Should life without parole be mandatory for second-degree murder? The Pa. Supreme Court is weighing the issue.

Pennsylvania’s Supreme Court justices on Tuesday debated whether the state’s mandatory sentence of life without parole for second-degree murder is constitutional — an issue that has long been eyed for reform by a mix of advocates and some legislators.

Under state law, people who participate in a deadly felony — such as a robbery — can be charged with the crime, also known as felony murder, even if they didn’t commit the killing or intend for anyone to die. A conviction leads to an automatic life sentence, and more than 1,100 people are serving that penalty in Pennsylvania, which is one of only two states nationwide to mandate incarceration for life for felony murder convictions.

Efforts to challenge the statute and the penalty have been persistent but unsuccessful over the years. The issue landed before the state’s high court this week because an attorney for one of those defendants — Derek Lee, who took part in a fatal robbery in Pittsburgh in 2014, but whose coconspirator committed the killing — filed an appeal saying that the penalty is unduly cruel.

If the justices agreed with that assessment, they gave no clear indication of it Tuesday. And they directed pointed questions toward Lee’s attorney, Bret Grote, asking what remedy he expected them to provide; suggesting the matter may be more appropriate for legislators rather than the courts to consider; and raising potential procedural issues that might arise if they agreed to strike down Lee’s sentence.

“Is there a way we can give your client relief here without rewriting the sentencing code?” asked Justice P. Kevin Brobson, who, like others, pointed out that the drafting of those provisions — as well as other aspects of state law — are matters typically left to the legislature.

Legislators have debated Pennsylvania’s sentence for felony murder for years. Beyond the challenge to the sentence as potentially cruel, advocates have pointed out that those imprisoned for the crime are disproportionately Black, that about half are from Philadelphia, and that hundreds have already served decades in prison, putting them beyond the age at which they’re likely to commit another crime.

In some cases, people convicted of second-degree murder have contended they were simply lookouts or otherwise minor participants in crimes that unexpectedly turned deadly. And in certain instances, primary perpetrators received more lenient sentences and were released from prison before their accomplices.

Grote has been among the most vigorous advocates for change. He and the organization he works for, the Abolitionist Law Center, filed a lawsuit in 2020 contending that the state’s ban on parole eligibility for felony murder was unconstitutional. The Supreme Court rejected that appeal two years later.

In this instance, Grote argued that the penalty itself — and the fact that it is mandatory upon conviction — violates the state and federal constitutions’ protection from cruel punishment. And he had some unexpected allies, including Gov. Josh Shapiro, whose office filed a brief in support of Grote’s position.

“[U]nder current law, an offender who points a gun to a person’s head and pulls the trigger receives the same mandatory life sentence as the getaway driver of a robbery where a coconspirator unexpectedly shot and killed someone,” Shapiro’s filing said. “Both offenders should be punished severely, but they should not be punished the same. This sentencing scheme is not only unjust; it is unconstitutional.”

The justices, however, raised a variety of questions about whether it was appropriate for them to intervene — and what might happen if they did.

Several of the justices raised a variation on the same technical issue, pointing out that if they effectively eliminated a mandatory sentence for the crime, there would be no sentencing guideline left in its place. And they questioned how or if they could correct that, since the issue of writing sentencing recommendations is typically left to state lawmakers.

Justice Kevin Dougherty also questioned whether striking down a sentence in this case would require resentencing all 1,100 people incarcerated for the crime.

And after Grote said judges should be able to impose different sentences based on the facts of each case, Justice Christine Donohue seemed to suggest that the heart of the issue may lie with the language of the law, and how or whether someone should be convicted of second-degree murder in the first place — rather than with the penalty of life without parole, a sentence that both state and federal courts have typically upheld as legal.

The matter now rests in the hands of the justices, who gave no timeline of when they may issue a ruling. Most cases typically take at least a few weeks, if not several months, to be resolved.