Unintended Collateral Consequences: Defining Felony in the Early American Republic

32 Pages Posted: 4 Dec 2009 Last revised: 2 Mar 2010

Will Tress

University of Baltimore - School of Law

Date Written: 2009

Abstract

At common law a felony was a crime that led to forfeiture of the convict’s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year). The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state’s statutes. The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries.

How felony is defined - creating more or fewer felonies - gains greater importance in light of the current concern over the collateral consequences of a felony conviction. Looking at how the line between felonies and lesser crimes was originally drawn can offer insight as to where it should be drawn today.

Keywords: felony, common law, crime, New York, legal history, reform movements, penitentiaries, state statutes, collateral consequences

JEL Classification: K14, K42

Suggested Citation

Tress, Will, Unintended Collateral Consequences: Defining Felony in the Early American Republic (2009). Cleveland State Law Review, Vol. 57, No. 3, pp. 461-491, Fall 2009; University of Baltimore School of Law Legal Studies Research Paper No. 2010-06. Available at SSRN: https://ssrn.com/abstract=1517216

Will Tress (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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