OPINION

Mangino: Time is right to fix felony murder punishment

MATTHEW T. MANGINO
Matthew T. Mangino

Pennsylvania has not carried out an execution in 22 years. More than 58 years have passed since the last prisoner in the Commonwealth was executed involuntarily.

Although Pennsylvania might not be carrying out executions - Gov. Tom Wolf has declared a moratorium on executions - Pennsylvania has thousands of de facto death sentences. There are about 5,200 state prisoners serving what has been referred to as “death-by-incarceration.”

What is death-by-incarceration? Offenders condemned to life in prison without the possibility of parole.

Under Pennsylvania’s sentencing scheme, offenders - other than lifers - are sentenced to a minimum and a maximum term of sentence. The maximum must be at least twice the minimum.

In Pennsylvania, once an inmate has served her minimum sentence she is eligible for parole. Release from prison is determined by the parole board. Once released the offender is supervised on parole until the expiration of her maximum sentence.

A life sentence in Pennsylvania has no minimum - there is no opportunity for parole - life means life in Pennsylvania.

There isn’t much sympathy for an offender who has been sentenced to life without parole for killing another human being. However, in Pennsylvania more than 20% of lifers didn’t kill anyone. Those offenders were convicted of second-degree murder - felony murder.

Felony murder is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b) providing ”(C)riminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” The law in Pennsylvania is clear, if a death occurs during the commission of a felony, the death is considered murder and anybody who participated in the felony is equally responsible for the murder, regardless of whether they had any criminal intent to harm or cause death.

The concept of felony murder can produce bizarre outcomes. For instance, two teens go into a convenience store unarmed. They pretend to have guns and ask the store owner to turn over the cash. The owner pulls a gun and kills one of the would-be robbers. The surviving robber can be convicted of Second Degree Murder and sentenced to life in prison, even though he had no intent to kill and no means to kill.

Pennsylvania lawmakers have tried to provide hope for those serving life sentences. A recent proposal would have allowed lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder. The proposal never made it to the floor for a vote.

Now a lawsuit has been filed on behalf of six people convicted in their late teens of “felony murder,” arguing that prohibiting parole consideration for felony murder is cruel and unconstitutional under Pennsylvania law. Article I, Section 13 of the Pennsylvania Constitution prohibits “cruel punishment.” Pennsylvania’s constitutional provision predates the Eighth Amendment to the U.S. Constitution.

According to the lawsuit, the plaintiffs are three women and three men who have served between 23 and 47 years in Pennsylvania prisons. Each was sentenced to life after a felony murder conviction. None committed or intended to commit any killing in the course of the crime.

The Pennsylvania Board of Probation and Parole has denied the plaintiffs parole consideration through 61 Pa.C.S.A. 6137(a) that prohibits individuals serving life sentences from parole eligibility. The plaintiffs seek to show the parole statute is “grossly disproportionate to any legitimate penological interest as applied to individuals who did not take a life or intend to take a life, and must be struck down.”

With essentially no death penalty in Pennsylvania - and what appears to be the slow undoing of the death penalty nationwide - it is ridiculous to impose the same sentence of life in prison without parole on an individual who commits planned premediated murder and someone who is along for the ride. The legislature must act to provide a sense of hope for those serving a felony murder life sentence and provide the option of parole for those sentenced in the future.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.