What Is Second-Degree Murder?

How Does It Differ From Other Forms of Murder? What Are the Potential Penalties?

The intentional killing of another person—commonly referred to as murder—is generally prosecuted under state law, though there are limited situations where murder can be a federal offense, such as the slaying of a federal official, the killing of another person in the commission of a federal crime, or the murder of a person on federal property. Most states further categorize murder as first- or second-degree murder, with differing potential penalties. Some use other terms, such as aggravated murder or capital murder, and some simply differentiate based on the specific details and circumstances of the offense.

What is second-degree murder? How does it differ from other forms of murder? What are the potential penalties for conviction on second-degree murder charges?

What Is Murder?

The crime of murder has generally been defined as an unlawful killing of another human being through an affirmative act or omission with malice aforethought. Certain killings may be permitted under law, such as capital punishment or deaths caused in a legally-sanctioned war. The failure to act may be the basis for a murder charge, such as a parent who fails to feed a young child. To establish “malice aforethought,” the prosecutor must show an intent to kill, an intent to cause “grievous bodily harm,” a reckless disregard of a significant risk to human life, or an intent to commit a crime classified as a felony.

What Is Second-Degree Murder?

As a general rule, the common distinction between second-degree murder and first-degree murder focuses on the mindset of the defendant at the time of the crime. While both charges require evidence of “malice aforethought,” a person is typically charged with first-degree murder only when there is evidence of advanced planning, premeditation, or deliberation, such as the advance purchase of weapons, stalking or following the victim before the murder, or engaging others to participate in a plan.

Second-degree murder typically involves a reckless disregard for the value of human life. Common examples of second-degree murder include:

• Situations where a person intends to cause grievous bodily harm, but not death, e.g., brutally and repeatedly punching someone during a fight and causing a fatal head injury
• Recklessly using a dangerous weapon, such as firing a gun randomly, not intending to hit anyone, but then accidentally hitting and killing a person
• Killing someone while driving drunk

In addition, many states charge felony-murder as first-degree murder, though some charge it as second-degree murder, and some simply consider it a separate offense. Felony-murder is the killing of another person—intentionally or unintentionally—during the commission of a separate felony. For example, if a group of armed thieves rob a bank and, while they’re getting away, the driver accidentally hits and kills a pedestrian, everyone in the group could be charged with felony-murder. As noted, that charge could be first-degree or second-degree murder, depending on the state law that applies.

How Does Second-Degree Murder Differ from Manslaughter?

Manslaughter charges are generally reserved for unintentional homicides where the circumstances indicate no reckless disregard for the value of human life, no intent to commit serious bodily harm, and no commission of a felony. Common examples include:

• Killings in the heat of passion, where the defendant lacked the time to form intent, but simply acted, e.g., when a person comes home to find their spouse committing adultery
• Killings resulting from an irresistible impulse, often associated with mental illness, delusions, or hallucinations

What Are the Potential Penalties for Conviction of Second-Degree Murder?

The potential sentence for conviction on charges of second-degree murder can vary significantly from state to state, and based on aggravating or mitigating factors. Though second-degree murder is considered a serious felony, the death penalty is generally not applicable.

Incarceration in prison is almost always a consequence of conviction. Some states limit the duration to 10-25 years and others allow for the potential of life in prison. Additionally, most states give the trial judge discretion to increase or decrease the sentence based on the circumstances of the crime, the defendant’s criminal record, or the victim’s identity (such as a law enforcement officer).