by Richard Resch

The Supreme Court of Pennsylvania held that a mandatory sentence of life imprisonment without the possibility of parole for all individuals convicted of second-degree murder (felony murder) violates Article I, Section 13 of the Pennsylvania Constitution’s prohibition against cruel punishments. The Court determined that Pennsylvania’s cruel punishments clause affords greater protections than the Eighth Amendment to the United States Constitution, departing from decades of precedent treating the two provisions as coextensive. The Court reasoned that the mandatory sentencing scheme’s failure to assess individual culpability before imposing the harshest form of incarceration creates an unacceptable risk of disproportionate punishment. It reversed the Superior Court’s order, vacated the defendant’s sentence, and remanded for resentencing, while staying its mandate for 120 days to allow the General Assembly to consider remedial legislation.

Background

Derek Lee participated in a home-invasion robbery during which his accomplice, Paul Durham, fatally shot Leonard Butler. A witness identified Lee as one of the intruders, though not as the shooter. A jury convicted Lee of felony murder, robbery–infliction of serious bodily injury, and conspiracy but acquitted him of first-degree murder. The trial court then imposed the statutorily required sentence of life imprisonment without parole for second-degree murder, plus a consecutive 10-to-20-year term for conspiracy.

Under Pennsylvania law, second-degree murder encompasses killings occurring while a defendant participates as a principal or accomplice in the commission of robbery, rape, arson, burglary, kidnapping, or related offenses. 18 Pa.C.S. § 2502(b), (d). Importantly, conviction requires no intent to kill. Instead, as the Court explained, “the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.” The statutory scheme mandates life imprisonment for second-degree murder convictions, 18 Pa.C.S. § 1102(b), and the Prisons and Parole Code renders such individuals ineligible for parole. 61 Pa.C.S. § 6137(a)(1).

After Lee’s direct-appeal rights were reinstated through post-conviction proceedings, he challenged his mandatory life-without-parole sentence under both the Eighth Amendment and Article I, Section 13 of the Pennsylvania Constitution. The trial court denied relief, and the Superior Court affirmed on the ground that existing precedent treated Pennsylvania’s cruel-punishments clause as coextensive with federal protections and upheld mandatory life without parole for adult felony murder. The Supreme Court then granted review of both the federal and state constitutional questions. The Court characterized the challenge as facial rather than as-applied, reasoning that the statutory scheme, by its terms, fails to provide any process by which an individual’s culpability may be taken into account.

Analysis

The Court first addressed Lee’s federal constitutional claim. Under the Eighth Amendment, courts have developed two analytical approaches: (1) a proportionality inquiry examining whether a term-of-years sentence is grossly disproportionate to the offense and (2) a categorical approach assessing whether capital punishment or life without parole is excessive when applied to particular classes of offenders. See Enmund v. Florida, 458 U.S. 782 (1982). Lee invoked the categorical approach, relying on U.S. Supreme Court precedent addressing diminished culpability.

The Court traced the categorical doctrine’s development, beginning with Enmund, where the U.S. Supreme Court recognized that felony murder defendants who did not kill, attempt to kill, or intend to kill possess categorically diminished culpability and therefore cannot be executed. This principle was expanded in Roper v. Simmons, 543 U.S. 551 (2005), which prohibited capital punishment for juvenile offenders based on their developmental characteristics, and Graham v. Florida, 560 U.S. 48 (2010), which extended categorical analysis to bar mandatory life without parole for juvenile nonhomicide offenders.

In the landmark case Miller v. Alabama, 567 U.S. 460 (2012), the U.S. Supreme Court prohibited mandatory life-without-parole sentences for juvenile homicide offenders, reasoning that youth diminishes culpability and that individualized sentencing consideration is constitutionally required before imposing such severe sanctions. The Court observed that Miller “relied upon two lines of precedent that reflected the Court’s concern for proportionate punishment” – categorical bans based on culpability-severity mismatches and capital sentencing requirements for individualized assessment.

The Court concluded that these federal precedents did not aid Lee. It explained that the U.S. Supreme Court’s categorical Eighth Amendment cases have been confined to capital punishment or juvenile offenders and that the juvenile cases rest on the constitutional and scientific premise that children are meaningfully different from adults for sentencing purposes. Quoting Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court noted that “children are constitutionally different from adults for purposes of sentencing” and declined to extend the federal categorical framework to adult noncapital offenders absent further guidance from the U.S. Supreme Court.

Article I, Section 13 –
Edmunds Analysis

Having rejected the federal claim, the Court turned to whether Pennsylvania’s Constitution provides greater safeguards. The Court employed the four-factor framework established in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), for determining whether state constitutional provisions afford broader protections than their federal counterparts: (1) constitutional text, (2) history of the provision, (3) related case law from other jurisdictions, and (4) policy considerations.

The Court identified a meaningful distinction between the federal Constitution’s prohibition of “cruel and unusual punishments,” U.S. Const. amend. VIII, and Pennsylvania’s ban on “cruel punishments,” Pa. Const. art. I, § 13. While prior decisions had suggested this textual variation lacked significance, the Court now disagreed.

Recent U.S. Supreme Court jurisprudence has given independent significance to the word “unusual” in the Eighth Amendment, according to the Court. It observed that punishments were considered “unusual” if they had “long fallen out of use,” meaning the federal clause carries a historical-disuse component that Pennsylvania’s ban on “cruel punishments” does not. City of Grants Pass, Oregon v. Johnson, 603 U.S. 520 (2024). For that reason, the Court explained that the omission of “unusual” from Article I, Section 13 was “meaningful and substantive,” supporting the conclusion that the Pennsylvania Constitution affords broader protection than its federal counterpart.

The historical origins of Article I, Section 13, adopted in 1790 – one year before the Eighth Amendment – revealed distinct penological philosophies. While the Eighth Amendment derived from England’s 1689 Declaration of Rights, which barred punishments that were both cruel and no longer customarily employed, Pennsylvania’s framers embraced Enlightenment theories that viewed punishment through a fundamentally different lens, the Court explained.

It drew extensively on recent scholarship examining the influence of Montesquieu and Beccaria on Pennsylvania’s founding generation. These thinkers championed deterrence and reformation as punishment’s primary justifications, rejecting severity for its own sake. As Beccaria wrote, quoting Montesquieu, “[e]very punishment which is not derived from absolute necessity is tyrannous.”

Pennsylvania’s constitutional architects rejected English penal severity and embraced principles holding that “only deterrence and reformation justified a punishment.” The Court explained that, for Pennsylvania’s framers, “anything unnecessary for achieving the limited purposes of punishment was the superaddition of cruelty.” This philosophy produced the nation’s first statute dividing murder into degrees in 1794, limiting capital punishment to first-degree murder and reflecting the view that “punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety.”

The Court found this history fundamentally at variance with the Eighth Amendment’s original understanding. While federal drafters permitted punishments that remained in customary use, Pennsylvania’s framers “exhibited a particular sensitivity to one’s culpability” and rejected retribution as punishment’s primary justification. The notion of necessity, and by extension cruelty, “was understood to evolve over time with the development of moral and scientific advancements.”

Prior Pennsylvania Case Law

The Court acknowledged that Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982), had declared Pennsylvania’s cruel punishments clause “co-extensive” with the Eighth Amendment. However, the Court determined that Zettlemoyer’s analysis was incomplete and not dispositive.

Zettlemoyer predated Edmunds by nearly a decade and addressed only whether capital punishment was per se unconstitutional, not the independent meaning of Section 13 across all contexts. The decision focused on whether the death penalty existed at the Commonwealth’s founding rather than examining the framers’ intent regarding the provision’s substantive meaning. Subsequent decisions, including Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), and Chief Justice Castille’s concurrence in Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013), had suggested that textual differences could support greater state constitutional protections in appropriate circumstances.

The Court concluded that Zettlemoyer “failed to engage in the rigorous assessment that we now believe necessary to determine rights under our Constitution” and therefore posed no impediment to recognizing broader Section 13 protections.

Other States’ Case Law

Regarding the third Edmunds factor, the Court described a mixed landscape among sister states with similarly worded constitutional provisions. Delaware, Kentucky, and Rhode Island currently treat their provisions as coextensive with the Eighth Amendment. State v. Cannon, 190 A.2d 514 (Del. 1963); State v. Desmond, No. 91009844DI, 2024 WL 3456225 (Del. Super. Ct. July 16, 2024); Riley v. Commonwealth, 120 S.W.3d 622 (Ky. 2003); Turpin v. Commonwealth, 350 S.W.3d 444 (Ky. 2011); State v. Monteiro, 924 A.2d 784 (R.I. 2007).

By contrast, South Dakota has indicated that its constitution may provide greater protection. State v. Moeller, 548 N.W.2d 465 (S.D. 1996). The Court found Washington’s analysis in State v. Bassett, 428 P.3d 343 (Wash. 2018), especially instructive because it held that Washington’s ban on “cruel punishments” reaches conduct that is merely cruel and need not also be unusual. The Court also noted that North Carolina, Michigan, California, Florida, and Minnesota have treated the textual difference between “cruel and unusual” and “cruel or unusual” as meaningful. State v. Kelliher, 873 S.E.2d 366 (N.C. 2022); People v. Bullock, 485 N.W.2d 866 (Mich. 1992); People v. Taylor, 2025 WL 1085247 (Mich. Apr. 10, 2025); People v. Carmony, 26 Cal. Rptr. 3d 365 (Cal. Ct. App. 2005); Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000); State v. Mitchell, 577 N.W.2d 481 (Minn. 1998).

Policy Considerations

While acknowledging that policy arguments, including Pennsylvania’s outlier status among states mandating life without parole for felony murder and racial disparities in application, were significant concerns, the Court exercised caution to avoid encroaching on legislative prerogatives. Ultimately, the Court found that policy considerations did not weigh heavily in the analysis, as such matters are appropriately addressed by the General Assembly.

Application to Felony Murder

Having determined that Section 13 provides greater protections than its federal counterpart, the Court assessed whether mandatory life without parole for second-degree murder violates those safeguards. The Court’s analysis focused on culpability, severity, and penological justifications.

Regarding culpability, the Court noted that second-degree murder covers widely varying conduct, from the actual killer to a lookout, but imposes identical punishment without assessing individual responsibility. The Court observed that “second degree murder does not distinguish between the lookout, and the killer who pulls the trigger.” This mandatory scheme “fails to assess individual culpability regarding the intent to kill, and mandates the same punishment regardless of that culpability.”

On severity, the Court observed that life without parole constitutes “the second most severe penalty permitted by law.” The sentence “alters the offender’s life by a forfeiture that is irrevocable” and “deprives the convict of the most basic liberties without giving hope of restoration.” When this punishment is mandatorily imposed regardless of culpability, “it poses a great risk of disproportionate punishment.”

The Court then examined whether traditional penological justifications of rehabilitation, deterrence, retribution, and incapacitation support mandatory life without parole for all felony murder convictions. None withstood scrutiny when applied categorically without individualized assessment. Rehabilitation is “forswear[ed] altogether” by permanent incarceration. Deterrence goals are undermined because there is “no added consequence when a killing is intentional” versus accidental; both receive identical punishment. Retribution requires proportionality to personal culpability, which cannot be achieved under a mandatory scheme. And incapacitation, premised on permanent dangerousness, “cannot justify mandatory life imprisonment of all offenders who have been convicted of second-degree murder, without an assessment of culpability.”

The Court concluded that “the mandatory sentencing scheme for second degree murder poses too great a risk of disproportionate punishment, and, thus, find it to be cruel.” The Court stressed the narrowness of its holding. The Commonwealth need not guarantee parole or eventual release, but offenders convicted of second-degree murder must receive “meaningful consideration of release” based on their culpability and the circumstances of the crime. The Court explained that it was not passing on the validity of the felony-murder doctrine itself and was not calling into question existing first-degree-murder sentences.

Conclusion

Accordingly, the Court reversed the Superior Court’s order, vacated Lee’s sentence, and remanded for resentencing. On remand, the Court instructed that the sentencing court must assess Lee’s individual culpability and determine whether to reimpose life imprisonment without parole or instead impose the statutorily required maximum sentence of life imprisonment with a court-set minimum term. The mandate was stayed for 120 days to allow the General Assembly to consider remedial legislation. See: Commonwealth v. Lee, 2026 Pa. LEXIS 553 (2026).

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