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Cafferty, Scheidegger & Johnson, S.C.
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First-Degree Intentional Homicide (§ 940.01)

First-degree intentional homicide § 940.01 is Wisconsin's most serious charge: Class A felony, mandatory life. How we defend it, what the State must prove.

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First-Degree Intentional Homicide Is the Top of the Sentencing Ladder

In Wisconsin, first-degree intentional homicide is the most serious crime on the books. It is a Class A felony, and § 939.50(3)(a) sets a single penalty for that class: life imprisonment. If you or a family member is accused, the single most important decision in the case is which lawyer walks into that first appearance with you.

The law at a glance

Under § 940.01, first-degree intentional homicide is a Class A felony. The penalty is life imprisonment. For a crime committed on or after December 31, 1999, § 973.014(1g)(a) requires the judge to set extended supervision eligibility at 20 years, at a later date the court chooses, or never. Section 973.014(1g)(c) states that a person sentenced to life imprisonment under that paragraph “is not eligible for release on parole.” There is no maximum fine; the statute does not list one.

What the State Must Prove Beyond a Reasonable Doubt

The prosecution must establish three elements:

  1. The defendant caused the death of another human being. Causation can be challenged where intervening medical treatment, pre-existing condition, or alternative cause is in the evidence.
  2. The defendant acted with intent to kill. Intent is proved almost entirely by inference from conduct, the weapon used, the part of the body targeted, the words spoken, the flight or lack of it afterward.
  3. No mitigating circumstance reduced the charge. Mitigation under § 940.01(2) is an affirmative defense the defense raises. Once it “has been placed in issue by the trial evidence,” § 940.01(3) puts the burden on the State to prove beyond a reasonable doubt that the facts constituting the defense did not exist. If it cannot, the charge drops to second-degree intentional homicide under § 940.05.

Mitigation: The Most Important Lever in a § 940.01 Case

Wisconsin law does not use the common-law “heat of passion” manslaughter theory. Instead, § 940.01(2) sets out four mitigating circumstances, each an affirmative defense that converts a first-degree charge to second-degree:

  • Adequate provocation (§ 940.01(2)(a)), death caused “under the influence of adequate provocation as defined in s. 939.44.”
  • Unnecessary defensive force (§ 940.01(2)(b)), the defendant believed he, she, or another was in imminent danger of death or great bodily harm and that the force used was necessary, and either belief was unreasonable.
  • Prevention of felony (§ 940.01(2)(c)), the defendant believed the force was necessary in the exercise of the privilege to prevent or terminate a felony, and that belief was unreasonable.
  • Coercion; necessity (§ 940.01(2)(d)), death caused “in the exercise of a privilege under s. 939.45 (1).”

Raising mitigation moves the case from life imprisonment to a Class B felony with a 60-year maximum under § 940.05. The effort to establish one of these circumstances begins in the opening statement and runs through every witness.

Defense Angles Outside Mitigation

  • Self-defense under § 939.48, complete defense if the jury finds reasonable belief of imminent death or great bodily harm. The “castle doctrine” presumption in Wisconsin applies inside a home, motor vehicle, or place of business.
  • Identity. DNA, fingerprints, video, and eyewitness identifications all deserve independent forensic challenge.
  • Confession suppression, Miranda, voluntariness, and Sixth Amendment challenges to statements made during interrogation. Many § 940.01 convictions rest on a contested confession.
  • Co-defendant statements, Bruton and hearsay issues when the State intends to use a non-testifying co-defendant’s statement.
  • Forensic review, ballistics, wound-track analysis, time-of-death estimates, and blood-spatter reconstruction routinely rest on assumptions that expert defense review can undermine.

Timeline and Procedure

A first-degree intentional homicide case moves through three critical stages:

  • Initial appearance and bond hearing. In Racine, Kenosha, and Walworth Counties, cash bond in the six- and seven-figure range is routine. Preparation for the bond argument begins the moment we are retained.
  • Preliminary hearing and arraignment. The State must show probable cause at a preliminary hearing. The defense first sees much of the evidence here.
  • Trial. Wisconsin first-degree trials are usually the longest criminal trials the circuit sees in a given year. Jury selection alone often runs several days.

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Frequently Asked Questions

How long do you go to prison for first-degree intentional homicide in Wisconsin?
First-degree intentional homicide under § 940.01 is a Class A felony, and § 939.50(3)(a) fixes the penalty for a Class A felony as life imprisonment. For a crime committed on or after December 31, 1999, § 973.014(1g)(a) requires the sentencing judge to choose one of three options: the person is eligible for release to extended supervision after serving 20 years; eligible on a later date set by the court; or not eligible for release to extended supervision. There is no discretionary lower sentence.
What is the difference between first-degree and second-degree intentional homicide in Wisconsin?
Both require proof of intent to kill. The difference is mitigation. First-degree (§ 940.01) carries life imprisonment. Second-degree (§ 940.05) is a Class B felony with up to 60 years. Section 940.01(2) lists four affirmative defenses that mitigate the offense to second-degree intentional homicide: adequate provocation, unnecessary defensive force (imperfect self-defense), prevention of felony, and coercion or necessity under § 939.45(1). If one is placed in issue by the trial evidence and the State cannot disprove it beyond reasonable doubt, the conviction lands at § 940.05 instead of § 940.01. Establishing one of the four statutory mitigators is often where the case is decided.
What does the State have to prove for first-degree intentional homicide?
Three elements beyond reasonable doubt: (1) the defendant caused the death of another human being; (2) the defendant acted with intent to kill; and (3) no statutory mitigator applies once raised. Causation is challenged where intervening medical treatment, pre-existing conditions, or alternative cause is in evidence. Intent is almost always inferred from circumstance: weapon used, body part targeted, words spoken, conduct after the act. Each inference is contestable.
Can a first-degree intentional homicide charge be reduced or dismissed?
Yes. The most common reduction is from § 940.01 to § 940.05 (second-degree intentional) on a successful mitigation showing, which converts life imprisonment to a 60-year maximum. Outright dismissal can follow suppression of a contested confession (Miranda or voluntariness), successful self-defense under § 939.48 (a complete defense if the State cannot disprove reasonable belief of imminent deadly threat), failed identification, or causation challenges that break the link between conduct and death. Every § 940.01 case has multiple defense angles; never assume the charge is fixed.
Should I plead guilty to first-degree intentional homicide?
Almost never as a first response. A guilty plea to § 940.01 locks in life imprisonment. The only meaningful leverage in the case is the § 973.014 extended-supervision determination, and that leverage is built by attacking the State's intent evidence, raising mitigation, suppressing statements, and forcing the State to prove every element. Even if the evidence appears overwhelming, a plea without first running those defenses surrenders the only outcomes that materially differ.
Is self-defense a defense to first-degree intentional homicide?
Yes. Under § 939.48, deadly force is justified if the defendant reasonably believed it was necessary to prevent imminent death or great bodily harm. Wisconsin recognizes a castle-doctrine presumption of reasonableness for force used inside a home, motor vehicle, or place of business. If the State cannot disprove reasonable self-defense beyond reasonable doubt, the result is acquittal. If the belief was actual but unreasonable (imperfect self-defense), the charge reduces to second-degree intentional homicide under § 940.05 rather than acquittal.
Does first-degree intentional homicide stay on your record forever?
Yes, permanently. Expungement under § 973.015(1m)(a)1. reaches only a person who was under the age of 25 at the time of the offense and only where the maximum period of imprisonment is 6 years or less; § 940.01 carries life imprisonment, so it can never qualify. The conviction sits permanently on Wisconsin CCAP, the FBI NCIC database, and every commercial background check. It triggers lifetime federal firearm prohibition under 18 U.S.C. § 922(g)(1), forecloses every professional license, ends federal employment eligibility, and is a permanent immigration bar.
How much does a first-degree intentional homicide defense lawyer cost?
First-degree intentional homicide engagements are priced as flat fees at the highest end of our range. The cost reflects multi-week trial preparation, retained experts (forensic pathology, ballistics, DNA, often a psychiatrist or psychologist for mitigation), investigator costs, and routinely six to twelve months of pretrial motion practice (Miranda, voluntariness, Bruton, search-suppression, identification motions). The specific quote depends on evidence volume and likely trial length. Public defenders represent clients who cannot afford private counsel; every other engagement is a flat fee tied to the work the case requires.
What does a life sentence mean in Wisconsin?
For a crime committed on or after December 31, 1999, § 973.014(1g)(a) requires the sentencing judge to make an extended supervision eligibility determination and pick one of three options: (1) eligible for release to extended supervision after serving 20 years, (2) eligible on a later date set by the court, or (3) not eligible for release to extended supervision. Parole is not an option on those cases: § 973.014(1g)(c) states that a person sentenced to life imprisonment under par. (a) is not eligible for release on parole. The older parole-eligibility framework in § 973.014(1) applies only to crimes committed on or after July 1, 1988, but before December 31, 1999.

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From our offices in Racine and Kenosha Wisconsin, the criminal defense lawyers at Cafferty, Scheidegger & Johnson defend the rights of people charged with state and federal criminal offenses throughout Southeastern Wisconsin (Racine, Kenosha, Walworth). If you or a loved one is charged with a crime, contact us today to arrange a free initial consultation with an experienced Racine criminal defense attorney right away. For urgent matters, you are welcome to call or text us 24 hours a day at (262) 632-5000.

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The attorneys at Cafferty, Scheidegger & Johnson have excellent knowledge of the state and federal court system throughout Southeastern Wisconsin. They are aggressive trial lawyers that are recognized for integrity and hard work. Our law firm’s strength lies in our exceptional pre-trial investigation and case preparation. We come to the prosecutor’s office prepared with the facts and ready to help you get the best possible outcome for your charges. Our priority is always to keep you out of jail and avoid a conviction on your record, whenever possible.

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The dedication of the team at Cafferty, Scheidegger & Johnson to client service and their record of success has earned them listings as Wisconsin Super Lawyer® from 2008 - 2026. In addition, their reputation for high standards has earned them an AV Preeminent rating by Martindale-Hubbell. Cafferty, Scheidegger & Johnson is backed by more than 32 years of trial skills and courtroom experience.

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