School shootings occur on a regular basis in the United States. Fear of the next school shooting leads schools to take any potential threat of violence seriously, but responding to a threat can be extremely disruptive to a school’s operations and the community that it serves. In the last five years, nine state legislatures have attempted to deter these threats by specifically criminalizing threats of violence against schools.
Despite the proximity in time in which these states enacted school threat statutes, these laws diverge in two important ways: First, the nine statutes employ several different mens rea requirements. Second, these statutes impose a range of punishments, both in their classification as a felony or a misdemeanor and in the potential terms of imprisonment imposed. These differences mean that conduct may be a felony subject to a lengthy prison sentence in one state but may not even rise to the level of a crime in another state. Yet, the conduct at issue is similar across jurisdictions: most school threat offenders are juvenile students, and many of the threats are made digitally, whether over social media or text message.
This Note argues that the disparity in mens rea requirements and wide range of potential punishments in these recent school threat statutes are problematic. After analyzing and comparing these nine statutes, this Note makes two key recommendations for drafting a model school threat statute for future legislatures: First, a knowledge mens rea requirement sets an adequate threshold to distinguish between innocent and criminal conduct. Second, a misdemeanor offense punishable by up to six months’ imprisonment is a sufficiently harsh criminal sanction. As juveniles are unlikely to respond to the deterrent message of these laws, and excessive prison terms have negative effects on juveniles, imposing a longer punishment for school threat offenses is unwarranted.