Pennsylvania High Court Invalidates Attempt to Impeach Reform-Minded Philadelphia Prosecutor

The Pennsylvania Supreme Court last week invalidated the state legislature’s impeachment proceedings against Philadelphia’s elected prosecutor, Larry Krasner.

The court ruled in Krasner v. Ward that the articles of impeachment — which were acted on by only one house of the legislature before the legislative session expired — became null and void when that session adjourned. As a result, the other house could not take the additional step of conducting a trial on the articles, which would be needed to convict Krasner and remove him from office.

The impeachment was based on state lawmakers’ disapproval of Krasner’s criminal justice reform policies. In ruling that state law prevented the impeachment proceedings from continuing in the next legislative session, the Pennsylvania high court thwarted an attack on the independence and discretion of local prosecutors — one of a series around the country.

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.

Last year, a closely divided lower court panel blocked the bid by Pennsylvania house Republicans to remove Krasner. A 2–1 majority agreed that the articles of impeachment did not spell out any conduct amounting to “misbehavior in office” but the panel rejected Krasner’s remaining claims.

In last week’s ruling by the state high court, a 3–1 majority agreed with Krasner’s argument that the articles of impeachment had expired with the legislature’s adjournment. The state constitution “simply does not textually permit the House and the Senate of a subsequent session of the General Assembly to take any further action on matters” that one of the houses began but did not finish in a prior session, the court concluded. The court also rejected the lawmakers’ argument that the case presented a purely political question that should be left to the legislature.

The majority did not address the “misbehavior in office” point in its analysis. However, by only reversing the portion of the lower court’s order related to the lapsing of the impeachment proceedings, the high court appears to have left intact the lower court’s conclusion that the articles failed to allege conduct that could be grounds for impeachment.

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. 

Krasner’s case unfolded 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. DeSantis went on to suspend another elected prosecutor, Monique Worrell, for declining to seek mandatory minimum sentences for drug trafficking and gun crimes, among other policies. The Florida Supreme Court in June upheld DeSantis’s removal. A new Texas law allows courts to remove local district attorneys who opt not to prosecute certain cases, such as marijuana offenses or abortion, on the basis of “misconduct.” And this July, a lower court in Georgia refused to block a commission the legislature created to discipline and remove local prosecutors 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 year, 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. 

The Pennsylvania Supreme Court’s decision invalidating the impeachment against Krasner protects prosecutorial independence in the state, at least for now. The opinion upholds the right of elected prosecutors to shape the criminal justice system in their jurisdictions to accord with their — 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.

Suggested Citation: Ames Grawert & Rosemary Nidiry, The Latest Legal Challenge to Reform-Minded Prosecutors, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jul. 25, 2023, updated Oct. 3, 2024), https://statecourtreport.org/our-work/analysis-opinion/latest-legal-challenge-reform-minded-prosecutors.