Homicide and Murder Defense in Wisconsin

If you are facing homicide charges in Wisconsin, the first thing to understand is that Wisconsin’s criminal code uses the word “murder” in exactly one place: felony murder. Every other homicide offense is graded by intent or recklessness. Which statute the State charges under determines whether the exposure is life imprisonment or a 25-year maximum.

Gimbel, Reilly, Guerin & Brown, LLP has defended homicide cases in Milwaukee County and in circuit courts across Wisconsin since 1968. What follows is what each offense requires the State to prove, what it carries, and where these cases are contested.

Does Wisconsin charge murder?

Only in one form. Wisconsin restructured its homicide code effective in 1989, replacing first- and second-degree murder with offenses graded by mental state. First-degree intentional homicide is the analog of the old first-degree murder. First-degree reckless homicide is the analog of the old second-degree murder. Felony murder kept its name.

The restructuring came through 1987 Wisconsin Act 399, and the Judicial Council Notes published with the statutes record the mapping directly. How the old names translate:

First-degree murder is now first-degree intentional homicide, § 940.01.
Second-degree murder is now first-degree reckless homicide, § 940.02. It is not second-degree intentional homicide, which is a separate offense.
Manslaughter no longer exists as a Wisconsin offense.
Felony murder, § 940.03, is the only surviving use of the word.

That second mapping catches people off guard, including people who have already spoken to a lawyer in another state. Content written for other states does not transfer, and neither does the vocabulary.

What is first-degree intentional homicide in Wisconsin?

Causing the death of another human being with intent to kill that person or another. It is a Class A felony, the most serious classification in Wisconsin law, and a Class A felony carries life imprisonment. The statute contains no premeditation element, so the State does not have to prove planning.

The offense is defined at Wis. Stat. § 940.01(1)(a), the penalty comes from Wis. Stat. § 939.50(3)(a), and the pattern instruction is Wis JI-Criminal 1010. Several features surprise clients:

Causation is broad. The State proves only that the defendant’s conduct was a substantial factor in the death, not the sole cause.
An intervening act being negligent, intentional, or legally wrongful does not break the chain.
The old rule requiring death within a year and a day of the injury has been abrogated, so a death after long hospitalization still supports the charge.
The affirmative defense for victims of human trafficking is a complete defense to this charge, not merely a mitigating factor.

How do mitigating circumstances reduce a first-degree charge?

Four mitigating circumstances reduce first-degree intentional homicide to second-degree intentional homicide. Once any of them is placed in issue by the trial evidence, the State must disprove it beyond a reasonable doubt. The burden does not sit with the defense, which is the single most misunderstood point in Wisconsin homicide law.

Section 940.01(2) lists them, and subsection (3) assigns the burden. The four:

Adequate provocation.
Unnecessary defensive force, which is what most people mean by imperfect self-defense.
Prevention of a felony, where the belief that force was necessary was unreasonable.
Coercion or necessity.

Unnecessary defensive force applies where the defendant believed they or another was in imminent danger of death or great bodily harm and believed the force used was necessary, but one or both beliefs was unreasonable. The Wisconsin Supreme Court held in 2002 that a defendant seeking that instruction need not clear the objective threshold applied to perfect self-defense, and that evidence of the victim’s violent character is admissible to support the defendant’s actual beliefs even where unreasonable. On request, the lesser offense must be submitted to the jury if the evidence could support a finding that the State has not carried its burden.

What is second-degree intentional homicide?

Intentionally causing a death where the State cannot disprove mitigation. It is a Class B felony carrying up to 60 years. The structure is unusual: a person is guilty under this section precisely because the State failed to prove beyond a reasonable doubt that mitigating circumstances did not exist, or conceded it could not.

Wis. Stat. § 940.05(1) sets that structure out. What follows from it:

By charging under this section, the State concedes it cannot disprove mitigation.
The mitigating circumstances are not defenses to this offense. They have already done their work by the time the charge is filed.
The maximum is 60 years with no mandatory minimum, and no life sentence.
For a client facing a first-degree charge, moving the case here replaces a mandatory life sentence with a discretionary term.

What is first-degree reckless homicide?

Recklessly causing the death of another human being under circumstances that show utter disregard for human life. A Class B felony carrying up to 60 years. Utter disregard is the element that separates it from second-degree reckless homicide, and it is where these cases are contested.

The offense sits at Wis. Stat. § 940.02(1), with the pattern instruction at Wis JI-Criminal 1020. Utter disregard is an objective standard, assessed from the acts that caused the death and the totality of the circumstances rather than from what the defendant says they were thinking. In 2021, the Wisconsin Supreme Court held that where evidence showed a defendant acted in fear for his own life rather than with utter disregard, the circuit court should have instructed on second-degree reckless homicide as a lesser included offense.

Section 940.02(2), known as Wisconsin’s Len Bias law, is a separate Class B felony reaching deaths caused by delivering certain controlled substances:

It applies to manufacturing, distributing, delivering, or administering a Schedule I or II controlled substance, an analog, ketamine, or flunitrazepam.
Where possession changed hands more than once before the death, each person in that chain who delivered can be charged.
The Court of Appeals has held that driving someone to meet a seller can constitute aiding and abetting the delivery, so the statute reaches people who sold nothing.

What is second-degree reckless homicide?

Recklessly causing the death of another human being, without the utter disregard element. It is a Class D felony carrying up to 25 years and a fine of up to $100,000. It is the lesser included offense of first-degree reckless homicide and frequently where a contested reckless homicide case resolves.

The offense is at Wis. Stat. § 940.06 and the instruction is Wis JI-Criminal 1060. Recklessness requires a subjective mental state: the defendant must have been aware their conduct created an unreasonable and substantial risk of death or great bodily harm. It is not ordinary carelessness. This offense also carries a 15-year time limit, which sets it apart from the more serious homicide charges.

What is felony murder in Wisconsin?

Causing a death while committing or attempting to commit one of a list of specified felonies. Felony murder adds up to 15 years to the maximum term for the underlying crime. It requires no intent to kill, and it reaches people who never touched the person who died.

Wis. Stat. § 940.03 covers deaths caused during sexual assault, false imprisonment, kidnapping, certain battery offenses, arson, burglary, vehicular burglary, robbery, and making terroristic threats. The list is amended periodically and was last changed in 2025, so the current statute is the only reliable source. Three points clients find hardest:

The crime is complete without specific intent. The State need not prove anyone meant for a death to occur.
Liability extends to a party to the underlying felony, so a lookout or driver can face felony murder for a death caused by someone else.
It is not a penalty enhancer. It is a stand-alone unclassified crime, and Wis JI-Criminal 1030 sets out the arithmetic: 75 percent of the resulting term is maximum confinement, 25 percent is maximum extended supervision.

Does Wisconsin have manslaughter charges?

No. Manslaughter was eliminated when Wisconsin restructured its homicide code, and no Wisconsin statute creates that offense today. Conduct once charged as manslaughter is now handled either as second-degree intentional homicide, through the mitigating circumstances in § 940.01(2), or as reckless homicide.

The Judicial Council Note published with § 940.02 explains what happened. Under prior law, adequate provocation mitigated second-degree murder down to manslaughter. Under the revision, the successor offenses to those two crimes carry the same penalty, so that route no longer exists. Provocation evidence still matters, but differently:

In a recklessness case, it is generally admissible as relevant to whether the risk taken was unreasonable and whether the circumstances showed utter disregard.
It is not an affirmative defense to a reckless homicide charge.
The burden-shifting rule in § 940.01(3) does not apply to it.

Anyone told they are facing a manslaughter charge in Wisconsin has been told something inaccurate, and the actual charge is worth confirming immediately.

How does Wisconsin charge vehicular homicide?

There is no Wisconsin offense called vehicular homicide. A death caused by driving is charged under § 940.09, homicide by intoxicated use of a vehicle or firearm, or under § 940.10, homicide by negligent operation of a vehicle. In some circumstances, the same death is charged as reckless homicide instead.

Section 940.09 and section 940.10 divide as follows:

Section 940.09 reaches operating or handling a vehicle while under the influence, with a detectable amount of a restricted controlled substance in the blood, or with a prohibited alcohol concentration.
Parallel provisions in the same section apply to operating or handling a firearm or an airgun.
The penalty depends on which subsection applies and on prior record; the statute sets it separately rather than assigning a single felony class.
Section 940.10 reaches a death caused by negligent operation of a vehicle, with no intoxication element.

Which statute the State selects has a substantial effect on exposure, and the same fatal crash can support charges under more than one provision.

Is there a statute of limitations on homicide in Wisconsin?

It depends on the offense, and the common claim that homicide has no time limit in Wisconsin is only partly right. There is no time limit on prosecutions under §§ 940.01, 940.02, 940.03, or 940.05, or on an attempt to commit § 940.01 or § 940.05. Second-degree reckless homicide must be prosecuted within 15 years.

Wis. Stat. § 939.74 sets a general six-year limit on felonies and then carves out the offenses above. Two further provisions extend the State’s time:

Where the State collects biological material, identifies a DNA profile, and matches it to a known person, prosecution may begin within 12 months after that comparison produces a probable identification, or within the otherwise applicable period, whichever is later.
Time during which a person was not publicly a resident of Wisconsin is excluded from the calculation.

This is why a decades-old case can be charged as first-degree intentional homicide but not as every homicide offense on the books.

What does a life sentence mean in Wisconsin?

Life imprisonment in Wisconsin is not automatically life without release. For a crime committed on or after December 31, 1999, the sentencing court chooses among three options: eligibility for release to extended supervision after serving 20 years, eligibility on a later date the court sets, or no eligibility for release to extended supervision at all.

That determination is made under Wis. Stat. § 973.014. A person sentenced to life under that provision is not eligible for parole, so extended supervision is the only release mechanism. The Wisconsin Supreme Court has held that a court may set an eligibility date beyond a defendant’s expected lifetime. Older convictions follow different rules, which matters in post-conviction and appellate work:

For crimes committed on or after July 1, 1988 but before December 31, 1999, the court made a parole eligibility determination instead.
The options there were ordinary parole eligibility, a later date set by the court, or no parole eligibility at all.
That last option was available only for crimes committed on or after August 31, 1995.

In a first-degree intentional homicide case where guilt is not seriously in dispute, this determination is the case. The conviction carries life imprisonment either way. What the court decides about eligibility is the difference between a sentence with a horizon and one without, and preparing that record begins long before the sentencing hearing.

Talk to a Wisconsin homicide defense lawyer

Homicide charges in Wisconsin are defended on the specifics: which statute the State selected, whether the mental state it requires can be proven, whether mitigating circumstances are in play and who must prove what about them, and which lesser included offenses the jury will be permitted to consider.

Gimbel, Reilly, Guerin & Brown, LLP has been a trial and litigation firm in Milwaukee since 1968. Our criminal defense team includes former prosecutors and former Wisconsin State Public Defenders, and the firm represents clients serving life and multiple life sentences at every level of review. We appear in Milwaukee County Circuit Court and in circuit courts throughout Wisconsin.

If you or a family member has been arrested or contacted by investigators in connection with a death, call 414-271-1440 or send a message through our contact form.

Frequently asked questions

Does the State have to prove premeditation?

No. Wisconsin’s first-degree intentional homicide statute contains no premeditation element. The State must prove an intent to kill, and that intent can be formed in a moment.

What is the difference between perfect and imperfect self-defense?

Perfect self-defense is a complete defense producing an acquittal, and requires that the defendant reasonably believed force was necessary to prevent imminent death or great bodily harm. Imperfect self-defense, which the statute calls unnecessary defensive force, applies where the defendant actually held those beliefs but one or both were unreasonable. It reduces first-degree intentional homicide to second-degree rather than producing an acquittal.

What is attempted first-degree intentional homicide?

The State must prove the defendant took substantial steps toward causing a death with intent to kill, and that the attempt was not mitigated. Like the completed offense, an attempt may be prosecuted at any time.

Can an intervening cause break the chain of causation?

Rarely. An actor causes death when their conduct is a substantial factor in bringing about that result, and whether an intervening act was negligent, intentional, or legally wrongful is irrelevant. In one case the Court of Appeals held that even a wrongful termination of life support would not have broken the chain.

Can a juvenile receive a life sentence in Wisconsin?

Yes, though the court’s discretion is constrained. The Court of Appeals has held that Miller v. Alabama did not foreclose imposing life without the possibility of supervised release on a juvenile in a homicide case, but that sentencing courts must account for how children differ from adults.

Last reviewed: August 2026

This page is provided for informational purposes only and does not constitute legal advice. Reading this page or contacting Gimbel, Reilly, Guerin & Brown, LLP through this website does not create an attorney-client relationship. Every case is different, and prior results do not guarantee or predict a similar outcome in any future matter.