrorism or support an act of terrorism, a terrorist, or a terrorist organization. MCL 777.49a(1)(d).
Key Definitions: "Act of terrorism" means a willful and deliberate act that is: (1) a violent felony under Michigan or federal law; (2) dangerous to human life; and (3) intended to intimidate or coerce a civilian population, or to influence or affect government conduct through intimidation or coercion. MCL 750.543b(a). "Terrorist" means any person who engages or is about to engage in an act of terrorism. MCL 750.543b(g).

McGraw Rule Application

OV 20 is a McGraw variable. Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable. MCL 777.49a does not specifically authorize the court to consider facts outside the sentencing offense. People v McGraw, 484 Mich 120 (2009).

Legislative History — Transfer from OV 7

Historical Note: Prior to April 22, 2002, "terrorism" was scored under OV 7. The 2002 PA 137 amendment deleted "terrorism" from OV 7 and created OV 20 to address it exclusively. Conduct constituting "terrorism" in pre-2002 cases was properly scored under OV 7; OV 20 applies to offenses committed on or after April 22, 2002. See People v Hornsby, 251 Mich App 462 (2002) (terrorism scored under OV 7 in armed robbery case pre-amendment).

Definition of "Act of Terrorism" — The Critical Requirement

People v Osantowski 481 Mich 103 (2008)

The Michigan Supreme Court established the controlling interpretation of OV 20. Assessing 100 points for OV 20 is appropriate only when a defendant's use or threatened use of one of the enumerated substances or devices also constitutes an act of terrorism as defined by MCL 750.543b(a). The use or threatened use must constitute the means by which the offender committed an act of terrorism.

To constitute an act of terrorism, a threat must be: (1) a violent felony; and also must itself be (2) "a willful and deliberate act" that the offender "knows or has reason to know is dangerous to human life"; and (3) "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).

In this case, the defendant — convicted of making a terroristic threat by sending e-mails to another teenager in another state threatening mass murder at his school and claiming to possess firearms and be building pipe bombs — did not commit an act of terrorism justifying 100 points. The trial court properly concluded that: (a) the defendant would not have known that e-mail messages to another teenager were themselves "dangerous to human life"; and (b) the defendant did not actually intend to intimidate or coerce the local civilian population or to influence government conduct when he e-mailed threats to another teenager. The e-mails were received by the recipient's father — a law enforcement officer in Washington — who notified Michigan authorities; the defendant himself did not direct his communications at the civilian population or government. Not all violent felonies or terroristic threats are acts of terrorism under MCL 777.49a.

Statutory Definitions

The following definitions apply to OV 20 scoring pursuant to MCL 777.49a(2) and the Michigan Penal Code:

Act of terrorism (MCL 750.543b(a)): A willful and deliberate act that is a violent felony under Michigan or federal law, dangerous to human life, and intended to intimidate or coerce a civilian population or to influence or affect the conduct of government through intimidation or coercion.
Terrorist (MCL 750.543b(g)): Any person who engages or is about to engage in an act of terrorism.
Terrorist organization (MCL 750.543c): An organization that engages in or supports acts of terrorism.
Harmful biological substance (MCL 750.200h(g)): A bacteria, virus, or other microorganism or toxic substance that can be used to cause death, injury, or disease in humans, animals, or plants.
Harmful chemical substance (MCL 750.200h(i)): A solid, liquid, or gas that through its chemical or physical properties can be used to cause death, injury, or disease.
Harmful radioactive material (MCL 750.200h(j)): Material that is radioactive and can be used to cause death, injury, or disease by its radioactivity.
Incendiary device (MCL 777.49a(2)(c)): Includes gasoline or any other flammable substance, a blowtorch, fire bomb, Molotov cocktail, or other similar device.

Practice Notes for Defense Counsel

Practice Note — Three-Part Test Required: OV 20 requires not just a violent felony and not just a "terroristic" threat — it requires that the offense itself (1) be dangerous to human life; (2) be willful and deliberate; and (3) be specifically intended to intimidate or coerce a civilian population or influence government through intimidation or coercion. A threat directed at a single person or a small group, or communicated privately (as through a private e-mail), is unlikely to satisfy element three. Counsel should carefully analyze whether the defendant's specific intent was directed at coercing a civilian population or government — not merely at instilling fear in the direct recipient.

Endnotes

People v Osantowski, 481 Mich 103 (2008)
People v McGraw, 484 Mich 120 (2009)
People v Hornsby, 251 Mich App 462 (2002) (pre-amendment OV 7 terrorism scoring)
2002 PA 137 (effective April 22, 2002) (creating OV 20 and removing terrorism from OV 7)
MCL 750.543b (definitions of act of terrorism and terrorist)
MCL 750.543c (terrorist organization definition)
MCL 750.200h (harmful substance definitions)