Chapter 7. Divisible-Statute Analysis
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CRIME OF MORAL TURPITUDE " THREATS
Immigration authorities generally cite Matter of Ajami, 22 I&N Dec. 949 (BIA 1999) (Michigan conviction for aggravated stalking, in violation of M.C.L.A. 750.411i is a crime involving moral turpitude), for the proposition that threatening another is a CMT. Ajami may be not be the end of the issue, however, since that case involved a pattern of behavior, rather than a single instance of issuing a threat. Depending upon the statute at issue, the conviction may not involve an intent to carry out the threat or the intent that the threat was believed. Even though for it to be a true threat it must be normally one that a reasonable person would fear was real, it could be possible, depending on the elements of the statute, for the mens rea as to the outcome of the threat (that it would reasonably be believed) to be as low as negligence. Since an intentional threat that is not intended to be carried out and not intended to be believed can still be a threat if a reasonable person would believe it, you might not have to prove the accused intended or thought it was believable, to be convicted, as long as they were careless to a criminal extent, i.e negligent as to the result of the threat. This arguably detracts from the evil nature of the offense. The nature of the threat may also be an issue, such as a threat to commit a property crime (graffiti), or to damage the other persons reputation. There may also be freedom of speech issues: The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law ... abridging the freedom of speech. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). While the scope of the First Amendment is broad, it does not extend to unprotected speech. Kilburn, 151 Wash.2d at 42"43, 84 P.3d 1215. True threats occupy one category of unprotected speech. Id. at 43, 84 P.3d 1215. A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person. Id. (internal punctuation and quotation marks omitted) (quoting State v. Williams, 144 Wash.2d 197, 208"09, 26 P.3d 890 (2001)). . . . The speaker of a true threat need not actually intend to carry it out. Id. at 46, 84 P.3d 1215. It is enough that a reasonable speaker would foresee that the threat would be considered serious. Importantly, only threats that are true may be proscribed. The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole. Id. at 43, 84 P.3d 1215. We recently interpreted the bomb threat statute, RCW 9.61.160, to reach only true threats in order to save it from a constitutional challenge. State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006). We adhere to this principle and construe the threats-to-kill provision of RCW 9A.46.020 to the same effect. State v. Schaler,169 Wash.2d 274, 283-284, 236 P.3d 858, 862-863 (Wash. 2010). See also Fernandez-Ruiz v. Gonzalez, 468 F.3d 1159 (9th Cir. 2006) (placing another person in reasonable apprehension of physical injury is not a CMT). Thanks to Jonathan Moore.
AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY " PRACTICE ADVISORY
The Supreme Court commented, in dictum, that a residential burglary conviction, with a one-year sentence imposed, would qualify as an aggravated felony crime of violence under 18 U.S.C. 16(b). It stated: The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). This statement, however, was not necessary to the decision, and the court offered no evidence or authority in support. The court followed this up with the decision in James v. United States, 550 U.S. 192 (2007), in which it held that attempted burglary constituted a crime of violence for purposes of enhancing a federal sentence based on a violent prior conviction. Examination of the statistical facts, however, contradictions the courts assumption in these cases. A study funded by the National Institute of Justice found that burglary and attempted burglary rarely involve violence. Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007, see https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf. Here is the abstract: Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime. But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances. The United States Supreme Court has treated burglary as either violent or non-violent in different cases. This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence. Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence. A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it. Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime. Thanks to Raymond Bourluchi.