Possible Jail Time is No Laughing Matter for those Calling in Bomb Hoaxes

Look, when it comes to being a criminal defense attorney, I don't judge. I don't condemn. I don't sermonize, and I don't preach. Whether the charge is pending in state or federal court, I simply do my job. When friends and strangers ask, "but how can you represent guilty people?," I calmly reply, "I don't. I represent people accused of crimes." I'm good at what I do, and handle amongst the most serious charges someone can be accused of; I sleep well at night. However, when it comes to being a US Citizen, I am just as concerned as you likely are with "Code Reds," domestic and foreign terror, religious extremism and intolerance, and anyone committed to making war on, and destroying, our values, infrastructure, and very existence as Americans. The reality is we are faced with a climate of fear and apprehension, and we must all remain vigilant. No, this blog isn't going to talk about rushing to judgment, or knee-jerk reactions, or suspending civil liberties, because that's not what I'm about, and it is contrary to what I do. Instead, it's about making it clear joking about this stuff, exploiting our fears for self-gratification, wasting scarce resources, risking injury to responding officers, and inconveniencing thousands simply for a laugh by planting "fake" explosive devices or calling in false bomb threats, isn't just childish and stupid; It's a crime!

Just yesterday, as I was walking back from federal court in Boston, I noticed streets in the financial district (where my office is) closed off and a large police presence and numerous emergency vehicles, police cars and fire trucks. I wondered what it was and kept walking. Turns out it was all about a flowered suitcase left near a Homeland Security Vehicle allegedly by a Lawrence man named James Derepentigny. According to his family, Mr. Derepentigny "may be bipolar." Mental health issues are something I take seriously and mental health defenses are something in which I specialize. To be sure, Mr. Derepentigny is presumed innocent unless or until he is proven guilty. Still, I wonder if bipolar or not, he would have engaged in such alleged foolishness had he —or others like him (a number of whom I have represented, including a cab driver from Ethiopia accused of telling airport authorities he was "with Al Qaida and going to get even;" a nursing student accused of claiming she was carrying Anthrax when searched by TSA airport security; and two high school kids accused of calling in a false bomb threat to the Nantucket Steamship Authority) —-been aware of the actual penalties involved as a consequence of such conduct. Consider me sharing this now, my own personal public service announcement (PSA).

Because he will apparently be charged in state court, Mr. Derepentigny will likely be charged in the BMC with possessing/placing a hoax explosive/device, under G.L. c. 266 § 102(b), the elements of which are: 1.) without lawful authority; 2.) possessing, using or placing; 3.) any hoax explosive, hoax destructive or incendiary device; 4.) with intent that such hoax... used to cause anxiety, unrest, fear or personal discomfort to any person or group of persons. Possessing a hoax device is a felony that carries possible maximum penalties of up to 2.5 years in a House of Correction (jail) and up to 5 years in state prison. In other words, the price of having a little "fun" or making mischief in this regard is substantial and might not only include substantial jail time, but will include a lifetime felony record and all the negative connotations and restrictions that come with it.

The same can be said for calling in a false bomb threat in Massachusetts. Under G.L. c. 269 § 14(b), anyone who 1.) Willfully communicates or causes to be communicated; 2.) orally, in writing, by mail, by use of a telephone or telecommunication device; 3.) a threat [of] explosion or incendiary device; 4.) whether or not the same is in fact used or present, faces up to 2.5 yrs in a House of Correction and up to 20 yrs in State Prison. Making the same type of threat to a school, school event, dwelling, building or place of assembly, facility or public transport or aircraft, etc. carries even more serious penalties under G.L. 269 § 14(c) in that mandatory minimums apply: a minimum 6 months to 2.5 yrs in a House of Correction, or a minimum 3 years, and up to 20, in State Prison. Calling a false threat into a Public Safety Access Point (PSAP), like an emergency call center, is also a felony in Massachusetts under G.L. c. 269 § 14B, whereby an offender can receive up to 2.5 years in jail, or up to 10 years in State Prison.

Needless-to-say, the penalty for placing an actual explosive or destructive or incendiary device in Massachusetts, under G.L. C. 266 § 102A, is even more serious and can result in a mandatory minimum State Prison sentence of 10 years, and up to 25. Incongruously (and I wouldn't be surprised if the U.S. Congress moves to change this, given today's climate), calling in a fake bomb threat, where no willful or malicious intent is proven, is only a civil infraction under 18 USC § 35(a). However, if it is proven that the same is done "willfully and maliciously, or with reckless disregard for the safety of human life," that federal crime carries a penalty of up to 5 years in a Federal Correctional Facility under 18 USC § 35(b). Actually "maliciously" destroying a building, vehicle or personal property (used in interstate commerce) by "means of fire or explosive" carries a mandatory minimum Federal Prison Sentence of 5 years, up to 20, under 18 USC § 844 (i). If physical injury results, the penalty is 7-40 years; if death results, the death penalty may apply, even in states like Massachusetts where it's been abolished, but we all sadly know this last all too well in Boston.

So folks, have fun. Celebrate the season. Don't act like the sky is falling; but PLEASE don't be stupid. Hoax devices and fake bomb threats are no laughing matter. They are serious offenses, involving serious consequences that require serious representation by serious lawyers like me. This said, a Merry Christmas and safe and happy holiday season to everyone.