The First Amendment protects us from government infringement of our right to free speech. But over the centuries, Congress, state legislatures and courts have carved out several exceptions, some of which can even land you in prison based on what you say or write.
One such law is California’s Penal Code section 422, which criminalizes “criminal threats.” This statute makes it a crime to:
- Threaten “to commit a crime that would result in death or great bodily injury to another person”
- With the specific intent that the statement be taken as a threat, whether or not there is any intent to carry out the threat
- Which threat reasonably causes the threatened person “reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety”
The criminal threat can be made verbally, in writing or by electronic communication.
What is ‘specific intent’?
The term “specific intent” deserves closer inspection. It is a concept in criminal law that means the intent to perform an action as well as intending particular consequences to result from that act. With criminal threats, it means the person who made the statement intended that the threatened person reasonably believe death or great bodily injury was being threatened. Specific intent crimes are generally harder to prove because the prosecutor must also prove the defendant’s mindset. Just proving that the threatening statement was made is not enough.
Another issue is whether the victim’s reaction was reasonable. Under Penal Code section 422, the threatened person’s fear is reasonable when “on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution, and thereby causes that person reasonably to be in sustained fear” of severe injury or death. This obviously depends on the circumstances of each particular case. What was the relationship between the parties? What did the communication specifically state? Was the accused person capable of carrying out the threat? In what context did the accused person make the communication?
Making a criminal threat is punishable by up to a year in jail or up to three years in prison. Prosecutors have considerable resources and powers dedicated to convicting or pressuring a defendant to plead guilty. An experienced and aggressive defense attorney can help level the playing field, protect your rights and fight for a fair and just outcome.