Humanities › Issues What Is the Crime of Murder? The different elements of first-degree and second-degree murder Share Flipboard Email Print Getty/PeopleImages.com Issues Crime & Punishment Basics Criminals & Crimes Prevention & Safety Investigations & Trials Serial Killers The U. S. Government U.S. Foreign Policy U.S. Liberal Politics U.S. Conservative Politics Women's Issues Civil Liberties The Middle East Terrorism Race Relations Immigration Animal Rights Canadian Government View More By Charles Montaldo Private Investigator Charles Montaldo is a writer and former licensed private detective who worked with law enforcement and insurance firms investigating crime and fraud. our editorial process Charles Montaldo Updated March 11, 2019 The crime of murder is the willful taking of another person's life. In almost all jurisdictions murder is classified as either first-degree or second-degree. First-degree murder is both the intentional and premeditated killing of a person or as it is sometimes referred to with malice aforethought, which means the killer deliberately killed out of ill will toward the victim. For example, Jane is tired of being married to Tom. She takes out a big life insurance policy on him, then begins to spike his nightly cup of tea with poison. Each night she adds more poison to the tea. Tom becomes gravely ill and dies as a result of the poison. Elements of First-Degree Murder Most state laws require that first-degree murders include the willfulness, deliberation, and premeditation to take a human life. It is not always required that proof of the three elements are present when certain types of killing occur. The types of killing that fall under this depend on the state, but often include: The murder of law enforcement officerUsing unreasonable force that results in the murder of a childMurder occurring in the commission of other felonies, such as rape, kidnapping, and other violent crimes. Some states qualify certain methods of killing as first-degree murder. These usually include particularly heinous acts, torturing to death, imprisonment resulting in death, and "laid in wait" murders. Malice Aforethought Some state laws require that for a crime to qualify as first-degree murder, the perpetrator must have acted with malice or "malice aforethought." Malice generally refers ill will towards the victim or indifference to human life. Other states require that showing malice is separate from, willfulness, deliberation, and premeditation. Felony Murder Rule Most states recognize the Felony Murder Rule which applies to a person committing first-degree murder when any death occurs, even one that is accidental, during the commission of a violent felony such as arson, kidnapping, rape, and burglary. For example, Sam and Martin hold up a convenience store. The convenience store employee shoots and kills Martin. Under the felony murder rule, Sam can be charged with first-degree murder even though he did not do the shooting. Penalties for First-Degree Murder Sentencing is state specific, but generally, sentencing for first-degree murder is the toughest sentencing and can include the death penalty in some states. States without the death penalty sometimes use a dual system where the sentence is a number of years to life (with the possibility of parole) or the with the sentence including the term, without the possibility of parole. Second-Degree Murder Second-degree murder is charged when the killing was intentional but not premeditated, but also was not done in the "heat of passion." Second-degree murder can also be charged when someone is killed as a result of reckless conduct without concern for human life. For example, Tom becomes angry with his neighbor for blocking access to his driveway and runs into the house to get his gun, and returns and shoots and kills his neighbor. This could qualify as second-degree murder because Tom did not plan to kill his neighbor in advance and getting his gun and shooting his neighbor was intentional. Penalties and Sentencing for Second-Degree Murder Generally, the sentencing for second-degree murder, depending on the aggravating and mitigating factors, the sentence can be for any range of time such as 18 years to life. In federal cases, judges use the Federal Sentencing Guidelines which is a point system that helps to determine the appropriate or average sentence for the crime.