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Murder (United States law)

Updated: 2017-08-21T00:39Z

In the United States, the law regarding murder is complex, especially due to the principle of "dual sovereignty" that is part of federalism. In most cases there is a hierarchy of acts, known collectively as homicide, of which first degree murder and felony murder are the most serious, followed by murder, followed by voluntary manslaughter and involuntary manslaughter which are less serious, and ending finally in justifiable homicide, which is not a crime at all. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.

Sentencing also varies very widely. "Life imprisonment" is common, but its meaning varies widely[1] with some states contemplating a full life's confinement until death.

Capital punishment, also called the death penalty, is a legal sentence in 32 states,[2] and also the federal civilian and military legal systems. The United States is unusual in actually performing executions,[3] with 34 states having performed executions since capital punishment was reinstated in 1976. The methods of execution have varied but the most common method since 1976 has been lethal injection.[4] In 2014 a total of 35 people were executed,[5] and 3,002 were on death row.[6]

The Unborn Victims of Violence Act, enacted in 2004, allows for a fetus to be treated as a victim in crimes.[7] A provision specifically prohibits prosecutions related to consented abortions and medical treatments.[8]


If murder is committed within the borders of a state, that state has jurisdiction, and in a similar way, if the crime is committed in the District of Columbia, the D.C. Superior Court (the equivalent of a state court in the District) retains jurisdiction, though in some cases involving U.S. government property or personnel, the federal courts may have exclusive jurisdiction.[9]

If, however, the victim is a federal official, an ambassador, consul or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state borders, or in a manner that substantially affects interstate commerce or national security, then the federal government also has jurisdiction. If a crime is not committed within any state, then federal jurisdiction is exclusive, for example vessels of the U.S. Navy or the U.S. Merchant Marine in international waters and U.S. military bases worldwide.

In addition, murder by a member of the United States Armed Forces or a prisoner while under custody of the United States Armed Forces is in violation of Article 118 of the Uniform Code of Military Justice and can result in the perpetrator being tried by a general court-martial, subjecting to certain types of jurisdictions within its own borders or with foreign nations.

In cases where a murder involves both state and federal jurisdiction, the offender can be tried and punished separately for each crime without raising issues of double jeopardy, unless the court believes that the new prosecution is merely a "sham" forwarded by the prior prosecutor.[10] In the United States there is no statute of limitations on the crime of murder.[11]


States have adopted several different schemes for classifying murders by degree. The most common separates murder into two degrees, and treats voluntary and involuntary manslaughter as separate crimes that do not constitute murder.

  • First-degree murder: any intentional murder that is willful and premeditated with malice aforethought. Felony murder is typically first-degree.[12]
  • Second-degree murder: any intentional murder with malice aforethought, but is not premeditated or planned.[13]
  • Voluntary manslaughter: (also referred to as third-degree murder), sometimes called a crime of passion murder, is any intentional killing that involves no prior intent to kill, and which was committed under such circumstances that would "cause a reasonable person to become emotionally or mentally disturbed". Both this and second-degree murder are committed on the spot under a spur-of-the-moment choice, but the two differ in the magnitude of the circumstances surrounding the crime. For example, a bar fight that results in death would ordinarily constitute second-degree murder. If that same bar fight stemmed from a discovery of infidelity, however, it may be mitigated to voluntary manslaughter.[14]
  • Involuntary manslaughter: (sometimes referred to as fourth-degree murder), a killing that stems from a lack of intention to cause death but involving an intentional, or negligent, act leading to death. A drunk driving-related death is typically involuntary manslaughter (see also vehicular homicide, causing death by dangerous driving, gross negligence manslaughter and causing death by criminal negligence for international equivalents). Note that the "unintentional" element here refers to the lack of intent to bring about the death. All three crimes above feature an intent to kill, whereas involuntary manslaughter is "unintentional", because the killer did not intend for a death to result from their intentional actions. If there is a presence of intention it relates only to the intent to cause a violent act which brings about the death, but not an intention to bring about the death itself.[15]

The Model Penal Code classifies homicides differently, without degrees. Under it, murder is any killing committed purposefully and knowingly, manslaughter is any killing committed as a result of recklessness, and negligent homicide is any killing resulting from negligence.[16]

Some states classify their murders differently. In Pennsylvania and California first-degree murder encompasses premeditated murders, second-degree murder encompasses accomplice liability, and third-degree serves as a catch-all for other murders. In New York, first-degree murder involves "special circumstances", such as the murder of a police officer or witness to a crime, multiple murders, or murders involving torture.[17] Under this system, second-degree murder is any other premeditated murder.[18]

The New York statutes also recognize "murder for hire" as first degree murder. Texas uses a similar scheme to New York, but refers to first-degree murder as "capital murder", a term which typically applies only to those crimes that merit the death penalty. Some states, such as Florida, do not separate the two kinds of manslaughter.



OffenseMandatory sentencing[19]
Involuntary manslaughterFine or up to 8 years imprisonment[20]
Voluntary manslaughterFine or up to 15 years imprisonment[21]
Second degree murderTerm of years to life[22]
First degree murderImprisonment for life to death sentence [23]


OffenseMandatory sentencing[24]
Murder under UCMJ Article 118 Clause (2) or (3)Any legal punishment as directed by the court-martial
Murder under UCMJ Article 118 Clause (1) or (4)Death or life imprisonment

By states

Fetal killing

Fetal homicide laws in the United States
  "Homicide" or "murder".
  Other crime against fetus.
  Depends on age of fetus.
  Assaulting mother.

Under the common law, an assault on a pregnant woman resulting in a stillbirth was not considered murder.[citation needed] Remedies were limited to criminal penalties for the assault on the mother and tort action for loss of the anticipated economic services of the lost child and/or for emotional pain and suffering. With the widespread adoption of laws against abortion, the assailant could be charged with that offense, but the penalty was often only a fine and a few days in jail.

When the Supreme Court legalized abortions in Roe v. Wade (1973) those sanctions became harder to use. This meant that an assault which ensured that the fetus never breathed would result in a lesser charge. Various states passed "fetal homicide" laws, making killing of a fetus murder; the laws differ about the stage of development at which the fetus is protected.

After several well-publicized cases, Congress in 2004 passed the Unborn Victims of Violence Act, which specifically criminalizes harming a fetus, with the same penalties as for a similar attack upon a person, when the attack would be a federal offense.[25] Most such attacks fall under state laws; for instance, Scott Peterson was convicted of killing his unborn son as well as his wife under California's pre-existing fetal homicide law.

Sentencing guidelines


In Arizona, a person is charged with murder when the offender knowingly and intentionally causes the death of a person or unborn child. The murder must be premeditated. In the state of Arizona, if one is found guilty of first degree murder, there is the possibility of receiving the death penalty.[26]


In Florida, a person is guilty of first degree murder when it is perpetrated from a premeditated design to result in the death of a human being. A person is also guilty of first degree murder if they cause the death of any individual during the commission of a predicate felony regardless of actual intent or premeditation. This is called felony murder. This offense is categorized as capital offense, if convicted the offender could possibly receive the death penalty.[27][28]


In Hawaii, a person commits first degree murder when the crime involves one or more specific elements:

  • Multiple victims killed
  • A public safety official, such as a police officer, firefighter, or paramedic/EMT
  • A judge or prosecutor killed (in connection with their respective duties)
  • A witness in a criminal case killed (in connection with the person being a witness)
  • Murder committed for hire (with the charge applying to both the murderer and the person who paid the murderer)
  • Murder committed by an imprisoned person

The State of Hawaii has no death penalty. If they are found guilty, the maximum penalty is life imprisonment without the possibility of parole.[29][30]


Louisiana states that homicide in the third degree is manslaughter. There are other specific guidelines, for example, the killing of a police officer or firefighter is an automatic first degree charge, and intent to kill more than one person is automatically a first degree charge. In the State of Louisiana convicted murderers can receive life imprisonment or the death penalty.[31]


In Michigan, a person is found guilty of first degree murder when murder is perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. In Michigan the top penalty the perpetrator can receive is life imprisonment.[32]


In Nevada, first degree murder is the unlawful killing of a human being with malice aforethought, either expressed or implied. If a serial killer is found guilty with aggravating circumstances, for example killing someone with torture or killing a stranger with no apparent motive, then the State can seek the death penalty or a sentence of life without parole.[33]


In the state of Washington, a person is found guilty of first degree murder when there is a premeditated intent to cause the death of another person. Murder in the first degree is a class A felony in the state of Washington.[34] If a person is convicted of first degree murder, he will not receive anything lower than life imprisonment.[35]

The offender can possibly get a charge of aggravated first degree murder if he commits first degree murder and have an aggravating circumstance, for example if he kills a public safety official, such as a police officer, firefighter, or paramedic/EMT. In this case he can receive the death penalty.[36]

See also


  1. ^ US Dept. of Justice: Felony Defendants in Large Urban Counties, 2002 Archived July 26, 2009, at the Wayback Machine.
  2. ^ Bosman, Julie (27 May 2015). "Nebraska Bans Death Penalty, Defying a Veto". The New York Times. 
  3. ^
  4. ^ "Executions by year since 1976". Death Penalty Information Center. June 4, 2015. Retrieved July 3, 2015. 
  5. ^ Fins, Deborah. "Death Row U.S.A. Fall 2014" (PDF). Death Penalty Information Center. Quarterly report by the Criminal Justice Project. NAACP Legal Defense and Educational Fund, Inc. Retrieved July 3, 2015. 
  6. ^ "Death Row Inmates by State and Size of Death Row by Year". Death Penalty Information Center. April 1, 2015. Retrieved July 3, 2015. 
  7. ^ (a) 1
  8. ^ (c) 1, (c) 2, (c) 3
  9. ^ See generally, Title 18 U.S. Code
  10. ^ Koon v. United States, 518 U.S. 81 (1996)
  11. ^ 10 U.S. Code § 843 - Art. 43. Statute of limitations (a)
  12. ^ "First-Degree Murder Definition - FindLaw". Retrieved December 18, 2012. 
  13. ^ "Second-Degree Murder Definition - FindLaw". Retrieved December 18, 2012. 
  14. ^ "Voluntary Manslaughter Definition - FindLaw". Retrieved December 18, 2012. 
  15. ^ "Involuntary Manslaughter Definition - FindLaw". Retrieved December 18, 2012. 
  16. ^ [1] Archived October 21, 2014, at the Wayback Machine.
  17. ^ See, e.g., New York State Penal Law section 125.27, found at N.Y. State Legislative web site (search for Penal Law § 125.27).
  18. ^ See, e.g., New York State Penal Law section 125.25, found at N.Y. State Legislative web site (search for Penal Law § 125.25).
  19. ^ "Title 18 - CRIMES AND CRIMINAL PROCEDURE:: 2010 US Code:: US Codes and Statutes:: US Law:: Justia". January 7, 2011. Retrieved December 18, 2012. 
  20. ^ "Title 18 - CRIMES AND CRIMINAL PROCEDURE, Chapter 51, Section 1112:: 2010 US Code:: US Codes and Statutes:: US Law:: Justia". January 7, 2011. Retrieved March 19, 2015. 
  21. ^ "Title 18 - CRIMES AND CRIMINAL PROCEDURE, Chapter 51, Section 1112:: 2010 US Code:: US Codes and Statutes:: US Law:: Justia". January 7, 2011. Retrieved March 19, 2015. 
  22. ^ "Title 18 - CRIMES AND CRIMINAL PROCEDURE, Chapter 51, Section 1111:: 2010 US Code:: US Codes and Statutes:: US Law:: Justia". January 7, 2011. Retrieved March 19, 2015. 
  23. ^ "Title 18 - CRIMES AND CRIMINAL PROCEDURE, Chapter 51, Section 1111:: 2010 US Code:: US Codes and Statutes:: US Law:: Justia". January 7, 2011. Retrieved March 19, 2015. 
  24. ^ "10 USC § 918 - Art. 118. Murder | LII / Legal Information Institute". Retrieved December 18, 2012. 
  25. ^ Bush, George W. (April 2004). "President Bush Signs Unborn Victims of Violence Act of 2004". Retrieved 5 May 2016. 
  26. ^ "13-1105 - First degree murder; classification". Retrieved June 25, 2010. 
  27. ^>2009->Ch0782->Section%2004#0782.04
  28. ^ "Statutes & Constitution:View Statutes". Retrieved June 25, 2010. 
  29. ^ "Hawaii Revised Statutes §707-701". Hawaii State Legislature. 2010. Retrieved September 6, 2011. 
  30. ^ "Hawaii Revised Statutes §706-656". Hawaii State Legislature. 2010. Retrieved September 6, 2011. 
  31. ^
  32. ^ "Michigan Legislature - Section 750.316". Retrieved June 25, 2010. 
  33. ^ "NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON". Retrieved June 25, 2010. 
  34. ^ "RCW 9A.32.030: Murder in the first degree". Retrieved June 25, 2010. 
  35. ^ "RCW 9A.32.040: Murder in the first degree — Sentence". Retrieved June 25, 2010. 
  36. ^ "RCW 10.95.020: Definition". Retrieved June 25, 2010. 
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