What Were They Thinking: Competing Culpability Standards for Punishing Threats Made to the President

This article revisits the Fourth Circuit’s holding in United States v. Patillo, 431 F.2d 293 (4th Cir. 1970) (panel), reh’g granted, 438 F.2d 13 (1971) (en banc). Although that decision is almost forty years old, it still remains a source of contention and confusion in the law of threats. It is widely cited as creating a subjective “present intent” requirement for 18 U.S.C. § 871(a) (threats against the president) - a standard that has only been recognized by the Fourth Circuit and stands in stark contrast to the objective Roy/Ragansky Test adopted by virtually all other circuits. Indeed, judges and commentators have often identified Patillo as a lone wolf opinion and either dismissed or derided the Fourth Circuit’s present intent requirement almost as frequently. Yet, the issue of the proper culpability standard for threats against the President of the United States under § 871(a) has taken on enhanced importance in recent months. In the aftermath of the shooting of Arizona Representative Gabrielle Giffords, Congress has proposed expanding § 871(a) to encompass in scope all members of Congress and members of Congress-elect. This breathes new life into the theoretical debate over a subjective versus an objective standard, which began almost a century ago when the original bill enacting § 871(a) was first debated on the floor of the House and which has since played out in court opinions and law review articles over the past four decades. Congress’s action also creates an opportunity to resolve this dispute and to adopt a standard that best suits all of the interests of policy and justice invoked by the law.In this Case Note, the author parses the original holding of United States v. Patillo and reveals a factual dichotomy that is recognized by the Patillo court’s holding, but which has been almost entirely ignored in subsequent cases by other Circuits and the secondary literature on the law of threats. The author concludes that the original holding of Patillo, properly understood, is both the law in the Fourth Circuit and should be adopted as the best intent standard for § 871(a), especially in light of Congress’s proposal to expand its scope. As a matter of policy, the Patillo holding balances the state’s interest in protecting the President from threats, while at the same time affording the most protection for defendants charged with making threats against the President when such threats were not directed towards the President himself, his office, or the Secret Service.The author shares the results of empirical analysis performed using the Bureau of Justice Statistics’ Federal Criminal Case Processing Statistics database to reveal that such theoretical debates may have been “much ado about nothing,” whereas in practice, outcomes in cases involving subjective versus objective standards for § 871(a) have not resulted in very different outcomes over the past twelve years. In short, the assumptions of both judges and commentators regarding the difficulty of proving or enforcing § 871(a) under a subjective approach seem to have been overstated and are unsupported by the data.