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.