Identity Theft Charges and Penalties

Being accused of identity theft crimes is overwhelming and frightening. Understanding the charges against you, the potential penalties you face, and your defense options is critical to protecting your future.

In this article, we’ll explain what actions can lead to an identity theft charge, who prosecutes these cases, and the potential penalties for a conviction. If you are facing identity theft charges, contact a criminal law attorney in your area. They can explain how state and federal law might apply to your unique case and help protect your constitutional rights.

Elements of Identity Theft

To convict someone of identity theft, prosecutors must prove specific elements beyond a reasonable doubt. While the exact requirements vary by state and whether charges are brought under state or federal law, most identity theft cases share common elements. Let’s examine each of them.

Unauthorized Possession or Use of Personal Information

The prosecution must show that you obtained, possessed, transferred, or used another person’s identifying information without their permission. Personal identifying information often includes:

• Social Security numbers
• Driver’s license numbers
• Bank account or credit card numbers
• Passwords or PINs
• Biometric data (fingerprints, facial recognition data)
• Government-issued identification documents
• Birth certificates or other official documents

If you have a legitimate reason for possessing someone’s private information, such as it being part of your job, it might be a viable defense against the charges.

Knowledge and Intent

One of the most critical elements is intent. Prosecutors must prove you knowingly and willfully used someone else’s information. This means you were aware the information belonged to another person and you intended to use it for an unlawful purpose.

The specific mental state required can vary from one jurisdiction to another. States might use different terms, such as knowingly, willfully, or intentionally. Regardless, the prosecution must prove some form of criminal intent.

In light of this, accidental use of information or mistaken identity may serve as a defense. For example, if you genuinely believed you had authorization to use the information, you may not have the required criminal intent.

Fraudulent or Unlawful Purpose

The prosecution must also demonstrate that you intended to use the personal information to commit fraud or another unlawful act. This often includes obtaining or attempting to obtain:

• Money, credit, goods, or services
• Employment or government benefits
• Access to financial accounts
• False identification documents

Possessing another person’s information without authorization may not be enough for a conviction if there’s no evidence of intent to commit fraud or another crime. However, some states also have separate crimes for mere possession of identifying information under certain circumstances, such as possessing multiple people’s information or possessing devices used to create fake IDs.

Understanding these elements is essential, as the prosecution bears the burden of proving each one of them. If they fail to establish all elements beyond a reasonable doubt, you may have a valid defense. A criminal defense attorney can evaluate whether the evidence against you supports each required element and identify weaknesses in the prosecution’s case.

Is Identity Theft a Felony or Misdemeanor?

Whether prosecutors charge identity theft as a felony or a misdemeanor often depends on several factors. The distinction matters, as felony convictions carry harsher penalties compared to misdemeanors. It could have longer-lasting consequences that affect your employment and civil rights.

For most states, the severity of the charges depends on the value of the losses or property obtained. The dollar threshold varies in each state.

Let’s look at some examples:

• In Pennsylvania, identity theft involving less than $2,000 is a first-degree misdemeanor. However, if the alleged losses exceed $2,000, prosecutors can escalate the charges to a third-degree felony. This means you could face up to seven years in prison instead of the maximum five years for a misdemeanor.
• Missouri law follows a similar structure. The penalties imposed for identity theft also increase based on dollar amounts. The charges range from a Class A misdemeanor for losses not exceeding $750 to a Class B felony for losses exceeding $75,000. A Class B felony in Missouri carries a potential sentence of five to 15 years in prison.
• Virginia law makes most identity fraud violations a Class 1 misdemeanor. However, the state elevates charges to a Class 6 felony if the financial losses exceed $1,000. It is also a Class 6 felony if you used information obtained to obtain credit, goods, or services.

Some states impose felony charges for identity theft, regardless of the amount involved. In North Carolina, the state’s general statute classifies identity theft as a Class G felony. It carries a maximum prison sentence of 47 months, or approximately three years and 11 months.

If aggravating circumstances are present, the penalties increase in most jurisdictions. Some of the aggravating circumstances for identity theft include instances where the defendant committed the offense against vulnerable populations, such as elderly or disabled individuals. In this case, prosecutors are likely to pursue more severe charges. Repeat offenses can also result in felony charges.

Is Identity Theft a Federal Crime?

Federal identity theft can be prosecuted as a federal crime under specific circumstances. Congress made identity theft a federal offense through the Identity Theft and Assumption Deterrence Act of 1998.

Under the Act, it is a federal crime to knowingly transfer or use someone else’s means of identification without permission and with the intent to commit an unlawful act. This applies regardless of whether the underlying crime violates federal law or is a felony under state or other local laws. Federal prosecutors often pursue cases involving interstate activity, substantial financial losses, or those connected to other federal crimes.

Aggravated Identity Theft

In 2004, the Identity Theft Penalty Enhancement Act created aggravated identity theft charges. You may face aggravated identity theft charges if you are accused of knowingly transferring, possessing, or using another person’s identification. This must occur during and in relation to the commission of certain felonies, including:

• Theft of public money, property, or rewards
• Theft or embezzlement by bank officers or employees
• Theft from employee benefit plans
• False personation of citizenship
• False statements in connection with the acquisition of a firearm
• Fraud and false statements
• Mail fraud, bank fraud, and wire fraud
• Nationality and citizenship violations
• Passport and visa violations
• Obtaining customer information by false pretenses under the Gramm-Leach-Bliley Act
• Willfully failing to leave the United States after deportation and creating a counterfeit alien registration card
• Various immigration offenses
• False statements relating to Social Security programs

Other crimes may qualify as well.

What Are the Potential Sentences for Identity Theft?

If convicted, the potential sentences for identity theft vary. The sentence depends on whether you were convicted under state or federal statutes. The severity of the offense and your criminal history may also affect the penalties imposed.

Federal Sentencing

Under federal law, convictions for identity theft carry severe penalties. The penalties typically depend on the circumstances of the case. The table below outlines possible sentences for different types of cases:

Note that for aggravated identity theft, those convicted must serve the criminal charges consecutively. This means serving the sentence after completing the prison term you receive for the underlying felony. Aggravated identity theft carries a mandatory minimum sentence of two years, or five years if the offense is related to terrorism. For example, if a court found you guilty of wire fraud and imposed a three-year prison sentence, the addition of identity theft would add two years to the prison sentence.

If you are unsure about how identity theft aggravates the existing criminal charge filed against you, consult a criminal defense attorney. They can provide you with legal advice tailored to your case.

State Sentencing

State penalties vary. Misdemeanor convictions generally carry a sentence of up to one year in county jail and fines ranging from $1,000 to $5,000. Felony convictions carry prison sentences ranging from two to 20 years and substantial fines often above $10,000.

Your sentence depends on several factors, which include the amount of financial loss and whether you targeted vulnerable victims. Your criminal history also plays a role, as does whether you accept responsibility.

Who Prosecutes Identity Theft?

Several government agencies are involved in investigating and prosecuting identity theft crimes. These agencies include the:

• Federal Bureau of Investigation (FBI)
• Federal Trade Commission (FTC)
• Secret Service
• Postal Inspection Service
• Internal Revenue Service (IRS)
• Department of Justice (DOJ)

The FTC, in particular, helps coordinate investigations for victims of identity theft. The FTC provides consumer protection resources to law enforcement, consumers, and businesses. It also offers guidance on protecting against identity theft.

Despite the increased focus from federal agencies, the vast majority of these crimes are prosecuted by state and local law enforcement agencies according to the laws of their respective states. During a criminal investigation, prosecutors may also pursue other charges related to identity theft, such as credit card fraud, fraudulent use of personal identification information, wire fraud, or computer crimes.

Seek Legal Help With Your Identity Theft Case

Identity theft charges carry serious penalties that can affect your life for years to come. Whether you’re accused of state or federal charges, the consequences of a conviction extend beyond prison time.

If you’re facing identity theft charges, contact a criminal defense attorney in your area. They can assess the evidence against you and identify weaknesses in the prosecution’s case. They can negotiate with prosecutors for reduced charges or alternative sentencing. If necessary, they can also represent you in court for defense at trial.