In late July, Pennsylvania missed a deadline to replace a sentencing law the state’s highest court struck down, and roughly 1,100 inmates may now ask to be resentenced. The history of the constitutional provision the court relied on cuts the other way. Two justices in the majority described the decision as too broad and too unclear.
In October 2014, Leonard Butler was attacked in the basement of his home by a man named Derek Lee. Lee beat Butler severely and then left the room. In the struggle for accomplice Paul Durham’s handgun, Butler was fatally shot by Durham. Both Lee and Durham were convicted of murder in the second degree. Under the prior law, they were sentenced to spend the rest of their lives in prison. Until March, that was the only possible sentence for second-degree murder under Pennsylvania law.
On March 26, the Pennsylvania Supreme Court ruled the prior law unconstitutional and gave the legislature 120 days to come up with a new one. There are currently 1,100 inmates serving sentences the court has voided. With the deadline gone, they may now begin filing petitions for relief. Many judges will have to make decisions regarding these cases. The high court gave no guidelines to help judges determine how to handle each of them.
Chief Justice Debra Todd wrote for the court that the prior law violated Article I, Section 13 of the Pennsylvania Constitution. That section prohibits cruel punishments. Justice David Wecht – whose removal I argued for months earlier – joined and filed a separate opinion of his own. The majority quoted a preamble from 1794 that expressed an Enlightenment view of punishment and included a lengthy discussion of the history surrounding a penal code passed that same year but very little of the actual text of the 1794 penal code. Much of the majority opinion relies on an admittedly well-argued 2023 law review article by Kevin Bendesky for this historical research.
Justice Sallie Mundy joined the result but narrowed it significantly in a concurring opinion. According to Mundy, the majority's description of its own decision is ambiguous and could include defendants who actually killed someone or intended to kill someone, though no such defendants were briefed. Mundy rejected the notion of evolving standards of decency as chronological snobbery, the assumption that we are morally superior to the people whose constitution we are interpreting. “We are not moral philosophers,” she wrote. She stated that Lee was an armed home invader who assaulted Butler before the shooting.
Justice Kevin Brobson dissented from the remedy. Brobson warned that ordering trial courts to consider each defendant's individual culpability would cause wide disparities in sentencing among judges. When this court struck down mandatory life for juveniles in Commonwealth v. Batts, it provided trial judges with an itemized list of factors to consider.
At the time, the General Assembly had already enacted Section 1102.1(d) of the Crimes Code, which required trial judges to identify specific findings on the record. By contrast, today’s decision provides no such guide for trial judges. Brobson suggested five criteria that might have guided judges. He concluded that he would have stayed the case rather than give the legislature a number of months in which to act.
What all of this now means is that between, say, Washington County and Philadelphia County, individuals convicted of the same conduct may end up receiving different sentences. The Public Defender Association of Pennsylvania and the Defender Association of Philadelphia estimate that representing all inmates currently eligible to seek relief will cost $34 million to $36 million. Nor is this a rapid process: a decade after this court struck down mandatory life without parole for juveniles – another questionable decision – some of those resentencing petitions remain pending.
Senate Bill 1400, sponsored by Judiciary Committee Chair Lisa Baker of Luzerne County and Majority Whip Wayne Langerholc, passed the Senate on June 25 by a vote of 30-20 with support from Republicans and four Democratic senators. The bill establishes a sentencing range for second-degree murder of 35 years to life with parole eligibility, while allowing a judge to impose a term as low as 10 years for an offender who demonstrates six specific mitigating circumstances, including having never displayed a weapon during the course of the offense, having no reasonable belief that another participant would use one, and having inflicted no serious bodily injury on any victim. Individuals currently serving life sentences become eligible for parole at 35 years, or at 20 years if they are over 70.
Advocates for reform object that Lee would not qualify for even a reduced sentence under Baker's bill, since Lee was armed during his assault and was responsible for inflicting most of Butler's injuries – but this is as it should be, given the facts of that case.
Nearly a month later, House Democrats adopted their own version of a bill, again along party lines, establishing parole review after 30 years, deferring any determination of future sentencing parameters to a sentencing commission, and incorporating provisions related to early medical release. Attorney General Dave Sunday wrote to House members the day before that he believed the proposed penalties were “grossly inadequate” and that he feared the language providing for early medical release could apply to first-degree murderers and sex offenders as well as others. Before the House vote, Judiciary Committee Chair Tim Briggs of Montgomery County indicated he would prefer to leave the disposition of these cases to the courts rather than adopt legislation he viewed as overly punitive.
State Senate Minority Leader Jay Costa and state Sen. Amanda Cappelletti jointly issued a press statement accusing Republican lawmakers of "spewing misinformation about what this ruling means for public safety," though their statement noted that the number of inmates affected by the ruling exceeds 1,000.
Christopher Glazek advocated for this type of trade-off between inside and outside violence in n+1 magazine in 2012, in an essay titled “Raise the Crime Rate.” Glazek explained that American prisons contain many sites where violent acts occur regularly, and thus that releasing prisoners and reducing violence within prisons would necessarily lead to greater levels of robbery, assault and murder outside of prisons. He concluded that “increasing those risks, from a moral standpoint, is the right thing to do.” have likewise argued in FUSION that American sanctions are often long and costly, though there I claimed that increased punishment severity could perhaps justify reduced sentencing duration.
In any event, ours is a violent country filled with violent people, especially relative to the rest of the world. According to statistics compiled by various organizations, in 2023 America had a homicide rate of 5.76 per 100,000 residents. Finland averaged 0.98 per 100,000 residents that year, and Japan averaged 0.23. The approach taken by Nordic countries and Japan toward criminalization is based on societal values and norms well suited to homogenous countries that do not reflect the realities of our settler society. A parent living in Pittsburgh like myself cannot imagine away these differences.
As far as I am concerned, I do not want to increase the crime rate in order to resolve issues arising from a poorly drafted sentencing law. I realized, however, that some felony-murder convictions are miscarriages of justice. The person who fired the fatal shot is not the lookout in the getaway car, which suggests there is a good rationale for imposing a graduated schedule with an absolute bottom line. The Republican bill includes such a schedule, while Costa and Cappelletti are underscoring the severity of the situation in order to placate their activist base.
Butler's 9-year-old son is now old enough to vote. Someone will need to sit across from him and tell him why a judge imposed whatever supposedly enlightened sentence was imposed on the man judged responsible for his father's death. That kind of confused, post hoc resentencing represents the actual cruel and unusual punishment at issue here.