Felony

The term felony originated from English common law (from the French medieval word "félonie"), to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added.[1] Other crimes were called misdemeanors. A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious.[2] Following conviction of a felony in a court of law, a person may be described as a convicted felon/felon. The centuries-old stigma of loss of wealth, status and speculated extreme gravity to the crime sees those personal descriptions widely deprecated, in favour of ex-convict or ex-criminal.

"Felon" redirects here. For other uses, see Felon (disambiguation) and Felony (disambiguation).

Some common law countries and jurisdictions no longer classify crimes as felonies or misdemeanors and instead use other distinctions, such as by classifying serious crimes as indictable offences and less serious crimes as summary offences.

In the United States, where the felony/misdemeanor distinction is still widely applied, the federal government defines a felony as a crime punishable by death or imprisonment in excess of one year. If punishable by exactly one year or less, it is classified as a misdemeanor. The classification is based upon a crime's potential sentence, so a crime remains classified as a felony even if a defendant receives a sentence of less than a year of incarceration.[3] Individual states may classify crimes by other factors, such as seriousness or context.

In some civil law jurisdictions, such as Italy and Spain, the term delict is used to describe serious offenses, a category similar to common law felony. In other nations, such as Germany, France, Belgium, and Switzerland, more serious offenses are described as crimes, while misdemeanors or delicts (or délits) are less serious. In still others (such as Brazil and Portugal), crimes and delicts are synonymous (more serious) and are opposed to contraventions (less serious).

Overview

Classification by subject matter

Felonies include but are not limited to the following:

• Murder
• Aggravated assault or battery
• Manslaughter (unintentional killing of another)
• Animal cruelty
• Vehicular homicide
• Larceny
• Arson
• Burglary
• Tax evasion
• Various forms of fraud
• Computer Crime Fraud and Abuse (computer hacking)
• The manufacture, sale, distribution, or possession with intent to distribute of certain types or quantities of illegal drugs
• In some states, the simple possession (possession without intent to distribute, e.g., for personal use) of certain types of illegal drugs, usually in more than a certain quantity but regardless of quantity for some drugs in some jurisdictions (such as Virginia for cocaine and heroin)
• Grand larceny or grand theft, i.e., larceny or theft above a certain statutorily established value or quantity of goods
• Vandalism on federal property.
• Impersonation of a law enforcement officer with intention of deception
• Treason
• Rape/sexual assault
• Kidnapping
• Obstruction of justice
• Perjury
• Check fraud
• Copyright infringement[4]
• Child pornography
• Mail and wire fraud
• Forgery
• Threatening an official (police officer, judge)
• Extortion
• Blackmail

Broadly, felonies can be characterized as either violent or nonviolent:

• Violent offenses usually contain some element of force or a threat of force against a person. Some jurisdictions classify as violent certain property crimes involving a strong likelihood of psychological trauma to the property owner; for example, Virginia treats both common-law burglary (the breaking and entering of a dwelling house at night with the intent to commit larceny, assault and battery, or any felony therein) and statutory burglary (breaking and entering with further criminal intent but without the dwelling-house or time elements, such that the definition applies to break-ins at any time and of businesses as well as of dwelling houses) as felonies.

Some offenses, though similar in nature, may be felonies or misdemeanors depending on the circumstances. For example, the illegal manufacture, distribution or possession of controlled substances may be a felony, although possession of small amounts may be only a misdemeanor. Possession of a deadly weapon may be generally legal, but carrying the same weapon into a restricted area such as a school may be viewed as a serious offense, regardless of whether there is intent to use the weapon. Additionally, driving under the influence in some states may be a misdemeanor if a first offense, but a felony on subsequent offenses.

"The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories." Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (citations omitted).

Classification by seriousness

A felony may be punishable with imprisonment for two or more years or death in the case of the most serious felonies, such as murder. Indeed, historically at common law, felonies were crimes punishable by either death or forfeiture of property. All felonies remain a serious crime, but concerns of proportionality (i.e., that the punishment fit the crime) have in modern times prompted legislatures to require or permit the imposition of less serious punishments, ranging from lesser terms of imprisonment to the substitution of a jail sentence or even the suspension of all incarceration contingent upon a defendant's successful completion of probation.[5][6][7] Standards for measurement of an offense's seriousness include attempts[8] to quantitatively estimate and compare the effects of a crime upon its specific victims or upon society generally.

In some states, all or most felonies are placed into one of various classes according to their seriousness and their potential punishment upon conviction. The number of classifications and the corresponding crimes vary by state and are determined by the legislature. Usually, the legislature also determines the maximum punishment allowable for each felony class; doing so avoids the necessity of defining specific sentences for every possible crime. For example:

• Virginia classifies most felonies by number,[9] ranging from Class 6 (least severe: 1 to 5 years in prison or up to 12 months in jail) through Class 2 (20 years to life, e.g., first-degree murder and aggravated malicious wounding) up to Class 1 (life imprisonment or the death penalty, reserved for certain types of murders). Some felonies remain outside the classification system.
• New York State classifies felonies by letter, with some classes divided into sub-classes by Roman numeral; classes range from Class E (encompassing the least severe felonies) through Classes D, C, B, and A–II up to Class A–I (encompassing the most severe).
• Massachusetts classifies felony as an offense that carries any prison time.
• Ohio classifies felonies by degree ranging from first, second, third, fourth, to fifth degree. First-degree felonies are the most serious category, while fifth-degree felonies are the least serious. This is broadly the approach taken by the Model Penal Code, although the Code identifies only three degrees of felony.[10]

England and Wales

History

Sir William Blackstone wrote that felony "comprises every species of crime, which occasioned at common law the forfeiture of lands or goods".[11] The word felony was feudal in origin, denoting the value of a man's entire property: "the consideration for which a man gives up his fief".[12] Blackstone refutes the misconception that felony simply means an offense punishable by death, by demonstrating that not every felony is capital, and not every capital offense is a felony. However he concedes that "the idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform."[11]

The death penalty for felony could be avoided by pleading benefit of clergy, which gradually evolved to exempt everybody (whether clergy or not) from that punishment for a first offense, except for high treason and offenses expressly excluded by statute. During the 19th century criminal law reform incrementally reduced the number of capital offenses to five (see Capital punishment in the United Kingdom), and forfeiture for felony was abolished by the Forfeiture Act 1870. Consequently, the distinction between felony and misdemeanor became increasingly arbitrary. The surviving differences consisted of different rules of evidence and procedure, and the Law Commission recommended that felonies be abolished altogether. This was done by the Criminal Law Act 1967, which made all felonies (except treason) misdemeanours, and introduced a new system of classifying crimes as either "arrestable" and "non-arrestable" offenses (according to which a general power of arrest was available for crimes punishable by five years' imprisonment or more).

Arrestable offenses were abolished in 2006,[13] and today crimes are classified as indictable or summary offenses.

Procedure

The Trials for Felony Act 1836 (6 & 7 Will. 4 c. 114) allowed persons indicted for felonies to be represented by counsel or attorney.

Terminology

A person being prosecuted for this was called a prisoner, though increasing an "accused" or "defendant" was preferred.[14]

Ireland

In the law of the Republic of Ireland the distinction between felony and misdemeanor was abolished by section 3 of the Criminal Law Act, 1997, such that the law previously applied to misdemeanours was extended to all offences.[15][16] Minister Joan Burton, introducing the bill in the Seanad, said "The distinction has been eroded over many years and in today's conditions has no real relevance. Today, for example, serious offences such as fraudulent conversion and obtaining property by false pretences are classified as misdemeanours whereas a relatively trivial offence such as stealing a bar of chocolate is a felony."[17] The 1997 Act, modelled on the English Criminal Law Act 1967, introduced the category of "arrestable offence" for those with penalties of five years' imprisonment or greater.[15][17]

The 1937 Constitution declares that the parliamentary privilege, which protects Oireachtas members from arrest travelling to or from the legislature, does not apply to "treason, felony, and breach of the peace".[18] The 1996 Constitutional Review Group recommended replacing "felony" with "serious criminal offence".[19]

United States

Felony Sentences in State Courts, study by the United States Department of Justice.

The reform of harsh felony laws that had originated in Great Britain was deemed "one of the first fruits of liberty" after the United States became independent.[20]

In many parts of the United States, a felon can face long-term legal consequences persisting after the end of their imprisonment. The status and designation as a "felon" is considered permanent, and is not extinguished upon sentence completion even if parole, probation or early release was given.[21] The status can be cleared only by a successful appeal or executive clemency. However, felons may qualify for restoration of some rights after a certain period of time has passed.[22][23]

The consequences felons face in most states include:[24]

• Disenfranchisement (expressly permitted by the Fourteenth Amendment, as noted by the Supreme Court[25])
• Exclusion from obtaining certain licenses, such as a visa, or professional licenses required to legally operate (making some vocations off-limits to felons)[26]
• Ineligibility to hold office in a labor union (a provision of the Landrum–Griffin Act of 1959)
• Exclusion from purchase and possession of firearms, ammunition, and body armor
• Ineligibility to serve on a jury
• Ineligibility for government assistance or welfare
• Removal (deportation) (if not a citizen)

Additionally, many job applications and rental applications ask about felony history (with the exception of the Commonwealth of Massachusetts)[27] and answering dishonestly on them can be grounds for rejecting the application, or termination if the lie is discovered after hire. Convicted felons may not be eligible for certain professional licenses or bonds,[28] or may raise the cost of an employer's insurance.

It is broadly legal to discriminate against felons in hiring decisions[29] as well as the decision to rent housing to a person, so felons can face barriers to finding both jobs and housing. Many landlords will not rent to felons, although a blanket ban on renting to felons may violate federal housing law.[30] A common term of parole is to avoid associating with other felons. In some neighborhoods with high rates of felony conviction, this creates a situation where many felons live with a constant threat of being arrested for violating parole.[21] Banks may refuse to issue loans to felons, and a felony conviction may prevent employment in banking or finance.[31]

In some states, restoration of those rights depends on repayment of various fees associated with the felon's arrest, processing, and prison stay, such as restitution to victims, or outstanding fines.[21]

Restoration of Rights

Main articles: Pardon and Expungement in the United States

The primary means of restoring civil rights that are lost as a result of a felony conviction are executive clemency and Expungement in the United States.

For state law convictions, expungement is determined by the law of the state. Many states do not allow expungement, regardless of the offense, though felons can seek pardons and clemency, potentially including restoration of rights.[32]

Federal law does not have any provisions for persons convicted of federal felonies in a federal United States district court to apply to have their record expunged.[33] At present the only relief that an individual convicted of a felony in federal court may receive is a presidential pardon, which does not expunge the conviction, but rather grants relief from the civil disabilities that stem from it.[33][34]

Germany

Felonies (Verbrechen) are defined as a crime that is punishable with a minimum of one year's imprisonment.[35] Misdemeanours (Vergehen) are all other crimes punishable by imprisonment with a minimum of less than one year or by fine.[36]

However, in some cases a severe version misdemeanor may be punished with imprisonment of more than one year, yet the crime itself remains considered a misdemeanor. Same applies for a milder version of a felony that is punishable with imprisonment less than a year.[37]

An attempt to commit a felony is always punishable, whilst an attempt to commit a misdemeanor is solely punishable if particularly prescribed by law.[38]

See also

• Compounding a felony
• Criminal law
• Employment discrimination against persons with criminal records in the United States
• Federal crime in the United States
• Felony murder rule
• Backberend and Handhabend
• Indictable offence (Canadian equivalent of felony)
• Summary offence
• Misdemeanor
• One strike, you're out
• Racketeer Influenced and Corrupt Organizations Act (RICO)
• Three-strikes law

References

1. Wigmore, John H. (1979). Evidence in trials at common law. Little Brown. p. 520. ISBN 0316845590.
2. Faulker, Sarah (Summer 2000). "Invasion of the Information Snatchers: CreatingLiability for Corporations with Vulnerable Computer Networks". The John Marshall Journal of Information Technology &Privacy Law. 18 (4): 1025. Retrieved 9 June 2019.
3. 18 U.S.C. § 3559
4. Legislative History – Copyright Felony Act. H.R. REP. NO. 997.
5. Doing Justice – The Choice of Punishments, A VONHIRSCH, 1976, p.220
6. Criminology, Larry J. Siegel
7. An Economic Analysis of the Criminal Law as Preference-Shaping Policy, Duke Law Journal, Feb 1990, Vol. 1, Kenneth Dau-Schmidt,
8. Offense Seriousness Scaling: An Alternative to Scenario Methods, Journal of Quantitative Criminology, Volume 9, Number 3, 309–322, doi:10.1007/BF01064464 James P. Lynch and Mona J. E. Danner,
9. "§ 18.2-10. Punishment for conviction of felony; penalty". Leg1.state.va.us. Retrieved 19 November 2017.
10. MPC § 6.01
11. Blackstone, W. (1765). Commentaries on the Laws of England (Book IV chapter 7) Oxford: Clarendon Press.
12. Blackstone.
13. Serious Organised Crime and Police Act 2005.
14. O. Hood Phillips. A First Book of English Law. Sweet and Maxwell. Fourth Edition. 1960. Page 151.
15. "Criminal Law Act, 1997". Irish Statute Book. Archived from the original on 16 June 2013. Retrieved 12 June 2013.
16. "CONSOLIDATION AND REFORM OF THE COURTS ACTS" (PDF). Law Reform Commission Consultation Papers (46–2007). Law Reform Commission. 2007: 89, fn.298. Retrieved 12 June 2013. Cite journal requires |journal= (help)
17. "Criminal Law Bill, 1996: Second Stage". Seanad Éireann debates. 26 February 1997. Retrieved 12 June 2013.
18. Constitution of Ireland, Article 15.13
19. Constitution Review Group (1996). "Report" (PDF). Dublin: Stationery Office. §4: felony or breach of the peace. Retrieved 8 August 2013.
20. Bradley Chapin (Apr 1989), Felony Law Reform in the Early Republic, 113, The Pennsylvania Magazine of History and Biography, pp. 163–183, JSTOR 20092326
21. The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander (The New Press, 2010)
22. "Felon Voting Rights". National Conference of State Legislatures. 29 September 2016. Retrieved 7 September 2017.
23. "Loss and Restoration of Civil Rights & Firearms Rights". Restoration of Rights Project. Collateral Consequences Resource Center. May 2017. Retrieved 7 September 2017.
24. Larson, Aaron (7 June 2016). "What is a Felony". ExpertLaw. Retrieved 7 September 2017.
25. "Richardson v. Ramirez, 418 US 24, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974)". Google Scholar. Google. Retrieved 7 September 2017.
26. Ajunwa, Ifeoma; Onwuachi-Willig, Angela (2018). "Combating Discrimination Against the Formerly Incarcerated in the Labor Market". Northwestern University Law Review. 112: 1385. Retrieved 11 February 2020.
27. "Massachusetts Law about Criminal Records". Massachusetts Judicial Branch. Commonwealth of Massachusetts. Retrieved 7 September 2017.
28. The U.S. federal government attempts to mitigate issues of bonding through the "Federal Bonding Program". U.S. Department of Labor. Retrieved 7 September 2017.
29. "EEOC Enforcement Guidance: Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions". U.S. Equal Opportunity Employment Commission. Retrieved 7 September 2017.
30. Domonoske, Camila (4 April 2016). "Denying Housing Over Criminal Record May Be Discrimination, Feds Say". NPR. Retrieved 7 September 2017.
31. Epstein, Victor (25 July 2013). "FDIC quietly changes rule that cost thousands their jobs". USA Today. Retrieved 7 September 2017.
32. "Restoration of Rights Project". Collateral Consequences Resource Center. Retrieved 7 September 2017.
33. "Federal Restoration of Rights, Pardon, Expungement & Sealing". Restoration of Rights Project. Collateral Consequences Resource Center. Retrieved 7 September 2017.
34. "Pardon Information and Instructions". United States Department of Justice. Retrieved 7 September 2017. ("While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of your conviction.")
35. Section 12: Felonies and Misdemeanours, Bundesministerium der Justiz. "Verbrechen sind rechtswidrige Taten, die im Mindestmaß mit Freiheitsstrafe von einem Jahr oder darüber bedroht sind."
36. Section 12: Felonies and Misdemeanours, Bundesministerium der Justiz. "Vergehen sind rechtswidrige Taten, die im Mindestmaß mit einer geringeren Freiheitsstrafe oder die mit Geldstrafe bedroht sind."
37. Section 12: Felonies and Misdemeanors, Bundesministerium der Justiz. "Schärfungen oder Milderungen, die nach den Vorschriften des Allgemeinen Teils oder für besonders schwere oder minder schwere Fälle vorgesehen sind, bleiben für die Einteilung außer Betracht."
38. Section 23: Criminality of the Attempt, Bundesministerium der Justiz. "Der Versuch eines Verbrechens ist stets strafbar, der Versuch eines Vergehens nur dann, wenn das Gesetz es ausdrücklich bestimmt."