Memo to Josh Shapiro: Attorneys General Do Have the Right to Be Good

A fun exercise is to check your state’s constitution and search the term “attorney general.” If you happen to live in Pennsylvania, home to Attorney General Josh Shapiro, your constitution will explain that the AG is the “chief law officer.” In California, the constitution expounds on that, stating the AG should “see that the laws of the State are uniformly and adequately enforced,” as well as act as the chief elected prosecutor of the state.

Neither spells out that attorneys general have to defend unconstitutional or just plain trashy laws, to defend the hurt feelings of state legislators. But that’s exactly what the common practice for our elected AGs is.

For example, many people are aware that the death penalty is a purely discretionary practice. Whether it is ever sought is left up to the local district attorney’s personal whims, and in 45 states those officials are elected. The death penalty is disproportionately handed down to people of color, and prosecutors often deliberately strike Black people from death-penalty juries.

AGs have discretion on which motions to file, which laws to defend and which court decisions they will appeal.

On July 15, Philadelphia District Attorney Larry Krasner filed a motion at the Pennsylvania Supreme Court to declare the state’s death penalty unconstitutional, citing that 37 of 45 people on death row from Philadelphia are Black, and that 72 percent of death sentences obtained from 1978 to 2017 in the city have been overturned. The former DA of Philadelphia, Lynne Abraham, repeatedly put innocent men on Pennsylvania death row as well.

So what did Pennsylvania AG Shapiroallegedly progressive enough to be featured at Netroots Nation, one of the most influential annual left-lean political conferences—do?

He advised the state’s highest court to leave it to the legislature, which in Pennsylvania is overwhelmingly conservative.

Shapiro did not have to do so, despite state AGs often misconstruing their role as nothing more than a cudgel for the existing power structure. AGs have discretion on which motions to file, which laws to defend and which court decisions they will appeal.

Nothing in the law, for example, stopped Michigan Attorney General Dana Nessel from taking the brave step in February of filing a brief attacking the constitutionality of the state’s over-broad sex offender registration scheme.

As well as sparing citizens from harsh treatment, moves like this can benefit state governments down the line; otherwise, state executives end up scrambling for order when a state appellate or federal court later erases unconstitutional legal structures that were mistakenly relied upon.

That is exactly what happened when Pennsylvania’s practice of jailing kids for natural life was axed by the US Supreme Court in 2016, due to the Eighth Amendment’s ban on cruel and unusual punishment. Because of that turnaround, trial court judges are still mired in hundreds of resentencing hearings for the men known as “juvenile lifers.”

Attorneys General have the right to be smart and forward-thinking. Being the opposite is a choice. This is part of why legal experts have torched presidential hopeful Senator Kamala Harris over her criminal justice record.

As California AG, Harris defended some of the most overt and craven prosecutorial misconduct in the country. Instead of holding former Orange County District Attorney Tony Rackauckas accountable for using an illegal jailhouse surveillance program against the defendant in the biggest mass shooting case in county history, she fought to keep Rackauckas on the case. Now that more people than ever are paying attention to the nearly-unlimited power of prosecutors, Harris will have to answer for it on the campaign trail.

It is impossible to know for sure if Attorney General Shapiro has ambitions for higher office. Regardless, doggedly defending the state’s archaic and racist death penalty (right after trying to snatch powers from progressive DA Larry Krasner following some misleading statements) is an extremely bad look.


Photo of Pennsylvania Attorney General Josh Shapiro via Wikimedia Commons

Rory Fleming @@RoryFleming8A

Rory is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Rory is a licensed Minnesota attorney.

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