Pennsylvania Lawmakers Move to Strip Reformist Prosecutor Larry Krasner of Authority

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. 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.

The maneuver by Pennsylvania lawmakers is the most significant legislative pushback to date against the new movement by criminal justice reformers to focus on seizing the power of the prosecutor, rather than hunkering down as public defenders or lawmakers. One of the key powers of a prosecutor is to decide when to bring charges and, critically, when not to. The new law means that even if Krasner decides to exercise the latter power and not bring charges, the police could go directly to the attorney general to pursue the case regardless.

In a statement, Krasner’s office said the move is an attempt by the legislature to undermine the will of voters who turned out in record numbers to elect him. “District Attorney Larry Krasner was elected by an overwhelming margin to push for badly needed criminal justice reforms in one of the most highly incarcerated big cities in the country, and he has serious concerns about what Act 58 does, the potential precedent it sets, and what it signifies for the justice movement at large,” said spokesperson Jane Roh, referencing the legislation the new law amends. 

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. 

It allows Philadelphia police to work directly with the attorney general, cutting Krasner’s office out of the process.

Members of the state legislature are now saying they thought it was a noncontroversial piece of legislation and were duped into voting for a measure that changed at the last minute. Some Democratic lawmakers say they wouldn’t have supported it had they realized that an amendment to the bill established concurrent jurisdiction with the attorney general. 

Indeed, when the bill first came through the House, a different version of it, which did not single out Philadelphia and was more geared toward helping small municipalities gain access to attorney general resources, passed nearly unanimously. It was then quietly changed in the Senate, but done so quietly that even Democrats supportive of Krasner didn’t notice. It passed the Senate unanimously, which suggested to House Democrats that it was still a noncontroversial bill, and it sailed through the lower chamber with the support of almost every representative in the House — except for three Democrats who voted against it. One House Democratic lawmaker from Philadelphia indicated that they believed negotiations over the amendment took place in private so as not to alert the Philly delegation of what would be included.

The amendment from Republican Rep. Martina White — one of only two Republicans in Philadelphia County’s 26-person delegation in the state House — was tacked on to a larger appropriations effort allocating $2 million to the gun violence task force, a joint venture between the offices of the attorney general and Philadelphia district attorney. White did not respond to a request for comment.

The attorney general’s office wanted the bill to move quickly, Democratic Rep. Mary Jo Daley told The Intercept. She voted against the bill because of concerns she had over how it might restrict local authorities, not because of White’s amendment. Daley had offered her own amendment to create a memorandum of understanding between local government and the attorney general’s office, which she withdrew because it didn’t have enough support to pass. “I understood that the attorney general was interested in getting this passed relatively quickly. And I was assured by his folks that we could talk about it afterwards, about an amendment to an existing law,” she said. “And I thought that was the best compromise that I could get at that point.” 

House Judiciary Committee counsel Tim Clawges, speaking on behalf of ranking member Tim Briggs, said he wasn’t sure how the White amendment came about. Asked if he thought lawmakers understood what was going into the bill, the spokesperson said “pretty much. At least on a — I hate to say, I don’t want to say an elementary level — but basically what it said. Which may be different from all the possible ramifications.” He also noted that the amendment was part of a “truncated process,” being added to the bill within days before it went to the floor. “The details on how the amendment came about exactly and who they talked to and all that, I just don’t know at this point. I haven’t heard anything about that. Which I guess is part of the puzzle.”  

“HB 1614 started out bad, but was made worse amid the chaos of budget season by singling out Philly. This bill as amended by Republican Philly state rep Martina White was an early Christmas present to the FOP and the Attorney General who can now do an end-run [on] our duly elected district attorney and the criminal justice reforms his office is implementing,” Democratic Philadelphia County Rep. Chris Rabb, one of the three “no” votes, said in a statement to The Intercept. 

Rep. Dan Miller, who sits on the Judiciary Committee and followed the bill closely, was the third Democrat who voted against it. “I was concerned that it was eroding what I felt was a local control issue,” Miller said. “While I had no objection to jurisdictions teaming up to do important task force work, I just felt that those decisions should best run by the civilian leadership,” he said. Miller confirmed that the original amendment applied to additional counties outside of Philadelphia and was narrowed. 

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.”

On Tuesday afternoon, following publication of this article, Shapiro said his office does not plan to use the legislation to “act unilaterally or go around DA Krasner.”

This new concurrent jurisdiction with @philadao means that we both now have the authority to prosecute certain gun cases.

We did *not* seek this. And we do *not* plan to use it to act unilaterally or go around DA Krasner.

— Michelle Henry (@PAAttorneyGen) July 9, 2019

Supporters of the legislation say Philadelphia was singled out not because of Krasner, whose office would still technically have jurisdiction over the offenses, but because the city is home to the bulk of the state’s gun violence. “The Philadelphia DA continues to have the authority to prosecute these crimes, should he decide to start enforcing the law,” Republican Rep. Rob Kauffman, who sponsored the bill and worked directly with White to craft the amendment, wrote in a statement to The Intercept. “This wasn’t done statewide because prosecuting these gun offenses doesn’t seem to be a statewide issue.” Still, the amendment undercuts Krasner specifically, since it empowers the attorney general to prosecute cases the district attorney passes on. 

Shapiro had scheduled a press conference for Monday to celebrate the new funding for the task force and had invited the legislative delegation from Philadelphia. But the event was abruptly canceled, and the lawmakers uninvited, according to several members of the delegation, as a fuller understanding of the legislation began to surface. Shapiro said that he would reschedule, according to the lawmakers.

The dispute is playing out against the backdrop of Pennsylvania’s internal Democratic politics. Shapiro, who, like Krasner, is a member of the Democratic Party and was elected in 2016, won a campaign endorsement from Philadelphia’s Fraternal Order of Police lodge, which is in open warfare with Krasner. The police organization, made up of both active and retired officers but dominated by its retirees, has taken out billboards attacking Krasner and even hired planes to fly anti-Krasner banners at the Jersey shore. After entering office, Shapiro hired some of the prosecutors who were ousted by Krasner. He is widely understood to be angling for governor and, as a statewide elected official from Pennsylvania, eventually the White House. His alliance with the FOP, and particularly the more radical Philadelphia lodge, could threaten his broader viability among a Democratic primary electorate. The FOP did not respond to a request for comment.

PA – ‘Help Wanted’: Philadelphia Police Union Calling For New District Attorney In I-95 Billboards. “Too much violence and no respect for crime victims.” called for Krasner’s resignation after dropping opposition to appeal hearing for CONVICTED COP KILLER https://t.co/fN7BrqDXy1

— True Blue Warriors (@TruBluWarriors) June 27, 2019

Krasner is part of a nationwide movement to wrest control of prosecutorial offices and put them in the service of decarceration. The success of the effort was bound to produce retaliation. In Queens, Krasner endorsed reformer Tiffany Cabán, whose 1,199-vote lead on election day has been erased as elections officials have disqualified thousands of affidavit ballots. The campaign is challenging the dismissal of 114 of those disputed ballots, and a manual recount is underway.

Update: July 9, 2019
This article was updated to include statements from Larry Krasner and Josh Shapiro that were issued after publication.