Identity theft affects millions of Americans each year, and the legal consequences can be severe. Whether a case is prosecuted as a felony or misdemeanor depends on several factors, including the amount of personal information stolen and the number of victims involved.
At Hays Cauley, P.C., we help South Carolina residents understand their rights when facing identity theft charges or recovering from becoming a victim. This guide breaks down the laws, penalties, and steps you can take to protect yourself.
Identity Theft Laws in South Carolina and Federally, Serving South Carolina, including Greenville, Columbia and Charleston
Identity theft qualifies as a felony in South Carolina under SC Code § 16-13-510 and federally under 18 U.S.C. § 1028. This classification matters because it means you face serious prison time, not just a fine. South Carolina treats financial identity fraud-using someone’s personal information to access their money, credit cards, or bank accounts-as a felony with penalties reaching up to 10 years in prison. The state also criminalizes identity fraud, which involves using another person’s information to obtain employment or avoid law enforcement identification. Federally, the Identity Theft and Assumption Deterrence Act creates even harsher penalties. If you knowingly transfer or use someone else’s identifying information to commit any unlawful activity, you face up to 15 years in prison. If the identity theft offense qualifies as aggravated under 18 U.S.C. § 1028A-meaning you committed it during and in relation to another felony-the mandatory minimum sentence jumps to two years. In FY2016, the U.S. Sentencing Commission found that 53.4% of identity theft offenders were convicted under the aggravated identity theft statute, and those offenders averaged 51 months in prison, more than double the 22-month average for non-aggravated identity theft offenses.
What counts as personal identifying information
South Carolina law defines personal identifying information broadly to include Social Security numbers, driver’s license numbers, checking and savings account numbers, credit and debit card numbers, PINs, and any other numbers, passwords, or information that can access financial resources or government-issued identifiers. Federal law includes identification documents like government-issued IDs, authentication features such as holograms or watermarks, and document-making implements like computer files or software configured to produce fake IDs. The law punishes using this information to access resources or commit fraud, not merely possessing it. If you transfer, produce, or possess five or more identification documents that are not lawfully issued, that alone constitutes a federal felony. The statute applies even if the acts occur outside South Carolina-prosecutors can pursue charges in the county where the victim lived when the information was obtained or used.
How intent shapes your criminal liability
Prosecutors must prove you acted without authorization and with intent to defraud or unlawfully obtain resources. This intent requirement separates identity theft from accidentally using wrong information. If you face conviction under the aggravated identity theft statute, the mandatory minimum applies only if you knowingly transferred, possessed, or used someone else’s identifying information during and in relation to an enumerated felony. In FY2016, 88.7% of aggravated identity theft offenders also faced conviction on at least one other felony offense, meaning they carried stacked charges that increased total sentence length. Courts can order concurrent sentences (multiple convictions run at the same time) or consecutive sentences (convictions run one after another). Among offenders with multiple aggravated identity theft counts in FY2016, 89.6% received concurrent sentences, but those offenders still averaged 74 months compared to 48 months for single-count offenders.
Sentencing disparities across racial groups
The data reveals significant disparities in how aggravated identity theft charges affect different populations. In FY2016, 58.7% of aggravated identity theft offenders were Black, while Black offenders represented 49.8% of identity theft offenders overall. Among Black identity theft offenders, 63.1% faced conviction under the aggravated statute, a higher rate than White (47.8%), Other Race (42.0%), and Hispanic (41.1%) offenders. Black offenders convicted under the aggravated statute also showed the highest rate of multiple count convictions at 58.5%. These disparities highlight how charging decisions and prosecutorial discretion can produce vastly different outcomes based on race.
Understanding these federal and state laws sets the foundation for recognizing what factors prosecutors use to determine whether charges will be filed as a felony and what sentences you might face if convicted.
What Prosecutors Look For When Charging Identity Theft as a Felony
Volume and Type of Information Stolen
The difference between a felony conviction and a misdemeanor often hinges on factors that prosecutors carefully examine before deciding how to charge. The volume and type of personal information stolen matters significantly. Stealing a single Social Security number differs substantially from stealing five credit card numbers, bank account details, and driver’s license information. Federal law makes this explicit: possessing five or more identification documents that are not lawfully issued automatically constitutes a felony. South Carolina prosecutors similarly weigh whether the stolen information accessed financial resources directly. If someone used your information to drain a savings account versus attempting to open a credit card, the prosecution will treat these differently. The amount of money involved also shapes charging decisions. Prosecutors typically pursue felony charges when financial losses exceed certain thresholds, though exact amounts vary by jurisdiction and case circumstances.
Multiple Victims and Stacked Charges
The number of victims involved dramatically increases felony exposure. Someone who targets a single victim faces different charges than someone running an operation against ten victims. Federal sentencing data from FY2016 shows that among offenders convicted of multiple aggravated identity theft counts, sentences jumped to an average of 74 months compared to 48 months for single-count offenders. This illustrates how prosecutors stack charges when multiple victims exist.
Intent and Authorization
Intent separates accidental misuse from criminal identity theft. Prosecutors must prove you knowingly used someone else’s information without authorization and with intent to defraud or unlawfully obtain resources. This distinction matters because it determines whether charges stick at all. Your prior criminal history functions as a sentencing multiplier, not just a charging consideration. Someone with a clean record and a first-time identity theft offense faces different pressure from prosecutors than someone with prior convictions. Federal data reveals that prior criminal history influences both the decision to charge under the aggravated identity theft statute and the ultimate sentence length.
Connection to Other Felonies
Whether your identity theft occurred during and in relation to another felony triggers the mandatory two-year minimum under 18 U.S.C. § 1028A. If you stole someone’s information while committing drug trafficking, a crime of violence, or another enumerated felony, prosecutors will pursue the aggravated charge. This nexus between identity theft and underlying felonies explains why 88.7% of aggravated identity theft offenders faced additional felony convictions. The charging decision ultimately reflects prosecutorial discretion, which varies across jurisdictions and individual prosecutors. This discretion creates real consequences for defendants facing similar conduct but receiving vastly different treatment based on how prosecutors evaluate these factors. Understanding how prosecutors weigh these elements helps explain why some identity theft cases result in misdemeanor charges while others carry felony convictions with mandatory minimums.
What Happens After an Identity Theft Conviction
A federal identity theft conviction under 18 U.S.C. § 1028 carries up to 15 years in prison, while aggravated identity theft under § 1028A mandates a minimum of two years. In FY2016, the U.S. Sentencing Commission reported that offenders convicted under § 1028A averaged 51 months in prison-more than double the 22-month average for non-aggravated identity theft cases. South Carolina adds another layer: financial identity fraud convictions under SC Code § 16-13-510 reach up to 10 years in prison.
Prison Time and Financial Penalties
Courts impose fines and order restitution to victims alongside incarceration. Restitution under South Carolina law requires you to repay the exact financial losses victims suffered, whether that means restoring drained bank accounts, covering fraudulent charges, or compensating for credit damage and recovery costs. The federal government treats restitution as a separate obligation from fines, not a replacement. If you stole $50,000 from three victims, you owe that $150,000 back regardless of your prison sentence or fine amount. Courts rarely waive restitution, and victims can pursue collection for years after your release. The mandatory minimum nature of aggravated identity theft sentences means judges have almost no discretion to reduce your time; even first-time offenders with sympathetic circumstances receive the full two-year minimum when the statute applies.
Employment and Professional Barriers
A felony conviction creates permanent barriers to employment because most employers conduct background checks and exclude candidates with identity theft convictions from positions that handle customer data, financial information, or sensitive records. Professional licenses in finance, real estate, healthcare, and law face suspension or permanent revocation. You lose voting rights in some states, cannot serve on juries, and face restrictions on gun ownership.
Housing and Financial Consequences
Housing becomes difficult-landlords routinely deny applications from people with felony convictions, forcing you into limited rental markets or requiring co-signers. Travel outside the United States becomes complicated because many countries deny entry to people with felony convictions. A conviction damages your credit score beyond the immediate fraud impact; lenders view you as high-risk and charge higher interest rates or deny credit entirely.
Long-Term Impact Beyond Release
The collateral consequences often outlast the prison sentence itself. Someone released after two years of aggravated identity theft still carries the conviction for life, affecting every job application, housing search, and financial transaction that requires a background check. This permanent mark explains why identity theft prosecutions carry such weight in criminal justice outcomes. The conviction follows you through decades of employment attempts, rental applications, and financial decisions (loan approvals, credit card applications, mortgage qualification). Unlike a prison sentence that ends, a felony record remains accessible to employers, landlords, and creditors indefinitely. The financial toll compounds over time as higher interest rates and denied credit accumulate across years of transactions.
Final Thoughts
If you become a victim of identity theft, act immediately to limit the damage. Contact the companies where fraud occurred and ask them to close or freeze affected accounts, then change your logins, passwords, and PINs for all compromised accounts. Place a fraud alert with one of the three credit bureaus-Experian, TransUnion, or Equifax-at no cost; that single alert reaches all three bureaus and makes it harder for someone to open new accounts in your name.
Obtain your free credit reports via annualcreditreport.com or by calling 1-877-322-8228, then review them for unfamiliar accounts or transactions.
Report the theft to the FTC at IdentityTheft.gov, which creates a personalized Identity Theft Report and recovery plan for your situation. Filing a police report is optional but helpful; bring your FTC Identity Theft Report, government-issued photo ID, proof of address, and supporting documents, then obtain a copy of the report for your records. Credit monitoring services help you track changes and catch fraud early, though free alternatives exist through the credit bureaus themselves.
We at Hays Cauley, P.C. understand that identity theft creates stress beyond the immediate financial loss. Whether you need help understanding whether identity theft is a felony in your case or navigating recovery after becoming a victim, we provide the support you need. Contact us to learn how we can assist with your situation.