Felonies and Misdemeanors

In general, the potential punishment for a crime determines its classification. For example, if an offense carries possible imprisonment of more than one year commonly makes it a felony. (Another way of framing “felony” is whether the crime could result in time in prison rather than jail.) The crime typically remains a felony even if the judge sentences the defendant to something other than the maximum sentence—even if the actual punishment doesn’t involve any time behind bars.

A misdemeanor, on the other hand, is usually any crime that has a maximum jail sentence of a year or less, or no prison time at all. A crime can actually be a misdemeanor for most purposes and a felony for others. For example, an offense that is a misdemeanor under state law might be an aggravated felony for purposes of federal immigration proceedings.

Both felonies and misdemeanors can be punished by fines and other penalties (requirement of an interlock in the car for alcohol-related offenses, revocation of driver’s privileges, sex-offender registration,) in addition to incarceration.

Infractions and Wobblers

An infraction is simply a low-level crime, one that’s less serious than a misdemeanor. Infractions normally don’t carry any jail time but involve fines. Perhaps the best example is a traffic ticket for speeding. Some states even classify infractions like speeding as civil—not criminal—offenses.

A “wobbler” is certainly more serious, but really isn’t its own kind of crime. Instead, “wobbler” denotes an offense that prosecutors can charge and judges can sentence as either a felony or a misdemeanor. In some states and for some crimes, judges can even wait until a defendant has completed probation to decide whether an offense is a misdemeanor or felony.

Prosecutors get to choose how to charge wobblers. But their choice isn’t necessarily controlling: Judges usually have the final say as to whether the offense will be a misdemeanor or felony. The offender’s circumstances and the facts in question regularly shape the misdemeanor-or-felony decision.

Drawing the Line

When deciding whether to classify crimes as felonies, wobblers, misdemeanors, or even infractions, state legislatures consider how culpable the action in question makes the defendant. Someone who commits armed robbery, for example, would be more culpable than one who shoplifts, primarily because of the level of danger. Legislatures are more likely to make offenses against property or “public order” misdemeanors than they are crimes that involve threats, injuries, and the like.

Many crimes start out as misdemeanors and become felonies when some additional circumstance is present. Common elements that can jump misdemeanors up to felonies include:

• the value of stolen or destroyed property
• quantities of drugs
• use of a dangerous weapon
• injuring someone
• having prior convictions.

Degrees of Crime

Lots of states separate their crimes—whether misdemeanors or felonies—into degrees or gradations. (They often do so based on the same criteria that distinguish felonies from misdemeanors.) A common distinction is between “regular” and petty misdemeanors, the latter being less serious and therefore bringing lesser punishment. A more elaborate differentiation is between “classes” or “levels” of crimes, “Class A” or “Level One” usually being the most severe.

Procedure

The classification affects not only the punishment for a crime but also the procedure. In some states, for example, the prosecution need only file a “complaint” in a misdemeanor prosecution, whereas a preliminary hearing or indictment is required for felony charges.