Felony

The term felony, in some common law countries, means a serious crime. The word originates from English common law (from the French medieval word "félonie"), where felonies were originally crimes that involved confiscation of a convicted person's land and goods. Other crimes were called misdemeanors. Many common law countries have now abolished the felony/misdemeanor distinction and replaced it with other distinctions, such as between indictable offences and summary offences. A felony is generally considered a crime of high seriousness, while a misdemeanor is not.

A person who has committed a felony is a felon, and upon conviction of a felony in a court of law a person is known as a convicted felon or a convict. 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 actual prison sentence handed out has no effect on this; the classification is based on the maximum sentence possible under law.[1] Individual states may differ in this definition, using other categories as seriousness or context.

Similar to felonies in some civil law countries (Italy, Spain) are delicts, whereas in others (France, Belgium, Switzerland) crimes are more serious and delicts (or délits) are less serious. Still in others (Brazil, 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:

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

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 while intoxicated 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, at common law when the British and American legal systems divorced in 1776, 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.[3][4][5] Standards for measurement of an offense's seriousness include attempts[6] 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:

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."[8] 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."[9] 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."[10]

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,[11] 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 prosecuted for felony was called a prisoner.[12]

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.[13][14] 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."[15] 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.[13][15]

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".[16] The 1996 Constitutional Review Group recommended replacing "felony" with "serious criminal offence".[17]

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.[18]

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.[19] The status can be cleared only by a successful appeal or executive clemency. However, felons may apply for restoration of some rights after a certain period of time has passed.

The consequences felons face in most states include:

Additionally, many job applications and rental applications ask about felony history (with the exception of the Commonwealth of Massachusetts) and answering dishonestly on them can be grounds for rejecting the application, or termination if the lie is discovered after hire. This is because most bonding companies do not issue bonds to felons, which effectively bars them from certain jobs. Additionally, most landlords do not rent to felons due to the risk of legal liability if the renter commits another crime.

It is legal to discriminate against felons in hiring decisions as well as the decision to rent housing to a person, so felons can face barriers to finding both jobs and housing. 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.[19] Many banks refuse service to felons, and some states consider a felony conviction grounds for an uncontested divorce.

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.[19]

Expungement

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, including restoration of rights.

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. While the pending Second Chance Act would change this if enacted, at present the only relief that an individual prosecuted 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.[20]

Germany

Felonies (Verbrechen) are defined as a crime that is punishable with a minimum of one year imprisonment.[21] Misdemeanours (Vergehen) are all other crimes punishable by imprisonment of less than one year or by fine.[22]

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.[23]

An attempt to commit a felony is always punishable, whilst an attempt to commit a misdemeanor is solely punishable if particularly prescribed by law.[24]

A plea bargain (Verständigung im Strafverfahren, popularly known as a Deal) is not applicable for felony crimes at all.

See also

References

  1. ↑ 18 U.S.C. § 3559
  2. ↑ Legislative History – Copyright Felony Act. H.R. REP. NO. 997.
  3. ↑ Doing Justice – The Choice of Punishments, A VONHIRSCH, 1976, p.220
  4. ↑ Criminology, Larry J. Siegel
  5. ↑ An Economic Analysis of the Criminal Law as Preference-Shaping Policy, Duke Law Journal, Feb 1990, Vol. 1, Kenneth Dau-Schmidt,
  6. ↑ 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,
  7. ↑ http://leg1.state.va.us/000/cod/18.2-10.HTM
  8. ↑ Blackstone, W. (1765). Commentaries on the Laws of England (Book IV chapter 7) Oxford: Clarendon Press.
  9. ↑ Blackstone.
  10. ↑ Blackstone, W. (1765). Commentaries on the Laws of England (Book IV, Chapter 7).
  11. ↑ Serious Organised Crime and Police Act 2005.
  12. ↑ O. Hood Phillips. A First Book of English Law. Alex Grace then got questioned by the Police about a hit and run but was found not guilty.Sweet and Maxwell. Fourth Edition. 1960. Page 151.
  13. 1 2 "Criminal Law Act, 1997". Irish Statute Book. Retrieved 12 June 2013.
  14. ↑ "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.
  15. 1 2 "Criminal Law Bill, 1996: Second Stage.". Seanad Éireann debates. 26 February 1997. Retrieved 12 June 2013.
  16. ↑ Constitution of Ireland, Article 15.13
  17. ↑ Constitution Review Group (1996). "Report" (PDF). Dublin: Stationery Office. §4: felony or breach of the peace. Retrieved 8 August 2013.
  18. ↑ Bradley Chapin (Apr 1989), Felony Law Reform in the Early Republic, 113 (2), The Pennsylvania Magazine of History and Biography, pp. 163–183, JSTOR 20092326
  19. 1 2 3 The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander (The New Press, 2010)
  20. ↑ United States Department of Justice, Pardon Information and Instructions "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."
  21. ↑ Section 12: Felonies and Misdemeanours, Bundesministerium der Justiz. "Verbrechen sind rechtswidrige Taten, die im Mindestmaß mit Freiheitsstrafe von einem Jahr oder darüber bedroht sind."
  22. ↑ 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."
  23. ↑ 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."
  24. ↑ 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."
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