Legally, first-degree murder/felony murder refers to the premeditated killing of a human being. Second-degree murder refers to unplanned intentional killings, whereas third-degree murder/Manslaughter is unintentional/unplanned killing of a human. There are many grey areas between these, but typically it comes down to proving intent.
- Murder in the first degree is a capital offence. Often meaning life in prison or execution.
- State law determines the difference between first-, second- and third-degree murder.
- A pattern of domestic abuse leading to death constitutes first degree murder in some states.
- Murder in the third degree only exists in three states. Involuntary manslaughter is a much more common charge.
- There is no statute of limitations on murder.
- The “slayer rule” disqualifies a murderer from inheriting property from the deceased.
- Not all states use the terms first, second, or third-degree murders. Some use murder in the first, second, or third-degree or other variations.
Degrees of murder explained: What are the 3 degrees of murders in the US?
As mentioned in detail in a previous post, the difference between murder and homicide is that the latter can be justifiable, whereas the former refers to unjustifiable killings. Consequently, murder and manslaughter are criminal offenses that fall under the category of “unlawful/unjustifiable killing.”
Unlawful killings in all states fall into three categories; first-degree murder, second-degree murder, and third-degree murder.
What does first-degree murder mean?
Minnesota statute section 609.185 “murder in the first degree” defines first-degree murder as, quote:
“A person is guilty of murder in the first degree if the individual causes the death of a human being with premeditation and with intent to effect the death of the person”
What that means is you are guilty of murder in the first degree if you create a plan of action with “malice aforethought” intended to end the life of another. Note that conspiring to murder someone and committing the murder are separate offenses. That means you will face serious felony charges even if the plan to murder someone is unsuccessful.
In almost all states, you are also guilty of first-degree murder if:
- You cause the death of a human while attempting or committing criminal sexual conduct using force or violence.
- Cause the death of another with intent while committing aggravated robbery, arson, burglary, drive-by shooting, while escaping from custody, or violations involving controlled substances.
- Cause the death of a peace officer, guard, or prosecutor while the victim is engaged in the performance of official duties.
- If there is a pattern of abuse leading to the death of a minor.
- A pattern of domestic abuse leading up to death.
- Cause the death of a human while conspiring or committing felony offenses, including terrorism.
You may also be guilty of murder in the first degree if you request, command, importune, solicit, or aid the killing of another. For example, if you hire a hitman to kill your spouse, you could be guilty of first-degree murder in some states.
In short, if prosecutors can prove (1) intention. (2) forethought/planning. (3) indifference to human life. The accused is guilty of first-degree murder.
“Malice forethought” refers to the deliberate planning to cause harm to another human being. It does not require the killer to act out of spite, hate, or other motivation. Instead, it exists if the actor intends to kill someone without justification or excuse.
See legal justifications to commit homicide here.
What is “felony murder”?
A felony murder happens when the actor kills a human being while committing a felony. For example, if you rob a liquor store and shoot or attempt to shoot the attendant, you are guilty of attempted murder in the first degree, or murder in the first degree.
What is the penalty for first-degree murder?
In all states, first-degree murder is the highest level of unjustifiable homicide. Consequently, it carries serious penalties because the act constitutes a capital felony/life felony. For example, under Minnesota laws, capital murder is punishable by life in prison. In states that have the death penalty, first-degree murder may lead to a death sentence.
Note that if the court finds you guilty of first-degree murder, states including California require the accused to serve at least 25 years without parole. On top of that, you qualify for an enhanced punishment if the victim is a peace officer, firefighter, or other law enforcement. This can bring charges of capital murder.
What is a capital murder?
A capital murder is a first-degree murder that due to extreme circumstances can result in more serious charges such as the death penalty. In order for a capital murder charge to be levied the state must have the death penalty and a capital punishment law. Most often this charge occurs when the victim is a police officer, firefighter, paramedic, or even a government worker (although the charge can be brought if the crime is exceptionally brutal).
What does second-degree murder mean for the accused?
Murder in the second degree refers to the non-premeditated killing of another. That means, unlike first-degree murder, second-degree murder happens without forethought or planning. In other words, intentional killing without premeditation occurs when you intend to cause bodily injury or death to the victim but had no plan to kill the individual.
For example, in Minnesota, under state statute 609.19 “murder in the second degree,” you are guilty of second-degree murder if you, quote:
“Causes the death of a human being with intent to effect the death of that person or another, but without premeditation”
For instance, a coworker eats your lunch pudding leading to a fight resulting in death. You did not intend to kill the person. Death just happened.
Depending on state law, second-degree murder falls into two categories.
(1) Intentional killing refers to a situation where you cause the death of another without premeditation.
(2) Unintentional killing where you cause the death of a human while committing a felony.
While first and second-degree murders may both have the intent to kill the victim in the moment, in order to be charged with first-degree murder premediation must be proven.
If the actor does not commit the killing using explosives, poison, lying in wait, using armor-piercing ammunition, torture, or quote, (California title 8 crimes against the person section 189)
“ any other kind of willful, deliberate, and premeditated murder or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated using discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.”
In short, any killing that does not fall into the category described above constitutes second degree murder.
Elements of second-degree murder
In most states, you are guilty of second-degree murder if you:
- Unintentionally kill another without premeditation.
- Unintentionally cause the death of another while committing a felony.
- Cause the death of another while attempting to commit a felony without intent to effect the death of any person.
Note that state definitions of first-degree and second-degree murder differ slightly, meaning a second-degree murder in some states may constitute murder in the first degree in another. The difference between second and third degree murders (only applicable in Florida, Minnesota, and Wisconsin) is intent, a third-degree murder is most likely the result of an accident. A third-degree murder is usually referred to as involuntary manslaughter.
That prompts the question:
What is murder with aggravating circumstances?
The facts presented determine if the accused is guilty of first-degree or second-degree murder. Examples of aggravating circumstances include:
- The number of victims: if the actor kills more than one person, the individual qualifies for enhanced punishment or first-degree murder charges.
- The victim: crimes against the elderly, children, or vulnerable adults qualify for enhanced penalties.
Other aggravating circumstances include:
- Crimes against peace offices.
- Murder for hire.
- Drug crime-related killing.
Remember, in murder trials, a jury decides if the accused is guilty- not a judge. And the prosecution must prove guilt beyond a reasonable doubt.
On the flip side there may also be mitigating factors that come into play such as an episode of mental illness or a troubled childhood.
Extreme indifference to human life
Second-degree murder is different from manslaughter in that the actor must show “extreme indifference to human life.” For instance, if you fire a weapon into a crowd, your actions constitute extreme indifference to human life.
The difference between second-degree murder and third-degree murder is that first-degree murder requires premeditated intent to kill, and second-degree murder does not. Also, if prosecutors can prove aggravating circumstances, the charges may escalate to first-degree murder charges depending on state law.
What is the penalty for second-degree murder?
Unlike first-degree murder, second-degree murder is not a capital offense. Consequently, the accused will likely not face the death penalty or life imprisonment. However, you will face significant jail time.
For example, under Virginia code section 18.2-32, second-degree murder refers to:
“All murder other than aggravated murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.”
Depending on state law, the consequences of murdering in the first or second degree include:
- The death sentence or life imprisonment if you commit a capital offense. (See states that carry out the death sentence here).
- Fines, restitution, and other penalties are defined by state law.
- In the US, the slayer rule stops the murderer from inheriting any property from the deceased.
- In some states, including Connecticut, you are ineligible for parole if you commit arson murder, felony murder, capital felony murder, or aggravated sexual assault.
What is third-degree murder?
Third-degree murder charges only exist in Pennsylvania, Florida, and Minnesota. Under Minnesota statutes section 609.195 “murder in the third degree,” an individual is guilty of third-degree murder if quote:
“Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”
In Florida, you are guilty of murder in the third degree if you cause the death of a human while committing a non-drug-related, non-violent felony.
Is there a statute of limitations on murder in the US?
No. Prosecutors may bring murder charges at any time if there is enough evidence.
What are the defenses for first-, second-, or third-degree murder?
- You acted in defense of others. If someone poses an immediate threat to you or someone else, you have the right to carry out a justifiable killing.
- Self-defense. You acted to defend yourself from immediate harm or death.
- Insanity. You were not aware or in control of your actions at the time of the crime.
- Innocent/mistaken identity.
Tip: the law allows law enforcement officers to use deceptive tactics during investigations or interrogations. That means a police officer may pretend to be a hitman for hire, and investigators may lie to you during interrogations.
That makes it vital to let your lawyer speak on your behalf. Remember you have the right to remain silent, and you are innocent until proven guilty. Therefore:
- Do not say more than you need to.
- Do not believe everything investigators tell you.
- Never confess to a crime you did not commit.
- Avoid talking to other inmates about your case.
What if prosecutors offer you a plea bargain?
A lawyer who understands the circumstances of your case is based placed to offer you advice in this scenario. What you need to remember is that you may end up in prison for a crime you did not commit because of a plea bargain.
- How Long is a Life Sentence? State by State Overview
- How Many Years for First Degree Murder?
- How Many Years for Second Degree Murder?
- Manslaughter Laws Explained: What is the difference between first, second, and third degree manslaughter?
- Murder Sentencing Guidelines – Minimum to Maximum for Every State
- What is 2nd Degree Murder?
- What is the difference between first-degree, second-degree, and third-degree murder?
- What is the Difference Between Murder, Homicide, and Manslaughter?