What is a Felony


All states distinguish between criminal charges based upon the severity of the offense and the maximum punishment that can be imposed for the offense. In most states, more serious criminal offenses are classified as felony offenses, and less serious crimes are classified as misdemeanors. Some states may use different terms. New Jersey, for example, classifies more serious criminal offenses as "Indictable Offenses" and less serious crimes as "Disorderly Person Offenses", but beyond the different labels the consequences of conviction are consistent with the misdemeanor-felony distinction.

Classes of Felony

Many states classify felony offenses by letter or number, such that a person might be charged with a Class A, Class B or Class C felony, or similarly Class 1, Class 2, or Class 3. The number of classes differs between states, and some states don't use that type of classification system at all.

The general rule is that a Class A or Class 1 misdemeanor will be the most serious class of felony offense, likely carrying a sentence of life in prison, with the penalty being reduced for each felony class as you continue through the numbers or alphabet. Illinois classifies its most serious felony offenses as "Class X" felonies, but uses a number system to classify other felonies. California has a set of criminal offenses that are known as "wobblers", because a person charged with the offense could be potentially charged with either a felony or a misdemeanor and, if convicted of the felony, has potential to later convince the sentencing court to reduce the conviction to a misdemeanor.

States may also classify a felony as a capital offense. In states with the death penalty, that label indicates that the offense potentially carries a death sentence. In states without the death penalty, that label usually means that the crime carries a potential or mandatory sentence of life without parole.

Penalties for Felonies

The penalty ranges for each class of penalty -- the range of years that a defendant may be sentenced to prison, and the maximum fines that may be imposed -- vary enormously between states. In most states, any felony carries a potential sentence of time in prison, usually translating into a sentence of two or more years of incarceration. A few states have "state jail" felony classifications for crimes that carry a felony conviction, but for which the defendant faces a lesser potential term of incarceration that would be served in a county jail.

Often the sentence for a felony charge is reasonably predictable based upon published sentencing guidelines. Although some states have complex guidelines systems, and there can be disagreement over how the variables for determining a sentence range should be scored, in many cases a defendant will have a pretty clear impression of what sentence is likely to follow from a plea bargain to a specific charge or charges.

Some felonies carry a mandatory sentence. Mandatory sentences come in two basic forms:

  • Mandatory Fixed Terms - A person convicted of the felony must be sentenced to a term of years defined in the statute, be it a specific number of years (e.g., 5 years, 20 years) or a life sentence.

  • Mandatory Minimum Terms - A person convicted of the felony must be sentenced to a defined minimum term of incarceration.

Many states offer alternative dispositions for some felony offenses or classes of offender. For example, many states and counties have implemented drug courts, through which a person charged with the unlawful possession of a controlled substance may be able to get treatment and, if successful, potentially avoid a criminal sentence. Young offenders in some jurisdiction may be eligible for military-style boot camp programs, providing a relatively short but very intense experience as an alternative to a much longer prison term.

Not everybody who is convicted of a felony will spend time in prison, or even spend time behind bars. With many felony convictions, although there is a potential for prison time, most offenders remain eligible for a sentence of jail time or even of a suspended sentence and probation. Convictions of very serious offenses, such as homicide, rape, armed robbery, arson and kidnapping, can be expected to result in a period of incarceration, even for a first offense.

Sentencing Enhancement for Felonies

All states have laws that increase the penalties for felony offenses based upon an offender's prior record, or which allow for an additional charge based upon certain facts of the crime. For example:

  • Habitual Felon Laws - A person convicted of a felony who has prior convictions for felonies, and in some states for certain serious misdemeanors, may face an increased term of incarceration for the subsequent crime.

  • Felony Firearm Laws - A person who commits a felony while in possession of a firearm may face an additional charge for that offense, and if convicted will typically have have to serve a sentence for the felony firearm conviction consecutively with the sentence for the underlying felony. To serve sentences consecutively means that the sentences are served one after the other, not at the same time (concurrently).

Consequences of a Felony Conviction

Beyond the potential for a long term of incarceration, large fines and court assessments, legal fees, and a lengthy period of time on probation or parole, a felony conviction can have a very significant impact on a defendant's life:

  • Loss of Civil Rights - Conviction of a felony results in the loss of many civil rights, including the right to vote, the right to possess a firearm, and the right to serve on a jury.

  • Immigration Consequences - Most people know that felony convictions can have a profound effect on non-citizens present within or who want to visit the United states. They may face removal (deportation) proceedings, be denied visas, be denied permission to enter the United States, or be subject to lengthy or permanent bars during which they are prohibited from entering the United States. However, the same is true of U.S. citizens who want to travel abroad: Other nations may deny a visa or refuse entry based upon a felony conviction.

  • Loss of Public Assistance - Some public assistance programs are not open to people with certain types of felony conviction. For example, certain public housing programs may disqualify applicants based upon their having been convicted of certain felonies that suggest that they may be disruptive or dangerous to the community.

  • Professional Licenses - People who hold professional licenses may be subject to discipline, suspension, or revocation of their license based upon a felony conviction. A conviction may also disqualify a person from obtaining a professional license.

  • Vocational Licenses - Many vocational licenses, such as building contractor's licenses, may be subject to suspension or revocation based upon a felony conviction, and a person seeking a vocational license may be restricted or barred from obtaining the license based upon a felony record.

  • Employment - A felony conviction can have a profound impact on a convicted person's future job prospects. Most states impose few limits on the consideration of felony convictions by prospective employers and, although federal civil rights law may provide some protection, in the best of circumstances a felony conviction is likely to cost a convicted person some employment opportunities. It can be extraordinarily difficult to enter law enforcement jobs or enlist in the military with a felony record. Many felonies make it difficult or impossible for a convicted person to get a job working with a vulnerable population, ruling out employment in contexts such as daycare centers, schools, and nursing homes.

  • Child Custody - A felony conviction may convince a court to be skeptical of awarding child custody to the convicted person, or may provide a basis to modify custody. A term of incarceration makes it impossible to exercise custody, meaning that custody may go to the other parent. If there is no other parent able or willing to take custody, children could end up living with relatives or even be placed in foster care. Parents facing lengthy prison terms are likely to have great difficulty opposing a stepparent adoption petition that will terminate their parental rights.

Expungement and Executive Clemency

You may have heard that a person convicted of a felony can petition for an expungement to clear their record, to have their record sealed from public view, or may obtain a pardon from the governor or President. Although most jurisdictions do allow for some form of expungement or restoration of rights following a felony conviction, in most states it is difficult to obtain an expungement. Also, expungement may have little practical impact, as in some states the focus of the law is to restore some or all of a defendant's civil rights without any impact on their criminal conviction. Some states are extremely restrictive in relation to when a criminal record may be sealed or expunged, disqualifying most convicted persons from obtaining relief. Most states impose lengthy waiting periods before a convicted person may petition to have their record expunged or sealed.

A pardon must be issued by the jurisdiction in which the defendant was convicted. A conviction in a state court must be pardoned pursuant to the laws and policies of that state; a conviction in federal court may be pardoned only by the President. In some states, pardons may be full or partial, and do not necessarily restore all civil liberties or even affect the status of the felony conviction. On top of that, pardons are rarely issued.

In short, if you are convicted of a felony, you should anticipate that you will have a felony record for the rest of your life. You may be lucky, and you may have been convicted in a state with a more generous approach to the grant of expungements or the sealing of criminal records, but most people facing felony charges should recognize that the best way to avoid a felony conviction is through plea bargaining, dismissal of the charge, or acquittal after trial. If you are not convicted of an offense, although laws again vary significantly by state, it is much more likely that you will be able to get the record of your arrest and prosecution sealed or expunged.

What Should You Do if Charged With a Felony

First, try not to panic. A felony charge is serious, but most first time offenders will not be sentenced to prison, and a great many will receive suspended sentenced and terms of probation. Although even with a first offense the specific charge, potential sentence, and facts of the offense will factor into the disposition, for less serious felonies there's a good chance that you won't spend time in jail.

Second, you should consult a criminal defense lawyer. You can discuss the facts of your case, and what dispositions may be available given those facts, your personal history and circumstances, and the policies of the court and prosecutor assigned to your case. If you intend to plead not guilty, your lawyer can assess your chances of getting a pretrial dismissal or acquittal at trial, and advise you about your options.

Third, see if you can avoid a felony conviction. Even if you intend to plead guilty to an offense, you will often be able to negotiate a plea bargain to a lesser charge, perhaps even a misdemeanor charge. In some circumstances you may be eligible for a deferred sentence, a possibility that you should discuss with your lawyer.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Jun 7, 2016.