HARRISBURG — Pennsylvania lawmakers recessed Sunday without fixing the commonwealth’s unconstitutional sentencing scheme for second-degree murder, making it increasingly likely they will miss a deadline set by the state Supreme Court and leave the issue in limbo.

A killing is considered second-degree murder if it occurs during the course of a violent felony, including robbery, rape, or arson. Someone can be found guilty of the crime if they participated in the underlying felony, even if their actions didn’t lead directly to another person’s death.

Because of this, a person in Pennsylvania who served as a getaway driver during a botched robbery, or caused an injury that later led to death, currently receives the same sentence as someone who knowingly plotted and carried out a killing.

However, in March the Pennsylvania Supreme Court ruled in Commonwealth v. Lee that mandatory life without parole for second-degree murder is unnecessarily cruel under the state constitution.

The court gave lawmakers until July 24 to rewrite the sentencing laws.

“While we have a clear obligation to ensure that constitutional bounds are not crossed, we may not act as legislators, who are best positioned to effectuate penal reform,” wrote Chief Justice Debra Todd for the majority.

They also declined to make the ruling retroactive, leaving it up to the legislature to decide whether people already serving life sentences for second-degree murder convictions should be up for parole.

But months of talks among advocates for criminal justice reform, district attorneys, and members of the split legislature have not produced a compromise.

The state Senate twice tried to move a version of a proposal that would create 35-year mandatory minimum sentences for adults convicted of second-degree murder, with few exceptions, as well as a pathway to release for those already serving. However, state Rep. Tim Briggs (D., Montgomery), a key House lawmaker on criminal justice issues, told Spotlight PA the proposal is too punitive.

If the legislature misses the deadline, the state Supreme Court decision will take effect, leaving individual Common Pleas judges across the state to dole out fair sentences without legislative guidance.

And the fate of more than 1,100 people already in prison on second-degree murder convictions will likely be decided by the state’s highest court, as civil rights lawyers stand ready to petition the body for further clarity.

Should the justices apply their ruling to people who are already convicted, courts across the state will almost certainly be flooded with hundreds of petitions from those serving life in second-degree cases, some decades old.

Some advocates are ready to file those petitions, telling Spotlight PA the courts might produce better outcomes for clients than the state Senate’s proposed path forward.

“We're not afraid of going to mass resentencings,” said Sean Damon, director of strategic partnerships for Straight Ahead. His organization is the policy arm of the Abolitionist Law Center, the firm that brought the suit in Lee.

Others cautioned against that outcome.

“Inaction is not an option, in fact it is dangerous,” Attorney General Dave Sunday said in a statement sent after the legislature convened.

“Failing to act would leave our communities and victims without needed protections, and it is important that we move forward collaboratively to ensure a responsible solution.”

Lawmakers telegraphed Sunday night that they are willing to keep working on a compromise ahead of the deadline, but did not confirm whether they’d solve the issue in time.

Gov. Josh Shapiro, in a news conference, said he agrees with the Pennsylvania Supreme Court’s ruling, and wants to see the legislature reach consensus.

“We're going to continue to work on this issue, and I'm confident, given some of the maneuvering that the majority leader in the House did today,” the Democrat said. “There's a vehicle ready to go when we have a compromise in place.”

Asked whether lawmakers will pass a bill by the July 24 deadline, state House Majority Leader Matt Bradford (D., Montgomery) twice told reporters: "We're hoping to get something accomplished."

Conversations, but no compromise

For decades, Pennsylvania’s justice system has applied second-degree murder to a wide variety of defendants and criminal behavior: a man who killed a 77-year-old woman during the course of a violent rape; an accomplice in the torture and eventual death of an intellectually disabled woman; a man who robbed a tourist who minutes later committed suicide; a 14-year-old with a history of abuse and mental illness, who started an accidental house fire that killed the two boys she was trying to visit.

And for decades, those convicted have all received the same, unmovable sentence: life without parole.

The state Supreme Court in March found this sentencing scheme unnecessarily cruel, and argued that without an individual assessment of culpability, it violates the Pennsylvania Constitution.

“We determine that a mandatory life without parole sentence for all felony murder convictions, absent an assessment of culpability, is inconsistent with the protections bestowed upon our citizens under the ‘cruel punishments’ clause of our Commonwealth’s organic charter,” wrote Justice Todd for the majority.

In the spring, the legislature seemed poised to act.

Lawmakers from both chambers had already proposed legislation, including a bipartisan effort by state Sens. Sharif Street (D., Philadelphia) and Camera Bartolotta (R., Beaver) and another by Rep. Tim Briggs (D., Montgomery).

But at an April meeting of the state House Judiciary Committee, with advocates in attendance eager to celebrate the vote, Briggs tabled his bill. Stakeholders had reached out, he explained, with feedback and a desire to have their positions better reflected in whatever solution the legislature pursued.

“I think we can have a collaborative process to get to a better bill that balances the need to comply with the Lee decision, but also is fair and compassionate, respects victims’ rights, and above all, maintains community safety,” Briggs said during the April meeting.

Then, speaking about people already serving life sentences, he said: “These people – this is emotional – these people have been serving long, unconstitutional sentences, and I will not put them in a worse position than what I believe the Supreme Court would order for them after the [120 day] run.”

In an interview with Spotlight PA months later, Briggs said he had hoped the pause would lead to meaningful cross-party conversations.

“That never happened,” Briggs said.

In spring conversations between Straight Ahead and the Pennsylvania District Attorneys Association, the groups tried to reach a framework that would satisfy their respective coalitions. Lawmakers were not directly involved in those conversations, sources confirmed to Spotlight PA.

State prosecutors were most worried about the group of more than 1,100 people serving life sentences, said Kelly Callihan, the executive director of the district attorneys association.

“We like uniformity,” she said. “Victims deserve that, and honestly, perpetrators who have been convicted deserve that, so that it's not like the Wild West, where every county was just going to be on an island doing what they thought with resentencing.”

Public defenders feel similarly, said Sara Jacobson, the executive director of the Public Defender Association of Pennsylvania. Without a legislative fix, she said, the state would be left with “justice by geography.”

“Without guidance, the results will vary widely in terms of sentences they get handed down,’ Jacobson added. “It will depend much more on the politics of a given county and an individual judge’s perspective.”

A legislative framework would be better for everyone, Jacobson said, because prosecutors, defense attorneys, and crime victims will know what to expect.

But feelings diverge from there.

The district attorneys association feels comfortable with a minimum sentence, after which the convicted person would be eligible for parole, Callihan said.

But Straight Ahead and other advocates found a high mandatory minimum for those sentenced to second-degree murder to be unpalatable.

“We have been advocating for a maximum sentence similar to third-degree,” which carries a 40 year maximum, Damon said.

In June, a compromise had not been reached when, over the course of four days, the Republican-controlled state Senate introduced, voted out of committee, and passed new legislation with bipartisan support.

That bill, SB 1400, would establish a 35-year mandatory minimum for adult offenders and preserve life without parole as an option for offenders who meet certain criteria. It allows for sentences as low as 10 years if a defendant meets a narrow set of mitigating circumstances.

For people already serving life, the bill would permit parole consideration after 35 years for most and 20 years for those over the age of 70.

The court gave the General Assembly a 120-day window “because opening the prison doors and letting out violent individuals back on the streets is unacceptable policy,” said state Sen. Lisa Baker (R., Luzerne), the bill’s lead sponsor, during a news conference after passage. Attorney General Sunday, also appearing at the news conference, supported it.

The state Senate passed a largely similar version of this legislation Sunday afternoon, attached to a House bill aimed at allowing incarcerated individuals to earn credits toward potential earlier parole by participating in educational and vocational programs.

But the bill found no purchase among House Democrats.

When he spoke with Spotlight PA in June, Briggs said the language was “too heavy-handed.”

“These are serious matters,” he said, “but I think there needs to be some compassion on the facts, and high mandatory minimums across the board isn’t the direction I want to go in.”

Elizabeth Rementer, a spokesperson for House Democrats, said Sunday that the lawmakers remain committed to continuing negotiations.

But speaking of the bill passed Sunday, she said, “Unfortunately, this isn’t it.”

Mass resentencings possible

Stakeholders are similarly split.

Berks County District Attorney John Adams, in an interview with Spotlight PA, said he largely supported the state Senate legislation and its attempt to establish both a framework for future sentencing and a path for reconsidering past convictions. As a prosecutor and former defense attorney, “I have been on both sides of this issue, so I know it by heart, and I know it through experience,” Adams said.

“This bill covers pretty much everything that I was looking for,” he said. “It offers, in the appropriate instances, the possibility that someone could be sentenced to life in prison, and it also offers otherwise some alternatives.”

But Philadelphia District Attorney Larry Krasner, a progressive Democrat known for diverging from his fellow prosecutors, derided the state Senate bill as unscientific and beholden to an old-school, tough-on-crime approach to justice.

In an interview with Spotlight PA, Krasner was blunt in his assessment of the courts as a better path than the proposed legislation..

“Nothing is better than stupid,” Krasner said.

The path to this type of mass resentencing is uncertain — for now.

Without a legislative fix, the issue will need to return to the state Supreme Court to become retroactive.

The Abolitionist Law Center is ready to pursue this path if the legislature fails to act, said Legal Director Bret Grote, whether through traditional appeal or a King’s Bench petition, which would ask the court to take the matter more quickly.

“The issue will be presented to the court promptly, and the court alone will decide when they hear such a case,” Grote said, “but with more than — and we're confident it's more than 1,100 people — serving this unconstitutional sentence, this is a constitutional crisis.”

Straight Ahead, ALC, and other advocates actively involved in conversations around the Lee decision are ready to do the most good for the most people, Damon said. “So, I'm not being glib when I say we're ready to go a mass resentencing.”

More than 500 of the people serving life sentences for felony murder were convicted in Philadelphia, where the courts do not “tend to throw the book at people,” Damon said, and where there is a reform-minded district attorney in Krasner.

“We're going to have lower sentences in Philly,” Damon said.

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Lawmakers break without addressing unconstitutional murder sentences, leave 1K Pa. lifers in limbo