This is the third installment in the series The Contenders 2020: Criminal Justice in the Race for President. It was published as part of the Feb. 14 Daily Appeal .
When Kamala Harris, a career prosecutor who has spent two years in the Senate, announced her bid for president, the Daily Appeal and other publications took her to task for painting herself as a “progressive prosecutor”; her two decades in law enforcement indicate that she was more “tough on crime” than “Black Lives Matter.” Last Sunday, another senator with a prosecutorial career behind her announced that she would seek the presidency: Amy Klobuchar of Minnesota. As a prosecutor, Klobuchar was not the worst or the most callous toward the plight of those prosecuted by her office, and at the time, her methods were not seen as extreme. But she ramped up incarceration in ways that were wrongheaded and cruel. Unlike Harris, Klobuchar left law enforcement in 2007, before most reform movements gained traction. Neither candidate has issued an apology. But it seems unfair to criticize Harris, the candidate whose manner of not apologizing involves rewriting the past to conform to present standards, while giving a pass to Klobuchar, the candidate who doesn’t seem to find anything problematic in her record at all.
Klobuchar did not begin her career as a prosecutor. After graduating from the University of Chicago law school, she went into corporate law and eventually became a partner at two law firms. In 1998, she ran for county attorney of Hennepin County and won. “She runs as a tough on crime prosecutor, and she does what she says she’s going to do,” law and political science professor David Schultz told the Daily Appeal in a phone interview. “Her office is tough on a lot of crimes.”
A year into her tenure, Klobuchar’s office released a report, proudly documenting how much more incarceration was happening on her watch. The report reads like a negative campaign ad that a progressive could use against her today, or a “listicle” entitled, “Things a Sensible, Fair-Minded Prosecutor Should Never Do.” Klobuchar said of her first year, “We focused our efforts to be responsive to property crimes.” During that year, 27 people convicted of property crimes were sentenced as career offenders. The previous year, that number had been three. One man was given 10 years for offering a forged check, a crime for which the state sentencing guidelines recommended two years and two months. Klobuchar declined to prosecute far fewer property cases than her predecessor. Her office charged six people with felonies for failure to pay child support, a policy the Daily Appeal has said criminalizes poverty and “makes no sense.” Klobuchar’s office seems to have increased the school-to-prison pipeline, taking over prosecution of school-related charges, which resulted in over 400 charges in one semester. In 1997, 33 percent of “serious drug dealers” were sentenced to prison time; during her first year in office, that percentage had nearly doubled. [See Margaret Zack / Star Tribune]
Schultz told the Daily Appeal that he checked Westlaw to see what convictions from Klobuchar’s office were appealed, and he found that appeals stemmed mostly from the office asking for upward departures from the sentencing guidelines. “I saw three main areas: gun crimes, sex crimes, and I saw drugs come up a lot,” he said. “Like a lot of prosecutors at the time, she bought into the broken windows theory. She was going after broken windows, graffiti, the small stuff, and asking for upward departures.” Although the percentage of people of color sent to prison did not increase under Klobuchar, Schultz says she was not particularly sensitive to issues of racism and discrimination in the system.
Klobuchar strived for longer sentences, driving the prison population up during her tenure. “In 1990, drug offenders made up 9 percent of the state prison population; by 2004, it was 23 percent,” writes Sam Brodey for the Daily Beast. And even though most reform movements were a decade away, not everyone encouraged her to put so many people in cages. “In 2004, then state legislator Keith Ellison promoted a bill to relax the state’s strict standards for sentencing on drug offenses, arguing that prison cells should be reserved for ‘the truly dangerous.’” Klobuchar opposed the move. “‘We must keep a focus on drug dealers. We can’t go too far the other way,‘ she told the Star Tribune in 2004.” The conservative and tough-on-crime hardliner blog, Power Line, praised Klobuchar in 2003, writing that she “vigorously [supports] the prosecution and incarceration of the gangbangers without the slightest public display of hesitation, handwringing, or apology.” [See Sam Brodey / Daily Beast]
Schultz notes that Minneapolis was known in the mid-1990s as “murderopolis,” adding that “there was pretty powerful community demand, including in Hennepin County, for getting tough on crime.” And although Klobuchar promised to crack down on crime in her campaign, she did run to the left of her opponent on various issues. She expressed interest in drug courts, and opposed the death penalty under any circumstances (though this should not be given too much weight, as Minnesota abolished the death penalty in 1911).
Even though this brand of prosecution was not uncommon at the time, the suffering her office inflicted on people and their families was just as real, and just as senseless. She implemented the kind of policies that today’s progressives are working hard to dismantle. And she herself has played a part in that rollback, as a sponsor of the First Step Act. Last December, Klobuchar praised the bill’s provisions that grant more lenient treatment to low-level drug offenders. And in an appearance on “Meet the Press” in August she acknowledged, “We know that there is racism in the system that needs to be fixed.”
But given the harm Klobuchar caused, and the role, however limited, she has played in ameliorating that harm, one might expect a reckoning, an apology, a promise to do things differently. But so far, that has not happened. “I always believe in doing my job without fear or favor,” she said in prepared speech announcing her presidential bid. “That’s what I do as a Senator and that’s what I did as a prosecutor. And that means not only convicting the guilty but protecting the innocent. That’s why I have and why I will always continue to advocate for criminal justice reform.” If this is what Klobuchar thinks criminal justice reform is about, and if she wants to become an ally, then she has a long path ahead of her. A justice system does not live up to its name merely by “convicting the guilty” and “protecting the innocent,” which can result in egregious injustices, as it did when Klobuchar was county attorney and sent dozens of young people to prison on felony charges for graffiti. Instead, a truly just system would protect everyone, striving to secure equal opportunities for each person’s success and well-being. That is not what happened in Hennepin County under Klobuchar, and she has not articulated a vision for how she might help bring about such a system.
Unlike Kamala Harris, Klobuchar has not tried to recast her prosecutor years as more progressive than they were. But maybe this is because she does not see a problem. Indeed, as a senator, Harris has demonstrated more understanding of the criminal justice landscape and what is needed for meaningful reform. Not all past misdeeds should disqualify a candidate, and, for policy pragmatists, a candidate who has demonstrated remorse and charted a new course could become a strong ally. But before a new course must come a reckoning, and before a reckoning must come an understanding. Klobuchar, it seems, has barely begun.