Law Review: Unpunished Terroristic Threats
The Jacob Hecht Pre-Law Society is pleased to inaugurate the first volume of the YU Undergraduate Law Review with a Commentator column on the legal and policy challenges of terroristic threat prosecutions. The purpose of the Undergraduate Law Review is to research and publish scholarly content on contemporary legal issues.
Imagine this: a student threatens to blow up the Wilf Campus. The student shows off the weapons they intend to use to carry out the planned massacre, and even posts videos of their simulated target practice in preparation for the attack. SWAT teams pour in as students and faculty members are evacuated, and the perpetrator is, well, free to go with no criminal charges.
That's no joke; it's the law. And it's happened before, right here in New York State, on at least two prior occasions.
Two years ago, a Long Island high school janitor told a teacher to stay home because he planned to "Columbine" the school he was employed by, while showing a teacher his list of targets to be killed. Shortly thereafter, the janitor was arrested and indicted by a grand jury for the crime of Making a Terroristic Threat, a Class D felony, carrying a penalty of up to seven years in state prison. The defendant also had a stockpile of assault weapons in his house confiscated due to his arrest. But both a local judge, as well as a state appellate court, threw out the charges and returned the janitor’s firearms due to the fact that the defendant's threat to blow up the school was not "imminent." That's right — because the janitor did not specify when he planned to commit his act of terror, he could not face criminal charges. See People v. Hulsen, 2017 NY Slip Op 04294, 150 A.D.3d 1261, 56 N.Y.S.3d 335 (App. Div.); see generally People v. Morales, 2012 NY Slip Op 8439, 20 N.Y.3d 240, 958 N.Y.S.2d 660, 982 N.E.2d 580. See also People v. Adams, 2016 NY Slip Op 26364, 54 Misc. 3d 234, 39 N.Y.S.3d 923 (Sup. Ct.)
What's more, in 2015, a teenager in upstate New York made comments to a gathering of friends, stating her intent to "shoot up" her high school and its principal. The student was also seen recklessly taking target practice in their community that evening. Police were called, and the teen was arrested, yet the charges were once again dismissed by the court, on the basis that the girl's threat to shoot up her school did not constitute the intent to intimidate a "civilian population." See Matter of Brittany A., 2015 NY Slip Op 25014, 47 Misc. 3d 761, 5 N.Y.S.3d 678 (Fam. Ct.)
The statute of Making a Terroristic Threat in the New York State Penal Law includes several provisions necessary to sustain the charge: a threat to commit certain heinous offenses must be made with the intent to “intimidate or coerce a civilian population,” and said threat must spur a reasonable expectation of the “imminent commission” of the act. Additionally, the law includes a provision stating that it is no defense if the individual who made the threat did not possess the capability to commit the massacre. The law was expeditiously drafted and passed by the State Legislature days following the attacks of Sept. 11, and includes language eerily similar to federal terrorism statutes. See New York Penal Law §§ 490.05(1), 490.20; see also 18 U.S.C. §§ 2331(1), 2332(d).
Its implications are stark and appalling. Because of the way the law is phrased, its interpretations in court have made it quite difficult for practical use by prosecutors in cases of threats to commit acts of mass harm. The application of laws works largely by following prior precedent; to wit, the foregoing two cases in which terroristic threats have gone unpunished, as the perpetrators have gotten off scot-free. The fact that a school employee who made threats to commit tragic acts at the high school in which he worked at — yet is not criminally liable, as he did not specify when he planned to carry out his calamity — should serve as a wake-up call to students and policymakers as to the necessity to close this loophole expeditiously.
To remedy this, a bill was introduced in the past legislative session by Senator Todd Kaminsky and Assemblymember Christine Pellegrino, yet it was not even brought forth for committee consideration due to partisan politics. Their bill would have created two separate charges of Making a Threat of Mass Harm in the First and Second Degrees. The second degree charge would be a Class A misdemeanor, punishable by up to one year in jail, and would apply to threats made to places of mass assembly in instances in which the given threat is one of reasonable credibility and causes the target of the threat to perform a lockdown or evacuation. The legislation further includes a provision that explicitly states that the charge can still be applied even if the threat was not made to its target directly.
An enhanced charge of Making a Threat of Mass Harm in the First Degree would be assessed when the defendant additionally commits an overt act in furtherance of their threat, such as creating a list of targets, preparing an attack plan or possessing the weapons necessary to carry out the massacre. The first degree charge would be a Class E felony, punishable by up to four years in prison.
Many individuals who propagate such threats are simply immature teenagers attempting to draw attention to themselves. Nevertheless, the aggregated harm caused with respect to law enforcement resources, class time and chaos is not a factor that can be simply brushed to the wayside. And allowing individuals to get off with no consequences due to legal technicalities is unconscionable and not conducive to public safety.
In the wake of the Pittsburgh synagogue massacre and bomb threats to Jewish Community Centers, it is more evident than ever that measures must be taken to stamp out such criminal activity. Doing so must start with passing legislation to close this egregious loophole that threatens our quality of life and safety on campus.
Photo caption: The New York County Supreme Court building in Manhattan, as photographed in 2013.
Photo credit: Guide to NYC Landmarks