What Is the Penalty for First-Degree Murder? Death, Life, and Terms

The penalty for first-degree murder is life in prison or, in jurisdictions that allow it and where prosecutors prove specific aggravating circumstances, death. Life sentences come in two forms: life without the possibility of parole, which means the person will die in prison, and life with parole eligibility after a lengthy mandatory minimum, often 25 years or more. The death penalty remains available in roughly 27 states and in federal cases, but it is never automatic. Which sentence applies depends on the jurisdiction, the facts of the killing, and the defendant’s background.

The Three Sentences on the Table

Across the country, first-degree murder sentencing comes down to three outcomes.

Death is the most severe and the least common. It is available in about 27 states and in federal prosecutions, but only when the government proves at least one aggravating factor beyond a reasonable doubt and a jury unanimously recommends it. In federal cases, the Attorney General must personally authorize seeking a death sentence.¹

Life without parole is the most common maximum sentence. The convicted person will die in prison. In capital cases, it is often the alternative a jury chooses instead of death. In states that have abolished capital punishment, it serves as the ceiling.

Life with parole eligibility is less common for first-degree murder but exists in some jurisdictions. The defendant must serve a mandatory minimum before a parole board will even consider release. Being eligible for parole is not the same as being granted it. Many people serving life sentences with parole eligibility are never released.

Under the general federal first-degree murder statute, only two sentences exist: death or life in prison. There is no shorter term and no parole.²

What Puts the Death Penalty on the Table

A first-degree murder conviction by itself does not expose a defendant to execution. Prosecutors must prove at least one aggravating factor, and these are specific statutory circumstances that make the killing exceptionally severe. Without them, the ceiling is life imprisonment. Federal law lists more than a dozen aggravating factors, and most states have comparable catalogs.³

They tend to sort into a few groups:

Who was killed. Killings of law enforcement officers, judges, elected officials, diplomats, witnesses, or children carry heightened severity.
How it was done. Torture, extreme cruelty, or methods that created a grave risk to bystanders weigh heavily.
Why it was done. Murder for financial gain, to silence a witness, or to obstruct justice is treated as more culpable.
The defendant’s history. Prior violent felony convictions, prior murders, or involvement in continuing criminal activity all qualify.
Killing during another serious crime. Under federal law, a death that occurs during kidnapping, aircraft hijacking, hostage taking, or the use of a weapon of mass destruction is an independent aggravating factor.³

A hate crime motive can further increase sentencing exposure. Under federal law, a killing motivated by the victim’s race, religion, national origin, gender, sexual orientation, gender identity, or disability can carry up to life imprisonment under the hate crime statute, with additional guideline enhancements.

What Can Pull a Sentence Back from Death

During the penalty phase, the defense presents mitigating factors. These do not excuse the killing. They give the sentencer reasons why death is not the right punishment for this particular defendant. The Supreme Court has held that a sentencer cannot be prevented from considering virtually any aspect of a defendant’s character, history, or circumstances as a reason to impose less than death.⁴

Federal law identifies several specific mitigating factors, though the list is not exhaustive:

Impaired capacity to understand the wrongfulness of the conduct or to control it.
Duress from another person or from circumstances.
Minor participation in the crime, even where the defendant is legally responsible as a principal.
No significant prior criminal record.
Severe mental or emotional disturbance at the time of the offense.
Equally culpable co-defendants who will not be sentenced to death.³

The catch-all matters most in practice. The defense can introduce evidence of childhood abuse, mental illness, addiction, brain injuries, trauma, military service, or positive contributions to the community. Capital defense attorneys spend much of their preparation on this, often investigating a defendant’s life history going back generations, because convincing even one juror can keep a death sentence off the table.

How the Sentence Is Decided

When death is a possibility, the trial splits into two separate proceedings. The first phase decides guilt. If the jury convicts, a second phase decides whether the defendant lives or dies. This bifurcated structure keeps emotionally charged penalty evidence out of the guilt determination.

In the penalty phase, the prosecution presents its aggravating factors and the defense presents its mitigation. Both sides call witnesses and give closing arguments. Under federal law, each aggravating factor must be found unanimously. The jury then weighs the aggravating factors against the mitigating factors and, by unanimous vote, recommends death, life without release, or a lesser sentence.⁵ If even one juror holds out against death, it cannot be imposed. That unanimity rule is one reason death sentences are far less common than death-eligible prosecutions.

The victim’s family can also address the court. The Supreme Court has held that the Eighth Amendment does not bar victim impact evidence in the penalty phase of a capital trial.⁶ Statements may be written, delivered in person at sentencing, or both.⁷

State and Federal Sentences Differ

Nearly all murder cases are prosecuted at the state level. Each state has its own criminal code, its own definition of first-degree murder, and its own sentencing range. That is why penalties vary so much from one state to the next. Some states have abolished capital punishment entirely. Others impose it regularly. Mandatory minimums before parole eligibility differ widely as well.

A murder becomes a federal case only in specific circumstances. The most common trigger is the killing of a federal officer or employee acting in an official capacity, which is prosecuted under the same penalty structure as the general federal murder statute.⁸ Murders on federal land, including national parks and military bases, also fall under federal jurisdiction.

Two other categories carry their own federal statutes. A murder-for-hire scheme using interstate commerce, including phones, mail, or travel across state lines, is a standalone federal offense carrying death or life imprisonment when someone dies.⁹ Killings of U.S. nationals abroad that qualify as murder can be prosecuted federally, with penalties up to death.¹⁰

Juvenile Offenders Face Different Limits

If the defendant committed the murder before turning 18, the maximum penalties do not apply the same way. In 2005, the Supreme Court held that executing anyone for a crime committed as a juvenile violates the Eighth Amendment, ending the practice nationwide.¹¹

Seven years later, the Court held that mandatory life-without-parole sentences for juvenile homicide offenders are also unconstitutional. The sentencing court must have discretion to consider the defendant’s youth and decide whether life without parole is proportionate.¹² That rule applies retroactively, so anyone sentenced to mandatory life without parole as a juvenile is entitled to a new sentencing hearing where the judge can weigh youth and individual circumstances.¹³ A judge can still impose life without parole on a juvenile offender after an individualized hearing. The sentence just cannot be imposed automatically by a mandatory statute.

Restitution Comes With the Sentence

Prison and death are not the only penalties. Under federal law, courts must order the defendant to pay restitution to the victim’s estate. That includes funeral and burial costs, lost income the victim would have earned, and expenses the victim’s family incurred while participating in the investigation and prosecution, such as childcare and travel.¹⁴ When the victim is deceased, a family member or court-appointed representative stands in for the estate. Many states impose similar requirements. Most defendants serving life or facing execution have no meaningful assets, but the restitution order remains enforceable against any income or inheritance the defendant later receives.

Where the Death Penalty Actually Operates

The availability of capital punishment has shifted considerably. Roughly 23 states have abolished the death penalty or imposed moratoriums on its use. Even where it remains on the books, executions have become increasingly rare and concentrated in a handful of jurisdictions.

At the federal level, the Biden administration imposed a moratorium on federal executions in 2021. In January 2025, President Trump signed an executive order directing the restoration of the federal death penalty and calling on the Attorney General to pursue it for certain categories of cases.¹⁵ The practical implementation continues to evolve. The statutory framework has not changed: a death sentence can only be imposed after a jury unanimously finds aggravating factors and unanimously recommends execution.⁵

1
U.S. Department of Justice. Justice Manual 9-10.000 – Capital Crimes
2
Office of the Law Revision Counsel. 18 U.S. Code 1111 – Murder
3
Office of the Law Revision Counsel. 18 U.S. Code 3592 – Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death Is Justified
4
Justia. Lockett v. Ohio, 438 U.S. 586 (1978)
5
Office of the Law Revision Counsel. 18 U.S. Code 3593 – Special Hearing to Determine Whether a Sentence of Death Is Justified
6
Justia. Payne v. Tennessee, 501 U.S. 808 (1991)
7
U.S. Department of Justice. Victim Impact Statements
8
Office of the Law Revision Counsel. 18 U.S. Code 1114 – Protection of Officers and Employees of the United States
9
Office of the Law Revision Counsel. 18 U.S. Code 1958 – Use of Interstate Commerce Facilities in the Commission of Murder-for-Hire
10
Office of the Law Revision Counsel. 18 U.S. Code 2332 – Criminal Penalties
11
Justia. Roper v. Simmons, 543 U.S. 551 (2005)
12
Justia. Miller v. Alabama, 567 U.S. 460 (2012)
13
Justia. Montgomery v. Louisiana, 577 U.S. 190 (2016)
14
Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes
15
The White House. Restoring the Death Penalty and Protecting Public Safety