The crime of "making a terrorist threat" is a creation of the last decade, enacted at both the state and federal levels, after the terrorist attacks of 9/11. It is a very general law that can be used to prosecute terrorists, but has been used far more often to prosecute other violations of criminal law such as domestic violence, hate crimes, bomb threats, and school violence. Indeed, in many states, the term "terrorist" has been amended to mean simply "criminal."

Although the exact definition varies from state to state, generally one makes a terrorist threat if one threatens to commit a violent crime for the purpose of terrorizing another or of causing public panic. Some states laws are very narrow, meaning the threat must be very specific and direct, while other states adapt a looser approach, allowing even negligently made threats to be prosecutable.

What Are the Elements of a Terrorist Threat?

The most commonly used definition of a terrorist or criminal threat has five elements:

1) Willful Threat.Someone willfully threatens to commit a crime that will result in death or great bodily harm. This means that the threat obviously has to be of a highly dangerous nature. Threatening to slash someone’s tires, for instance, would probably not be sufficient. However, the threat can be made in writing, verbally or electronically transmitted.

2) Specific Intent. The threat was made with the specific intent that it be taken as a threat. Although this certainly seems like a redundant sentence, it is meant to convey that the threat is a crime even if there is no actual intent to carry it out. The only intent you need is the intent to make the threat itself. So if you threaten to blow up a school, you will still be guilty of this crime even if you are completely unarmed and have no means of accomplishing this at all.

3) Unequivocal, Unconditional, and Specific. The threat is unequivocal, unconditional, and specific as to convey a gravity of purpose and immediate prospect of execution. This extremely complicated sounding sentence is very important to the law, so let's break it down. Remember you must satisfy ALL of these requirements.

  • Unequivocal: This means that the threat must be a direct statement of what you WILL do, as opposed to CAN do (i.e. "I could be the next man to blow up the federal building" does NOT count).
  • Unconditional: This word is very bizarrely used here, because the courts have directly held that conditional threats ("If you touch me again I'll kill you") DO qualify. It is a gray area, but presumably, the fewer conditions used, the more likely the court will rule that it is a threat.
  • Specific: The threat cannot be vague (e.g. "If you don't give me a million dollars, something bad will happen").

4) Caused Fear. The threat actually caused fear in the victim. People must actually believe your threat for you to be arrested for it.

5) The Fear Was Reasonable. If you said that you are going to blow up the White House with your spaceship, it is unlikely that any reasonable person could take this seriously.

Does Every State Have a Terrorist Threat Law?

Yes, every state has some version of the law. Missouri, for instance, only considers a terrorist threat one which frightens more than ten people. However, California insists that the fear caused be "sustained" (held for more than a brief instant).

Since the laws differ from place to place, it is important to contact a criminal defense attorney familiar with the rulings in your state.

In addition, the federal government has also enacted terrorist threat statutes. These are a bit narrower than state laws and at this time punish threats to use weapons of mass destruction, threats to use chemical weapons and false reports about bombs. Because state and federal governments are considered separate sovereigns, double jeopardy does not apply. This means that you can be charged and punished by both the state and the federal government for the same illegal conduct.

What Are the Punishments for Making a Terrorist Threat?

The punishments for making a terrorist threat will depend on what state you are located in, and whether you are charged with a federal or state crime.

Sometimes the punishment can be as little as a year in the county jail. In other instances (especially under federal law), the punishments can be extremely severe. Individuals who threaten the use of a biological toxin can receive up to life in prison and also go on a no-fly list if it was made on a plane. The law provides for up to five years in prison for mailing communications that contain any threat to injure the addressee or any other person, and five years for those who lie to law enforcement officials about terrorist hoaxes.

Should I Contact a Lawyer?

In post 9/11 America, something as simple as calling in a phony threat for the purposes of closing down a school to avoid taking an algebra a test, can land you 20 years in prison. Obviously, it is not a crime that is taken lightly at either the state or federal level. If you've been charged with making terrorist threats, it is very important you speak with a criminal defense attorney immediately to discuss your options.