January 11, 2024
Thom Carroll/For PhillyVoice
Philadelphia District Attorney Larry Krasner claims Act 40, the Pennsylvania law that creates a special prosecutor to handle crimes on SEPTA in the city, is unconstitutional. He has filed a lawsuit that seeks to block its implementation.
Philadelphia District Attorney Larry Krasner filed a legal challenge Thursday questioning a new Pennsylvania law that calls for a special prosecutor to oversee crimes that happen on – and near – SEPTA properties in the city.
Krasner seeks to block implementation of Act 40, a Republican-led law that stands to weaken his authority in large parts of Philadelphia. The law was written by Republican state Sen. Wayne Langerholc, who claimed a special prosecutor would "restore law and order" in the city. The state GOP has waged an ongoing battle against Krasner, whose progressive approach to criminal justice has prompted a failed impeachment attempt and frequent accusations that he's soft on punishing crime.
Gov. Josh Shapiro, a Democrat, signed Act 40 last month as part of a deal to approve unresolved parts of the state budget. Many of the practical implications of designating a special prosecutor remain unanswered.
At a press conference Thursday, Krasner and other Act 40 critics argued that the law's provision for a special prosecutor is ambiguous and unconstitutional. They claimed it would make SEPTA less safe and jeopardize the validity of criminal cases tried by the special prosecutor, who would need to be appointed by the Attorney General Michelle Henry.
"Instead of our (office) doing our job and doing it the right way — and having convictions that stick — you could end up in a situation where the existence of the special prosecutor is a free pass for people who are committing serious violent crimes," Krasner said.
The language in Act 40 leaves room for interpretation on how it could be applied and which cases would be handled by the special prosecutor. Though it doesn't specify SEPTA or Philadelphia by name, it says the special prosecutor would handle crimes "occurring within a public transportation authority that serves as the primary provider of public passenger transportation in the county of the first class," a designation that's exclusive to Philadelphia. Crimes that occur on SEPTA property outside the city would not be overseen by the special prosecutor.
Krasner's office has said the special prosecutor's authority potentially could extend to any crime that happens within 500 yards of a SEPTA facility in the city. On Thursday, his office presented a map that shows this would cover about 89% of the city, which has more than 8,100 SEPTA stops and stations.
"Every person charged under the special counsel is going to have a defense that the special counsel doesn't have any authority," said attorney John S. Summers, who is leading Krasner's lawsuit over Act 40. "And every single one of them is going to be marching to every court — federal court, state courts — and saying that that criminal defendant shouldn't be charged because the act is unconstitutional."
Senate Majority Leader Joe Pittman, a Republican who represents counties in southwestern Pennsylvania, said Krasner is "playing political games" despite the General Assembly's support for Act 40, which he called "strong legislation."
"Ensuring public safety is paramount to upholding our constitutional obligation as elected officials," Pittman said. "Larry Krasner's video announcement this morning while shielding himself from questions from the public and press further demonstrates his weak and absent leadership."
Krasner has characterized the law as antidemocratic, suggesting its intent is to override Philadelphia voters who have twice elected him to serve as district attorney.
Langerholc claimed Thursday the "inflammatory rhetoric" around Act 40 has distorted the law's function to support the city..
“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," Langerholc said.“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."
Henry, a Democrat, said her office "has worked hard to meet the mandate" of Act 40, but has been unable to find a special prosecutor "given the narrow requirements set by the legislature."
Henry said her office will respond to Krasner's complaint as required by court rules.
Krasner was joined at the press conference by lawmakers opposed to the provisions in Act 40. They contend the law was hastily passed despite the state's failure to provide a longterm funding solution for SEPTA, which has a $240 million operating deficit and could be headed toward service cuts in the coming year. That uncertainty could further undermine safety at SEPTA facilities in the city, critics argue.
"It actually makes us unsafe in a number of ways," said state Sen. Sharif Street, a Democrat. "It is unclear who has jurisdictional authority to move forward."
Street also noted that the law's impact on the city predominantly affects people of color.
"You have to have a really, really, really good reason to pass a bill that disproportionately impacts, in a negative way, people based on race or religion," Street said. "Philadelphia has more religious diversity and more racial diversity than any other county in the commonwealth."
Henry said the attorney general's office has not advocated for an initiative to appoint a special prosecutor. She said the law's passage comes with a presumption of constitutionality and it is not the duty of her office to determine its merits.
"Unless and until a court of law declares Act 40 unconstitutional, the Office of Attorney General is required, pursuant to the Commonwealth's Attorney Act, to carry out this legislative mandate," Henry said. "Act 40 does not permit any discretion on the part of our agency to appoint a special prosecutor — it compels it."
A SEPTA spokesperson declined to comment on Krasner's legal complaint.
Philadelphia City Councilmember Jamie Gauthier said she and her colleagues are committed to addressing public safety issues that impact SEPTA, but not at the cost of a law that will blur authority in the city.
"There are issues that we need to resolve with our public transit system," Gauthier said. "Frankly, they're the same issues mirrored in the city writ large that we've been dealing with for the last several years. All of us are personally invested in resolving those issues ... but we should not pretend that Act 40 is about crime or public safety at all. Because if was, we would have seen the same GOP actors leading this effort fully fund SEPTA."
