Felony Murder Sentencing After Commonwealth v. Lee, Restoring Constitutional Punishment Without Abandoning Public Safety

Introduction

In 2014, Derek Lee took part in an armed robbery of a Pittsburgh home. While Lee was in another room, his co-defendant shot and killed the homeowner during a struggle. A jury acquitted Lee of first-degree murder, but he was found guilty of second-degree murder.

In Pennsylvania, every conviction for second-degree murder, commonly called “felony murder,” carried automatic life without parole (LWOP), regardless of the role the defendant played or the facts and circumstances of the case. In March 2026, the Pennsylvania Supreme Court held in Commonwealth v. Lee that this mandate violated the state constitution's prohibition on cruel punishments and gave the General Assembly 120 days (until July 24, 2026) to enact a constitutional replacement. In response, the Senate passed SB 1400 on June 25, while the House returned from recess on July 23 and narrowly passed a competing framework, HB 1042. Because the two chambers did not reconcile their differences before the deadline lapsed, and because the Supreme Court refused on July 31 to extend its stay, the ruling is now in effect, and more than 1,100 people serving these sentences, along with the victims' families connected to their cases, are waiting on a resolution.

The legislature must act, but must do so in a way that does not create avoidable problems. A one-size-fits-all sentencing structure raises similar issues whichever direction it runs. A statute that requires life without parole in every case and a statute that disallows it in every case each deprives the sentencing court of the ability to match the sentence to the offender before it. Punishment should depend solely on what each defendant did and the facts and circumstances of each individual case. The full range of punishment, including LWOP, should remain available for the most culpable offenders; meaningful minimum terms should be implemented to ensure public safety across the state; and victims' families should be guaranteed notice and a voice before anyone serving these sentences is considered for parole.

The policies in SB 1400—combining individualized sentencing, a meaningful minimum, LWOP for the most culpable offenders, and enforceable victim protections—represent the best approach.

Background

Under Pennsylvania law, a defendant who participates in a robbery, forcible rape, arson, burglary, or kidnapping is guilty of second-degree murder if a death occurs during the felony, even if the defendant never killed, intended to kill, or expected anyone to die. For example, a getaway driver or a lookout can be convicted if a co-participant kills someone during the crime. Until Lee, every such conviction carried a mandatory life sentence with no possibility of parole. Pennsylvania was an outlier in this respect. Surveying the other states in Lee, the Pennsylvania Supreme Court counted only five (Iowa, Louisiana, Mississippi, North Carolina, and Pennsylvania) that imposed mandatory life without parole for felony murder with no exceptions at all.

Commonwealth v. Lee and Its Impact

In Commonwealth v. Lee, the Pennsylvania Supreme Court held that mandating LWOP for a defendant, without any examination by the court of his actual role in the killing, was unconstitutional. The court stayed its ruling for 120 days (until July 24, 2026), and declined to make the decision retroactive, leaving to the General Assembly the question of whether those already serving these sentences should become parole eligible and when. The deadline passed without a new law, and the ruling is now in effect. Until the legislature acts, judges will be sentencing these individuals with no statutory framework or guidance. That population includes defendants whose convictions came from plea agreements in which prosecutors agreed not to pursue first-degree murder or the death penalty in exchange for a guaranteed sentence of life without parole.

Roughly 1,100 people are serving mandatory LWOP for second-degree murder in Pennsylvania, with more than 500 of them convicted in Philadelphia—about half the statewide total. Those already serving life remain incarcerated, because the ruling applies only to Lee himself. Extending it to others will require individual appeals or a King's Bench petition, which would allow the Supreme Court to assume jurisdiction immediately of some or all of the defendants sentenced pre-Lee.

Allegheny County District Attorney Stephen Zappala asked the court to extend its stay by 120 days. On July 31, the court denied that request. Attorney General Dave Sunday cautioned before the deadline that its lapse would produce hundreds of petitions for resentencing. Prosecutors have already begun examining cases in their jurisdiction in anticipation of resentencing petitions. Dauphin County has reviewed 35 affected convictions, Chester County has identified about two dozen, and Franklin County has three, with petitions already filed in two.

Bill Analysis and Key Differences

Two bills remain before the General Assembly: SB 1400 as passed by the Senate and HB 1042 as passed by the House. The key provisions of each are summarized below, followed by the principal differences between them.

SB 1400 Key Provisions

• Sets a sentencing range of 35 years to life for future second-degree murder convictions by defendants who were 18 or older at the time of the offense.
• Preserves LWOP where a jury or court finds, beyond a reasonable doubt, the defendant personally caused the death and at least one of these aggravating factors applies to the offender: 1) a victim was law enforcement victim or a child under 13 years old; 2) the offender participated as a principal in a forcible rape or deviate sexual intercourse; 3) the offender has a prior conviction for a crime of violence; or 4) the offender caused serious bodily injury or death to a second victim.
• Allows a mitigated range of 10 to 40 years but only if: 1) the offender was not the only participant; 2) they did not cause, intend, attempt, or aid the death; 3) they did not brandish or use a deadly weapon; 4) they had no reason to believe a co-participant would use a deadly weapon or would act in a way likely to cause death or serious injury; and 5) they caused serious bodily injury to no one else.
• Makes those already serving life parole eligible after 35 years, or 20 years for those age 70 and older, excluding anyone who killed, intended to kill, or attempted to kill a law enforcement officer or participated in a forcible rape during the offense.
• When considering granting parole, the Parole Board must give primary consideration to the protection of the public and the safety of the victim, and to weigh the offender's degree of culpability in the victim's death and in the underlying felony.
• Requires notice to victims' families at least 60 days before any parole hearing, and bars the Parole Board from considering parole where notice procedures were not followed.

HB 1042 Key Provisions

• Does not establish a minimum sentence for people convicted of second-degree murder. It preserves life without parole as a maximum and asks the Pennsylvania Commission on Sentencing to write guidelines for future cases, but sets no deadline for writing them.
• Keeps mandatory life without parole for second-degree murder of a police officer and second-degree murder of an unborn child.
• Creates parole eligibility after 30 years for people already serving a life sentence. It does not block a release when victims were never notified.
• Includes measures unrelated to Lee, including: 1) medical parole for inmates who are seriously ill or declining with age; 2) credits that shorten minimum sentences for completing vocational or education programs; and 3) a shorter wait for an occupational license after release.

Key Differences

Three key differences stand out:

• Sentences Moving Forward: SB 1400 requires a minimum of 35 years before anyone convicted of second-degree murder can be considered for parole, with a floor of 10 years for defendants who prove a narrow set of mitigating facts. HB 1042 sets no minimum at all. The judge decides, using guidelines the Pennsylvania Commission on Sentencing has not yet written.
• Sentences Prior to Lee: SB 1400 opens parole at 35 years, or 20 years for those 70 and older, and bars it outright for anyone who killed or tried to kill a police officer or took part in a forcible rape during the crime. HB 1042 opens parole at 30 years with no such bars and lets those same people also ask a court for a shorter sentence. SB 1400 requires the Parole Board itself to vote on each case and to read victim statements first, and it blocks a parole decision if victims were not properly notified. HB 1042 does neither.
• When LWOP can be Imposed: SB 1400 allows it only where a jury or judge finds beyond a reasonable doubt that the defendant caused the death and that one of four aggravating factors applies. HB 1042 attaches no such condition and leaves the decision to the judge.

Attorney General Dave Sunday urged House members to oppose HB 1042 in a letter the day of the vote, citing penalties he called grossly inadequate, the ability to seek early release in multiple forums, and medical release provisions that sweep beyond second-degree murder cases.

Policy Recommendations

1. Resolve the Impasse Promptly Rather Than Leaving It to the Courts: Every day without a statute means the terms on which more than a thousand final sentences are revisited will be set by county prosecutors and county judges rather than by the legislature. Philadelphia District Attorney Larry Krasner and allied organizations, including the Abolitionist Law Center, have rallied support for resentencing. Krasner's office will handle a large share of the resulting work. Philadelphia accounts for about half of the statewide population serving these sentences, roughly 580 cases by lawmakers' own count. Krasner recently said that there should be no mandatory sentence for second-degree murder going forward, that lawmakers should not treat second-degree murder as close to first-degree murder either looking backward or forward, and that the legislature should let judges be judges. AFPI has examined how lead prosecutors in Philadelphia use charging, bail, and sentencing discretion in ways that reduce accountability for violent offenses.
2. Restore Individualized Sentencing Across the Full Range of Punishment: A sentencing structure for second-degree murder should begin with a minimum term long enough to reflect that a death occurred during a violent felony, and should allow a court to go below it only in the narrow cases where a defendant's role in the death was genuinely minimal. Life without parole belongs at the top of that range, available where a jury or judge finds beyond a reasonable doubt that the defendant caused the death and that aggravating circumstances apply. For those already serving life, eligibility for parole should attach at a fixed number of years served rather than case by case, with categorical exclusions for the most serious offenders, and with the Parole Board directed to weigh public safety and the offender's role in the death before anyone is released.
3. Make Victim Notification Enforceable: Families of victims were told these sentences were final. Any framework owes those families timely notice, a genuine opportunity to be heard, and accountability for failing to follow proper procedures.

Conclusion

While the July 24 deadline has passed, the opportunity to shape what comes next has not. A legislative framework can set meaningful minimum terms, keep LWOP available for the most culpable offenders, and give victims' families a protected voice.

Every week the General Assembly waits, the questions it declined to answer will get answered somewhere else. Sentences in pending cases are being set county by county. Petitions to reopen final sentences are being filed and answered. Among the offenders in that population are people who pled to second-degree murder precisely because the sentence was life without parole, and whose victims' families were told the matter was closed. The policies reflected in Senate Bill 1400 accomplish each of these, and the General Assembly should act as soon as possible to ensure dangerous offenders do not get released into our communities. Enacting these policies would create a structure in which punishment fits both the offense and the offender; the public is protected; and victims are kept informed and heard.