Do I Have to Serve Jail Time for a Misdemeanor Offense?


In the common law system of the United States, misdemeanor offenses are part of statutory criminal codes; in terms of severity, they fall between administrative offenses and felonies, which means that they may be punished with a term of incarceration in addition to probation and monetary fines. Even though they are considered to be criminal acts, not all misdemeanors will land defendants in jail.

For the most part, the maximum sentences associated with misdemeanors involve spending less than a year in a county jail, but the reality is that judicial systems in many jurisdictions prefer not to impose this type of punishment.

When it comes to misdemeanors, court systems observe statutes, levels, factors, sentencing guidelines, rules of procedure, jury findings, prosecutorial recommendations, and requests from defendants prior to dictating a jail sentence. Even when statutes call for a term of incarceration, judges can choose to reduce or suspend sentences, thereby keeping defendants out of jail.

Petty Misdemeanors

Relatively minor offenses such as shoplifting and disorderly conduct do not generally convey jail sentences. Even if there are aggravating factors that elevate the sentencing guidelines to a maximum of 90 days in a county jail, chances are that the incarceration term can be suspended because of external mitigating factors.

Gross Misdemeanors

The criminal codes in most jurisdictions feature jail terms for defendants convicted of gross or aggravated misdemeanors; however, this does not necessarily mean that the sentence will be imposed and enforced. In Washington State, for example, driving under the influence is a gross misdemeanor that could result in 364 days in jail, but rarely will defendants end up behind bars for a first offense. In Florida, a state where DUI offenses are not technically misdemeanors but still carry a jail sentence, judges will suspend jail sentences for cases that do not involve injury or property damage.

In North Carolina, aggravated misdemeanors may result in what is known as active sentences, which consist of jail terms up to a year. In some cases, judges may not be able to reduce active sentences if the offense involved assault with a weapon and the defendant has a prior conviction. Sexual battery is an example of an aggravating factor that often requires active sentences to be carried out.

Alternative Resolution and Sentencing

As the situation stands in 2018, the American prison system is overcrowded and overburdened; if all defendants convicted of misdemeanors were expected to serve jail sentences, the system would collapse and create a highly detrimental situation for society.

Criminal defense attorneys will always seek the best outcome for clients charged with misdemeanors, and this may include persuading the court to consider alternative sentencing options. For example, a woman convicted of misdemeanor cannabis possession may be convicted to probation and community service in lieu of a jail sentence.

Alternative resolutions may also involve presenting mitigating factors and negotiating with prosecutors for the purpose of reducing charges to a lesser misdemeanor level that does not call for a jail sentence. One of the goals in this regard is to lessen the burden of the prison system.