- In the United States, a felony is a crime that carries a potential punishment of at least one year imprisonment. Currently, 35 states have statutes authorizing the use of the death penalty as a punishment for homicide. In order for a felony to be a capital felony, the charge must be indicted by a grand jury as a capital felony. In these states, all felonies not indicted as a capital felony are non-capital felonies. In the remaining 15 states and the District of Columbia, all felonies are non-capital felonies.
- In all states, non-capital felonies encompass a broad range of criminal activity. While state laws can vary greatly, possession of any amount of most controlled substances, possession of marijuana or cocaine above a certain amount or the distribution of controlled substances constitutes a non-capital felony. Serious assaults, including assaults with a weapon, constitute a non-capital felony. Most property crimes such as larceny, burglary, forgery and fraud are also non-capital felonies, as are almost all instances of sexual assault. Homicide crimes where the state does not seek the death penalty are also non-capital felonies.
- Unlike a misdemeanor case, the United States Constitution guarantees the right of all individuals charged with a felony the right to a jury trial. However, the process for choosing a jury in a non-capital felony case is significantly less extensive than choosing a jury for a capital case, in which jurors must be found who are willing to impose the death penalty but not automatically do so. There are also additional post-conviction review procedures available to individuals sentenced to the death penalty that are not available to those sentenced to a non-capital felony, including those who have received a life sentence.
- The punishment for a non-capital felony can vary greatly, depending on the severity of the crime and the prior criminal record of the defendant. For individuals with a light prior record who are found guilty of felony drug possession, a probationary sentence or an active sentence of less than one year is frequently used. On the other hand, a person convicted of murder or attempted murder will often receive life without the possibility of parole, regardless of the person's prior criminal record. All states assign a range of permissible sentences to non-capital felonies, depending on the severity of the crime and the defendant's prior record.
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