Prison lifers asked Pennsylvania’s top court to change how unconstitutional sentences are undone

Nearly six months after Pennsylvania’s highest court struck down automatic life sentences for second-degree murder, four prisoners have asked the justices to extend that ruling to everyone still serving one — and to change how the state handles unconstitutional punishments going forward.

The court’s landmark ruling in March ended a practice most other states had abandoned or never adopted, and it required judges to weigh a defendant’s role in the crime in every second-degree murder case moving forward. But it left unanswered a consequential question: Does it also apply to the roughly 1,100 people already serving these sentences?

The four requests, filed Thursday in petitions to the court, are a coordinated effort to force an answer.

But the prisoners want more. They are also asking the justices to adopt a statewide rule that any sentence the court strikes down as cruel punishment would automatically become void for everyone already serving it.

As things stand, even after the state Supreme Court has declared a sentence unconstitutional, people whose cases closed long ago have no legal path to a new one until the high court declares its ruling retroactive or lawmakers pass a law that covers them — a process that can take years.

The proposed rule would eliminate that wait.

That broader request is, “in the most literal sense of the word, an extraordinary request for relief,” said Marsha Levick, co-founder of the Juvenile Law Center in Philadelphia, an organization at the center of a similar fight after the U.S. Supreme Court struck down mandatory life-without-parole sentences for juveniles but did not say whether the ruling applied retroactively.

The Pennsylvania Supreme Court’s ruling striking down the mandatory sentences came in the case of Derek Lee, a Pittsburgh man convicted in the 2014 killing of Leonard Butler, who was shot by Lee’s accomplice during a home-invasion robbery. Lee argued the automatic sentence violated the state constitution’s ban on cruel punishments. The justices agreed, saying a judge must weigh each person’s individual role before imposing life without parole.

The court, however, did not say whether the decision applied to people who had already been sentenced. Instead, it put the ruling on hold for 120 days to give lawmakers time to write a new sentencing law and, if they chose, settle that question themselves. The deadline passed July 24 without a new law.

The four prisoners argue lawmakers’ inaction has left the courts as the only branch of state government able to resolve the issue. And, so that prisoners are not stranded like this again, they want future rulings of this kind to take effect for everyone automatically.

“The legislature has made it manifest that they are not going to be prioritizing fixing this constitutional injustice,” said Bret Grote, a lawyer with the Abolitionist Law Center who represented Lee before the state Supreme Court and now represents the four petitioners, along with lawyers from the Pennsylvania Innocence Project and the law firm Phillips Black. “So it is now on the courts to do that.”

A punishment the state constitution forbids, Grote said, cannot be imposed on anyone — including, he argued, people already serving it. A rule recognizing that from the start, he said, would spare prisoners a separate legal fight that he said “only prolongs a constitutional crisis.”

The prisoners filed their requests as what are known as King’s Bench petitions, invoking a power that lets the state Supreme Court take up a case directly, skipping the lower courts, when a matter of public importance cannot wait. In June, the court used that power to require the Philadelphia District Attorney’s Office to notify the state attorney general whenever it declines to oppose a prisoner’s bid to overturn a conviction, giving the attorney general a chance to step in, after allegations of widespread malfeasance.

King’s Bench petitions are rarely filed and even more rarely taken up, said David Rudovsky, a senior fellow at the University of Pennsylvania Carey Law School. Still, he said, these petitions have a real chance: The circumstances are exceptional, the issue is urgent, and courts statewide need a uniform answer.

And the prisoners making the request, he added, present compelling cases.

The prisoners — Cecil Holmes, 70; Lori Ann Lassiter, 62; John Marshall Payne III, 70; and Marsha Scaggs, 62 — have served about 160 years combined.

Of the four, only Payne has been accused of killing the victim himself. At his 1986 trial, prosecution witnesses testified he had admitted to beating Elsie Rishel, 90, with a telephone during a 1981 burglary of her York County home. No physical evidence tied him to the crime, however, and he has long maintained his innocence. The other three were convicted related to crimes in which, prosecutors said, someone else killed the victim.

At least two of the petitioners — Holmes and Scaggs — have faced serious medical problems that underscore the urgency of resolving the question, Grote said.

Holmes, a Philadelphia man, was convicted in 1980 in the death of Joseph Melvin, a taxi driver who was fatally stabbed at a gas station during an attempted robbery the year before. Prosecutors said Holmes had served as an unarmed lookout across the street.

He now has advanced dementia and is confused about where he is, said Jennifer Merrigan, a Phillips Black lawyer who represents Holmes. Without action from the high court, said Merrigan, his future “looks really bleak.”

Two of the petitioners’ cases come from Philadelphia, one from Lawrence County, and one from York County. If the court takes up the petitions, prosecutors in those counties would typically argue the state’s side. Krasner, whose office supported Lee’s challenge and who has called the courts the best path to address resentencing, would be unlikely to fight the two Philadelphia petitions. More than 500 of the roughly 1,100 people serving the sentence were convicted in Philadelphia.

Krasner’s office did not immediately respond to a request for comment Thursday.

Other prosecutors have signaled resistance. For example, John Adams, the Berks County district attorney and communications chair of the Pennsylvania District Attorneys Association, said in August that district attorneys would not concede the ruling applies retroactively without a new sentencing law. Attorney General Dave Sunday, a Republican, backed a Senate bill that would have made most people already serving the sentence eligible for parole only after 35 years. He warned in July that legislative inaction would be “dangerous.”

It was unclear whether Sunday’s office would weigh in on the petitions. The attorney general’s office did not immediately respond to questions Thursday.

Even if the court agrees to hear one or more of the petitions, a decision could be months away, Rudovsky said. That would leave time for lawmakers to act, which some stakeholders predict could be more likely after the Nov. 3 midterm elections.

The Republican-controlled Senate passed a bill in June that would have set a 35-year mandatory minimum for second-degree murder. The Democratic-controlled House passed its own version in July, which would have made people already serving life eligible for release after 30 years. Neither bill, which made it the state parole board’s responsibility to determine whether a prisoner was fit to be released, cleared both chambers.

“We’ve no substantive preference as to whether the remedy is through the courts or the legislature,” Grote said. “If something changes in the legislature and they pass a law that applies to everybody … then we would welcome that.”

If the state Supreme Court considers the petitions and rules in the prisoners’ favor, trial judges would have an opportunity to resentence them and everyone else currently serving the life sentences. But they would do so without sentencing guidelines on Pennsylvania’s books — until lawmakers act.

That could produce starkly different resentencing outcomes in otherwise similar cases, depending on the county where a case is heard and the judge who hears it, some stakeholders have warned.

Levick, the attorney whose work helped end life sentences for juveniles, said that although some people may prefer letting the parole board decide, the high court’s ruling requires judges to weigh individual culpability.

With juvenile lifers, she said, judges “did a great job.”