Malfeasance, Nonfeasance, and Misfeasance Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Distinguishing among the three terms malfeasance, misfeasance, and nonfeasance can be perplexing. All three are important concepts in tort law, where the behavior in question may be improper, if not strictly illegal. Liability in medical cases may also be governed by one of these three concepts. Primarily, these terms are used to describe improper behavior by public officials. Simply put, the three may be defined, respectively, as action that is intentionally harmful, action that is improper but not intentional, and inaction that results in harm.

Malfeasance

Strictly speaking, malfeasance is any intentional commission of a prohibited or improper act. All crimes are cases of malfeasance, as are many actions that are reckless (such as inappropriately high-risk investing of managed funds) or personally advantageous (as in nepotism or using expense accounts for nonbusiness purchases) but are not actually illegal. Malfeasance is usually used to refer to deliberate misuses of power or violations of trust for gain. It is, by and large, germane to those unlawful acts that do not require evidence of intention or motive.

Corporate malfeasance includes decisions by executives that result in “corporate violence,” that is, injury to individuals or communities in order to generate profit. Price fixing, deceptive marketing, and fraudulent accounting are all examples of malfeasance by professionals operating within a corporate hierarchy for the benefit of the corporation. Embezzlement and sexual harassment are examples of malfeasance by professionals for personal advantage.

Malfeasance in the administration of justice is the improper use of legitimate power or authority. Its particular reprehensibility resides in the fact of its being a violation of the law by those entrusted to uphold it. For example, a correctional officer violates not only the American Correctional Association (ACA) code of conduct, but also his oath of office and the law if he takes advantage of his official duties to traffic in contraband or abet incarcerated offenders in escaping. A police officer is guilty of malfeasance if she operates a protection racket or uses excessive force in arresting a suspect. A judge who takes bribes or a prosecuting attorney who destroys exculpatory evidence are both guilty of abusing the public trust.

Public officials, and sometimes lower-level employees, particularly in the criminal justice system, are in a uniquely powerful position of trust. Prosecutors, for example, are immune from civil litigation brought by innocent defendants, no matter how sloppy or malicious the prosecution may have been. The U.S. Supreme Court in Monell v. New York City Department of Social Services gave immunity to prosecutors, arguing that justice depended on prosecutors being free to do their jobs without worrying about retribution from acquitted defendants. Judges and police officers are also trusted to use their own discretion in pursuing justice. Such wide latitude may be necessary, but it comes with much opportunity for improper conduct. Exploits of malfeasance may be ruthless, as in the 1997 beating and sexual torture of Abner Louima by a New York City policeman. Public employees who have access to confiscated drugs or confidential information may resort to underhandedness to augment their incomes.

Malfeasance always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. Disgraceful conduct and failure of character can sully officials from any and all segments of the criminal justice network, public service, and other organizations duty-bound to be answerable for its actions.

Misfeasance

Misfeasance is the wrongful execution of an appropriate act or carrying out a proper act in a wrongful or a harmful way; in other words, misfeasance is a harmful act that is legal but improperly performed. Misfeasance may be observed in a person’s demeanor in the course of her employment, including irresponsibility in the execution of tasks or failing to use the degree of care, skill, or diligence that is due and appropriate for the situation. In the criminal justice system, misfeasance may occur in the handling of evidence, especially forensic evidence, which may easily be tainted or misinterpreted. Police may be accused of misfeasance for accidents caused in the pursuit of a suspect, carelessness in writing reports, antagonism in reprimanding a citizen, or improper conduct in the searching of an arrestee. Misfeasance is accidental rather than intentional, but still blameworthy as falling short of fulfilling an official responsibility.

Nonfeasance

“Nonfeasance” is a term used in tort law to refer to inaction that permits or results in harm to a person or to property. An act of nonfeasance can result in legal responsibility if (1) the actor owed a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury.

Nonfeasance is the omission of an act that ought to be done. It is the neglect or refusal without sufficient excuse to perform an act that is an officer’s legal duty to perform. Thus, if vice crimes openly thrive and then intensify in a jurisdiction, the police can be held accountable for nonfeasance— for not proactively engaging in suppressing the offenses. There might also be cases of administrators who are more than happy to hide transgressions, their own or others’, for fear of retaliation and/or public outcry. An officer’s, or even a supervisor’s, wrongdoing may be tolerated or ignored if doing so would facilitate a promotion, obtain a desirable work shift, or result in obtaining some personal gain. In a correctional setting, overlooking disallowed offender behavior or possession of contraband would constitute nonfeasance. Failure to provide potentially exculpatory evidence to a defendant’s lawyer is prosecutorial misconduct that may be categorized as nonfeasance.

Nonfeasance, as such, is the failure to act according to one’s responsibility; it is when operational procedures of an organization are circumvented for a direct or an implied assurance of personal profit.

Bibliography:

Allen, J. M., E. Khan, and B. Mhlanga. “Education, Training and Ethical Dilemmas: Responses of Criminal Justice Practitioners Regarding Professional and Ethical Issues.” PICJ Professional Issues in Criminal Justice: A Professional Journal, v.1/1 (2006).
Black’s Law Dictionary. St. Paul, MN: West, 1968.
Braswell, M., B. R. McCarthy, and B. J. McCarthy, eds. Justice, Crime, & Ethics. 4th ed. Cincinnati, OH: Anderson, 2002.
Close, D. and N. Meier. Morality in Criminal Justice: An Introduction to Ethics. Belmont, CA: Wadsworth, 1995.
Heath, Brad and Kevin McCoy. “Prosecutors’ Conduct Can Tip Justice Scales.” USA Today (September 23, 2010). http://usatoday30.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm (Accessed September 2013).
Khan, E., ed. Moral Dilemmas and Decisions in Law Enforcement & the Administration of Justice. Upper Saddle River, NJ: Cengage-Wadsworth, 2008.
Parsons, Simon. “Misconduct in a Public Office: Should It Still Be Prosecuted?” Journal of Criminal Law, v.76/2 (2012).

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