Misprision: Crime of Omission

When Bus Driver Frank Randazzo spotted a dozen youths beating up a policeman in New York City last summer, he slammed on his brakes, jumped out of the bus to fight the attackers, and suffered assorted facial wounds in the process. Later he spent seven days testifying against two of the youths, who were ultimately convicted of assault. For his trouble, Randazzo had his pay docked $232. Because the fight was in the street rather than on his bus, ruled the City Transit Authority, the law-defending driver was on his own time each and every minute he spent in court.

Appalled, Queens District Attorney Nat Hentel last week named Randazzo the first winner of an "honor" certificate to be handed out each year by the D.A. "for the exercise of exceptional citizenship responsibility." Unfortunately, though, in what Hentel aptly calls "the cold society," awards seem unlikely to reform those who live by the big-city philosophy: Ignore thy neighbor.

Dead Crime. Is there no law against "civic indifference"? asks Lawyer George Goldberg in the American Bar Association Journal. There is indeed, he says. It is called "misprision of felony" (from the Old French mesprendre, to mistake). Misprision is a crime of omission--a failure to act. In 1907, the Vermont Supreme Court defined it as "a criminal neglect either to prevent a felony or to bring the offender to justice after its commission." Misprision thus differs from "accessory" offenses, such as assent or assistance in a felony. Because the two are easily confused, however, misprision is almost never prosecuted, and to the few U.S. lawyers who even know the term, misprision is virtually a dead crime.

The crime is nonetheless far from obsolete in Anglo-American law, says Goldberg. In Australia in 1959, for example, the Victoria Supreme Court upheld the misprision conviction of a man who knew who shot him but refused to tell the police. In England in 1961, the House of Lords upheld the similar conviction of a man who had discovered an arms theft at a U.S. Air Force base but failed to report it. In the U.S., says Goldberg, misprision of felony is a perfectly viable common-law charge in Vermont, a statutory offense in Maine, and a 176-year-old federal crime (U.S. Code, Title 18, Section 4), which is punishable by a $500 fine and up to three years' imprisonment.

Salutary Influence. If properly revived, argues Goldberg, "misprision of felony would be a very salutary influence in our distressed society." Obviously, it would raise problems. How serious an offense would require disclosure? Would it involve mere suspicion as well as knowledge? Would close friends or relatives be obliged to squeal on one another? Goldberg himself feels that the offense should be limited to serious crimes, "perhaps only serious crimes against the person." All Americans, he says, "are familiar with their legal duty to report serious traffic accidents to the police. It is about time we consider violent assault on persons as important as automobile crashes."

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