What Are the Degrees of Murder


Some states define their degrees of murder numerically. Common degrees of murder include first degree murder and second degree murder. Other states place specific labels on their murder offenses, such as capital murder, murder, and justifiable homicide.

Despite the label of the degree of murder, the idea is to gradually increase the punishment with the degree. The more egregious the killing, or the motive behind a killing, then the higher the degree of punishment for that type of murder charge.

First Degree or Capital Murder

First-degree murder, is the most serious form of murder. In most states, a first degree murder involves elements like deliberate planning, premeditation, or malice. Deliberate means that the defendant makes a clear-headed decision to kill the victim. Premeditation involves showing the defendant actually thought about the killing before it occurred.

The period of thought required to classify a murder as premeditated may be very brief. A killing with malice requires proof that the defendant did a harmful act without just cause or legal excuse. For example, if someone decided to kill a business rival who is attempting a corporate takeover by purchasing a gun and waiting for the victim in a deserted parking garage, then the shooting would have all the elements of first-degree murder.

If, on the other hand, business competitors got into a fight when the rival announced his intention to take over the other man’s business, and the second man flew into a rage and hit the rival with it, causing his death, the killing would not be classified as a first-degree murder because the defendant did not plan or make the decision to kill in advance.

There are some states have additional factors which classify a murder as a first degree murder or capital murder. The first factor is usually the motive. Why did the offender want to kill the victim? Certain motives result in a higher degree felony. These motives can include the victim being a police officer, or where the murder was racially motivated.

The second factor is did the murder occur? Other states will charge a defendant for first degree murder if more than one person was killed during the same episode or it the victim was under or over a certain age and particularly vulnerable. Others enhance the murder degree if it was combined with another felony like sexual assault or robbery.

The third factor is how the murder was committed. Some states consider killings committed in specific fashion to be first-degree murder. Although these vary by state, they can include killing by poison, by lying in wait, and by torture. States may also presume malice if the killing is done with a deadly weapon.

Second Degree Murder

Second degree murder is killing another with malice – doing a harmful act without just cause or legal excuse – but without premeditation or deliberation. In other words, this means intentionally killing someone without planning to do so in advance. If a person becomes angry, walks over to a desk where he keeps a gun that is kept just for his protection, takes out the gun and shoots another person, that may be second-degree murder because there was no plan or advance decision to kill. It would still be second degree murder because the act of taking out the gun and shooting was intentional.

Felony Murder

Felony murder is a killing that happens during the course of the commission of a felony. The murder isn’t necessarily planned out or intended, it’s just a consequence of the other offense. Even a death that is an accident will be considered felony murder by most states if it happens while a felony is being committed.

For example, if someone becomes frightened and falls down a flight of stairs during a robbery, that would be felony murder in some states, even though the death was accidental and the robber did not mean to cause the death. If three people are involved in robbing a bank and one of them shoots a guard, without any preplanning with the others, then all three could be guilty of felony murder, since they willingly participated in the robbery and knew that there was a possibility that someone could get hurt during the course of the robbery.

Murder Can Mean Life or Death

Any defendant charged with murder should understand the degree of their murder charges because it can affect the level of punishment and defensive strategies. Capital or first degree charges can result in the death penalty in some states.  Understanding the different degrees can literally be a life or death decision.