Shortly after 2 p.m. on October 24, a group of FBI agents descended on the apartment in Forest Hills. To avoid a possible shoot-out with an NYPD officer, they used a ruse to lure Valle into the hallway—calling his house phone and saying the car he had parked outside had been hit. Valle wandered out in a sweatshirt and jeans. The second he saw them, he understood. An agent placed a hand on his shoulder. “Everything’s going to be okay,” he said.
Valle looked at him and said, “I don’t think so.”
In no time, Valle had a tabloid moniker: the Cannibal Cop. As he sat in jail for five months awaiting trial on a charge of conspiracy to kidnap, details from his bail hearings told the story of a husband secretly plotting to abduct several women at once, including his own wife. The FBI singled out e-mails in which he strategized how he’d do it and negotiated fees for kidnappings, and they scanned his work-related computer searches, claiming he shadowed his targets using resources available to him as a law-enforcement officer. “This case is all the more disturbing,” U.S. Attorney Preet Bharara said after the arrest, “when you consider Valle’s position as a New York City police officer and his sworn duty to serve and protect.”
Once the trial started, there seemed to be two different cases being argued. There was the actual charge against Valle—conspiracy to kidnap—and then there was the subtext that he was technically not on trial for, the specter of what Valle might do in the future if he were allowed to go free. Plenty of aspects of criminal cases involve at least some discussion of how much of a danger the accused poses to society: Judges issue warrants and set bail and sentences all based on some element of prognostication. But what made the case against Valle unique, according to his lawyers, was that absolutely everything the government was using as evidence that he was dangerous was based on his thoughts.
The gory details of the case against Valle were disturbing enough, at first, even to alarm his court-appointed lawyer. “Never in my career have I ever hesitated to tell the marshals to take the handcuffs off the client when I’m interviewing them one-on-one,” says Julia Gatto, the federal public defender assigned to the case. “And this was the first time in my career I’d ever, for just a second, thought about keeping the handcuffs on.” She would think a lot about that moment later on, when considering what the jury would have to get past to decide if Valle’s thoughts alone were criminal.
The line between criminal thoughts and action is something the courts have pondered for decades. While thoughts haven’t always been protected from prosecution (as the witch hunts and red scares and political detentions of many eras demonstrate), there was a time, more than a century ago, when even attempted crimes like theft and murder and kidnapping weren’t considered criminal activity: If you tried to pick someone’s pocket and there was no money in the pocket, then you couldn’t be prosecuted. When attempted crimes first became criminalized in the early 1900s, Supreme Court Justice Oliver Wendell Holmes urged caution, asserting that for the defendant to be convicted, “[t]here must be dangerous proximity to success.”
That standard weakened in the sixties, when a new set of guidelines called the Model Penal Code—a successful effort by the legal community to standardize the criminal code across the nation after a century of inconsistent case law—replaced the idea of proximity with that of a “substantial step.” For law enforcement, this was a happy coincidence: As violent crime became a more common reality, the police could use a suspect’s state of mind to justify an arrest, as long as that suspect also took at least some real action.
What’s changed in recent years are the tools used to detect intent—namely, a person’s online activity. “We’ve always said you can’t punish for thoughts alone, but now we really know what the thoughts are,” says Audrey Rogers, a law professor at Pace University who has taught the Valle case in class. Since 9/11, the government has used the monitoring of electronic communication to bring more than 200 prosecutions against people suspected of providing material support to terrorist organizations. “You expand the definition of a crime by extending it to this sense of what might happen in the future,” says Georgetown law professor David Cole.
What’s also changed, perhaps, is the scale of certain crimes—not just 9/11 but Columbine, Aurora, and Sandy Hook—and the way technology has emboldened many to think that anyone with ill intent might be stopped before snapping into action. In 2009, the FBI was reading Najibullah Zazi’s e-mails to Al Qaeda and picked him up before he ever built a fully workable bomb. Just last month, in Arizona, police traced threatening e-mails to a 15-year-old who turned out to own 100 rounds of ammunition; he didn’t own a gun, but after his arrest, police said they’d learned he had researched how to make an explosive device but was unable to procure the parts. And then there are the scores of To Catch a Predator–style stings.