Legislative, executive, and judicial branches all have a role to play in this important determination. The primary responsibility falls with the legislative branch, as the legislature classifies certain offenses as either felonies or misdemeanors. The legislature—at the federal, state or local level—may set penalties for certain offenses. Thus, the crime of murder is a felony established by law. However, a law may provide a range of penalties for certain conduct—such as possession of marijuana—that may constitute either a felony or a misdemeanor.

However, the executive and judicial branches still have a role in what offense a person is charged and/or convicted. For example, a prosecutor—a member of the executive branch—often has the discretion to determine whether certain conduct should be prosecuted as a felony or misdemeanor. This is referred to as prosecutorial discretion. Oftentimes, a criminal defendant’s attorney may bargain with the prosecutor’s office—a process called plea bargaining—in an attempt to have the defendant plead guilty to a misdemeanor rather than a felony.

The judicial branch also has a role to play in whether a defendant is sentenced to a felony or misdemeanor. The jury will decide whether a defendant’s conduct fits into one crime or another, while the judge often will impose a sentence pursuant to the jury’s findings.