When the prosecutor won’t, who will? Criminal law reformers took their battle away from the courts, then the legislatures, and found a relative sweet spot by electing reform “prosecutors” to office. It was a brilliant move, really, as the race for District Attorney was never particularly sexy, people didn’t have strong feelings and a small, highly motivated group could basically seize power. They did in Philadelphia when they elected criminal defense lawyer Larry Krasner.
Since his election, Krasner has proven to be the real deal, implementing his reforms such as declining to prosecute laws with which he disagrees and trying to stem mass incarceration by using alternatives. The issues about his use of authority aside, it was a fascinating experiment testing whether the historic tough-on-crime approach that produced Prison Nation was necessary to protect people, or whether it was a hugely destructive force, particularly to the poor and minorities who suffered the brunt of the system’s brutal force.
The Pennsylvania lege decided to pull the rug out from beneath Krasner.
Lawmakers in Pennsylvania have quietly muscled power away from reformist District Attorney Larry Krasner, passing new legislation giving authority to the state’s attorney general to prosecute certain firearms violations in Philadelphia — and nowhere else in the state. The provision will expire in two years, or just after Krasner’s first term ends.
Krasner, one of the most progressive prosecutors currently in elected office, is the only district attorney in the state whose office will be impacted by the change. The bill was passed by the Republican legislature and signed by the Democratic governor before the end of the legislative session late last month, with no public awareness.
Curiously, some Democrats complained that they voted for the bill without realizing what it meant.
Even some of the lawmakers who voted for it say they didn’t know what was happening. “I think the vast majority of my colleagues had no idea this was included,” one state House Democratic lawmaker who voted in favor told The Intercept, acknowledging that he, too, didn’t realize the provision had been added.
It’s almost as if the they didn’t bother to read what they voted for and now seek to blame the other team for pulling a fast one, as if voting for a law when they have no clue what it provides is other people’s fault. Only three Dems voted against the bill.
There are views that this was a hat tip to the Fraternal Order of Police, or tough-on-crime pushback from Republicans, and that may be, or at least provide partial motivation for creating concurrent jurisdiction in the PA attorney general’s office over local Philly state crime prosecution.
HB 1614 gives Pennsylvania Attorney General Josh Shapiro what’s known as concurrent jurisdiction over certain offenses involving firearms, meaning that Krasner and his team no longer have sole discretion over how to handle those prosecutions. It allows Philadelphia police to work directly with the attorney general, cutting Krasner’s office out of the process. The move is seen as an attempt to rein in Krasner after he revolutionized the Philadelphia district attorney’s office and fired more than 30 prosecutors who’d served under his predecessors. Many of those staffers are now working in the attorney general’s office.
Shapiro is also a Democrat, but not a progressive reformer like Krasner.
A spokesperson for the attorney general said Shapiro’s office supported concurrent jurisdiction across the state and not just in Philadelphia. “The Legislature’s work to grant additional funding is a welcome step as we work to battle the everyday gun violence plaguing Philadelphia. In conversations with legislators during this process, we communicated our Office’s belief that investigations of crime guns—a problem touching every corner of Pennsylvania—would benefit from statewide concurrent jurisdiction for OAG,” spokesperson Joe Grace said in a statement to The Intercept. “The Legislature unanimously voted to grant that jurisdiction only in Philadelphia — a position our Office did not advocate for but was advanced by every member of the Philadelphia delegation. At a time when gun violence is plaguing our cities and towns, we are solely focused on working together with our law enforcement partners to fight back against this epidemic.”
The fearmongering about crime, “gun violence plaguing our cities and towns,” is classic tough-on-crime rhetoric. Whether it’s true, and whether Krasner’s reforms make it worse or better, isn’t remotely clear. Change doesn’t happen overnight, so whatever is happening on the street can’t be explained by anything Krasner is doing. At least not yet. It took decades to create this problem, and it won’t be easily fixed.
But it’s surprising that reformers who pulled off this Krasner coup didn’t anticipate a reaction when their prosecutor usurped the legislature’s authority to determine what conduct was criminal and what to do about it. The question isn’t necessarily whether Krasner’s reforms are right or wrong, but whether reformers expect legislatures to do nothing while a local elected district attorney decides which laws he feels are good, and worthy of prosecuting, and which he doesn’t. The legislature sits in Harrisburg. In Philadelphia, Krasner stands above them. Did they expect the lege to do nothing about it?
The argument in favor of vesting enormous power in one person, with the obvious proviso that it’s their team’s person and not the other team’s person, who should be stripped of all power, is that prosecutors have always enjoyed “prosecutorial discretion.” That phrase, however, refers to the authority to make necessary decisions, including the decision to decline to prosecute individuals based on the specifics of a particular case.
Here, the exercise of discretion is categorical, deciding that a duly-enacted crime shouldn’t be prosecuted, without regard to individual circumstances. Rather than being prosecutorial discretion, it’s prosecutorial veto, a curious position for activists who complain that prosecutors wield too much power, yet seek to give them far greater power.
Of course, this outcome-oriented view is based on the activists’ enlightened certainty that henceforth, absolute power will reside only in the hands of the righteous and the other team’s prosecutor will never again be elected to use that same unfettered discretion which they demand for Krasner and other progressive prosecutors against their interests. But then, they suffer no cognitive dissonance when arguing the exact opposite when it serves their ends.