Identity And Interest Of Amici Curiae1

IDENTITY AND INTEREST OF AMICI CURIAE1 Amici curiae are The Sentencing Project; the Boston University Center for Antiracist Research; Fair and Just Prosecution, a Project of the Tides Center; and FAMM (previously known as Families Against Mandatory Minimums)— organizations that engage in scholarship and/or advocacy related to criminal law, sentencing policies, and racial injustice. Amici advance their missions in several ways, including through amicus filings in this Court and other courts throughout the country. Amici are filing this brief to urge the Court to grant Derek Lee’s Petition for Allowance of Appeal because Pennsylvania’s lifetime ban on parole eligibility for individuals convicted of felony murder results in sentences that are disproportionate, racially biased, and unconstitutional. I. INTRODUCTION AND SUMMARY OF ARGUMENT In Pennsylvania, some 1,100 people are serving life-without-parole sentences for felony murder, including many who did not take a life, did not intend to take a life, and had no expectation that a life would be taken.2 That lifetime ban 1 No party or counsel for any party authored this brief in whole or in part, and no monetary contribution intended to fund the preparation or submission of this brief was made by such counsel or any party. 2 As Petitioner explains, an individual’s sentence is the period of time—here, the duration of his or her natural life—for which an individual is remanded to the Commonwealth’s custody. Pet. at 26; see 18 Pa.C.S. §§ 2502(b), 1102(b). By contrast, Petitioner’s permanent, categorical disqualification from parole consideration is not part of his actual, formal sentence; it is, instead, the result of a different statute, Section 6137(a), which governs parole eligibility and prohibits the Parole Board from even considering a grant of parole for anyone serving a sentence of life imprisonment. § 6137(a)(1). Nevertheless, for simplicity’s sake, this brief will sometimes -1- on parole eligibility, which effectively guarantees a person will die in prison, is unconstitutional. Petitioner amply shows why review is warranted, including (most significantly) because Section 6137 violates the Cruel Punishments Clause of the Pennsylvania Constitution. Amici agree with that conclusion and write here to explicate two related points. First, because Section 6137 is constitutionally infirm under the Eighth Amendment, it therefore also, a fortiori, fails under the more robust protection afforded by the Cruel Punishments Clause. See Pa.R.A.P. 1114(b)(5). Second, the question of Section 6137’s constitutionality is of exceptional public importance, not only because of the severity of the punishment it imposes, but also because that punishment falls unevenly across racial lines: at last count, approximately 80 percent of these 1,100 individuals currently serving life-without-parole sentences in this Commonwealth are people of color. See Pa.R.A.P. 1114(b)(4), (5). For these reasons, and those set forth in the petition for allowance of appeal, this Court’s review is manifestly needed. describe Section 6137(a)(1)’s disqualification from parole eligibility as a “life-without-parole sentence.” That term is intended to refer to Section 6137(a)’s permanent ban on parole eligibility rather than their actual, court-imposed “sentence” of life imprisonment. -2- II. LEGAL FRAMEWORK A. Eighth Amendment The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Proportionality is central to the analysis of sentencing practices under that proscription. Montgomery v. Louisiana, 577 U.S. 190, 206 (2016). When addressing categorical challenges to the proportionality of a sentence, like the one lodged by Petitioner, courts employ a two-pronged approach. They first assess “objective indicia of society’s standards, as expressed in legislative enactments and state practice” to determine whether there is a “national consensus…against” the imposition of the challenged penalty on the class sought to be excluded from the penalty. 3 Roper v. Simmons, 543 U.S. 551, 563 (2005). Second, courts must consider “in the exercise of [their] own independent judgment” whether the punishment in question violates the Constitution. Id. at 564. That involves weighing the culpability of individuals in the challenged class against the severity of the offense in question and determining 3 Though amici address only the U.S. Constitution, this Court considers related case law from other States when determining whether Pennsylvania’s constitution provides greater protections than its federal counterpart, as explained in the Petition. Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991). -3- whether the challenged punishment serves legitimate penological goals. Id. at 568, 571-72. B. Parole Eligibility and Felony-Murder Convictions Under Pennsylvania’s felony-murder rule, any accidental, reckless, negligent, or otherwise unintended killing during the commission of certain enumerated felonies constitutes second-degree murder and subjects the defendant to a mandatory life sentence. 18 Pa.C.S. §§ 2502(b), 1102(b). A person who acts as an accomplice to the underlying felony may likewise be convicted of felony murder and subject to the same term of imprisonment. Id. § 2502(b). The felonymurder rule represents one of the very few instances in criminal law where the element of intent is waived: to secure a felony-murder conviction in Pennsylvania, the only criminal intent the Commonwealth needs to prove is that the defendant intended to commit the felony during which a death occurred. See Commonwealth ex. rel. Smith v. Myers, 261 A.2d 550, 555 (Pa. 1970). Because 61 Pa.C.S. § 6137(a)(1) makes all those serving a life sentence categorically ineligible for parole, every individual convicted of felony murder in this Commonwealth—including those who did not take a life, did not intend to take a life, and had no expectation that a life would be taken—will (absent executive clemency) remain in prison from conviction until death. -4- III. STATEMENT OF REASONS FOR ALLOWANCE OF APPEAL As Petitioner persuasively shows, review is warranted on several of the grounds enumerated in Rule 1114(b). Pet. at 9, 25, 36. Amici write to underscore two of those grounds. First, Section 6137(a) cannot be squared with any legitimate penological principles, as demonstrated by the national consensus against similar sentencing paradigms—and review is therefore warranted under Rule 1114(b)(5). Second, review is warranted under Rule 1114(b)(4) because the disproportionate racial impact of Section 6137(a)(1) raises grave concerns regarding the fairness, equity, and evenhandedness of the Commonwealth’s penal system—an archetypal issue of “substantial public importance.” A. Review Is Warranted Under Pa.R.A.P. 1114(b)(5) Because the Petition Involves the Constitutionality of Pennsylvania’s ParoleEligibility Statute for Felony Murder. Petitioner raises a fundamental question involving the constitutionality of Pennsylvania’s imposition of life without parole for someone convicted of felony murder. There is good reason to find that Section 6137 violates the Pennsylvania Constitution because the Eighth Amendment, which is narrower than its Pennsylvania counterpart, categorically prohibits imposing a life-without-parole sentence on an individual who did not intend to kill, for two interrelated reasons. First, that sentence runs contrary to evolving standards of decency as measured by developments in other States. Second, imposing a sentence that all but guarantees -5- a person will die in prison is neither proportionate given the lesser culpability of someone who commits felony murder nor justified by any penological purpose. 1. Pennsylvania’s Sentencing Scheme Is Egregiously out of Step with the National Consensus. The constitutional problems in this case stem from a sentencing structure that is nearly unique in its punishment of individuals who did not take, or did not intend to take, the life of another. Indeed, only eight other States mandate lifewithout-parole sentences for all people convicted felony murder. And one of those States, Michigan, requires proof that the defendant possessed a culpable mental state vis-à-vis the killing specifically, not merely the underlying felony. 4 As a result, only seven other States, which together account for just nine percent of the total U.S. population, 5 possess a sentencing regime for felony murder that resembles Pennsylvania’s. And, most strikingly of all, 24 States and the District of Columbia never mandate the imposition of a life-without-parole sentence for felony-murder defendants who did not kill, intend to kill, or foresee a killing. 6 As this survey shows, the practice at issue here is rarer than other punishments invalidated by the Supreme Court on Eighth Amendment grounds. 4 People v. Aaron, 299 N.W.2d 304, 329 (Mich. 1980). 5 See 2020 Census Results Data Profiles, U.S. Census Bureau, https://data.census.gov/cedsci/profile?q=United%20States&g=0100000US. 6 These States are Alabama, Alaska, Colorado, Georgia, Kansas, Maine, Maryland, Missouri, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. -6- Compare, e.g., Miller v. Alabama, 567 U.S. 460, 483-84 (2012) (invalidating mandatory life-without-parole sentences for juveniles convicted of homicide offenses even though 29 jurisdictions allowed the practice). Moreover, the recent trend in state sentencing regimes evidences a shift away from Pennsylvania’s approach. For example, in 2018, California passed SB 1437, which dramatically redefined felony murder for accomplices. Now, to be convicted as an accomplice for felony murder (i.e., someone who was involved in the offense but did not kill), an individual must have either intended to kill or been both a “major participant” in the underlying felony and acted with “reckless indifference to human life” in connection with the killing. In 2021, Colorado eliminated its mandatory life-without-parole sentence for felony murder, substituting in its place a sentence of 16 to 48 years in prison.7 At the same time, Colorado also removed two of the conditions required for a successful affirmative defense to felony murder, permitting more individuals to meet the defense’s requirements. 8 And in May 2023, Minnesota passed a law stating that prosecutors cannot seek a conviction for felony murder unless a person was a major participant in the underlying felony and acted with extreme indifference to human life. 9 7 Colo. Rev. Stat. § 18-3-102. 8 S.B. 21-124, 73rd Gen. Ass., 2021 Reg. Sess. (Colo. 2021). 9 MN SF2909, https://www.revisor.mn.gov/bills/bill.php?b=Senate&f=SF2909&ssn=0&y=2023. -7- The atypicality of Pennsylvania’s approach is also apparent when measured against the nationwide approach to felony murder generally. Two States (Hawaii and Kentucky) have no felony murder law at all. 10 Six States other than Michigan, discussed supra, require a culpable mental state for all felony-murder convictions; New Hampshire, for example, requires proof of extreme indifference to human life. 11 Still other States afford defendants an affirmative defense to a felony-murder prosecution where the defendant (1) did not commit the killing; (2) was not armed with a dangerous weapon; (3) reasonably believed that no other participant was armed; and (4) reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily harm.12 Pennsylvania provides no such defenses. These statistics reflect the fundamental truth of felony-murder regimes like Pennsylvania’s: they lead to disproportionate punishments for people who neither killed nor intended to kill or seriously harm anyone. Massachusetts’ Supreme 10 Ky. Rev. Stat. Ann. § 507.020; Haw. Rev. Stat. § 707-701. 11 N.H. Rev. Stat. Ann. § 630:1-b. Apart from Michigan, the six other States with a mens rea requirement are: Delaware, 11 DE Code § 635(2); Massachusetts, Commonwealth v. Brown, 81 N.E.3d 1173, 1178 (Mass. 2017); New Hampshire, N.H. Rev. Stat. Ann. § 630:1-b; New Mexico, State v. Griffin, 866 P.2d 1156, 1162 (N.M. 1993); North Dakota, N.D. Cent. Code § 12.1-02-02.1; and Vermont, State v. Baird, 175 A.3d 493, 496 (Vt. 2017). 12 E.g., Me. Stat. tit. 17-A § 202; State v. Rice, 683 P. 2d 199, 123-24 (Wash. 1984); see also Colo. Rev. Stat. § 18-3-103(1.5); Conn. Gen. Stat. § 53a-54c; N.D. Cent. Code § 12.1-16-01. -8- Judicial Court recognized this fact in its 2017 decision in Commonwealth v. Brown, 81 N.E.3d 1173 (Mass. 2017), in which it limited first-degree murder convictions to those in which the government can prove malice—i.e., intent to kill, intent to cause grievous bodily harm, or intent to do an act that a reasonable person would have known created a plain and strong likelihood of death. Id. at 1196 (Gants, C.J., concurring) (“[A] defendant who commits an armed robbery as a joint venturer will be found guilty of murder where a killing was committed in the course of that robbery if he or she knowingly participated in the killing with the intent required to commit it….” (emphasis added)); id. at 1191 (“[W]here the defendant’s only participation in the crimes was to provide a firearm and hooded sweatshirts to his friends, knowing they intended to use them in the commission of an armed robbery, convictions of murder in the first degree on the theory of felony murder are not consonant with justice.”).13 By contrast, in Pennsylvania, the mere act of supporting or undertaking a felony temporally associated with a homicide, even when the death is not intended or reasonably foreseeable, can support a murder conviction, eliminating the 13 That is not to say that these mens rea requirements are alone sufficient to protect against disproportionate punishments. See Amici Brief of Boston University Center for Antiracist Research et al., Commonwealth v. Fisher, Dkt. No. SJC-13340 (Mass. Apr. 14, 2023). Still, Pennsylvania stands virtually alone in the breadth and severity of its felony-murder rule. -9- government’s obligation to prove core elements of the common-law offense of murder: that the defendant committed the act and that he intended to do so. It is thus highly doubtful that an individual like Petitioner Lee (whose codefendant committed the homicide underlying his conviction) would have received a death-by-incarceration sentence had his crime occurred in almost any other State in the nation. That fact weighs heavily in favor of a finding that Pennsylvania’s felony-murder sentencing regime is unconstitutionally cruel and unusual. Were that not enough, consider the lay consensus against Section 6137(a) in this Commonwealth. An overwhelming 79 percent of Pennsylvanians in 2023 support changing the Commonwealth’s mandatory life-without-the-possibility-ofparole sentence for felony-murder convictions. Susquehanna Polling and Research, Pennsylvania Statewide Omnibus Telephone Poll (February 2023), https://famm.org/wp-content/uploads/Toplines-PAStatewide-Omnibus-FAMMFeb2023.pdf (showing 79 percent of respondents in favor of the position that “judges [should] be allowed to weigh the individual circumstances of each person involved in a felony murder, so that individuals who participate in a felony murder–but did not intend to injure or kill someone during the commission of a crime–can be sentenced differently, and less harshly, than those that did”). These developments underscore that the arc of history is bending further and further away from Pennsylvania’s practice of mandating perpetual incarceration for - 10 - those convicted of felony murder. Review is needed to align Pennsylvania jurisprudence with the national consensus. 2. Sentencing an Individual Convicted of Felony Murder to Life Without Parole Violates the Eighth Amendment’s Proportionality Principle. Even apart from consideration of the national consensus against the sentencing practice challenged here, Pennsylvania’s parole-eligibility statute runs afoul of the Eighth Amendment because it imposes sentences that are disproportionate and do not serve any legitimate penological purpose. Review is manifestly needed to remedy that result. a. The Rationale Behind Felony-Murder Liability Does Not Justify a Lifetime Ban on Parole Eligibility. “Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment.” Montgomery, 577 U.S. at 206. Whether a penalty comports with that guarantee depends on the court’s weighing of two factors: the severity of the punishment, on the one hand, and the defendant’s culpability, on the other. In terms of penal severity, “life without parole is ‘the second most severe penalty permitted by law.’” Graham v. Florida, 560 U.S. 48, 69 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part - 11 - and concurring in the judgment)).14 Though technically less punitive than the death penalty, life without parole shares “some characteristics with death sentences that are shared by no other sentences,” id.; like capital punishment, it guarantees that—absent executive clemency—the person will die in prison. And on the correlative question of culpability, the U.S. Supreme Court has repeatedly made clear that certain characteristics or circumstances can make an individual categorically less culpable—and hence, less deserving of the law’s most severe punishments.15 Enmund v. Florida, 458 U.S. 782, 795 (1982) (overturning the capital sentence of a defendant who aided and abetted a robbery during which a death occurred, observing that people who do not kill, intend to kill, or foresee that a life could be taken should be categorically restricted from the most serious punishments). In particular, the Court’s jurisprudence regarding the categorical exclusion of young people from death and life-without-parole sentences is instructive here. Applying its proportionality analysis, the Court has in turn held that young people under the age of 18 cannot be sentenced to: the death penalty, Roper, 543 U.S. at 14 Given the longstanding gubernatorial moratorium on executions, a life-without-parole sentence is, as a practical matter, the most severe penalty currently permitted in this Commonwealth. 15 In light of the specific question presented here, Amici do not address whether death-byincarceration is ever a just and proportionate sentence, and instead focus on the circumstances presented by Pennsylvania’s blanket diktat on parole eligibility for felony-murder convictions. - 12 - 568; life without parole for a non-homicide offense, Graham, 560 U.S. at 69 (2010); or mandatory life without parole, Miller, 567 U.S. at 471 (striking down 29 state statutes mandating life without parole for minors). Those decisions rested on the reasoning that young people are inherently less culpable than adults due to their ongoing brain development, which makes them more impulsive and susceptible to peer pressure, and thus should not be eligible for the law’s harshest penalties. That thesis—that the presence of diminished culpability requires a concomitant reduction in the severity of the sentence imposed—applies with equal force to those convicted of felony murder, who lacked any intent to take a life. In sum, the lesser culpability of a person convicted of felony murder— someone who did not intend to kill, and oftentimes did not actually kill—renders life without parole disproportionately harsh and therefore violates constitutional guarantees against excessive or cruel and unusual punishment. b. Pennsylvania’s Parole Eligibility Statute Serves No Valid Penological Purpose. The U.S. Supreme Court also instructs that “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” Graham, 560 U.S. at 71. None of the penological goals of retribution, rehabilitation, incapacitation, or deterrence justifies Pennsylvania’s blanket disentitlement to parole consideration for all those convicted of felony murder. - 13 - i. Retribution First, retribution does not justify a lifetime ban on parole eligibility for a person who did not intend to kill. Retribution is dependent on culpability. Tison v. Arizona, 481 U.S. 137, 149 (1987) (“The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.”). Culpability is dependent on a defendant’s intention—and therefore, his moral guilt. Enmund, 458 U.S. at 800 (quoting Mullaney v. Wilbur, 421 U.S. 684, 698 (1975)). It follows that retribution cannot justify imposing one of the law’s harshest penalties against people who did not kill or intend to kill. ii. Rehabilitation and Incapacitation Second, permanent incarceration, by its nature, rejects any rehabilitative goal and instead wholly embraces the goal of incapacitating an individual in perpetuity. Defending a life-without-parole sentence based on the rationale of incapacitation necessarily assumes that a person is irredeemable and must therefore “be isolated from society in order to protect the public safety.” See Ewing v. California, 538 U.S. 11, 24 (2003). But research has repeatedly demonstrated that extreme sentences do not make society safer, 16 and, in fact, people who have been released from prison with violent convictions have particularly low recidivism rates.17 16 Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime and Just. 199 (2013). 17 See, e.g., Mariel Alper et al., 2018 update on prisoner recidivism: A 9-year follow-up period (2005-2014) (2018), https://bjs.ojp.gov/content/pub/pdf/18upr9yfup0514.pdf; Barbara Levine & - 14 - The case for permanent incapacitation is further weakened by the fact that 73 percent of those statutorily prohibited from parole consideration in Pennsylvania for felony murder were age twenty-five years or younger at the time of their offense.18 As the U.S. Supreme Court has explained, for young people, “who are most in need of and receptive to rehabilitation, the absence of rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident.” Graham, 560 U.S. at 72-73. While the Court’s jurisprudence on this issue is specific to minors, the Court recognized that “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Roper, 543 U.S. at 574. Rather, substantial research has shown that emerging adults experience the same susceptibility to impulsivity and peer pressure as younger adolescents.19 In Elsie Kettunen, Paroling people who committed serious crimes: What is the actual risk? (2014) https://www.prisonpolicy.org/scans/cappsmi/CAPPS_Paroling_people_who_committed_serious _crimes_11_23_14.pdf; J.J. Prescott et al., Understanding Violent-Crime Recidivism, 95 Notre Dame L. Rev. 1643 (2014). 18 Andrea Lindsay & Clara Rawlings, Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Race (2021) https://www.plsephilly.org/wpcontent/uploads/2021/04/PLSE_SecondDegreeMurder _and_Race_Apr2021.pdf. 19 See, e.g., Elizabeth S. Scott, et al., Young, Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 642 (2016). - 15 - particular, studies show that crime rates peak around the late teenage years and only begin to gradually decline in the early twenties. 20 Particularly given that nearly half of those serving life-without-parole sentences for second-degree murder in Pennsylvania are age 50 or older and that nearly 60 percent have already served over 20 years, Lindsay & Rawlings, Objective Assessment, supra note 18, these studies undercut any argument that continued, indefinite parole ineligibility is justified by a need for incapacitation. Cf. Alex Piquero, et al., From Juvenile Delinquency to Adult Crime: Criminal Careers, Justice Policy, and Prevention, at 40 (2012) (“Criminal careers are of a short duration (typically under 10 years), which calls into question many of the long-term sentences that have characterized American penal policy.”). Conversely, the rejection of rehabilitation contributes to the cruelty of parole ineligibility for felony murder. A law that all but guarantees a person will die in prison “makes an irrevocable judgment about that person’s value and place in society,” and “forswears altogether the rehabilitative ideal.” Graham, 560 U.S. at 74. In the context of felony murder, that judgment is unconstitutional. 20 See Ashley Nellis & Breanna Bishop, A New Lease on Life (2021), https://www.sentencingproject.org/wp-content/uploads/2021/06/A-New-Lease-on-Life.pdf; Fair and Just Prosecution, Joint statement on sentencing second chances and addressing past extreme sentences (2021), https://fairandjustprosecution.org/wp-content/uploads/2021/04/FJP-ExtremeSentences-and-Second-Chances-Joint-Statement.pdf. - 16 - iii. Deterrence Given all that, the endurance of the felony-murder rule is troubling. Superficially, one might speculate that it serves a deterrence function. That is, society has an interest in reducing felonies, and the additional penalty provided by the felony-murder rule will deter individuals from engaging in crime on the margin. But the rule and its associated punishments have no proven deterrent effect. 21 That makes sense, as the threat of death-by-incarceration can have little effect on someone who did not foresee that a life would be taken in the first place. See Atkins v. Virginia, 536 U.S. 304, 320 (2002) (“[C]apital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.”); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446, 451-52 (1985) (a severe felony-murder sentence provides little to no deterrence because the act to be deterred—the killing of another—was, by definition, either unintentional or undertaken by a third party). Moreover, research on mandatory penalties has long documented that, even assuming a person is familiar with a relevant legal penalty, the deterrent effect of incarceration is more a function of the certainty of the punishment than of its 21 See, e.g., Garoupa & Klick, Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule, 4 Rev. L. & Econ. 407 (2008); Anup Malani, Does the FelonyMurder Rule Deter? Evidence from FBI Crime Data, Working Paper 14-25 (2002). - 17 - severity. See National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences, 132-33 (2014); Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A behavioural science investigation, 24 Oxford Journal of Legal Studies 173-205 (2004). Thus, lengthy mandatory sentences generally provide little additional deterrence and come at the expense of more effective investments in public safety. National Research Council, The Growth of Incarceration in the United States, supra. At bottom, no penological theory justifies life-without-parole sentences for individuals convicted of felony murder. That determination, coupled with the lesser culpability of a person convicted of felony murder, compels the conclusion that Section 6137(a)(1) of the Parole Code violates the Eighth Amendment. B. Review Is Warranted Under Pa.R.A.P. 1114(b)(4) Because the Superior Court’s Decision Raises an Issue of Substantial Public Importance: Pennsylvanians of Color Are Disproportionately Affected by the Life-Without-Parole Sentences that FelonyMurder Convictions Carry. Finally, review of the decision below is immensely important because the sentencing paradigm endorsed below emphasizes racially disparate outcomes, to the severe detriment of non-white residents of this Commonwealth, and in particular, Black Pennsylvanians. Data from Pennsylvania and elsewhere demonstrate consistently stark racial disparities among those convicted of felony murder. In Pennsylvania, four of - 18 - every five imprisoned individuals with a felony-murder conviction were people of color as of 2020; 70 percent were Black, though Black people make up only eleven percent of our population. Lindsay & Rawlings, Objective Assessment, supra note 18. Studies have found similar racial disparities in other States, as well, including California, Colorado, Illinois, Massachusetts, Minnesota, and Missouri. Nazgol Ghandnoosh, et al., Felony Murder: An On-Ramp For Extreme Sentencing (2022). Fisher Amicus Br., supra note 13 at 21-33. The racially disproportionate impact of the felony-murder rule is in part driven by the broad prosecutorial discretion the rule affords. In Pennsylvania, for example, prosecutors have the choice to charge accomplices with (i) the underlying felony alone, (ii) a felony and an unintentional killing (e.g., involuntary manslaughter), or (iii) a felony and a second-degree murder charge, which mandates life without the possibility of parole. That discretion leaves room for implicit bias to impact charging decisions and plea negotiations. Indeed, courts and scholars have recognized that unwarranted associations between race and criminality often impact decision-making in policing, prosecution, and sentencing. See, e.g., Buck v. Davis, 580 U.S. 100, 120 (2017) (describing the “powerful racial stereotype” in the context of sentencing that “black men [are] ‘violence prone’”); see also G. Ben Cohen, Justin D. Levinson & Koichi Hioki, Racial Bias, Accomplice Liability, and The Felony Murder Rule: a National Empirical Study - 19 - Den. L. Rev. (2023) (discussing research showing that “participants automatically individualize white men, while automatically de-individualizing Black and Latino men” and thereby may be more likely to impute guilt in cases involving defendants of color); Guyora Binder & Ekow N. Yankah, Police Killings as Felony Murder, 17 Harv. L. & Pol’y Rev. 157, 225 (2022) (“The strikingly disparate patterns of felony murder charging and conviction recently documented in metropolitan Chicago and Minneapolis, and in Pennsylvania and Colorado, suggest that felony murder is a crime prosecutors have seen little need to punish when committed by whites.”). The status quo in Pennsylvania cannot be tolerated: hundreds of people of color have been sentenced to die in prison in this Commonwealth despite never having intended to take a life. Review of the parole-eligibility statute that permits that outcome is greatly needed. IV. CONCLUSION For these reasons, amici respectfully submit that the petition for allowance of appeal should be granted. - 20 -