Pennsylvania lawmakers must address sentencing for second-degree murder [column] | Local Voices

As you read this, somewhere in Pennsylvania a burglary is being committed.

If the offender is caught and convicted, there are clear legal guidelines for the sentence that he should receive. The Pennsylvania Sentencing Code sets limitations on the minimum and maximum sentences, and the sentencing guidelines furnish the presumptive range of the minimum sentence.

But if something goes wrong during the burglary and the homeowner (or an innocent bystander or a responding police officer) is killed, then the offender has committed not just a burglary, but also second-degree murder. Second-degree murder is a killing committed while the offender was perpetrating another serious felony, such as burglary, robbery, rape, arson or kidnapping. These predicate crimes are so dangerous that any resulting death is classified as murder even if the offender does not specifically intend for the death to occur.

Even though second-degree murder is much, much more serious than a regular burglary, there are currently no laws, guidelines or even official suggestions for the minimum sentence that an offender should receive — none. The sentencing judge has discretion to impose a minimum sentence of as little as a single day in jail.

It wasn’t always this way. Until a few months ago, the mandatory penalty for second-degree murder was life imprisonment without the possibility of parole. But on March 26, in the case of Commonwealth v. Derek Lee, the Supreme Court of Pennsylvania ruled that a mandatory life sentence for second-degree murder violates the Pennsylvania constitution.

Recognizing the disorder and uncertainty that this ruling would create, the state’s highest court granted the Pennsylvania General Assembly 120 days to create a new sentencing scheme for second-degree murder.

Unfortunately, the 120-day deadline expired July 24 without any legislative fix.

The Republican-led Pennsylvania Senate passed, with some Democratic votes, a bill that addressed the Supreme Court’s concerns while maintaining appropriate accountability for offenders.

The Pennsylvania House, however, has not taken up the Senate’s bill. Instead, the Democratic-led House passed a bill that largely defers to the Pennsylvania Sentencing Commission to craft a sentencing scheme.

To date, the General Assembly has not reconciled its competing visions and has thus failed to send legislation to Gov. Josh Shapiro’s desk setting new sentencing parameters.

The Pennsylvania Supreme Court presumed that the General Assembly would act within the 120-day window, so it did not provide any guidance for how a judge should formulate a minimum sentence for second-degree murder cases.

Every other crime that exists in Pennsylvania — from retail theft to trespass to forgery — has either a mandatory sentence or sentencing guidelines that the court must consider. But any defendant currently facing second-degree murder charges and anyone who commits second-degree murder between now and the enactment of a new statute will be sentenced in accordance with the unbounded discretion of the presiding judge.

The penalty for second-degree murder should not be left to the individual discretion of hundreds of Courts of Common Pleas judges, nor should it emanate down from our appellate courts. The sentencing scheme should be crafted by the representative branch of government — the General Assembly.

In formulating that sentencing scheme, the General Assembly should not buy into the misconception that people who commit second-degree murder are less dangerous or less culpable than those who commit other categories of criminal homicide. Oftentimes, a conviction for second-degree murder represents a compromise verdict. The charge of first-degree murder requires the jury to unanimously decide beyond a reasonable doubt that the defendant had the specific intent to kill, whereas second-degree murder does not require the jury to agree upon the specific thought processes of the killer.

I am a prosecutor who focuses on violent felonies. I have seen the full gamut of criminal behavior. There are, to be sure, some “getaway drivers” and other accomplices who are convicted of second-degree murder, but oftentimes those who are convicted of second-degree murder are the principal actors in causing the victim’s death. And, in my experience, those who commit second-degree murder are among the most dangerous offenders. Remember, one cannot be found guilty of second-degree murder unless one was attempting to commit or actually committing one or more of the most depraved felonies that exist within the Crimes Code. That a killing happens during the course of a rape or a kidnapping certainly does not mitigate the offender’s dangerousness or blameworthiness. These realities must be taken into account by the General Assembly.

I also work with crime victims and their families every day. I see the generational damage that violent crime causes. It is hard to overstate how uncertainties in the legal system cause further stress and harm to those victimized by crime. The circle of victims created by each second-degree murder case deserves to know that the courts will impose meaningful and predictable accountability on the perpetrator.

The legislation passed by the Pennsylvania Senate in June, Senate Bill 1400, struck an appropriate balance. It calls for a 35-year mandatory minimum sentence for most second-degree murder convictions, while allowing the defendant to submit mitigation evidence that would trigger a shorter, 10-year mandatory minimum. For certain particularly heinous cases (such as where the victim is a young child or a police officer), life imprisonment would be the mandatory penalty.

Senate Bill 1400 provides, at minimum, the appropriate framework for a new sentencing scheme and should be the starting point for further legislative action.

The proper penalty for second-degree murder is certainly important enough to warrant the General Assembly’s prompt and thoughtful attention. Until this problem is appropriately fixed, there will continue to be a gaping hole in Pennsylvania’s justice system.

First Assistant District Attorney Travis S. Anderson has served as a prosecutor in the Lancaster County District Attorney’s Office for 12 years.

First Assistant District Attorney Travis S. Anderson has served as a prosecutor in the Lancaster County District Attorney’s Office for 12 years.

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