District Attorney Larry Krasner is suing to block a new law that aims to strip away some of his prosecutorial authority.
Under the measure Gov. Josh Shapiro signed last month, a special prosecutor appointed by the state Attorney General can opt to take over the investigation of any crimes committed within SEPTA in the city. The law, Act 40, says the prosecutor must be designated by this Saturday.
Krasner and his supporters argue the law is an unconstitutional infringement of residents’ right to elect their chief prosecutor and disparately impacts non-white residents of Philadelphia, the state’s only majority-minority county.
“The law treats Philadelphia different from other counties where there’s SEPTA — Montgomery, Bucks, Delaware,” and Chester counties, said attorney John Summers, who filed the suit for Krasner. “If it’s Philadelphia, that special counsel can run right over the district attorney’s authority, while in the surrounding counties it needs those district attorneys’ consent. That discriminates against the city of Philadelphia and its voters.”
The law’s main author, state Sen. Wayne Langerholc of Cambria County in west-central Pa., has criticized Krasner for not prosecuting more crimes, while saying Act 40 only affects SEPTA and does not otherwise reduce the district attorney’s authority.
“Nothing in the bill takes away the ability or jurisdiction of the District Attorney to continue to prosecute. It adds an additional layer of safety analogous to a special task force on crime that should be met with open arms,” he said Thursday.
Krasner’s office prosecutes 92% of crimes referred by SEPTA, roughly the same percentage as it did under his predecessor, the DA said.
Attorney General Michelle Henry said Thursday that she’s obligated to presume Act 40 is constitutional and must follow the law unless a court says otherwise. However, she also said she has not yet designated a prosecutor.
“Our office has worked hard to meet the mandate to appoint a special prosecutor, but given the narrow requirements set by the legislature we have been unable to do so,” she said in a statement.
The appointee must be a Philadelphia resident, and can’t have worked for Krasner or Henry’s offices within the last six years — that is, since Krasner was first elected in 2017. The person must also have been a lawyer in Pennsylvania for at least 10 years and have prosecuted crimes in the state for at least 5 years.
Claims of racial discrimination
Critics of Act 40 describe it as an extension of previous Republican efforts to remove the progressive district attorney from office. The Republican-led House voted to impeach Krasner over the city’s high crime rates, and the state Supreme Court is currently weighing whether to allow the impeachment to proceed.
Councilmembers Jamie Gauthier, Rue Landau, Nicolas O’Rourke and state Sen. Sharif Street joined Krasner at a press conference Thursday announcing the lawsuit, along with transit advocates and dozens of representatives of Black community groups.
They included Rev. Mark Kelly Tyler of Mother Bethel AME and members of POWER Philadelphia, Black Clergy of Philadelphia & Vicinity, the Amistad Law Project and several other organizations.
Tyler said a group of 67 clergy members sent a letter to Shapiro and Attorney General Michelle Henry asking for a meeting to discuss the law. Shapiro signed Langerholc’s bill as part of a package of budget bills endorsed by Democratic and Republican leaders.
“I understand that there was some deal making, some horse trading. But why is it that the people who always get sacrificed are Black and brown voters?” Tyler said. “If there had to be a deal to be made about a budget or anything else to move legislation forward, why is it always at the expense of Black people in the hardest hit communities?”
In addition to treating Philadelphia differently, the law violates the state constitution in other ways, Summer said.
The state does not have the power to nullify a district attorney’s authority, the special prosecutor isn’t accountable to anyone in the way the DA is accountable to voters, the law doesn’t safeguard the criminal records of accused people, and it unconstitutionally bars defendants from arguing Act 40 itself is invalid, he said.
“Act 40, about SEPTA, is a constitutional train wreck. It is a tangle that cannot and should not be enforced,” Summers said.
Krasner’s supporters noted that while proponents of Act 40 say it’s an effort to help improve conditions on SEPTA, the same legislators failed to approve a funding increase requested by the transit agency. SEPTA now faces a $240 million budget shortfall as federal COVID relief funding expires and is considering fare increases and service cuts.
How much of the city does it cover?
Act 40 does not precisely specify the geography of the special prosecutor’s jurisdiction, but attorneys for Democratic legislators who have studied the law and legal precedents believe it could be interpreted to extend to 500 yards around any SEPTA property, Sen. Street said.
Summers said that would include areas around 8,175 bus and train stops, which would effectively cover most of the city.
The law’s focus on SEPTA is a “Halloween costume” that tries to obscure its effort to nullify the DA’s prosecutorial powers throughout the city, according to Krasner, who won reelection by a wide margin in 2021.
“This is straight-up an effort to erase the votes of 155,102 people who struggled through the inconvenience of voting so they would be heard, in an election that was won with a margin of 44%,” he said.
Langerholc has said the argument that the law covers most of the city is incorrect, and Street said attorneys for Republican legislators also disagree with that interpretation.
“Rather than accept this additional resource, the District Attorney has chosen to cloud and muddy the issue, claiming it is about voter suppression or elimination of his position. Nothing can be further from the truth,” Langerholc said. “I would encourage those who have spoken so loudly against this bill to obtain a copy and read its contents. The bill speaks for itself. Stop the inaccurate and inflammatory rhetoric.”
Krasner and his supporters said the law and the impeachment effort are part of a broader campaign by former president Donald Trump and other Republicans to overturn election results and deny Democratic voters their civil rights.
Republicans in Congress are working to impeach President Joe Biden and Homeland Security Secretary Alejandro Mayorkas, and some have recently threatened to impeach Defense Secretary Lloyd Austin and Attorney General Merrick Garland as well.
“What is happening here straight-up is an effort to normalize the false notion that impeachment is a way to get people out of office in between elections they just keep winning, that impeachment means we get you out because we don’t like you,” Krasner said. “Impeachment never meant that. Impeachment meant that you’ve committed a crime and you’ve got to go.”
The story has been updated to add Langerholc’s comments.
