Criminal Codes as Ecosystems: The Curious Case of Misprision of a Felony
Criminal codes sometimes remind me of ecosystems. Like organisms in an ecosystem, crimes within a code can be connected to one another in interesting and unexpected ways.
I’ll explain this analogy by describing a federal crime that doesn’t get much attention: misprision of a felony (18 U.S.C. § 4). Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”
This crime seems pretty banal; it’s kind of like the algae of the federal criminal code. You never hear about a complex, multi-agency investigation into misprision of a felony. But, like algae, misprision of a felony serves very important purposes within its environment. It is what I call a “pleading crime,” used to resolve a wide range of matters in which a federal prosecutor, for one reason or another, either (1) doesn’t want to charge a potential defendant with the “concealed” substantive crime (even though there might be sufficient evidence to charge the person with, and convict them of, this offense), but does want to charge them with a lesser, related crime; or (2) wants to resolve, via a plea bargain, a case in which the substantive crime was originally alleged, but as to which evidentiary problems or other reasons for compromise exist.
Misprision of a felony fills these roles because of its malleable nature (it applies to the concealment of any felony) and because of the sentence that adheres to the crime. The United States Sentencing Guidelines prescribe a sentence for misprision that’s indexed to, but somewhat below, that of the concealed offense. This placement tees up misprision of a felony as a (to use Ronald Wright and Rodney Engen’s phrase) “landing point” for compromises in plea deals.
Federal charging and plea-bargaining data underscore this crime’s role as a case closer. In federal criminal cases that terminated by plea between October 2002 and September 2007, misprision of a felony was the most serious charge at the time of initial filing in only around 600 cases (virtually all of which resulted in a guilty plea to the misprision charge, suggesting a pre-filing deal between the prosecution and defense). Misprision was most serious charge at the time of case termination much more often, claiming this status in more than 2,300 matters. The almost 1:4 ratio bespeaks the frequent utilization of misprision of a felony as a pleading crime.
And so, just like species in an ecosystem, even the most humble crimes may serve important functions. Though I’m still searching for the big-picture purposes of crimes such as acting or attempting to modify the weather without proper authorization (15 U.S.C. § 330a); the misuse of the Swiss Confederation Coat of Arms (18 U.S.C. § 708); use of the United States Army or Air Force as a posse comitatus (18 U.S.C. § 1385); and the transportation of illegal dentures (18 U.S.C. § 1821).