I can't wrap my head around the fact that in many legal systems, the punishment for "voluntary manslaughter" (or similar) is different than the punishment for "first degree murder" (or similar).

Some examples, all prefixed with "Unlawful, intentional, voluntary and successful killing of another human being...":

  1. with malice aforethought
  2. on a whim
  3. after being provoked
  4. in order to not get caught
  5. in order to not pay
  6. after being asked/paid to
  7. by hiring a contract killer

Why shouldn't all of these cases have the exact same punishment?

Edit, to clarify:
Why wouldn't a manslaughterer generally be considered to be an equal threat to the society as a first-degree murderer (assuming that both were deemed to have been equally willing to take a person's life while being equally aware of what they were doing)? Both of them could (or could not) regret what they did afterwards, that is outside of the scope of this question (assume both were deemed equally likely to regret).

Edit 2:
"assume both do the same" --> "assume both were deemed equally likely to regret"

  • I think you are mixing up charges and punishment. Voluntary manslaughter can (and often does) carry the same punishment as first-degree murder.
    – Ron Beyer
    Aug 29, 2019 at 1:58
  • I mean the actual penalty, for example, if a juridical system has death penalty for "first degree murder", I can't find a reason why it shouldn't have it for "voluntary manslaughter", too. Aug 29, 2019 at 2:04
  • I'm voting to close this question as off-topic because asking about the societal or political motivation for penalising offences differently is not a question about the law itself.
    – user4657
    Aug 29, 2019 at 6:30
  • @nij Fair enough, although the legal theory and logic behind the criminal justice system is routinely taught as a component of law school instruction in criminal law, and is used by courts to guide them in the discretionary parts of sentencing decisions.
    – ohwilleke
    Aug 29, 2019 at 6:39
  • I'm voting to close this question as off-topic because the justification is different in different jurisdictions.
    – Trish
    Aug 29, 2019 at 10:30

2 Answers 2


The distinction is a question of culpability, not just the harm caused.

The law, at least in the criminal law context, is not fundamentally consequentialist in its philosophy. The end consequence of an act for which someone is at fault in some way isn't the only thing that matters in criminal law. Instead, there is basically a two dimensional grid.

On one axis is the seriousness of the harm caused on the "eye for an eye" theory of proportionality between punishment and the harm caused. Thus, homicide is more serious than causing serious bodily injury or raping someone, which is more serious than causing bodily injury that is not serious or sexual in nature. Grand theft is more serious than shoplifting. It doesn't make economic sense to spend $70,000 a year to incarcerate someone for many years to prevent people from stealing $15 items, unless very extreme aspects of the person's criminal history suggest that this seemingly minor incident demonstrates a high risk of future offenses that are far more serious because it proves that a hardened criminal hasn't reformed himself or herself.

On the other axis is basically a measure of how evil and malicious someone would have to be to do such a thing which is called culpability.

At once extreme, first degree murder, for example, is calculated, premeditated harm to another. At the other extremes are completely non-culpable conduct (either due to lack of any fault-worthy conduct or because someone is mentally incapable in the eyes of society of engaging in culpable conduct like a baby or someone with dementia or someone having hallucinations relevant to the conduct that kills someone, ordinarily negligent conduct that kills someone, and criminally negligent conduct that kills someone. In between the extremes is conduct that is reckless or is impulsive or carried out in the heat of passion or by someone with diminished capacity.

Only moderately culpable conduct is punishable only by a civil lawsuit for compensatory damages, and non-culpable conduct isn't even punishable in a civil lawsuit in the absence of special circumstances in which strict liability is imposed in lieu of proof of culpability. Less culpable conduct commands less serious sentences, and more culpable conduct commands more serious sentences.

Why single out culpability?

Basically, this is a crude way a predicting, based upon someone's past actions, the risk that the pose in the future. (Our evaluation of culpability is further refined and adjusted by factors related to the individual defendant and not the particular offense involved, like a criminal defendant's status as a juvenile or adult, and the individuals history of prior criminal convictions.)

Conduct that constitutes first degree murder corresponds more or less to psychopathy, an incurable psychiatric condition in which someone lacks all empathy and takes selfish delight in harming others out of boredom or for personal gain. Psychopathy is a technical term that is modern abnormal psychology's closest synonym to saying that someone is unredeemable and evil, and conduct for which the death penalty is available, mostly in conduct that is most highly diagnostic of psychopathy, since the usual goal of incarceration, to return someone to the community once they are no longer an appreciably elevated threat to it, can never be achieved in the case of someone who is unredeemable and evil, because their condition is an incurable part of who they are as a person and their lack of empathy makes them incapable of emotionally distinguishing between right and wrong or feeling guilt. This intuition bears out. The more culpable an offense is, the more likely it is that the offender scores high on standardized measures of the extent to which someone displays signs of psychopathy that are exemplified in serial killers and the worst con men.

Intermediate levels of liability correspond more or less to impulsivity that can turn violent (which is associated with a variety of incurable psychiatric conditions and also with the developmental states of adolescence and young adulthood and with instances of excessive intoxicant consumption, especially in men), in which someone knows what they are doing is wrong but lacks sufficient self-control to prevent themselves from acting until it is too late and they have calmed down, at least until they "age out" or or take steps to treat the symptoms of the conditions or addictions or intoxicated excesses. Their lack of self-control makes them a potential risk to others even though they empathize and feel guilt, but not like the risk associated with a psychopath who just doesn't care at all if they are doing something that violates intuitive moral codes of conduct.

Negligence, i.e. inattentiveness and carelessness pose even less of a threat to the community and while it could be due to something like attention deficit disorder, could also be due to extenuating circumstances like sleep deprivation or being overwhelmed with too much at once to keep track of everything at once. Negligence harm generally isn't even momentarily malicious due to loss of control and the person who harms someone negligently will often immediately regret the harm that they caused and will try to refrain from doing so again and will try to make things right. Such a person is far less of a future threat to society, but still more of a threat than someone who doesn't harm others in the first place in any manner in which they are at fault.

Who decides?

Reasonable people (and even reasonable judges) can and do have differences of opinion on the relative importance of seriousness of harm and culpability in determining a sentence for a conviction of a particular course of illegal conduct.

The difficulty in balancing the apples and oranges factors of seriousness of harm (which, in part, reflects a person's capacity to inflict serious harm in the future and also reflects society's judgment about how serious it is to do something with ill intent) and culpability.

To insure that these factors are balanced in a predictable and fair way, we embody the weighing of those two factors in a collective legislative judgment codified in a state or national penal code, rather than a case by case decision making process by judges.

The modern trend towards giving more weight to culpability.

If anything, the tendency at the present is for legislative judgment to give more weight to culpability than it has in the past as social science methods in criminology have demonstrated that culpability demonstrated in criminal conduct actually carried out by a person is indeed highly predictive of that person's future dangerousness to society

For example, cruelty to animals is an offense which reflects very high levels of culpability despite often involving relatively modest amounts of harm viewed in a human-centric way. But, cruelty to animals is increasingly being upgraded from a misdemeanor to a felony, because it is a very diagnostic litmus test for psychopathy in an individual and very frequently eventually escalates to causing serious harm to humans.

Similarly, drunk driving when it is charged based upon a traffic stop, rather than an accident that occurred while someone was driving drunk, is a very low harm offense, just like any other traffic offense, and historically has only been a misdemeanor. But, in cases where someone is repeatedly convicted of drunk driving, the culpability is high and the conduct tends to reflect a very difficult to self-regulate addiction and substance abuse problem that is highly likely to recur and to eventually result in a high harm accident. Repeated convictions are what distinguish an incident where someone is basically just criminally negligent in driving when they should have known that they shouldn't, from the far more serious case where someone recklessly and with indifference to the well being of others drives drunk knowing full what the risk that they are exposing other people to. And because repeat drunk driving convictions are more culpable and reflect a personal character of the offender that shows a high likelihood of causing future harm to others, many states are starting to upgrade repeat drunk driving from a misdemeanor to a felony even though the actual harm from the specific incident of drunk driving that only gives rise to a traffic stop is still just as low the fifth or sixth time someone is convicted as it was the first time.


So, in sum, assigning different penalties to different levels of culpability is a way to allocate limited correctional and punishment resources in a manner proportionate to the future risk of dangerousness that the current conviction provides undeniable evidence of in a non-arbitrary manner.

Indeed, most people simply internalize the notion that more culpable conduct deserves more serious punishment because it is wrong, without conceptualizing in the more theoretical abnormal psychology informed and utilitarian framework in which I have described it above to demonstrate the implicit logic and wisdom behind the gut instinct that more culpable conduct should be punished more seriously, especially when its cause is not a passing incident that is unlikely to recur.

  • 1
    "for which the death penalty is available" Most of your answer is pretty jurisdiction neutral (apart from the minor detail of the names of some offences). That bit definitely isn't! Aug 29, 2019 at 9:34
  • 1
    @MartinBonner Yes. But, historically relevant to the reason that the offenses are defined in the manner that they are in any jurisdiction with a first degree murder offense, which was originally invented by death penalty opponents to reduce capital punishment by narrowing the circumstances under which the death penalty could be imposed with other murders downgraded to non-capital second degree murder.
    – ohwilleke
    Aug 30, 2019 at 19:56
  • @ohwilleke Your answer explains culpability very nicely. But it collapses the sense of criminal punishment to prevention. This is not the prevailing opinion - at least in Germany. There is the aspect retribution as a recognized purpose of punishment. And the importance of culpability easily matchs with this purpose.
    – K-HB
    Aug 20, 2020 at 21:32

For the same reason that double parking isn't

They are different offences for which the community, through its political and legal systems, have decided deserve different punishment under the law.

For a multitude of reasons, society holds a person who plans a killing in cold blood and then puts that plan into operation more culpable that a person who kills as a reaction to extreme provocation in the heat of the moment.

That said, statute law generally sets maximum penalties and gives the court broad latitude in how close of far from the maximum a particular criminal will be given. Its possible for any given murderer to get a lower sentence than any given perpetrator of voluntary manslaughter.

  • 1
    Your last point is a good one. Usually sentencing involves consideration of both offense related factors and more general considerations particular to the defendant that aren't closely related to the particular offense of conviction such as age (juvenile or adult) and the offender's prior criminal record. This modifies the inferences about culpability that one would draw from the offense of conviction standing alone. A first time juvenile offender is considered less culpable and punished more lightly, while an adult with a long rap sheet is considered more culpable and punished more harshly.
    – ohwilleke
    Aug 29, 2019 at 6:26
  • @DaleM Your last paragraph does not hold true in any jurisdiction. In Germany the "Mörder" gets a life sentence (pracitacally this is > 15 years) in every case (there are some exceptional cases when the courts ruled against the wording of the law for a lower sentence). For "Totschlag" life sentence is only allowed in particularly serious cases, the normal maximum penalty is 15 years.
    – K-HB
    Aug 20, 2020 at 21:39

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