Second-Degree Murder Overview

Second-degree murder does not require premeditation. The lack of premeditation — or planning — is the key factor that makes it different from first-degree murder.

Second-degree murder is killing someone with malice aforethought.

Malice aforethought means that the murder was intentional. Or, the person may have acted recklessly and did not care about others' lives.

Second-degree murder is best explained by first talking briefly about first-degree murder. First-degree murder is killing someone with malice aforethought and premeditationPremeditation means that the killer thought about what they were doing before they did it. It can even be a brief thought.

Murder Law Varies by State

The exact legal definition of second-degree murder varies depending on what state you're in. While some states don't use the term "second-degree murder," most divide the crime of murder into different degrees. The intent of the killer decides what degree of murder. Criminal law recognizes there are different degrees of guilt when it comes to murder.

The sentence someone convicted of second-degree murder will get varies widely among the states. It ranges from under a year in prison to life in prison.

What Is Second-Degree Murder?

Intentional Killing Without Premeditation

Second-degree murders don't involve any planning on the part of the killer. At the moment the murder happens, the killer either intends to kill the victim or, at least, cause them severe harm. But, up until that moment, the killer did not plan to commit murder. This lack of planning separates second-degree murder from first-degree murder.

For example, Adam and Bill are neighbors arguing about the fence between their properties. Adam visits Bill to talk about the situation and, while there, impulsively grabs a shotgun hanging above the fireplace. Adam shoots and kills Bill. Adam didn't have any plan to kill Bill when he went to Bill's house that day. So, there was no premeditation. At the time he pulled the trigger, though, Adam fully intended to kill Bill or at least severely hurt him. In this situation, prosecutors would probably charge Adam with second-degree murder.

But what if Bill provoked Adam? If Adam kills Bill during a sudden argument with provocation, the charge would likely be voluntary manslaughter. The idea is that if Adam decided to kill Bill in the "heat of passion," he should not get punished the same as if he intended to kill Bill.

Intent to Cause Only Serious Bodily Harm

A second situation that describes second-degree murder is where the perpetrator intends only to cause serious bodily harm but knows that death could result from the act.

For example, instead of shooting Bill, Adam grabs a shovel and whacks Bill in the head with all his strength. While Adam didn't specifically intend to kill Bill when he hit him, he did intend to strike him with the shovel. Knowing that a blow to the head could very well result in death, the charge would likely be second-degree murder.

Extreme Indifference to Human Life

A third situation that describes second-degree murder happens when a victim dies as a result of the perpetrator's extreme indifference to the value of human life. Extreme indifference generally means a complete disregard for the possibility that an act will kill someone.

Going back to Adam and Bill, imagine that instead of hitting Bill over the head with a shovel, Adam grabs his gun and wildly fires above a crowd of neighbors who have gathered to watch the argument. Although he does not fire at the neighbors, the bullet hits someone in the distance. Adam didn't mean to kill anyone, but he also didn't give any thought to the harm that his actions could cause to others. This demonstrates Adam's extreme indifference to human life.

Another type of second-degree murder in this category occurs when someone dies as a result of being hit by a drunken driver. Some states will charge a drunken driver, in this situation, with DUI (or DWI) and second-degree murder. This is because it is common knowledge that drunken driving is extremely dangerous and could kill someone.

No matter whether it's manslaughter or second-degree murder, death because of someone's drunken driving is an unlawful killing.

Felony Murder

What about a situation where an unintended death occurs during the commission of a felony? That's where the felony murder doctrine comes in. Some states classify deaths that happen during the commission of another felony as second-degree murder, while other states characterize them as murders in the first degree.

A court can find a person guilty of felony murder even if they didn't personally kill anyone. For example, Adam and Bill go into a convenience store, intending to rob it at gunpoint. Armed robbery is a felony. The clerk resists, and Adam shoots them. A jury could also find Bill, who didn't shoot anyone, guilty of second-degree murder.

How can this be? Because Bill intentionally took part in an armed robbery, he had to know there was at least a possibility someone could get shot and killed. For that reason, under the felony murder rule, a court can find Bill responsible for Adam shooting the store clerk.

Sentences for Second-Degree Murder

Depending on the state you're in, the penalty for second-degree murder varies widely. While second-degree murder is less serious than first-degree murder, it is still serious enough that life in prison is possible in some states. The death penalty is not an option in any state for second-degree murder.

Examples of Sentences:

Aggravating and Mitigating Factors

In any criminal case, certain vital factors often come into play. Second-degree murder is no exception. If convicted of second-degree murder, aggravating and mitigating factors are essential.

An aggravating factor may lead to a longer sentence. A mitigating factor tends to lessen the sentence. Information about these factors helps the judge decide on the sentence.

Some examples of aggravating factors:

  • There was a firearm or other deadly weapon involved
  • Hate crimes: The attacker chose a victim based on a factor such as race, sexual orientation, gender, ancestry, age, or religion
  • The manner of death was particularly cruel or brutal
  • The person charged committed similar violent offenses in the past

Some examples of mitigating factors:

  • The defendant showed remorse
  • Lack of — or a minimal — criminal record
  • Mental or physical illness

Defenses to the Charge of Second-Degree Murder

Knowing the elements of and sentencing factors for second-degree murder cases is important. It is just as important to understand possible defenses to a charge of second-degree murder.

Some typical defenses to second-degree murder:

  • Actual innocence: A person who is innocent of the crime may have an airtight alibi. Mistaken eyewitness identification is common.
  • Self-defense: If someone threatens your life, you may use the same amount of force to stop the person. When a person dies as a result of someone acting in self-defense, it is often called a justifiable homicide. But, if the person acting in self-defense did so without proper grounds, they could get convicted of second-degree murder (or the lesser offense of voluntary manslaughter).
  • Insanity: In any crime, the defendant must have the required mental state (mens rea) to complete the crime. If a person has a severe mental illness and can't tell the difference between right and wrong, a court can find them not guilty by reason of insanity. They could also be not guilty by reason of insanity if they did not know what they were doing. Some states have another option, in these cases, besides guilty or not guilty by reason of insanity — guilty but mentally ill.
  • Intoxication: Voluntary intoxication, in most cases, is not a defense to second-degree murder. "Involuntary intoxication," while sometimes challenging to prove, may be a good defense. If the offender was so intoxicated that they could not form the required intent, they may not be guilty.

Information about defenses to second-degree is here in more detail.

If You're Facing Second-Degree Murder Charges, Call a Lawyer

If someone has accused you of murder, you need legal advice ASAP. Discuss your rights with an experienced criminal defense attorney. The sooner they start preparing your defense, the better. Contact a criminal defense lawyer near you today.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex criminal defense situations usually require a lawyer
  • Defense attorneys can help protect your rights
  • A lawyer can seek to reduce or eliminate criminal penalties

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


If you need an attorney, find one right now.