Difference Between Capital Murder & First Degree Murder

By Ramona French - Updated January 29, 2018
Crime scene tape in building with forensic team working

For all intents and purposes, capital murder and first- degree murder are the same crime. The difference comes down to semantics. First-degree murder is a type of murder that is both intentional and premeditated, such as when the perpetrator lies in wait for his victim. Capital murder is any first-degree murder that can be sentenced with the death penalty in the states that practice capital punishment.


First-degree murder is a pre-mediated murder where the crime was committed intentionally. Capital murder is first-degree murder that is eligible for capital punishment in states that allow the death penalty.

Murder Must Be Intentional and Premeditated

While states may have slightly different definitions, first-degree murder has to be premeditated, which means the criminal thought about the crime ahead of time. It is also deliberate, meaning that the criminal carried out the crime in full awareness of what he or she was doing. Some states include the phrase "with malice aforethought" which means the same as intentional – the deliberate, planned taking of a person's life. First-degree murder may be committed by hand or with the use of a weapon, explosive, a weapon of mass destruction, armor-penetrating ammunition, poison or torture.

Capital Murder is the Top Level Murder Crime

Capital murder is a type of first-degree murder for which the death penalty is authorized by law. California, Texas and other states with capital punishment usually authorize execution for first-degree murder that is aggravated by special circumstances, for instance the murder of a police officer or firefighter while that person was on duty. In states that permit the death penalty, capital murder is the top level murder crime.

Capital Murder Versus First-Degree Murder

First-degree murder always has the potential to be classified as a capital murder in states that allow the death penalty, even if the perpetrator ultimately is not sentenced to death. Not all capital murders are first-degree murders, however, since some other crimes are eligible for capital punishment. Special circumstances might raise the degree of crime, including murder committed intentionally during the commission of a felony crime such as aggravated sexual assault, arson, kidnapping or other similar crimes. Paying someone to commit a murder, murder while escaping prison, murder of a child, murder during a robbery or rape and murder while hijacking an aircraft are also potentially special circumstances that would elevate the crime to capital murder.

The Difference Between Life and Death

Punishment for first-degree murder is usually severe, requiring a lengthy time in prison, up to the extreme of a life sentence. The purpose of the sentence is as much to protect the public from a dangerous person as it is to punish the murderer. The punishment for those convicted of a capital murder potentially is capital punishment, which is currently recognized by 31 U.S. states. The difference in the crimes may be subtle, but it is literally the difference between "life" and "death."

About the Author

Ramona French owned a massage school and taught massage for 28 years. In that time she wrote textbooks on Swedish, acupressure, deep tissue and lymph drainage massage. She is the author of "Introduction to Lymph Drainage Massage" and "Milady's Guide to Lymph Drainage Massage." Her book, "The Complete Guide to Lymph Drainage Massage," published by Milady, was released in October 2011.

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