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Felony

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"Felon" redirects here. For other uses, see Felon (disambiguation) and Felony (disambiguation).
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A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious.[1] 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;[2] other crimes were called misdemeanors. Following conviction of a felony in a court of law, a person may be described as a felon or a convicted felon.

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 convicted of a felony receives a sentence of one year or less.[3] Some individual states 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 may include but are not limited to the following:

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 US states may be a misdemeanor if a first offense, but a felony on subsequent offenses.

Worldwide

Cameroon

In the law of Cameroon, a felony is a crime for which the maximum sentence is more than 10 years, or death.[5] Felonies are distinguished from misdemeanours (maximum sentence from 10 days to 10 years) and offences (not exceeding 10 days).[6] While lesser crimes are tried before a magistrate's court, felonies must be tried before a high court (tribunal de grande instance).[7]

The drafters of the bilingual Cameroonian penal code of 1967 based their work on French law and Nigerian law. In the case of felonies, they chose to set the threshold for felonies much higher than under either French law (five years) or Nigerian law (three years). This had the effect of greatly reducing the number of felonies under Cameroonian law. It also reduced the number of crimes that were subject to trial by jury in the courts of East Cameroon at that time.[8]

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".[9] 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".[10][a] Blackstone refutes the misconception that felony simply means an offence punishable by death, by demonstrating that not every felony is capital, and not every capital offence 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."[9]

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 offence, except for high treason and offences expressly excluded by statute. During the 19th century criminal law reform incrementally reduced the number of capital offences 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 misdemeanour 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 set the criminal practice for all crimes as that of misdemeanour, and introduced a new system of classifying crimes as either "arrestable" and "non-arrestable" offences (according to which a general power of arrest was available for crimes punishable by five years' imprisonment or more).

Arrestable offences were abolished in 2006,[12] and today crimes are classified as indictable or summary offences, the only distinction being the mode of trial (by jury in the Crown Court or summarily in a magistrates' court, respectively).

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 increasingly "accused" or "defendant" was preferred.[13]

Germany

A felony (Verbrechen, a word also translated in less technical contexts as simply "crime") is defined in the Strafgesetzbuch (Criminal Code, StGB) as an unlawful act (rechtswidrige Tat) that is punishable with a minimum of one year's imprisonment.[14] A misdemeanour (Vergehen) is any other crime punishable by imprisonment with a minimum of less than one year or by fine.[15]

However, in some cases a severe version of a misdemeanor may be punished with imprisonment of more than one year, yet the crime itself remains considered a misdemeanor. The same applies for a milder version of a felony that is punished with imprisonment less than a year.[16]

An attempt to commit a felony is itself a crime, whereas an attempt to commit a misdemeanor is a crime only if specifically prescribed as such by law.[17]

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.[18][19] 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."[20] 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.[18][20]

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".[21] The 1996 Constitutional Review Group recommended replacing "felony" with "serious criminal offence".[22]

United States

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

In the United States, a felony is a crime that is punishable by death or more than one year in prison.[23]

History

Historically under 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.[24][25][26] Standards for measurement of an offense's seriousness include attempts[27] to quantitatively estimate and compare the effects of a crime upon its specific victims or upon society generally.

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.[28]

Classification by seriousness

In much of the United 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,[29] 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). 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.[30]

Some felonies are classified as forcible or violent, typically because they contain some element of force or a threat of force against a person, and are subject to additional penalties. Burglary is also classified as a forcible felony in some jurisdictions including Illinois[31] and Florida.[32]

"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).

Consequences

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.[33] 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.[34][35]

The consequences felons face in most states include:[36]

Additionally, many job applications and rental applications ask about felony history (with the exception of the Commonwealth of Massachusetts)[39] 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,[40] or may raise the cost of an employer's insurance.

It is broadly legal to discriminate against felons in hiring decisions[41] 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.[42] 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.[33] Banks may refuse to issue loans to felons, and a felony conviction may prevent employment in banking or finance.[43]

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.[33]

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.

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.[44]

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.[45] 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.[45][46]

See also

Notes

  1. ^ The common-law felonies were: murder, manslaughter, mayhem, robbery, larceny, rape, sodomy, arson, and burglary.[11]

References

  1. ^ 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.
  2. ^ Wigmore, John H. (1979). Evidence in trials at common law. Little Brown. p. 520. ISBN 0316845590.
  3. ^ 18 U.S.C. § 3559
  4. ^ Legislative History – Copyright Felony Act. H.R. REP. NO. 997.
  5. ^ Republic of Cameroon, Law No. 2016/007 of July 12, 2016, Relating to the Penal Code, section 21. Available in English (PDF) and French (PDF).
  6. ^ Galabe, Ferdinand Doh (January 2018). "The Sentencing System under Cameroon Criminal Law". Dayspring Law Firm. Retrieved 2022-06-08.
  7. ^ Baaboh, Feh Henry (n.d.). "The Force of the Cameroon Legal System". Henry, Samuelson & Co. Retrieved 2022-06-08.
  8. ^ Smith, J. A. Clarence (July 1968). "The Cameroon Penal Code: Practical Comparative Law". The International and Comparative Law Quarterly. 17 (3): 651–671. doi:10.1093/iclqaj/17.3.651. JSTOR 757015.
  9. ^ a b Blackstone, W. (1765). Commentaries on the Laws of England Archived 2012-02-01 at the Wayback Machine (Book IV chapter 7) Oxford: Clarendon Press.
  10. ^ Blackstone.
  11. ^ Legal Information Institute, Criminal Law; accessed 2021.08.28.
  12. ^ Serious Organised Crime and Police Act 2005.
  13. ^ O. Hood Phillips. A First Book of English Law. Sweet and Maxwell. Fourth Edition. 1960. Page 151.
  14. ^ StGB Section 12: Felonies and Misdemeanours, Bundesministerium der Justiz. "Verbrechen sind rechtswidrige Taten, die im Mindestmaß mit Freiheitsstrafe von einem Jahr oder darüber bedroht sind."
  15. ^ StGB 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."
  16. ^ StGB 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."
  17. ^ StGB 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."
  18. ^ a b "Criminal Law Act, 1997". Irish Statute Book. Archived from the original on 16 June 2013. Retrieved 12 June 2013.
  19. ^ "CONSOLIDATION AND REFORM OF THE COURTS ACTS" (PDF). Law Reform Commission Consultation Papers (46–2007). Law Reform Commission. 2007: 89, fn.298. Archived (PDF) from the original on 2010-07-03. Retrieved 12 June 2013. {{cite journal}}: Cite journal requires |journal= (help)
  20. ^ a b "Criminal Law Bill, 1996: Second Stage". Seanad Éireann debates. 26 February 1997. Retrieved 12 June 2013.
  21. ^ Constitution of Ireland, Article 15.13
  22. ^ Constitution Review Group (1996). "Report" (PDF). Dublin: Stationery Office. §4: felony or breach of the peace. Archived from the original (PDF) on 17 October 2013. Retrieved 8 August 2013.
  23. ^ "What Happens in a Felony Case". Office of the United States Attorney for the Northern District of Illinois. 2015-07-23. Retrieved 2022-06-08. Any offense punishable by death or imprisonment for more than one year is called a felony. Felonies are the most serious crimes.
  24. ^ Doing Justice – The Choice of Punishments, A VONHIRSCH, 1976, p.220
  25. ^ Criminology, Larry J. Siegel
  26. ^ An Economic Analysis of the Criminal Law as Preference-Shaping Policy, Duke Law Journal, Feb 1990, Vol. 1, Kenneth Dau-Schmidt, [1]
  27. ^ 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, [2]
  28. ^ Bradley Chapin (April 1989). "Felony Law Reform in the Early Republic". The Pennsylvania Magazine of History and Biography. 113 (2): 163–183. JSTOR 20092326.
  29. ^ "§ 18.2-10. Punishment for conviction of felony; penalty". Leg1.state.va.us. Retrieved 19 November 2017.
  30. ^ MPC § 6.01
  31. ^ 720 ILCS 5/2-8
  32. ^ "Chapter 776 Section 08 - 2011 Florida Statutes - The Florida Senate". Retrieved 2022-06-08.
  33. ^ a b c Alexander, Michelle (2010). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The New Press.
  34. ^ "Felon Voting Rights". National Conference of State Legislatures. 29 September 2016. Retrieved 7 September 2017.
  35. ^ "Loss and Restoration of Civil Rights & Firearms Rights". Restoration of Rights Project. Collateral Consequences Resource Center. May 2017. Retrieved 7 September 2017.
  36. ^ Larson, Aaron (7 June 2016). "What is a Felony". ExpertLaw. Retrieved 7 September 2017.
  37. ^ "Richardson v. Ramirez, 418 US 24, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974)". Google Scholar. Retrieved 7 September 2017.
  38. ^ 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.
  39. ^ "Massachusetts Law about Criminal Records". Massachusetts Judicial Branch. Commonwealth of Massachusetts. Retrieved 7 September 2017.
  40. ^ 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.
  41. ^ "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.
  42. ^ Domonoske, Camila (4 April 2016). "Denying Housing Over Criminal Record May Be Discrimination, Feds Say". NPR. Retrieved 7 September 2017.
  43. ^ Epstein, Victor (25 July 2013). "FDIC quietly changes rule that cost thousands their jobs". USA Today. Retrieved 7 September 2017.
  44. ^ "Restoration of Rights Project". Collateral Consequences Resource Center. Retrieved 7 September 2017.
  45. ^ a b "Federal Restoration of Rights, Pardon, Expungement & Sealing". Restoration of Rights Project. Collateral Consequences Resource Center. Retrieved 7 September 2017.
  46. ^ "Pardon Information and Instructions". United States Department of Justice. 12 January 2015. 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.")
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