Homicide: Murder and Manslaughter

The crimes of murder and manslaughter explained, with real-world examples.

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Homicide is a legal term for any killing of a human being by another human being. Homicide itself is not necessarily a crime --some homicides are legal, such as a justifiable killing of a suspect by the police or a killing done in self-defense -- but unlawful homicides are classified as crimes like murder and manslaughter.

This article explains the important but often subtle distinctions between murder and manslaughter and the different variations of both crimes. Keep in mind that in real-world criminal cases, a jury choosing between murder and manslaughter may depend less on abstract legal rules than on a judgment about just how morally blameworthy a defendant is.

What Is the Legal Definition of Murder?

Murder is an intentional killing that is:

  • unlawful (in other words, the killing isn't legally justified), and
  • committed with "malice aforethought" (intent to harm or kill or reckless disregard for life).

Malice aforethought doesn't mean that a killer has to have acted out of spite or hate. Malice aforethought exists if a killer intends to kill a person. In addition, in most states, malice aforethought isn't limited to intentional killings. Malice aforethought can also exist if:

  • a killer intentionally inflicts very serious bodily harm that causes a victim's death, or
  • a killer's behavior, which demonstrates extreme reckless disregard for the value of human life, results in a victim's death.

Under this scheme, intent to do serious bodily harm and extreme reckless disregard become legal equivalents to intent to kill.

First Degree Murder vs. Second Degree Murder

Even within the universe of those who kill unlawfully and with malice aforethought, the law regards some killers as more dangerous and morally blameworthy than others; this group can be convicted of first degree murder. Unlawful and intentional killings that don't constitute first degree murder are second degree murder.

The rules vary somewhat from state to state as to what circumstances make an intentional killing first degree murder. The following circumstances commonly make an intentional killing first degree murder:

The killing is deliberate and premeditated. In other words, the killer plans the crime ahead of time. For example, premeditation exists if a wife goes to the store, buys a lethal dose of rat poison, and puts it in her husband's tea.

The killing occurs during the course of a dangerous felony. This is often known as the felony murder rule. A felon can be guilty of murder if a death occurs during the course of a dangerous felony, even if the felon is not the killer. For example, assume that Aaron and Brittany commit an armed bank robbery. As they attempt to flee with the loot, a police officer shoots and kills Aaron. Brittany could be convicted of first degree murder because a death occurred in the course of a dangerous felony -- even though the killer was a police officer and the dead person was Brittany's co-conspirator.

The killer uses an explosive device such as a bomb. Because use of explosives necessarily involves some degree of planning and premeditation, criminal charges in these cases often rise to the level of first degree murder.

In terms of punishment, many states have mandatory minimum sentences for murder. The mandatory minimum for first degree murder is almost always higher than for second degree. Defendants convicted of first degree murder can also be eligible for a state's ultimate penalty. Currently, in 36 states and under some federal laws, the ultimate penalty is death. In others, the ultimate penalty is life in prison without the possibility of parole (LWOP).

Defendants convicted of second degree murder are often sentenced to a term of years rather than to life in prison and are almost always eligible for parole. (Learn more about different forms of punishment after a criminal conviction in Nolo's article Sentencing Alternatives: Prison, Probation, Fines, and Community Service.)

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