Capital Murder and Murder: What is the Difference?

Degrees are crucial to criminal law. For one, they determine the gravity of an offense. For another, they follow a corresponding punishment. The gravity of offense and punishment are defined in the classification of criminal offenses: infractions, misdemeanors and felonies.

Of the three, felony is the most serious offense wherein capital murder typically falls under.

What is Capital Murder?

Capital murder charges differ from murder charges in terms of the punishment. Photo from Ichigo121212 on Pixabay

Capital murder is one of the most serious criminal offenses punishable by death or life imprisonment with no possibility of parole. In some cases, like the infamous Eddie Ray Routh, the prosecution may choose life imprisonment over death penalty.

Much like every offense, a charge of capital murder requires meeting the prescribed elements in a state’s penal code.

For instance, Section 19.03 (also called Lauren’s Law) of the Texas Penal Code specifies capital murder elements:

  • That a person murders a peace officer or fireman who is in the line of duty;
  • That an inmate commits murder while escaping from a penal institution;
  • That a person murders more than one person during a criminal transaction;
  • That a person murders another under the age of 10, or 10-years-old or under 15-years-old;
  • That a person murders as a form of retaliation against a judge, district attorney or a justice of district, county or municipal court;
  • That a person intentionally murders another while committing another crime: kidnapping, burglary, arson, aggravated sexual assault, terroristic threat and the like.

A person may only be charged with a capital crime of murder if such elements have been met. It’s a criminal defense attorney’s job to ensure their client’s actions and intent match the charge.

But just as the classification of criminal offense will differ in each state, so will the elements stated in each statute.

In Mississippi, a defendant may be charged with capital murder if:

  • They murder another on educational property;
  • They murder a known elected official;
  • They murder during the commission of a felony child abuse or battery, and
  • They murder while serving a life sentence in prison.

These elements are not specified in the Texas statute for capital murders. But both states do have other similar elements, including the murder of a police authority who is carrying out their duties, murder in a contract-for-hire transaction and murder while committing other felonies.

What’s the Difference Between Capital Murder and Murder?

capital murder-manslaughter
Intent plays a crucial element when defining a murder charge from manslaughter; capital murder carries even graver consequences. Photo by Maxim Hopman on Unsplash

Although murder and capital murder are intentional, prescribed circumstances set each crime apart. These circumstances provide the police, lawyers and the courts with a guide to determining what is the right course to take.

From arresting on the basis of evidence to charging based on the investigation to defending based on pertinent factors, a murder case is steered in its logical direction according to the law.

A murder charge means a defendant may get a life sentence, with a possibility of parole. Whereas a capital murder charge means a defendant may get the death penalty. But as mentioned early on, the prosecution may use its discretion to ask for a life term instead of death once a jury finds the defendant guilty as charged.

Murder vs. Manslaughter and Degrees of Murder

A criminal lawyer, for the defense or prosecution, evaluates each case to make sure the right charge, murder vs manslaughter, is given. Photo by RODNAE Productions on Pexels

Murder is distinct from manslaughter because of intent. With the former, a person intentionally or knowingly causes the death of another person. A premeditated criminal act differentiates murder vs. manslaughter.

With manslaughter, a person may have killed another by accident. If a person does so through recklessness or negligence, they may be charged with involuntary manslaughter. If a person kills another unintentionally excessive aggression or provocation, they may be charged with voluntary manslaughter. The prosecutor’s office may charge someone with manslaughter even in the act of self-defense because their response may have been excessive.

Similar to the types of manslaughter, murder comes in degrees: first-degree murder and second-degree murder.

Although murder comes with an intent to seriously harm or malice aforethought, the law still distinguishes that some unlawful killings may be graver than others. When the law recognizes this in one case, a person may be charged with first-degree murder.

First degree murders must meet the following elements:

  • Deliberate and premeditated
  • Felony murder; the killing occurred in the commission of a felony
  • The use of a destructive device (e.g., bomb)

When a murder doesn’t meet those elements, a person may be charged with second-degree murder instead. In second-degree, the minimum punishment is lesser than a first-degree murder. Some convicts may even be eligible for parole with a second-degree charge.

But what about third-degree murder?

Only three states have statutes for third-degree murder: Pennsylvania, Florida and Minnesota. When a person is charged with this degree of murder, it means a dangerous act resulted in the unintentional death of another person. In Minnesota and Florida, authorities typically associate third-degree murder with nonviolent drug felonies.

A Serious Criminal Offense

A criminal offense comes with serious consequences. The punishment for which will depend on the gravity of the crime. When it comes to murder vs. manslaughter, it’s the intent behind the unlawful killing. When it comes to murder vs capital murder, it’s a series of circumstances as prescribed by the state’s statutes. With the latter, death penalty will likely be on the table for states that still use this capital punishment.

About the Author


The information provided on this website is intended for general informational purposes only. It should not be construed as legal advice or legal opinion on any specific matter. The content on this blog is based on the knowledge and experience of the authors up to the date of publication, and it may not reflect the most current legal standards, regulations, or interpretations.

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