Threatening to kill someone is almost always a crime, and the charge for threatening to kill usually comes under a state statute called “criminal threats,” “terroristic threats,” “intimidation,” or “menacing,” depending on where you are. Most states file a first-time verbal threat as a misdemeanor carrying up to a year in jail, and reserve felony charges — with prison terms that can run from a few years to twenty or more — for threats involving weapons, protected victims, or serious public disruption. When the threat crosses state lines or targets certain federal officials, it becomes a federal offense punishable by up to five or ten years.
What State Law Calls the Charge
Every state criminalizes death threats, but the label and the grading differ. Common statute names include criminal threats, terroristic threats, intimidation, and menacing. Some states don’t have a standalone threat offense at all and prosecute the same conduct under their assault or harassment laws.
Grading is just as inconsistent. Many states default to a misdemeanor for a straightforward verbal threat and bump the charge to a felony only when aggravating facts are present. A handful treat any credible death threat as a felony from the start, regardless of context.
Conditional threats — statements framed as “if you do X, I’ll kill you” — sit in a harder spot. The condition can undercut the sense of immediacy prosecutors need. Courts look at whether the condition was something the victim controlled, whether the speaker sounded serious, and whether the broader context made the threat land as real despite the “if.”
What the Prosecution Has to Prove
A conviction requires more than proving the words were said. Prosecutors generally have to establish three things, and the elements track closely across jurisdictions even when the statute language differs.
The first is that the person intentionally communicated a threat to kill or seriously injure someone. Spoken, written, texted, posted, mailed — the medium doesn’t matter, but the choice to send it does.
The second is credibility. A reasonable person hearing or reading the statement has to take it seriously as an expression of intent to cause harm. Vague lines like “you’ll regret this” or “I’ll get you someday” often fail this test. Courts weigh the relationship between the parties, whether the speaker had the apparent means to follow through, and how the statement was delivered.
The third is the victim’s fear. Most states require proof that the threat caused the victim to reasonably fear for their safety or their family’s safety. Some states require that fear to be more than momentary; others ask only that a reasonable person in the victim’s position would have felt threatened.
Prosecutors do not have to prove the speaker actually intended to carry out the killing. The question is whether the person knowingly made a statement that would be perceived as a serious threat, not whether they had a plan.
One constitutional limit applies everywhere. In Counterman v. Colorado (2023), the Supreme Court held that the government must prove the speaker acted with at least recklessness — meaning the speaker was aware others could view the statements as threatening violence and made them anyway.1Supreme Court of the United States. Counterman v. Colorado, 600 U.S. 66 An objectively scary statement is not enough on its own. And under Watts v. United States (1969), crude political hyperbole that references violence is not a “true threat” when context makes clear it is not meant as one.2Legal Information Institute. Robert Watts v. United States
When a Threat Becomes a Federal Case
Several federal statutes convert a death threat into a federal charge based on who was threatened or how the threat traveled.
Interstate Threats
Under 18 U.S.C. § 875(c), sending a threat to injure another person through interstate or foreign commerce carries up to five years in federal prison. In practice this reaches email, text messages, social media posts, phone calls that cross state lines, and mailed letters. If the threat is tied to an attempt to extort money or something of value, § 875(b) raises the maximum to twenty years.3Office of the Law Revision Counsel. 18 USC 875 – Interstate Communications
Threats Against the President and Successors
Threatening to kill or harm the President, Vice President, President-elect, or anyone in the line of presidential succession is its own federal crime under 18 U.S.C. § 871, with a five-year maximum.4Office of the Law Revision Counsel. 18 USC 871 – Threats Against President and Successors to the Presidency The Secret Service investigates these cases even when the speaker claims it was a joke, though the Watts hyperbole defense is still available.
Threats Against Federal Officials
Threats aimed at federal judges, members of Congress, federal law enforcement officers, and their families fall under 18 U.S.C. § 115. A threat intended to intimidate or retaliate against a federal official for performing official duties carries up to ten years in prison, and the statute reaches threats against the official’s immediate family too.5Office of the Law Revision Counsel. 18 USC 115 – Influencing, Impeding, or Retaliating Against a Federal Official by Threatening or Injuring a Family Member
Cyberstalking
When threats are part of a broader pattern of electronic harassment, federal prosecutors may charge cyberstalking under 18 U.S.C. § 2261A, which requires a “course of conduct” — at least two acts — that places the victim in reasonable fear of death or serious injury.6Office of the Law Revision Counsel. 18 USC 2261A – Stalking This is the charge used for repeated threatening messages sent over weeks or months rather than a single outburst.
What Pushes It From Misdemeanor to Felony
Whether a prosecutor files a misdemeanor or a felony usually turns on aggravating facts. The specifics vary by state, but a few patterns show up almost everywhere:
- Brandishing a firearm or other weapon while making the threat almost always elevates the charge.
- Threats aimed at judges, prosecutors, law enforcement officers, school employees, or witnesses carry enhanced penalties in most states.
- Hate-crime motivation — a threat tied to the victim’s race, religion, sexual orientation, or similar protected characteristic — can add years to the sentence.
- Prior convictions for violent offenses or earlier threat charges push the grading up.
- Threats that trigger building evacuations, school lockdowns, or emergency responses are treated far more seriously than private threats between two people.
- Multiple victims, or evidence of a detailed plan to carry out the violence, push the case toward the highest available felony level.
How Much Prison Time and What Fines
Sentencing ranges are wide enough that the same conduct can mean a few months in one state and a decade in another.
A misdemeanor threat typically carries up to one year in county jail. Fines generally run from $1,000 to $5,000. Courts often add probation with conditions like anger management, no-contact orders, and regular check-ins.
Felony threats carry state prison time. Some states set basic felony terms at one to three years; others authorize ten, fifteen, or twenty years for aggravated versions. Felony fines commonly reach $10,000, and some states authorize $50,000 for the most serious grades. For defendants with extensive criminal histories, habitual-offender or “three strikes” laws in roughly half the states can multiply the sentence, in some cases mandating life in prison.7Office of Justice Programs. Research in Brief – Three Strikes and You’re Out: A Review of State Legislation
Federal maximums are set by statute. Interstate threats under § 875(c) and threats against the President under § 871 each cap at five years. Threats against federal judges, members of Congress, and other federal officials under § 115 reach ten.
What Else a Conviction Costs You
The collateral consequences often outlast the sentence itself.
Judges handling threat cases almost always issue protective orders barring the defendant from contacting or approaching the victim. Violating that order is a separate crime, and it can put you back in custody even if the original threat charge resolves favorably.
A felony threat conviction triggers the federal firearms prohibition under 18 U.S.C. § 922(g)(1), which bars anyone convicted of a crime punishable by more than one year in prison from possessing firearms or ammunition.8Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts The federal ban is permanent unless the conviction is expunged or the person is pardoned. Even a misdemeanor threat conviction can trigger a firearm ban if the court issues a qualifying protective order.
Courts often require psychological evaluations, counseling, or anger management as conditions of probation or parole. A conviction creates a criminal record that shows up on background checks and affects employment, professional licenses, housing applications, and, for non-citizens, immigration status. Statutes of limitation for threat charges generally run one to five years depending on the jurisdiction and whether the offense is a misdemeanor or felony, so the possibility of prosecution can linger well after the incident.
Defenses That Actually Work
A few defenses come up repeatedly in threat cases.
The strongest in many cases is that the statement was not a “true threat” but protected speech. After Counterman, prosecutors must prove the speaker was at least reckless about how the words would be received.1Supreme Court of the United States. Counterman v. Colorado, 600 U.S. 66 A speaker who genuinely did not realize the statement would be read as a threat falls below that threshold.
Closely related is rhetorical hyperbole. People say extreme things in arguments, in political speech, and in moments of frustration, and Watts recognized that crude, exaggerated language expressing political opposition is not a criminal threat even when it references violence.2Legal Information Institute. Robert Watts v. United States Defense attorneys lean on this when the statement was made in an obviously heated or performative context.
Other defenses include attacking credibility (the statement was too vague or too conditional to be taken seriously), disputing that the victim’s fear was reasonable, and questioning whether the defendant actually made the statement at all. That last one matters in texts and social media cases where accounts can be hacked or identities spoofed.