Saturday, December 5, 2009

Tress on Felony in the Early American Republic

Will Tress, University of Baltimore School of Law, has posted Unintended Collateral Consequences: Defining Felony in the Early American Republic, which appeared in Cleveland State Law Review 57 (Fall 2009): 461-491. Here’s the 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.