Categories of Murder Charges and Penalties Explained

Laws about murder vary across the nation.  What follows are the most common forms of murder charges, the maximum punishments, the usual time served and case example. Murders are always felonies. 

Homicide survivors usually want the harshest charges available.  But the prosecutor must consider what is winnable.  It’s not unusual for a harsher charge to be given to motivate the defendant to plea down to a lesser offense.  This ensures a conviction without the expense or time for a trial. 

Only three percent of all murders go to trial.  Almost all are resolved through a plea bargain.

When it comes to sentencing most homicide survivors want the judge to “lock them up and throw away the key.”  But there are punishment guidelines the judge must follow.  Furthermore, “mitigating” (lessening) and “aggravating” (intensifying) circumstances apply. 

Examples of mitigating factors (also known as “extenuating circumstances”) are when the defendant is mentally ill, very young, demonstrating genuine remorse, or having no criminal record.  Examples of aggravating factors would be torture, vulnerability of the victim (such as an infant or someone in a wheelchair), having previous convictions for violent behavior, hate crimes, or if the victim was a firefighter or emergency room physician performing their duties.

Federal Murder Cases

When a federal employee is murdered in the act of carrying out their job, it becomes a federal case.  This would apply, for example, to murdering a judge, postal clerk, voter registration worker, TSA agent, or FBI agent.  These are “capital offenses.” The death penalty requires a “death-qualified jury.” (See post from November 20, 2023 for more information.)

Besides who is killed, a state case will become a federal case if the crime occurred on federal land. Examples would be deaths inside a national forest, on an Indian reservation, inside a federal building, on a military installation or when interstate roads are used in the commission of the crime.

Most murder criminal proceedings occur in state courts.  Federal cases carry the possibility of a death sentence.  An example is the bombing of the Murrah Federal Building in Oklahoma City, Oklahoma in 1995 which killed 168 people and injured more than 500 others.  Timothy McVeigh and Terry Nichols were charged and found guilty. McVeigh was given the death penalty in 2001. Nichols was spared the death penalty when a jury could not agree.  He is serving a life sentence.

First-Degree Murder

First-degree murder is a deliberate, premeditated, or planned act to kill. It can be punishable by death in some states or mandatory life in prison without the chance of parole in others (applies to adults only).  States without the death penalty sometimes limit the maximum penalty to sixty years.

Examples of first-degree murders would be gang initiations, hiring someone to carry out a murder, slowly poisoning someone over time, or death following a kidnapping. 

Aaron Hernandez, a former tight end with the New England Patriots, was convicted of first-degree murder and several weapons and ammunition charges in 2015. Hernandez, then 25, will spend the rest of his life in prison without the possibility of parole for the murder of Odin Lloyd, who was dating the sister of Mr. Hernandez’s fiancée, Shayanna Jenkins.

The national average for time actually served is 17 years and 8 months.

Second Degree

Second-degree murder happens when someone intends bodily harm, not death. It is also referred to as “negligent homicide.” An example would be a fistfight that grows into a bar patron hitting the other with a full bottle of alcohol resulting in death.  The murder is spontaneous, not planned but reckless. A famous case took place in April of 2003 when the body of Laci and her unborn child were discovered in San Francisco Bay. Two counts of second-degree murder were filed against Scott Peterson. He was found guilty. At the time of this writing his case is being reviewed by the Innocence Project based on new evidence. Second-degree murder can be punishable with mandatory life in prison without the chance of parole in some states (for adults).  Elsewhere the maximum sentence is twenty years.  Charges can apply to accomplices who did not do the murder.  The average time served in the U.S. for second-degree murder is 11 years, and 3 months.

Voluntary Manslaughter

Voluntary manslaughter applies to killing without justification motivated by sudden passion.  Unjustified killing in self-defense is included as well. Manslaughter means the death was not planned.  An example is the controversial conviction of Dan White for two counts of voluntary manslaughter in the death of George Moscone, the mayor of San Francisco, and Harvey Milk, a member of the San Francisco Board of Supervisors inside City Hall in 1978. White was charged with two counts of first-degree murder but the jury found him not guilty. Instead, they found him guilty of two counts of voluntary manslaughter based on a diminished capacity defense (which has since been vacated). White served seven years and eight months in prison. The maximum sentence is 20 years.  Not all states have a voluntary manslaughter law.  The actual time served nationally is an average of 8 years, 2 months.

Involuntary Manslaughter

This happens when there is a killing from being reckless or grossly negligent. Passion is not ordinarily an ingredient of the killing. The maximum sentence is 5 years.  An example would be excessive speeding which results in a motor fatality.  The average time served in the U.S.  is 4 years, and 3 months. Alec Baldwin was charged with Involuntary Manslaughter for the homicide of Halyna Hutchins during filming of the Western movie “Rust” in New Mexico in 2021.

Recidivism

Recidivism is the likelihood of released convicts re-offending.  Recidivism rates represent the number of freed convicts who return to prison after lapsing into criminal behavior.

The following profile describes an inmate at highest risk for violent reoffending, from most to moderately predictive:

  • incarcerated for murder one
  • male gender
  • the murder was motivated by a sexual urge
  • violent in adolescence
  • several infractions while incarcerated
  • the homicide was committed before adulthood
  • a return to a gang affiliation post-release
  • a history of drug abuse before prison
  • a long history of joblessness
  • lack of family support

Prisoners convicted of second-degree and negligent homicide have one of the lowest reoffending rates of all violent offenders. This fact is often lost on homicide survivors.

Parole

Parole is a form of conditional release and is different in different states.  These are general guidelines.  There are different kinds of parole.

“Discretionary parole” is when the release is up to the parole board.  To date, sixteen states have abolished discretionary parole for inmates convicted of certain crimes.  Discretionary parole occurs when there is a chance of early release based on good behavior and the crowding situation.  So, a judge may have sentenced a convict to twenty years but the parole board may release them after sixteen years.

As an aside, a problem with wrongfully convicted prisoners is that they must admit guilt before a parole board will release them.  But if they admit guilt they are not eligible for release due to actual innocence. It is a catch-22 situation. (See post from August 16, 2023 for more information, or consult the Innocence Project at https://innocenceproject.org/

“Mandatory parole” is also called “good time parole.”  It is based on math.  Each week of good behavior earns two or three days off their sentence.  Once their time served catches up to their credited days, they are released without a hearing.

“Expiatory parole” occurs when a sentence is completed.  There is no parole hearing.

The usual conditions of parole consist of keeping a job, notifying the DOC of a change of address, attendance at all probation meetings, avoiding crime, not carrying a weapon, and waiving extradition if found outside their state of residence.

Sometimes additional conditions of parole are applied, depending upon the specific crime committed.  These could include keeping a specified distance from children at all times, no use of a computer, involvement in drug rehabilitation, progress toward a GED, enrollment in the sex offender registration and payment of child support.

To keep tabs on a particular detainee, contact the district attorney’s office.  It helps to know the case file number, location of the crime, date of the crime, date of the parole hearing (if there was one) and which law enforcement agency investigated the crime. Internet sites are not always up to date and some detainees are not listed. On occasion, inmates change their names so a date of birth and other identifying information is helpful to know.

For more detailed information and for other resources, please refer to my book What Now? Navigating the Aftermath of Homicide and Suicide, available now on Amazon.

Click this Amazon link:   https://www.amazon.com/What-Now-Navigating-Aftermath-Homicide-ebook/dp/B0BXND9DQR

I’m Jan Canty. Psychologist, author, podcast host, speaker…  and homicide survivor.

I am passionate about finding ways to support and help other so-called “homicide or suicide survivors.”

No one should have to go through this kind of loss… but if you do, I want you to know… YOU ARE NOT ALONE! 

You aren’t crazy. It’s not your imagination! Society does not know how to comfort us. Fortunately, we know how to comfort one another.

Check out my books and get tools and resources to help you or someone you love!