Typically, I don’t have anything positive to say about Pennsylvania’s extreme activist state Supreme Court. But, on two issues the justices have done their jobs in a timely manner. They have ruled that so-called “skill game” machines are in fact gambling devices, and they have deemed mandatory life without parole for second degree murder convictions unconstitutional.
The justices’ decisions lobbed the ball for both issues back into the legislature’s court. The court placed a deadline on the legislature to pass new laws governing both issues. Lawmakers have, to date, failed to act. The deadline for new second degree murder sentencing guidelines has already passed. The legislature is on a months-long summer recess not scheduled to return until days before the stay on enforcement of the skills games ruling expires.
In recent years skill game machines have popped up like mushrooms after a rainstorm in convenience stores, restaurants, VFW and American Legion halls, and even in store fronts dedicated exclusively to the machines. The machines have been unregulated and the revenue they generate has not been taxed. Governor Josh Shapiro and lawmakers want to create a new revenue stream by taxing skill games, but have been unable to arrive at a consensus on how much.
Casino operators, who pay hefty licensing fees and taxes to the commonwealth have pushed for substantial taxation. Various legislative proposals have ranged upward to over 50% of revenue. Lawmakers had delayed action awaiting the Supreme Court ruling, but even with that in place they failed to address the issue in the 2026-2027 budget agreement.
Skill games have been highly controversial. They ignited a Republican civil war in last May’s Primary election between pro-casino and pro-skill games candidates that consumed millions of campaign dollars in three bitter contests. That could have been avoided had the issue been addressed in a timely manner.
Now a mid-October deadline looms. If the legislature fails to pass a new law legalizing, regulating and taxing skill games they will become illegal. This means the small businesses and nonprofits who have come to depend on revenue from the machines will have to unplug them or face criminal action.
The legislature will have several weeks of session in which to act, but until now there has been no definitive consensus within the party conferences let alone between the parties. It would also require agreement between the Democrat-controlled House and Republican-controlled Senate for a new law to be crafted.
The swiftness and degree of law enforcement against those who fail to comply with the law is unknown and is likely to vary from county to county or even municipality to municipality. But one thing is clear: after the October deadline venues who continue to use skill game machines will face criminal penalties.
More serious is the lack of legislative action relative to sentencing guidelines for second degree murder convictions. A person is charged with second degree murder for participating in the crime even if he/she did not do the actual killing. The charge is also leveled if the killing was not intended but took place during the commission of another felony crime.
The Supreme Court ruled that while a life sentence without parole may be appropriate in some cases, mandatory life without parole is a violation of the convict’s constitutional rights. Currently there are over 1,000 convicts serving sentences handed down under the stricken statute.
An appeal to the high court to extend the time frame for the legislature to adopt new sentencing guidelines was rejected. As a result, those convicted or charged with second-degree murder can now appeal their sentences. This means county Common Pleas Court Judges will use their own discretion when hearing or re-hearing cases. The result could be different sentencing outcomes depending on the county in which the case is heard.
The legislature did attempt to address the issue prior to its summer recess but failed to arrive at legislation that could pass both chambers. That ensures months of confusion for prosecutors, defense attorneys and judges alike.
It is true that although the legislature is in extended recess work on these issues continues behind the scenes. Leaders and committees are at work attempting to draft legislation to set new second-degree murder guidelines and to establish a regulatory and tax framework for skill machines.
But their tardiness in acting has real world consequences for those sitting in jail who may be eligible for release and for the small businesses and nonprofits who depend upon skill game revenue.
Pennsylvania’s full-time legislature is the second highest paid in the nation. After having missed the state budget deadline for the fifth year in a row the empty halls of the Capitol are bad optics as these critical issues languish unresolved.
(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly American Radio Journal and Lincoln Radio Journal. His e-mail address is lhenry@lincolninstitute.org.)
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