Commonwealth v. Derek Lee and felony-murder life sentences

On March 26, 2026, the Supreme Court of Pennsylvania held that a mandatory sentence of life without parole for second-degree murder is cruel under Article I, Section 13 of the Pennsylvania Constitution. More than 1,100 people are serving that sentence. Whether the decision reaches them is not yet decided, and the answer, when it comes, will start a one-year clock. This is what families of those 1,100 people need to understand now.

By John A. Julian, Esq. Updated October 1, 2026.

What the Court decided

Derek Lee was convicted in Allegheny County of second-degree murder for a 2014 robbery in which his co-defendant, not Lee, shot the victim. Under 18 Pa.C.S. § 1102(b) the sentence was mandatory life, and under 61 Pa.C.S. § 6137(a) a life sentence carries no parole. Lee's appeal reached the Court only because a PCRA petition reinstated his appeal rights in 2020.

Chief Justice Todd's opinion, joined by four Justices, held that Article I, Section 13, which prohibits "cruel punishments" and, unlike the Eighth Amendment, omits the word "unusual," protects more than its federal counterpart. Applying that protection, the Court found that a scheme mandating life without parole for every felony-murder conviction, from the killer to the lookout, "without individualized assessment either at sentencing or through parole," poses "too great a risk of disproportionate punishment" and is cruel. The federal Eighth Amendment claim failed; the Court declined to extend the juvenile and capital cases to adults.

The remedy was narrow. Lee's sentence was vacated and the case sent back for resentencing, where the court must consider his individual culpability and then either impose life without parole again or impose a maximum of life with a minimum term the judge sets, after which the Parole Board may consider release. The Court stayed its mandate for 120 days to let the General Assembly act.

What the Court did not decide

• The felony-murder rule stands. Second-degree murder remains a crime, and life remains the maximum. Nobody is entitled to release; the right is to individualized consideration.
• First-degree murder is untouched. Footnote 18 says the decision "should not be read as casting doubt" on existing first-degree sentences.
• Retroactivity. Footnote 20, in full: "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." That single sentence is why 1,100 people are still waiting.
• Who is covered. The majority's language reaches all second-degree murder. Justice Mundy, concurring in the result only, would limit the holding to defendants who "did not kill, attempt to kill, or intend that anyone be killed," and would leave the mandatory sentence intact for those who did. Her vote was the sixth, so the scope of the holding is contested.

What has happened since

The stay expired on July 24, 2026. The General Assembly adjourned without passing anything, and the Senate majority leader has said his caucus will not support legislation seen as expanding release for serious offenders. The Supreme Court has entered no further order. On September 10 and 12, 2026, the Abolitionist Law Center and Phillips Black filed King's Bench petitions, including Commonwealth v. Marsha Scaggs on behalf of a woman convicted in Lawrence County in 1988 as a non-shooter accomplice, asking the Court to "hold that its decision in Lee is retroactive, entitling petitioner and those similarly situated with felony murder mandatory life without parole sentences to PCRA resentencing relief." The Court has no deadline to act on those petitions.

Who can act now

Anyone whose judgment is not yet final. If a direct appeal is pending, or the time to file one has not run, Lee applies. Raise it in the Superior Court, or in a post-sentence motion if one is still available. This includes anyone whose appeal rights have been reinstated through a PCRA petition, which is how Lee himself got there.

Anyone within one year of finality. A first PCRA petition filed within one year of the date the judgment became final is timely on its own terms and does not need the retroactivity exception. A petitioner in that window should file now and plead Lee as an illegal-sentence claim under § 9543(a)(2)(vii) and as a constitutional violation under § 9543(a)(2)(i). Whether Lee applies to a case that became final before March 26, 2026 will be litigated, but a timely petition is the only vehicle in which that argument can be heard.

Anyone whose direct appeal was never filed because counsel failed to file it. A timely petition to reinstate appeal rights, if the abandonment is recent enough to plead, puts the case back on direct review where Lee applies.

Everyone else is waiting on the retroactivity ruling, and should be preparing for it.

What to prepare while waiting

When a court holds Lee retroactive, § 9545(b)(2) gives one year from that date to file, and the Superior Court has held that the clock runs from the retroactivity decision itself, not from any later notice to the prisoner. Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016), fixed the date for Miller claims at the day Montgomery was decided. Expect the same rule here. Families should have the following in hand before that day:

• The docket sheet, the sentencing order, and the trial or plea transcript, so the petition can state the petitioner's role in the offense precisely. Under Justice Mundy's reading, whether the petitioner killed, attempted to kill, or intended a killing may decide the case.
• The record on culpability: what the petitioner did, whether he was armed, whether he harmed anyone, whether he was present, what the co-defendants did. Justice Brobson's separate opinion lists these as the factors a resentencing court should weigh.
• The prison record, education, work history, and evidence of rehabilitation, which will matter at resentencing even if the majority frames the inquiry around the offense.
• A decision about whether to file a protective petition now. Some counsel are filing petitions citing Lee before any retroactivity ruling, accepting a likely dismissal, to preserve the argument that the right was invoked at the first opportunity. Others advise waiting. The choice depends on the petitioner's history: a first petition and a fifth petition carry different risks.

What resentencing will look like

The majority instructed the trial court to consider "individual culpability" and then choose between life without parole and a life maximum with a court-set minimum. It gave no factor list and no floor. Justice Brobson proposed asking whether the offender was armed, committed violence against the victim, could have prevented the killing, threatened anyone, or was present at all, and warned that resentencing "should not turn into a de facto parole hearing." Justice Mundy stressed that life without parole remains available as a discretionary sentence. The General Assembly may still enact a scheme, and the Court's footnote 19 pointed to 18 Pa.C.S. § 1102.1, the post-Miller juvenile statute, as a model. A legislative fix could also take the form of parole eligibility for existing lifers without resentencing, which Justice Brobson noted and which would change the analysis entirely.

Federal habeas will not help

The Court rejected the Eighth Amendment claim. Lee rests entirely on the Pennsylvania Constitution, so a federal petition under 28 U.S.C. § 2254 cannot enforce it. The route is the PCRA, and the PCRA's timing rules govern.

Common questions

Does Commonwealth v. Lee mean people serving life for felony murder will be released?

No. The Court held the mandatory sentence unconstitutional, not the sentence itself. A person convicted of second-degree murder can still receive life without parole after individualized consideration, or a life maximum with a minimum term after which the Parole Board decides.

Does Lee apply to people whose convictions are already final?

That has not been decided. The Court expressly declined to address retroactivity, and no court has since held Lee retroactive. King's Bench petitions filed in September 2026 ask the Supreme Court to decide the question.

When would the PCRA deadline run for a Lee claim?

For a conviction already final, one year from the date a court holds Lee retroactive, under 42 Pa.C.S. § 9545(b)(2). The Superior Court has measured that year from the retroactivity decision itself, not from when the prisoner learned of it.

Does it matter whether the person was the shooter?

It may. The majority's holding covers all second-degree murder, but Justice Mundy's concurrence would limit it to defendants who did not kill, attempt to kill, or intend to kill. The petitioner's role in the offense should be documented from the record now.