This is the first installment in the series The Contenders 2020: Criminal Justice in the Race for President. It was published as part of the Jan. 22 Daily Appeal newsletter.
Yesterday, a few Americans spent the day giving thought to the legacy of Dr. Martin Luther King Jr. Many took advantage of the holiday to relax. On morning television, Senator Kamala Harris, a California Democrat, chose to invoke Dr. King’s legacy while announcing her bid for president in 2020. If elected, Harris would be the first Black woman, and first woman, to become president. But it is unclear that Dr. King—who wrote in 1958, “I had seen police brutality with my own eyes, and watched Negroes receive the most tragic injustice in the courts”—would have smiled. In her recently published memoir, Harris writes: “America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice,” adding, “I know this history well—of innocent men framed, of charges brought against people without sufficient evidence, of prosecutors hiding information that would exonerate defendants, of the disproportionate application of the law.”
But, as law professor Lara Bazelon wrote in the New York Times, “[a]ll too often, she was on the wrong side of that history.” As district attorney of San Francisco and then attorney general of California, Harris’s prosecutors did every one of those things, and, when called to account, Harris defended her office and fought to keep victims behind bars. “Time after time, when progressives urged her to embrace criminal justice reforms as a district attorney and then the state’s attorney general, Ms. Harris opposed them or stayed silent,” writes Bazelon. “Most troubling, Ms. Harris fought tooth and nail to uphold wrongful convictions that had been secured through official misconduct that included evidence tampering, false testimony and the suppression of crucial information by prosecutors.” “It should matter to us that Harris, the ardent criminal justice reformer, not only did little to enact this reform during her years as a prosecutor but backed harsh, punitive policies [and] at times did so needlessly, taking a harsher stance than her right-wing opponents,” writes Branko Marcetic for Jacobin.
It is important to note that timing matters. When Hillary Clinton was running for president, she was right to apologize for her use of the racist term “superpredator,” which was used to justify some of the most draconian and harmful criminal justice policies of the 1990s. But she used the term in 1996, when tough-on-crime attitudes were the norm. Harris was adopting regressive stances and policies two decades later. Law professor James Forman Jr., whose recent book, “Locking Up Our Own,” examines the role of Black people in American law enforcement, wrote on Twitter, “I do think timing matters. A stance taken in 1995 is different than 2010. I need to think about this more, but timing might cut *against* Harris. Some of Harris’s bad takes were recent, well after the movement against mass incarceration had gained traction.” Indeed, Harris became a prosecutor in 1990, against some family members’ wishes. She served as San Francisco’s district attorney from 2004 to 2011, and California attorney general from 2011 to January 2017, hardly ancient history. Forman adds: “Regardless of the era, a prosecutor who wants to claim the progressive mantle shouldn’t be defending tainted convictions.”
Indifference to injustice
Despite her claims of sympathy toward “innocent men framed,” Harris seemed to work hard to keep many of them behind bars, or on death row, unacceptable behavior for any prosecutor, in any era. After a man was exonerated by the Innocence Project and had his conviction overturned, Harris challenged his release, after 13 years in prison, claiming that the man had not produced evidence of his innocence fast enough. In another case, where a prosecutor had falsified an interview transcript to add an incriminating confession, Harris tried to argue that because the false confession was not obtained by force, it did not violate the defendant’s constitutional rights. The judge disagreed. In another case, a prosecutor lied to a jury, and a panel of federal judges asked why such prosecutors were not being charged with perjury, threatening to release names if Harris’s office continued to defend them. Harris only backed down when video of the hearing was released and embarrassed her office. When a “bombshell” report revealed a long-running and unconstitutional jailhouse snitch program and prosecutorial coverup, Harris’s office appealed the removal of the Orange County district attorney’s office from a death penalty case. [See: C.J. Ciaramella / Reason]
In 2010, a memo surfaced showing that Harris’s deputies in the district attorney’s office knew that a police laboratory technician had been accused of “intentionally sabotaging” her work and stealing drugs from the lab, but withheld information about it from defense lawyers. A judge condemned Harris’s indifference to the injustice, and Harris accused the judge, whose husband was a defense attorney, of bias. Harris lost, and more than 600 cases handled by the corrupt technician were dismissed. In one death row case, based on extremely shaky evidence, Harris opposed a motion for DNA testing that could exonerate the possibly innocent man. (After a New York Times exposé went viral, she reversed her position.) [See: Lara Bazelon / New York Times]
Long after the American public became aware that mass incarceration was a failed experiment, especially tragic for people of color, Harris failed to support progressive measures that would alleviate some of its impact. In some cases, she pushed for more. While running for attorney general, Harris championed state legislation that allowed for the criminal prosecution, and jailing, of parents whose children were habitually truant, despite evidence that it would disproportionately affect low-income people of color (and senselessly criminalize behavior that would benefit from services).
Harris appealed a federal judge’s ruling that the death penalty was unconstitutional. As late as June 2016, she was defending the constitutionality of bail in court. She failed to support Proposition 47, a ballot initiative that reduced low-level felonies to misdemeanors. When the Supreme Court decided that California’s overcrowded prisons were cruel and unusual punishment, Harris fought a ruling ordering the state to release some of its prisoners. In her crusade against Backpage and support for SESTA, Harris showed that she was no friend to sex workers.
Harris defended California’s “uniquely cruel three-strikes law,” writes Marcetic, when she urged voters to reject Proposition 66, “a ballot initiative that would have reformed the harsh law by making only serious or violent felonies trigger life sentences.” Later, she offered weaker solutions. In the race for attorney general, her Republican opponent ran to her left on this issue. As the Los Angeles County district attorney, he had proposed a reform of the law, which she had not supported. On marijuana, Harris opted not to join in other states’ attempts to take marijuana off the federal list of most dangerous substances. When asked about legalizing recreational marijuana in 2012, Harris laughed. Once again, in 2014, Harris’s Republican opponent ran to her left on the issue. She eventually reversed course on marijuana last year, long after public opinion had shifted.
In 2015, after Michael Brown and Eric Garner had been killed by police officers, sparking national protests and marches, Harris opposed a bill requiring her office to investigate fatal police officer shootings. And she refused to support statewide standards for police body cameras. She did back a bill that required reports on officer-involved shootings to be posted publicly online, and mandated bias training. But as district attorney, she refused to disclose the names of police officers with arrest records and histories of misconduct, even when testimony from those officers had led to convictions. Melina Abdullah, a Black Lives Matter activist and professor of pan-African studies, commented: “This is not the time for timidity. … Martin Luther King said if you tell black people to wait, that means never.”
This is not to say that Harris was among the worst prosecutors in America. She would not even crack a top 10 list. Harris ran for district attorney promising never to seek the death penalty, and, six months into her tenure, stuck to that promise despite opposition from Democratic Senator Dianne Feinstein and others in the case of a man accused of killing an undercover police officer. (Later, as attorney general, she defended the death penalty.) She implemented a program that placed young people facing their first charges into 18-month city college apprentice programs. She also ordered parole officers not to enforce residency restrictions against sex offenders.
But do we want to nominate a prosecutor at all?
When asked about her decision to become a prosecutor, Harris said she wanted “to be a voice for the most voiceless and vulnerable and to do the work of justice.” But, Briahna Gray asks in The Intercept, “who, especially in the era of Black Lives Matter, would flatly describe the enforcement arm of the criminal enforcement as doing ‘the work of justice?’” Journalist Jill Filipovic wrote recently on Twitter that she judges Harris’s history less harshly because Black women “shoulder additional burdens” and women have to prove that they are “tough.” Gray sympathizes with Harris’s burdens, but those sympathies, she says, “do not eclipse the concern I have for the black women who bore the consequences of Harris’s prosecutorial misjudgment.” She adds, “Importantly, if Harris had to be tougher on crime because she is black, it wasn’t for the sake of some higher ideal. It was because her personal ambitions demanded it.”
“It used to be the case that a well worn and respected path to politics started in law school and cut through the District Attorney’s office,” writes Gray, but “that trajectory seems less tenable today — at least for those on the left — and candidates who started laying the bricks of their path to the White House years ago will have to reckon with the fact that the public imagination has been expanded beyond the impotent incrementalism that has long been held up as America’s best option.” Some candidates will distance themselves from their records with sincere apologies and, even better, actions that manifest a commitment to change. “Not everyone will successfully rehabilitate themselves,” Gray predicts. “And that’s not necessarily a bad thing.”
In considering the 2020 field of contenders, it might help to remember Dr. King’s words on politics and expediency: “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.”