Embezzlement: Penalties and Sentencing

Embezzlement is a type of theft. It occurs when someone who was entrusted to manage or monitor someone else's money or property steals all or part of that money or property for the taker's personal gain.

What Is the Definition of Embezzlement?

Embezzlement involves stealing by a defendant who has legal access to another's money or property but not legal ownership of it. This differs from theft where the defendant has neither legal access nor ownership over the stolen property (like stealing someone's car out of their garage).

Embezzlement: Theft-Plus Crime

Taking the money or property for the defendant's own gain is stealing. When you combine stealing and violating a special position of trust, you have the unique crime of embezzlement. Some states have a separate crime of embezzlement, while others categorize it as a type of theft.

Special Position of Trust

Embezzlement can occur in a variety of circumstances. The following are examples of people in special positions of trust over another's property or money:

• a bank teller who has legal access to client money
• officers and employees in charge of company funds
• family members who are caring for a relative and have access to the relative's financial accounts to pay bills, or
• professionals, like lawyers or board members, who handle client or investor money.

What Are the Penalties for Embezzlement?

A conviction for embezzlement usually results in a fine, imprisonment, restitution, or all three. Each state has its own penalty scheme that often depends on the value or type of property embezzled and whether aggravating factors were involved (such as stealing from an elderly adult).

Misdemeanor or felony. Generally, the greater the loss is, the higher the penalty will be. For instance, embezzling $1,000 might be a misdemeanor offense and any amount above that increases the penalty to a felony. A misdemeanor-level offense can also bump up to a felony if, for example, the item was a firearm or vehicle (regardless of value) or the defendant embezzled from a vulnerable adult.

Restitution. Many states also require defendants to pay restitution to their victim(s). This usually involves repaying the victim for the monetary value of the money or property embezzled. When applicable, restitution is most often in addition to the applicable fines and prison time.

Penalties Based on Property Value

Most states punish embezzlement convictions according to the value of the money or property stolen. Typically, a state will list monetary value ranges (for example "property worth less than $500") and corresponding fines and jail or prison sentences for each range.

Penalties Based on Property Type

Some states also list types of property that (regardless of value) incur specific fines and prison terms. For example, because it is a precursor ingredient in making methamphetamine, many states specify harsh penalties for stealing anhydrous ammonia, regardless of the amount or value stolen. Other types of property often singled out for harsher penalties include firearms, livestock, property stolen during an emergency or natural disaster, or public records.

Penalties When Aggravating Factors Are Involved

Many states impose harsher penalties when the defendant embezzled from a specially protected class of victims (such as elderly or disabled adults), or when the defendant had a heightened level of trust with the victim (such as when the defendant is a public servant or bank or insurance company employee).

Vulnerable adults. Arizona law, for example, specifies that a person caring for a "vulnerable adult" (someone elderly or disabled) is in a special position of trust. Because of this heightened position of trust, Arizona law seeks to protect vulnerable adults by deeming any transfer of money or property to the caretaker without adequate consideration (paying a fair market value) as giving rise to an inference that the caretaker intended to deprive the vulnerable adult of the money or property. This extra layer of protection makes it easier for the prosecutor to prove that the defendant embezzled from the vulnerable adult.

Public servants. Alabama provides another example of the way aggravating factors can impose harsher consequences than the otherwise applicable. In Alabama, a public servant convicted of embezzling public funds not only faces fines and imprisonment but also is permanently ineligible to hold any public office.

Many states have similar laws protecting special classes of victims or imposing harsher penalties on special classes of defendants.

What Is a Common Scheme or Plan of Embezzlement?

Many states allow the judge to aggregate (combine) the total worth of the money or property stolen when a defendant embezzles as part of a common plan or scheme. Some states allow the judge to aggregate the value over a specific time period (such as 12 months), while other states do not impose any time period—for example, when the embezzlement involved only one victim.

In these states, the defendant will be charged and sentenced depending on the total worth of the money or property stolen. This allows the prosecutor to charge the defendant with one embezzlement crime (and the judge to impose one sentence), rather than bring to trial many small embezzlement crimes. This tactic is also helpful when the amounts embezzled were very small and occurred over a long period of time. For example, suppose a defendant stole ten dollars each day from his employer's cash register. The total amount embezzled would add up to close to $4,000 over a year or more. Prosecuting the total amount would be more reasonable than trying the defendant for 365 or more small embezzlement crimes of ten dollars each.

Consult an Attorney

If you face embezzlement charges, consult a criminal defense attorney as soon as possible. A lawyer can help guide you through the complex criminal justice system, protect your rights, and zealously defend your case.