Common Law Felonies Explained
Common law felonies are offenses that were recognized and defined by the common law of England before the United States adopted its current system of penal codes. Under common law, there was a system of defined felonies and misdemeanors that were considered crimes against the state and punished through execution or imprisonment. Statutory law eventually became the new prevailing practice, but remnants of these old laws remain on the books in all 52 U.S. jurisdictions and are occasionally used as bench marks to interpret new laws.
Under common law, crimes were divided into two categories: felonies and misdemeanors. Felonies were punishable by death or imprisonment. However, unlike the modern system, common law felonies did not have a statute book that laid out precisely which crimes condemned to death and which crimes would only be punished by imprisonment. Instead, crimes were considered felonies by virtue of their inherent evil nature, which made them deserving of execution.
Some examples of common law felonies include:
● Murder;
● Rape;
● Arson;
● Burglary; and
● Robbery (common law robbery).
Any other crime that was deemed punishable by imprisonment was considered a misdemeanor. Common law misdemeanors included theft without violence, public drunkenness, gambling, vagrancy, child neglect, and selling liquor without the proper license. Unlike common law felonies, which were considered to be unchanging , criminal statutes governing common law misdemeanors were flexible and open to interpretation based on the judgment of the lawmakers of the day.
From the late 19th through early 20th centuries, the legal profession began to rally around the idea that having a legally defined set of felonies and misdemeanors under common law was inefficient. With every offense having a different punishment depending on the judgment of individual judges and juries, sentences often varied from court to court, creating uncertainty in the legal system. The idea was that state legislatures should limit their lists of crimes to misdemeanors and felonies that have been accepted by society as crimes deserving of punishment.
The Model Penal Code was endorsed by the American Law Institute in 1962 as a way to standardize the definition of crimes and punishments across states. Penal codes provided for larger lists of crimes and punishments defined by the legislature rather than by common law court decisions. Treatment of previous common law felonies, such as murder and rape, remained unchanged, except that one statute covered multiple aspects of these crimes. The idea also gained traction that all misdemeanors were to be defined by statute alone, rather than by version.
The Model Penal Code served as a template to be followed by individual states, who adopted differing parts of the code into their own penal codes. Misdemeanors continue to be defined differently by individual states, but felonies are all prosecuted in a similar fashion under penal code statutes.
The Development and History of Common Law Felonies
Common law felonies trace their origins to medieval England, where criminal acts were classified as either petit (petty) or grand (serious). Petit felonies were generally characterized by lesser levels of moral culpability and/or damage to persons or property; grand felonies, on the other hand, were seen as a serious breach of the king’s peace, with mere injury to the victim being regarded as secondary to the greater offense to the sovereign. Of the latter category, homicide, arson, burglary, robbery and larceny were the most common felonies.
Early English law imposed capital punishment for various crimes, many of which no longer carry that penalty in the United States. In 1688, Parliament enacted an important statute that eliminated the death penalty for several felonies including horse theft and the cutting down of a tree, but did not eliminate capital punishment for murder and other felonies commonly seen in the United States today, like robbery. The Statute of Westminster of 1623 codified a list of 13 crimes punishable by death, including forgery, rape, robbery, treason and murder. Other felonies subject to capital punishment included kidnapping, burglary, larceny, arson, counterfeiting, sodomy, perjury, bigamy and stealing cattle. The penalties set out in the Statute of Westminster were soon enacted in the American colonies, and the punishment for common law felonies became death by hanging, hanging and drawing, or hanging, drawing and quartering. The last of these punishments was rarely given, however, due to its excessive brutality.
Prompted by more enlightened views of human nature and the causes of criminal behavior, legislatures gradually eliminated the death penalty for many felonies such as forgery, larceny and embezzlement, and substituted life imprisonment, transportation (banishment to one of the colonies) and imprisonment as alternatives. In the early decades of the 20th century, many capital crimes were repealed entirely. The Model Penal Code, promulgated by the American Law Institute in 1957, eliminated common law felonies from the realm of American law. By 1964, every state except Arkansas had replaced the common law felonies and equivalent statutes in their penal codes. The American Law Institute’s model statutes of 1962 repealed the common law felonies and created 10 alternative felonies involving bodily harm, harmful contact, theft, property damage, burglary, robbery, kidnapping, rape, sexual assault and criminal homicide. Importantly, the Model Penal Code eliminated the death penalty as a punishment for any offense except capital murder.
Features of Common Law Felonies
Common law felonies are distinguished from other offenses by several key characteristics that have their roots in England and the early development of criminal law in the United States. The term "felony" originated from the use of the word in England to classify those offenses that resulted in the loss of a person’s land, goods, or both, as people who were convicted of such offenses would be "felonized" or exiled from the land as punishment. As a result of this punitive prohibition against individuals returning to the land, felonies became known as the most serious class of offenses, invariably including the most severe penalties. Although the definition and elements of common law felonies have changed over the years, they are still defined as crimes that are punished with incarceration in a federal penitentiary or state prison.
There are two critical elements that distinguish common law felonies from other crimes. First, these offenses require that a defendant possess a certain degree of mental state referred to as "malice aforethought." Malice aforethought means that the defendant committed an unlawful act with intent to kill, or accompanied by such a wanton and willful disregard for the lives of others as to show a depraved indifference to human life. Essentially, malice aforethought means that the unlawful act was done either purposely or knowingly, or that the defendant was aware that certain results would likely occur, but acted without regard to the consequences. Second, these offenses are punished with incarceration in a federal or state prison, which means that a judge or jury found that the defendant faces a severe enough consequence for the crime that he or she committed. As a result, a record of conviction for common law felony will result in reporting to credit agencies and other civil consequences, as well as future convictions will be used against the defendant in subsequent prosecutions.
Common Law Felonies – Case Illustrations
At common law, these were crimes that were to be punished by service of a life sentence. The idea was that the term "felony" reserved life prison time for the most serious types of crimes. Modern laws have expanded the "felony" punishment level even further to include crimes that involve imprisonment for fear and loathing of criminals. Some of the other examples include:
Murder Common law defines murder as the following: When one person kills another with malice aforethought, either express or implied. The term "malice", however, has a very different connotation today than it did under common law; at common law, malice required no ill will to the victim, or to his property. Express malice aforethought is defined as "when we deliberately harm a person, or endeavor to do him some serious injury, and actually contemplate the felony." Implied malice aforethought is "where no previous intention to kill is expressed in the act: but the act itself manifests ‘palpable depravity.’" Modern law has rejected the implied malice theory. If there is no intent to kill, there’s really no murder nowadays. The malice requirement is satisfied if the defendant intended the act that resulted in death, whether or not he specifically intended death. Thus, acting recklessly to the point that murder results is the criminal intent modern law requires for murder.
Burglary Common law regarded any crime that was committed while breaking and entering into a structure any place as a felony. Even if the crime involved a mere misdemeanor, the fact that it occurred while entering a place where people lived or worked was considered sufficient reason to categorize it as a felony. In fact, common law even made it a crime to jiggle the doorknob of someone’s house, for example, even if it was locked yet unlocked if the doorknob could be manipulated without using a key. Modern laws have significantly narrowed the definition of burglary now defined to be: "whoever breaks and enters, by day or night, any building, structure, or vessel with the intent to commit a crime while in the building, structure, or vessel, unless his entry is licensed, invited, or privileged." Notably, common law did not differentiate between whether the crime the burglar planned on committing involved theft or not. Modern law does. The common law penalized all types of theft rather than just those that involved forceable entry into a structure.
Arson Common law defined arson as the intent to burn a house down: The intention of burning the house must be conditional, the burning must be intentional. The intention of burning is satisfied where it’s shown that the defendant kindled the fire which is the cause of the burning or that he caused a fire to be kindled with the intention to burn and that fire burned a house. The common law rule that arson is a felony even if the fire which caused the destruction of the dwelling place was not a felonious one has been changed by modern penal codes, which require, e.g., that the dwelling is burned and that the defendant acted willfully and maliciously and, through his act of arson, endangered human life. Legislative choices have resulted in arson being classified as a felony in all statutory jurisdictions. Burglary requires that the breaching of an entry be out of the intent to commit a theft. For arson to be qualified, the entry must have the intent to burn something down. It’s important to note, however, that modern law has changed the definition of arson to encompass crimes that were not considered felonies at common law. Hence, the modern statutory requirements for arson in some jurisdictions require only that a defendant "willfully and maliciously" burns any "structure, forestland, or property," or sets fire to any "structure, forestland, or property." This includes buildings, forestlands, meadows, marshes, woodlands, grasslands, crops, crops in the field, and orchards.
Common Law Felonies in Contemporary Legal Systems
The legacy of common law felonies persists today, even as statutory law has largely replaced case law as the primary source of criminal offenses. By the end of the 18th century, all states had adopted at least some statutory law, and by the middle of the 19th century, few jurisdictions retained any common law crimes. But even when crime definitions are driven primarily by statutes and regulatory laws, judges still rely on common law definitions for guidance. Not only is the body of common law into which modern statutory laws are drafted still a part of our legal system, but many common law offenses remain on records in contemporary law, albeit under alternative names.
Criminal offenses such as burglary, larceny, embezzlement and forgery, all of which originated in common law, were not defined by statute until the mid-19th century. Even after that, those who committed acts that fell into those categories that pre-dated codification avoided prosecution for violating the statutes because of the typical criminal statutes’ requirement of mens reus, or "criminal intent." In other words, proving men’s reus continually proved to be problematic because of the historic inability to prove that an individual meant to commit a crime or act when it was against the law, but not seen yet as a crime .
Incorporating the common law definitions was essential to keeping the law functional and relevant, even where modern laws defer primarily to written statutes. And the fact that those statutes isolate policy decision from the judicial system does not change the importance of common law offenses. Indeed, offenses codified by statutes are more unwieldy than those provided by common law because common law could be refined and adapted over time by judges within the court system, particularly where stricter ethical and procedural standards are necessary.
Prosecutors and judges must take care to demonstrate how a conduct satisfies an existing common law definition, or must make an analogy between a common law offense and a statutory one, thereby ensuring that they understand the basis of the law as it has evolved historically in order to appropriately administer justice. For example, although the term felony appears throughout statutory law to define serious offenses, most statutes do not define the term. The historical significance of the offense therefore provides important context that aid in application of contemporary law.
Common Law Felonies: Issues and Critiques
The concept of common law felonies has been subject to significant criticism and challenge over the years, both for their vagueness and ambiguity, but also because they have largely not been the result of any codification process.
Critics argue that the reliance on common law felonies, many of which date back hundreds of years, are no longer applicable to modern times and raise causes of action without clear culpability. For example, in Massachusetts, the crime of "affray," defined as "[t]he fighting of two or more persons in a public place to the terror of the public," was wholly undefined in statutes until 1817, when it was included in the first state codes. Common law also became less relevant in light of the federalization of law after the 1873 Comstock Act prohibited the transport of certain materials from state to state, which had previously been promulgated under state law.
Common law felonies and related wrongful acts have also been criticized for being ambiguous and difficult to interpret. In the case of Commonwealth v. Nadworny, 225 Mass. 1 (1916), the Supreme Judicial Court of Massachusetts held that public exhibitionism was not a common law felony because it merely did "not appear in the horizon of American criminal law as a forbidden thing." It was thus spared from being a "new device for punishing the offender by a method not provided against by the perceived wrongs of the community or by the new laws which have replaced them."
Common law also has been criticized as being too broad and arbitrary in its application. For example, in Massachusetts, common law felonies include manslaughter, forgery, arson, robbery, prostitution, sodomy and treason. Whether or not such acts should be considered felonies is a matter of great debate.
Future Trends Concerning Common Law Felonies
The compendium of common law felonies has already all but vanished from use in the 21st century. Common law felonies persist, but only as they are adopted and aggregated into statutory laws. Even the states that still use a version of common law felonies (including Maryland), have done away with the need for juries to find that a crime is a felony (or not) because it theoretically makes no difference in terms of punishment. In Maryland, felonies are now differentiated from misdemeanors exclusively by their punishment , with the "felony/misdemeanor" status of an offense being relevant only to the extent it determines the maximum potential punishment.
In the future it’s possible that there will be a push for all remaining common law felonies to be replaced by statutory law. The criminal codes of numerous states have now taken on such complexity that they could easily be mistaken for alphabet soup (Illinois’ Criminal Code was rewritten in 2012, resulting in a now-21-109-pages-long codification document). This illustrates the problems with common law felonies; in a world where crimes must be referenced using increasingly-detailed codes and categorizations, a catch-all form of offense becomes more problematic than it ever has been. And that’s where the future of common law offenses is really important.