Criminalizing Statements of Terrorist Intent: How to Understand the Law Governing Terrorist Threats, and Why it Should Be Used Instead of Long-Term Preventive Detention
Alec D. Walen
Rutgers School of Law, Camden
January 13, 2011
Journal of Criminal Law and Criminology, Vol. 101, pp. 803-854, 2011
What ought we, as a liberal society, to do with members of our society who have stated their intention to commit terrorist attacks? Preventively detain them to ensure that they don’t have the opportunity to act on that intention? Monitor them with the goal of catching them, hopefully before they do any harm, in a criminal act for which they can be prosecuted and, if convicted, imprisoned? Or prosecute them for having stated that intention? I argue for the last option, which can be pursued by prosecuting them for threatening to commit terrorist acts.
This is not legally controversial, but it is nonetheless philosophically problematic. The doctrine concerning threat law is a mess, and has failed to clearly distinguish the crime that concerns causing fear and disruption from the crime that concerns having the intention to commit the ultimate crime. But the distinction can be made and defended. Forming the intention to commit a criminal act is at the core of all criminal liability, especially inchoate crimes. And while the crime of stating the intention to commit unlawful, violent acts pushes the outer limits of the idea of an inchoate crime, it does not surpass those limits. As long as the ultimate crime is sufficiently serious, and the prospects for deterrence sufficiently low, there is reason to have such an inchoate crime. Those conditions are met when dealing with politically or religiously motivated terrorist crime.
Number of Pages in PDF File: 52
Keywords: threat, inchoate crime, terrorism, intentAccepted Paper Series
Date posted: January 16, 2011 ; Last revised: July 12, 2011
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