What is first, second, and third-degree murder?

Different jurisdictions have varying definitions of the degrees of murder. Generally, first-degree murder is a killing with premeditation and malice. Second-degree murder is often a killing without premeditation or with the intent to do something other than take a life. Felony murder, third-degree murder, and manslaughter are other criminal charges that can result from taking a life. Both terminology and punishments vary across states and federally.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 22, 2022

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Overview

  • First-degree murder is among the most serious charges and can lead to life in prison without the possibility of parole or even the death penalty
  • Second-degree murder is a lesser but still very serious charge that typically comes with at least 20 years in prison
  • Third-degree murder can overlap with other terms like manslaughter depending on the jurisdiction

Homicide is among the most severe potential charges in U.S. criminal law. Murder or manslaughter charges will lead to major criminal prosecution and significant prison sentences if convicted.

Murder is usually divided into three different categories: first-degree, second-degree, and third-degree. Not all states use the terms first, second, or third in their criminal codes, and the exact definition of each charge varies by jurisdiction.

The major difference between murder and manslaughter largely comes down to the defendant’s state of mind at the time of the killing. Every state has its own guidelines on how to distinguish between the varying homicide charges and the corresponding punishments that come with a conviction.

How do states define murder?

Most states qualify all murder, both intentional and unintentional, as homicide. The common levels of homicide charges are:

  • First-degree murder
  • Second-degree murder
  • Voluntary manslaughter
  • Involuntary manslaughter

State laws have three categories to determine which degree a murder charge merits.

Intent. To be considered first-degree murder, there must be a specific intent to end human life. Under many state laws, killing through a depraved indifference to human life can qualify as intent for murder in the first degree.

Deliberation and Premeditation. In first-degree murder charges, there must be a purposeful and planned out crime rather than occurring in the heat of the moment. Premeditation must occur before the act of killing.

Malice Aforethought: Many states define perpetrators of first-degree murder as having acted on “malice aforethought”. Meaning the person committed the murder with the specific intent to kill and had a general disregard for human life.

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First-Degree Murder

First-degree murder is the most serious form of homicide. In most states, first-degree murder is defined as a killing that is both willful and premeditated. As in, it is committed after a period of planning with the intent to kill.

Most states also adhere to a “felony murder rule,” meaning a person is charged with first-degree murder if a death occurs during the commission of a felony. Examples include:

  • Arson
  • Burglary
  • Kidnapping
  • Rape
  • Robbery

First-degree murder charges have some of the strongest punishments in the legal system. Sentencing varies from state to state.

In some states, such as Florida, first-degree murder convictions bring either life without the possibility of parole or the death penalty. Other states, such as California, use a list of aggravating factorsto determine the severity of the sentencing. These factors can include:

  • Defendant already had one or more prior murder conviction
  • Killing occurred during a violent crime such as rape or robbery
  • Victim fell into a specific category (law enforcement officer killed in the line of duty, a judge, a prosecutor, or a witness killed to prevent testimony)

Most states do retain the death penalty for people convicted of their highest murder charges. States vary in how often they pursue the death penalty in their top-level convictions. In states that do not impose the death penalty, a first-degree murder conviction with aggravating factors results in life imprisonment without the possibility of parole.

First-degree murder convictions without aggravating factors can lead to a range of prison sentences including life in prison with the possibility of parole, or a range of years depending on the state. These cases most commonly come with 20 to 25 years to life in prison.

Second-Degree Murder

Second-degree murder is still a very serious crime. However, it is considered a step down from first-degree murder. Second-degree murder is usually defined as a killing that does not have premeditation.

Intentional Murder Without Premeditation

A defining aspect of second-degree murder is a lack of planning or premeditation from the killer. Even if they intended to kill someone in the heat of a moment during a crime, if it was not planned in advance it would be considered second-degree.

Intent to Cause Bodily Harm

The perpetrator might have had no intention of killing their victim. If the intent was to only cause serious bodily harm, the killer might be charged with murder in the second degree.

Extreme indifference to human life

Second-degree murder also occurs when death occurs as a result of the perpetrator’s extreme indifference to the value of human life. For example, driving extremely recklessly or firing a weapon into a crowd would often be considered acting with extreme indifference for human life.

Felony Murder

Some states have differing laws when it comes to a killing that takes place while another felony crime is taking place. For example, a gunman attempts to rob a convenience store and in the process shoots and kills the store owner. A felony murder could be considered a first-degree murder or a second-degree murder depending on the state prosecuting.

The sentencing for second-degree murder can vary, but most commonly results in a sentence of 15 years to life in prison. Some cases can result in a first-degree murder charge being reduced to second-degree based on mitigating circumstances, or as part of a plea deal.

Third-Degree Murder

There are only three states with third-degree murder laws: Minnesota, Florida, and Pennsylvania. Third-degree murder is similar to the definition of manslaughter, in which a person causes the death of another with no intention of killing.

These three states make the distinction that if the death was caused through nonviolent crimes or disregard for human life. Such as a drunk driver causing the death of another person in a traffic collision.

If convicted of third-degree murder in one of these states, the defendant will be facing anywhere between 15 to 40 years in prison and fines up to $40,000.

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Manslaughter

Manslaughter charges are less serious than murder charges and result from negligent homicide when the defendant had no intention of killing, but their actions were reckless to the point that the killing could have been avoided.

Some states have separate criminal codes for voluntary and involuntary manslaughter.

Voluntary manslaughter is classified as a death that happened in “the heat of passion” often after the defendant was provoked or when self-defense goes too far.

Involuntary manslaughter is classified as an unintentional killing that could be ruled as an accident. A voluntary manslaughter charge may be appropriate in the case where a driver had too much to drink — voluntarily — and caused a death in a traffic accident. If the same driver took a prescription drug that unexpectedly slowed their reaction time, however, causing that death may be deemed involutary manslaughter.

Penalties for voluntary manslaughter often involve several years in prison depending on the aggravating factors or circumstances involved. Judges should only consider factors that were tried before a jury. Federal law states those convicted of voluntary manslaughter should receive fines and a prison sentence of no more than 10 years.

Involuntary manslaughter convictions generally lead to prison sentences of less than two years. In some cases, prison incarceration is not part of the sentencing at all. The severity of the penalties varies from state to state.

Murder Charges Should Not Be Underestimated

Murder convictions are among the most serious. The severity of conviction is dependent on a variety of factors that every state weighs differently. If convicted of first-degree murder, the perpetrator is likely to face the rest of their life in prison, and possibly death.

First-degree murder convictions are generally rare. Most cases of wrongful death cases lead to second-degree murder or manslaughter convictions which can land the defendant in prison for anywhere from two to 25 years depending on the malice on display or disregard for human life.

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