The Legal Intelligencer
September 26, 2024
The Pennsylvania Supreme Court has agreed to hear oral
arguments in a criminal case that will test, when it comes to punishment,
whether the Pennsylvania Constitution provides greater protections than the
U.S. Constitution.
The constitutional provisions at play are Article I,
Section 13 of the Pennsylvania Constitution and the Eighth Amendment to the
U.S. Constitution.
Article I, Section 13 of the Pennsylvania Constitution
provides:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel punishments inflicted.
The Eighth Amendment provides:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
The Pennsylvania Supreme Court must decide whether the
term "cruel punishment" is more expansive in the punishments it
precludes than the term "cruel and unusual punishment."
In what context has this matter made its way to the
state's high court?
On Oct. 14, 2014, Derek Lee was one of two men who
entered a residence in Allegheny County shared by Leonard Butler and Tina
Chapple. According to the Pennsylvania Superior Court, "Both Butler and
Chapple were forced into the basement of the home, and then were forced to
kneel. Both males were yelling at Butler to give up his money and one used a
taser on Butler several times during the attack." Lee took Butler's watch
and went up the stairs, leaving the basement.
The second male remained with the couple and shot
Butler causing his death.
There is no dispute that Lee did not kill or intend to
kill in the commission of the robbery. Following trial, the jury found Lee
guilty of second-degree murder, robbery, and conspiracy. Second degree murder,
felony murder, is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A.
2502 (b), "Criminal homicide constitutes murder of the second degree when
it is committed while defendant was engaged as a principal or an accomplice in
the perpetration of a felony."
The Pennsylvania Crimes Code, 18 Pa.C.S.A. 1102(b),
provides a mandatory sentence of life in prison for second degree murder. As a
result, Lee was sentenced to life without the possibility of parole.
In Pennsylvania, life without parole is often referred
to as death-by-incarceration.
Pennsylvania's death penalty is in a de facto
moratorium. Gov. Josh Shapiro has said unequivocally that he is opposed to the
death penalty, but death-by-incarceration is flourishing in Pennsylvania.
Under Pennsylvania's sentencing scheme,
offenders—other than lifers—are sentenced to a minimum and a maximum term of
sentence. The maximum must be at least twice the minimum.
Once an inmate has served his minimum sentence, he is
eligible for parole. Release from prison is determined by the state's parole
board. Once released, the offender is supervised on parole until the expiration
of his maximum sentence.
A life sentence in Pennsylvania has no minimum—there
is no opportunity for parole—life means life in Pennsylvania.
Over time, the U.S. Supreme Court has back-pedaled
from life without parole. The decisions in Graham v. Florida, 560
U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery
v. Louisiana, 577 U.S. 190 (2016) are instructive. Lee has cited in his
argument the U.S. Supreme Court's finding that "That life-without-parole
sentences are sufficiently similar to the death penalty that they may be
unconstitutional when applied to people with categorically diminished
culpability based on their offense or characteristics."
That is the criticism of Pennsylvania's mandatory
sentence of life without parole for second degree murder—diminished
culpability. As in Lee's case he was not the shooter, he didn't intend to shoot
anyone, yet his sentence provides no hope for redemption, rehabilitation or a
return to society.
The Pennsylvania Supreme Court's review of Lee's case
comes down to a single word, "unusual." Lee argues that the absence
of the word "unusual" in the text of Article I, Section 13 is crucial
to finding mandatory life without parole for second degree murder
unconstitutional.
In Bucklew v. Precythe, 587 U.S. 119 (2019), U.S.
Supreme Court Justice Neil Gorsuch turned to history as he and his conservative
colleagues are so eager to do when analyzing an argument. Gorsuch cited a 2009
law review article by John F. Stinneford defining "unusual" in a
constitutional sense as "Americans in the 18th and 19th centuries describe
unusual government actions that had "fallen completely out of usage for a
long period of time." (Appellant's brief at page 17).
Without the limitations of "unusual" in
Article 1, Section 13, the Pennsylvania Supreme Court is free to determine if
life without parole, although still in use, is unduly cruel. The argument
suggests even if the Eighth Amendment to the U.S. Constitution doesn't prohibit
life without parole for second degree murder in Pennsylvania, the Pennsylvania
Constitution does.
So, does the language of Article I, Section 13 provide
greater protection than the Eighth Amendment?
Lee's attorneys say yes. However, in order for Lee to
prevail he must persuade the court that the four factors outlined in Commonwealth
v. Edmunds, 586 A.2d 887 (Pa. 1991), favor the prohibition of life without
parole for second degree murder.
The four factors are "the text of the
Pennsylvania constitutional provision; the history of the provision, including
Pennsylvania case law; related case-law from other states; and 4) policy
considerations, including unique issues of state and local concern, and
applicability within modern Pennsylvania jurisprudence."
At a minimum, the policy considerations are
compelling. Pennsylvania is home to thousands of people sentenced to die in
prison. The state has the second-highest number of people serving life without
parole, nearly 5,100 inmates, approximately 1,200 of whom have been convicted
of felony murder, according to the Pennsylvania Department of Corrections.
Only Louisiana and Pennsylvania still impose the
sentence without regard for a person's involvement or intent in the crime.
According to the Pennsylvania Capital-Star, every other state among the 30 that
allow life sentences without parole require an additional level of intent or
action by the defendant.
Lee argued in his brief in support of allowance for
appeal, "Pennsylvania stands virtually alone in mandating that anyone
convicted of felony-murder is sentenced to life in prison with no possibility
of parole."
This matter is scheduled for argument on Oct. 8, 2024.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George. He is the author of "The Executioner's
Toll," 2010. You can reach him at www.mattmangino.com and follow him
on X (formerly Twitter) @MatthewTMangino.
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