Support comes from victims, corrections officials, prosecutors, and Governor Shapiro

April 29, 2024, Harrisburg, PA – A 36-year-old Black man serving life without parole (LWOP) for felony murder is challenging the constitutionality of his sentence before the Pennsylvania Supreme Court. Felony murder is charged when a death occurs during the commission of a felony, even when the person did not kill or intend to kill. In a brief filed late last week, Derek Lee argues that, because he did not kill or intend to kill anyone, his sentence is disproportionate and cruel under both the Pennsylvania and U.S. constitutions. He seeks to end LWOP for all 2nd degree convictions.

Lee’s case emerges from a growing grassroots movement led by incarcerated people and their families who refer to life without parole as death by incarceration (DBI). Today, hundreds of people from across the state will gather at the state capitol to rally and meet with legislators to demand an end to DBI, a sentence that has and continues to harm thousands of Pennsylvanians and their families.

Seventeen amici curiae (friend of the court briefs) were submitted in support of Lee’s case, representing dozens of individuals and organizations. A brief from Governor Shapiro acknowledges that Derek Lee’s sentence is unconstitutional and urges the legislature to create a remedy for people currently serving this sentence. Former prosecutors and judges of Pennsylvania submitted a brief that concludes, “Life sentences are not required to prevent recidivism.”

Former lifers, eighth amendment scholars, family members of victims, UN experts, legal organizations including the NAACP Legal Defense and Education Fund, the ACLU, and other justice organizations, also weighed in with opinions traversing the legal, moral, and racial justice issues raised in the case. 

Although Lee’s case concerns only a subset of people serving DBI sentences, activists believe it could be a turning point in the national effort to reduce or end life imprisonment, a defining feature of the U.S. criminal legal system and a driver of mass incarceration.

“It is my prayer that the Pennsylvania Supreme Court approaches this brief with an open and sympathetic perspective,” said Derek Lee. “Open to the reality that true redemption is attainable even for those that our current system has written off as not valuable and deficient. And having a sympathetic perspective, not necessarily to those more than 1,000 individuals currently serving 2nd-degree sentences, but sympathetic to the up-and-coming generations of young men and young women who are in desperate need of fathers, mothers, uncles, aunts, community leaders, and mentors that can help them break the cyclical generational curses that have plagued their families and our communities at large for far too long. I pray that with this opportunity, the Pennsylvania Supreme Court foresees the families and lives that will be spared by our potential to impact future generations if given the chance.”

The application of the felony murder rule is particularly extreme in Pennsylvania because the mandatory minimum sentence is life without parole. One of only a few states with mandatory death-by-incarceration sentences for felony murder, Pennsylvania has about 1,100 people slated to die in prison for a death they did not intend. The state is also a national leader in DBI generally, with 5,200 people serving such sentences, ten percent of the national total. 

While a death-by-incarceration sentence is mandatory for felony murder in Pennsylvania, prosecutors have discretion whether to bring the charge. Their bias, along with other forms of endemic racism in the criminal legal system, results in vast disparities. Although only 11 percent of the state’s population is Black, 70 percent of the people serving DBI sentences for felony murder are Black. 

“Death-by-incarceration for felony murder stacks an incomprehensibly cruel punishment on top of a nonsensical and regressive criminal offense,” said Quinn Cozzens, staff attorney at the Abolitionist Law Center. “The vast majority of states do not require permanent incarceration for felony murder, making Pennsylvania one of the only places in the world where this punishment occurs. Derek Lee is one of many who, if given the opportunity, can prove the value of redemption and restoration as guiding ideals for how we address harm.”   

In 2014, Lee and another man allegedly broke into a house in Pittsburgh to commit robbery. According to a prosecution witness, Lee was upstairs when the other man shot and killed a man in the basement. In the brief filed on his behalf by the Abolitionist Law Center, Amistad Law Project, and the Center for Constitutional Rights, Lee challenges his sentence under the Eighth Amendment, which prohibits “cruel and unusual” punishment, and the Pennsylvania Constitution, which offers even broader protection by banning “cruel” punishment. 

“Death By Incarceration is a cruel sentence for anyone,” said Nikki Grant, Policy Director of Amistad Law Project. “We are seeking relief for Derek Lee and the thousands like him who are condemned to die in prison but did not take a life, and we hope the PA Supreme Court will correct this injustice. More importantly, we hope that victory in this case will crack the door open for all who deserve a second chance.”

Like many other incarcerated people, Lee has grown over the years despite the ever-present brutality and lack of rehabilitative resources in prisons. According to his mother, Betty Lee, he preaches in prison as the assistant to the chaplain and was appointed to the executive board of the Pennsylvania Lifers’ Association. If he were permitted to return to his community in Pittsburgh, he would be a powerful role model for young men, she says. 

“Pennsylvania’s scheme sentencing individuals to life without parole for felony murder is a disproportionate and cruel punishment. Mr. Lee is one of thousands serving sentences for murders they did not commit and fully lacked the intent to commit,” said Remy Burton, a Bertha Justice Fellow at the Center for Constitutional Rights. “It is time for Pennsylvania to recognize and uphold protections enshrined in their own constitution, and aligned with many other states, by overturning the unjust practice of punishment that is life without parole for felony murder.”

Amicus briefs submitted in support:

Scholars of Eighth Amendment Law
Former Prosecutors and Judges of Pennsylvania 

UN Officials
Governor Josh Shapiro

Innocence Project

Juvenile Law Center, Youth Sentencing & Reentry Project and Philadelphia Lawyers for Social Equity 

Sentencing Project, Fair and Just Prosecution, and FAMM
Defender Association Of Philadelphia 

Criminologists And Law Professors 

Power Interfaith
Former Pardons Board Secretaries
Family Members and Loved Ones of Victims
Former Lifers
Former Department Of Corrections Secretaries John Wetzel And George Little, And Executives Antiracism Practicum at BU School of Law, Korematsu Center & NAACP Legal Defense Fund
Pennsylvania Prison Society, ACLU, MacArthur Justice Center
Philadelphia District Attorney’s Office 

For more information, visit this case page.

The Abolitionist Law Center is a public interest law firm inspired by the struggle of political and politicized prisoners, and organized for the purpose of abolishing class and race based mass incarceration in the United States. Abolitionist Law Center litigates on behalf of people whose human rights have been violated in prison, educates the general public about the evils of mass incarceration, and works to develop a mass movement against the American punishment system by building alliances and nurturing solidarity across social divisions. Follow Abolitionist Law Center on Facebook, @AbolitionistLC on Twitter, and @Abolitionistlc on Instagram.

Amistad Law Project is a public interest law firm and organizing project working to end mass incarceration in Pennsylvania. Founded and led by Black feminists, we work to abolish death by incarceration, create alternatives to policing, and get our communities the material resources and power they need to thrive. Follow us on social media: facebook.com/AmistadLaw, @AmistadLaw on Twitter and Instagram.