The Latest Legal Challenge to Reform-Minded Prosecutors

UPDATE: The Pennsylvania Supreme Court heard oral arguments on November 29, 2023, in Krasner v. Ward et al., a case about whether the state legislature can impeach Philadelphia’s elected prosecutor, Larry Krasner.

This fall, the Pennsylvania Supreme Court will hear arguments on whether state lawmakers can impeach Philadelphia District Attorney Larry Krasner, who is accused of “misbehavior in office” for pursuing various criminal justice reform policies. Earlier this year, a closely divided state court panel blocked the bid by Pennsylvania house Republicans to remove Krasner — thwarting the latest in a series of attacks around the country on the efforts of some prosecutors to use their power to check the criminal justice system’s perceived excesses. In deciding whether the impeachment proceeding comports with state law, the Pennsylvania high court’s ruling could have important implications for the independence and discretion of local prosecutors.  

Elected in 2017, Krasner quickly implemented various policies designed to reform Philadelphia’s criminal justice system from within. For example, he announced that the DA’s office would no longer seek money bail for a range of lower-level offenses and would decline to prosecute some marijuana and sex work cases. He also directed prosecutors to seek shorter prison terms and provide an estimate of the taxpayer cost of incarceration related to sentencing recommendations.  

Voters resoundingly reelected Krasner in 2021, but his policies have drawn criticism from some corners. In November 2022, the GOP-controlled Pennsylvania lower house passed articles of impeachment alleging (among other things) that Krasner’s policies had caused crime to rise, amounting to “misbehavior in office” and a “dereliction of duty and refusal to enforce the law.”  

Before the case could proceed, Krasner filed a suit in state court, arguing that his impeachment violated the state constitution. Specifically, he argued that the articles of impeachment had lapsed with the legislature’s adjournment (in late November 2022) and the new legislature would have to restart the process. He further claimed that the power to remove him from office rested with Philadelphia and its voters, not the state legislature. Finally, he argued that the articles of impeachment failed to allege any “misbehavior in office” — the only constitutional basis for removal in Pennsylvania.  

A divided panel of commonwealth court judges rejected two of Krasner’s claims but the majority agreed that the articles of impeachment did not spell out any conduct amounting to “misbehavior in office.” That term, the court reasoned, applies only where an official “fail[s] to perform a positive ministerial duty” or uses their discretion “with an improper or corrupt motive.” The articles of impeachment did not sufficiently allege any such conduct. Instead, the court wrote, the Pennsylvania house, as a general matter, “simply appears not to approve of the way [Krasner] has chosen to run his office.”  

The majority also noted that Krasner, as Philadelphia’s “chief law enforcement officer,” “has broad discretion regarding his policy decisions and prosecution choices.” The court cited case law recognizing the wide discretion typically wielded by American prosecutors. That conclusion implicates a broader debate about the role of prosecutors in operating and reforming the criminal justice system.  

Prosecutors have relatively unfettered authority to decide what charges to bring, whether to seek bail and how much, and what plea offers to make — all of which help determine how most cases are resolved. Prosecutorial power also includes the responsibility of “exercising discretion to not pursue criminal charges in appropriate circumstances,” according to the American Bar Association.  

Some blame broad prosecutorial power for contributing to racial disparities in punishment, and even the growth of mass incarceration. But more recently this discretion has been embraced by critics of mass incarceration, like Krasner, who have sought to flip its use to instead correct the system’s excesses. Prosecutors in this mold have used their discretion to pledge not to prosecute certain classes of cases, as well as to prioritize diversion programs. They also advocate for shorter sentences, less incarceration, and more services to address mental health, support survivors of crime, and reduce recidivism.  

This use of prosecutorial power has not, however, been without controversy. While prosecutorial discretion is generally understood to be broad and unreviewable, critics argue that it has typically been understood to apply to individual case-related decision-making. Using that discretion to adopt blanket policies about classes of cases, in this view, strays beyond the prosecutor’s role and risks usurping the legislature’s. Others point out, though, that prosecutors’ resources are not unlimited, and tough decisions are always made about prioritizing cases. Toward that end, prosecutors have regularly implemented general policies and guidelines related to charging and sentencing under the umbrella of prosecutorial discretion — albeit maybe not quite as broadly or as publicly as Krasner and his cohort. Additionally, being more transparent about how discretion is used may be more consistent with democratic values than making decisions ad hoc or behind closed doors. 

This case also unfolds against a complicated political background. When violent crime rose in 2020, critics rushed to blame prosecutors like Krasner. Those claims do not align with the evidence. But they have precipitated a series of attacks on reform prosecutors, including but not limited to the impeachment bid against Krasner, many of which raise similar questions about prosecutors’ duties and the scope of prosecutorial discretion.  

Florida Gov. Ron DeSantis, for example, summarily removed Tampa’s twice-elected chief prosecutor Andrew Warren in 2022 after Warren pledged not to prosecute those who seek or provide abortions or gender-affirming care. And starting in September, a Texas law will allow courts to remove local district attorneys who opt not to prosecute certain cases, such as marijuana offenses or abortion, on the basis of “misconduct.” Georgia created a new commission with the power to investigate and remove local DAs for similar reasons.  

While the bulk of these efforts has been spearheaded by Republican-led states targeting discretion promoting local reform policies, the trend can cut both ways. Last month, Arizona’s Democratic governor stripped largely Republican local district attorneys of power over cases brought under the state’s 15-week abortion ban, transferring those to the state attorney general — who has vowed not to pursue them. 

When the Pennsylvania Supreme Court hears Krasner’s case, it will grapple with a number of legal questions, including the independence of local officials, the propriety of intervening in an intensely political dispute, and whether prosecutorial discretion encompasses general policies about classes of cases. The majority opinion of the commonwealth court places Krasner’s policies squarely within the zone of prosecutorial discretion. If the state supreme court concurs, it will be a powerful confirmation of Krasner’s right to shape Philadelphia’s criminal justice system to accord with his — and voters’ — sense of justice.  

Ames Grawert is a senior counsel and John L. Neu Justice Counsel at the Brennan Center.

Rosemary (Ruby) Nidiry is a senior counsel in the Justice Program.