Our under-incarceration problem, Orlando edition

Time and time again, in the aftermath of a horrific crime, we learn that the criminal previously had been incarcerated for crimes serious enough that he should have been in prison at the time of the latest offense. I call this our under-incarceration problem.

In the case of Omar Mateen, killer of four dozen at an Orlando club, I haven’t seen anything that shows he should have been in jail. However, this report from Fox News suggests that the man who helped inspire him to butcher gays should be.

Marcus Dwayne Robertson is a radical imam who preaches hate in the Orlando area. A former U.S. Marine, he served as a bodyguard to the Blind Sheik who was behind the 1993 World Trade Center Attack.

Eventually, Robertson resurfaced in Orlando. According to a law enforcement official familiar with Robertson, the imam has a history of recruiting terrorists and inciting violence in the area.

The official says that Mateen was enrolled in Robertson’s online Fundamental Islamic Knowledge Seminary. Robertson reportedly has “openly and enthusiastically preached against homosexuality.”

According to Fox News, Robertson, spent four years in prison in Florida on illegal weapons and tax fraud charges before being released by a Florida judge one year ago. During his time in prison, Robertson was considered so dangerous that he was kept in shackles and assigned his own guards.

Whenever Robertson was transported to court, a seven-car caravan of armed federal marshals escorted him. He was initially moved into solitary confinement because prison authorities concluded he was radicalizing up to 36 of his fellow prisoners.

The illegal weapons and tax fraud charges in themselves may not have justified more than four years of jail time. But prosecutors say that wiretaps from 2011 show that Robertson instructed one of his students, Jonathan Paul Jimenez, to file false tax returns to obtain a tax refund to pay for travel to Mauritania for terror training.

Jimenez studied with Robertson for a year in preparation for his travel to Mauritania, where he furthered his training in killing, suicide bombing, and identifying and murdering U.S. military personnel. He pleaded guilty in 2012 to lying to authorities and conspiring to defraud the IRS and was sentenced to 10 years in federal prison.

Prosecutors sought to tack on 10 years to Robertson’s sentence, based on enhanced terrorism charges under the Foreign Intelligence Surveillance Act. However, U.S. District Judge Gregory Presnell, a Bill Clinton appointee, was unmoved. He freed Robertson in June 2015 with time served.

Without more knowledge of the facts, it s impossible to say with confidence that the judge erred in releasing Robertson. Unfortunately, many of the court documents, including Robertson’s own testimony from his most recent criminal case, remain under federal seal.

But if wiretaps showed that Robertson instructed his student to file false tax returns to obtain a tax refund to pay for travel to Mauritania for terror training, and if that student worked with Robertson for a year in preparation for that trip, then Judge Presnell’s decision to refuse the government’s request for an enhanced sentence seems suspect.

Robertson was questioned by authorities following Mateen’s massacre, but there is no indication he will be charged in connection with those crimes. Most likely, he will remain able to spew venom, including at gays and lesbians, to inspire violence, and to assist terrorists.

Society had its chance to keep Robertson in prison and isolated, but a federal judge let him walk.

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