What Is Second Degree Murder?

A conviction for second degree murder lessons or mitigates the sentence after a person has been found guilty of first degree murder.

It is not an acquittal of first degree murder.

Second degree murder is an acknowledgment that a person may have acted under certain circumstances that society is not prepared to excuse as a complete defense, but does allow for a lesser sentence.

See also the Illinois Criminal Law Page.

The Illinois Second Degree Murder Statute Says…

720 ILCS 5/9-2. Second degree murder.

Additionally, “serious provocation” is defined as…

Second Degree Murder Is A Class 1 Felony

See 720 ILCS 5/9-2(d), which classes second degree murder in Illinois as a Class 1 Felony.

The sentencing range for first degree murder is 20 to 60 years. The sentencing range drops down to 4 to 15 years for second degree murder.

Plus, second degree murder is potentially probationable!

Second Degree Murder Is A Lesser Mitigated Offense

So to recap, second degree murder occurs when the defendant commits either

• Intentional,
• Knowing, or
• Strong-probability

first degree murder and one of two mitigating factors is present:

See 720 ILCS 5/9-2(a)(1) & (2).

First Degree Murder Is Built Into Second Degree Murder

Let’s really focus on the first words of the second degree statute.

“A person commits the offense of second degree murder when he or she commits the offense of first degree murder…”

In a very literal and legal sense, first degree murder is built into second degree murder. In other words, to convict a defendant of either first degree murder or second degree murder, the State must prove beyond a reasonable doubt the elements which constitute the crime of first degree murder.

The 3 Types Of First Degree Murder

To understand this lets take a step backwards and look at the types of first degree murder.

There are three types of first-degree murder charges in Illinois. The murder statute essentially describes:

• Intentional Murder
• Strong Probability Murder and
• Felony Murder (go here to learn more about felony murder)

Here is the general outline of the Illinois murder statute:

(1) Intentional murder is when the defendant “intends to kill or do great bodily harm” or “knows his acts will cause death” (720 ILCS 5/9-1(a)(1));
(2) Strong-probability murder is when the defendant knows his acts “create a strong probability of death or great bodily harm” (720 ILCS 5/9-1(a)(2)); and
(3) Felony murder is when defendant commits or attempts to commit a forcible felony and, during the commission of that felony, a death occurs (720 ILCS 5/9-1(a)(3)).

Lesser Mitigated Offense Depends On What Defendant Thought

So let me ask again, what is second degree murder?

Second degree murder is distinguished from self-defense only in terms of the nature of the defendant’s belief at the time of the killing.

If a jury finds that a defendant committed a killing because he felt he was acting under an unreasonable self defense or if the defendant was acting under a sudden and intense passion resulting from a serious provocation, then a murder charge turns into a second degree conviction.

What Is A Sudden And Intense Passion?

Second degree murder sudden and intense passion is a legal excuse reducing the punishment for murder. Serious provocation is defined as “conduct sufficient to excite an intense passion in a reasonable person.” 720 ILCS 5/9-2(b). Illinois courts recognize four categories of serious provocation:

(1) Substantial physical injury or assault;
(2) Mutual quarrel or combat;
(3) Illegal arrest; and
(4) Adultery with the offender’s spouse.

See People v. Garcia, 165 Ill. 2d 409, 429 (1995).

A Brief History & Example of Second Degree Murder

Before there was an Illinois Criminal Code, in the common law there was a rule that said anytime a man (it was always a man) discovers his wife in bed with another man then any resulting killing shall be punished as second degree murder rather than first degree murder.

The killer basically got a break.

The idea was that any man, even a law abiding man, likely would have gone into a murderous rage upon finding his wife in bed with another man. Thus, it didn’t seem quite fair to punish guy the same way other murders were punished.

That was the basic idea.

Unreasonable Claim Of Self Defense

Additionally, if a defendant can establish he was acting under a sincere claim of self defense the law allows him to be sentenced under the second degree murder statute even if the jury finds his claim to be unreasonable. See 720 ILCS 5/9-2(a)(2).

See Also

• The Illinois Homicide Statutes
• People v. O’Neal, 2016 IL App (1st) 132284 (September). Episode 239 (Duration 13:06) (Felony Murder Cannot Eviscerate A Legitimate Case For Second Degree Murder)
• People v. Fort, 2017 IL 118966 (February). Episode 308 (Duration 9:57) (Second Degree Murder Is Not An Automatic Transfer Offense So What Happens When Minor is “Acquitted” of First Degree Murder?)
• People v. Staake, 2016 IL App (4th) 140638 (November). Episode 260 (Duration 9:52) (Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.)
• People v. Taylor, 2016 IL App (1st) 141251 (October). Episode 253 (Duration 6:57) (Unique Attempted Murder Mitigation Involves Acting Under A Sudden And Intense Passion Is Analogous To Second Degree Murder)
• People v. Guyton, 2014 IL APP (5th) 110450 (July). Episode 001 (Duration 13:48) (There is no attempted second degree murder.)
• People v. Viramontes, 2014 IL App (1st) 130075 (September). Episode 028 (Duration 11:54) (Second Degree Murder Sudden And Intense Passion Does Not Mean Finding Sexually Explicit Text Messages Between Your Wife and Her Lover)
• People v. Manning, 2018 IL 122081 (March). Episode 480 (Duration 21:31) (Should We Declare A Mistrial If The Jury Can’t Agree On Second Degree Murder?)