Helpful review of pending state constitutional litigation over LWOP sentencing for felony murder

This recent State Court Report entry provides a relatively short and quite helpful review of past debates and some present litigation surrounding felony murder.  The full headling of the piece serves as a useful summary: "State Supreme Courts May Abolish Life Without Parole For 'Felony Murder': People serving life in prison in Colorado, Michigan, and Pennsylvania for murder — even though they never meant to kill anyone — are arguing their sentences are unconstitutionally cruel."  I recommend the piece in full for full context, and here are some excerpts (with links from the original):

[T]he felony murder rule, long-ago abolished in England but still alive in 48 states, has persisted as one of American criminal law’s cruelest features.  Shattering norms of criminal liability, felony murder severely punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent....

A recent Pulitzer Prize-winning New Yorker article, for example, tells the story of a man who was miles away and handcuffed when his accomplice in some car burglaries accidentally struck and killed two cyclists as he fled from police. Yet the handcuffed man was convicted of murder and sentenced to mandatory life without parole. His obvious and undisputed distance from the killings — both geographically and with regard to his intent — reduced neither his charges nor, given its mandatory nature, his sentence....

Even more than other facets of criminal law, the rule targets the vulnerable and historically marginalized, exacerbating already deep inequities in our criminal legal system. Felony murder yields massive racial disparities, and is often wielded against people who are suffering from addiction (such as if they share drugs with a friend who overdoses), survivors of domestic abuse (including when women are coerced into criminal conduct by abusive men), and young people (who are often punished for the conduct of adults and authority figures or their friends)....

In the coming months, Colorado, Michigan, and Pennsylvania will decide [state constitutional claims] that challenge life without parole sentences for felony murder.

In Pennsylvania, 70 percent of the more than 1,100 people serving life without parole for felony murder are Black.  One of them, Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life sentence violates the state constitution’s ban on “cruel” punishments.  Lee argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the Eighth Amendment, and that the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional.  In amicus briefings, his claim has unusually broad support from, among others, former prosecutors, the Philadelphia District Attorney’s Office, Pennsylvania Gov. Josh Shapiro, and former state Department of Corrections officials who argue that “life without parole sentences for felony murders are financially insensible” and that “many or even most lifers could be released without incident to their communities.”

Meanwhile, another man convicted of felony murder has made similar arguments to the Colorado Supreme Court, with one key addition.  In 2018, when Wayne Sellers was convicted, state law mandated a life without parole sentence.  But Colorado changed the law in 2021, and reduced the sentence for future felony murder convictions to a range of 16 to 48 years — affording both greater leniency and sentencing discretion.  The change did not apply to Sellers, who now asks the state high court to rule that his sentence is unconstitutional.  During oral arguments [last week], some justices appeared hesitant to “substitute [their] judgment for the legislature[’s]” — despite the court’s previous acknowledgment that sentencing reforms are a key indicator of the state’s evolving standards of decency that are central to a constitutional excessive punishment claim.

Finally, the Michigan Supreme Court — which recently surpassed federal case law to prohibit mandatory life without parole sentences for 18 year olds — has asked for briefs on whether “mandatory life without parole for felony murder” violates the state constitutional ban on cruel or unusual punishments.  That case is brought by Edwin Langston, a now-elderly man who in 1976 was held responsible for a murder committed by someone else during a robbery, and for which Langston was not even present.

There remain strong arguments that the Eighth Amendment forbids consigning people to die in prison based on felony murder convictions, even if the current U.S. Supreme Court majority is unlikely to embrace them.  But state constitutional law provides a path to justice that doesn’t require reconciling inconsistent and flawed precedent upholding extreme prison terms for modest crimes.  State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder.