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.
Manslaughter (in some states called third degree murder) is an unlawful killing that does not involve malice aforethought. The absence of malice aforethought means that manslaughter involves less moral blame than either first or second degree murder. Thus, while manslaughter is a serious crime, the punishment for manslaughter is generally less than it would be for murder.
The two main variations of manslaughter are usually referred to as voluntary and involuntary manslaughter.
Voluntary manslaughter. This is often called a “heat of passion” crime. Voluntary manslaughter arises when a person is suddenly provoked (in circumstances which are likely to provoke many reasonable people) and kills in the heat of passion aroused by that provocation. That the killing is not considered first or second degree murder is a concession to human weakness. Killers who act in the heat of passion may kill intentionally, but the emotional context prevents them from having the ability to fully control their behavior. As a result, the heat of passion reduces their moral blameworthiness.
The common example of voluntary manslaughter involves a husband who comes home unexpectedly to find his wife committing adultery. If the husband is provoked into such a heat of passion that he kills the paramour right then and there, a judge or jury might very well consider the killing to be voluntary manslaughter.
Involuntary manslaughter. A killing can be involuntary manslaughter when a person’s reckless disregard of a substantial risk results in another’s death. Because involuntary manslaughter involves carelessness and not purposeful killing, it is a less serious crime than murder or voluntary manslaughter. The subtleties between the degrees of murder and manslaughter reach their peak with involuntary manslaughter.
Suppose that Rosencrantz is driving a car and runs over and kills Guildenstern. Rosencrantz might be:
- not guilty of a crime at all. However, if Guildenstern’s family sues Rosencrantz in a civil case, Rosencrantz might have to pay damages to Guildenstern’s heirs if Rosencrantz was negligent — that is, if Rosencrantz failed to use ordinary care.
- convicted of involuntary manslaughter. If Rosencrantz recklessly disregarded a substantial risk — meaning that Rosencrantz was more than ordinarily negligent, by driving under the influence of alcohol, for example — he could be charged with involuntary manslaughter.
- convicted of second degree murder. If Rosencrantz’s behavior demonstrated such an extreme reckless disregard for human life that a judge or jury decides that Rosencrantz’s behavior demonstrates malice aforethought, second degree murder could be the case. For example, if Rosencrantz not only kills Guildenstern as a result of drunk driving, but does so with a stolen car after his license had been taken away for previous drunk driving convictions, a judge or jury might convict Rosencrantz of second degree murder.
Murder and Manslaughter: Case Example 1
Facts: Fast Boyle is walking along a busy street. Clay bumps into Boyle and continues walking without saying “Sorry.” Angered by Clay’s rudeness, Boyle immediately pulls out a gun and kills Clay.
Verdict: Boyle could probably be convicted of second degree murder, because Boyle killed Clay intentionally. A judge or jury is unlikely to conclude that the killing was premeditated, which would elevate the shooting to first degree murder. On the other hand, this was not a heat of passion killing that might reduce the conviction to voluntary manslaughter. While Boyle might personally have been provoked into killing Clay, the circumstances were not so extreme that many ordinary and reasonable people would have been provoked to kill.
Murder and Manslaughter: Case Example 2
Facts: Standing next to each other in a bookstore a few feet away from the top of a flight of stairs, Marks and Spencer argue over the proper interpretation of free will in Hobbes’s philosophy. The argument becomes increasingly animated and culminates when Spencer points a finger at Marks and Marks pushes Spencer backwards. The push is hard enough to cause Spencer to fall backwards and down the stairs. Spencer dies from the resulting injuries.
Verdict: Marks would probably be guilty of involuntary manslaughter. It was criminally negligent of Marks to shove a person standing near the top of a stairway. But circumstances don’t suggest that Marks’s behavior was so reckless as to demonstrate extreme indifference to human life, which would have elevated the crime to second degree murder.
Murder and Manslaughter: Case Example 3
Facts: Lew Manion comes home to find that his wife Lee has been badly beaten and sexually abused. Manion takes Lee to the hospital. On the way, Lee tells Manion that her attacker was Barnett, the owner of a tavern that she and Manion occasionally visit. After driving Lee home from the hospital about four hours later, Manion goes to a gun shop and buys a gun. Manion then goes to the tavern and shoots and kills Barnett.
Verdict: Manion could be convicted of first degree murder, because his purchase of the gun suggests that the shooting was intentional and premeditated. Voluntary manslaughter is a somewhat less likely alternative. Most judges and jurors are likely to think that enough time elapsed between the time Manion found out about Lee’s injuries and the time he shot Barnett for any heat of passion to have cooled. Manion should have left his gun at home and reported the crime to the police.
The Morales Law Firm would like to thank NOLO For sharing this information with us.