Brief Misdemeanor Justice: Statutory Guidance for Sentencing

More than 13 million misdemeanor cases are filed in the U.S. each year, according to a recent estimate. Even though penalties for misdemeanors are generally not as severe as those for felonies, the collateral consequences associated with misdemeanor convictions can be just as disruptive, significantly impacting the lives of individuals who are charged.

Courts have broad discretion to determine what sanction to impose for a misdemeanor conviction. Common penalties ordered by courts 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.  However, many legislatures have decided to provide courts with more direction on the sentencing decision under certain circumstances.

Typically, only maximum penalties are included in statute. This means that, in practice, the sentences imposed are based on decisions made by the sentencing judge and are not based on explicit statutory specifications. But, as listed below, circumstances exist where legislatures have put in place more specific guidance.

Additional information regarding trends in misdemeanor sentencing, along with a 50-state analysis of the maximum penalties for misdemeanor offenses is available here.

Fine Only Misdemeanors

In a handful of states, some misdemeanor offenses can only be penalized with a fine. In Nebraska, the legislature has created two classes of misdemeanors that do not allow for incarceration, instead specifying only a maximum fine amount. Similarly, in New Hampshire, a class B misdemeanor cannot be punished by incarceration or probation.

Other states with misdemeanor classes that prohibit incarceration include Minnesota, Ohio, Texas and Virginia. In Minnesota, incarceration is not an allowable sanction in the category of offense called a petty misdemeanor. Given that the possible penalty includes only a fine, the state considers it quasi-criminal. Crimes punishable as petty misdemeanors do not include a right to a jury trial or representation by a public defender, but guilt must be proven beyond a reasonable doubt.

*Ohio allows for community supervision to be imposed in place of financial sanctions if the person is indigent and unable to pay.

Sentence to Incarceration

Misdemeanors are generally punishable by less than one year in jail. In 24 states the maximum penalty for a misdemeanor is up to one year of incarceration. Six states have specific classes of misdemeanors subject to more than one year of incarceration, going as high as five years in New Jersey and Pennsylvania.

In six states, the maximum sentence for misdemeanor incarceration is six months. Michigan sets the maximum length of incarceration for general misdemeanors at 90 days and Wisconsin puts it at nine months. Additional detail on the maximum sentences for incarceration for misdemeanors can be found in this web brief.

Habitual Offending

States have created guidance for when the court should consider increasing the penalty ordered to include or lengthen a sentence of incarceration. One example of this is “habitual offender” laws. These statutes apply to those who have been convicted multiple times, even if each incident is a misdemeanor. In some states, this is limited to people with additional convictions for the same offense or category of offense. Statutes vary in the number of convictions required before the enhanced penalty can be imposed.

Statutes may also limit the types of criminal behavior that qualify. Driving while intoxicated is a common example of a misdemeanor offense where the penalty increases as the number of convictions increase. These statutes may allow or even require the court to impose increased penalties when someone has previously been convicted of similar offenses in the past. If someone is considered a habitual misdemeanor offender, some states allow the offense to be charged as a felony, rather than misdemeanor.

Some of the states with habitual offender laws for misdemeanors include Arizona, Connecticut, Florida, Maryland, Missouri, Ohio, South Carolina, Texas and Wisconsin. A “repeater” in Wisconsin includes someone convicted of any misdemeanor on three separate occasions over a five-year period. If someone is a repeater, then a maximum term of imprisonment of one year or less may be increased to up to two years of incarceration.

Sentence to Probation

Statutes permitting individuals convicted of misdemeanors to be sentenced to probation or other types of supervision in the community are common. Most states have established statutory maximums for the length of a sentence to probation. Courts can determine the length of probation but only up to these maximums.

In 34 states, the maximum term for misdemeanor probation is between one and three years. Sixteen states set the maximum probation term for a misdemeanor at two years. In at least six states, the maximum probation term is equal to the maximum sentence to incarceration allowed in statute.

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.