Are threats always 'violent' crimes?

• Date: 01 February 1996
• Author: Feinstein, Jeremy D.

Introduction

You are enjoying a quiet evening at home in Michigan when you receive a phone call. An unfamifiar voice says, "I know where you live, and I'm coming to kill you." Upset by this incident, you report it to the police. A short time later the police tell you that they have traced the call and identified the perpetrator: a patient confined to a mental hospital in Hawaii, who apparently called your number either by mistake or at random. The police inforin you that even though the threatener is already committed to a psychiatric facility, they intend to prosecute him for the crime of making threats.(1)

Does this threat constitute a "violent" crime? If not, what if the threatener had turned out to be a disgruntled former employee of your company, twice convicted of committing violent crimes, who lived nearby? In other words, is the answer influenced by the apparent likelihood--or lack thereof--of the threat being carried out? If the Hawaii mental patient's threat is a "Violent" crime, does this mean that a statement of intent to do something "violent" is always an act "of violence"

It is important to think about the answers to these questions because, under the United States Sentencing Guidelines (Guidelines),(2) the characterization of a crime as "violent" or "non-violent" is significant for a defendant in two ways. First, if a crime is considered a "non-violent offense" and the defendant committed it while suffering from "reduced mental capacity," he may be entitled to a sentence reduction under section 5K2.13 (the "reduced mental capacity provision") of the Guidelines.(3) Second, if a crime is considered a "crime of violence" and the defendant previously has been convicted of two other "crimes of violence," he may be considered a "career offender" under section 4B1.1 (the "career offender provision" and receive a more severe sentence than he otherwise would.(4) Thus, the violent or non-violent nature of an offense may have substantial iinpact on the length of a defendant's sentence.

Characterization of an offense as "violent" or "non-violent" can be difficult,(5) especially with respect to threats,(6) which do not seem to fau squarely within either the violent or non-violent category of crimes. Reflecting this difficulty, the federal courts of appeals have split regarding whether threats ever may be considered "nonviolent offenses" for purposes of deciding whether a defendant should be eligible for a sentence reduction under the reduced mental capacity provision.(7) Some say that whether an offense is non-violent" depends on the particular facts and circumstances of the case and that consequently at least some threats may be considered "non-violent offenses."(8) Others look at the definition of crime of violence" in the career offender provision, and, because this definition appears to characterize all threats as "crimes of violence," they conclude that threats should never be considered "nonviolent offenses."(9)

This Note argues that because the generally accepted legal meaning of violence is the use--or the risk of the use--of physical force so as to injure, damage, or abuse, threats only should be considered violent if they involve a risk of the use of physical force. Part I examines the substantive law of threats to determine if they inherently involve a risk of the use of physical force, and concludes that they do not. Part 11 studies the meaning of the term violence, and argues that both courts and dictionaries understand the term to mean the use--or the risk of the use--of physical force so as to injure, damage, or abuse. Part III then draws on the analysis of Parts I and II and concludes that courts should consider threats violent offenses only when they involve the risk of the use of force; riskless threats should qualify as "non-violent offenses" under the reduced mental capacity provision and should not be considered "crimes of violence" for purposes of the career offender provision. Finally, Part IV considers how courts should determine whether a threat created risk and argues that courts should consider a threat to have created risk--and therefore to be violent--whenever they find two facts: (1) the defendant had a genuine intent to carry out the threat, and (2) the defendant had the ability to carry out the threat.

1. The Harm Caused by Threats

   To begin to evaluate whether threats should always be considered violent crimes, it is necessary first to develop an understanding of the nature of criminal threats. The conduct involved in a threat is simple; all that is required is a communicated intent to kill or injure.(10) The harm caused by a threat, however, is more complicated and requires some analysis.

   In theory, threats are capable of causing two types of harm: they can create fear in the recipient of the threat, and they can create a risk that the threatened conduct actually will take place. The Supreme Court has described the harms caused by threats as "the fear of violence . . . [and] the possibility that the threatened violence will occur."(11) In practice, however, courts eschew consideration of risk creation when determining whether a threat is criminal.(12) All that is required is that the threat reasonably could have induced fear in the recipient. The fact that threats do not always create risk raises serious questions regarding the propriety of categorically characterizing them as "violent crimes."(13)

   Section I.A looks at federal threat cases and observes that federal courts are indifferent to whether a threatener had the intention or the ability to carry out his threat. Because these are the two most important indicators of whether a threat created any genuine risk of harm, this section concludes that the creation of risk is not an essential element of a punishable threat under existing law. Section I.B observes that federal courts regard fear as an essential element of a punishable threat because the creation of fear distinguishes "true threats" from nonpunishable jokes, hyperbole, and political speech.

   1. The Irrelevance of Risk for Determining Criminal Liability

      Notwithstanding the fact that the utterance of a threat theoretically creates a risk that the threatener will act in accordance with his stated intent, courts are indifferent to this risk when they decide whether or not a particular speech act is a punishable threat. Courts adamantly refuse to consider either of the two factors that could help them determine the degree of risk created by a threat:(14) the threatener's objective ability to carry out his threat and his subjective intent to carry out his threat.(15)

      The Ninth Circuit's approach in United States v. Mitchell(16) provides an apt example of the irrelevance of risk in determining criminal liability for a threat. Mitchell was detained at the Honolulu International Airport by customs officials and, while in detention, identified himself as Mahatma Gandhi and the son of Nehru and also boasted that he had a guerrilla army in the Philippines.(17) Mitchell then threatened to kill President Reagan by drowning him in the Atlantic Ocean, which led to his conviction under 18 U.S.C. [sections] 871 for threatening the President.(18) In sustaining the conviction, the Ninth Circuit rejected Mitchell's claims that his threat was "`ludicrous and made in jest'" and that he was incapable of carrying it out.(19) The court noted that "[t]he agents who heard the statements apparently took them quite seriously"(20) and -- notwithstanding the formidable logistical barriers to Mitchell's presidential-drowning scheme -- disregarded his inability to carry out the threat by observing that "`the threat itself is the crime.'"(21) The degree of risk posed by the threat was not a factor in the decision.

   2. The Importance of Fear

      Although it is not necessary for a threat to create risk, courts have held that threats must have a reasonable tendency to create fear in the recipient in order to be punishable.(22) The creation-of-fear requirement is essential to distinguish "true threats" from jokes, hyperbole, and political speech, all of which are protected by the First Amendment.(23) Some courts do not refer specifically to the fear or apprehension experienced by the recipient of a threat, but they emphasize that the characterization of speech as a threat may depend on whether the recipient reasonably perceived it as such.(24) At any rate, it is clear that the reasonable or actual reaction of the recipient of threatening speech is an important consideration for courts trying to decide whether to punish a defendant for making threats.

      The Sixth Circuit's approach in United States v. Cox(25) is a good example of the importance of fear creation in threat cases. Cox, who was delinquent in his truck loan payments, telephoned the bank that had ordered the repossession of his truck and stated, "I tell you what, you all better have my personal items to me by five o'clock today or it[']s going to be a lot of hurt people there."(26) After being convicted of knowingly transmitting in interstate commerce a communication containing a threat,(27) Cox challenged his conviction on the ground -- among others -- that his threat was conditional and equivocal. The court noted that there was some authority for the proposition that conditional statements were protected by the First Amendment.(28) The court held, however, that "a threat is not to be construed as conditional if it had a reasonable tendency to create apprehension that its originator will act in accordance with its tenor." The court then concluded that the people at the bank who had been the targets of Cox's threat "reasonably would be apprehensive" and "had reason to feel threatened."(29) Because Cox's threat created reasonable fear, his conviction was affirmed.

2. THE MEANING OF VIOLENCE

   At sentencing, the Guidelines require courts to decide whether a criminal act was a non-violent offense or a crime of violence. These...