Felony and Misdemeanor

The basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.

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What it means

American criminal law sorts offenses by seriousness, and the division does far more work than a label suggests. The conventional line is the maximum punishment available: a felony is an offense for which imprisonment for more than a year may be imposed, a misdemeanor one where the maximum is a year or less, and many jurisdictions add a third tier of infractions or violations punishable only by a fine. What matters is the maximum available for the offense, not the sentence a particular person receives - a felony conviction with no custodial sentence is still a felony conviction.

The classification determines the procedure. Whether a case begins by indictment or information, whether there is a preliminary hearing, which court hears it, whether a jury is available and how large it is, and how the case is scheduled all commonly turn on it. Many states subdivide further into classes or degrees, each carrying its own sentencing range, and a single course of conduct can support charges at more than one level.

The consequences that outlast the sentence are usually the more significant half, and they are the part most often underestimated at the point a plea is entered. Depending on the jurisdiction and the offense, a conviction can affect eligibility for professional and occupational licenses, firearms rights, housing and employment applications, immigration status for a non-citizen, eligibility for some public benefits and student aid, jury service and, in some states, voting. These are usually described as collateral consequences, a term that understates them: for many people they are the enduring effect of the case. Whether a conviction can later be sealed or expunged also depends heavily on this classification.

The line is not drawn identically everywhere. The same conduct can be a felony in one state and a misdemeanor in another, some offenses can be charged either way at the prosecutor's discretion, and a charge can be reduced or elevated as a case proceeds. Federal law sorts offenses into its own lettered classes on the same maximum-term principle.

Where this comes from

When people hire a lawyer for this

The question to put to a lawyer is not only what sentence is likely but what the conviction will still be doing in five years - to a license, to a lease application, to immigration status, to the ability to have the record sealed later. That is where the difference between a felony and a misdemeanor, or between two classes of the same offense, is usually decisive, and it is why a plea to a lesser offense can be worth more than a shorter sentence. A non-citizen should raise immigration status with defense counsel at the outset rather than after a plea; the analysis turns on federal definitions that do not follow the state label, and counsel is required to advise on it.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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