For decades, Pennsylvania courts ignored the state’s constitution’s unique history and provisions regarding “cruel punishment” and instead followed the federal government’s adherence to the Eighth Amendment. That all changed last week when the Pennsylvania Supreme Court ruled that the state constitution prohibits mandatory sentences of life without parole for individuals convicted of felony murder. This landmark judgment is notable for many reasons, including how international law is incorporated into the arguments and the justices’ opinions.
A felony murder conviction does not require the government to prove the defendant had intent to kill. Instead, the intent required for felony murder is constructively inferred from the defendant’s intent to commit the underlying felony. Illinois enacted the nation’s first felony murder law in 1827, defining murder to include unintentional killing that occurs during the commission of a felony. Similar systems were in place in 19 states by the end of the 19th century. However, recognizing the strictness of this rule, many of these states later reduced its scope. For example, some states have lowered required sentences or expanded the possibility of parole for people convicted of felony murder. According to the Pennsylvania Supreme Court, by 2026, only five states — Iowa, Louisiana, Mississippi, North Carolina and Pennsylvania — have imposed mandatory life sentences without parole for felony murder without exception.
Derek Lee was convicted of second-degree murder in Pennsylvania in 2016 after his accomplice shot and killed a robbery victim. In Pennsylvania, second-degree murder includes any murder “committed while the defendant was engaged in the commission or accomplice of a felony.” Under Pennsylvania law, courts have no choice but to sentence defendants convicted of second-degree murder to life in prison without parole.
Mr. Lee challenged the ruling on both the federal and state constitutions. He argued that because he did not kill or intend to kill anyone, his responsibility for the death was diminished, and that the mandatory sentence of life in prison without the possibility of parole was “unduly harsh in relation to legitimate penal objectives and departs from contemporary national and international standards.”
The Pennsylvania High Court reversed Lee’s judgment; Commonwealth v. Leefirst looked at federal law. Reviewing the U.S. Supreme Court’s Eighth Amendment precedent, the court concluded that cases in which a defendant was found to have “clearly diminished liability” did not apply to Mr. Lee’s case because they only concerned capital punishment or juvenile defendants. Without additional guidance from the U.S. Supreme Court regarding life sentences and adult defendants, Pennsylvania courts have been reluctant to impose state mandatory sentences as a matter of federal law.
Turning to whether the state constitution’s prohibition on “cruel punishment” provided independent support for Lee’s challenge, the court looked to the 1991 decision. Commonwealth v. Edmundswhich sets out a step-by-step framework for an independent analysis of states’ constitutional rights. According to edmundsthis process requires consideration of four factors. The first is the text of the relevant Pennsylvania Constitution provision. Second, the history of this provision, including Pennsylvania case law. Third, relevant case law from other states. and fourth, policy considerations, including issues of state and local concern and their applicability in contemporary Pennsylvania jurisprudence.
The court noted that with respect to the express provisions of the Pennsylvania Constitution, the relevant state provision prohibits only “cruel punishment,” while the federal counterpart prohibits “cruel and unusual” punishment. The court relied on a recent U.S. Supreme Court decision. Grants Pass vs. Johnsonexplained the independent significance of the term “abnormality” in the Eighth Amendment. The court found that the omission of “anomaly” from the Pennsylvania Constitution indicated that it afforded defendants broader protections than the federal Constitution.
The history of state regulations also supported defendants’ objections. Pennsylvania’s “cruel punishment” regulations were adopted in 1790, one year before the ratification of the Eighth Amendment. The court reviewed the historical record and concluded that Pennsylvania’s Founding Fathers adopted a different view of punishment than other early Americans because of the commonwealth’s Quaker origins. According to the court, they “rejected the harshness of British criminal law, de-emphasizing retaliation as a justification that underpinned the Eighth Amendment, and turned instead to emerging Enlightenment theories as the basis for criminal punishment in Pennsylvania.”
The court’s historical analysis also provided a basis for distinguishing past state court decisions that interpreted the Pennsylvania Constitution in line with the Eighth Amendment. According to the court, these lawsuits were based on an incomplete understanding of and access to the historical record. Second, a broader study of other states’ approaches showed mixed results, with some states operating in lockstep and others adopting independent analysis. However, the courts in Pennsylvania that have conducted the most stringent reviews, such as those in Minnesota, New Jersey, and Washington, have concluded that state constitutions provide greater protections to citizens than the Eighth Amendment.
final match edmunds The court held that policy considerations did not preclude a broad interpretation of the Pennsylvania Constitution. The court opined that the policy direction should be clarified to limit interference with other branches of the court, explaining that policy considerations were too general to consider invoking a mandatory life without parole rule. The court deferred to Congress the details of how the court’s decisions would be enforced, demonstrating some respect for Congress in the area of policy-making.
Several justices concurred separately, but one, Justice Kevin Brobson, dissented based in part on disagreements over the court’s discussion of next steps rather than the basic structure of Pennsylvania’s constitution. But Justice David Vecht’s concurrence is notable because it addresses the question of whether international and comparative law should play a role in Pennsylvania’s state constitutional case.
International human rights law was factored into Lee’s case. His brief cited a request by the United Nations Human Rights Committee for the United States to suspend mandatory life sentences without parole in 2023, arguing that these penalties depart from the United States’ treaty obligations. Additionally, among the many court briefs filed in this case were briefs on behalf of the United Nations Special Rapporteur on Modern Forms of Racial Discrimination and the United Nations Expert Mechanism for Promoting Racial Justice and Equality in Law Enforcement. They argued that Pennsylvania’s policy is a global outlier, that it violates human rights law because it constitutes cruel, inhuman and degrading treatment, and because it applies differently to black and brown Pennsylvanians. The majority opinion noted what these preparatory papers said regarding international law, but did not suggest that they were binding.
However, Mr. Vecht went out of his way to declare that “a case before the Pennsylvania Supreme Court is not a case before the International Court of Justice.” He further stated that “foreign laws, customs, and customs have no place in the analysis of Pennsylvania’s Constitution.” While he acknowledged that the majority’s involvement with these international materials was modest, he cautioned advocates to avoid submitting such materials, saying “prospective litigants should be careful.”
Ironically, Mr. Vecht’s agreement actually advocates for stronger judicial education in international law. Although his views equated international law with foreign law, in reality international law is a separate body of jurisprudence. For example, it argued that there is a danger of cherry-picking when examining foreign law, but it failed to explain how that problem arises when citing international human rights law. He argued that Pennsylvania’s laws are designed to be different from those in other countries, but could not explain how they could be reconciled with the Union Supremacy Clause’s recognition that treaties are part of the supreme law of the land. Even if it is not legally binding due to federal reservations, it is certainly a compelling source of information.
In any case, despite Vecht’s position, some state courts and judges have found both international and comparative law useful when interpreting state constitutions independently. for example, Commonwealth v. Mattisthe Massachusetts Supreme Judicial Court examined Canadian and British practices in determining that life without parole for juveniles violated the Massachusetts Constitution. Additionally, the majority of the U.S. Supreme Court looks to international law to determine whether a particular practice is cruel or unusual. Lee such a decision Roper vs Simmons.
Indeed, former U.S. Supreme Court Justice Stephen Breyer said judges can learn “what to do and what not to do” by looking to international actors. However, relying on international or foreign sources has caused controversy at the federal level. For example, his colleague Justice Antonin Scalia argued strongly that international and comparative sources should not be cited in domestic decisions.
Mr. Vecht appears to want to nullify even minimal citations of international law at the national level. But even Scalia moved away from Wecht’s extreme positions. Lee He said it could be helpful to consider comparative materials rather than relying on them. People who file lawsuits in the future should be careful.
Martha F. Davis is University Distinguished Professor at Northeastern University School of Law.
Recommended quote: Martha Davis Pennsylvania’s ‘cruel punishment’ decision agrees with international human rights lawSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 30, 2026), https://statecourtreport.org/our-work/analysis-opinion/pennsylvania-cruel-punishments-decision-nods-toward-international-human
