PA Supreme Court considers ending death by incarceration

My life is either going to be a testimony or a warning,” Derek Lee told The Nation.

Lee was speaking on a video chat from behind the walls of SCI Smithfield in central Pennsylvania. Now 35 years old, Lee has been imprisoned since he was 29. If nothing changes, he will grow old and die in prison.

In 2016, a Pennsylvania court sentenced Lee to life without parole for a burglary two years earlier that ended with his accomplice fatally shooting the homeowner. Lee was not involved in the killing, but he was convicted of second-degree or felony murder—an unintentional death that happens when the defendant is committing a felony. In Pennsylvania, that means an automatic sentence of life without parole (LWOP).

That sentence, which advocates call “death by incarceration,” means that, no matter how much time has passed or what a person does to transform their life, they have virtually no chance of leaving prison alive. Nearly 80 percent of those sentenced to life without parole in Pennsylvania were, like Lee, under 30 when they were sent to prison—53 percent were between ages 18 and 25

Lee has chosen not to accept this fate. He doesn’t want to die in prison, and he doesn’t want others to die in prison either. Now, he is waging a battle to overturn LWOP for himself and, potentially, over a thousand others sentenced to live and die behind bars in Pennsylvania.

He wants, as he put it, his life to be a testimony, not a warning.

 “I can warn people what not to do, but I’d rather be somebody that you could look to and say, ‘This is what I can do. If I do change, if I do put in the work, if I am sincere,’” he said.

Amovement to end life without parole has been gaining traction in Pennsylvania and across the nation. Family members and those who had previously faced the probability of dying in prison formed campaigns. They rallied at capitols, filed lawsuits, and pushed legislators to change the laws—and to apply them retroactively. They even took their complaint to the United Nations. In May 2023, formerly incarcerated New Yorkers testified before a three-person UN committee set up to examine systemic racism against Black people; four months later, the committee stated that it was “deeply alarmed” by the high rate of death by incarceration sentences and recommended that all prison sentences include parole eligibility within a reasonable number of years. This past November, it recommended a moratorium on LWOP.

Lee knew none of this when he met Bret Grote and Quinn Cozens, attorneys with the Abolitionist Law Center who visited the prison for a 2019 legal seminar. In November 2020, the court reinstated his right to appeal on the grounds that he had been deprived of a lawyer during his initial appeal. The reinstatement came at an opportune time—the Abolitionist Law Center had been searching for a plaintiff whose appeal rights had not expired for their next legal challenge.

With their help, Lee appealed his sentence. A three-judge panel of the state superior court denied his appeal in June 2023, ruling in part that the panel was bound by prior rulings. In a separate memorandum, one of those judges urged the full court to revisit whether a mandatory life without parole sentence for all second-degree murder convictions violates the state’s Constitution. In July, the Abolitionist Law Center, Amistad Law Project, and Center for Constitutional Rights appealed the decision to the Pennsylvania State Supreme Court arguing that life without parole for felony murder violates both the Eighth Amendment ban on cruel and unusual punishment and the state’s Constitution prohibiting “cruel” punishment. They argued that imposing life without parole for those who never intended to take a life is unduly harsh, violating the state Constitution. Pointing to the US Supreme Court decisions, which addressed children’s diminished culpability, they argued that people who did not kill or intend to kill comprise another category of diminished culpability.

The court’s decision could extend far beyond Lee. If his sentence is ruled unconstitutional, it could open the door so that over one thousand Pennsylvanians don’t die in prison.

Lee is keenly aware of how high the stakes are and how any misstep he makes could impact not just him, but people across the state. “There are days when COs and other [men] get on your nerves and you want to react a certain way,” he said. “I remind myself that that’s not the person I am anymore. What I do affects other people—I hold a responsibility not just to myself, but to others. Guys on this block—some of them are second-degree [or felony murder]—are looking at my case, saying, ‘What happens for you is going to affect everybody.’ I try to live up to that responsibility by how I live my life.”

Pennsylvania has the nation’s second-highest number of people (5,100 people) serving life without parole. Over one-fifth have been convicted of felony murder. Seventy percent, like Lee, are Black. Nationwide, nearly 56,000 people have been sentenced to death by incarceration although national data on the percentage condemned for felony murder does not exist.

“I feel deeply that this is the time for this,” Lee told The Nation. “There’s so much positive energy around this issue. It’s the next logical step to correct something that should have been corrected a long time ago.”

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