The Future Sentencing of Juvenile Homicide Offenders

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By Felicia Dusha, Staff Writer

Is a fifty year to life sentence imposed upon a juvenile whose crime reflects transient immaturity a de facto life without parole sentence? In 2019, this issue went before the Pennsylvania Supreme Court in Commonwealth v. Felder.[1]On February 23, 2022, two years after Felder had brough the case to the Pennsylvania Supreme Court and while the United States Supreme Court decision in Jones v. Mississippi was made, the Pennsylvania Supreme Court issued its decision in Felder—a decision that has dramatically changed the sentencing of juvenile lifers in Pennsylvania.  

On April 22, 2021, Jones held that, contrary to the Pennsylvania Supreme Court’s understanding, Miller v. Alabama,[2] which prohibited mandatory life sentences for juvenile homicide offenders, “did not require a sentencing court to make a separate factual finding that the juvenile’s act was the product of his or her permanent incorrigibility before imposing a sentence of life without the possibility of parole.”[3]

In Felder, Appellant’s counsel argued that a fifty year to life sentence constituted a de facto life sentence where the juvenile demonstrated the capacity for rehabilitation.[4] The prosecution also argued that was a life sentence prohibited under Miller, however, a 40 year to life sentence was not prohibited. Based on Jones, the Felder Court held that a de factolife without parole sentence imposed upon a juvenile does not violate the Eighth Amendment’s prohibition of cruel and unusual punishment as long as it is a product of a discretionary sentencing system that considers the facts of the case and the juvenile’s characteristics, such as youth.[5] Therefore, Mr. Felder’s sentence of 50 years to life for the fatal shooting of another youth when Mr. Felder was only 17 years old, according to the Pennsylvania Supreme Court, is constitutional.[6]

The Felder Court further concluded that Jones compelled abrogating Commonwealth v. Batts (“Batts II”)[7]. Batts II established procedures for implementing the United States Supreme Court’s decisions in Miller and Montgomery v. Louisiana,[8] which applied Miller retroactively. The Batts II procedures included a requirement that for a sentence of life without parole to be proportional as applied to a juvenile homicide offender under the Eighth Amendment’s prohibition against cruel and unusual punishment, a sentencing court must first find that the juvenile is entirely unable to change, beyond rehabilitation.[9] Furthermore, Batts II placed a higher burden on the Commonwealth by adopting a presumption against life-without-parole for juveniles and requiring the Commonwealth to find a juvenile incapable of rehabilitation in order to impose a sentence of life without parole.[10]

By overruling Batts II, and, therefore, eliminating procedural protections for sentencing juvenile homicide offenders, the Jones holding has, according to Justice Wecht in his dissent, quashed Pennsylvania’s once near-complete model for sentencing juvenile homicide offenders[11]. Justice Wecht disagreed with the Court’s decision to abrogate the procedures set forth in Batts II and believed that it was not necessarily mandated by Jones, as he stated:

“Batts II is not a single-issue precedent of narrow applicability. It is a complex, multi-faceted decision, one that drew authority from numerous sources, establishing a series of procedural protections for juveniles. Before unilaterally deciding that no aspect of that complicated decision can remain, I would first consider the informed input of interested parties.”[12]

On March 9, 2022, Mr. Felder’s counsel filed an Application for Reargument from the February 23, 2022, decision of the Pennsylvania Supreme Court.[13] In this Petition, counsel argued that the Court misinterpreted Jones.[14] While Jones gave broad discretion to the judge in sentencing a juvenile for murder, it also affirmed the constitutionally mandated holding of Miller and Montgomery that even when discretionary, a life without parole sentence may not be imposed upon a youth whose crime reflects transient immaturity.[15]

Likewise, in its Answer, the Commonwealth agreed with Mr. Felder’s counsel that the Court misinterpreted Jones.[16] The Commonwealth argued that even if Jones abrogated Batts II, the Pennsylvania Supreme Court “erred in concluding that Jones denied defendant the possibility of relief and rendered irrelevant the issue of de facto life sentences.”[17] Therefore, both Mr. Felder’s counsel and the Commonwealth argued that the Felder Court misinterpreted Jones and did not actually address the issue 50 years to life is a de facto life sentence.[18]

However, on April 12, 2022, the Pennsylvania Supreme Court denied reconsideration—thereby leaving the future sentencing of juvenile lifers uncertain. In consequence, the Court’s decision in this matter raises the question, how will Pennsylvania courts ensure that juvenile homicide offenders do not receive inappropriate life without parole sentences?

Shortly after the Court denied reconsideration, I spoke with one of Mr. Felder’s attorneys, Attorney Bradley S. Bridge,[19] regarding the Felder holding and what it means for the sentencing and resentencing of juvenile lifers in Pennsylvania. Mr. Bridge, of the Defender Association of Philadelphia, has handled a multitude of cases involving the resentencing of juvenile lifers after Miller and Montgomery, including Batts I and II. 

Mr. Bridge explained that going forward, there are two groups of people that Felder will impact. “First, are all the people whose crimes arose after 2012 when Miller was decided. Felder suggests that when the people who are arrested today, last week, last month go forward to sentencing the protections that the Pennsylvania Supreme Court established in Batts II no longer apply.” In addition to abrogating the Batts II procedure for requiring a juvenile to be found incapable of rehabilitation, “there may not be notice given to a defendant that the prosecutor intends on seeking life without parole, or that the judge intends on imposing life without parole. The burden of proof that was established in Batts II, which required that the prosecutor establish beyond a reasonable doubt irreparable corruption or irretrievable depravity, no longer applies. The presumption that life without parole is to be disfavored no longer applies. So, all those people going forward are going to have a completely new situation for which there are no rules, protocols, or guidelines to help structure that.”

As to the second group of people impacted by Felder, Mr. Bridge said that similarly to the people arrested after Miller, “you have all the people whose sentencings that arose before Miller are coming back for resentencing. There were 525 in Pennsylvania prior to the Miller decision. I think about 470 or so have already been resentenced.” Therefore, there are around 50 people in the resentencing category who previously received mandatory life without parole sentences that are now unconstitutional under to Miller and Montgomery. These individuals “are going to have the same problems as the newer cases going forward,” Mr. Bridge stated.

According to Mr. Bridge, in each of the two situations, “the judge, at least according to Jones and reinforced by Felder, needs to simply acknowledge that the person is a juvenile and then any number going forward would apply. The judge could give a life without parole sentence and the acknowledgement that the person was a juvenile, at least it seems consistent with the eighth amendment, that that would be upheld by the Pennsylvania Courts. Whether it is consistent with Article I, Section 13 of the Pennsylvania Constitution, the cruel punishment clause, is a separate question.” The JonesCourt acknowledged that its holding does not preclude States from imposing additional sentencing limits in cases involving juvenile offenders convicted of homicide.[20]

Concerning whether the lack of procedural protections for sentencing juvenile homicide offenders to life without parole violates Pennsylvania’s cruel punishment clause, Mr. Bridge addressed Justice Donohue’s concurrence in Felder as well as her concurrence of the denial of the reargument petition. “Justice Donohue acknowledged that this is an issue that will need to be revisited. It was originally raised in Batts I and Batts II, and it will have to come back again in subsequent decision.” 

Pennsylvania’s prohibition against cruel punishment will play a significant role going forward, as Mr. Bridge said, “there are several things going forward. Let’s say I’m going to sentencing tomorrow for somebody whose crime arose before 2012, they are coming back and have to have a brand-new sentencing hearing. There are two things that I would argue. First, I would argue again that the Pennsylvania Constitution is broader than the United States Constitution. The Pennsylvania Constitution prohibits cruel punishment where the United States Constitution prohibits cruel and unusual punishment and is therefore, more narrow just simply on its face. While Pennsylvania Courts have said that the two punishment clauses are co-extensive, that was never considered in any juvenile cases.”

Commonwealth v. Zettlemoyer was one of the first cases where the Pennsylvania Supreme Court said the cruel punishment clause and cruel and unusual punishment clause are co-extensive.[21] However, as Mr. Bridge said, Zettlemoyer “did not consider it in the context of a juvenile, and there is a long tradition in Pennsylvania of juveniles have different rules and are entitled to greater protections.” Mr. Bridge stated that this is the argument that he would raise if he were coming back tomorrow for a new sentencing hearing. But should a judge impose a 50 years to life or a life without parole sentence for a new sentencing hearing, Mr. Bridge stated that he would argue in that circumstance that it is an abuse of discretion on appeal. “There actually have been several cases of sentencings in such context on appeal the superior court struck them down as being an abuse of discretion, so it’s actually a meaningful review in the superior court for that standard.” 

Furthermore, “there are a number of cases that the Pennsylvania Supreme Court had held open pending the decision in Felder and presumably now with the resolution of Felder will be sent back to the Superior Court or the trial courts to reconsider in light of Felder. At that point people could interpose new issues. That might be how Felder himself plays out.”

As a result of Felder, a de facto 50 year to life sentence does not necessarily violate the Eighth Amendment. Furthermore, there are no longer any procedural protections to prevent a juvenile homicide offender from receiving an inappropriate life without parole sentence. Therefore, “a life sentence in any case involving a murder committed by a juvenile does not necessarily violate the Constitution.”[22] When we consider that life sentences should be reserved for only the very worst cases which involve defendants, we are not just mad at, but we are afraid of, does a minor who demonstrates the capacity for rehabilitation and whose crime reflects transient immaturity really fit this category? Ultimately, we must question whether Pennsylvania has established a rational scheme for sentencing juvenile homicide offenders.

[1] Commonwealth v. Felder, 269 A.3d 1232, 1234 (Pa 2022).

[2] Id. at 1234 (quoting Miller v. Alabama 132 S. Ct. 2455 (2012)).

[3] Id. at 1243 (quoting Jones v. Mississippi, 141 S. Ct. 1307, 1323 (2021)).

[4] Felder, 269 A.3d at 1241.

[5] Id. at1246.

[6] Id. at 1239, 1246.

[7] Id. at 1232 (quoting Commonwealth v. Batts, 163 A.3d 410 (Pa 2017)) (Batts II).

[8] Id. at 1234 (quoting Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

[9] Commonwealth v. Batts II, 163 A.3d 410, 457 (Pa 2017).

[10] Id. at 464.

[11] Felder, 269 A.3d at 1251.

[12] Id. at 1253. (Wecht, J. Dissent)

[13] Commonwealth v. Felder, 269 A.3d 1232 (Pa 2022) Appellant’s Application for Reargument at 1

[14] Id. at 4.

[15] Id.

[16] Commonwealth v. Felder, 269 A.3d 1232 (Pa 2022) Commonwealth’s Answer to Application for Reargument at 1

[17] Id.

[18] Id.

[19] I would like to thank Bradley S. Bridge, Esquire, for his contributions to this article.

[20] Jones v. Mississippi, 141 S. Ct. 1307, 1323 (2021).

[21] Commonwealth v. Zettlemoyer, 454 A.2d 937, 967 (Pa 1982).

[22] Felder, 269 A.3d at 1252

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