Tuesday, December 08, 2009

2,383 and Counting: Felonies have come a long way, baby

I've marveled frequently about the exploding number of crimes and particularly felonies in Texas statutes. After every biennial legislative session, the Board of Pardons and Parole must identify all new felonies created by the Texas Legislature and assign each offense a "severity" level for purposes of inmate classification and to guide future release decisions. In 2007 they counted 2,324; in 2009 the number had risen by 59, to 2,383 separate statutory felonies.

How in the world did we get to such a bizarre place where the word "felony" could encompass so many different acts? According to a fascinating academic article by U of Baltimore Law Library Director Will Tress titled "Unintended Collateral Consequences: Defining Felony in the Early American Republic" (found via Sentencing Law & Policy), virtually from its earliest usage the meaning of "felony" has been expanding to include an ever increasing array of human malfeasance

Originally, "felony" was a feudal term denoting breach of faith with the king. The defining characteristic of the crime was not its severity but the punishment: specifically, forfeiture of property:
In its earliest known form, “felony” was not a criminal act per se but a breach of the feudal obligations between lord and vassal, and it did not necessarily result in the death of the felon. Moreover, serious crimes were not necessarily felonies: “A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony; there must be some breach of that faith and trust which ought to exist between lord and man.” Since ownership of property was bound to the feudal relationship, a breach of that nexus led to a forfeiture of goods and the escheat of the fief.
So at its earliest usage, most crimes weren't felonies - only those that involved a breach of faith and trust with the king. After feudalism in the early parliamentary era, "felony" become a euphemism for crimes punishable by death (which surely also frequently accompanied betrayal of the crown).

Setting an example still followed today seemingly no matter which political party is in power, early British parliaments couldn't restrain themselves from expanding the definition:
As the definition of felony became less definitely tied to forfeiture and the use of capital punishment became more general, the number of felonies in English law multiplied. The traditional common law felonies were nine: murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. Many more were added by statute. Francis Bacon, writing around 1620, listed some thirty-four felonies, including witchcraft and harboring a priest. [William] Blackstone lamented that, in his day, “no less than a hundred and sixty [offenses] have been declared by act of parliament to be felonies ... or, in other words, to be worthy of instant death.”
So you can see where this trend is coming from: At first there were nine felonies in British common law. By Bacon's time in 1620, parliaments had added another 25 to reach 34 total felonies. By Blackstone's day in 1775, they'd hit 160. Today, the trend has accelerated by orders of magnitude and in Texas the number is 2,383; we have more felonies involving oysters than originally existed in early British common law!

The American Revolution transformed the understanding of what is a felony in surprising ways, particularly given Americans' modern "tuff on crime" bent: "Within two decades of gaining independence from England, the states of the Union had replaced execution with incarceration as the punishment for all but a few crimes." As an example of that dramatic, relatively rapid transformation (the whole article was worth reading just to get to this sentence): "Ohio, in an excess of patriotic fervor, ... abrogated the English common law in 1806, despite the absence of a body of statute law to take its place." The Buckeye state didn't get around to putting a new criminal code in place until 1815.

According to Tress, early 19th century disciples of English philosopher Jeremy Bentham believed the criminal code should be codified. Based partially on those ideas but also incorporating common law, an 1829 New York statute became the model for the US definition of felony as an offense whose punishment is death or incarceration in a state prison. Some states defined a felony based on the length of incarceration - with misdemeanors defined as offenses with punishments up to one year's incarceration - but the net effect was the same.

Another important trend documented in the article was the 1829 New York statute's collapsing into the felony definition the concept of "infamous crimes" - a phrase Tress says was used in its popular sense (i.e., crimes of infamy or notoriety) in the Fifth Amendment, but which in British common law referred to a subset of offenses whose punishment whose punishment included the subsequent denial of the right to testify at trial denial of the right to vote, hold office, serve on a jury, testify in court, etc.. (See the correction below.)

These terms were eventually conflated - a post-Civil War Supreme Court case "essentially merged the definitions of felony and infamous crimes" - and thus the concept of post-release civic disability was applied to all felonies, even though "Using the definition of felony to restrict the rights of convicts with collateral consequences after their release was never their intent."

Tress suggests that perhaps it's time for "conceptually, reestablishing the distinction between 'felony' and 'infamous crime.'”

Most of this fascinating history was new to me and the 31-page article was jam-packed with all sorts of interesting, relevant tidbits - a good view of the forest, speaking as someone who looks at a lot of trees. Sometimes it's hard to know how to back out of the jam you're in without knowing how you got there.

CORRECTION: From Mr. Tress, "You might want to correct one statement about infamous crimes: at English common law, conviction of an infamous crime directly affected the ability to testify, not all civil rights; it was basically a rule of evidence. An infamous crime was one that showed the convict to be untrustworthy, but not totally unfit to be a citizen. Counterfeiting was an infamous crime, but not murder.


FairPlay said...

Hell with all the oyster felonies. I think we need a few for scallpos. They are much more tastey. JMO. I guess it close to lunch time. I'm hungry.

R. Shackleford said...

It's gettin' so a man can't leave the house and walk to his mailbox without breaking the law. Sitting quietly in your living room is probably illegal by now. Ridiculous. This is why we're moving to the mountains, more freedom to be had when there's only one cop for every 200 square miles. That way, he has more important things to worry about, like saving folks from the cold, as opposed to generating revenue for his tin pot municipality.

Anonymous said...

The Brits were sentencing orphans as young as 8-years-old to death for such offenses as stealing from a food stall. Most of these sentences were later commuted to "transportation"; banishment to one of the penal colonies in Australia or the Americas.

Interesting to note that a similiar practice was still in place as late as 1965, although it was ostensibly for child welfare purposes.

Both the British and Australian governements have recently apologized for these policies. I believe Canada did so as well a few years back.

Anonymous said...

I am happy to live in a community where the average police response time is 2 to 3 hours. We look at it as one of the benefits.

They do get around eventually and Betty will even come and collect crime scene evidence if it’s not Wed. night or Sun. morning. (She gets a bit annoyed if she misses her church choir time)

I know it might seem that we would have crime sprees going on all over the place, but I honestly can’t remember a time when somebody felt compelled to breakout in crime. At least, not ones anybody would care anything about.

Maybe our community needs to keep better abreast of all these felonies and infamous crimes. My goodness, there is no telling what we are all guilty of.

Andrew Oh-Willeke said...

The fact that there are lots of felonies does not imply that there are a lot more acts that are criminal or felonious.

For example, for all the oyster felonies that Texas may recite, poaching (i.e. hunting wild animals in violation of government hunting regulations) was punishable by death back in the days of Robin Hood, and hence a felony by the parliamentary era definition. The fact that Texans prefer to deliniate its poaching laws one species and hunting regulation at a time doesn't really mean that the scope of felonious conduct has become broader.

Just a few crimes, theft, vandalism, aggravated assault, fraud and extortion, are lesser included offenses in almost every crime against persons or crime against property.

Life is not more complicated for anyone but lawyers as a result of the fact that the federal government has dozens are variations on "murder of a very important person." Fraud is another crime that legislators seem to delight in codifying over and over and over again.

There is reason to be concerned that the severity of conduct that provides a basis for serious criminal punishment has expanded, but given the very broad expanse of the death penalty in the Colonial era, this too is a hard claim to make. The offenses that qualify for the death penalty are roughly the same now as they were when the distinction between first and second degree murder was created in the 19th century, non-capital corporal punishment has almost vanished, very few crimes are punishable by complete forfeiture of the defendant's property, debtor's prison is largely gone, and prison conditions (outside extended solitary confinement anyway) are generally better now than they have been historically.

Vice and domestic violence are probably the only areas where the scope of serious criminal liability has expanded in recent history.

Gritsforbreakfast said...

Andew, the other big area of expansion is criminalization of business conduct (in lieu of regulation), which gets you into a much wider swath of human endeavor. Many, MANY new crimes and enhancements are pushed by business interests in some way or another protecting their turf.

Jackie Buffalo said...

*still giggling over the Colbert Report with guest Dallas DA Watkins:

"Does anybody really, really, deserve to be walking the streets ?" because, "Even Innocent People probably are guilty of something.."

God, I love Colbert and the Dallas DA !! Aren't they great together !

Anonymous said...

When a 20 something young woman only receives a 12 month probated sentence for a federal felony conviction, yet is still faced with a lifetime of collateral consequences, it is time to change the definition of a felony. The one size fits all concept is long out of date and the punishment, in far too many cases, no longer fits the crime. The House Subcommittee on Crime, etc., etc., held a hearing on Over-Criminalization of Conduct/Over-Federalization of Criminal Law back in July. Take a look at the video of the hearing or read the transcripts posted at:


The testimony of Kathy Norris and Krista Evertson is most compelling. Talk about collateral damages, these two people are the poster children. Congress knows about the problem, acknowledges that there is a problem, holds hearings, blather and more blather, and does nothing. Business as usual and the punishment continues.

Need more, see this article entitled "You're (Probably) a Federal Criminal" by Brian Walsh at the Heritage Foundation (I know, I know, they are a conservative group. Get over it, Brian is 100% correct) http://www.heritage.org/Press/Commentary/ed072809d.cfm

All if this is just more clear evidence that not only does the definition of a felony need to be changed but that legislation such as H.R. 1529 the “Second Chance for Ex-Offenders Act of 2009” should be passed immediately to allow these "victims" of a broken criminal injustice system a chance to return to society free of the encumbrances imposed by poorly written law.

TDCJ EX said...

Could some on post exactly what the imfamous oyster feloines are . A search just brings up this blog .

Her is alost of felonies in TX from BPP in PDF . They are ranked in "severity "


It is big bussiness making every imaginable human behavior a felony ! Lost of special interst gruopswouldlvoeto makethislsit even longer. TDCJ's boss union tops that list not suprsingly .

Anonymous said...

Sixty-six of the items on that list relate to homicide/murder. The penal code does not contain that many offenses for wrongful termination of another person's life. So not everything on there is an actual separate offense, right?

I personally think that if we put someone in stockades for eight hours on a Saturday for Timber Purchase as Trustee with Intent to Defraud, you'd get a lot more deterrence than X years of probation/confinement. It'd be cheaper too.

Some would howl that it is cruel to do that though.

Gritsforbreakfast said...

5:41, whenever the Lege creates a new crime or new gradation of offense levels, the parole board must grade the severity of the offense for purposes of their release calculations, which to my knowledge is the only time the number of new crimes actually gets tallied in any official way after each session. They go through all the new legislation, update the list, and that's the number they get. I know of no other.

Certainly you're right that many are redundant: E.g., theft was already illegal so when they made theft of any livestock, even a $35 goat, a state jail felony, there's a sense in which that's not a "new crime," but it has to be treated as a separate offense. That the state has jiggered with the murder statutes that much doesn't surprise me.

In the federal system there is no single number everybody agrees upon for the total number of felonies, there are several competing estimates, and nobody even has a good guess how many misdemeanors (in Texas, either). If you wanna make your own count and get back to me via email, I promise devote its own post to your research. :)