Death threats are usually charged as a felony rather than a misdemeanor, but the answer depends on the circumstances. A basic verbal threat between two private individuals is a misdemeanor in many states. The charge climbs to a felony when aggravating factors are involved: the threat targets a public official or witness, travels through interstate communications, is paired with a weapon, is motivated by bias, or occurs in a domestic violence context. Under federal law, a single threatening message sent over the internet can carry up to five years in prison, and threats aimed at federal officials can bring up to ten.
When Threatening Speech Becomes a Crime at All
Not every frightening statement is prosecutable. The First Amendment protects offensive speech, and courts separate genuine threats from venting, dark humor, political rhetoric, and heated arguments. The legal term for a statement that crosses the line is a “true threat.” In Virginia v. Black, the Supreme Court defined true threats as statements where the speaker communicates a serious expression of intent to commit unlawful violence against a particular person or group.1Legal Information Institute. Virginia v. Black
In 2023, the Supreme Court in Counterman v. Colorado set the minimum mental state: prosecutors must prove the speaker acted with at least recklessness, meaning they consciously disregarded a substantial risk that their words would be perceived as a threat. Context matters. In Watts v. United States, a Vietnam War protester at a rally said that if the government ever made him carry a rifle, the first person he’d want in his sights was the President. The Court called the statement “political hyperbole” rather than a true threat, pointing to the conditional phrasing, the political setting, and the audience’s laughter.2Legal Information Institute. Amdt1.7.5.6 True Threats Only once a statement clears this bar does the misdemeanor-versus-felony question become real.
What Pushes a Death Threat to a Felony
Most states treat a basic verbal threat as a misdemeanor. The charge jumps to a felony when the circumstances make the threat more dangerous, more credible, or more disruptive to public safety or government functioning. Several factors do most of the work.
How Specific and Credible the Threat Was
A vague “I’ll get you” is far less likely to be charged as a felony than a message laying out a time, place, and method. The more specific the threat, the more credible it appears. A threat paired with evidence that the speaker has the means to follow through, like owning a firearm matching the described weapon, makes a felony charge almost inevitable.
Presence of a Weapon
Brandishing a weapon while making a threat transforms the situation. It shows an immediate capacity to carry out the violence and eliminates any ambiguity about whether the speaker is serious. Across jurisdictions, this is one of the most reliable triggers for felony prosecution.
Threats Against Public Officials
Threatening a judge, a police officer, or an elected official strikes at the functioning of government and is treated accordingly. Federal law makes this explicit. Threatening a federal official, judge, or law enforcement officer to impede or retaliate against their work carries up to ten years in prison, and the statute also covers threats against an official’s immediate family members.3Office of the Law Revision Counsel. 18 U.S. Code 115 – Influencing, Impeding, or Retaliating Against a Federal Official by Threatening or Injuring a Family Member Threatening the President, Vice President, or their successors is a separate federal crime carrying up to five years.4Office of the Law Revision Counsel. 18 U.S. Code 871 – Threats Against President and Successors to the Presidency
Threats That Interfere With Legal Proceedings
Threatening a witness, victim, or informant to prevent cooperation with law enforcement or testimony in court is a federal felony under the witness-tampering statute. The maximum penalty is twenty years in prison.5Office of the Law Revision Counsel. 18 U.S. Code 1512 – Tampering With a Witness, Victim, or an Informant State-level witness intimidation charges carry similar weight.
Bias-Motivated Threats
Threats motivated by hostility toward a victim’s race, religion, sexual orientation, gender identity, disability, or national origin can trigger hate crime enhancements at the state level, pushing what would otherwise be a misdemeanor into felony territory. The federal hate crime statute focuses on bias-motivated acts that cause or attempt to cause bodily injury, which can include threats accompanied by physical conduct.6Office of the Law Revision Counsel. 18 U.S. Code 249 – Hate Crime Acts Most states have their own hate crime laws with broader coverage of threatening conduct.
Domestic Violence Context
A death threat within an intimate relationship or family often triggers felony charges even when the same words between strangers might not. Many states treat threats against a current or former partner, a household member, or a co-parent as automatic felonies or apply domestic violence enhancements that increase the offense level. The presence of a protective order at the time of the threat almost always converts the charge to a felony, and violating that order creates a separate criminal charge on top.
Threats Against Schools and Public Spaces
Many states have enacted laws specifically targeting threats against schools, churches, government buildings, and other gathering places. These laws typically treat any written or electronic threat of mass violence as a felony regardless of other circumstances. Even a threat the speaker considers a joke can result in a second-degree felony charge or its equivalent.
When It Becomes a Federal Felony
Federal jurisdiction over threats is broader than many people realize, and once a case lands in federal court it is always a felony. Two main pathways carry a threat case into the federal system.
Interstate Communications
Under 18 U.S.C. § 875, transmitting a threat to injure another person through interstate commerce is a federal crime punishable by up to five years in prison. If the threat includes an intent to extort, the maximum jumps to twenty years.7Office of the Law Revision Counsel. 18 U.S.C. 875 – Interstate Communications A text message, email, social media post, or phone call that travels through servers in another state satisfies the interstate requirement. Federal courts have broadly interpreted internet communications as inherently interstate, meaning a threatening Facebook post or Instagram DM can land in federal court even when the sender and recipient live in the same city.
Threats Against Federal Officials
Threatening the President or anyone in the presidential line of succession is investigated by the Secret Service and prosecuted under a dedicated statute carrying up to five years in prison.4Office of the Law Revision Counsel. 18 U.S. Code 871 – Threats Against President and Successors to the Presidency Threats against other federal officials, including members of Congress, federal judges, and federal law enforcement officers, fall under a separate statute with a maximum of ten years for a threat and six years for a threatened assault.3Office of the Law Revision Counsel. 18 U.S. Code 115 – Influencing, Impeding, or Retaliating Against a Federal Official by Threatening or Injuring a Family Member
State and Federal Charges for the Same Threat
A single threatening message can violate both state and federal law simultaneously. Under the dual sovereignty doctrine, upheld by the Supreme Court in Gamble v. United States (2019), state and federal governments are separate sovereigns with independent authority to prosecute violations of their own laws.8Legal Information Institute. Dual Sovereignty Doctrine A person can face a state felony charge and a federal felony charge for the same threat without violating the Double Jeopardy Clause. Overlapping prosecutions aren’t routine, but they happen in high-profile cases.
Penalties for a Felony Threat Conviction
Felony threat convictions carry prison time measured in years, not months. The specific sentence depends on which statute applies and what aggravating factors are present. Federal statutory maximums are set out directly in the code:
- Interstate threat under 18 U.S.C. § 875(c): up to five years.7Office of the Law Revision Counsel. 18 U.S.C. 875 – Interstate Communications
- Interstate threat with intent to extort under 18 U.S.C. § 875(b): up to twenty years.7Office of the Law Revision Counsel. 18 U.S.C. 875 – Interstate Communications
- Threat against the President under 18 U.S.C. § 871: up to five years.4Office of the Law Revision Counsel. 18 U.S. Code 871 – Threats Against President and Successors to the Presidency
- Threat against a federal official under 18 U.S.C. § 115: up to ten years for a threat, six years for a threatened assault.3Office of the Law Revision Counsel. 18 U.S. Code 115 – Influencing, Impeding, or Retaliating Against a Federal Official by Threatening or Injuring a Family Member
- Witness tampering through threats under 18 U.S.C. § 1512: up to twenty years.5Office of the Law Revision Counsel. 18 U.S. Code 1512 – Tampering With a Witness, Victim, or an Informant
State penalties vary widely. Maximum fines for state-level felony threat convictions typically range from $5,000 to $10,000, and prison sentences range from just over one year to ten or more years depending on the jurisdiction and offense level. Courts may also impose formal probation with conditions like mandatory counseling, no-contact orders protecting the victim, and regular reporting to a probation officer.
Beyond fines paid to the government, courts can order a convicted defendant to reimburse the victim for expenses caused by the threat. Restitution may cover therapy and counseling costs for the victim and their family, medications prescribed to treat trauma, and expenses like replacing locks or installing security systems.9Office for Victims of Crime. Restitution Unlike fines, restitution is calculated based on the victim’s actual losses rather than a statutory cap.
What a Felony Record Means After the Sentence
Federal law prohibits anyone convicted of a crime punishable by more than one year in prison from possessing a firearm or ammunition.10Office of the Law Revision Counsel. 18 U.S. Code 922 – Unlawful Acts That ban is nationwide and permanent absent a pardon or expungement. A felony conviction also disqualifies you from serving on a federal jury, and most states apply the same rule. Voting rights vary: some states restore them automatically after the sentence is complete, while others require a separate petition or executive clemency.
The practical fallout hits daily life hard. Employers routinely screen for felony convictions, and many professional licensing boards treat a violent felony as an automatic disqualifier for careers in healthcare, law, education, and finance. Landlords run background checks. Immigration consequences can be severe for non-citizens, including deportation. Some states allow expungement of felony convictions after a waiting period that typically ranges from three to ten years, but eligibility depends on the offense and the jurisdiction, and expungement doesn’t erase every trace of the record.
How Long Prosecutors Have to File Charges
For federal threat offenses, the general statute of limitations is five years from the date the threat was communicated.11Office of the Law Revision Counsel. 18 U.S. Code 3282 – Offenses Not Capital If the threat is connected to a terrorism offense, the window extends to eight years. State statutes of limitations for felony threats vary, with some states imposing limits as short as two or three years and others allowing prosecution at any time for the most serious felonies. The clock typically starts when the threat is received, not when it’s discovered by law enforcement.