Is Identity Theft a Misdemeanor or a Felony?

Identity theft can be charged as either a misdemeanor or a felony, and the classification turns on how much money was involved, what kind of personal information was taken, who the victim was, and whether state or federal prosecutors bring the case. Under federal law, penalties run from up to one year in prison for the lowest-level offenses to 30 years when the theft is tied to terrorism. Most states set their own dollar thresholds for when the charge crosses from misdemeanor to felony, and a handful treat every identity theft offense as a felony no matter the amount.

When It Stays a Misdemeanor

Identity theft tends to stay in misdemeanor territory when the loss is small and the conduct is simple. Someone using another person’s name to open a low-balance utility account, or making a single fraudulent purchase worth a couple hundred dollars, is the kind of case that lacks the scale, planning, or targeting that pushes charges higher.

At the federal level, 18 U.S.C. § 1028 contains a catch-all provision for identity-related fraud that doesn’t fit any of the more serious categories, punishable by up to one year in prison and a fine.1Office of the Law Revision Counsel. 18 USC 1028 – Fraud and Related Activity in Connection With Identification Documents, Authentication Features, and Information That one-year ceiling is the federal dividing line between misdemeanor-level and felony-level treatment.

State thresholds vary a lot. Some set the misdemeanor ceiling at $300, others at $1,000 or $2,000, and some classify all identity theft as a felony from the first dollar. State misdemeanor convictions generally carry up to a year in county jail and fines ranging from roughly $1,000 to $5,000, with the exact numbers depending on the jurisdiction.

What Pushes the Charge to a Felony

Several factors elevate identity theft from a misdemeanor to a felony, and in real cases they often overlap.

  • Dollar amount. The most common trigger. Every state and the federal system set thresholds at which the offense becomes more serious. Under federal law, identity theft producing $1,000 or more in value during any one-year period can carry up to 15 years.1Office of the Law Revision Counsel. 18 USC 1028 – Fraud and Related Activity in Connection With Identification Documents, Authentication Features, and Information
  • Type of information stolen. Taking government-issued identification numbers, Social Security numbers, or medical records often triggers felony charges even at lower dollar amounts. Producing or transferring fake government IDs, birth certificates, or driver’s licenses falls into the 15-year federal felony tier.
  • Vulnerable victims. Targeting minors, the elderly, or people with disabilities is a separate aggravating factor in many states that bumps the offense to a higher felony class.
  • Scale and sophistication. Schemes involving multiple victims, organized networks, or significant planning are almost always charged as felonies. Prosecutors often stack counts, one per victim, which multiplies the potential sentence.
  • Connection to other crimes. Identity theft committed to support drug trafficking, violent crime, or terrorism triggers the harshest penalties under both state and federal law.

Federal Penalty Tiers Under 18 U.S.C. § 1028

The main federal identity theft statute sets a ladder of increasingly severe maximum sentences. Which tier applies depends on what the defendant did and why.

Every tier also carries a fine. The statute says only “a fine under this title” without specifying an amount, so the default federal fine schedule applies: up to $250,000 for an individual and up to $500,000 for an organization.2Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine Courts can also order forfeiture of any personal property used to commit the offense.

Aggravated Identity Theft Adds Mandatory Prison Time

A separate statute, 18 U.S.C. § 1028A, creates a charge called aggravated identity theft. It applies when someone uses another person’s identifying information during certain federal felonies, including fraud, immigration violations, and theft of government funds. The prison time attached to this charge is mandatory, and it runs on top of whatever sentence the underlying felony carries.

These sentences must run consecutively, stacking after the sentence for the underlying crime is served. A court cannot reduce the underlying sentence to offset the add-on, and probation is not an option for the aggravated identity theft portion.3Office of the Law Revision Counsel. 18 USC 1028A – Aggravated Identity Theft A defendant convicted of wire fraud and aggravated identity theft faces the wire fraud sentence plus an automatic two-year add-on with no judicial discretion to shorten it.

State Charges vs. Federal Charges

Identity theft is illegal under both state and federal law, and which level handles a given case depends mostly on how large and how geographically spread the conduct is. State prosecutors typically handle localized incidents: credit card fraud within one state, unauthorized access to a single person’s accounts, or a one-time fraudulent purchase.

Federal agencies like the FBI and U.S. Secret Service step in when the theft crosses state lines, involves federal programs like Social Security or Medicare, uses the U.S. mail system, or targets financial institutions. Large-scale operations and organized rings almost always end up in federal court, where the penalties are steeper and the sentencing guidelines less forgiving.

A defendant can technically face prosecution by both state and federal authorities for the same conduct. Under the dual sovereignty doctrine, the state and federal governments are treated as separate sovereigns with independent authority to enforce their own laws, so double jeopardy does not bar a federal prosecution after a state conviction or the reverse.4Constitution Annotated, Congress.gov. Dual Sovereignty Doctrine In practice, overlapping prosecutions are uncommon because prosecutors coordinate, but the legal possibility is real.

Consequences That Follow a Felony Conviction

The sentence and fine are only the start. A felony identity theft conviction creates problems that often outlast the case itself.

For non-citizens, the consequences can be especially severe. Federal immigration law classifies fraud or deceit offenses with losses exceeding $10,000 as aggravated felonies, which trigger mandatory deportation with almost no relief available.5Legal Information Institute. 8 USC 1101(a)(43) – Aggravated Felony Even convictions below that dollar threshold can qualify as crimes involving moral turpitude, since any crime with an intent-to-defraud element generally falls into that category. That can make a non-citizen deportable if the conviction occurs within five years of entry and carries a sentence of one year or more.6U.S. Department of Justice. Criminal Resource Manual 1934 – Appendix D, Grounds for Judicial Deportation

For anyone, a felony identity theft conviction makes background checks a recurring obstacle. Employers in finance, healthcare, government, and education routinely disqualify applicants with fraud-related felonies. Professional licenses in fields like law, accounting, and real estate can be denied or revoked. Landlords screen for felony convictions, and some federal benefits programs restrict eligibility. In states that revoke voting rights for felony convictions, identity theft can cost you the ballot too.

Beyond prison and fines, courts routinely order restitution. In federal court, a convicted defendant can be required to reimburse victims for direct financial losses including stolen money, lost income, property damage, and counseling expenses, as well as the time victims spend repairing the damage.7Department of Justice. Restitution Process

Defenses That Can Change the Outcome

Identity theft is an intent crime. Prosecutors must prove the defendant knowingly used someone else’s information for a fraudulent purpose, and that requirement opens several legitimate defenses.

  • No criminal intent. The most common defense. If you used someone’s information without knowing it belonged to another person, or genuinely believed you had the right to use it, the intent element may not be met. This comes up in shared household situations where family members use each other’s accounts without clear boundaries.
  • Authorization. If the other person gave permission, there is no theft. Written agreements, emails, or text messages showing consent can be powerful evidence. The catch is that permission for one use doesn’t extend to others: permission to use a spouse’s credit card for groceries isn’t permission to open new accounts.
  • Mistake of fact. A reasonable factual mistake that negates the required mental state can be a defense. If you believed information was your own because of a clerical error or data mix-up, that mistaken belief could undermine the case.
  • Insufficient evidence. Prosecutors must connect the defendant to the actual use of stolen information. In cases involving data breaches or shared computers, proving who specifically used the data can be difficult. Possession of someone’s personal information alone isn’t always enough. The government has to show you actually used or intended to use it fraudulently.

None of these guarantee an acquittal, but they explain why the specific facts of a case matter so much to how it ends. A charge is not a conviction, and whether identity theft is ultimately treated as a misdemeanor or a felony — or dismissed entirely — often comes down to details that only surface once a defense attorney digs into the record.