Correction: A previous version of this story incorrectly described the House bill's maximum sentence for second-degree murder.
HARRISBURG — The Pennsylvania General Assembly has missed the deadline set for it by the state Supreme Court without passing a legislative solution to the commonwealth's unconstitutional sentencing scheme for second-degree murder.
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.
The court ruled in March that mandatory life without parole without consideration of a person’s individual responsibility for the death violates the Pennsylvania Constitution.
Justices gave lawmakers until July 24 to rewrite the sentencing laws. 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.
With no action from the legislature, the court’s ruling will now take effect.
Here’s what you need to know.
Can the legislature still act?
Yes, despite missing the deadline set out by the court, the legislature can act at any time. Both chambers have passed a bill outlining their version of a way forward.
The state Senate bill, SB 1400, would establish a 35-year mandatory minimum for most people who are convicted of second-degree murder. The bill would preserve the option of life without parole in some cases. It also provides the option for a lower sentence, 10 to 40 years, if a person meets a very narrow set of circumstances.
For people already serving a life sentence, the bill would create parole eligibility after 35 years for most, or after 20 years for those who are at least 70 years old. There are only about 14 individuals who are 70 or older who have not also served 35 years in state prison for second-degree murder, according to a Spotlight PA analysis of Department of Corrections data.
The state House bill, HB 1042, does not establish a set minimum sentence for individuals convicted of second-degree murder. It preserves life without parole as a maximum, but asks the Pennsylvania Commission on Sentencing to establish guidelines the courts can use going forward.
This bill would create parole eligibility after 30 years for people already serving a life sentence.
The House bill would also create medical parole for incarcerated people who have a life-threatening illness and need to leave prison to seek treatment.
While both bills passed their chamber, there's no indication the legislators are willing to find a compromise between the two proposals.
The legislature returns in September, and lawmakers have said negotiations will continue then.
What happens in the meantime?
For second-degree murder cases that are currently pending, or will be filed in the future, judges in county-level courts of common pleas will have to make a sentencing determination using their best judgement.
This is something courts are prepared for and well-equipped to do, experts told Spotlight PA.
But defense attorneys and prosecutors alike worry this scenario will lead to inequities in sentencing, and that defendants with similar cases may have different outcomes depending on where they are tried.
What about people already serving time — will they walk free now?
No.
Some lawmakers have used strong rhetoric to imply that violent offenders will immediately become eligible for parole, or even get out of prison and walk the streets, once the deadline passed.
This is not true.
The only person who is now eligible for resentencing under the Commonwealth v. Lee decision is Derek Lee, the appellant in that case. And Lee could still be sentenced to life without parole for his role in a robbery that left a Pittsburgh man dead. The trial court must only consider his role and make a sentencing decision in light of it.
The Pennsylvania Supreme Court specifically did not make its decision retroactive to anyone else already serving life for second-degree murder.
For that to happen, attorneys will have to file appeals in individual criminal cases, the way Lee’s attorneys did in his case. Those appeals will then have to make their way through Superior Court before reaching the state Supreme Court.
Attorneys could also — and are likely to — file a King’s Bench petition asking the court to act more quickly.
Experts expect the state Supreme Court to make their ruling retroactive. But they also anticipate that this process, even in the fastest version of events, will take years.
Until then, people with life sentences will continue serving them.
What happens if the Supreme Court makes its ruling retroactive?
We do not know what that will look like until the court rules.
The Pennsylvania Supreme Court could lay out conditions for resentencing similar to those that the U.S. Supreme Court laid out in the cases Miller v. Alabama and Montgomery v. Louisiana.
In 2012, Miller made mandatory life sentences for people who committed crimes as children unconstitutional. Four years later, Montgomery made the Miller ruling retroactive, and directed trial courts to consider age – and related factors including maturity and family environment — in resentencing.
What happened in those cases?
Pennsylvania had the largest number of so-called “juvenile lifers” in the country. Nearly everyone in this group was resentenced through the trial courts. Of the roughly 330 individuals who have since been released from prison, only 15 have been recommitted for new convictions, according to state statistics.
Everyone who has been sentenced to life must be paroled in order to leave prison. Parole is a lifelong status for anyone who receives it after being sentenced to life. If they violate their parole, they go back to prison.