Are Threats Always “Violent” Crimes?
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 II 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 ill 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.