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November 10, 2018

"Farewell to the Felonry"

The title of this post is the interesting title of this interesting new paper authored by Alice Ristroph now available via SSRN. Here is its abstract:

Bastard.  Idiot.  Imbecile.  Pauper.  Felon.  These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma.  As legal designations, the terms marked persons for different sorts of membership in a political community.  The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications.  But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category.  “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison.  So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification.  And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.  Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system.  American law provides the felonry —the group of persons convicted of felonies — a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.

The felon should go the way of the bastard, into the dustbins of legal history.  If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law.  This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law.  Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning.  When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it.  To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.

November 10, 2018 at 09:27 AM | Permalink


Felony, from Old French for “villainy “ and misdemeanor is a meaningless distinction in
North Carolina. We have misdemeanor offenses for which a def can get three years active , and we have felonies that carry no active time. Not a single day.



Posted by: Bruce Cunningham | Nov 10, 2018 5:33:34 PM

Perhaps the mistake was in taking the legal stigma from the other terms rather than in keeping it for felon.

Posted by: Soronel Haetir | Nov 10, 2018 6:34:43 PM

Term has a valid use. While different states may use it in different ways (which can be a problem), there is a rational need to have a term for serious offenses involving potential prison time from lesser offenses that only involve jail or fines.

There are times when a new label is needed because the old label creates a misleading impression or has a negative meaning that we no longer feel is appropriate. We do need a negative label for people who commit serious crimes because we want to convey that it is unacceptable behavior.

Posted by: tmm | Nov 11, 2018 11:30:51 AM

tmm, I agree that there is merit to have a shorthand term or designation for a person convicted of a serious crime. That is easier said than done, because it is extremely difficult to come up with one term which separates convictions with varying degrees of risk to public safety. "Felony" is simply too broad to describe the notion that the person convicted of a felony is a dangerous, violent person. Most citizens equate felony with violence.

For example, in North Carolina, stealing pine straw is a felony, as is submitting a false affidavit to get a driver's license.

The fact that we still use the felony./ misdemeanor dichotomy is largely attributable to the the reluctance of the legislature to take something off the table, once a new approach is put on the table. Which then results in a system/process which is illogical. For example, the NC Sentencing Commission worked for years to prepare proposed legislation which automatically factors in a person's prior record of criminal convictions into the sentence for a current offense. The Commission came up with a grid for judges to use which consists of a vertical axis of severity of offense and a horizontal axis of the number of seriousness of prior convictions. The Chairman of the Commission expressed the position that the state's Habitual Felon Act should be repealed once the sentencing grid was placed in effect.

Of course, politicians couldn't find it within themselves to vote in favor of repealing something call "habitual" felon. So we now have two, superimposed statutes which increases the penalty for a felony conviction, due to a defendant's prior record.


Posted by: bruce cunningham | Nov 11, 2018 9:16:10 PM

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