Experts said the low number of prosecutions may be caused by a number of factors, such as limited federal resources, victims’ reluctance to go through the criminal process, or whether a perceived threat qualifies as a threat. speech protected under the First Amendment. The question of how to legally define a threat — from the perspective of the sender or the receiver? — was decided differently among federal circuit courts, and the U.S. Supreme Court is expected to hear arguments this spring on a Facebook harassment case that could resolve the issue nationwide.
The number of possible threats against members of Congress reviewed by the Capitol Police Threat Assessment Section rose from around 4,000 in 2017 to over 9,600 in 2021, then declined last year to 7,501. They include phone calls, letters and emails, voicemails and online postings referred to authorities — most of which Capitol Police say are “concerning” and are being tracked, but are not responding to the legal definition of threats.
In 2021, the department opened field offices in Florida and California, the two states where it received the most possible threat reports. The department said its role in most cases was not necessarily to prosecute, but often to refer people to mental health treatment.
After Capitol Police review these 7,501 cases Last year, its officers determined that only 313 people qualified as real threats, or about 4%. These 313 cases were then sent to the US Attorney’s office in the area where the threat was allegedly made.
Prosecutors advanced in 22 of the 313 cases, or about 7%. The number and percentage of threatening prosecutions has steadily declined in recent years, according to Capitol Police statistics. There were 51 threats against members of Congress federally charged in 2019, about 13% of cases referred. Ten percent were prosecuted in 2020 and 9% in 2021.
Capitol Police responded to requests for statistics from The Washington Post, but declined to comment further. After the attack on Paul Pelosi, husband of Rep. Nancy Pelosi (D-California), in San Francisco last fall, Chief Tom Manger released a statement saying his department was monitoring “potential threats before they don’t make the headlines”. Manger noted that about 12% of threatening cases had been prosecuted in the previous five years and added, “We hope to see more of these cases prosecuted to the fullest extent of the law.”
In a recent case filed by the Justice Department, prosecutors allege that a Longview, Wash., man left more than 400 voicemail messages for members of Congress, one of which read, “Well, I’ll murder. It is justified. An Annapolis, Maryland man pleaded guilty last month to leaving messages on the website for an event a congressman was attending, saying, “Thanks for the address!!!” I come to assassinate you all. Both men face maximum prison sentences of five years.
The Department of Justice declined to comment for this story. In recent years, officials have sought to take a more aggressive stance on threat cases, and the department has provided data indicating it has increased prosecutions of cases beyond those involving members of Congress.
From 2012 to 2018, federal threatening charges were filed in about 160 cases per year, according to Justice Department statistics. But over the past four years, the average number of threatening charges has risen to more than 218 cases per year. The department said it does not track the percentage of law enforcement referrals for possible threats that it prosecutes. In 2021, the Department of Justice launched an Election Threats Task Force to respond to threats made against local election officials and election workers.
The decision to indict is more complicated than it appears, said Mary McCord, former national security official for the Justice Department during the Obama administration and legal adviser to the task force on the review of the security of the Capitol of the House of Representatives, which was formed after the attacks of January 6.
McCord said federal prosecutors across the country need to understand “what a pervasive problem this has become,” with growing threats not just to Congress but to other elected officials and those running elections across the country. “The more you don’t respond” to threats, McCord said, “the more you embolden people to adopt the same behavior.”
But obstacles include devoting federal time and resources to nonviolent cases, researching anonymous threats and analyzing whether a person truly had the capacity to act on their threat, McCord said. When she worked in the U.S. Attorney’s office in DC, McCord said, a prosecutor was on call around the clock to begin processing possible threat cases, but she said members of Congress, their staff or other targets are often not interested in repeatedly going to court to testify against someone.
McCord said local FBI agents and prosecutors conducting their own investigation after Capitol Police submit the case might find problems presenting a “very tight case,” which federal prosecutors prefer.
Another significant issue for prosecutors is the standard for charging someone with uttering a threat, which differs from state to state and among federal circuits. “What intention do you have to show? asked McCord. “Did the person intend to threaten or did the recipient perceive a threat? »
In many states and 10 federal circuits, the standard for a threat is “how reasonable people would interpret the speaker’s words,” but in other states and two federal circuits, the standard is “evidence that the speaker intended the statement to be a threat. according to a U.S. Supreme Court brief filed in the case of Counterman v. Colorado.
The case involves the thousands, if not millions, of Facebook messages that Billy Ray Counterman sent to Denver-area singer-songwriter Coles Whalen over several years. Whalen tried to block Counterman but the messages kept coming in, and Whalen became terrified of performing in public., according to court records. Counterman was eventually accused of harassing Whalen, for messages such as “You are not good for human relations. Die. I don’t need you” and “F— permanently off. A jury found Counterman guilty and he was sentenced to 4½ years in prison.
Counterman’s lawyers asked the Supreme Court to hear the case, arguing that “modern media allows statements intended for a particular audience to be seen by people who are unfamiliar with the context and therefore can interpret the statements. different from the intention of the speaker”. The Supreme Court has accepted the case and oral arguments are scheduled for April.
Washington
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