Kamala Harris’s controversial record on criminal justice, explained

Harris has characterized herself as a reformer. But some critics disagree.

German Lopez@germanrlopez

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Aug 12, 2020, 10:25am EDT

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Sen. Kamala Harris (D-CA) has earned the reputation of a rising star in the Democratic Party, most recently becoming former Vice President Joe Biden’s running mate in the presidential election. But Harris has also faced questions over her record on criminal justice issues — a record that’s led some critics to describe her not as a progressive reformer but as a relic of a “tough on crime” era going back to the 1990s and 2000s.

A generation after Democrats embraced “tough on crime” policies that swelled prison populations, progressive activists are pushing to make the criminal justice system less punitive and racist — and polls show a majority of Democrats support such efforts. Harris has argued that her views align with the new progressive movement. But her record in California, where she was a prosecutor, district attorney, and state attorney general before representing the state in the US Senate, has come under harsh scrutiny and debate since she launched her own presidential campaign in 2019.

Harris argues that she’s fought to reverse incarceration, scale back the war on drugs, and address racial disparities in the criminal justice system. But as her star has risen nationally — she’s had several viral moments questioning President Donald Trump’s nominees in the Senate — those more familiar with her criminal justice record, particularly on the left, have voiced their skepticism.

“In her career, Ms. Harris did not barter or trade to get the support of more conservative law-and-order types; she gave it all away,” wrote Lara Bazelon, a law professor and former director for the Loyola Law School Project for the Innocent in Los Angeles, in a New York Times op-ed.

Harris’s supporters argue that these criticisms sell her short, missing the times she was ahead of the country and her party on criminal justice issues — such as when she implemented prison diversion programs as district attorney and a “first-of-its-kind” racial bias training for police officers.

“Kamala Harris has spent her career fighting for reforms in the criminal justice system and pushing the envelope to keep everyone safer by bringing fairness and accountability,” Lily Adams, a spokesperson for Harris, previously told me.

Harris, as part of her previous presidential campaign, also released a criminal justice reform plan that seeks to scale back incarceration, end the death penalty and solitary confinement, ban private prisons, and get rid of cash bail. Biden also backs a fairly aggressive criminal justice reform plan, despite his own mixed record on criminal justice issues as well.

A close examination of Harris’s record shows it’s filled with contradictions. She pushed for programs that helped people find jobs instead of putting them in prison, but also fought to keep people in prison even after they were proved innocent. She refused to pursue the death penalty against a man who killed a police officer, but also defended California’s death penalty system in court. She implemented training programs to address police officers’ racial biases, but also resisted calls to get her office to investigate certain police shootings.

But what seem like contradictions may reflect a balancing act. Harris’s parents worked on civil rights causes, and she came from a background well aware of the excesses of the criminal justice system — but in office, she played the role of a prosecutor and California’s lawyer. She started in an era when “tough on crime” politics were popular across party lines — but she rose to national prominence as criminal justice reform started to take off nationally. She had an eye on higher political office as support for criminal justice reform became de rigueur for Democrats — but she still had to work as California’s top law enforcement official.

Her race and gender likely made this balancing act even tougher. In the US, studies have found that more than 90 percent of elected prosecutors are white and more than 80 percent are male. As a Black and Indian American woman, Harris stood out — inviting scrutiny and skepticism, especially by people who may hold racist stereotypes about how Black people view law enforcement or sexist views about whether women are “tough” enough for the job.

Still, the result is the same: As she became more nationally visible, Harris was less known as a progressive prosecutor, as she’d been earlier in her career, and more a reform-lite or even anti-reform attorney general. Now critics have labeled her a “cop” — a sellout for a broken criminal justice system.

How much all of this is a liability for Harris, as a nominee for vice president, remains to be seen, as the Democratic ticket tries to balance support from progressives who have called to end mass incarceration and “defund the police” with support from moderates who may prefer a candidate with “law and order” credentials. How it plays out could help determine whether Biden and Harris can defeat Trump and Vice President Mike Pence in November.

Harris as a “progressive prosecutor”

From the beginning of Harris’s career in the criminal justice system, she said she saw herself as a progressive working within a system she wanted to change — “at the table where the decisions are made,” she told the New York Times Magazine in 2016.

She started out working at prosecutors’ offices in the late 1980s and early 1990s, then became San Francisco’s district attorney, the top prosecutor for the city, in 2004. In 2011, she became California’s attorney general, the top law enforcement official in the state. She held that position until 2017, when she became a US senator for California.

In her more recent memoir, The Truths We Hold, Harris described how she saw her role: “The job of a progressive prosecutor is to look out for the overlooked, to speak up for those whose voices aren’t being heard, to see and address the causes of crime, not just their consequences, and to shine a light on the inequality and unfairness that lead to injustice. It is to recognize that not everyone needs punishment, that what many need, quite plainly, is help.”

It reflects a view embraced by many progressives in the criminal justice reform movement: that the US puts far too many people — particularly people of color — in prison, typically for way too long, and without doing enough to fight the “root causes” of crime.

Parts of Harris’s record match that rhetoric.

In 2004, as district attorney of San Francisco, she refused to seek the death penalty against a man convicted of shooting police officer Isaac Espinoza. She faced opposition from fellow Democrats; Sen. Dianne Feinstein (D-CA) called for the death penalty at the officer’s funeral. But Harris didn’t budge — an act of principle that cost her key political allies (as she received almost no support from police groups during her first run for attorney general in 2010).

Harris also pushed for more systemic reforms. Her most successful program as district attorney, “Back on Track,” allowed first-time drug offenders, including drug dealers, to get a high school diploma and a job instead of prison time. Adams, Harris’s spokesperson, noted that the program started in 2005, “when most prosecutors were using a ‘tough on crime’ approach.”

The climate at the time was far less open to progressive criminal justice policy. The year before, presidential candidate John Kerry had run, in part, on hiring more cops, adopting a “zero tolerance” approach to gangs, and “cracking down on drug trafficking.” Crime wasn’t a major issue in the 2004 presidential election, but Kerry’s platform was the legacy of the 1980s and ’90s, when Republicans and Democrats — including President Bill Clinton — competed to see who could be “tough on crime.”

“When she became district attorney, no one was talking about progressive prosecutors,” Tim Silard, who worked under Harris at the San Francisco district attorney’s office, previously told me. “She was absolutely an outlier within the California District Attorneys Association, [and] got some pushback and criticism from there.”

In one instance — her handling of California’s “three strikes” law — Harris was arguably ahead of the time. Under the law, someone who committed a third felony could go to prison for 25 years to life, even if the third felony was a nonviolent crime. But Harris required that the San Francisco district attorney’s office only charge for a third strike if the felony was a serious or violent crime.

California voters in 2004, the year that Harris took office, rejected a ballot initiative to implement a similar reform statewide — though the ballot proposal had some pushback on the details, leading to Harris’s own opposition. It wasn’t until 2012 that voters approved the change.

“There’s been incredibly rapid change in public opinion, in attention to criminal justice,” Silard said, citing his decades-long experience in the criminal justice system and current experience as president of the reform-minded Rosenberg Foundation. “Bringing a reverse lens to that is not fair, and also doesn’t recognize folks who were courageous at that time.”

Still, Harris did embrace some “tough” policies while in the district attorney’s office, such as an anti-truancy program that targeted parents of kids who skipped school and threatened them with prosecution and punishment to push them to get their children to class.

As she geared up to run for California attorney general in 2010, Harris positioned herself as a criminal justice reformer, focusing on improving support for people leaving prison, and published a book in 2009, Smart on Crime, on criminal justice reform.

By this point, Harris wasn’t so much ahead of her time. Criminal justice reform had spread nationally: Congress passed the Fair Sentencing Act of 2010, effectively reducing penalties for crack cocaine. States, facing budget constraints from housing so many prisoners, started to roll back punishments for nonviolent crimes — even in conservative states like Texas and South Carolina.

And books like 2010’s The New Jim Crow by Michelle Alexander drew attention, particularly among white progressives, to a criminal justice system plagued by vast racial disparities. (Harris’s 2009 book, by contrast, was “largely colorblind” and “mentions racial bias in policing just twice,” Molly Hensley-Clancy noted at BuzzFeed.)

The progressive prosecutor has also in recent years become much more common, exemplified by Larry Krasner in Philadelphia, Kim Foxx in Cook County (Chicago), and several others.

That changing context is part of why many of Harris’s next moves, as California attorney general, disappointed some progressives and criminal justice reformers, including some of her former supporters.

Harris’s mixed record as attorney general

Based on Harris’s record, supporters easily could have expected her to come into the California Department of Justice as attorney general and really shake things up. But that didn’t happen: Her office’s handling of over-incarceration, the death penalty, and wrongly incarcerated people were among the several issues in which Harris by and large maintained the status quo.

She implemented some reforms: She expanded her “Back on Track” program to other parts of the state. After Black Lives Matter took off, she introduced and expanded what her office described as “first-of-its-kind training” to address racial bias as well as procedural justice — earning praise from local newspapers. She made the California Department of Justice the first statewide agency to require body cameras. And she launched OpenJustice, a platform that, among other data, allows the public to track reported killings by police officers.

But Harris also allowed many parts of the Justice Department to essentially operate as they long had, which at times led to what many now see as major injustices. In many cases, this led to her office making decisions that Harris, under scrutiny, tried to distance herself from.

For example, Harris’s office fought to release fewer prisoners, even after the US Supreme Court found that overcrowding in California prisons was so bad that it amounted to unconstitutional cruel and unusual punishment. At one point, her lawyers argued that the state couldn’t release some prisoners because it would deplete its pool for prison labor — but Harris quickly clarified that she was not aware her office was going with that argument until it was reported by media.

Or consider Harris’s handling of appeals for release by innocent people in prison. In one case, her office argued against Daniel Larsen, who was proven innocent by the Innocence Project, because, Harris’s office claimed, he filed his petition for release far too late after a legal deadline. The court disagreed, allowing Larsen’s release in 2013. (In the New York Times, Bazelon listed several more such cases.)

Harris’s supporters argue that Harris likely wasn’t closely involved in these cases because Justice Department policy didn’t require state lawyers to seek approval from the attorney general. As Harris said at a primary campaign event, “There are cases … where there were folks that made a decision in my office and they had not consulted me, and I wish they had.” But Harris could have changed department policy and become more hands-on in pushing reform, if she was willing to risk a potential backlash from the people under her.

Then there’s the death penalty. Harris remains personally opposed to the death penalty, and earlier in her career, she’d been willing to incur political backlash by refusing to seek it in 2004. But as attorney general, she told voters she would enforce capital punishment. And she did: In 2014, she appealed a judge’s decision that deemed California’s death penalty system unconstitutional.

Harris didn’t have to do this. In another case, she declined to defend Proposition 8, which prohibited same-sex marriage.

But in office, she seemed to avoid antagonizing the rank and file — which opposition to the death penalty and other “tough on crime” policies could do. She often described herself as one of them, calling herself California’s “top cop” and writing in her 2009 book that liberals need to move beyond “biases against law enforcement.”

Harris also overlooked and defended law enforcement officials accused of misconduct. In one such case, a state prosecutor, Robert Murray, falsified a confession, using it to threaten the defendant with life in prison. After a court threw out the indictment, Harris’s office appealed it, dismissing the misconduct because it did not involve physical violence.

Harris also resisted some attempts to hold police accountable for shootings, including a bill that would have required the attorney general’s office to investigate killings by police and efforts to create statewide standards for police-worn body cameras. She also defied calls to have her office quickly investigate certain police shootings in California.

“There’s lots of resistance [to reform], both within your own ranks and then from the cops and their allies,” Silard told me. And acting differently in these situations could have upset the rank and file — after Harris narrowly won her election in 2010 by less than 1 percentage point, without the support of most law enforcement groups.

But her inaction angered activists.

“How many more people need to die before she steps in?” an activist and former supporter, Phelicia Jones, told the San Francisco Chronicle in 2016, regarding police shootings. Jones went on, directing her comments to Harris: “We don’t even know that you care. You have turned your back on the people who got you to where you are.”

In the Senate, Harris has championed criminal justice reform

Since her Senate campaign in 2016, Harris has tried to avoid the faulty parts of her record, and instead emphasized the reforms she’s supported and implemented over the years. She has adopted sweeping rhetoric about the criminal justice system, arguing that it needs to be systematically changed. Her presidential primary campaign website characterized her as “for the people,” “speaking truth, demanding justice,” and “fighting to fix our broken criminal justice system.”

Consider one of Harris’s common lines: She’s described her support for criminal justice reform as pushing for a better return on investment, pointing out that US prisons see recidivism rates as high as 70 percent or more. As Harris told the New York Times Magazine in 2016, “If we were talking about any other system where you have a failure rate of about 70 percent, the investors would say, at the very least, do a wholesale reconstruction, if not shut it down.”

This is strong rhetoric — which suggests that Harris’s ultimate aim isn’t to merely tinker with the criminal justice system, but to seriously transform it. This aligns Harris far more with where Democrats are today, as Black Lives Matter, ACLU types, and criminal justice reformers push the party to the left on this issue.

In the Senate, Harris has consistently backed reforms, although her leadership role on these issues hasn’t been as extensive as that of some other senators.

She introduced a bail reform bill with Sen. Rand Paul (R-KY) that would encourage states to reform or replace their bail systems. This is a big part of the criminal justice system: By most estimates, hundreds of thousands of people are in jail right now, before they’ve been convicted of a crime, just because they can’t afford to pay their bail. A lot of advocacy work is now dedicated to getting rid of money bail almost entirely, which some places, like Washington, DC, have done with success. But the bill hasn’t moved far in Congress — although it’s now part of Harris’s presidential campaign platform.

In a team-up with Sens. Cory Booker (D-NJ) and Tim Scott (R-SC), Harris also introduced a bill that would for the first time make lynching a federal crime, which has long been a goal for racial justice and civil rights activists. A final version of the bill is currently held up in the Senate.

Harris also voted for the First Step Act, the most significant federal criminal justice reform bill to get through Congress in decades — although she tweeted at length about the bill’s shortcomings. She signed on to Booker’s marijuana legalization bill, introduced her own bill to decriminalize marijuana at the federal level, and voted to legalize hemp.

After the 2020 Black Lives Matter protests over the Minneapolis police killing of George Floyd, Harris also backed more aggressive reforms to US policing, telling Meghan McCain on The View that the country is “reimagining how we do public safety in America” and speaking favorably of shifting resources from law enforcement to addressing the “root causes” of crime, such as poverty, education, and mental health issues.

Other Democratic senators, though, have gone a bit further on criminal justice issues. Booker, for one, introduced the Reverse Mass Incarceration Act — an effort, however flawed, to get states to systematically reduce incarceration rates. Harris has yet to introduce bills that are just as sweeping, or any systemic reform bills besides her bail proposal, even as she uses rhetoric decrying the criminal justice system as a whole.

Harris’s limited role to this point is perhaps expected for a junior senator, but it may be disappointing for people expecting more from a presidential contender with roots in the criminal justice system and who promised something closer to “a wholesale reconstruction” than tinkering at the edges.

But at least when the issue comes to a vote, she’s so far consistently been on the reform side in the Senate — and has made support for reform central to her message as she’s run for Senate, then president, and now vice president.

Progressives will have to weigh what Harris is saying now versus parts of her past

The question Harris now faces: Are the reforms she pushed for as a prosecutor and attorney general, and her consistently progressive work in the Senate, enough to satisfy progressives and criminal justice reformers?

The concern here isn’t merely figuring out whether Harris is an honest person. A constant worry in criminal justice work is what would happen if, say, the crime rate started to rise once again. In such a scenario, there would be considerably more pressure on lawmakers — and it’d at least be easier for them — to go back to “tough on crime” rhetoric, framing more aggressive policing and higher incarceration rates in a favorable way.

Given that the central progressive claim is that these policies are racist and, based on the research, ineffective for fighting crime in the first place, any potential for backsliding in this area once it becomes politically convenient is very alarming.

This happened before. From the 1960s through the ’90s, crime and drug use were skyrocketing in the US. Americans were much more likely, especially in the early ’90s, to say that crime was the most important problem facing the country at the time. That drove lawmakers, both Democrats and Republicans, to try to find solutions that they could sell to the public — and they by and large landed on a more punitive criminal justice system.

But any link to those “tough on crime” policies now could hurt Harris — and Biden — politically. According to a 2016 Vox/Morning Consult survey, around two-thirds of Democrats and a majority of all voters support removing mandatory minimum sentences for nonviolent drug offenders, reducing sentences for drug offenses in general, sentencing more people to probation and community service instead of prison, and adopting a national law decriminalizing marijuana. Other polls have found even higher support for criminal justice reforms among Democrats and other voters.

In response to the criticisms, Harris said during the first day of her presidential campaign that she took “responsibility” for some of the problems: “The bottom line is the buck stops with me, and I take full responsibility for what my office did.”

In response to a question about her office’s efforts when she was attorney general, on behalf of the California Department of Corrections, to stop a transgender inmate from getting gender-affirming surgery, Harris elaborated further.

“I was the attorney general of California for two terms, and I had a host of clients that I was obligated to defend and represent,” she said. “I couldn’t fire my clients and there were unfortunately situations that occurred where my clients took positions that were contrary to my beliefs.”

More broadly, Harris has explained that she rejects what she describes as “the false choice” between criminal justice reform and supporting law enforcement.

“I will never make an excuse for saying this, or an apology for saying this: One human being kills another human being, a woman is raped, a child is molested, there needs to be serious consequence and accountability,” she said during a one-hour interview for her memoir in January 2019. “And I’m always going to say that, and I’m going to say America has a problem with mass incarceration, we have been locking up Black and brown men in particular, [and] we have built-in biases that are implicit and explicit that need to be addressed.”

And after she announced her presidential bid, Harris announced a criminal justice reform plan that would enact an ambitious list of policy changes to scale back mass incarceration, “tough on crime” policing, and the war on drugs.

Some argue that Harris might not ever be redeemed, because the past job she took at the time she took it just doesn’t line up with progressive values today. As Briahna Gray, who worked for the Bernie Sanders campaign, previously wrote for the Intercept, “To become a prosecutor is to make a choice to align oneself with a powerful and fundamentally biased system.”

Yet some seem to have forgiven Harris. Shaun King, a prominent racial justice advocate and former surrogate for Sanders, told BuzzFeed that he’s come around to Harris, despite her past record. “I was a little slow to trust her as a reformer on criminal justice, but I think she’s proven herself to me,” he said. “I think she’s become one of the better spokespersons for really serious criminal justice reform in the Democratic Party.” King repeated as much after Harris was picked as Biden’s running mate.

For Harris, where voters land in this debate could help decide how much she can help Biden defeat Trump.

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