A Pardon for an Antique Crime

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“Misprision of felony” is failure to report a felony committed by someone else. It is not a crime in most states, either abolished long ago or never a crime in the first place, but it curiously survives in the federal criminal code. In 1998, Edward DeBartolo, then owner of the SF 49s, pled guilty to this crime as part of a deal. Today, President Trump pardoned him, Catherine Lucey reports in the WSJ.

The White House announced the pardon Tuesday morning. A number of former football players spoke to reporters at the White House on Mr. DeBartolo’s behalf, including former 49ers wide receiver Jerry Rice and former Cleveland Browns fullback Jim Brown.

Mr. Rice said Mr. DeBartolo “has done so much in the community, he has done so much in NFL football.” He added: “I take my hat off to Donald Trump for what he did.”

*      *      *

Mr. DeBartolo acknowledged that he didn’t report that [former Louisiana Gov. Edwin W. Edwards] sought money and other commitments in exchange for a riverboat-casino license.

Mr. DeBartolo owned the 49ers for more than two decades starting in the late 1970s, a period that coincided with multiple Super Bowl wins. He stepped down as chairman in 1997 and turned ownership of the team over to his sister in 2000.

Gov. Edwards, you may recall, was elected despite his known crookedness when Louisiana’s odd primary system forced voters to choose between him and a Klansman. This situation produced the famous bumper sticker “Vote for the Crook: It’s Important.” California subsequently adopted substantially the same primary system.

Professor LaFave says, “It is doubtful whether [misprision of felony] ever had a meaningful existence beyond the textbook writers.”1 English legal historian James FitzJames Stephen said it was obsolete in 1883.2 LaFave says, “virtually all of the modern recodifications [do not include] a misprision statute ….”

The federal statute adds an element of concealment,3 so LaFave says it is not a “true” misprision statute, but even so it “has fallen into disuse.” Well, not completely. Like the overbroad federal “obstruction” statute, it can be used to go after people on the periphery of a criminal operation and force them to plea bargain and testify against the real target.

It is probably a good thing to expunge convictions like this after a person has “gone straight” for many years. The problem with clemency, though, is that the well-connected have a much better shot at it than those without connections.

 

1. 4 W. LaFave, Substantive Criminal Law § 13.6(b) (3d ed. 2018).

2. 2 J. Stephen, History of the Criminal Law in England 238 (1883).

3. 18 U.S.C. § 4.

 

Update: Later in the day, the President announced additional clemency grants, including a commutation of sentence for former Illinois Gov. Rod Blagojevich and a pardon for former NYPD Commissioner Bernie Kerik.