Can a person be convicted of a felony for ordinary negligence? Surprisingly, yes. Today there are a number of statutes and regulations that make ordinary negligence not only a crime but a felony.
Negligence is a concept most often used in civil law. Ordinary negligence occurs when a person owes a duty to another, the person breaches that duty, and foreseeable harm occurs as a result. It has also been defined as a failure to use reasonable care.
For example, a business can be negligent by leaving something slippery on its floor, such as the infamous banana peel. If an innocent customer slips on the dreaded banana peel and is injured, the customer can recover monetary damages. The store and its manager are not criminally liable. The store clerk who neglected to check the produce aisle for spills is not going to prison, nor is the manager.
There may be times when negligence is rightfully punishable by the criminal law. Those instances are properly reserved for extreme behavior that is morally culpable and both highly and obviously dangerous. That scenario is referred to as criminal or gross negligence or recklessness.
In those situations, a person would be liable if he owes a duty to a party and acts so far outside the bounds of decent behavior that harm to an innocent party is almost certain to occur—and the harm actually occurs (e.g., negligent homicide, negligent endangerment of a child). Criminal negligence is not merely the failure to use reasonable care.
The Clean Water Act is one example of the deviation from this criminal–civil dichotomy. Under the Clean Water Act, ordinary negligence can be prosecuted as a felony. In a 2001 Fourth Circuit case called United States v. Hong, a man was convicted of a felony and sentenced to three years in prison because his employees were negligent in not installing the correct water filter. The Court held that punishing ordinary negligence as a felony does not violate due process.
In a similar case called United States v. Hanousek, a supervisor was convicted for negligently discharging a pollutant into a waterway when his employees unintentionally burst a pipeline while doing construction work alongside a railroad. Hansousek was sentenced to six months in prison for his employees’ negligence.
The Clean Water Act is not the only legislation that criminalizes mere negligence, and legislators are proposing more all the time. For example, the version of the Food and Drug Administration Reform Act of 2012 that was passed by the House of Representatives would have made it a felony—punishable by 20 years to life in prison—if a person had “reason to know” that a drug that he is holding, selling, or dispensing is counterfeit. This means that the person would not have to intentionally do anything wrong. If he has “reason to know” a fact but does not actually know it, he is negligent. Thankfully, the version of the bill that Congress passed and the President signed didn’t include this provision.
Criminal convictions should be left to intentional conduct—or at the very least criminal or gross negligence. Ordinary negligence is not the type of blameworthy conduct that should be subject to a criminal sanction.
