Pennsylvania “Cruel Punishments” Decision Nods Toward International Human Rights Law 

For decades, Pennsylvania courts brushed aside the distinctive history and text of the state’s constitution’s bar on “cruel punishments” to instead follow the federal construction of the Eighth Amendment in lockstep. That changed last week when the Pennsylvania Supreme Court ruled that the state constitution barred the mandatory sentence of life without parole for individuals convicted of felony murder. The groundbreaking decision is notable for many reasons, including the ways that international law was baked into the arguments and the justices’ opinions.

A felony murder conviction does not require that the government demonstrate the defendant had an intent to kill. Instead, the necessary intent for felony murder is constructively inferred from the defendant’s intent to perpetrate the underlying felony. Illinois enacted the first felony murder statute in the United States in 1827, which defined murder to include an unintentional killing occurring during a felonious act. Similar schemes were in place in 19 states by the end of the 19th century. However, recognizing the harshness of the rule, many of these states later cut back on its scope. For example, some states lowered the required sentence or expanded the availability of parole for people convicted of felony murder. According to the Pennsylvania Supreme Court, by 2026 only five states — Iowa, Louisiana, Mississippi, North Carolina, and Pennsylvania — imposed mandatory life-without-parole sentences, without exceptions, for felony murder.

Derek Lee was convicted of second-degree murder in Pennsylvania in 2016 after his accomplice in a robbery shot and killed the robbery victim. In Pennsylvania, second-degree murder includes any killing “committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” Under Pennsylvania law, a court has no choice but to impose life without parole on a defendant convicted of second-degree murder.

Lee challenged his sentence under both the federal and state constitutions. He argued that because he did not kill or intend to kill anybody, his culpability for the death was diminished such that a mandatory sentence of life imprisonment without the possibility of parole “was unduly harsh in relation to legitimate penological purposes and out of step with modern national and international standards.”

In striking down Lee’s sentence, the Pennsylvania high court, in Commonwealth v. Lee, first examined the federal law. Scanning the U.S. Supreme Court’s Eighth Amendment jurisprudence, the court concluded cases finding a defendant had “categorically diminished culpability” were inapplicable to Lee’s case, as they concerned only capital punishment or juvenile defendants. Without additional guidance from the U.S. Supreme Court concerning life imprisonment and adult defendants, the Pennsylvania court was unwilling to strike the state’s mandatory sentence as a matter of federal law.

Turning to whether the state constitution’s prohibition of “cruel punishments” provided independent support for Lee’s challenge, the court looked to its 1991 decision in Commonwealth v. Edmunds, which sets out a step-by-step framework for an independent analysis of state constitutional rights. According to Edmunds, the process requires review of four factors: first, the text of the relevant Pennsylvania constitutional provision; second, the history of the provision, including Pennsylvania case law; third, related case law from other states; and fourth, policy considerations, including issues of state and local concern and their applicability in modern Pennsylvania jurisprudence.

On the distinct text of the Pennsylvania Constitution, the court noted that the relevant state provision bars only “cruel punishments,” whereas the federal counterpart bars punishments that are “cruel and unusual.” The court looked to the recent U.S. Supreme Court ruling in Grants Pass v. Johnson, which explained the independent significance of the term “unusual” in the Eighth Amendment. The omission of “unusual” from the Pennsylvania Constitution, the court found, indicated that it provided broader protections to defendants than did the federal Constitution.

The history of the state provision also supported the defendant’s challenge. Pennsylvania’s bar on “cruel punishments” was adopted in 1790, one year before the federal Eighth Amendment was ratified. Examining the historical record, the court concluded that Pennsylvania’s founding fathers adopted a different perspective on punishment than other early Americans, drawn from the Commonwealth’s Quaker origins. According to the court, they “repudiated the severity of English criminal laws and de-emphasized retribution as a justification, which had served as the basis of the Eighth Amendment, and instead looked to emerging Enlightenment theories as a foundation for criminal punishment in Pennsylvania.”

The court’s historical analysis also provided a basis for distinguishing prior state court decisions that had construed the Pennsylvania Constitution in lockstep with the Eighth Amendment. According to the court, those cases were based on an incomplete understanding of, and access to, the historical record. Next, a wide-ranging survey of other state’s approaches demonstrated a variety of results, with some states operating in lockstep and others adopting an independent analysis. However, the Pennsylvania court concluded that the courts conducting the most rigorous review — for example, in Minnesota, New Jersey, and Washington, among others — had found that their state constitutions provided greater protections for their citizens than did the Eighth Amendment.

The final Edmunds prong — policy considerations — did not preclude a broader construction of the Pennsylvania constitution, the court determined. Opining that the policy prong should be cabined so as to constrain the court’s interference with other branches, the court explained that the policy considerations were too general to weigh against striking the mandatory-life-without-parole rule. The court left to the legislature the specifics of how to administer the court’s ruling, demonstrating some deference to the legislature in the policy-making realm.

Several justices concurred separately, with one, Justice Kevin Brobson, dissenting in part based on a disagreement with the court’s discussion of next steps rather than the fundamental construction of the Pennsylvania Constitution. But Justice David Wecht’s concurrence merits special mention, as it addresses the question of whether international and comparative law has any role to play in state constitutional adjudication in Pennsylvania.

International human rights law was woven into Lee’s case. His brief cited the United Nations Human Rights Committee’s request in 2023 that the United States suspend criminal sentences mandating life without parole, arguing that these punishments were out of step with U.S. treaty obligations. In addition, among the many amicus briefs filed in the case was a brief on behalf of the United Nations’s Special Rapporteur on Contemporary Forms of Racism and the UN’s Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement. They argued that Pennsylvania’s policy was a global outlier, violating human rights law both as cruel, inhuman, and degrading treatment, and because of its disparate application to Black and brown Pennsylvanians. The majority opinion noted the points that these briefs made regarding international law but did not suggest that they were binding. 

Wecht, however, went out of his way to declare that “litigation in the Supreme Court of Pennsylvania is not litigation in the International Court of Justice.” He continued: “Foreign laws, practices, or customs have no place in the analysis of the Pennsylvania Constitution.” While he acknowledged that the majority’s engagement with these international materials had been modest, he cautioned advocates to avoid submitting such materials, saying “future litigants should take note.”

Ironically, Wecht’s concurrence actually makes the case for more judicial education on international law. His opinion equated international law with foreign law, when in reality, international law is a separate, discrete body of jurisprudence. He argued, for example, that there was a danger of cherry picking when surveying foreign law, but he failed to explain how that issue might arise when citing international human rights law. He asserted that Pennsylvania’s laws were designed to differ from other nations, but failed to explain how this can be squared with the federal Supremacy Clause’s recognition that treaties are part of the supreme law of the land — certainly a persuasive source even if they are not legally binding because of reservations taken by the federal government.

In any event, despite Wecht’s position, some state courts and justices have found both international and comparative law to be useful in instances where they are independently construing a state constitution. For example, in Commonwealth v. Mattis, the Massachusetts Supreme Judicial Court examined practices of Canada and England in determining that juvenile life without parole violated the Massachusetts Constitution. Further, majorities in the U.S. Supreme Court have looked to international law to ascertain whether a particular practice is cruel and unusual, including in some of the precedents cited in the Lee decision such as Roper v. Simmons.

Indeed, former U.S. Supreme Court Justice Stephen Breyer has said that judges could learn about “what to do and what not to do” from looking to international actors. However, reliance on international or foreign sources has provoked controversy at the federal level. His colleague Justice Antonin Scalia, for example, argued forcefully that international and comparative material should not be cited in domestic decisions.

Wecht seems driven to quash even the most minimal citation of international law at the state level, too. Yet even Scalia departed from Wecht’s extreme position in Lee and said that consideration of — as opposed to reliance on — comparative materials could be useful. Future litigants, take note.

Martha F. Davis is a university distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha Davis, Pennsylvania “Cruel Punishments” Decision Nods Toward International Human Rights Law, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 30, 2026), https://statecourtreport.org/our-work/analysis-opinion/pennsylvania-cruel-punishments-decision-nods-toward-international-human