Most states divide crimes into three categories: felonies, misdemeanors and infractions. Although the details sometimes vary from state to state, this article will help you to understand the differences between those classifications of offenses.

What is a Crime?

Understanding whether an act constitutes a "crime" is not always easy. Not every wrongful act is a crime. For example, an act of negligent driving that causes an accident could expose the driver to a civil lawsuit, but not necessarily to a criminal prosecution. A driver would need to violate a criminal traffic law before that driver could be found guilty of committing a crime.

Not every violation of the law is a crime. Most statutes are civil, not criminal. They regulate the making of contracts, the sale of real estate, the probate of wills, commercial transactions and thousands of other acts. Unless a violation of one of those laws has been specifically designated as criminal, the violation is a civil matter, not a crime.

An act that is a crime in one state might be viewed as non-criminal in a different state. For instance, the California Penal Code defines crimes as felonies, misdemeanors and infractions. The criminal statutes in Wisconsin, on the other hand, do not regard infractions as crimes. We will explain the confusing "quasi-criminal" nature of infractions later in this article.

All federal crimes and nearly all state crimes are defined by statutes enacted by legislatures (a few states retain a small number of "common law" crimes that exist as a matter of legal tradition). As a practical matter, an act that is forbidden by law and that the government can punish is a crime, provided that a state or federal statute defines it as a crime. Most states define crimes as prohibited acts that are that are punishable by:

  • Imprisonment
  • Death (if the state has a death penalty)
  • A fine (as opposed to a civil forfeiture)

Some states add other sanctions, such as removal from public office, to the list of potential punishments that make a forbidden act a crime.

1. Felony

A felony is a serious crime. That definition, of course, is not very precise, since "serious" is a matter of perspective. As a general rule, however, when a legislature classifies a crime as a felony, it regards the crime as worthy of substantial punishment. Robbery, rape and murder are examples of crimes that are commonly classified as felonies.

Most states, like the federal government, define a felony as a crime that can be punished by a particular length of sentence. The federal definition of a "felony," for example, is a crime that is punishable by a period of incarceration of at least one year. A judge may have the power to impose a shorter sentence or a term of probation, but a federal crime that carries a maximum sentence of more than one year is a felony regardless of the sentence that is actually imposed.

Felony convictions often carry serious consequences (known as "collateral consequences") in addition to the punishment imposed by a judge. Depending on the offender’s state of residence, those may include the temporary or permanent loss of voting privileges. A federal law prohibits felons from carrying firearms while state laws often limit the kinds of licenses, permits or employment for which a felon is eligible.

2. Misdemeanor

A misdemeanor is a crime that the legislature regards as less serious than a felony. Shoplifting an item of small value, disorderly conduct, and a battery or assault that causes no significant physical injury are common examples of misdemeanors.

Some crimes may be classified as either misdemeanors or felonies. Theft, for example, may be a misdemeanor if the value of the stolen property is less than a specified amount, and a felony if the value exceeds that amount. A first offense drunk driving charge might be a misdemeanor while a repeat offense might be a felony. Some states give prosecutors discretion to choose whether to charge certain crimes as misdemeanors or felonies.

In the federal government and many states, a misdemeanor is a crime that is punishable by incarceration for a period of less than one year. In most states, misdemeanor sentences are served in jails rather than prisons. Some misdemeanors in some states are punishable by a fine only. Regardless of the maximum possible punishment, most misdemeanor convictions do not result in jail sentences.

Misdemeanor convictions do not usually expose a defendant to the same collateral consequences that apply to convicted felons. For example, federal law does not prohibit someone with a misdemeanor conviction from owning a firearm. Some states, however, impose collateral consequences on specific misdemeanors. For example, in some states, a conviction of a misdemeanor sexual assault might preclude the convicted person from working in a childcare facility.

3. Infraction

An infraction is generally a violation of the law that can be punished by a fine or forfeiture, but not by imprisonment. In some states, an infraction is known as an "ordinance violation" or a "petty offense." Speeding, parking violations and other minor offenses that are charged when an officer writes a ticket are common examples of infractions.

Infractions are usually punished with financial penalties. Some states call those penalties "forfeitures" to distinguish them from the fines that are assessed for felonies and misdemeanors. Driving infractions often carry additional penalties, such as license suspensions. In some states, incarceration (such as a short jail sentence) is an authorized punishment for an infraction, but incarceration is not usually imposed.

Some states consider infractions to be crimes and others do not. Infractions are usually regarded as "quasi-criminal." That means that they are a hybrid of civil and criminal law. However, in states that define infractions as crimes, distinguishing an infraction from a misdemeanor can be confusing. Even states that define infractions as crimes do not always require them to be disclosed on licenses or employment applications that ask about criminal convictions.

Which Crimes Entitle a Defendant to a Jury Trial and to a Lawyer?

Infractions generally do not trigger the same constitutional rights as felonies and misdemeanors. Individuals charged with a felony are always entitled to a jury trial. Persons charged with a misdemeanor are entitled to a jury trial unless the potential punishment for the crime is minimal. Even then, most jurisdictions make a jury trial available to all persons charged with misdemeanors.

Individuals charged with infractions have no constitutional right to a jury trial if they are not exposed to the risk of incarceration. They may have a right to a jury trial under state law, although jury trials for infractions often follow the rules of civil procedure rather than the rules of criminal procedure. This means that the accused might have a smaller jury and might not be entitled to an unanimous verdict.

Every person accused of a crime, who faces a potential sentence of incarceration, has the right to a lawyer, including a court-appointed lawyer if the person is indigent. For that reason, the right to counsel exists for every felony and most misdemeanor prosecutions.

Persons charged with infractions who are not facing a custodial punishment are entitled to hire a lawyer to assist with their defense, but they have no constitutional right to an appointed lawyer. If an infraction carries the possibility of incarceration, no sentence of incarceration can be imposed unless the accused was given the right to a lawyer.