Pennsylvania has roughly 1,100 people serving mandatory life without parole for second-degree murder. As of July 24, 2026, all of them are living under a sentencing scheme the state's highest court has declared unconstitutional. Exactly one of them, Derek Lee, is automatically entitled to go back to court about it.
That gap is not an accident or an oversight. It is the direct result of a 120-day clock that expired without a replacement statute, and of a decision the Pennsylvania Supreme Court deliberately left open when it issued its ruling. Understanding the difference between having a right and being able to enforce it is now the single most important thing for anyone with a family member serving one of these sentences.
What the court actually held in Commonwealth v. Lee
On March 26, 2026, the Pennsylvania Supreme Court decided Commonwealth v. Lee, 3 WAP 2024. The result was unanimous, with the majority opinion written by Chief Justice Debra Todd. Justices Dougherty, Mundy and Wecht filed concurrences, and Justice Brobson concurred in part and dissented in part. Both opinions are posted on the Unified Judicial System's opinions page.
The holding is narrow and specific. A mandatory sentence of life without parole for second-degree murder violates Article I, Section 13 of the Pennsylvania Constitution, the state's cruel punishments clause, because the statute forecloses any consideration of an individual defendant's culpability. The problem the court identified is the word mandatory, not the word life.
This distinction gets flattened constantly in coverage, and getting it wrong will cost families months of false hope. A Pennsylvania judge can still impose life without parole for second-degree murder. What a judge can no longer do is impose it automatically, without hearing anything about the person in front of the bench. Derek Lee himself can receive life without parole again at his resentencing.
The state-constitutional significance is real and worth stating precisely. Pennsylvania's cruel punishments clause dates to 1790. According to the Abolitionist Law Center, which litigated the case, Lee is the first time that clause has been read to provide protection broader than the federal Eighth Amendment. That is not the first time the clause has been invoked. It is the first time it has been given independent force beyond the federal floor, which is why the Brennan Center's State Court Report has tracked the case as a state-constitutional-law development rather than a routine sentencing appeal.
The underlying facts explain why the court found the mandatory scheme intolerable. On October 14, 2014, Lee took part in an armed home robbery in Pittsburgh. His co-defendant shot and killed Leonard Butler. Lee was in another room. Under Pennsylvania's second-degree murder statute, a conviction for a killing committed during a felony carried automatic life without parole regardless of what the individual defendant did, intended or knew.
How the legislature spent its 120 days
The court stayed its judgment for 120 days so the General Assembly could construct a replacement sentencing scheme. The deadline was July 24, 2026. As the timeline compiled by City & State Pennsylvania lays out, the chambers used those four months to pass competing bills at each other.
The Republican-controlled Senate passed SB 1400, sponsored by Sen. Lisa Baker with Sen. Wayne Langerholc, by a 30-20 vote on June 25. On July 12, the Senate re-passed the same language inside HB 1042, again 30-20. On July 23, the Democratic-controlled House passed its own amended version of HB 1042 by 102-100, a one-vote margin. That bill went back to the Senate, which has refused to take it up. Senate President Pro Tempore Kim Ward described the House version as a soft-on-crime, criminal-friendly bill.
The July 24 deadline passed. Nothing was enacted.
The extension request that failed
Allegheny County District Attorney Stephen Zappala asked the Supreme Court for a second 120-day stay. In the final days of July 2026, the court denied it. Justice Kevin Dougherty dissented, joined by Justice Sallie Mundy, arguing the legislature deserved additional time because the session had been consumed by the state budget before recess. Coverage of the denial ran on 90.5 WESA on July 31 and on WITF shortly after.
The practical meaning of that denial: a majority of the court was willing to let its own ruling take effect with no statute behind it. Sentencing courts are operating in the space that decision opened.
Retroactivity is the entire fight
Here is the part that determines whether any of this reaches the roughly 1,100 people currently serving these sentences. The court did not hold Lee retroactive. It expressly declined to decide the question.
That means Lee is entitled to resentencing and no one else automatically is. Everyone else has to petition individually into a question that has not been answered. As Spotlight PA and the Philadelphia Inquirer have both reported, defense lawyers expect trial courts to deny those petitions until an appellate court settles retroactivity one way or the other.
There are two routes to an answer. The first is the ordinary one: individual post-conviction petitions get denied, appealed to Superior Court, and eventually climb to the Supreme Court. That path takes years. The second is a King's Bench petition, which asks the justices to take the retroactivity question directly and immediately under the court's extraordinary jurisdiction. Defenders and the Abolitionist Law Center are widely expected to pursue that route. Bret Grote of the Abolitionist Law Center and other observers expect the court will ultimately hold the ruling retroactive, but expectation is not a holding, and nothing has been decided.
What a petition can and cannot do right now
Post-conviction relief in Pennsylvania runs through the PCRA, and the PCRA has a one-year time bar. The exception that matters here is 42 Pa.C.S. § 9545(b)(1)(iii), the newly recognized constitutional right exception. Read the text carefully, because it does the work: the exception applies where the right has been held by that court to apply retroactively.
That condition has not been met. Per the Abolitionist Law Center's FAQ, if and when the Supreme Court holds Lee retroactive, people will have one year from that ruling to file, and everyone serving a second-degree death-by-incarceration sentence will be entitled to appointed counsel if they cannot afford one.
So a filing made today is a placeholder against an unsettled question, not a ticket to a hearing. Anyone told otherwise should ask the person telling them to point to the holding. One caution on the ALC guidance itself: its advice that there was no rush to file because the ruling was stayed for 120 days was written before the deadline. The stay has expired. Treat that line as a description of the pre-deadline period, not current instruction, and confirm the current posture with counsel.
The Abolitionist Law Center is also clear about what the ruling does not do. It does not create a path to a new trial. It does not help innocence claims. It does not guarantee anyone a sentence shorter than life without parole. It does not touch first-degree murder or other sentences.
The money problem sets the real timeline
Even if retroactivity is resolved tomorrow, the system has to absorb the caseload. Keisha Hudson, chief of the Defender Association of Philadelphia, estimates roughly $40,000 per resentencing in attorney time, investigators and mitigation specialists. More than 500 of the statewide cases, about half, were sentenced in Philadelphia. If every eligible Philadelphia case returns to court, that is about $24 million for one office. Statewide estimates run $34 million to $36 million.
There is also a records problem that money alone does not solve. As the Inquirer reported in July, roughly 30 Philadelphia cases predate the Defender Association's homicide unit, which was created in 1993. For those cases, no institutional file exists. The mitigation record a resentencing court would want has to be rebuilt from scratch, decades after the fact, from whatever families and outside institutions still hold.
The Sentencing Project reports that Black Pennsylvanians make up about 70% of the state's felony murder population while representing about 12% of the state's residents. Pennsylvania holds more than 5,000 people serving life without parole overall.
The two bills, side by side
SB 1400, described by Senate Republicans and backed by Attorney General Dave Sunday and the Pennsylvania District Attorneys Association, would set second-degree murder at 35 years to life. Life without parole would remain available where aggravating circumstances are proven beyond a reasonable doubt, with a reduced range, reported as 10 to 40 years, for significantly diminished culpability. For people currently serving, parole eligibility would arrive at 35 years, or at 20 years for those age 70 or older.
The House version of HB 1042 sets no statutory mandatory minimum, preserves life without parole as the maximum, delegates sentencing guidelines to the Pennsylvania Commission on Sentencing, sets parole eligibility at 30 years for people currently serving, and expands medical release.
Two details are worth holding onto. First, the elderly carve-out in SB 1400 reaches a very small group: only about 14 people age 70 or older have served less than 35 years. Second, an earlier House Democratic draft, and the Abolitionist Law Center's advocacy target HB 443, used 25 years for retroactive parole eligibility. The bill that actually passed on July 23 uses 30. These get conflated in secondhand summaries, and the difference is five years of someone's life.
Sentencing in pending cases right now
For second-degree murder cases being sentenced today, judges must exercise discretion with no statewide guideline. Both defenders and prosecutors told WITF that this will produce county-to-county disparity. Philadelphia District Attorney Larry Krasner has said there is nothing unusual about judicial discretion. Republican prosecutors meeting in Hazleton raised a narrower and more concrete objection: without a statutory range, they cannot reliably advise defendants about the consequences of a plea.
If you are facing a second-degree murder charge in Pennsylvania right now, that uncertainty runs in both directions. The sentence is genuinely open, and the mitigation case your lawyer builds carries weight it did not carry six months ago.
What families can do during the standoff
Nothing on this list is litigation. All of it is preparation, and it is the work no one else is doing.
- Assemble the mitigation record now. Childhood and family history, medical and mental health records, school records, employment history, trauma history, and the specific facts of the person's role in the underlying offense. This is exactly what a resentencing court will want, and it gets harder to gather every year.
- Collect institutional records from the prison. Programming completed, work assignments, disciplinary history, education, certifications, letters from staff. Decades of good conduct only counts if someone documents it.
- Secure counsel or make contact. The Defender Association of Philadelphia and the Abolitionist Law Center are the two organizations closest to this issue. Get on their radar rather than waiting to be found.
- Track the retroactivity posture, not the legislature. A King's Bench filing, or a Superior Court ruling, will move this faster than Harrisburg will. Ask counsel specifically about the King's Bench route.
- Contact legislators before the Senate returns. The two chambers are 30 years and one mandatory minimum apart, and that gap is a political question, not a legal one.
The calendar
The Pennsylvania Senate's next voting session is Monday, September 28, 2026. Both chambers face elections in November. Reporting through mid-August describes the deadlock as unresolved with no compromise framework in existence.
That leaves a plain assessment. The constitutional question of whether Lee reaches the 1,100 people already sentenced is likely to arrive at the justices before the General Assembly arrives at a statute. Which means the thing to watch is not a bill number. It is a docket.
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Sources
- Commonwealth v. Lee, 3 WAP 2024, majority opinion (PDF)
- Commonwealth v. Lee, concurring and dissenting opinion (PDF)
- Commonwealth v. Lee, Justia case page
- Spotlight PA: No fix for PA's second-degree murder sentencing. What's next?
- Philadelphia Inquirer: Pennsylvania ended automatic life sentences for felony murder. Here's what happens next. (Aug. 16, 2026)
- Philadelphia Inquirer: Pa. lawmakers have only days to set sentencing guidelines for felony murder cases (July 14, 2026)
- 90.5 WESA: Pa. Supreme Court rejects extension of stay
- WITF: Pa. Supreme Court rejects extension of stay
- WITF: Pa. judges reviewing second-degree murder punishments without new law
- The Marshall Project: Pennsylvania Struck Down Mandatory Life Without Parole for 2nd-Degree Murder. What Comes Next?
- City & State Pennsylvania: A matter of life and death
- Abolitionist Law Center: FAQ About the Derek Lee Felony Murder Ruling
- Abolitionist Law Center: Commonwealth v. Derek Lee case page
- Pennsylvania Senate Republicans: Safeguarding Pennsylvania Communities
- The Sentencing Project: Pennsylvania Supreme Court Ends Mandatory Life Without Parole for Those Who Did Not Intentionally Kill
- WHYY: Pa. court upends mandatory use of life-without-parole for second-degree murder
- Center for Constitutional Rights: In Historic Ruling, PA Supreme Court Abolishes Life Without Parole for Felony Murder
- State Court Report (Brennan Center): Commonwealth v. Lee case tracker
Note: This article contains AI-assisted content and has been reviewed by our editorial team.
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