By Kristen Autumn Shortley
You walk past an alleyway and briefly witness a brutal armed assault. Do you do anything? Perhaps you feel a moral obligation to intervene or call the police, but generally you have no such obligations. You can keep walking.
Such a choice can be to the detriment of the one million people victimized by violent crime each year.[1] While the crime may last only for a moment, those victims feel the effects of crime well into the future. [2] For example, Winston Moseley stabbed Kitty Genovese to death outside of her apartment building, and over 30 witnesses failed to intervene.[3] Jeremy Strohmeyer raped and killed seven-year-old Sherrice Iverson in a public restroom, of which David Cash walked in on and did nothing about.[4]
Americans adopted an “every man for himself” mentality. That mentality insists that where a crime is committed, it is the problem only of the offender and the victim. The Supreme Court noted that “the gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.”[5] However, these failings of Americans to look after one another could be solved by widening the scope and enforcement of misprision of felony.
Misprision of felony occurs when someone witnesses or knows about a crime, and then actively conceals it.[6] While the language of the statute suggests it is universally applicable, it is not often charged.[7] Few states have misprision of felony laws[8], or laws based on a similar concept.[9]
The failure to report crime is partially justified by behavioral norms. For example, the more bystanders that are present, the less likely any one of them individually is to report the crime.[10] Additionally, the time it takes a bystander to evaluate what he witnesses and how and whether to intervene, may take the length of, or longer than, the crime.[11]
The failure to report crime is also justified by practical concerns, including overbroad coverage, the difficulties of enforcement, and impediments to autonomy. First, if misprision of a felony was strictly enforced, its reach could be virtually limitless.[12] It might apply to all witnesses direct and indirect, from eye witnesses to someone who learned of a crime from a friend of a friend of a friend. Misprision of felony could also potentially be applied to all crimes ranging from traffic offenses to first degree murder. Individuals are not educated to recognize violations of law, and therefore they would run the risk of unknowingly committing misprision of felony. But even if limits were put on misprision of felony, it would be hard to detect and enforce, since it is not a blatant criminal action.[13] That increases the risk that the law remains as moot as it exists now, with no incentive to abide by it. Finally, Americans hold dear their autonomy, and laws that hinder their right to choose whether to act or expose themselves to circumstances, are generally disfavored.[14] Misprision of felony could be a threat to that right of privacy.
These justifications fail. First, behaviors can change. Misprision of felony dates back to early England, and it was brought to the colonies.[15] It likely faded with population growth, urbanization, increased mobility, and the associated diffusion of responsibility as the sense of community weakened. But just because a behavior became the new norm does not mean it is set forever. Norms should adapt to the needs of society, and society needs its members to look after one another. Further, laws can be expertly crafted and executed. Misprision of felony might be constricted to only eyewitnesses of violent crimes. The witness would not have to physically intervene, and therefore endanger himself, although he could, but he should simply contact the police. Once the offense is better enforced, and violators made accountable, Americans’ senses of community and responsibility will again build. Lastly, that individuals will be encouraged to act is of no consequence, as the nature of the law is it shapes behavior, whether that be constricting it or mandating it.
Regardless, even if those justifications had more merit, they do not trump the concerns of the yearly one million violent crime victims. The minor inconvenience of alerting the authorities pales in comparison to what victims otherwise have to bear. If just one of Kitty Genovese’s neighbors had called the police, she might have lived. If David Cash had confronted his friend, Sherrice Iverson may have gone onto the third grade. If misprision of felony were employed, and the “every man for himself” mentality dissolved, the one million victimizations each year could be thwarted.
Word count: 1,105
[1] U.S. Dep’t of Justice, Bureau of Justice Statistics, Criminal Victimization 2015 Summary (2016), https://www.bjs.gov/content/pub/pdf/cv15_sum.pdf.
[2] In the aftermath of a crime, victims suffer from feelings of anxiety, depression, powerlessness, hopelessness, etc., and may need seek professional help. Bruce J. Winick, Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims of Crime, 33 Nova L. Rev. 535, 540 (2009).
[3] Martin Gansberg, 37 Who Saw Murder Didn’t Call the Police, N.Y. Times, March 27, 1964, http://www.nytimes.com/1964/03/27/37-who-saw-murder-didnt-call-the-police.html; contra Nicholas Lemann, A Call for Help, New Yorker, March 10, 2014, https://www.newyorker.com/magazine/2014/03/10/a-call-for-help (recent investigation revealed that a few neighbors took some action).
[4] Cathy Booth-Berkeley, The Bad Samaritan, Time, June 24, 2001, http://content.time.com/time/magazine/article/0,9171,139892,00.html.
[5] Roberts v. United States, 445 U.S. 552 (1980).
[6] 18 U.S.C.A. § 4 (West 2017); United States v. Hodges expanded on what constituted misprision of felony, and broke it down into four requirements: (1) an individual committed a crime, (2) the defendant had full knowledge that someone committed said crime, (3) the defendant did not alert authorities about said crime, and (4) the defendant took affirmative steps to conceal said crime. 566 F.2d 674, 675 (9th Cir. 1977).
[7] E.g., Jeff Smith, Chris Christie Is Toast, Politico, April 7, 2014,
[8] See e.g., S.D. Codified Laws § 22-11-12; State v. Flynn, 217 A.2d 432 (1966).
[9] See e.g., Ariz. Rev. Stat. Ann. § 13-3620 (West 2017) (duty to report child abuse); La. Stat. Ann. § 14:131 (West 2017) (compounding a felony); Vt. Stat. Ann. tit. 13, § 3403 (West 2017) (misprision of treason).
[10] See e.g., Peter Fischer et al., The Bystander–Effect: A Meta-Alalytic Review on Bystander Intervention in Dangerous and Non–Dangerous Emergencies, 137 Psychol. Bull. 517, 532 (2011).
[11] Jack Wenik, Forcing Bystanders to Get Involved: Case for Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787, 1789 (1985).
[12] Id. at 1800.
[13] Id. at 1804-1805.
[14] Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 Wash. U. L.Q. 1 (1993).
[15] Christopher Mark Curenton, The Past, Present, and Future of 18 U.S.C. § 4: An Exploration of the Federal Misprision of Felony Statute, 55 Ala. L. Rev. 183, 184-185 (2003).
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