Manslaughter is a homicide without malice aforethought. Murder is a homicide with malice aforethought. This makes manslaughter a lesser-included offense of murder. Because murder is a more severe crime, the penalties are higher. Convictions for murder can carry a life or a death sentence. Manslaughter convictions often carry around a decade in prison.
Malice aforethought
The major difference between murder and manslaughter is malice aforethought. Malice aforethought is acting with a specific intent to kill the victim or with a conscious disregard for life.[1]
Note that this is different than premeditation or deliberation, two other commonly used words to describe murder. These terms are used to describe the act of consciously thinking about murdering the victim, and then deciding to do it. Premeditation and deliberation take some time. Malice aforethought can happen in the instant before the homicide.
Manslaughter
Manslaughter is the unlawful killing of another human being without malice aforethought.
There are 2 types of manslaughter:
The difference between the 2 is whether you intended to kill the victim.
Voluntary manslaughter
Voluntary manslaughter is the unlawful but intentional killing of someone, without malice aforethought. It can happen:
- during a sudden quarrel,
- in the heat of passion, or
- based on an unreasonable belief that lethal force was needed in self-defense.[2]
In these cases, you would have killed the other person with a general intent to do so. However, that general intent does not rise to the level of malice aforethought.
Note that if you had time to cool off but then chose to deliver the fatal blow, that would likely be the malice aforethought necessary to make the homicide a murder.[3] It would no longer be a crime of passion. Claiming that you acted in the heat of the moment would be more difficult.
Examples of voluntary manslaughter include:
- finding your spouse cheating on you and stabbing the other person in a sudden rage,[4] and
- unnecessarily using lethal force in self-defense.[5]
Involuntary manslaughter
Involuntary manslaughter is the unlawful and unintentional killing of another person through criminal negligence.
Criminal negligence is generally defined as acting in a way that a reasonable person would realize creates a high chance of death or serious injury.[6] In some states, this is defined as recklessness or as acting in reckless disregard for human life.[7]
Note that this means you did not intend to kill the victim. Because intent is not required, there is no such thing as attempted involuntary manslaughter.
Examples of involuntary manslaughter include:
- drunk driving (DUI) and causing a fatal car accident, known in many states by the legal term vehicular manslaughter, and
- providing the illegal drugs that lead to a fatal overdose.[8]
Murder
Murder is the intentional killing of another human being with malice aforethought.
Some jurisdictions have numerous degrees of murder,[9] though there are generally only 2. The difference between them is whether the killing was premeditated.
First-degree murder
First-degree murder involves premeditation or deliberation in addition to malice aforethought. It also includes felony murder, where another person’s death is caused during the commission of a felony.
Premeditation or deliberation are the acts of weighing your options, and then deciding to end another person’s life.
Evidence that it was a deliberated or premeditated killing include:
- lying in wait for the victim,
- collecting murder weapons,
- coming up with a plan to kill the victim, or
- creating an escape route before the murder.
First-degree murder charges are the most serious type of homicide charge that you can face in the U.S. criminal justice system.
Second-degree murder
Second-degree murder has malice aforethought, but not premeditation or deliberation. This means that it covers all murders that are not first-degree murders.[10]
Penalties
The penalties for a conviction of murder are also higher than for manslaughter.
Under California’s criminal law, for example, murder convictions carry:
- 25 years to life in prison for first-degree murder, and
- 15 years to life in prison for second-degree murder.[11]
These are the base penalties. Special circumstances, like killing a police officer, can turn first-degree murder into capital murder. This increases the prison sentence to include the death penalty.
Meanwhile, manslaughter convictions in California carry prison sentences of:
- 3 to 11 years for voluntary manslaughter, and
- 2 to 4 years for involuntary manslaughter.[12]
Because the state of mind is less culpable for these forms of homicide, the prison time is shorter than for either degree of murder.
Legal defenses
Many of the same legal defenses to murder can also be used to challenge a criminal charge of manslaughter. However, a plea bargain can often be used to reduce a murder charge to one for manslaughter. It is much less common for a defense lawyer to charge bargain a manslaughter case down to a lesser offense.
The specific factual allegations will determine which defense is best for your situation.
For example, in deadly physical altercations like fights, self-defense is a common legal defense to raise.
Differences between murder and manslaughter
There are numerous differences between murder and manslaughter charges. The following table summarizes them:
| Murder | Manslaughter | |
| Requires you to act with malice aforethought | Yes | No |
| Requires you to act with premeditation or deliberation | For first-degree murder, yes, but not for second-degree murder | No |
| Requires you to intend to kill the victim | Yes | For first-degree manslaughter, yes, but not for second-degree manslaughter |
| Plea bargains for reduced charges are a common legal defense | Yes | No |
| Convictions can carry a life sentence | Yes | No |
| It is a type of homicide | Yes | Yes |
Legal Citations:
[1] Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006).
[2] See California Penal Code 192(a) PC.
[3] See State v. Follin, 947 P.2d 8 (Kan. 1997).
[4] People v. Borchers, 50 Cal.2d 321 (Cal. 1958).
[5] Swann v. United States, 648 A.2d 928 (D.C. App. 1994).
[6] Stringfield v. Superior Court, 166 F.Supp.3d 1144 (S.D. Cal. 2016).
[7] See 720 Illinois Compiled Statutes 5/9-3.
[8] Lofthouse v. Commonwealth, 13 S.W.3d 236 (Ky. 2000).
[9] See, e.g., Florida Statutes 782.04, which also has a third-degree murder.
[10] See California Penal Code 189(b) PC.
[11] California Penal Code 190 PC.
[12] California Penal Code 193 PC.
