Misdemeanor Sentencing Trends

1/29/2019

Every year state lawmakers consider legislation impacting the criminal justice system. There has been an increased focus in recent years on changing sentencing schemes, primarily within felony classes. As states have shifted and modified felony offenses, they have recognized the need to make adjustments to lower level offenses, such as misdemeanors, as well.

50-State Penalty Analysis

In general, a misdemeanor is a less serious criminal offense than a felony, but more serious than an infraction or violation. A few examples of crimes that typically fall within the misdemeanor classification across the states include lower-level theft offenses, simple assault, impaired driving, disorderly conduct and criminal trespass.

The least serious offenses, often referred to as infractions or violations, are punishable only by fine. Misdemeanors are typically punishable by a fine, incarceration or a combination of the two. Felonies, which are the most serious criminal offenses, are generally penalized by both incarceration and a fine.

Statutes authorize a range of penalties that can be imposed for misdemeanors. These typically include no penalty, time served, a fine with no incarceration, a sentence to probation, incarceration with no fine or a combination of incarceration and a fine. It is the court’s discretion which penalty or combination of penalties to order.

Typically, misdemeanor incarceration is served in jail rather than prison. Jails are generally intended to house individuals for shorter sentences, those less than one year. Alabama statute specifies that the incarceration for a misdemeanor is in a county jail, while Arizona law requires that it be some place other than in the custody of the state department of corrections.

The most common misdemeanor-felony penalty threshold is one year. Generally, misdemeanors are punishable by less than one year or 365 days, whereas felonies are generally subject to more than one year of incarceration. In 24 states the maximum penalty for a misdemeanor is up to one year of incarceration. Nevada explicitly makes a misdemeanor subject to up to 364 days incarceration, whereas felony incarceration starts at 365 days. Tennessee sets the maximum for misdemeanor incarceration at 11 months and 29 days. In Iowa and Vermont, some misdemeanors may result in up to two years of incarceration in jail.

Colorado law, which is fairly unique, specifies that a person convicted of a misdemeanor may be subject to up to 18 months of incarceration. Where the person is incarcerated is based on classification of all the convicted offenses. If any of the offenses is a felony ordered to be served at the same time as the misdemeanor(s), then the sentence will be served in state prison. Otherwise, the term is served in a local jail.

There are a few states where misdemeanors carry permissible sentences longer than one year and the court can send an individual to prison rather than jail. In Pennsylvania, a first-degree misdemeanor conviction can result in up to five years in state prison. New Jersey law authorizes a similar sentence for high misdemeanors.

The majority of states have established multiple levels of misdemeanors based on the severity of the offense. Most states have between two and four separate classifications. Nebraska has the most classes of misdemeanors with seven. Nine states have one general classification for misdemeanors.

Five states—Louisiana, Maryland, Massachusetts, Mississippi and West Virginia—don’t have any specific classes. In those states, penalties for misdemeanors are specified for each offense rather than providing one overarching penalty. Louisiana statute, for instance, states that simple battery is punishable by up to six months imprisonment, whereas simple assault is punishable by up to 90 days. In Maryland, the penalty for harassment is up to 90 days imprisonment, while burglary in the fourth degree is a misdemeanor that is subject to imprisonment for up to three years.

In general, statutes explicitly permit fines for misdemeanor offenses and this is often the only penalty imposed for these crimes. Statute generally specifies the maximum amount of fine that may be levied.

50-State Chart

The following chart includes states’ maximum misdemeanor classification systems. Classes are ordered from most- to least-serious.

Misdemeanor Penalties
State Statutory Citation Misdemeanor Offense Classification Maximum Jail Term Maximum Fine
Alabama §§ 13A-5-7; 13A-5-12 Class A 1 year $6,000
Class B 6 months $3,000
Class C 3 months $500
Alaska §§ 12.55.135; 12.55.035 Class A 365 days $25,000
Class B 90 days $2,000
Arizona §§ 13-707; 13-802 Class 1 6 months $2,500
Class 2 4 months $750
Class 3 30 days $500
Arkansas §§ 5-4-401; 5-4-201 Class A 1 year $2,500
Class B 90 days $1,000
Class C 30 days $500
Unclassified  Crime specific Crime specific
California Penal Code § 19 General 6 months $1,000
Colorado § 18-1.3-501 Class 1 18 months $5,000
Class 2 12 months $5,000
Class 3 6 months $750
Drug 1 18 months $5,000
Drug 2 12 months $750
Connecticut §§ 53a-36; 53a-42 Class A 1 year $2,000
Class B 6 months $1,000
Class C 3 months $500
Class D 30 days $250
Unclassified  Crime specific Crime specific
Delaware 11 De. Code § 4206 Class A 1 year $2,300
Class B 6 months $1,150
Unclassified  30 days $575
Florida §§ 775.08; 775.081 First degree 1 year Not specified
Second degree 1 year Not specified
Georgia § 17-10-3 General 12 months $1,000
Hawaii § 706-663 General 1 year Not specified
Petty 30 days Not specified
Idaho § 18-113 General 6 months $1,000
Illinois §§ 730 ILCS 5/5-4.5-55;
730 ILCS 5/5-4.5-60;
730 ILCS 5/5-4.5-65; 730 ILCS 5/5-4.5-75;
Class A 1 year $2,500
Class B 6 months $1,500
Class C 30 days $1,500
Petty N/A $1,000
Indiana §§ 35-50-3-2; 35-50-3-3;
35-50-3-4
Class A 1 year $5,000
Class B 180 days $1,000
Class C 60 days $500
Iowa § 903.1 Aggravated 2 years $6,250
Serious 1 year $1,875
Simple 30 days $625
Kansas § 21-6602; 21-6611 Class A 1 year $2,500
Class B 6 months $1,000
Class C 1 month $500
Unclassified 1 month $500
Kentucky § 532.090 Class A 12 months Not specified
Class B 90 days Not specified
Louisiana Crime specific
Maine* Tit. 17 §§ 1252; 1301 Class D 1 year $2,000
Class E 6 months $1,000
Maryland Crime specific
Massachusetts Crime specific
Michigan § 750.504 General 90 days $500
Minnesota §§ 609.02; 609.03 Gross 1 year $3,000
General 90 days $1,000
Mississippi Crime specific
Missouri § 558.011; 558.002 Class A 1 year $2,000
Class B 6 months $1,000
Class C 15 days $750
Montana § 45-2-101 General 1 year Not specified
Nebraska § 28-106 Class I 1 year $1,000
Class II 6 months $1,000
Class III 3 months $500
Class IIIA 7 days $500
Class IV Not specified $500
Class V Not specified $100
Class W 7 days to 1 year, depending on conviction $500-$1,000, depending on conviction
Nevada § 193.140; 193.150 Gross 364 days $2,000
General 6 months $1,000
New Hampshire §§ 625:9; 651:2 Class A 1 year $2,000
Class B Not specified $1,200
New Jersey §§ 2C:1-4; 2C:43-3 Third degree 5 years $15,000
Fourth degree 18 months $10,000
New Mexico § 31-19-1 General 1 year $1,000
Petty 6 months $500
New York Penal §§ 70.15; 80.05 Class A 1 year $1,000
Class B 3 months $500
Unclassified Crime specific Crime specific
North Carolina §§ 14-3; 14-3.1 Class 1 6 months N/A
Class 2 6 months N/A
Class 3 30 days N/A
North Dakota §12.1-32-01 Class A 360 days $3,000
Class B 30 days $1,500
Ohio § 2929.24; 2929.28 First Degree 180 days $1,000
Second Degree 90 days $750
Third Degree 60 days $500
Fourth Degree 30 days $250
Minor Not specified $150
Oklahoma Tit. 21 § 10 General 1 year $500
Oregon § 161.615; 161.635 Class A 364 days $6,250
Class B 6 months $2,500
Class C 30 days $1,250
Unclassified Crime specific Crime specific
Pennsylvania Tit. 18 §§ 1101; 1104 First Degree 5 years $10,000
Second Degree 2 years $5,000
Third Degree 1 year $2,500
Rhode Island § 11-1-2 General 1 year $1,000
Petty 6 months $500
South Carolina § 16-1-20 Class A 3 years N/A
Class B 2 years N/A
Class C 1 year N/A
South Dakota § 22-6-2 Class 1 1 year $2,000
Class 2 30 days $500
Tennessee § 40-35-111 Class A 11 months, 29 days $2,500
Class B 6 months $500
Class C 30 days $50
Texas Penal Code §§ 12.21; 12.22; 12.23 Class A 1 year $4,000
Class B 180 days $2,000
Class C Not specified $500
Utah §§ 76-3-204; 76-3-205; 76-3-301 Class A 1 year $2,500
Class B 6 months $1,000
Class C 90 days $750
Vermont Tit. 13 § 1 General 2 years N/A
Virginia §§ 18.2-11; 18.2-15 Class 1 12 months $2,500
Class 2 6 months $1,000
Class 3 Not specified $500
Class 4 Not specified $250
Washington §§ 9.92.020; 9.92.030 Gross 364 days $5,000
General 90 days $1,000
West Virginia § 61-11-17 General Crime specific or as ordered by judge Crime specific or as ordered by a judge
Wisconsin § 939.51 Class A 9 months $10,000
Class B 90 days $1,000
Class C 30 days $500
Wyoming § 6-10-103 General 6 months $750

*Note: Maine does not have separate misdemeanor or felony classifications; designation in this chart is based on sentence length. 

Legislative Efforts

Most legislative changes within the realm of misdemeanor sentencing in recent years have dealt with the reclassification of offenses. For instance, states have downgraded offenses from felonies to misdemeanors and have similarly downgraded offenses from misdemeanors to infractions.

Recent trends in drug sentencing have seen states downgrading offenses related to drug possession. States including Alaska, Delaware, Mississippi and Utah have reduced possession of certain drugs from felonies to misdemeanors. Twenty-two states and the District of Columbia have decriminalized possession of small amounts of marijuana altogether.

A handful of states have looked at making such changes through citizen-initiated ballot measures. California’s Proposition 47, passed by voters in 2014, reduced simple drug possession and some theft crimes from felony to misdemeanor. A June 2018 report from the Public Policy Institute of California found that the ballot measure caused a decrease in recidivism and may have “reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys.”

Theft thresholds have also been increased for felony theft, meaning that theft offenses of lower dollar values are re-classified as misdemeanors rather than felonies. Research from The Pew Charitable Trusts’ public safety performance project found that felony threshold amounts were not correlated with property crime or larceny rates; raising felony theft thresholds was not shown to result in increases in property crime or theft.

Much of the changes to misdemeanor sentencing have been part of comprehensive, data-driven reforms in states around the country. In Utah, for instance, many of these changes were made through the state’s Justice Reinvestment Initiative legislation (HB 348 [2015]), which reclassified certain misdemeanor traffic offenses from class B to class C misdemeanors and from class C misdemeanors to infractions.

This change allowed the state to focus its jail resources on more serious offenders. In the legislation, the state lowered the penalty for most first and second personal drug possession offenses to misdemeanors. The most recent report on the implementation of Utah’s legislative changes found that implementation is meeting its intended goal, noting the state “continues to incarcerate a reduced number of non-violent offenders while increasing capacity of substance use treatment for offenders in need.”

States such as New Hampshire successfully reclassified misdemeanors in the early and mid-’90s. The state established a class B misdemeanor which doesn’t allow imprisonment. The Spangenberg Project explored this and similar efforts in misdemeanor reclassification in 2010, stating that “(t)he modification of minor misdemeanor offenses into infractions or non-jailable offenses has the potential to save states money that otherwise would be spent on litigation or expensive incarceration.”

“Since 1970 twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm,” according to Decriminalization, Police Authority and Routine Traffic Stops.

Looking Forward

A few states have explored decriminalizing some traffic offenses in recent years. A 2017 interim committee in Nevada studied the feasibility of treating certain traffic and related violations as civil infractions. Recommendations in the study committee’s final work session report included proposing legislation to establish civil penalties for minor traffic offenses and creating a separate class of misdemeanor for minor traffic violations with reduced penalties, as compared to six months in jail or a fine up to $1,000.

Georgia’s Administrative Office of the Courts studied similar changes and made recommendations to policymakers to reclassify some offenses, but the legislature has not taken action on those recommendations (see Appendix C of the study). The Commission on the Future of California’s Court System published a report to the chief justice in 2017, with a primary recommendation to create a civil model for adjudication of motor vehicle infractions to free up court and law enforcement resources and simplify procedures for defendants.

Other state offense structures have been studied. Resources on offense grading in New Jersey and Pennsylvania explore how classifications for offenses could be improved, for instance by reviewing “crime definitions to ensure that only conduct of the same degree of seriousness is included within the same grade of the offense of suboffense.”

A 2015 law review article by Alexandra Natapoff, “Misdemeanor Decriminalization,” examines the potential effects of decriminalization. According to the article, while states explore decriminalization to save money and reduce negative impacts on defendants, it still “preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience.” Some of these collateral consequences include “reduced employment and earning capacity triggered by arrest and conviction records; the loss of housing, public benefits, financial aid, and immigration status.”

The number of misdemeanor cases filed in a year is not clear. However, calculations based on National Center of State Courts data from 12 states collected in 2006 resulted in an estimate of 10.5 million misdemeanor prosecutions that year. Even though there is limited available data regarding misdemeanors, it is clear that they impact a significant number of people. This impact is resulting in increased and continued attention from state lawmakers.

 

This report was prepared under a partnership project of the National Conference of State Legislatures’ Criminal Justice Program in Denver and The Pew Charitable Trusts’ public safety performance project, Washington, D.C.