Commonwealth v. Lee, D., Aplt.

                                   [J-60-2024]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.


  COMMONWEALTH OF PENNSYLVANIA,                   :   No. 3 WAP 2024
                                                  :
                       Appellee                   :   Appeal from the Order of the
                                                  :   Superior Court entered June 13,
                                                  :   2023, at No. 1008 WDA 2021,
                v.                                :   Affirming the Order of the Court of
                                                  :   Common Pleas of Allegheny County
                                                  :   entered December 19, 2016, at No.
  DEREK LEE,                                      :   CP-02-CR-0016878-2014.
                                                  :
                       Appellant                  :   ARGUED: October 8, 2024


                                         OPINION


 CHIEF JUSTICE TODD                                         DECIDED: MARCH 26, 2026
       In this appeal by allowance, we granted allocatur to consider whether a mandatory

 sentence of life imprisonment without the possibility of parole for a felony murder

 conviction violates the Eighth Amendment to the United States Constitution or Article I,

 Section 13 of the Pennsylvania Constitution.1 For the reasons that follow, 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




 1 The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail

 shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
 inflicted.” U.S. Const. amend. VIII. Article I, Section 13 of the Pennsylvania Constitution
 provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor
 cruel punishments inflicted.” Pa. Const. art. I, § 13.
under the “cruel punishments” clause of our Commonwealth’s organic charter.2 Thus, we

reverse the order of the Superior Court, vacate Appellant’s judgment of sentence, and

remand for resentencing. However, as we have done under similar circumstances, we

stay our order for 120 days to provide a reasonable amount of time for the General

Assembly to consider remedial measures.

                              I. Facts and Procedural History

       Leonard Butler, Tina Chapple, and their 9-year-old son, also named Leonard,

shared a residence in the Elliott neighborhood of Pittsburgh, Pennsylvania. On October

14, 2014, at approximately three o’clock in the afternoon, while their son was attending

school, two men entered the residence. Chapple was upstairs, but was called to come

down from the second-floor bedroom to the living room by Butler. When she entered the

living room, she observed two males with guns and partially covered faces. Both Butler

and Chapple were herded into the basement of the home, and then were forced to kneel.

Both males yelled at Butler to give up his money and, several times, one used a taser on

Butler. One of the men, referred to by Chapple in interviews with police as “the meaner

one,” and later identified as Appellant Derek Lee, pistol-whipped Butler in the face before

taking his watch and running up the stairs. The second male, later identified as Paul

Durham, remained with the couple. Butler began to struggle with Durham over the gun,

and a shot was fired which killed Butler.

       Later, during the police investigation of the murder, it was determined that a rental

vehicle under Appellant’s name was parked outside of Butler and Chapple’s home around

the time of the shooting. On October 29, 2014, Chapple was shown a photo array by


2 Generally speaking, “the legislative intent to forever bar parole eligibility for all individuals

convicted of second-degree murder is best described as part of the judgment of
sentence.” Scott v. Pennsylvania Board of Probation and Parole, 284 A.3d 178, 192 (Pa.
2022).


                                         [J-60-2024] - 2
police and positively identified Appellant as one of the men involved in the incident, but

not the shooter. Trial Court Opinion, 3/23/22, at 1-2.

       Ultimately, Appellant was arrested and charged with homicide, burglary, robbery –

serious bodily injury, and criminal conspiracy. After trial, a jury found Appellant guilty of

felony murder, statutorily defined as second degree murder in Pennsylvania’s Crimes

Code, robbery – infliction of serious bodily injury, and conspiracy. He was found not guilty

of first degree murder.

       On December 19, 2016, Judge David Cashman sentenced Appellant to serve a

mandatory term of life in prison without the possibility of parole for his second degree

murder conviction. The court sentenced Appellant to serve a consecutive term of 10 to

20 years in prison for his criminal conspiracy conviction and imposed no further penalty

on the robbery charge. Appellant’s co-defendant, Durham, was also convicted of second

degree murder and sentenced to life imprisonment without parole.

       By way of legal background, Pennsylvania’s version of the felony murder rule is

legislatively defined as murder of the second degree, and is set forth in 18 Pa.C.S. §

2502(b). Murder of the second degree is a criminal homicide “when it is committed while

defendant was engaged as a principal or an accomplice in the perpetration of a felony.”

Id. The phrase “perpetration of a felony,” in turn, is limited to the eligible felonies that

serve as the foundation for second degree murder: the “act of the defendant in engaging

in or being an accomplice in the commission of, or an attempt to commit, or flight after

committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force

or threat of force, arson, burglary or kidnapping.” 18 Pa.C.S. § 2502(d). Thus, one may

be convicted of second degree murder if a death occurs during the commission or

attempted commission of an enumerated felony to which one was a principal or

accomplice. 18 Pa.C.S. § 2502(b), (d). Importantly, an individual may be convicted of




                                      [J-60-2024] - 3
second degree murder regardless of an intent to kill; rather, “the malice necessary to

make a killing, even an accidental one, murder, is constructively inferred from the malice

incident to the perpetration of the initial felony.” Commonwealth ex rel. Smith v. Myers,

261 A.2d 550, 553 (Pa. 1970); Commonwealth v. Yuknavich, 295 A.2d 290, 292 (Pa.

1972); Commonwealth v. Tarver, 426 A.2d 569, 573 (Pa. 1981). Thus, the only relevant

intent is that to commit the underlying felony.

       Moreover, the Crimes Code further provides that those convicted of second degree

murder shall be sentenced to a mandatory term of life imprisonment, 18 Pa.C.S. § 1102,3

and pursuant to the Prisons and Parole Code, without the possibility of parole, 61 Pa.C.S.

§ 6137(a)(1).4 See also Scott, 284 A.3d at 191 (determining that those individuals

convicted of second degree murder are ineligible for parole as a part of their sentence).

       Appellant did not file a post-sentence motion or a direct appeal; however,

proceeding under the Post Conviction Relief Act (“PCRA”), on November 4, 2020, the

PCRA court reinstated Appellant’s post-sentence and appellate rights. PCRA Court

Order, 11/5/20, at 1.


3 Section 1102(b) provides: “(b) Second degree.--Except as provided under section
1102.1, a person who has been convicted of murder of the second degree, of second
degree murder of an unborn child or of second degree murder of a law enforcement officer
shall be sentenced to a term of life imprisonment.” 18 Pa.C.S. § 1102(b).
4 Section 6137(a)(1) provides:


              The board may parole subject to consideration of guidelines
              established under 42 Pa.C.S. § 2154.5 (relating to adoption
              of guidelines for parole) or subject to section 6137.1 (relating
              to short sentence parole) and such information developed by
              or furnished to the board under section 6174 (relating to right
              of access to offenders), or both, and may release on parole
              any offender to whom the power to parole is granted to the
              board by this chapter, except an offender condemned to death
              or serving life imprisonment. . . .
61 Pa.C.S. § 6137(a)(1) (emphasis added).


                                      [J-60-2024] - 4
         Represented by counsel from the Abolitionist Law Center, Appellant filed a motion

for modification of sentence, arguing that his mandatory sentence of life without parole

was unconstitutional under the Eighth Amendment to the United States Constitution and

Article I, Section 13 of the Pennsylvania Constitution. The trial court, per Judge Elliot

Howsie, denied relief.5 It rejected Appellant’s argument that a sentence of life without

parole when imposed on a defendant who did not kill or intend to kill as part of their crime

was unconstitutional, dismissed his request that the court interpret the Pennsylvania

Constitution’s prohibition against cruel punishments to provide greater protections than

the United States Constitution, and explained that arguments regarding the severity of

punishment were policy questions for the legislature.        Thus, the trial court denied

Appellant’s post-sentence motion on July 26, 2021. Appellant appealed to the Superior

Court.

         A three-judge panel of the Superior Court affirmed in an unpublished decision

authored by Judge Judith Olsen.6 Commonwealth v. Lee, 1008 WDA 2021, 2023 WL

3961802 (Pa. Super. filed June 13, 2023). Before the Superior Court, Appellant argued

(again) that his mandatory sentence of life imprisonment without the possibility of parole

was unconstitutional under the Eighth Amendment to the United States Constitution, as

he was convicted of second degree murder and did not kill or intend to kill anyone during

the commission of a robbery, and, thus, because of his diminished culpability, such a

sentence was unduly harsh in relation to legitimate penological purposes, and out of step

with modern national and international standards. While acknowledging the Superior

Court’s 2020 decision in Commonwealth v. Rivera, 238 A.3d 482, 501-03 (Pa. Super.



5 Appellant’s case was transferred to Judge Howsie upon Judge Cashman’s retirement.

6 The majority opinion was joined by Judge James Gardner Colins.         Judge Alice Beck
Dubow concurred in the result.


                                      [J-60-2024] - 5
2020), in which the court rejected the same claim, Appellant nevertheless identified an

analytical construct under the Eighth Amendment, which considers whether a punishment

is grossly disproportionate to the offense, and which does so under a different standard

than that previously applied only in the death penalty context, citing Solem v. Helm, 463

U.S. 277 (1983) and Commonwealth v. Middleton, 467 A.2d 841 (Pa. Super. 1983).

Appellant’s reasoning was that, under the United States Supreme Court’s 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), life without parole sentences were

sufficiently similar to the death penalty that they could be unconstitutional when applied

to people with categorically-diminished culpability based on their offense or

characteristics.

       Relying largely upon its own and our Court’s prior precedent, the Superior Court

rejected Appellant’s logic, explaining that the Eighth Amendment does not require

uniformity in penological approaches across the various states, and that there is no

precedent holding that the Eighth Amendment prohibits a mandatory sentence of life

without parole for an adult convicted of second degree murder. Moreover, the Superior

Court determined that it was bound by its decision in Rivera, as well as prior case law,

which determined that the imposition of the mandatory punishment of a life sentence

without parole for second degree murder did not constitute cruel and unusual punishment

under the United States Constitution. The Superior Court pointed out that Graham, Miller,

and Montgomery all involved juveniles, who as a class are constitutionally distinct from

adults for purposes of sentencing, and, thus, these United States Supreme Court

precedents were inapplicable, as Appellant was not a juvenile at the time he committed

the robbery.




                                     [J-60-2024] - 6
       The Superior Court then turned to Appellant’s claim that his mandatory sentence

of life imprisonment without the possibility of parole is unconstitutional under Article I, §

13 of the Pennsylvania Constitution. The court dismissed this argument in light of our

Court’s decisions repeatedly and unanimously holding that “the rights secured by the

Pennsylvania prohibition against ‘cruel punishments’ are coextensive with those secured

by the Eighth and Fourteenth Amendments.” Lee, 2023 WL 3961802, at *4 (quoting

Commonwealth v. Zettlemoyer, 454 A.2d 937, 967 (Pa. 1982), abrogated on other

grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003)). The Superior Court

concluded that, because Appellant’s Eighth Amendment claim failed, his Article I, Section

13 claim likewise failed, and affirmed Appellant’s judgment of sentence.

       Judge Dubow concurred, agreeing with the majority’s conclusion that the court was

bound by existing case law which upholds the mandatory imposition of life without parole

for a defendant convicted of second degree murder under both the United States and

Pennsylvania Constitutions. Judge Dubow suggested, however, that in light of changes

in other states’ case law and research and policy concerns regarding the criminal justice

system, our Court should revisit the factors set forth in Commonwealth v. Edmunds, 586

A.2d 887 (Pa. 1991), and reconsider whether a mandatory minimum sentence of life

without parole imposed for all second degree murder convictions is constitutional under

Article I, Section 13 of the Pennsylvania Constitution. Appellant sought further review in

our Court.

                                         II. Issues

       We granted review limited to two issues. We first agreed to address whether

Appellant’s mandatory sentence of life imprisonment with no possibility of parole is

violative of the Eighth Amendment to the United States Constitution where he was

convicted of second degree murder but did not kill or intend to kill and, therefore, had




                                      [J-60-2024] - 7
categorically diminished culpability under the Eighth Amendment.          We also granted

review to consider whether Appellant’s mandatory sentence of life imprisonment with no

possibility of parole is constitutional under Article I, Section 13 of the Pennsylvania

Constitution, where he did not kill or intend to kill, and whether Article I, Section 13

provides greater protections in those circumstances than the Eighth Amendment to the

United States Constitution. Commonwealth v. Lee, 313 A.3d 452 (Pa. 2024) (order).

       The constitutional validity of a statute presents a pure question of law and, as with

any question of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Baker, 78 A.3d 1044, 1047 n.3 (Pa. 2013); Robinson Township,

Washington County v. Commonwealth, 83 A.3d 901, 943 (Pa. 2013).                   Moreover,

regarding any constitutional challenge to legislation, the challenger bears the heavy

burden of demonstrating that the statute “clearly, palpably, and plainly violates the

Constitution,” as we presume that our sister branches act in conformity with the

Constitution. Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa. 2006). Finally, while the

parties do not expressly characterize this appeal as a facial or an as-applied challenge to

a mandatory sentence of life without parole, we conclude Appellant raises a facial

challenge. Specifically, a facial contest examines a law’s constitutionality based on its

text alone without considering the facts or circumstances of a particular case. The court

does not look beyond the statute’s explicit requirements or speculate about hypothetical

or imaginary cases. Germantown Cab Company v. Philadelphia Parking Authority, 206

A.3d 1030, 1041 (Pa. 2019). Conversely, an as-applied contest of a statute is more

limited. Such approach does not assert that a law is unconstitutional as written, but only

that its application to a particular person under particular circumstances deprives that

individual of a constitutional right. While “as-applied challenges require application of the

[law] to be ripe, facial challenges are different, and ripe upon mere enactment of the




                                      [J-60-2024] - 8
ordinance.”    Philadelphia Entertainment & Development Partners, L.P. v. City of

Philadelphia, 937 A.2d 385, 392 n.7 (Pa. 2007).           Here, Appellant challenges the

mandatory nature of the life without parole sentencing scheme as unconstitutional on the

basis that the statutory framework fails to provide all individuals convicted of felony

murder a process by which to determine individual culpability. As the statutory scheme,

by its terms, does not provide any process in which an individual’s culpability may be

taken into account, we conclude that Appellant’s attack is a facial challenge to a

mandatory sentence of life without parole for second degree murder.

                            III. Background Considerations

                            A. The Felony Murder Doctrine

       Before analyzing the two issues on which we granted review, we believe it

beneficial to consider, as a general matter, the meaning and origins of the felony murder

rule and a life without parole sentence. Broadly stated, felony murder is a murder

committed in the course of the commission of another felony. The essential element

which distinguishes first degree from lesser grades of murder is the specific intent to kill.

Commonwealth v. Moore, 373 A.2d 1101 (Pa. 1977) (citing cases). In contrast, the intent

necessary to establish felony murder is constructively inferred from the malice incident to

the perpetration of an underlying felony. Tarver, 426 A.2d at 573. Thus, under the felony

murder rule, and unlike most other crimes, the defendant’s intent as to the commission of

a murder is immaterial. See Myers; Yuknavich; Tarver, supra.

       The origin of the common law felony murder doctrine is uncertain, and can be

traced to different sources. Dolly Prabhu, A Lifetime for Someone Else’s Crime: The

Cruelty of Pennsylvania’s Felony Murder Doctrine, 81 U. Pitt. L. Rev. 439, 443-45 (2019).

However, a 1797 description of the felony murder doctrine, written by Sir Edward Coke,

is often pointed to as the source of the common law rule:




                                      [J-60-2024] - 9
              If the act be unlawful it is murder. As if A. meaning to steale
              a deere in the park of B., shooteth at the deer, and by the
              glance of the arrow killeth a boy that is hidden in a bush: this
              is murder, for that the act was unlawfull, although A. had no
              intent to hurt the boy, nor knew not of him. But if B. the owner
              of the park had shot at his own deer, and without any ill intent
              had killed the boy by the glance of his arrow, this had been
              homicide by misadventure, and no felony.


Id. at 443 (quoting People v. Aaron, 299 N.W.2d 304, 309 (Mich. 1980) (quoting Edward

Coke, The Third Part of the Institutes of the Laws of England 56 (E. & R. Brooke 1797))).

Yet, this description appears to have been an unwarranted extension of another passage,

written by the 13th century English jurist Henry de Bracton, who offered that an

unintentional killing during the commission of a lawful activity was not blameworthy;

however, an unintentional killing which occurred during the commission of unlawful

activity was. Id. at 443-44. The difference being that, while these descriptions suggest

that a killing which occurred during the course of a felony would be “blameworthy” and

unlawful, there was no suggestion in Bracton’s understanding that such an act would

constitute murder, as proffered by Sir Coke, a crime at the time which was limited in

nature, and that today, except for felony murder, requires a culpable mens rea in regard

to the act of killing. Id. at 444. This distinction, however, as a practical matter, made little

difference, as at early common law, virtually all felonies were punishable by death; thus,

it was “of no particular moment whether the condemned was hanged for the initial felony

or for the death accidentally resulting from the felony.” Aaron, 299 N.W.2d at 310-11.

Notably, in England, the birthplace of the felony murder doctrine, the rule was rarely

invoked and ultimately eliminated in 1957. Prabhu, at 444.

       Various justifications undergird the felony murder doctrine, and commentators

have differed on the initial justifications in English common law. Some argue that there

was little need for the felony murder doctrine as all felonies traditionally warranted capital




                                       [J-60-2024] - 10
execution; however, execution rates varied according to the felony. Michael T. Moore,

Jr., Felony Murder, Juveniles, and Culpability: Why the Eighth Amendment’s Ban on Cruel

and Unusual Punishment Should Preclude Sentencing Juveniles Who Do Not Kill, Intend

to Kill, or Attempt to Kill to Die in Prison, 16 Loy. J. Pub. Int. L 99, 104-05 (2014). One

modern justification for the doctrine is to deter accidental or negligent deaths during the

commission of a felony. The other primary justification is retribution, which is rooted in its

common law ancestry. Id. at 105. Moreover, some contend that the felony murder rule

is compatible with notions of law and order, protecting the public against those who

introduce unwarranted and unnecessary threats of death into citizens’ daily lives, and so

acts as a safeguard against the risks of armed robbery, burglary, rape, and similar crimes,

communicating to felons the consequences of their actions and comforting victims of such

crimes, by reflecting the significance of an innocent victim’s life. James J. Tomkovicz,

The Endurance of the Felony-Murder Rule: A Study of the Forces That Shape Our

Criminal Law, 51 Wash. & Lee L. Rev. 1429, 1463-65 (1994).

       American felony murder principles were enacted primarily by legislatures in the

mid-19th century, and were developed in an effort to reform the law of homicide by

codifying its objective and subjective elements. Guyora Binder, The Culpability of Felony

Murder, 83 Notre Dame L. Rev. 965, 976-79 (2008). Numerous states adopted felony

murder statutes, which were initially applied to all felonies regardless of their

dangerousness. The first felony murder statute was passed in Illinois in 1827 and, by the

end of the 19th century, nineteen states had adopted differing kinds of felony murder

statutes. Moore, Jr. at 104-05.

       However, early on, both the English and American courts observed the harshness

of the rule and began to limit its application. Jason M. Cieslik, J.D., A New Approach to

Felony Murder in Illinois, 42 N. Ill. U. L. Rev. 243, 246-48 (2022). In many cases, the




                                      [J-60-2024] - 11
felony murder rule was restricted to felonies that involved a high risk that someone might

be killed, and states that embraced the felony murder doctrine have limited the rule by,

inter alia, setting forth specific felonies which would qualify and strictly interpreting

proximate or legal cause. Id. Though still applied in most states, the doctrine has been

limited by every state in some regard to diminish its harshness, confining its application

to felonies inherently dangerous to life; some applying the rule only to those who

committed the actual killing; and a few abolishing the doctrine altogether. Prabhu, at 445.

Another approach taken by some states is to limit the severity of the punishment, such as

by imposing life without parole sentences only for intentional murder or especially violent

crimes, or setting the minimum sentence for felony murder as low as five years

imprisonment. Id.

      As for Pennsylvania’s experience with the felony murder doctrine, after gaining

independence from England, a number of the new states began legislative efforts to

codify the crime of murder. This was done, in part, to limit the use of the death penalty.

Legislative reform in the late 1700s involved dividing murder into degrees, and this

uniquely American approach to homicide jurisprudence originated with Pennsylvania’s

1794 statute.   As discussed in greater detail below, this statute was a result of a

reformation movement to reduce and differentiate penalties that was inspired by

Enlightenment figures such as Montesquieu and Beccaria, and was promoted by, inter

alia, James Wilson, Benjamin Rush, and Pennsylvania Supreme Court Justice William

Bradford. Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev.

59, 119 (2004). Indeed, a 1792 report by Justice Bradford for Pennsylvania’s Governor

recommended that the death penalty should be reserved for “deliberate assassination.”

Id. This report prompted a resolution by one legislative house that “all murder . . .

perpetrated by means of poison, or by lying in wait, or by any other kind of wilful,




                                     [J-60-2024] - 12
deliberate and premeditated killing shall be deemed murder in the first degree,” and that

all other kinds of murder shall be murder in the second degree. Id. The next year, a bill

along these lines was presented to both houses; however, during legislative debates, the

offense of murder committed in the course of certain enumerated felonies was added to

the category of first degree murder. Id.

       While the 1794 statute did not formulate a felony murder rule, or define the

elements of murder at all, it identified participation in certain felonies as a grading element

that aggravated murder liability. Thus, it prescribed that “all murder, which shall be

perpetrated by means of poison, or by lying in wait, or by any other kind of wilful,

deliberate and premeditated killing, or which shall be committed in the perpetration, or

attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in

the first degree; and all other kinds of murder shall be deemed murder of the second

degree . . . .” Act of Apr. 22, 1794, ch. 1766, § 2, 1794 Pa. Laws 186, 187.

       After various amendments over the years, as noted above, Pennsylvania’s current

felony murder rule, statutorily identified as murder of the second degree, is set forth in 18

Pa.C.S. § 2502(b). Murder of the second degree is a criminal homicide “when it is

committed while defendant was engaged as a principal or an accomplice in the

perpetration of a felony.” Id. The phrase “perpetration of a felony” in turn, restricts the

felonies that serve as the foundation for second degree murder to the “act of the

defendant in engaging in or being an accomplice in the commission of, or an attempt to

commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual

intercourse by force or threat of force, arson, burglary or kidnapping.” 18 Pa.C.S. §

2502(d). Thus, if a death occurs during the commission or attempted commission of an

enumerated felony to which an individual was a principal or accomplice, that person may

be charged with second degree murder.




                                      [J-60-2024] - 13
                                  B. Life Without Parole

       Parole is a penological disposition for prisoners who appear to have the potential

for rehabilitation outside of prison. Parole does not alter the sentence, and the convict

remains in the legal custody, and under the control, of the state. A parolee is subject to

the conditions of parole and a return to prison for their breach. Com. ex rel. Sparks v.

Russell, 169 A.2d 884, 885 (Pa. 1961). Parole is a matter of grace and mercy shown to

a prisoner who has demonstrated to the Parole Board’s satisfaction his future ability to

function as a law-abiding member of society upon release before the expiration of his

maximum sentence. Rogers v. Pennsylvania Board of Probation & Parole, 724 A.2d 319,

322-23 (Pa. 1999). Thus, as the phrase suggests, a sentence of life without the possibility

of parole prohibits a prisoner from eligibility for such disposition. The Crimes Code

mandates a life without parole sentence for those convicted of second degree murder.

61 Pa.C.S. § 6137(a)(1).

       As to the origins of a sentence of life without parole, such punishment did not exist

at common law. In the early 20th century, the reformist zeal of the Progressive Era

spawned greater enthusiasm for early release, beginning a 70-year expansion of work-

release programs and halfway houses, and earlier parole-eligibility dates. Notes, A

Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital

Punishment, 119 Harv. L. Rev. 1838, 1839 (2006). At the same time, effective prison

sentences in states that adopted parole grew longer, as legislatures and judges felt free

to impose higher sentences when they knew that those sentences might not be served in

full. Moreover, many parolees found it difficult to abide by their conditions of parole. A

list of Progressive Era parole violations in various states included going into debt, public

speaking, cohabitation outside marriage, and political activity. Id. The end result was

that the availability of parole often led to effectively longer sentences.




                                      [J-60-2024] - 14
          From the early 20th century through the 1970s, the sentence of life without parole,

as we now know it, did not exist, as this period was characterized by increased availability

of parole and, more broadly, increased indeterminate sentencing.                The federal

government reduced parole eligibility for life prisoners to ten years in 1976. Id. at 1840.

By then, American support for the death penalty had reversed several times, decreasing

until the Supreme Court struck down all existing death penalty laws in Furman v. Georgia,

408 U.S. 238 (1972), and subsequently increasing as state after state repassed capital

statutes as well as life without parole statutes. Id. at 1840-41. In Pennsylvania, a life

without parole sentence did not exist until the Parole Act of 1941, which gave the Parole

Board the exclusive power to grant parole for all individuals except those sentenced to

life, essentially making every life sentence a life without parole sentence by default.

          Finally, that felony murder convictions in Pennsylvania carry a mandatory sentence

of life imprisonment without parole, makes it an arguable outlier compared to most other

states.     Indeed, only four other states have a similar mandatory life without parole

sentence, without exceptions, for second degree murder. See Iowa, Iowa Code § 707.2,

§ 902.1; Louisiana, La. Rev. Stat. § 14:30.1(A)(2), § 14:30.1(B); Mississippi, Miss. Code

§ 97-3-19(2)(e), § 47-7-3(1)(c); North Carolina, N.C. Gen. Stat. § 14-17(a).7

                                   IV. Eighth Amendment

          We first consider Appellant’s arguments under the Eighth Amendment to the

United States Constitution. Specifically, Appellant sets forth what he believes to be the

7 We point out that there is some controversy as to the number of states that mandate a

life without parole sentence, without exception, for felony murder. See, e.g., Philadelphia
District Attorney’s Office Brief at 8 (asserting two states); Office of the Attorney General
Brief at 8 (asserting eight states); Scholars of the Eighth Amendment Brief at 22 (asserting
nine states); Pennsylvania Prison Society Brief at 23 (asserting 10 states); The
Sentencing Project Brief at 7-8 (asserting 11 states). We merely note that certain of the
states counted by these amici contain the possibility of compassionate parole or release.
See, e.g., Arizona, A.R.S. § 31-233; Florida, F.S.A. § 947.149; South Dakota, SDCL §
24-15A-55.


                                       [J-60-2024] - 15
two lines of United States Supreme Court case law interpreting the Eighth Amendment:

(1) decisions considering whether a term of years sentence is grossly disproportionate to

the offense; and (2) cases analyzing whether a capital punishment or life without parole

sentencing practice is excessive as applied to a category of offenders or offenses.

Appellant submits that only the second categorical approach is applicable in this matter.

       Supporting his categorical approach challenge, Appellant traces a line of high

Court decisions beginning with Enmund v. Florida, 458 U.S. 782 (1982), in which the

United States Supreme Court recognized that defendants convicted of felony murder who

did not kill or intend to kill have a categorically diminished culpability and could not be

sentenced to death.      Appellant notes that the Enmund decision differentiated the

culpability for sentencing purposes of those who had a specific intent to kill and those

convicted of felony murder. Appellant stresses that the Enmund Court emphasized that

the focus was on determining the culpability of the defendant which in turn impacted the

proportionality of the punishment. According to Appellant, defendants who did not kill,

attempt to kill, or intend to kill are less morally culpable and, thus, less deserving of the

most severe punishments.

       Appellant then offers a more recent line of cases involving the category of juvenile

offenders. Appellant contends that, beginning with Graham, and including Miller, the high

Court has applied a categorical approach previously reserved for the death penalty and

expanded it to a sentence of life without parole. In Appellant’s view, the Supreme Court

reasoned that, because a life without parole sentence was sufficiently similar to the death

penalty, the same level of scrutiny and protection was required under the Eighth

Amendment.

       Specifically, under this approach, courts survey whether there are “‘objective

indicia of society’s standards, as expressed in legislative enactments and state practice,’




                                      [J-60-2024] - 16
to determine whether there is a national consensus” rejecting the sentence as excessive.

Graham, 560 U.S. at 61. Appellant proffers that this analysis also includes recent trends

among the states and internationally with respect to imposing a particular sentence upon

a certain category of offenders or type of offense. Appellant maintains that courts also

assess whether the punishment is disproportionate when comparing the culpability of the

class of offender with the severity of the punishment and whether the sentence

adequately serves legitimate penological goals when applied to the particular category of

offenders or offense. Appellant stresses the focus on culpability in this series of cases,

specifically, that it is the defendant’s culpability and not that of the other actors who

committed the crime, emphasizing that those defendants who did not kill, attempt to kill,

or intend to kill are less morally culpable than those who do and, thus, less deserving of

the most severe punishment.        Indeed, Appellant highlights that the Graham Court

stressed that “a juvenile offender who did not kill or intend to kill has a twice diminished

moral culpability,” first because of youth, and second because of the nature of the offense.

Id. at 69. According to Appellant, these decisions established that the high Court’s

jurisprudence prohibits the most severe punishments for categories of offenders with

diminished culpability and are applicable to one sentenced to life without parole with no

meaningful opportunity for release.

       Applying these tenets to the matter sub judice, Appellant proffers that the mens

rea required in order to be convicted of second degree murder is merely the intent to

engage in the underlying felony, as the malice necessary to support murder, even an

accidental one, is constructively inferred from the malice incident to committing the initial

felony. Here, Appellant claims that he did not kill or have the intent to kill, and indeed,

was found not guilty of first degree murder, and, thus, has a categorically diminished

culpability under the Eighth Amendment. Continuing, Appellant asserts that, because he




                                      [J-60-2024] - 17
had no intent to kill, and a punishment of life without parole is sufficiently similar to the

death penalty, a life without parole sentence is unduly harsh in relation to legitimate

penological purposes, and so it is violative of the Eighth Amendment.               Moreover,

Appellant maintains that Pennsylvania’s punishment of life without parole for second

degree murder is severe and outside of the national consensus and international

standards and is inconsistent with legitimate penological goals, as it fails to promote

deterrence, rehabilitation, and incapacitation. Appellant submits that even retribution ─

that is, punishment in proportion to the heinousness of the criminal act ─ is unprincipled

in this area, as the life without parole sentence is identical to that imposed upon those

whose culpability is greater.

       Numerous amici have submitted briefs on whether a punishment of life without

parole for second degree murder violates the Eighth Amendment. While a number of

these briefs largely track Appellant’s arguments, certain contentions merit mention.

Specifically, Amici Scholars of Eighth Amendment Law stress the comparative nature of

a sentence of life without parole to the death penalty and urge that the two should be

treated similarly. In this vein, Amici argue that for individuals who did not kill or intend to

kill, the severe punishment of mandatory life imprisonment without parole violates the

Eighth Amendment. While observing that the United States Supreme Court’s categorical

approach was first recognized in the capital context and was extended to noncapital

punishments when it was applied to juveniles, Amici submit that this approach should be

extended to classes of adults with a diminished culpability based upon their

characteristics or the nature of their offenses.      Finally, Juvenile Law Center, Youth

Sentencing & Reentry Project and Philadelphia Lawyers for Social Equity highlight that

current research indicates that there is little difference developmentally between young




                                      [J-60-2024] - 18
people under the age of 18 and young adults 18 and older, rendering extreme

punishments for felony murder inappropriate for both categories of adults.

       The Commonwealth counters first by emphasizing the presumption of

constitutionality that an enactment by the General Assembly enjoys ─ unless clearly,

palpably and plainly violative of the Constitution ─ and the heavy burden of persuasion

on challengers to the constitutionality of a statute. On the merits, the Commonwealth

asserts that the Eighth Amendment does not require strict proportionality between crime

and sentence, but only prohibits sentences grossly disproportionate to a crime. The

Commonwealth offers the three-prong test for evaluating whether a sentence is grossly

disproportionate, which assesses: (1) the gravity of the offense and the harshness of the

penalty; (2) the sentences imposed upon other criminals in the same jurisdiction; and (3)

the sentences imposed for commission of the same crime in other jurisdictions, citing

Solem, 463 U.S. at 292. The Commonwealth then pivots and challenges Appellant’s

reliance upon Miller. According to the Commonwealth, while Miller, which focused on

juveniles, may have altered the three-prong test to some degree, it did not invalidate a

punishment of life without parole altogether, but focused on the fact that juveniles do not

have the mental capacity to appreciate their actions. Thus, while seemingly applying a

categorical approach, the Commonwealth maintains that the Miller Court recognized that

life without the possibility of parole is not cruel or unusual as applied to adults, and offers

various decisions finding that Miller does not apply to adults who possess the same or

similar cognitive disabilities as minors, citing Commonwealth v. (Avis) Lee, 206 A.3d 1, 9

(Pa. Super. 2019); Commonwealth v. Olds, 192 A.3d 1188, 1196 (Pa. Super. 2018)

(finding that consistent with Miller, a state may set a mandatory maximum term of life

imprisonment so long as defendants receive an opportunity for parole based upon

demonstrated maturity and rehabilitation). Accordingly, the Commonwealth believes a




                                      [J-60-2024] - 19
mandatory sentence of life imprisonment without parole for a conviction for second

degree murder, even for a non-slayer, is not grossly disproportionate.

       The Commonwealth also rejects Appellant’s reliance upon the United States

Supreme Court’s decisions such as Enmund (barring death penalty for person convicted

of felony murder who was not the slayer), as those decisions involved capital punishment,

the most severe punishment requiring special considerations regarding its application to

certain categories of offenders. Likewise, the Commonwealth distinguishes Appellant’s

reliance upon cases such as Graham and Miller, as those decisions involved juveniles, a

unique category of offenders. The Commonwealth challenges Appellant’s attempt to

characterize persons such as himself who were convicted of felony murder, but who were

not the actual slayer, as a special class akin to juveniles who had diminished culpability,

and submits that this argument is actually a challenge to the felony murder rule which

rests culpability upon each participant in the underlying felony equally, and not a

challenge to his sentence. The Commonwealth, citing various decisions by our Court,

maintains that when one engages in certain enumerated felonies and a killing occurs, the

finder of fact is to infer the killing was malicious as the individual engaged in a felony of

such a dangerous nature and the actor knew or should have known that death might

result from the felony. Thus, the malice necessary to render a killing, even an accidental

one, a murder, is constructively inferred from the malice incident to the perpetration of the

initial offense. The Commonwealth points out that a greater penalty is in fact imposed for

murder of the second degree than imposed for murder of the third degree, even though

third degree murder is malicious. Ultimately, while the Commonwealth acknowledges

that there may be persuasive arguments why a non-slayer should not be held to the same

degree of culpability as the slayer, it stresses that these are policy decisions for the

General Assembly.




                                      [J-60-2024] - 20
       Furthermore, the Commonwealth argues that the Eighth Amendment does not

require strict proportionality between crime and sentence, but forbids only extreme

sentences which are “grossly” disproportionate to the crime. Commonwealth’s Brief at 8.

The Commonwealth offers that, in Miller, the United States Supreme Court held that life

imprisonment without parole was unconstitutionally cruel when imposed upon a

defendant convicted of murder who was under the age of 18 at the time the crime was

committed. According to the Commonwealth, however, the high Court did not strike life

without parole in toto, but centered its categorical analysis on the fact that juveniles, who

fall within a unique category of offenders, lack the mental capacity and maturity to

appreciate their actions, and possess an underdeveloped sense of responsibility.

Therefore, while a juvenile is not absolved of responsibility for his or her actions, he or

she is not as morally reprehensible as an adult.         As a result, the Commonwealth

concludes that a sentence of life without parole for one convicted of second degree

murder, even for a non-slayer, is not grossly disproportionate, and so is constitutional

under the Eighth Amendment.

       Two Amicus briefs were filed on behalf of the Commonwealth. The Office of the

Attorney General explains that, while policy arguments may be compelling to alter the

sentence of life without parole for one convicted of second degree murder, it stresses that

policy determinations are for the legislative and executive branches, and not the judiciary.

While focusing on the constitutionality of a sentence of life without parole for second

degree murder under the Pennsylvania Constitution, Amicus offers that the Governor’s

expanded use of commutation could be an effective way forward.                Similarly, the

Pennsylvania District Attorneys Association          points out that significant policy

considerations are raised by Appellant and amici in support of him, and are worthy of

exploration, however, they are directed to the “wrong body,” and are more properly made




                                      [J-60-2024] - 21
to the General Assembly and Governor; indeed, Amicus notes that most of the amicus

briefs in support of Appellant offer only policy arguments and are devoid of constitutional

analysis.

      The Eighth Amendment to the United States Constitution provides: “Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII.8 The prohibition of cruel and unusual punishment

“guarantees individuals the right not to be subjected to excessive sanctions.” Roper v.

Simmons, 543 U.S. 551, 560 (2005). This right “flows from the basic ‘precept of justice

that punishment for crime should be graduated and proportioned’” to both the offender

and the offense. Id. (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). Thus,

the idea of proportionality is central to the Eighth Amendment. Graham, 560 U.S. at 59.

      What constitutes “cruel and unusual punishments” has been defined in two lines

of United States Supreme Court decisions. In the first line of decisions, the high Court

considered the proportionality between the crime committed and the sentence imposed.

The Court has been clear, however, that the Eighth Amendment does not mandate strict

proportionality between the crime and sentence. Indeed, “only in the rare case in which

a threshold comparison of the crime committed and the sentence imposed leads to an

inference of gross disproportionality” is cruel and unusual punishment implicated.

Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring). Appellant

does not rely upon a strict proportionality approach, however, and, thus, we turn to the

second line of decisions embodying a categorical approach.

      In a series of Eighth Amendment cases, the United States Supreme Court has

adopted a categorical approach to determining whether a punishment was violative of the


8 The Eighth Amendment applies to the states by virtue of the Fourteenth Amendment.

Robinson v. California, 370 U.S. 660, 666-67 (1962).


                                     [J-60-2024] - 22
Eighth Amendment, primarily in the arena of juvenile offenders. The high Court first

recognized this categorical approach in the capital context. Beginning with Enmund v.

Florida, 458 U.S. 782 (1982), the United States Supreme Court, in an opinion authored

by Justice Byron White, recognized that defendants convicted of felony murder who did

not kill, attempt to kill, or intend to kill have a categorically diminished culpability and so

could not be sentenced to death. The high Court found that, in the context of a robbery

that ended in murder, Florida’s identical treatment of both Enmund, who drove the

getaway vehicle and who did not kill or intend to kill, and the robbers who killed the victims,

was impermissible under the Eighth Amendment. Id. at 798. The Court noted that

“American criminal law has long considered a defendant’s intention ─ and therefore his

moral guilt ─ to be critical to ‘the degree of [his] criminal culpability.’” Id. at 800 (citation

omitted). Thus, the Supreme Court determined that, for purposes of capital punishment,

criminal culpability of one who did not kill, attempt to kill, or intend to kill, must be limited

to participation in the underlying felony, and any punishment must be tailored to personal

responsibility and moral guilt. Id. at 801; see also Kennedy v. Louisiana, 554 U.S. 407

(2008) (finding capital punishment excessive when applied to rape where the defendant

did not kill or intend to take a life).

       Twenty-three years later, in Roper v. Simmons, 543 U.S. 551 (2005), the Court

concluded that the Eighth Amendment prohibits capital punishment for murderers who

were under 18 at the time of their crimes. Justice Anthony Kennedy, writing for the

majority, relied on evolving scientific knowledge regarding adolescent development,

particularly that juveniles have a relative “lack of maturity” and an “underdeveloped sense

of responsibility;” youth are more vulnerable to “outside pressures” or “peer pressure;”

and a juvenile’s character is “not as well formed” as that of an adult. Id. at 569-70. The

high Court, adopting a categorical rule, prohibited the death penalty for defendants who




                                          [J-60-2024] - 23
committed their crimes as juveniles, due to their lessened culpability, reasoning that they

were less deserving of the most severe punishment.

       Five years later, in Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court, in

an opinion again penned by Justice Kennedy, held that the mandatory life without parole

sentencing of juvenile nonhomicide offenders constitutes cruel and unusual punishment

based upon the limited culpability of youth as well as the severity of life without parole

sentences, as akin to capital punishment. Like in Roper, the Court emphasized the

distinctive attributes of youth which undercut any penological justification for imposing a

sentence of death. Importantly, the Graham Court likened life without parole for juveniles

to the death penalty, implicating a line of capital decisions in which sentencing authorities

were required to consider the defendant’s characteristics and the details of the offense

that he committed before imposing capital punishment. It bears noting, however, that

Graham did not bar a sentence of life without parole for offenders who were under 18 and

committed homicide. The Graham Court stated: “There is a line ‘between homicide and

other serious violent offenses against the individual.’” Id. at 69.

       This changed two years later in the high Court’s landmark decision in Miller v.

Alabama, 567 U.S. 460 (2012). In Miller, the Supreme Court addressed the issue of

whether the imposition of a mandatory sentence of life imprisonment without parole upon

juveniles for their conviction of murder violated the Eighth Amendment’s prohibition

against cruel and unusual punishment. The Supreme Court, in an opinion authored by

Justice Elena Kagan, first explained the rationale behind the Eighth Amendment as

guaranteeing “individuals the right not to be subjected to excessive sanctions” which right

“flows from the basic ‘precept of justice that punishment for crime should be graduated

and proportioned’ to both the offender and the offense.” Id. at 469 (citations omitted). In

finding such mandatory sentences were barred, the Court relied upon two lines of




                                      [J-60-2024] - 24
precedent that reflected the Court’s concern for proportionate punishment. Id. at 470.

The first line of decisions embraced categorical bans on sentencing practices based on

the incongruity between the culpability of the class of offenders and the severity of a

penalty. The Court reasoned that juveniles are constitutionally distinct from adults for

sentencing purposes due to their diminished culpability, lack of maturity, underdeveloped

sense of responsibility, and vulnerability to outside pressures and negative influences, as

well as the greater prospects for reform, which rendered them less deserving of the most

severe penalties. Id. at 471. In describing these most severe penalties, the high Court,

relying on Graham, again likened a sentence of life without parole to the death penalty,

noting that both sentences possessed common characteristics “shared by no other

sentences.” Id. at 474. The Court made clear that “youth matters in determining the

appropriateness of a lifetime of incarceration without the possibility of parole.” Id. at 473.

The second line of decisions upon which the Court relied involved the imposition of capital

punishment which required sentencing authorities to “consider the characteristics of a

defendant and the details of his offense before sentencing him to death.” Id. at 470. The

Miller Court determined that “the confluence of these two lines of precedent leads to the

conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth

Amendment.” Id.

       Significantly, the Court explained that mandatory life imprisonment without parole

could not be imposed upon minors absent an individualized consideration of “how children

are different, and how those differences counsel against irrevocably sentencing them to

a lifetime in prison.” Id. at 480. Finally, the Miller Court stressed that, after individualized

assessment of the juvenile defendant, a mandatory life without parole sentence for a

juvenile could still be a viable sentence. The high Court’s Miller decision was consistent

with its line of cases concerning certain classes of individuals subject to a sentence of life




                                       [J-60-2024] - 25
without parole, and, in the case of juveniles, mandated an individualized assessment of

circumstances, such as “immaturity, impetuosity, and failure to appreciate risks and

consequences,” the defendant’s family and home environment, the circumstances of the

homicide, and the possibility of rehabilitation. Id. at 477-78. Miller was later clarified in

Montgomery, supra, as providing not merely a procedural protection but, critically, a

substantive federal constitutional protection, making retroactive Miller’s prohibition

against sentencing juvenile homicide offenders to a mandatory sentence of life in prison

without possibility of parole. Most recently, however, in Jones v. Mississippi, the Court

decided that a juvenile homicide offender may be sentenced to life without parole, and

that the sentencing tribunal was not required to make a separate factual finding regarding

the minor’s permanent incorrigibility before imposing a discretionary sentence of life

without parole on such offender. 593 U.S. 98, 106-07 (2021). Rather, the sentence must

not be mandatory, and a sentencer must follow a certain process – considering an

offender’s youth and attendant characteristics, diminished culpability and heightened

capacity for change – before imposing a life without parole sentence. Id. 108-09. The

Court reasoned that such sentencing procedure ensured that the sentencing tribunal

afforded individualized consideration to, among other things, the defendant’s

“chronological age and its hallmark features.” Id. at 109.

       While broader principles regarding culpability and the requirement of individualized

assessment before imposing a mandatory sentence of life without parole may be drawn

from these decisions, it is inescapable that the categorical focus in all of these cases was

either on capital punishment, or that the offender was under the age of 18.9 In Miller, the

9 To illustrate, in Harmelin v. Michigan, 501 U.S. 957 (1991), a defendant was sentenced

to a mandatory life without parole term for possessing more than 650 grams of cocaine.
The Supreme Court rejected Harmelin’s constitutional challenge to his sentence,
reasoning that “a sentence which is not otherwise cruel and unusual” does not “becom[e]
so simply because it is ‘mandatory.’” Id. at 995. Thus, while the high Court mandated
(continued…)

                                      [J-60-2024] - 26
Supreme Court noted that “Roper and Graham emphasized that the distinctive attributes

of youth diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes.” Miller, 567 U.S. at 472.

Indeed, the decisions were based upon science and the physical distinctions between

adult and juvenile brains. For example, in Graham, the Supreme Court distinguished

between the two as follows:

              [D]evelopments in psychology and brain science continue to
              show fundamental differences between juvenile and adult
              minds. For example, parts of the brain involved in behavior
              control continue to mature through late adolescence. See
              Brief for American Medical Association et al. 16-24; Brief for
              American Psychological Association et al. 22-27. Juveniles
              are more capable of change than are adults, and their actions
              are less likely to be evidence of “irretrievably depraved
              character” than are the actions of adults. Roper, 543 U.S., at
              570, 125 S.Ct. 1183. It remains true that “[f]rom a moral
              standpoint it would be misguided to equate the failings of a
              minor with those of an adult, for a greater possibility exists that
              a minor’s character deficiencies will be reformed.”


Graham, 560 U.S. at 68.

       Thus, for Eighth Amendment purposes, “children are constitutionally different from

adults for purposes of sentencing.” Montgomery, 577 U.S. at 206, and the line of high

Court decisions in Miller, Montgomery, and Jones did not question or reform the age-

based bright line first drawn in Roper. While certain scholarship may suggest a broader




individualized sentencing in the context of capital punishment, it has refused to extend
that requirement to nonjuvenile, noncapital cases.             Moreover, the Miller Court
distinguished its prior decision in Harmelin, noting that it had “nothing to do with children
and did not purport to apply its holding to the sentencing of juvenile offenders.” Miller,
567 U.S. at 481.


                                      [J-60-2024] - 27
interpretation of these cases,10 we find that the United States Supreme Court’s decisions

employing a categorical approach, whether involving the death penalty with diminished

culpability, or regarding the sentencing of the distinct class of juveniles to mandatory life

without parole are, under the Eighth Amendment, distinguishable from an analysis of the

mandatory sentencing of adults to life without parole and, at least at this juncture, without

additional guidance from the high Court, provides no relief to Appellant.

                                 V. Article I, Section 13

                                      A. Arguments

       Having first looked to the United States Constitution and determining that it cannot

be said that Appellant’s sentence of mandatory life imprisonment without parole for his

conviction of second degree murder constitutes cruel and unusual punishment under the

Eighth Amendment, we continue with Appellant’s contention that our state constitution

affords greater safeguards than its federal counterpart.

       In addressing the constitutionality of a mandatory sentence of life without parole

for felony murder under the Pennsylvania Constitution, Appellant stresses, as an

introductory matter and throughout his brief, that felony murder does not require any level

of criminal intent with respect to the death that occurred during the perpetration of the

underlying felony, but rather the malice essential for a conviction of murder is imputed to

the defendant from the intent to commit the underlying felony. Moreover, Appellant

emphasizes that the defendant need not directly cause the death of the victim in order to

be found guilty of felony murder; rather, when a killing occurs during the commission of

certain felonies, the actual killer and all who participated ─ including, for example, the

driver of a getaway vehicle ─ are all equally guilty of second degree murder. Appellant

10 See Gertner, Miller v. Alabama: What It Is, What It May Be, and What It Is Not, 78 Mo.
L. Rev. 1041 (Fall 2013); O’Hear, Not Just Kids Stuff? Extending Graham and Miller to
Adults, 78 Mo. L. Rev. 1087 (Fall 2013).


                                      [J-60-2024] - 28
points out that the felony murder rule has faced harsh condemnation, including an

admonishment by our Court in Myers, 261 A.2d at 553-54 (recognizing criticism of the

rule as “highly punitive and objectionable as imposing the consequences of murder upon

a death wholly unintended,” characterizing it as “non-essential,” and offering that it is “very

doubtful that it has the deterrent effect its proponents assert”).         Finally, Appellant

challenges the broad application our 1982 decision in Zettlemoyer, in which we found the

federal constitutional right against cruel and unusual punishment, and the state

constitutional right against cruel punishment, to be co-extensive; he offers that members

of our Court have suggested that the decision was claim specific and did not foreclose

the possibility that our Constitution provides greater protection than the federal charter,

citing Baker, 78 A.3d at 1053 (Castille, C.J., concurring) (explaining that “[t]his Court is

not obliged by existing precedent to proceed in lockstep in approaching state

constitutional ‘cruel punishment’ claims” and rejecting notion that “all claims arising under

Article I, Section 13 should be treated as if they were subject to the same standards that

would govern an equivalent Eighth Amendment claim”).

       Appellant, recognizing the four-prong test for determining whether greater rights

exist under the Pennsylvania Constitution than its federal counterpart, then sets forth a

comprehensive Edmunds analysis.          Beginning with the text of the two provisions,

Appellant contends that the Pennsylvania Constitution’s prohibitory language against

“cruel punishments inflicted,” Pa. Const. art. I, § 13, is broader in protection than the

textually distinct amendment to the United States Constitution, which safeguards against

“cruel and unusual punishments.” U.S. Const. amend. VIII. Appellant focuses on the

term “unusual” contained in the federal Constitution and asserts that this term has been

given a distinct meaning, as interpreted by the United States Supreme Court, citing

Harmelin, 501 U.S. at 967 (noting the difference between “cruel” and “unusual” in the




                                      [J-60-2024] - 29
federal Constitution); see also Bucklew v. Precythe, 587 U.S. 119, 130-31 (2019)

(explaining that “Americans in the late 18th and early 19th centuries described as ‘unusual’

governmental actions that had ‘fall[en] completely out of usage for a long period of time’”).

       According to Appellant, Pennsylvania’s failure to use the term “unusual” in

conjunction with the term “cruel” is meaningful. Appellant avers that, as a result, the

Pennsylvania provision is broader.       Specifically, the Pennsylvania provision is not

burdened with the requirement that a challenged punishment be both contrary to the

common law and not continually imposed for a long period under the common law, to be

deemed to be unconstitutional.

       Appellant proffers that the history of Section 13 of our Constitution confirms that

the framers had a unique understanding of cruelty, believing only deterrence and

reformation justified a punishment, and anything that was unnecessary to support those

aims was considered to be unjustly harsh, i.e., cruel. Appellant’s Brief at 17 (citing Kevin

Bendesky, “The Key-Stone to the Arch”: Unlocking Section 13’s Original Meaning, 26 U.

Pa. J. Const. L. 201, 201 (2023)). Appellant adds that the theme of proportionate crimes

also served as a foundation of the history of the constitutional provision and that these

principles ─ that the punishments should be proportionate to the needs of deterrence and

rehabilitation ─ became the basis for the Constitution’s prohibition against “cruel

punishments.”     Bendesky at 241.       According to Appellant, these principles were

historically aligned with life without parole sentences, as exemplified by the routine use

of clemency for those who had demonstrated rehabilitation, at least until the state’s

statutory mandate that those serving a life sentence be ineligible for parole and the recent

decline in the use of commutation.

       As to case law from other jurisdictions, Appellant points to certain states which

interpret their constitution’s “cruel” or “cruel or unusual” punishment clauses as providing




                                      [J-60-2024] - 30
broader protection than the Eighth Amendment to the federal Constitution.               While

recognizing that other states have either found their constitutional provision to be co-

extensive with the Eighth Amendment, or have not engaged in a substantive analysis of

the matter, Appellant submits that these decisions represent a trend towards finding

independent meaning to state constitutions, and urges our Court to follow these states

and find that our state’s cruel punishments clause provides greater protection than the

Eighth Amendment.

       Appellant also offers that policy considerations, especially Pennsylvania’s outlier

status in imposing life without parole for felony murder, support a broader understanding

of Article I, Section 13. Specifically, Appellant notes that, other than Florida, Pennsylvania

incarcerates the highest number of individuals serving life without parole sentences. This,

according to Appellant, is a result of Pennsylvania’s status as one of only nine states and

the federal government that mandates life without parole for felony murder. Appellant

surveys the global status of life without parole sentences and points to the United Nations

Human Rights Committee’s November 2023 observations in which it requested that the

United States “consider establishing a moratorium on the imposition of sentences of life

imprisonment without parole.” Concluding Observations on the Fifth Periodic Report of

the United States of America, CCPR/USSA/CO/5, 12 (December 7, 2023), International

Covenant        on       Civil      and        Political      Rights,       available       at

https://docs.un.org/en/CCPR/C/USA/CO/5.          Appellant maintains that bringing the

Commonwealth more in line with contemporary practices supports a broader

interpretation of our Constitution’s proscription against cruel punishments. Appellant also

claims a racial disparity in application of the felony murder rule in Pennsylvania, and

asserts that incarcerating elderly convicts for life wastes resources and does not further

public safety. As a result, Appellant stresses that the substantial costs associated with




                                      [J-60-2024] - 31
incarcerating the elderly, including expenditures for the specialized medical needs of an

aging prison population, could be utilized for “programming that would improve public

safety, such as rehabilitative, vocational, and educational programs as well as reentry

and transition services.” Appellant’s Brief at 40.

       In light of these considerations, Appellant argues that our Commonwealth’s cruel

punishments clause should be interpretated to afford broader protections than the Eighth

Amendment and requests that we adopt a proportionality standard which would prohibit

punishments that are excessive in relation to their deterrence and rehabilitation effects.

Applying such construct here, Appellant asserts that a life without parole sentence for a

felony murder conviction is excessive in relation to deterrence or rehabilitation goals, and

that his sentence constitutes cruel punishment for purposes of Article I, Section 13 of our

Constitution, and so should be overturned.

       Sixteen amicus briefs have been filed on behalf of Appellant. While some echo

Appellant’s reasoning, certain amici, discussed below, provide additional insights as to

the constitutionality of the punishment for felony murder. Specifically, Amicus Governor

Josh Shapiro offers that there are clear differences in the crimes of first degree murder

and second degree murder, and they can involve a wide variety of culpable conduct;

however, the punishment is largely the same. Governor Shapiro maintains that while, in

some instances, a second degree murderer may warrant a sentence of life without parole,

it should not be mandated in all situations. Governor Shapiro submits that imposing the

same sentence for all first and second degree murders renders it unconstitutional under

Article I, Section 13. Moreover, according to Governor Shapiro, a judge should have

discretion to impose a minimum sentence based upon the facts and circumstances of the

case, within reasonable statutory limits, including the impact of the crime upon its victims.

In the Governor’s view, a sentence of mandatory life imprisonment without parole for




                                      [J-60-2024] - 32
felony murder does not promote the purposes of punishment ─ deterrence and

rehabilitation ─ and leads to the unnecessary housing of prisoners, placing financial

strains on the Commonwealth. Finally, Governor Shapiro urges that our Court find the

current punishment to be unconstitutional and leave to the legislature and executive

branches how to implement a new constitutional rule, and asks that we refrain from

determining the retroactive nature of its application.

       The Pennsylvania Prison Society, American Civil Liberties Union of Pennsylvania,

American Civil Liberties Union, the Roderick and Solange Macarthur Justice Center, and

Professor Michael Meranze offer the rich history behind the adoption of Section 13,

through which Pennsylvania led the country in the application of Enlightenment principles

to penal systems, focusing on reformation and deterrence; as a result, they submit a

mandatory sentence of life without parole for felony murder is manifestly cruel.

       Former Department of Corrections Secretaries John Wetzel and George Little and

Executives Transforming Probation and Parole offer policy reasons to find a life without

parole sentence for felony murder to be unconstitutional: stressing the enormous, and in

their view, unnecessary, cost of keeping individuals who are often persons convicted at

a very young age and who are incarcerated for their entire lives, as well as inhibiting

correctional leaders’ ability to direct resources and invest in individuals who could benefit

from rehabilitation efforts. Amici also remind the Court that making a class of individuals

eligible for parole does not mandate that they would receive parole, as they would be

subject to a public safety review.

       Criminologists and Law Professors dissect the four purposes of sentencing:

retribution, rehabilitation, deterrence, and incapacitation, and conclude that a life without

parole sentence for felony murder is inconsistent with all four penological purposes.

Likewise, Power Interfaith/Power Live Free note that life without parole sentences are




                                      [J-60-2024] - 33
inconsistent with the values of redemption and rehabilitation, and assert that 73.3% of

those convicted of felony murder in Pennsylvania were 25 years or younger when

committing the offense; 80% of those convicted were people of color; and just under 70%

were Black, despite that Black people comprise roughly 12% of the Commonwealth’s

population.

       Special Rapporteur on Contemporary Forms of Racism and U.N. Expert

Mechanism to Advance Racial Justice and Equality in Law Enforcement offer that

Pennsylvania’s use of life without parole sentences is out of step with most regions of the

world, which rarely employ life sentences, even with parole; violates international human

rights law; and disproportionately impacts “Black and Latinx” Pennsylvanians, in violation

of international human rights treaties.       The Antiracism and Community Lawyering

Practicum at Boston University School of Law et al., echo the significant racial disparities

in the application of Pennsylvania’s felony murder statute.

       Family Members and Loved Ones of Victims Killed by Murder offer personal

testimonies of individuals who lost family members and close friends to murder, who

believe that the values of mercy and redemption require that those sentenced to life

without parole for second degree murder be given an opportunity to make efforts to repair

the harm that they caused and make positive contributions to society outside of prisons.

Similarly, Avis Lee, et al., offer the stories of individuals, formerly serving life without

parole sentences, who aver that such a sentence is ineffective for achieving the

penological purposes of rehabilitation and accountability.         Related thereto, Former

Judges and Prosecutors of Pennsylvania add that not only does a life sentence without

parole alter the offender’s life by a “forfeiture that is irrevocable,” it also prevents judges

and prosecutors from considering each individual’s intent, prior criminal history, or lack

thereof, personal background, and other factors that would be relevant in determining an




                                      [J-60-2024] - 34
appropriate sentence. Amici Brief at 5. Philadelphia District Attorney’s Office echoes

these concerns, and argues that treating all offenders the same regardless of culpability

results in citizens less likely to respect such laws as they are perceived as unjust and

unfair.

          In response, the Commonwealth takes the position that Article I, Section 13 offers

no greater protections than afforded by the Eighth Amendment to the United States

Constitution and contends that a life without parole sentence for a felony murder

conviction does not violate either Constitution. Specifically, the Commonwealth first

emphasizes that a statute will not be deemed to be unconstitutional unless it clearly,

palpably, and plainly violates our organic charter; that all doubts are to be resolved in

finding that the legislative enactment passes constitutional muster; and that a challenger

to the constitutionality of a statute bears a very heavy burden.

          The Commonwealth asserts that Appellant’s argument that his sentence is

disproportionate to his culpability is actually a challenge to his felony murder conviction

and an attempt to escape the consequences of being an accomplice.                       The

Commonwealth explains that when a killing occurs in the commission of a felony, all who

participate therein are equally guilty of murder, citing Yuknavich, supra. Moreover, the

Commonwealth stresses that, under the common law, felony murder imputes malice

where it may not exist expressly and “the malice necessary to make a killing, even an

accidental one, murder, is constructively inferred from the malice incident to the

perpetration of the initial felony,” quoting Myers, 261 A.2d at 553.           Indeed, the

Commonwealth points out that the legislature assigned a greater penalty for second

degree murder when compared to third degree murder, even though the latter is

malicious. This, according to the Commonwealth, is permissible, as the law seeks to

provide a greater deterrent to engaging in particularly dangerous felonies, such as those




                                       [J-60-2024] - 35
triggering the felony murder rule. In the Commonwealth’s view, this defeats Appellant’s

argument that he is less culpable than his principals and deserving of a lesser sentence.

The Commonwealth emphasizes that not only is it reasonable to charge an individual with

the knowledge that the natural and probable consequences of engaging in certain felonies

may well result in death or grievous bodily harm to those involved, but that it is for the

General Assembly to define grades of murder and to assign sentences to them, including

life without parole and death.

       The Commonwealth refutes Appellant’s analysis regarding the Pennsylvania

Constitution and specifically his Edmunds analysis, beginning with our Court’s decision

in Zettlemoyer, which held that the rights secured by Pennsylvania’s constitutional

prohibition against “cruel punishments” are co-extensive with those secured by the Eighth

and Fourteenth Amendments to the United States Constitution. As to the constitutional

text, the Commonwealth challenges Appellant’s conclusion that the Eighth Amendment

does not apply to punishments that have been continuously applied, whereas the

Pennsylvania Constitution does, as the Commonwealth submits that, in various United

States Supreme Court decisions, the defendants were challenging punishments that had

been continuously used for years, and the high Court found them to be violative of the

Eighth Amendment, citing Graham and Enmund.                 As to a historical analysis, the

Commonwealth acknowledges that while Pennsylvania was progressive regarding

punishment, as exemplified by the legislature’s limitation on capital punishment solely for

first degree murder in 1794, it contends that this merely demonstrates such changes are

for the “political will of the people acting through their elected legislators,” and, thus, fails

to support a finding that our Constitution intended greater protections than the federal

counterpart. Commonwealth’s Brief at 20-21.




                                       [J-60-2024] - 36
       As to other states’ case law, the Commonwealth offers that, while other states have

provided greater protections than the federal Constitution, they have done so in their

treatment of juveniles sentenced to life without parole, and none address adults convicted

of felony murder. The Commonwealth highlights that, while certain states have eschewed

automatic sentences of life without parole for adults, these changes have been affected

through legislative enactments, citing legislation in California, Cal. Penal Code Ann. §

188-89; Colorado, Colo. Rev. Stat. Ann. § 18-1.3-401; and Minnesota, Minn. Stat. Ann. §

609.05. Finally, as to policy concerns, the Commonwealth contests Appellant’s assertion

that Pennsylvania is an outlier regarding the number of individuals serving life without

parole as a function of our sentencing scheme for murder generally, and proffers that, of

the 5,375 persons serving life without parole, 1,063 were serving sentences for second

degree murder, and that Appellant fails to account for how many of these individuals were

“non-slayers,” the class which Appellant is attempting to demonstrate is disproportionately

punished.   Commonwealth’s Brief at 25.        The Commonwealth also maintains that

incarceration costs are for the legislative and executive branches to determine. Finally,

the Commonwealth emphasizes that life without parole is subject to the Governor’s power

to commute of a life sentence to a term of years, which places that individual within the

jurisdiction of the Parole Board. Indeed, the Commonwealth notes that, while the practice

was curtailed for a certain period beginning with Governor Richard Thornburgh, such

commutations were significantly increased under Governor Tom Wolf, with 101 hearings

held in September of 2015 resulting in 53 commutations.          Moreover, while a 1997

amendment to our Constitution required a unanimous Parole Board to recommend a

commutation of a life sentence, this, according to the Commonwealth, reflected the will

of the people and could be undone if the citizens so desired. Thus, the Commonwealth




                                     [J-60-2024] - 37
submits that our Court should reject the suggestion that Article I, Section 13 offers any

greater protection than the Eighth Amendment to the United States Constitution.

       Pennsylvania District Attorneys Association has filed an amicus brief on behalf of

the Commonwealth. Like the Commonwealth, Amicus challenges Appellant’s argument

as an attack on who is subjected to a conviction of second degree murder, rather than to

the sentence itself. Specifically, Amicus proffers that Appellant has merely presumed,

rather than proven, that any second degree murderer convicted of a crime through

vicarious liability did not kill or intend to kill, i.e., has a per se constitutionally significant

diminished culpability. Indeed, Amicus points out that the Crimes Code provides that an

accomplice to an enumerated felony that results in death is equally responsible as the

principal; thus, the malice or intent to commit the underlying crime is imputed to the killing

to make it a second degree murder, regardless of whether the defendant intended to

physically harm the victim. This, according to Amicus, is where Appellant’s argument falls

short, as he has not established the unconstitutionality of the statute by providing that

there is a constitutional significance to the difference between being the killer and being

a killer through vicarious liability.      Amicus warns that finding the statute to be

unconstitutional would make constitutionally suspect the entire doctrine of vicarious

criminal liability, as it relates to any crime and not simply felony murder.              Amicus

emphasizes that some second degree murderers are more culpable than first degree

murderers as they killed, but first raped, robbed, kidnapped, or committed arson. Amicus

also points out that Appellant’s related argument that his sentence was disproportionate

rests on the same faulty foundation that there is a constitutionally valid distinction between

being a killer through one’s own act and through criminal vicarious liability, and urges for

redress through the legislature and not through the courts. Amicus also takes issue with




                                        [J-60-2024] - 38
numerous amicus briefs filed in support of Appellant, which offer policy considerations

regarding the felony murder rule, but which Amicus contends are solely for the legislature.

       The Office of the Attorney General has also filed an amicus brief in support of the

Commonwealth, advocating for change in the felony murder statute, but stressing that

such change is for the legislature.11 According to Amicus, nothing in the history of the

“cruel punishments” clause suggests an intent to bar the punishment of life without parole

for felony murder, and, rather, that the passing of legislation immediately after the

adoption of the clause punishing felony murder by death suggests the opposite.

Contesting Appellant’s claim that Pennsylvania is an outlier, Amicus offers numerous

states which mandate life without parole for at least certain individuals who commit felony

murder. Amicus also warns that any consideration of the culpability of a defendant will

be treated as an element of the offense, requiring findings by a jury proven beyond a

reasonable doubt. Finally, Amicus argues that, while there may be compelling policy

arguments in favor of statutory reform, such policies alone cannot render a punishment

unconstitutional, and such reforms based upon policies are properly for the legislative

and executive branches who have the power and resources to craft a just and fair

punishment for the crime of felony murder.

                                 B. Edmunds Analysis

       The movement beginning in the 1970s of renewed interest in the rights bestowed

to citizens under their state charters is commonly called the “New Judicial Federalism.”12

11 The Office of the Attorney General’s motion for leave to file a supplemental Amicus

Brief is granted.
12 See William J. Brennan Jr., State Constitutions and the Protection of Individual Rights,

90 Harv. L. Rev. 489 (1977); Robert J. Smith et al., State Constitutionalism and the Crisis
of Excessive Punishment, 108 Iowa L. Rev. 537, 568–69 (2023) (“There is a recently
reinvigorated dialogue among jurists and scholars aimed at restoring the primacy of state
constitutions and state courts in enforcing individual rights. This dialogue, which focuses
on ‘whether state forums might yield the greatest or optimal level of rights protection, at
(continued…)

                                     [J-60-2024] - 39
In Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), our Court set forth the now-

familiar framework for undertaking an independent analysis of the rights bestowed upon

our citizens by our Commonwealth’s Constitution, in contrast to those granted under the

United States Constitution. Per Edmunds, litigants and courts must, in contrast to the

relevant federal constitutional provision, review (1) the text of the Pennsylvania

Constitutional provision; (2) the history of the provision, including Pennsylvania case law;

(3) related case law from other states; and (4) policy considerations, including issues of

state and local concern and their applicability in modern Pennsylvania jurisprudence. Id.

at 895.       Based on these factors, we address whether Pennsylvania’s Constitution

provides rights beyond the minimum floor established by the United States Constitution.

Id, at 894.

       1. Text

       Following our Edmunds protocol, we begin by examining the language of the

coordinate federal and state constitutional provisions. As noted, the Eighth Amendment

provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend. VIII. Article 1, Section 13 states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments

inflicted.” Pa. Const. art. I, § 13.

       Thus, on its face, Article I, Section 13, which forbids “cruel punishments,” is distinct

from its federal counterpart. Moreover, Section 13 seemingly offers broader protection

than the Eighth Amendment’s ban on the imposition of “cruel and unusual punishments.”



least on some issues,’ is accompanied by a recent and modest uptick in state courts
interpreting their constitutional provisions more broadly than related federal provisions
spanning topics from takings clause cases to marriage equality to searches and seizures
to enforcing voting rights.” (internal citations omitted)).
.


                                       [J-60-2024] - 40
However, certain prior case law suggests that this clear textual distinction is of no

moment. See Commonwealth v. Batts, 66 A.3d 286, 298 (Pa. 2013) (“Batts I”) (in

declining to give meaning to the textual difference of “cruel” versus “cruel and unusual,”

the Court explained that “[w]e find the textual analysis provided by Appellant and his amici

to carry little force. The purport of the argument is that this Court should expand upon

the United States Supreme Court’s proportionality approach, not that it should derive new

theoretical distinctions based on differences between the conceptions of ‘cruel’ and

‘unusual’”); Commonwealth v. Means, 773 A.2d 143, 151 (Pa. 2001) (plurality) (“A

comparison of the text does not advance a basis for distinct treatment under either

document.”); Zettlemoyer, infra (determining that Section 13’s cruel punishments

provision was co-extensive with the Eighth Amendment); cf. Trop v. Dulles, 356 U.S. 86,

100 n.32, (1958) (plurality) (suggesting that most of the judicial decisions have treated

“cruel and unusual” as, essentially, an amalgam)).

       Yet, when read closely, we find a basis for a substantive distinction between the

two constitutional provisions. One basis for a distinct approach comes from a fuller

exploration of the meaning of the terms “cruel” and “unusual.” Recently, the United States

Supreme Court, in City of Grants Pass, Oregon v. Johnson, traced the history of the

Eighth Amendment and clarified that “[p]unishments . . . were ‘cruel’ because they were

calculated to ‘superad[dition]’of ‘terror, pain, or disgrace.’ . . . And they were ‘unusual’

because, by the time of the Amendment’s adoption, they had ‘long fallen out of use.’” 603

U.S. 520, 542 (2024) (citations omitted); see also Graham, 560 U.S. at 62-67 (finding life

without parole for nonhomicide offenses committed by juveniles “exceedingly rare,” that

is, “unusual”); Kennedy, 554 U.S. at 422-26 (determining a death sentence for the rape

of a child was not permitted in 45 states, and, thus, evidence of a “national consensus”

against the sentence); Harmelin, 501 U.S. at 967 (noting difference between “cruel” and




                                     [J-60-2024] - 41
“unusual” punishments in the federal charter and offering that “a disproportionate

punishment can perhaps always be considered ‘cruel,’ but it will not always be (as the

text also requires) ‘unusual”’); John F. Stinneford, The Original Meaning of “Unusual”:

The Eighth Amendment as a Bar to Cruel Innovation, 102 N.W. U. L. Rev. 1739, 1745

(2008) (“As used in the Eighth Amendment, the word ‘unusual’ was a term of art that

referred to government practices that are contrary to ‘long usage’ or ‘immemorial

usage.’”). This analysis strongly suggests that the term “unusual” has an independent

meaning and substantive import regarding the Eighth Amendment and supports an

understanding that the cruel punishments provision in the Pennsylvania Constitution,

which does not use the term “unusual,” has a distinct meaning and application.

       It follows that the omission of the term “unusual” from Article I, Section 13 of the

Pennsylvania Constitution excludes the requirement that a challenged sentence be

contrary to long-standing practice or contrary to the common law. This pronounced limit

found in the Eighth Amendment is meaningful and substantive, supporting a finding that

our Constitution provides broader protections than its federal counterpart. Accord People

v. Bullock, 485 N.W.2d 866, 872 n.11 (Mich. 1992) (considering Michigan’s Constitution

which prohibits “cruel or unusual” punishment, Mich. Const. art. I, § 16, and offering that

“[t]he set of punishments which are either ‘cruel’ or ‘unusual’ would seem necessarily

broader than the set of punishments which are both ‘cruel’ and ‘unusual’” (emphasis

original)).

       2. History

       The history of Article I, Section 13, the original meaning of that provision, as well

as the framers’ intent regarding the adoption of the Eighth Amendment, provide additional

insights into whether Section 13 grants greater safeguards to our citizens than set forth

in the federal Constitution.




                                     [J-60-2024] - 42
       In considering the history of the Eighth Amendment, the United States Supreme

Court has explained that the framers looked to English history as a source. Specifically,

over 30 years ago, Justice Antonin Scalia penned a concurring opinion in Harmelin,

reasoning that the original meaning of the Eighth Amendment could be traced back to

England’s 1689 Declaration of Rights, which prohibited “cruell and unusuall

Punishments.” Harmelin, 501 U.S. at 967-68 (Scalia, J. concurring). The requirement

that a punishment not be “unusuall” was “primarily a requirement that judges pronouncing

sentence remain within the bounds of common-law tradition,” id. at 973-74; that is, that

sentences be “regularly or customarily employed,” id. at 976. Almost 20 years later, the

high Court explained that the English approach embraced retribution as a justification for

punishment and that the Eighth Amendment originally sought to prohibit only methods of

punishment armed with a “(cruel) ‘superadd[ition]’ of ‘terror, pain, or disgrace.’” Bucklew,

587 U.S. at 133 (quoting Baze v. Rees, 553 U.S. 35, 48 (2008)).13 More specifically, as

Justice Neil Gorsuch, writing for the Court, explained in Bucklew:

              Methods of execution like [dragging the prisoner to the place
              of execution, disemboweling, quartering, public dissection,
              and burning alive] readily qualified as “cruel and unusual,” as
              a reader at the time of the Eighth Amendment’s adoption
              would have understood those words. They were undoubtedly
              “cruel,” a term often defined to mean “[p]leased with hurting
              others; inhuman; hard-hearted; void of pity; wanting
              compassion; savage; barbarous; unrelenting,” 1 S. Johnson,
              A Dictionary of the English Language (4th ed. 1773), or

13 See Harmelin, 501 U.S. at 959 (Kennedy, J., joined by O’Connor and Souter, JJ.)

(recognizing a variety of legitimate penological goals based on theories of retribution,
deterrence, incapacitation, and rehabilitation, but holding that the Eighth Amendment did
not mandate adoption of any one such scheme); Graham, 560 U.S. at 71 (“Retribution is
a legitimate reason to punish, but it cannot support the sentence at issue here. Society
is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its
condemnation of the crime and to seek restoration of the moral imbalance caused by the
offense. But ‘[t]he heart of the retribution rationale is that a criminal sentence must be
directly related to the personal culpability of the criminal offender.’”).


                                     [J-60-2024] - 43
             “[d]isposed to give pain to others, in body or mind; willing or
             pleased to torment, vex or afflict; inhuman; destitute of pity,
             compassion or kindness,” 1 N. Webster, An American
             Dictionary of the English Language (1828). And by the time
             of the founding, these methods had long fallen out of use and
             so had become “unusual.” 4 Blackstone, supra, at 370;
             Banner 76; Baze, 553 U.S. at 97, 128 S.Ct. 1520 (THOMAS,
             J., concurring in judgment); see also Stinneford, The Original
             Meaning of “Unusual”: The Eighth Amendment as a Bar to
             Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770-1771, 1814
             (2008) (observing that Americans in the late 18th and early
             19th centuries described as “unusual” governmental actions
             that had “fall[en] completely out of usage for a long period of
             time”).
Bucklew, 587 U.S. at 130-31. Consistent therewith, Justice Gorsuch, again writing for the

high Court in City of Grants Pass, Oregon v. Johnson, stressed the framers’ intent to

prohibit certain savage punishments that were no longer employed, adding:

             We have previously discussed the Clause’s origins and
             meaning. In the 18th century, English law still “formally
             tolerated” certain barbaric punishments like “disemboweling,
             quartering, public dissection, and burning alive,” even though
             those practices had by then “fallen into disuse.” Bucklew v.
             Precythe, 587 U.S. 119, 130, 139 S.Ct. 1112, 203 L.Ed.2d 521
             (2019) (citing 4 W. Blackstone, Commentaries on the Laws of
             England 370 (1769) (Blackstone)). The Cruel and Unusual
             Punishments Clause was adopted to ensure that the new
             Nation would never resort to any of those punishments or
             others like them. Punishments like those were “cruel”
             because they were calculated to “ ‘superad[d]’ ” “ ‘terror, pain,
             or disgrace.’ ” 587 U.S., at 130, 139 S.Ct. 1112 (quoting 4
             Blackstone 370). And they were “unusual” because, by the
             time of the Amendment’s adoption, they had “long fallen out
             of use.” 587 U.S., at 130, 139 S.Ct. 1112. Perhaps some of
             those who framed our Constitution thought, as Justice Story
             did, that a guarantee against those kinds of “atrocious”
             punishments would prove “unnecessary” because no “free
             government” would ever employ anything like them. 3 J.
             Story, Commentaries on the Constitution of the United States
             § 1896, p. 750 (1833).          But in adopting the Eighth
             Amendment, the framers took no chances.




                                    [J-60-2024] - 44
Johnson, 603 U.S. at 542. Thus, the Eighth Amendment proscribed only methods of

punishment inflicting the superaddition of pain beyond death, and permitted those

punishments which had not fallen out of use as they were not unusual.

       Whereas the United States Supreme Court found that the original understanding

of the Eighth Amendment deemed only barbaric and long-disused punishments to be

unconstitutional, this may be contrasted with Pennsylvania’s framers’ understanding of

Section 13. The Pennsylvania constitutional provision forbidding “cruel punishments” was

adopted in 1790, and has remained unchanged in all subsequent amendments to our

charter. Constitution of 1790, art. IX, § 13. Critically, and to highlight important context,

the “cruel punishments” clause was ratified one year before the Eighth Amendment was

adopted. Thus, the meaning of the Pennsylvania provision was not intended to mirror the

Eighth Amendment, rather, it was the Pennsylvania Constitution which served as the

predecessor to the federal Constitution, and whose authors chose to veer from the

Pennsylvania Constitution in fashioning the Eighth Amendment.

       The original Pennsylvania Constitution of 1776 failed to contain any reference to

cruel punishments.     Noted Pennsylvania constitutional scholars suggested that the

reason for the omission was unknown.             See Bruce Ledewitz, Bail, Fines and

Punishments, The Pennsylvania Constitution, A Treatise on Rights and Liberties,

(Gormley ed. 2004) § 16.1, p. 518. This was curious, as, at this time, Pennsylvania largely

based its Declaration of Rights on the Virginia Declaration of Rights which contained a

prohibition on “cruel and unusual punishments.”          Id.   Similarly, there was no clear

explanation why, in 1790, when certain Declaration of Rights provisions were amended,

the “cruel punishments” language was added without any reference to “unusual”

punishments, as found in the Virginia charter. Id.




                                      [J-60-2024] - 45
       In recent groundbreaking scholarship, however, Kevin Bendesky, in his article “The

Key-Stone to the Arch”: Unlocking Section 13’s Original Meaning, 26 U. Pa. J. Const. L.

201 (2023), offers an explanation. Early reforms in punishment began at the time of the

Revolution and continued through the adoption of Pennsylvania’s first constitution.

Indeed, Pennsylvania led the country in penal reform.            These reforms manifested

themselves in Article I, Section 13, which, despite numerous amendments to the

Constitution, has remained unchanged.

       As explained above, the federal drafters, based upon England’s 17th century

Declaration of Rights, barred punishments which were cruel, and which were not regularly

or customarily imposed. Thus, the framers were not necessarily concerned with the

severity of a punishment in and of itself, for, to be prohibited, the punishment had to also

be unusual, i.e., long disused.       By contrast, Pennsylvania’s founding fathers and

constitutional framers exhibited a particular sensitivity to one’s culpability from the earliest

days of the Colonies.

       Our Commonwealth’s founder William Penn recoiled from English penal codes

and, relying upon long-standing Quaker ideals, embraced a “distinctly Pennsylvanian”

view of punishment, forged by his and his followers’ experience after fleeing persecution

in England, and which resulted in the enactment of his own code of criminal law. Id. at

236. Later, the Pennsylvania drafters of our Constitution, who eschewed a requirement

of unusualness, “perceive[d] . . . that the severity of the criminal law” they inherited from

England was “an exotic plant and not the native growth of Pennsylvania,” id. at 213

(quoting William Bradford, An Enquiry How Far the Punishment of Death is Necessary in

Pennsylvania 20 (T. Dobson, 1793) (“Bradford”)) ─ and so rejected “[c]ruel and

sanguinary punishments,” especially those rooted within the common law tradition. Id.

(quoting Jared Ingersoll, Report: Made by Jared Ingersoll. Esq. Attorney General of Pa.,




                                       [J-60-2024] - 46
in compliance with a resolution of the legislature, passed the 3d of Mar., 1812, relative to

the penal code. Communicated to the legislature, Jan. 21, 1813, 1 J. of Juris: A New

Series of The Am. L.J. 1, 325 (John E. Hall ed. 1821) (footnotes omitted) (“Ingersoll”)).

Thus, Pennsylvania’s founding fathers repudiated the severity of English criminal laws

and de-emphasized retribution as a justification, which had served as the basis of the

Eighth Amendment, and instead looked to emerging Enlightenment theories as a

foundation for criminal punishment in Pennsylvania. Id.

       These Enlightenment principles, expressed by the French philosopher Baron de

Montesquieu and Italian criminologist Cesare Beccaria, shaped penological thought in

Pennsylvania both before and after the Revolution. These pioneers in punishment reform

eschewed the importance of the severity of a punishment, which in Montesquieu’s mind

led to savagery and resulted in reluctant accusers and jury acquittals, and undercut the

point of punishment: prevention. Id. at 215-16. Similarly, Beccaria’s philosophy was

based upon the social-contract theory, in which punishment was necessary to defend the

public from “the usurpations of individuals,” and, as criminal activities harmed society, and

not individual citizens, the reason for punishment was to “deter these societally harmful

usurpations.” Id. at 217 (quoting Cesare Beccaria, On Crimes and Punishments (1764),

reprinted in On Crimes and Punishments and Other Writings (Richard Bellamy ed.,

Richard Davies, Virginia Cox & Richard Bellamy trans., Cambridge Univ. Press, 1995)).

Indeed, quoting “the great Montesquieu,” Beccaria found that “[e]very punishment which

is not derived from absolute necessity is tyrannous.” Id. This foundational emphasis

upon necessity informed the understanding of cruelty, and as the primary purpose of

punishment was deterrence, in their view, permissible punishment was ideally the most

lenient means that deterred. Id. at 218.




                                      [J-60-2024] - 47
       Thus, according to Bendesky, in contrast to the English common law, and based

upon Enlightenment philosophy, the Pennsylvania framers advocated that only

deterrence and reformation justified a punishment. As a result, the framers rejected a

requirement that punishment also be unusual given their foundational belief that “anything

unnecessary for achieving the limited purposes of punishment was the superaddition of

cruelty.” Id. at 212 (emphasis original).

       This emphasis on deterrence and reformation, however, was tempered by other

justifications for punishment. Although not direct evidence of the framer’s intent, but

nonetheless persuasive evidence of the distinct constitutional meaning of the

Pennsylvania constitution compared with the federal Constitution,14 following the

ratification of the Constitution’s “cruel punishments” clause, the nascent Pennsylvania

legislature adopted a further reform in 1794: the first penal code passed after the new

constitution limited the death penalty to first degree murder and divided murder into

degrees ─ the first state to do so. The law’s preamble confirms that Pennsylvanians

strongly believed in notions of reform and providing for public safety as a basis for

rejecting severe and excessive punishment, but also embraced additional justifications

for punishment such as incapacitation and retribution:

              Whereas the design of punishment is to prevent the
              commission of crimes, and to repair the injury that hath been
              done thereby to society or the individual, and it hath been
              found by experience, that these objects are better obtained by
              moderate but certain penalties, than by severe and excessive
              punishments: And where as it is the duty of every government
              to endeavor to reform, rather than exterminate offenders, and
              the punishment of death ought never to be inflicted, where it
              is not absolutely necessary to the public safety.




14 Harmelin, 501 U.S. at 980.




                                     [J-60-2024] - 48
Id. at 214-15 (quoting Act of 22nd Apr. 1794, reprinted in John W. Purdon, Digest of the

Laws of Pennsylvania 9 (M’Carty & Davis, 1831) at 646-47). Thus, there was a strong

sentiment favoring Enlightenment principles,15 and it is clear that the framers of the

Pennsylvania Constitution offered significantly different notions of what constitutes cruelty

in punishment, as compared to the federal Constitution.




15 As forcefully emphasized by Thomas Mifflin, the Commonwealth’s first Governor and

chairman of the 1790 Constitutional Convention, “every punishment, which is not
absolutely necessary for [deterrence], is an act of tyranny and cruelty.” Id. at 215 (quoting
S. Journal, 17th Assemb. 14 (Pa. 1792)). This and related sentiments were echoed by
other architects of Pennsylvania’s embryonic government who believed that only
deterrence and reformation justified the infliction of punishment and who accepted that
notions of necessity, and, thus, cruelty, evolved over time with the development of “moral
and empirical understanding.” Id. at 219. These luminaries included, among others,
William Bradford, Supreme Court Justice, Attorney General, 1790 Constitutional
Convention attendee, and father of the reformation of the penal code of Pennsylvania,
who believed in two “principles ... so important that they deserve a place among the
fundamental laws of every free country:” one, that “[t]he prevention of crimes is the soel
end of punishments;” and two, that “every punishment which is not absolutely necessary
for that purpose is a cruel and tyrannical act.” Id at 221 (emphasis original) (citing
Bradford, at 3, 4). Likewise, James Wilson, a signor of the Declaration of Independence
and the United States Constitution, and regarded as the father of the Pennsylvania
Constitution, believed that, “[i]n a free state, the law should impose no restraint upon the
will of the citizen, but such as will be productive of advantage, publick or private, sufficient
to overbalance the disadvantages of the restraint.” Id. at 224 (quoting 3 James Wilson,
Lectures on Law (1790), reprinted in The Works of the Honourable James Wilson 442-
443 (Bird Wilson ed., 1804)). Similarly, both Thomas McKean – signatory to the
Declaration of Independence, a member of the Pennsylvania Convention that ratified the
federal Constitution, chair of the 1790 Pennsylvania Constitutional Convention, and the
Commonwealth’s first Chief Justice – as well as George Clymer – signor of both the
Declaration of Independence and the United States Constitution – rejected retribution as
a justification for punishment and were opposed to punishments of unnecessary severity.
Id. at 227. Finally, Jared Ingersoll, esteemed lawyer and Attorney General from 1790 to
1799, who authored an influential and authoritative report consolidating the penal code
which was relied upon by the Governor, the General Assembly, and the Pennsylvania
Supreme Court, in discussing the purposes underlying punishment reasoned that “a less
severe and awful penalty can effect the same purposes, or, in other words, if it be not
necessary to punish murder with death, a milder medium of correction should be chosen.”
Id. at 229 (citing Ingersoll at 330) (emphasis original).


                                       [J-60-2024] - 49
       For these reasons, we find that the United States Supreme Court’s historical

analysis of the intent of the Eighth Amendment, emphasizing retribution as a justification

for punishment and limiting its protections to punishments which have fallen out of use,

is at variance with the historical origins of Article I, Section 13. Section 13 is founded to

a large degree upon Enlightenment theories of deterrence and reformation, and on a

rejection of punishments extending beyond the penological justifications for punishment

as unnecessary, which constituted the superaddition of cruelty. Moreover, this notion of

necessity – and, thus, cruelty – was understood to evolve over time with the development

of moral and scientific advancements. We find that this history, for purposes of our

Edmunds analysis, reveals a distinct background for the two constitutional provisions,

supporting an interpretation of Section 13 which provides greater protections for

Pennsylvania citizens against cruel punishment.

       3. Pennsylvania Case Law

       While the rich history underlying Pennsylvania’s “cruel punishments” clause

suggests a distinct meaning for the provision, our Court’s case law, dating back to 1982,

has suggested that the protections offered by the two constitutions are co-extensive. We

find that this understanding of the two constitutional provisions was a result of an

incomplete historical analysis, and one which has evolved as expressed in our Court’s

more recent decisions.

       The first independent consideration of the cruel punishments provision was

undertaken by our Court over 40 years ago in Commonwealth v. Zettlemoyer, wherein

we held that the death penalty did not violate Article I, Section 13 of the Pennsylvania

Constitution. Zettlemoyer, 454 A.2d 937 (Pa. 1982).

       The Zettlemoyer Court rejected numerous claims under the federal Constitution,

including that the imposition of the death penalty violated the Eighth Amendment to the




                                      [J-60-2024] - 50
United States Constitution because the statutory provisions for appellate review were

inadequate to ensure that the jury’s discretion was channeled so as to avoid the arbitrary

and capricious imposition of the death penalty. Id. at 960-64. The Court relied to a large

degree upon the United States Supreme Court’s decision in Gregg v. Georgia, 428 U.S.

153 (1976) (plurality), finding our sentencing scheme to more closely resemble Georgia’s

scheme, which had survived constitutional challenge. Id. at 966.

       Our Court then rejected Zettlemoyer’s claim that the imposition of the death penalty

violated Article I, Section 13 of the Pennsylvania Constitution. In doing so, we looked to

the framers’ understanding of the propriety of the death penalty and concluded that the

framers of the two Constitutions did not consider the death penalty to be a per se violation

of either Constitution. More specifically, our Court reasoned that the intention of the

framers was not dispositive, and the prohibitions against “cruel” or “cruel and unusual”

punishments was not a “static concept;” rather, those constitutional provisions drew their

meaning from “evolving standards of decency that mark the progress of a maturing

society.’” Id. at 967-68. In discerning those “evolving standards of decency,” the Court

found that “the constitutional test is intertwined with an assessment of contemporary

standards and the legislative judgment weighs heavily in ascertaining such standards,”

and that “legislatures, not courts, are constituted to respond to the will and consequently

the moral values of the people.” Id. at 960 (quoting Gregg, 428 U.S. at 175-76, quoting

Furman, 408 U.S. at 383).

       That being the case, and again focusing on the propriety of the death penalty, our

Court concluded that the General Assembly, since its origins, expressed its view that

capital punishment, for at least some intentional killings, was an appropriate and

necessary form of punishment, even in light of William Penn’s “humane laws” of 1682 and

1683, which prescribed penalties less than death for all offenses except willful or




                                     [J-60-2024] - 51
premeditated murder; indeed, we noted that, upon Penn’s death in 1710, the Provincial

Assembly repealed these laws and prescribed the death penalty for, inter alia, sodomy,

buggery, rape, highway robbery, witchcraft and enchantment. Id. at 968. The Court

explained that, thereafter, Pennsylvania has always operated with the penalty for at least

some first degree murders. Finally, the Zettlemoyer Court pointed out that over a majority

of the states reinstituted capital punishment for some crimes after the death penalty was

declared unconstitutional in Furman. Thus, our Court concluded that, because the death

penalty had been an accepted practice since the founding of the Commonwealth, it could

not be considered to be “cruel punishment” for purposes of Section 13, and held that “the

rights secured by the Pennsylvania prohibition against ‘cruel punishments’ are co-

extensive with those secured by the Eighth and Fourteenth Amendments.” Id. at 967.

       Our decision in Zettlemoyer, however, had limitations. Our decision predated

Edmunds by almost 10 years. Moreover, while the Zettlemoyer Court looked to the

historical underpinnings of the cruel punishments clause, its focus was specifically on

whether the death penalty existed at the time of the Pennsylvania Constitution’s creation,

rather than the framers’ intent regarding the meaning of that provision vis-à-vis its federal

counterpart.

       Subsequent decisions construing Section 13 largely followed Zettlemoyer, either

because the litigant did not raise an independent state constitutional analysis or did not

develop such a claim. See, e.g., Commonwealth v. Hairston, 249 A.3d 1046, 1058 (Pa.

2021) (finding that defendant failed to present any compelling justification for altering the

co-extensive holding of Zettlemoyer). However, our Court expressed the view that some

claims could merit an approach under Article I, Section 13 distinct from the Eighth

Amendment. Indeed, in Means, the question was whether a statute allowing victim impact

evidence at the penalty phase of capital trials violated either the Eighth Amendment or




                                      [J-60-2024] - 52
Article I, Section 13 of the Pennsylvania Constitution. The Opinion Announcing the

Judgment of the Court did not accept that Article I, Section 13 claims required lockstep

devotion to federal law interpreting the Eighth Amendment, as the Court could have

refrained from further state constitutional analysis by citing Payne v. Tennessee, 501 U.S.

808 (1991), as dispositive of the Eighth Amendment claim. The Court nevertheless

analyzed the question under Article I, Section 13, pursuant to Edmunds, ultimately

concluding that the legislation was not constitutionally infirm. Means, 773 A.2d at 149-

58.

       Similarly, in Batts I, supra, notwithstanding the fact that the argument was

developed primarily in terms of the Eighth Amendment and that Batts had not provided a

fully developed Edmunds analysis, then-Justice Thomas Saylor, writing for a unanimous

Court, explained that our Court’s prior holdings that Section 13 was co-extensive with the

Eighth Amendment arose only in discrete contexts, and, while rejecting a Section 13 claim

in that appeal, offered that textual differences between the two Constitutions could

provide a basis for greater protections under the Pennsylvania Constitution if our Court

could derive new theoretical distinctions based upon the differences between the

meaning of “cruel” and “unusual.” 66 A.3d at 298.

       The possibility of Section 13 providing greater protections than its federal

counterpart was perhaps best explained by Chief Justice Ronald Castille in his concurring

opinion in our subsequent decision in Commonwealth v. Baker, 78 A.3d 1044, 1053-54

(Pa. 2013) (Castille, C.J., concurring, joined by Saylor and Todd, JJ.). The majority in

Baker analyzed the constitutional challenge only under the Eighth Amendment; however,

Chief Justice Castille spoke to our Constitution. In his view, Zettlemoyer did not purport

to establish that all claims arising under Article I, Section 13 should be treated as if they

were subject to the same standards that would govern an equivalent Eighth Amendment




                                      [J-60-2024] - 53
claim, in part because Zettlemoyer did not address a legislative enactment, but a judicial

opinion deciding a specific issue, which was posed in per se fashion ─ specifically,

whether capital punishment was unconstitutionally cruel under Article I, Section 13. As

characterized by Chief Justice Castille, such a claim was doomed, as the death penalty

had a long history, and the General Assembly had specifically and recently reapproved

the punishment. Thus, he concluded that claims of cruel punishment could warrant a

separate analysis under the two Constitutions, and could yield different results in the

same factual scenario.

      Moreover, the Zettlemoyer Court recognized that history is crucial to understanding

Section 13, but it offered an incomplete account of the Commonwealth’s constitutional

past. It essentially reasoned that, because Pennsylvania law had originally tolerated the

death penalty, the punishment could not become “cruel” now. But this approach to

constitutional history ignored the original meaning of the provision and focused upon

legislative actions in a vacuum, disregarding what the provision meant. Of course,

Zettlemoyer predated Edmunds and, at that time, we did not emphasize the history of a

constitutional provision. Furthermore, focusing on how our colonial forebearers viewed

the death penalty overlooked the history of our prohibition on cruel punishments, and

failed to allow for an independent meaning of Pennsylvania’s prohibition on cruel

punishment as explained in Batts I and Baker.

      Based upon the above, we find that there is a unique Pennsylvania history to our

“cruel” punishments provision that suggests that Section 13 provides greater protection

to our citizens than its federal counterpart. Furthermore, as we find that our decision in

Zettlemoyer was rendered prior to our seminal decision in Edmunds, and failed to engage

in the rigorous assessment that we now believe necessary to determine rights under our

Constitution, we conclude it serves as no impediment to the recognition of greater




                                    [J-60-2024] - 54
protections under Section 13 when considered in light of our Court’s recent case law, as

set forth in Batts I and Baker.

       4. Related Case Law From Other States

       Consistent with Edmunds, we next consider related case law from other states.

Virtually every state’s constitution contains a provision analogous to the Eighth

Amendment.         Some states provisions are identical, barring “cruel and unusual

punishments,” others prohibit “cruel or unusual punishments,” and five states in addition

to Pennsylvania bar merely “cruel punishments.” Case law from these five states ─

Delaware, Kentucky, Rhode Island, South Dakota, and Washington ─ offer varied

interpretations.

       Specifically, Delaware, Kentucky, and Rhode Island currently view their state

constitutional protections as co-extensive with Eighth Amendment protections; however,

it appears these states have not engaged in a rigorous Edmunds-like analysis in reaching

their conclusions. Specifically, the Supreme Court of Delaware, in its 1963 decision in

State v. Cannon, 190 A.2d 514, 515 (Del. 1963), explained that, even though Delaware’s

1776 Declaration of Rights barred “cruel or unusual punishments” and the 1792

Constitution omitted the phrase “or unusual,” nevertheless, “the omission of the phrase

‘or unusual’ has little or no significance.” Id. This interpretation was recently reaffirmed

by the Superior Court of Delaware in State v. Desmond, No. 91009844DI, 2024 WL

3456225, at *5-6 (Del. Super. Ct. July 16, 2024). Similarly, Kentucky has interpreted its

constitution to be co-extensive with the Eighth Amendment. See Riley v. Commonwealth,

120 S.W.3d 622, 633 (Ky. 2003) (determining that Section 17 of the Kentucky Constitution

was identical to the Eighth Amendment, “except that it proscribes ‘cruel punishment’

instead of ‘cruel and unusual punishments,’” but regarding such “variation in phraseology

as a distinction without a difference”); Turpin v. Commonwealth, 350 S.W.3d 444, 448




                                     [J-60-2024] - 55
(Ky. 2011) (finding Section 17 provided protections parallel to those accorded by the

Eighth Amendment). Rhode Island has likewise held that “the Eighth Amendment’s

prohibition against cruel and unusual punishment and the provisions of article 1, section

8, of the Rhode Island Constitution are identical.” State v. Monteiro, 924 A.2d 784, 795

(R.I. 2007).

       By contrast, the Supreme Court of South Dakota has explained that the South

Dakota Constitution may provide greater protections against cruel punishments than the

federal constitution. State v. Moeller, 548 N.W.2d 465, 487 (S.D. 1996) (in rejecting

challenge to the death penalty as cruel punishment, court explained that its constitution

could be interpreted to provide an individual with greater protection than the federal

constitution).

       The Washington Supreme Court, however, has set forth the most extensive

analysis of its state’s constitutional prohibition on cruel punishments. Specifically, in State

v. Bassett, 428 P.3d 343 (Wash. 2018), the Washington Supreme Court held that

sentencing a juvenile to life without parole, even after individualized sentencing, violated

Article I, Section 14 of Washington’s state constitution ─ the provision which bans cruel

punishments. In doing so, the Bassett court reasoned that its constitutional provision

provided greater protection than the Eighth Amendment “because it prohibits conduct that

is merely cruel; it does not require that the conduct be both cruel and unusual.” Id. at

349.

       Similarly, addressing its constitution’s “cruel or unusual” provision, in State v.

Kelliher, 873 S.E.2d 366, 385 (N.C. 2022) (emphasis original), the Supreme Court of

North Carolina held its clause offered protections that were distinct from, and broader

than, the federal provision, and determined that sentencing a juvenile to more than 40

years in prison before becoming eligible for parole constituted a de facto sentence of life




                                      [J-60-2024] - 56
without parole, and was unconstitutional, id. at 390-95. Likewise, in People v. Bullock,

485 N.W.2d 866 (Mich. 1992), the Michigan Supreme Court held that the imposition of a

life sentence for possession of 650 or more grams of cocaine violated the Michigan

Constitution’s prohibition against “cruel or unusual” punishments, despite the United

States Supreme Court having previously held that such a sentence did not violate the

Eighth Amendment. As the court explained, “the Michigan provision prohibits ‘cruel or

unusual’ punishments, while the Eighth Amendment bars only punishments that are both

‘cruel and unusual.’    This textual difference does not appear to be accidental or

inadvertent.” Id. at 872 (emphasis original); see also People v. Taylor, 2025 WL 1085247,

*6 (Mich. Apr. 10, 2025) (holding that mandatorily condemning offenders who were 19 or

20 years old when they committed their crimes to die in prison, without first considering

the attributes of youth that late adolescents and juveniles share, no longer comports with

the “evolving standards of decency that mark the progress of a maturing society,” and

that the state constitution did not permit the imposition of such punishment against this

class of late adolescents without individualized sentencing). Indeed, California, Florida,

and Minnesota courts have also described the same textual difference between the

Eighth Amendment and their own constitutional provisions (barring “cruel or unusual”

punishments) as meaningful. In People v. Carmony, 26 Cal. Rptr. 3d 365, 378 (Cal. Ct.

App. 2005), a California Court of Appeals referred to it as “purposeful and substantive

rather than merely semantic.” The Florida Supreme Court, in Armstrong v. Harris, 773

So. 2d 7, 17 (Fla. 2000), indicated that the difference demonstrated “that both alternatives

(i.e., ‘cruel’ and ‘unusual’) were to be embraced individually and disjunctively within the

Clause’s proscription.” Lastly, the Minnesota Supreme Court, in State v. Mitchell, 577

N.W.2d 481, 488-89 (Minn. 1998), referred to this variation as “not trivial.”




                                     [J-60-2024] - 57
       Finally, certain states whose constitutions have identical language to the Eighth

Amendment have nevertheless interpreted their constitutions to be distinct from their

federal counterpart. See State v. Marshall, 613 A.2d 1059, 1108 (N.J. 1992) (noting that,

while its state guarantee against “cruel and unusual punishments” bears the same text as

the Eighth Amendment, “New Jersey’s history and traditions” give the clause its own

meaning); State v. Santiago, 122 A.3d 1, 26-27 (Conn. 2015) (in abolishing the death

penalty, the court relied upon the state’s “particular sensitivity” to cruel and unusual

punishments, stemming “from the earliest days of the colonies, and extending until the

adoption of the state Constitution in 1818”).

       Thus, our sister states have come to differing conclusions regarding the meaning

of the textual difference between “cruel punishments,” “cruel or unusual punishments,”

and “cruel and unusual punishments.” However, those states which have engaged in a

robust analysis of the differences between their state constitution and the federal charter,

have largely found greater protections for their citizens under their state charters. This

lends support for interpreting Article I, Section 13 to provide greater protections than the

Eighth Amendment.

       5. Policy Considerations

       The final factor of the Edmunds four-prong analysis considers policy matters,

“including unique issues of state and local concern, and applicability within modern

Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 895. This factor is somewhat

unique, and as Chief Justice Thomas Saylor offered, “[i]mplementation of a state

constitutional value . . . necessarily entails a searching, evaluative inquiry” into genuinely

“unique state sources, content, and context as bases for independent interpretation.”

Thomas G. Saylor, Prophylaxis in Modern State Constitutionalism: New Judicial

Federalism and the Acknowledged Prophylactic Rule, 59 N.Y.U. Ann. Surv. Am. L. 283,




                                      [J-60-2024] - 58
309-13 (2003). However, we have warned that the “policy” factor could “metamorphose

into cover for a transient majority’s implementation of its own personal value system as if

it were an organic command.” Commonwealth v. Russo, 934 A.2d 1199, 1212 (Pa. 2007).

Thus, in an Edmunds analysis, we must take care not to place significant weight on policy

matters, writ large, which are more appropriate considerations for the legislature.

       In this regard, Appellant offers that Pennsylvania stands as a “national and

international outlier” due to its extraordinary number of individuals serving life without

parole sentences, which, in turn, is due in large part to being part of a minority of states

that mandate life without parole sentences for felony murder. Id. at 32. Related thereto,

Appellant asserts that the recent trend in state sentencing regimes is away from life

without parole for felony murder convictions.16 Appellant also points to racial bias as a

policy reason to find a mandatory life without parole sentence for a felony murder

conviction to be unconstitutional, proffering that, although black individuals constitute

12.2% of Pennsylvania’s population, they constitute 70% of the more than 5,000

individuals serving a sentence of life without parole in the Commonwealth. Appellant’s

Brief at 37.   Finally, he emphasizes the high cost of incarcerating elderly persons,

including increasingly expensive medical care, and the low recidivism rate of these aging

prisoners.

       Matters such as Pennsylvania’s minority status regarding its high number of

individuals serving life without parole sentences for felony murder, racial disparities, and

the practical ramifications of incarcerating these individuals, are significant, but are

general public policy concerns; thus, we must use caution in considering them so as to




16 See, e.g., California, Cal. S.B. 1437 (2018); Colorado, Colo. Rev. State. § 18-3-102;

Minnesota, MN SF2909.


                                     [J-60-2024] - 59
not encroach upon our sister branch’s domain. Ultimately, we find that the proffered policy

considerations do not weigh heavily in favor of giving Section 13 independent meaning.

                               *      *      *      *      *

       In conclusion, we believe that the Edmunds factors, as analyzed above, provide

compelling reasons to interpret Article I, Section 13 broadly, and to provide greater

protections to our citizens than those recognized under the Eighth Amendment to the

United States Constitution. Our determination is based upon the textual differences

between the two constitutions; the historic differences in penological justifications for

punishment; and states with similar constitutions to ours which have found independent

meaning in their organic charters.



                                      C. Application

       Finding that Section 13 provides greater protections than its federal counterpart,

we address whether mandatory life imprisonment without parole for a conviction of

second degree murder violates Section 13’s safeguards against cruel punishment.

       Generally speaking, we find that Section 13 embodies the principle that our citizens

are protected from sanctions that are disproportionate to the circumstances of the offense

for which they were convicted.       This concept is firmly rooted in the Enlightenment

philosophy which served as one of the driving forces behind Section 13, and, specifically,

the notion of some framers that a sanction beyond that which was necessary for achieving

the limited purposes of punishment was considered to be cruel. This right not to be

subjected to disproportionate sanctions arises from the longstanding notion of justice that

“punishment for [a] crime should be graduated and proportioned to both the offender and

the offense” and prohibits punishments that are excessive in relation to the crime

committed. See Baker, 78 A.3d at 1047; Miller, 567 U.S. at 469. Indeed, this principle




                                      [J-60-2024] - 60
has for decades undergirded Eighth Amendment and other states’ jurisprudence. See

Kennedy, 554 U.S. at 419; Roper, 543 U.S. at 560; see also, Taylor, 2025 WL 1085247,

at *3 (interpreting the Michigan Constitution’s “cruel or unusual” language to require that

“criminal sentences be proportional to the circumstances of the offense and of the

offender such that excessive imprisonment is prohibited”) (emphasis original).

       Defining with exactness Section 13’s notion of cruelty would be a difficult endeavor;

however, this appeal does not call for an exhaustive delineation and we need not decide

for all contexts the meaning of the constitutional language “cruel punishment.” Rather,

with respect to the unique constitutional challenge before us, we believe it sufficient to

consider notions of culpability, severity, and penological justifications ─ akin to the factors

identified by the United States Supreme Court in creating its framework in Miller and

Graham to resolve its Eighth Amendment jurisprudence regarding juveniles ─ to assess

whether the mandatory imposition of a sentence of life without parole for all offenders

convicted of second degree murder is consistent with the protections found in Section 13.

       Culpability is central to our analysis of whether punishment is proportional within a

category of individuals, here, individuals convicted of second degree murder who are all

subject to the same mandatory sentence of life without the possibility of parole. Indeed,

at the core of the federal cases considering the constitutionality of the punishment of

juveniles is the tenet that certain offenders are categorically less culpable than others. In

those decisions, the ban on sentencing was based on “mismatches between the

culpability of a class of offenders and the severity of a penalty.” See Miller, 567 U.S. at

470.

       Culpability has long been a cornerstone assessment in classifying crimes in this

country. The United States Supreme Court has remarked that “[d]eeply ingrained in our

legal tradition is the idea that the more purposeful is the criminal conduct, the more




                                      [J-60-2024] - 61
serious is the offense, and, therefore, the more severely it ought to be punished.” Prabhu,

at 457-59 (footnote omitted). Generally, criminal offenses contain at least two mandatory

elements: an actus reus and a mens rea. The former refers to the illegal act itself and

the latter to the requisite mental state. For virtually all types of murder and manslaughter,

the mens rea of the offender in relation to a killing is a determinative factor in homicide

grading. See id. at 456.

       With respect to sentencing, the United States Supreme Court has reasoned that

“defendants who do not kill, intend to kill, or foresee that life will be taken are categorically

less deserving of the most serious forms of punishment than are murderers.” Graham,

560 U.S. at 69. As the high Court stated in Enmund, “American criminal law has long

considered a defendant's intention ─ and therefore his moral guilt ─ to be critical to ‘the

degree of [his] criminal culpability.’” 458 U.S. at 800 (citing Mullaney v. Wilbur, 421 U.S.

684, 698 (1975)). Therefore, it follows that one who did not kill another or intend to kill

another during the commission of a felony is less morally responsible and less deserving

of one of the most severe punishments ─ mandatory life imprisonment without the

possibility of parole ─ than the actual murderer. See Graham, 560 U.S. at 69; Enmund,

458 U.S. at 797-801.

       As set forth above in greater detail, the United States Supreme Court has issued

five decisions that imposed substantive constraints on the imposition of the sentences of

death and life without parole. In each, the sentences were disproportionately severe

because the offenders, as a category, by virtue of their status or offenses, were

insufficiently culpable.   See Atkins (forbidding the execution of those with “mental

retardation”); Roper (forbidding the execution of juveniles); Graham (given their reduced

culpability, barring life without parole for juveniles); Miller (banning mandatory sentence

of life without parole for juveniles).     While these federal decisions were limited to




                                       [J-60-2024] - 62
intellectually disabled individuals or juveniles deemed categorically less culpable than

adults, and, thus, less deserving of the sentence of death or life without parole, the

principles announced therein are equally applicable to an analysis under Section 13.

       Second degree murder covers a wide variety of criminal conduct and varying

culpability for a killing. This degree of murder is somewhat of an anomaly, as the malice

necessary to support deeming the act to be murder is inferred from the commission of the

underlying felony.   Tarver, supra.    That is, it requires only an intent to commit the

underlying felony, not the killing. Thus, unlike first degree murder, one may be convicted

of second degree murder without malice (regarding the killing of the victim), without

attempting to kill the victim, or without having any intent to kill the victim. Stated in more

colloquial terms, second degree murder does not distinguish between the lookout, and

the killer who pulls the trigger. Despite this wide-ranging conduct and differing degrees

of culpability, both the killer and the lookout will be subjected to mandatory life

imprisonment without the possibility of parole.

       Additionally, second degree murder is an outlier, as it is one of the few crimes in

Pennsylvania that has only one possible sentence: mandatory life without parole. Most

other crimes allow the judge or jury some discretion in imposing a sentence, at least within

a certain range. Such discretion allows for consideration of the offender's characteristics

and culpability in fashioning an appropriate punishment.

       Thus, by its terms, the mandatory penalty scheme of life without parole for all

offenders convicted of second degree murder fails to assess individual culpability

regarding the intent to kill, and mandates the same punishment regardless of that

culpability.

       Severity of punishment is an additional factor in determining whether a sanction is

disproportionate to an offense. Initially, we note that, in Pennsylvania, first degree murder




                                      [J-60-2024] - 63
constitutes the “most severe breach of the law of this Commonwealth and is therefore

subject to our most severe penalty.” Commonwealth v. Fowler, 304 A.2d 124, 129 (Pa.

1973). To convict an individual of first degree murder requires the Commonwealth to

demonstrate that “a human being was unlawfully killed, the defendant was the killer, and

the defendant acted with malice and a specific intent to kill.” Commonwealth v. Laird, 988

A.2d 618, 624-25 (Pa. 2010). The sentence for first degree murder is death or life

imprisonment. 18 Pa.C.S. § 1102(a)(1).

       Felony murder, which is codified in Pennsylvania as second degree murder, is a

criminal homicide that takes place while a defendant is “engaged as a principal or an

accomplice in the perpetration of a felony.” 18 Pa.C.S. § 2502(b). Pennsylvania limits

those triggering felonies to “robbery, rape, or deviate sexual intercourse by force or threat

of force, arson, burglary or kidnapping.” 18 Pa.C.S. § 2502(d). As noted, the malice

necessary to find the act to be murder is inferred from the commission of the underlying

felony, resulting in an offender who did not kill, attempt to kill, or intend to kill subject to

conviction of second degree murder. Yet, despite these substantial differences between

first degree murder and second degree murder, a conviction for second degree murder

results in the same mandatory sentence as noncapital defendants convicted of first

degree murder: life imprisonment without the possibility of parole. 18 Pa.C.S. § 1102(b);

61 Pa.C.S. § 6137(a)(1).

       The gravity of a sentence of life without parole cannot be overstated. As the United

States Supreme Court stressed in Graham, while a sentence of death is unique in its

severity and irrevocability, life without parole is “the second most severe penalty permitted

by law” and imprisoning an offender until he dies shares certain attributes with capital

punishment that are dissimilar to any other sentence:

              The State does not execute the offender sentenced to life
              without parole, but the sentence alters the offender’s life by a


                                       [J-60-2024] - 64
              forfeiture that is irrevocable. It deprives the convict of the
              most basic liberties without giving hope of restoration, except
              perhaps by executive clemency—the remote possibility of
              which does not mitigate the harshness of the sentence. As
              one court observed in overturning a life without parole
              sentence for a juvenile defendant, this sentence “means
              denial of hope; it means that good behavior and character
              improvement are immaterial; it means that whatever the future
              might hold in store for the mind and spirit of [the convict], he
              will remain in prison for the rest of his days.”


Graham, 560 U.S. at 69-70 (citations omitted).

       While it may be entirely appropriate to mandate a sentence of life imprisonment

without parole for individuals convicted of first degree murder, the question before us is

whether the same mandate for all individuals convicted of second degree murder

constitutes cruel punishment. Life without parole imposes the harshest imprisonment

sanction permitted under the law ─ imprisonment until death without the opportunity for

consideration of release ─ regardless of culpability. Due to this scheme’s mandatory

nature and its unique severity, it poses a great risk of disproportionate punishment. See

Miller, 567 U.S. at 479 (requiring individualized sentencing when imposing the harshest

of prison sentences).

       Finally, the reasons supporting a punishment ─ that is, the penological

justifications for a sentencing practice ─ are relevant to our cruelty analysis. As noted

above, the penological justifications for punishment played an important, albeit not

exclusive, role in the adoption of Section 13. Punishment may have multiple and differing

goals which lie within the discretion of the legislature. While an examination of penal

philosophy can be an academic exercise, we conclude that, consideration of the purposes

and effects of a penal sanction aids our Section 13 cruelty analysis. Indeed, as offered

by the high Court as part of its Eighth Amendment jurisprudence, “[a] sentence lacking

any legitimate penological justification is by its nature disproportionate to the offense.”



                                     [J-60-2024] - 65
Graham, 560 U.S. at 71; see also Enmund, 458 U.S. at 798 (explaining that a punishment

which fails to serve any penological goal “‘is nothing more than the purposeless and

needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

(quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)).

       Thus, we turn to consider the traditional penological justifications for criminal

punishment:    rehabilitation,   deterrence,   retribution,   and   incapacitation.   See

Commonwealth v. Coleman, 285 A.3d 599, 613 (Pa. 2022) (offering that “sentencing

serves many ‘purposes, including “protection of society, general deterrence (example to

others), individual deterrence, rehabilitation, and retribution (punishment, vengeance,

desserts)’” (citation omitted)); Graham, 560 U.S. at 71 (“the goals of penal sanctions that

have been recognized as legitimate—retribution, deterrence, incapacitation, and

rehabilitation”); 204 Pa. Code § 303.11(a) (The Pennsylvania’s Sentencing Guidelines

establish “a sentencing system with a primary focus on retribution, but one in which the

recommendations allow for the fulfillment of other sentencing purposes including

rehabilitation, deterrence, and incapacitation.”).

       Rehabilitation justifies punishment when purposed to cause self-reflection and

improvement to lead a crime-free life after incarceration.          While this purpose of

punishment is to rehabilitate offenders so that they are no longer driven to commit crime,

a life without parole sentence eschews it. See Graham, 560 U.S. at 74 (life without parole

“forswears altogether the rehabilitative ideal”). Although some individuals convicted of

second degree murder may reasonably be viewed as outside the realm of rehabilitation,

such as someone directly responsible for the murder, this is not the case for everyone

convicted of second degree murder.          Thus, in the absence of an individualized

assessment of the circumstances of a second degree murder, the imposition of

mandatory life without parole is inconsistent with notions of rehabilitation.




                                      [J-60-2024] - 66
       Similarly, deterrence – structuring punishments so as to discourage a would-be

offender from reoffending or to intimidate the public at large from engaging in criminal

activity, and, thus, improving public safety – is undercut by imposing a mandatory

sentence of life imprisonment without parole for second degree murder. First, if one

convicted of second degree murder is sentenced to life without parole, there is no

opportunity for the defendant to be released and resist reoffending. Furthermore, when

a third party, such as a co-defendant, kills a person, the actions of that third party may be

outside of the control of the defendant, and, thus, it makes little deterrent sense to punish

the defendant for those actions. More significantly, deterrence goals generally require

escalating consequences for escalating severity. Yet, second degree murder provides

for a mandatory sentence regardless of the intent to kill, treating all such convictions the

same, and, thus, there is no added consequence when a killing is intentional. That is, by

punishing all felony murder convictions the same, regardless of an intent to kill, the

sentencing scheme, counterintuitively, provides no added deterrence for such killings.

Stated another way, a sentencing court or parole board is prohibited from taking into

account the intent and culpability of someone convicted of felony murder. As such, a

mandatory life without parole sentence for all felony murder convictions, without an

assessment of intent or culpability, is in tension with a deterrent purpose.

       Additionally, retribution is a traditional aim of punishment, representing society’s

condemnation of a crime. See Commonwealth v. Torsilieri, 232 A.3d 567, 589 (Pa. 2020).

Retribution aims cannot support a life without parole sentence in all cases of second

degree murder. While society may impose severe sanctions to express its condemnation

of a crime and to seek restoration of a moral balance, even with retribution there is a

proportionality principle, as “[t]he heart of the retribution rationale is that a criminal




                                      [J-60-2024] - 67
sentence must be directly related to the personal culpability of the criminal offender.” See

Graham, 560 U.S. at 71 (citation omitted).

       As we discussed, there is no assessment of individual culpability when one

convicted of second degree murder is sentenced to a mandatory term of life imprisonment

without parole. Therefore, a mandatory sentence of life imprisonment without parole is

inconsistent with the retributive principle that punishment should be proportionate to

culpability. Id. Conversely, providing parole eligibility for some second degree murder

offenders would allow the severity of the offender’s conduct to be taken into account.

Viewed either as an expression of the community's moral outrage or as an attempt to

vindicate the wrong to the victim, the retribution justification for mandatory life long

imprisonment without the possibility of parole fades with respect to an individual who did

not intend to commit or did not commit a homicide.

       Finally, the incapacitation justification, the idea of decreasing crime through the

removal of an individual from society, thereby eliminating the possibility of recidivism, is

premised upon public safety benefits. Recidivism is a serious risk to public safety, and,

thus, incapacitation is a significant and important policy.        However, the permanent

incarceration of an individual is premised upon the notion that he cannot be rehabilitated

or deterred from committing a future crime ─ that is, he will forever be a danger to society,

he is incorrigible. See Graham, 560 U.S. at 72-73. While incapacitation may be a

legitimate penological goal sufficient to justify life without parole in other contexts, we find

it cannot justify mandatory life imprisonment of all offenders who have been convicted of

second degree murder, without an assessment of culpability.

       In sum, we find that a mandatory sentence of life without parole for all individuals

convicted of second degree murder cannot be reasonably justified by any of the traditional

theories for punishment. While the justifications for punishment may support life-long




                                       [J-60-2024] - 68
incarceration for some convicted of this crime, such justification cannot support life

without parole for all offenders, as individuals who have lessened culpability are less

deserving of the most severe punishments, necessitating individualized assessment of

culpability.

       Although the judgment of the General Assembly is entitled to a presumption of

constitutionality, it is for our Court, ultimately, to determine whether Section 13 permits

the mandatory imposition of a life of imprisonment without parole for second degree

murder. We find that the sentencing framework imposing a mandatory sentence of life

without parole for second degree murder convictions in all cases, regardless of the

culpability and characteristics of the defendant ─ including such as the extent of an

offender’s participation in the conduct, and the details of his offense ─ without

individualized assessment either at sentencing or through parole, prevents the sentencer

from considering whether this harshest of sentences proportionately punishes the

offender.      Furthermore, this mandatory sentencing scheme runs afoul of notions of

individualized sentencing for defendants facing the second most severe punishment after

death, and the harshest type of incarceration. Finally, the mandatory nature of the

sentencing scheme without individualized sentencing lacks adequate penological

justification. Ultimately, we find that the mandatory sentencing scheme for second degree

murder poses too great a risk of disproportionate punishment, and, thus, find it to be

cruel.17


17 Our conclusion is broadly consistent with Eighth Amendment jurisprudence.       Indeed,
the United States Supreme Court has rejected a mandatory life with parole sentence for
juveniles without individualized consideration of the details of the crime and character of
the offender. Miller, supra. Just as the high Court has found with respect to juveniles, a
life sentence of imprisonment without parole for second degree murder may be
appropriate in certain circumstances, “but only so long as the sentence is not mandatory.”
Jones, 593 U.S. at 106. Indeed, our approach is also consistent with the individualized
assessment of aggravating and mitigating circumstances required before the imposition
(continued…)

                                     [J-60-2024] - 69
       Accordingly, we conclude Section 13’s prohibition on cruel punishments proscribes

a sentencing model which mandates the imposition of life imprisonment without parole

for felony murder.18 Therefore, we reverse the order of the Superior Court, vacate




of the penalty of death. See Gregg, supra (upholding capital sentencing scheme that
provided for the weighing of aggravating and mitigating circumstances).
18 We emphasize the limited nature of our decision today, which addresses only the

constitutionality of a sentence of mandatory imprisonment without the possibility of parole
for all individuals convicted of second degree murder. We address a specific type of
sentence (mandatory life imprisonment without the possibility of parole), for specific
offenders (those convicted of second degree murder without an assessment of individual
culpability). To be clear, under our decision today, the Commonwealth is not required to
ensure parole or eventual release to someone convicted of second degree murder. Such
a convict may remain incarcerated for the duration of his natural life. Rather, we hold that
offenders convicted of second degree murder must receive a meaningful consideration
of release, based upon their individual culpability and the circumstances surrounding their
crime.
        Furthermore, we do not pass judgment on the legality or wisdom of the felony
murder doctrine itself. A challenge to the severity of a sentencing scheme is qualitatively
different than a challenge to the validity of a substantive crime. Defining what acts
constitute an offense is an authority vested in the legislature, subject to constitutional
limitations. See Commonwealth v. Church, 522 A.2d 30, 35 (1987) (“It is recognized that
the legislature has the exclusive power to pronounce which acts are crimes, to define
crimes, and to fix the punishment for all crimes. The legislature also has the sole power
to classify crimes and designate the procedure applicable at trial and after sentence.”);
see also Johnson, supra.
        Similarly, our decision should not be read as casting doubt upon the
constitutionality of existing sentences for first degree murder, whether punished by life
imprisonment or death, which involves a complex legal scheme that takes full account of
a defendant’s individual culpability and circumstances. See 18 Pa.C.S. § 2502(a) (“A
criminal homicide constitutes murder of the first degree when it is committed by an
intentional killing.”); Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. 2000) (“To
sustain a conviction for first-degree murder, the Commonwealth must prove that the
defendant acted with the specific intent to kill, that a human being was unlawfully killed,
that the accused did the killing and that the killing was done with deliberation.”); 18
Pa.C.S. § 306(d) (“When causing a particular result is an element of an offense, an
accomplice in the conduct causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with respect to that result that is
sufficient for the commission of the offense.”).


                                      [J-60-2024] - 70
Appellant’s judgment of sentence, and remand the matter to the trial court for

resentencing not inconsistent with our decision today.

      On remand, the sentencing court must, after consideration of Appellant’s individual

culpability, determine whether he should be resentenced to life imprisonment without the

possibility of parole; or to a maximum sentence of life imprisonment, as required by 18

Pa.C.S. § 1102(b), accompanied by a minimum sentence determined by the court. Our

allowance for such a minimum and maximum sentence – despite the requirement in 42

Pa.C.S. § 9756(b)(1) that a minimum sentence may not exceed one half of a maximum

sentence, and the prohibition in 61 Pa.C.S. § 6137(a) that the parole board has the power

to parole all offenders except those serving life imprisonment – flows from our

constitutional ruling. We came to the same conclusion in analogous circumstances in our

post-Miller rulings addressing the resentencing of juveniles convicted of first degree

murder who had been sentenced to life imprisonment without the possibility of parole.

See Batts I, 66 A.3d at 297 (remanding for resentencing for possible maximum sentence

of life imprisonment and minimum sentence to be set by sentencing court), and

Commonwealth v. Batts, 163 A.3d 410, 442-44 (Pa. 2017) (“Batts II”) (in appeal following

Batts I, determining severance of 42 Pa.C.S. § 9756(b)(1) and 61 Pa.C.S. § 6137(a)

necessary for constitutionally-mandated resentencing of juveniles).

      Finally, as we have observed in prior cases where we deemed legislation to violate

our Constitution, nothing in our decision today prevents the General Assembly from

amending 18 Pa.C.S. § 1102(b) or 61 Pa.C.S. § 6137(a)(1) in a fashion in accord with

Section 13’s constitutional protections. See, e.g., Commonwealth v. Neiman, 84 A.3d

603, 615-16 (Pa. 2013); City of Philadelphia v. Commonwealth, 838 A.2d 566, 593-94

(Pa. 2003). Indeed, 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




                                     [J-60-2024] - 71
reform.19 However, cognizant of the impact our decision today will have, we will stay our

mandate for 120 days in order to provide a reasonable amount of time for the General

Assembly to consider appropriate remedial measures. See Neiman, 84 A.3d at 616

(staying order to provide General Assembly time to consider appropriate remedial

measures); City of Philadelphia, 838 A.2d at 594 (staying mandate to allow legislature

time to act).20
       Order reversed, judgment of sentence vacated, and case remanded.                This

mandate is stayed for 120 days.

   Justices Donohue, Dougherty, Wecht and McCaffery join the opinion.

   Justice Dougherty files a concurring opinion in which Justice McCaffery joins.

   Justice Wecht files a concurring opinion.

   Justice Mundy files a concurring opinion.

   Justice Brobson files a concurring and dissenting opinion.




19 Notably, in the wake of Miller, the Pennsylvania General Assembly established a new

sentencing scheme for juveniles convicted of murder which included individual
assessments and mandatory minimum sentences based upon the age of the offender.
See 18 Pa.C.S. § 1102.1.
20 As this matter comes to us on direct appeal, and the only question before us is the

constitutionality of Appellant’s sentence, we decline to address questions of retroactivity.


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