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Second-Degree Intentional Homicide (§ 940.05)

Second-degree intentional homicide in Wisconsin: Class B felony, up to 60 years. Mitigation separates it from first-degree, and that is where it's won.

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Second-Degree Intentional Homicide Is a First-Degree Charge With Mitigation

Wisconsin law treats second-degree intentional homicide as the mitigated version of first-degree. The defendant intentionally caused the death, but one of the four mitigating circumstances in § 940.01(2) reduces the charge. A successful mitigation argument on a § 940.01 case lands the conviction at § 940.05.

The law at a glance

Under § 940.05, second-degree intentional homicide is a Class B felony. Maximum sentence is 60 years of bifurcated confinement and extended supervision: § 939.50(3)(b) reads “For a Class B felony, imprisonment not to exceed 60 years.” There is no mandatory minimum. Under § 973.01(1), a bifurcated sentence is required for any felony committed on or after December 31, 1999, which is what truth-in-sentencing means in practice.

What the State Must Prove

  • The defendant caused the death of another human being.
  • The defendant acted with intent to kill, the same intent element as first-degree.
  • Either the prosecution admits mitigation applies, or the jury finds it does after the defense raises it.

The prosecution files a § 940.05 charge when the facts show intentional killing but the provocation or defensive-force evidence is strong enough that a first-degree jury verdict is unlikely. The defense files for § 940.05 when the charging is § 940.01.

The Four Statutory Mitigators

These are defined at § 940.01(2), which describes them as “affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05”:

  • 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. This is imperfect self-defense.
  • 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).”

Under § 940.01(3), once an affirmative defense under sub. (2) “has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist.” That burden allocation is the hidden leverage in these cases.

Why § 940.05 Cases Are Often Winnable Beyond Mitigation

A case charged at second-degree signals the prosecution already knows its first-degree proof is weak. That weakness can often be pressed harder:

  • Imperfect self-defense can upgrade to perfect self-defense under § 939.48 if the defendant’s belief was objectively reasonable. Perfect self-defense is a complete acquittal.
  • Causation challenges, intervening medical treatment, co-defendant acts, or pre-existing conditions can break the causal chain.
  • Intent challenges, if the jury cannot find intent to kill beyond a reasonable doubt, the charge drops to a reckless homicide theory.
  • Reckless-homicide reduction, if intent is unproven but recklessness is, the conviction comes in at first-degree reckless under § 940.02, which carries a lower maximum.

Sentencing Reality in § 940.05 Cases

Because § 940.05 is a Class B felony, the 60-year statutory maximum is divided into confinement and extended supervision. Judges in Racine, Kenosha, and Walworth Counties commonly impose sentences in the 20-to-40-year range, with the final apportionment heavily influenced by:

  • Strength of mitigation at trial.
  • Defendant’s criminal history.
  • Victim impact statements and the prosecutor’s recommendation.
  • Read-ins of related but uncharged conduct.

We brief mitigation aggressively at sentencing, witnesses, records, mental-health evaluations, and a written memorandum, because the range of outcomes under the same statute is extremely wide.

Get a Lawyer Into the Case Early

Second-degree intentional homicide cases are won with preparation that begins before the preliminary hearing. Call or text Cafferty, Scheidegger & Johnson at (262) 632-5000. Consultations are free, confidential, and available 24 hours a day.

Frequently Asked Questions

How long do you go to prison for second-degree intentional homicide in Wisconsin?
Second-degree intentional homicide under § 940.05 is a Class B felony, up to 60 years total: split into initial confinement and extended supervision under § 939.50 and § 973.01. There is no mandatory minimum. Truth-in-sentencing applies for offenses after December 31, 1999, so the confinement portion is served day-for-day. Sentences in Racine, Kenosha, and Walworth Counties commonly land in the 20-to-40-year range, with apportionment driven by mitigation strength and criminal history.
What is the difference between first-degree and second-degree intentional homicide?
Both require intent to kill. The difference is mitigation. First-degree (§ 940.01) carries life imprisonment. Second-degree (§ 940.05) is a Class B felony, 60-year max, when one of the four mitigating circumstances in § 940.01(2) applies: adequate provocation, unnecessary defensive force (imperfect self-defense), prevention of felony, or coercion and necessity under § 939.45(1). Once mitigation is placed in issue by the trial evidence, § 940.01(3) puts the burden on the State to disprove it beyond reasonable doubt. That burden-shift is the structural leverage in these cases.
What does the State have to prove for second-degree intentional homicide?
Three elements: (1) the defendant caused the death of another, (2) the defendant acted with intent to kill, and (3) either the prosecution conceded mitigation or the defense raised it. The intent element is identical to first-degree. Where the State files at § 940.05 directly, it has signaled internally that the first-degree proof is weak, often because the defensive-force or provocation evidence is strong. That weakness can be pressed harder at trial.
Can a second-degree intentional homicide charge be reduced or dismissed?
Yes. The most consequential reduction is to a reckless-homicide theory: if the State cannot prove intent to kill beyond reasonable doubt, the conviction comes in at first-degree reckless homicide under § 940.02 (still 60-year max but easier to attack on utter disregard) or second-degree reckless under § 940.06 (Class D felony, 25-year max, less than half). Outright acquittal can follow successful perfect self-defense under § 939.48 if the defendant's belief was objectively reasonable. Imperfect self-defense becomes perfect self-defense once reasonableness is established.
Should I plead guilty to second-degree intentional homicide?
Almost never as a first response. The State must prove intent to kill beyond reasonable doubt, and intent in homicide cases is almost entirely circumstantial. A plea forfeits the reckless-homicide reduction (which can cut the maximum from 60 years to 25), forfeits perfect-self-defense acquittal under § 939.48, and forfeits any suppression challenge to a contested confession. Even when mitigation is conceded, the defense work between charging and sentencing routinely cuts the confinement portion by years.
What are the statutory mitigators for second-degree intentional homicide?
Section 940.01(2) lists four, and § 940.05 works off the same list: (1) adequate provocation, as defined in § 939.44; (2) unnecessary defensive force, where the defendant believed he or 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 (imperfect self-defense); (3) prevention of felony, where the defendant believed the force was necessary in the exercise of the privilege to prevent or terminate a felony and that belief was unreasonable; and (4) coercion or necessity, where death was caused in the exercise of a privilege under § 939.45(1). Once one is placed in issue by the trial evidence, § 940.01(3) requires the State to disprove it beyond reasonable doubt.
Does second-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; § 940.05 is a Class B felony with a 60-year maximum, so it can never qualify. The conviction sits permanently on CCAP, NCIC, and every commercial background check, triggers lifetime federal firearm prohibition under 18 U.S.C. § 922(g)(1), and is a permanent immigration bar (aggravated felony under federal removal law).
Is imperfect self-defense the same as perfect self-defense in Wisconsin?
No. Perfect self-defense under § 939.48 is a complete defense leading to acquittal: the defendant reasonably believed deadly force was necessary to prevent imminent death or great bodily harm. Imperfect self-defense is a mitigator under § 940.01(2)(b) reducing first-degree intentional to second-degree intentional: the defendant actually believed force was necessary, even though that belief was objectively unreasonable. The same evidence often supports both arguments simultaneously, with perfect self-defense as the primary defense and imperfect as the fallback if the jury rejects reasonableness.
How much does a second-degree intentional homicide defense lawyer cost?
Second-degree intentional homicide engagements run as flat fees at the high end of our range. The cost reflects experts (forensic pathology, ballistics, often a psychologist for mitigation and provocation evidence), investigator work on the underlying incident, and routinely months of pretrial motion practice. Specific quote depends on whether the State charged at § 940.05 from filing or whether we are working to negotiate a § 940.01 charge down to § 940.05, plus evidence volume and trial likelihood.

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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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