AG Henry Issues Statement on Status of Act 40’s Special Prosecutor Mandate

January 11, 2024 | Topic: Criminal

HARRISBURG — Attorney General Michelle Henry issued a statement regarding Act 40 and the legislative mandate to appoint a special prosecutor regarding crimes on SEPTA:

Act 40 was not an initiative of the Office of Attorney General. Our agency did not request such prosecutorial power, nor did it advocate for such power once it was proposed in the General Assembly.

Nevertheless, the legislature enacted this statute and the Governor signed it into law, and it carries with it a presumption of constitutionality.

It is not the duty of the Attorney General to determine the wisdom of the policy underlying Act 40. The Office of Attorney General also does not have the power to, on its own, declare the statute unconstitutional — that power rests solely with the judiciary.

Unless and until a court of law declares Act 40 unconstitutional, the Office of Attorney General is required, pursuant to the Commonwealth Attorneys Act, to carry out this legislative mandate.

Act 40 does not permit any discretion on the part of our agency to appoint a special prosecutor — it compels it.

Our office has worked to meet the mandate to appoint a special prosecutor, but given the narrow requirements set by the legislature we have thus far been unable to do so.

We will respond to Mr. Krasner’s complaint as required by court rules.

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