States, and the federal government, generally classify crimes by their potential punishment—the amount of time a person could spend behind bars and where that time could be served. Each jurisdiction defines crimes and their penalties differently. But, in general, most use similar criteria to determine what is a felony versus a misdemeanor versus an infraction.
This article will review the most common definitions states use when classifying offense levels.
What Makes a Crime a Felony?
A felony offense commonly carries the possibility of imprisonment of more than one year and up to life (or death, in some states). A crime typically remains a felony even if the judge sentences the defendant to something other than the maximum sentence and even if the actual punishment doesn’t involve any time behind bars. Another way to frame a felony is a crime that involves the possibility of prison time (versus local jail).
Both felonies and misdemeanors can be punished by fines and other penalties (sex-offender registration for one) in addition to incarceration.
What Makes a Crime a Misdemeanor?
A misdemeanor is usually any crime that has a maximum jail sentence of a year or less or can’t be punished by prison time. Some states have made the maximum imprisonment for many or all misdemeanors 364 days rather than a full year; the idea behind that kind of change is to avert deportation consequences for some defendants.
A crime can actually be a misdemeanor for most purposes and a felony for others. An offense that’s a misdemeanor under state law might, for instance, be an “aggravated felony” for purposes of federal immigration proceedings.
What Is a Wobbler?
A "wobbler" isn’t actually its own kind of crime. Instead, "wobbler" denotes an offense that prosecutors can charge and judges can sentence as either a felony or 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.
In California, for example, assault with a deadly weapon other than a gun is a wobbler because it can result in two, three, or four years in prison, or 364 days or less in jail. (Cal. Penal Code §§ 18.5, 245(a)(1) (2021).) A defendant without a criminal record who swings a pipe at someone without connecting might get the 364-days-or-less sentence and therefore the misdemeanor conviction. One who stabs another with a blade is more likely to land a felony.
What Are Infractions?
An infraction is simply a low-level offense, one that’s less serious than a misdemeanor. Infractions normally don’t carry any jail time but do involve fines. Perhaps the best example is a traffic ticket for speeding. Some states even classify infractions like speeding as quasi-criminal or civil offenses, meaning they aren't considered "crimes."
Drawing the Line Between Felonies and Misdemeanors
State legislatures define and classify crimes. For federal crimes, it's the U.S. Congress. When deciding whether to classify crimes as felonies, wobblers, misdemeanors, or even infractions, 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.
When Misdemeanors Become Felonies
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, or
- having prior convictions.
State law could, for example, make stealing property valued at less than $2,500 a misdemeanor and theft of anything more valuable a felony. Or a law could provide that shoplifting is a misdemeanor that becomes a felony when the defendant already has two convictions for the offense.
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 differentiation is between “classes” or “levels” of crimes, with “Class A” or “Level One” usually being the most severe. Some states divide misdemeanors by denominators such as gross or high misdemeanors or petty misdemeanors.
Take Texas, for example. There, a Class A misdemeanor carries jail time of a year or less, a $4,000-or-less fine, or both; an example is stealing an unsigned check. Class B misdemeanors carry up to 180 days in jail, a fine of up to $2,000, or both; an example is a standard driving-while-intoxicated offense. And Class C misdemeanors, like standard theft of property worth less than $100, simply bring a maximum fine of $500. (Tex. Penal Code §§ 12.21, 12.22, 12.23, 31.03, 32.24, 49.04 (2021).)
Do Criminal Procedures Differ by Classification?
Yes. 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. Even the right to a jury trial can depend on the classification of the charged crime—the U.S. Supreme Court has held that the jury-trial right applies only when the defendant faces a “serious” offense (one that carries a potential of more than six months’ imprisonment). (Baldwin v. New York, 399 U.S. 66 (1970).)
Questions for Your Lawyer
- Can I have a felony conviction reduced to a misdemeanor after the fact? Can I then have the crime “expunged” or “sealed”?
- If I lose at trial, am I likely to end up with a more serious conviction or stiffer sentence?
- When does my state’s law entitle me to a jury trial?