What Is the Difference Between First and Second Degree Murder? Premeditation, Felony Murder and More

Last reviewed: October 5, 2026. This article is general information, not legal advice. Every state defines murder in its own statute, so check the law in the state where the case is charged.

TV dramas use "first-degree" and "second-degree" murder all the time, but rarely explain what separates them. The difference matters a lot: it can decide whether someone faces a life sentence, a term of years, or in some systems the death penalty.

Short answer: what is the difference between first and second degree murder? In most US laws, first-degree murder is a killing that is willful, deliberate and premeditated, or one the statute specifically lists, such as felony murder or killing by poison. Second-degree murder is any other killing done with "malice aforethought", for example an intentional killing that was not planned, or a killing caused by extreme recklessness.

Malice aforethought: what makes a killing "murder"

Both degrees of murder share one ingredient: malice. Despite the old-fashioned phrase, it does not require hatred or long planning. In general terms, malice can be:

• an intent to kill;
• an intent to cause serious bodily injury that results in death;
• extreme recklessness, sometimes called a "depraved heart" or "abandoned and malignant heart"; or
• in many systems, a death during a dangerous felony (felony murder).

California's Penal Code § 188 puts it this way: malice is express "when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature", and implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

A killing without malice is generally manslaughter, which is a separate and less serious crime.

First-degree murder

Premeditation and deliberation

The classic first-degree murder is premeditated and deliberate: the person thought about killing and decided to do it. The law does not set a minimum amount of time. Evidence often used to show premeditation includes:

• bringing a weapon to the scene;
• planning, searching for information or arranging an alibi in advance;
• a known motive, threats or prior conflict;
• the manner of killing, such as lying in wait.

California's § 189 states: "To prove the killing was 'deliberate and premeditated,' it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the defendant's act."

Listed methods and felony murder

Many statutes also make certain killings first-degree murder automatically. The federal statute lists poison and lying in wait, and killings committed during arson, kidnapping, burglary, robbery, sexual abuse and other listed crimes. This felony murder rule means a person can be convicted of first-degree murder even without proving a specific intent to kill.

Some states have limited felony murder. In California, after a 2019 change in the law, § 189(e) generally limits liability for participants to someone who was the actual killer, who aided the killer with intent to kill, or who was a major participant acting with reckless indifference to human life.

Second-degree murder

Second-degree murder is the "everything else" category of murder. Under § 1111, "Any other murder is murder in the second degree." Common examples include:

• An intentional killing without premeditation, such as a sudden decision to kill during a fight, where there is not enough provocation to reduce it to manslaughter.
• Intent to cause serious injury that results in death.
• Depraved-heart killings, where someone acts with extreme indifference to human life, for example firing a gun into an occupied room without aiming at anyone.

Third-degree murder in some states

A few states add a third degree. Minnesota is one example. Its statute, Minn. Stat. § 609.195(a), covers someone who, "without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life," with a maximum of 25 years. In other states, the same kind of conduct would usually be charged as second-degree murder.

How manslaughter fits in

Under federal law, 18 U.S.C. § 1112 defines manslaughter as "the unlawful killing of a human being without malice." It has two kinds:

• Voluntary manslaughter: "Upon a sudden quarrel or heat of passion." Maximum 15 years under the federal statute.
• Involuntary manslaughter: a death during an unlawful act that is not a felony, or from doing a lawful act without due caution. Maximum 8 years under the federal statute.

Penalties at a glance (federal law)

State penalties vary widely, including whether the death penalty is available at all. Check the sentencing statute in the state where the case is charged.

Why the line matters in a real case

Because the elements differ, the charge often turns on evidence of the defendant's state of mind. The prosecution must prove premeditation, or the felony behind a felony-murder charge, beyond a reasonable doubt. If it cannot, a jury may convict of a lesser offense such as second-degree murder or manslaughter instead. Many murder cases also end in plea agreements to a lower degree. Anyone facing a homicide charge needs an experienced criminal defense lawyer immediately.

Sources

• 18 U.S.C. § 1111, murder (Cornell LII)
• 18 U.S.C. § 1112, manslaughter (Cornell LII)
• California Penal Code § 188, malice (California Legislative Information)
• California Penal Code § 189, degrees of murder (California Legislative Information)
• Minnesota Statutes § 609.195, murder in the third degree (Minnesota Revisor of Statutes)