A 2021 report by the Philadelphia Lawyers for Social Equity found that there were 8,242 people serving life without parole (LWOP), or virtual life sentences of 50 or more years in Pennsylvania, the second-highest number not only in the country, but around the world.

Over 1,100 of those sentenced to life without parole were the result of the state's second-degree murder — "felony murder" — statute. That number may begin to decline.

Last week, the Pennsylvania Supreme Court ruled it is unconstitutional to require mandatory life sentences without parole for people convicted of felony murder. The key to that ruling is "mandatory."

Under the law, anyone convicted of participating in a felony that results in death — such as a robbery — receives an automatic life sentence, even if the person didn't commit the killing or intend for anyone to die.

Life sentences will still be allowed for second-degree murder on a case-by-case basis, but the state high court said mandatory life violates the state constitution's prohibition against cruel and unusual punishment.

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment, but Pennsylvania has its own constitutional prohibition against cruel and unusual punishments — Article I, Section 13.

Across the country few states still impose mandatory life without parole. According to the Death Penalty Information Center, in light of the ruling in Pennsylvania, only Louisiana has mandatory LWOP for a felony murder conviction

The Pennsylvania Supreme Court reasoned that "a mandatory life without parole sentence for all felony murder convictions, absent an assessment of culpability, is inconsistent with the protections bestowed upon our citizens" under Article I, Section 13.

Recognizing the gravity of a life without parole sentence, the court wrote, "Life without parole imposes the harshest imprisonment sanction permitted under the law — imprisonment until death without the opportunity for consideration of release — regardless of culpability."

The decision will have a significant impact, and as a result, the court stayed the imposition of the ruling for 120 days to allow the Pennsylvania legislature to remedy the unconstitutional sentencing scheme through legislation.

The most pressing question is, will the decision be retroactive? If so, how does retroactivity affect the sentences of people already behind bars? How lawmakers approach that process — and what remedies they might settle on — could be the subject of intense debate.

According to the Philadelphia Inquirer, options could include seeking resentencing hearings for every person already convicted under the law, to more narrow approaches that might invite additional questions — and litigation — about how to apply the new finding to cases that were decided decades ago.

In addition, what will be the sentencing scheme for felony murder in future cases? As the court made clear, LWOP is still an option. But what are the options short of LWOP? The legislature will have to set the parameters and have only 120 days to do it.

Marsha Levick, the Phyllis Beck chair at Temple University's Beasley School of Law, and former chief legal officer of the Philadelphia-based Juvenile Law Center, coauthored briefs in a series of cases that struck down mandatory life sentences for juvenile offenders, and said Pennsylvania's high court in this case appeared to be positioning its ruling for retroactive application — even if it stopped short of saying so.

Levick told the Philadelphia Inquirer that the opinion echoes the reasoning the U.S. Supreme Court used to make similar decisions retroactive in juvenile cases, though she cautioned that "we're going to have to wait for action."

According to the Pennsylvania Capital-Star, if no legislation is passed, or a bill is approved that doesn't address existing life sentences, that will likely kick the issue back to the courts. And that could result in further delay for those subject to unconstitutional sentences.

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 @MatthewTMangino

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