Pennsylvania Faces a Moment of Truth for Life Without Parole

Over 1,000 people in Pennsylvania are serving life without parole for murder even though they didn’t kill anyone. That could change based on a case heard last week by the state’s highest court.

Some were waiting outside in getaway cars while co-defendants robbed gas stations or convenience stores, only to learn later that an accomplice had taken a life. One knocked over an elderly woman while trying to grab her purse, and she died weeks later from injuries sustained in the fall. Another was ordered by a co-defendant to shoot a drug dealer but refused. The accomplice grabbed the gun and pulled the trigger.

They were convicted of murder based on Pennsylvania’s doctrine of “felony murder,” a charge that can be brought if a person died while the defendant was committing another felony, like robbery or burglary. Felony murder does not require that the defendant directly caused a person’s death or had an intent to kill, yet Pennsylvania law mandates life without parole for these convictions. Judges in the state have no choice but to send people convicted under the felony-murder doctrine to prison for the rest of their lives.

Now, Commonwealth v. Lee asks the Pennsylvania Supreme Court to declare that requiring lifetime imprisonment for people convicted of felony murder violates the state constitution’s ban on cruel punishments. In oral arguments last week, the court appeared open to doing so.

“Individuals are being punished for a crime for which no level of mens rea has been established,” Justice Christine Donehue said. “Therein lies the issue with whether or not that is cruel.”

“The cruelty aspect is the lack of hope,” Justice Daniel D. McCaffrey added. “There’s literally zero opportunity [for parole] regardless of how they’ve rehabilitated themselves over the course of their terms of incarceration.”

The bulk of the roughly 70-minute argument focused on the logistics of resentencing the people who would be impacted if the court decides that the sentencing practice is unconstitutional. The justices wondered whether they had the power to set a new minimum sentence for people convicted of felony murder or if they could ask the legislature to amend the sentencing and parole statutes in question, which operate together to require that anyone convicted of felony murder spend the rest of their lives behind bars.

Racial disparity, court filings say, magnifies the injustice of the sentencing practice: almost four out of every five individuals imprisoned for felony murder in Pennsylvania are Black, even though Black people make up only 12 percent of the state’s population.

The plaintiff in the case, Derek Lee, is one of the many Black Pennsylvanians serving life without parole for felony murder. In October 2014, Lee and his co-defendant unlawfully entered a home and forced the occupants, a man and a woman, to the basement. There, Lee pistol-whipped the man before returning upstairs. In a subsequent struggle between the man and Lee’s co-defendant, the gun went off, killing the man.

Lee was acquitted of first-degree murder but convicted of robbery, conspiracy, and second-degree murder — the felony-murder conviction — based on his co-defendant’s killing of the man while Lee was committing the other felonies. As a result, he received a mandatory life-without-parole sentence.

Lee appealed, arguing that his sentence was unconstitutional under the federal Eighth Amendment and Pennsylvania’s constitutional ban on cruel punishments. Lee argued that his lack of intent to kill gave him “diminished culpability” — much like people under the age of 18, who the U.S. Supreme Court has said “are less deserving of the most severe punishments.” This lesser culpability made him constitutionally ineligible for a mandatory life-without-parole sentence, Lee said. An intermediate appellate court upheld his sentence. In February, Pennsylvania’s highest court agreed to review his case.

Lee’s main argument before the state supreme court rests on the Pennsylvania Constitution. The U.S. Supreme Court has so far declined to find that life without parole for felony murder violates the federal Constitution. Although the Pennsylvania Supreme Court has previously ruled that the state prohibition on “cruel punishments” is coextensive with the Eighth Amendment’s ban on “cruel and unusual punishments,” Lee is urging the court to add Pennsylvania to the growing list of states that interpret their own constitutions as more protective than the federal counterpart.

Further, Lee argues, historical evidence makes clear that the Pennsylvania Constitution’s framers considered any punishment that did not deter wrongdoing or support rehabilitation to be cruel. Life in prison for an unintended death, Lee says, does neither.

Lee also says that the sentencing practice’s disproportionate impact on Black Pennsylvanians is unjust and that the racial disparity in felony-murder convictions is itself a reason to recognize the cruelty of such sentences.

For its part, the state argues that changing the sentencing scheme is a policymaking duty that falls to the legislature, not the courts.

The case has attracted a diverse array of friend-of-the-court briefs.

“Under current law, an offender who points a gun to a person’s head and pulls the trigger receives the same mandatory life sentence as the getaway driver of a robbery where a co-conspirator unexpectedly shot and killed someone,” Pennsylvania Gov. Josh Shapiro wrote in a brief urging the court to find the sentencing practice unconstitutional. “Both offenders should be punished severely, but they should not be punished the same.” 

The oral arguments came just a week after the Colorado Supreme Court rejected claims similar to Lee’s under its state constitution. Late last month, the Colorado court upheld the life-without-parole sentence of a man convicted of felony murder a few years before Colorado’s legislature downgraded the crime and capped the sentence for a felony-murder conviction at 48 years. In addressing whether the man’s sentence should be reduced in light of the new law, the court found that a life sentence without parole was not “categorically unconstitutional” under either state or federal law.

Michigan’s supreme court is also considering whether mandatory life without parole for felony murder violates its state constitution. The Michigan case involves a now-elderly man serving a life sentence for aiding and abetting a 1970s robbery where his co-conspirator killed a store owner.

Forty-eight states have a felony-murder rule on the books, but most do not require that people convicted under the doctrine spend the rest of their lives in prison, like Pennsylvania does.

Reform of felony-murder laws has picked up steam in recent years. A 2023 Pulitzer Prize–winning New Yorker article highlighted the doctrine’s injustices, including the conviction of a defendant who was miles away from where the death occurred. California changed its sentencing laws in 2018 to require intent to kill or heightened participation for a murder conviction. Minnesota followed suit last year. New York lawmakers are considering a similar bill.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.

Anna Benham is a student at the University of Michigan Law School.