Attempted second degree murder is a felony charge brought when someone tries to kill another person with intent to kill but without the advance planning that defines first degree murder, and the victim survives. Under federal law it carries up to 20 years in prison, a fine, or both.1Office of the Law Revision Counsel. 18 USC 1113 – Attempt to Commit Murder or Manslaughter State penalties vary but are comparably severe. The charge is harder to prove than most people expect, and the reason has to do with how “attempt” interacts with the mental state the law requires.
What the Charge Means
Federal law defines murder as an unlawful killing with malice aforethought. First degree murder requires that the killing be willful, deliberate, and premeditated. Second degree murder is, by statute, “any other murder” that doesn’t clear that higher bar.2Office of the Law Revision Counsel. 18 USC 1111 – Murder In practice it covers intentional killings that happen in the moment without advance planning, such as a fatal attack during a sudden confrontation.
The “attempt” piece means the person tried to carry out the killing and failed. The victim doesn’t have to be physically injured for the charge to apply. What matters is how close the defendant came and what their conduct shows about what they were trying to do.
The Intent Problem Prosecutors Have to Solve
This is where attempted second degree murder gets legally tricky. A completed second degree murder conviction can rest on recklessness alone: federal jury instructions define malice aforethought as killing “either deliberately and intentionally or recklessly with extreme disregard for human life.”3Ninth Circuit District & Bankruptcy Courts. 18 USC 1111 – Murder Second Degree Firing a gun into a crowded room without aiming at anyone specific can support the completed charge if someone dies.
An attempt charge almost always requires more. You cannot “attempt” to be reckless. Recklessness is not goal-directed, and an attempt implies a purposeful objective that the defendant failed to reach. So the same shot fired into a crowd that hits no one creates a problem for prosecutors: the conduct was dangerous, but did the defendant specifically intend to kill a particular person? If not, the attempt charge may not hold.
Prosecutors have to show the defendant wanted a specific person dead and acted toward that goal. Courts infer intent from the whole picture: the weapon used, where shots or blows were directed, statements the defendant made before or during the attack, and the pattern of conduct overall. A gunshot aimed at the chest tells a different story than a punch to the shoulder, even if the victim survives both. When the evidence doesn’t support intent to kill, the charge often gets reduced to aggravated assault or a similar offense. Federal sentencing guidelines route attempted manslaughter cases to the aggravated assault guideline rather than the attempted murder guideline for the same reason.4United States Sentencing Commission. 2A2.1 – Assault with Intent to Commit Murder; Attempted Murder
What Counts as an Attempt
Thinking about killing someone isn’t a crime. Even preparing to do it may not be enough. The prosecution has to show the defendant took a “substantial step” toward actually committing the murder, and under the Model Penal Code framework followed in most jurisdictions, that step must be “strongly corroborative of the actor’s criminal purpose.”5Open Casebook. Model Penal Code 5.01 Criminal Attempt
The Model Penal Code identifies specific conduct courts can treat as sufficient: following a targeted victim, lying in wait, scouting the location where the crime would happen, breaking into a building where the crime was planned, or possessing materials specially designed for the attack that serve no legitimate purpose.5Open Casebook. Model Penal Code 5.01 Criminal Attempt Buying a knife at a hardware store probably isn’t enough on its own. Buying the knife, driving to the victim’s home, and waiting outside with it almost certainly is.
Federal Penalties
Under 18 U.S.C. ยง 1113, attempted murder within federal jurisdiction is punishable by up to 20 years in prison, a fine, or both.1Office of the Law Revision Counsel. 18 USC 1113 – Attempt to Commit Murder or Manslaughter That statutory cap is the same whether the underlying offense would have been first or second degree murder.
Within that ceiling, federal sentencing guidelines set the actual range a judge works from. Attempted second degree murder starts at a base offense level of 27. Adjustments raise that level based on the harm actually caused:
- Four additional levels if the victim suffered permanent or life-threatening injury
- Two additional levels if the victim suffered serious bodily injury
- Four additional levels if the offense involved payment for the killing
These offense levels combine with the defendant’s criminal history to produce a guideline range.6United States Sentencing Commission. USSG 2A2.1 – Assault with Intent to Commit Murder; Attempted Murder State penalties vary widely, with some jurisdictions imposing sentences ranging from roughly 5 to 15 years and others authorizing much longer terms.
Prison is not the end of the financial picture. The Mandatory Victims Restitution Act requires a convicted defendant to cover the victim’s medical and rehabilitation costs, lost income, and expenses tied to participating in the prosecution.7Office of the Law Revision Counsel. 18 USC 3663A – Mandatory Restitution to Victims of Certain Crimes For someone who survived an attempted killing, those costs can run into six figures or more.
Defenses That Can Apply
Lack of Specific Intent
This is the single most common defense in attempted murder cases, and it flows directly from the intent problem discussed above. If the evidence shows the defendant meant to frighten, injure, or wound the victim rather than kill them, the attempt charge fails. A lesser conviction like aggravated assault may still result, but the sentencing exposure drops sharply.
Abandonment or Renunciation
A defendant who voluntarily gave up the attempt before completing it may have an affirmative defense. Under the Model Penal Code, the renunciation must be “complete and voluntary.” It doesn’t count if the defendant stopped because of a greater fear of getting caught, because circumstances made the crime harder to pull off, or because they decided to try again later or against a different victim.8Vermont General Assembly. Model Penal Code 5.01 – Criminal Attempt The defendant carries the burden of proof, and the defense rarely succeeds because most mid-crime stops are self-interested.
Impossibility
Factual impossibility usually isn’t a defense. If the defendant fires into a bed believing the victim is sleeping there, an empty bed doesn’t negate the attempt. The intent and the conduct were what they were. Legal impossibility can be a defense: if the defendant believed their conduct was criminal but it actually wasn’t illegal, there’s no underlying crime to have attempted.
Life After a Conviction
A conviction for attempted second degree murder is a violent felony, and the consequences extend well past the prison term.
Federal law permanently prohibits anyone convicted of a crime punishable by more than a year in prison from possessing firearms or ammunition.9Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Attempted murder clears that threshold easily. Violating the ban is a separate federal felony, and defendants with three or more prior violent felony convictions face a 15-year mandatory minimum under the Armed Career Criminal Act.
Employment prospects narrow considerably. Federal agencies generally allow applicants with criminal records, but a violent felony conviction triggers close scrutiny of the offense, how recently it occurred, and any evidence of rehabilitation.10USAJOBS Help Center. Can I Work for the Government if I Have a Criminal Record? A conviction this serious effectively disqualifies applicants from most positions, especially those requiring security clearances or contact with vulnerable populations. Many private employers reach the same conclusion after a background check.
Professional licensing boards in fields like healthcare, law, education, and finance routinely deny or revoke licenses based on violent felony convictions. Voting rights, housing eligibility, and immigration status can all be affected as well, with the specifics depending on the jurisdiction.