Misdemeanors vs. Felonies

Misdemeanors vs. Felonies

Broadly speaking, the difference between a felony and a misdemeanor is determined by the “seriousness” of the crime. Under common law during and prior to the 18th century, the distinction had a great deal to do with whether punishment for the crime involved forfeiture of property, liberty, or in extreme cases, the life of the convicted.

Misdemeanors, on the other hand, are less serious crimes. They are variously described as “petty” crimes or summary offenses. One of the key similarities between most misdemeanors is the common practice of punishment by fine as opposed to imprisonment. Misdemeanor charges are also sometimes brought as a substitute for a more serious charge as an act of leniency for a first offense.  If the individual is charged with a felony, the individual is often subject to imprisonment, and therefore bail.


Under the Fifth Amendment to the Constitution, “infamous” or “capital” crimes may not be prosecuted absent a “presentment or indictment of a Grand Jury.” This provision served as the original barrier between what was considered a felony and what was a misdemeanor. The word “infamous” was often interpreted as a synonym for “serious,” and as part of the Bill of Rights, it compelled the state to produce an indictment before prosecuting anyone for the equivalent of a felony crime.

The purpose of the Grand Jury was to act as a check against the prosecutorial and judicial powers of the state. A malicious prosecutor, for example, would be powerless to charge someone with a crime unless he or she could persuade the Grand Jury there was sufficient evidence to sustain a conviction. This was often too high a bar for cases to clear, and it helped to prevent many illegitimate charges from being filed.

Disorderly Conduct

All other crimes, for most intents and purposes, could be categorized as “disorderly acts,” which could also be considered a euphemism for the word misdemeanor in the first place. Most such crimes were charged and adjudicated on a summary basis, meaning trials were rare, and the need for a formal prosecution of the accused wasn’t called for like it was in the event of a felony charge.

In many jurisdictions, there are even less serious “crimes” called infractions which are almost universally handled by issuing a citation to an individual and requiring them to post bail subject to forfeiture if they choose not to contest the ticket.

Personal Guarantee of Appearance

Bail has a long history in Western Civilization. Its foundations go all the way back to the Magna Carta and it has been developed and refined for nearly 1000 years in the English Common Law. The purpose of bail is to guarantee the appearance of the accused at trial.

Making certain a criminal defendant shows up for trial is one of the most important functions of a criminal court. Without the ability to compel the accused to stand trial, the entire concept of prosecution of a criminal offense is brought into question.

Bail very often involves something called a “surety.” This is most often invoked when a third party posts bail for the accused. That third party then has a surety interest in the accused appearing for trial. If they fail to meet that legal obligation, then bail can be forfeited and the third party is required to deliver the accused in order to recover the property pledged for bail.

By and large, felony charges require bail if the accused wishes to be released pending trial. Misdemeanor charges often do not, largely because of their nature as “summary charges” which are often adjudicated without trial and sometimes without even an appearance by the accused before a court.

Bail is generally set at the first hearing of the criminal charge, which is called an “arraignment.” At this hearing, the accused is asked to enter a plea. If they plead “not guilty,” then the prosecution and defense will both have the opportunity to petition the court before bail is set.

Most criminal defendants are granted the opportunity to have a bondsman post bail on their behalf. This generally involves payment of a percentage of the value of the bond by the defendant, and the bail bond company posting the balance. The bondsman must then guarantee the defendant’s appearance at trial or they can forfeit the value of the bond.

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