Thursday, November 15, 2018
Bastard. Idiot. Imbecile. Pauper. Felon. These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma. As legal designations, the terms marked persons for different sorts of membership in a political community. The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications. But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category. “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison. So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification. And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.
Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system. American law provides the felonry—the group of persons convicted of felonies—a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.
The felon should go the way of the bastard, into the dustbins of legal history. If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law. This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law. Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning. When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it. To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.