Criminal homicides are those killings identified by the law as being unacceptable (neither justifiable nor excusable) and for which someone must be held accountable. There are various types of criminal homicides, ranging from those characterized by an extraordinary level of violence and intense planning to those characterized by unfortunate choices and circumstances. We will go over the different forms of criminal homicide in this section.

7.5.1 First-Degree Murder

First-degree murder is indicated by actus reus of serious criminal actions, involving factors like weapons or extreme violence, and mens rea that shows specific and directed awareness of criminal actions. First-degree mens rea typically demonstrates a willful mental state, specific intent to kill, purposeful intent to kill, or express malice. Malice is intent to kill coupled with premeditation (planning ahead). First-degree actus reus can be demonstrated by showing aggression, excessive violence, or malice carried out through specific actions. In other words, if the persion specifically intends to kill someone and rationally or purposefully takes steps that result in that other person’s death, they have committed first-degree premeditated murder.

The way the murder was done can prove the killing was willful, deliberate, and premeditated. If the killing is carried out in a manner that indicates a strong and calculated desire to bring about the victim’s death, it is typically safe to conclude that the murder was premeditated. The amount of time someone takes for actual premeditation is up for debate and can vary by jurisdiction. In most jurisdictions, they agree it is considered premeditated murder if the person doing the killing thought of it even only moments before they carried it out.

In addition to premeditation, most jurisdictions also consider other aggravating factors when determining whether a murder should be charged as first-degree. Aggravating factors are the opposite of mitigating factors we discussed earlier. With mitigating factors, we said that meant there was something involved that made the crime slightly less bad or more understandable. Aggravating factors mean that there was something involved that made the crime even more horrific. This could include the use of weapons, acts of extraordinary violence, intent to victimize a vulnerable person, or any other factor of the crime that makes the killing more wicked.

First-degree murder is the highest classification of murder and, therefore, results in the most extreme punishment available. If the jurisdiction allows for the death penalty, first-degree murder typically is the only crime against an individual that qualifies the defendant for execution. If the jurisdiction does not allow for the death penalty, first-degree murder often qualifies the defendant for life in prison without the possibility of parole.

7.5.2 Second-Degree Murder

Second-degree murder is a homicide that nearly rises to the level of seriousness as first-degree, but has some sort of mitigating factor that rationalizes the killing to some extent. This classification allows consideration of factors that lessen the gravity of the murder committed, including intent to inflict serious bodily injury rather than intent to kill. In this case, the person meant to cause great harm, but did not mean to cause death. Another example is a killing that happened recklessly, under circumstances that show extreme indifference to the value of human life. The example of the game of “overpassing” in the Chapter Overview is a group of teenage boys who were being reckless and showed an extreme indifference to the value of human life.

In this case, there is still actus reus of serious criminal actions, but the mens rea shows recklessness, rather than being purposeful with express malice. Most jurisdictions apply less serious sentencing options for second-degree murder compared to first-degree, including long prison sentences that offer the chance at parole.

7.5.3 Manslaughter

Manslaughter is an unlawful killing that occurs without malice or murderous purpose. Manslaughter is distinguished from first- or second-degree murder by mens rea (the criminal intent element). Manslaughter has two basic classifications: voluntary and involuntary.

Voluntary manslaughter still includes mens rea of an intent to kill, but with a heightened emotional state called a heat of passion that cancels out the murderous intent. In this case, the victim provokes the person to such a degree that they have a moment of rage, shock, or fright (like the heat of passion discussed earlier) and they react by killing the one who set them off.

This extreme emotional state overrides the calm, deliberate, intent to kill that would otherwise support a charge of first- or second-degree murder. The person is considered completely irrational and out of control. This heat of passion mental state, however, is very brief so there can not be any time that passes between when they were provoked and when they did the killing. If there is, that would fall into premeditation and get bumped up to first- or second-degree murder instead of voluntary manslaughter.

Involuntary manslaughter is an unlawful killing without any criminal intent of mens rea. Involuntary manslaughter is homicide that is close to an accident or pure misfortune, but still has some level of criminal responsibility. The focus tends to be more on recklessness or negligence than actual malice. Reckless homicide, negligent homicide, and vehicular manslaughter typically fall under the category of involuntary manslaughter.

Reckless homicide is a killing with the mens rea of recklessness, where the defendant is aware of a risk of death but acts anyway. Negligent homicide is a killing with the mens rea of negligence, where the defendant should be aware of a risk of death, but is not. Reckless and negligent homicides include many careless or accidental deaths, such as death caused by firearms or explosives, or a parent’s failure to provide medical treatment or necessities for their child. Vehicular manslaughter is charged when a death is the result of the reckless or negligent operation of a motor vehicle or the result of the operation of a motor vehicle under the influence of alcohol or drugs.

In general, voluntary manslaughter is considered worse than involuntary manslaughter and carries a greater punishment. Some states divide manslaughter into degrees, rather than classifying it as voluntary and involuntary, with first-degree manslaughter punished more severely than second-degree manslaughter. Manslaughter of any type or degree typically has more flexible punishment requirements than first- or second-degree murder because the criminal intent is considered less wicked.

7.5.4 Speciality Murder

There are a few additional types of murder charges that depend on the circumstances under which the killing took place (felony murder), the type of victim (aggravated murder), or the associated punishment (capital murder).

While all murders are felonies, it is not always because of an intent to kill. In some cases, a person may be killed while a different felony offense was being carried out. If this occurs, even though the person committing the crime did not intend to also commit murder, they can be charged with felony murder. For example, consider the situation where someone’s plan is to rob a bank, but they do not plan to hurt anyone. However, when an employee in the bank decides to fight back and attacks them, the bank robber ends up killing them as a result. They did not go to the bank to commit murder and they had no premeditated malice. However, they did kill someone while they were carrying out a different felony offense, so they will also be charged with felony murder. When someone commits a felony that is inherently dangerous to life, they do so knowing that an innocent victim may die. It is difficult to justify a conviction for felony murder when the felony is not inherently dangerous to life, so most jurisdictions limit felony murder to felonies that create a foreseeable risk of violence or death.

It is common for more than one defendant to commit a felony. Group participation in criminal conduct could involve more than one crime and could also place criminal responsibility on a participant who did not commit the actual criminal act. The general rule for felony murder in many jurisdictions is that if one person kills a victim while committing or attempting to commit a specified felony (like robbing a bank), then all defendants involved in the felony are guilty of felony murder (even the get-away driver who never entered the bank).

Previously, we discussed aggravating factors that make a murder worse. Sometimes, those factors are determined by the type of victim in the case. Aggravated murder is a first-degree murder with additional factors or circumstances that make it even worse. Killing of a law enforcement officer in the line of duty, killing a child or a pregnant woman, killing multiple people, killing motivated by hate and bigotry, murder that includes torture before or desecrating the body after, or other horrible examples are all considered aggravated murder. These each have a factor that makes them even worse than more basic first-degree murders.

It is common for aggravated murders, felony murders, and first-degree murders to also be considered capital murder because of the associated sentence they carry. If the punishment is life in prison without the possibility of parole or the death penalty, it is considered a capital murder.