Kamala Harris is....

A complicated question

“America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice.”

Kamala Harris, The Truths We Hold: An American Journey (2019)

We’ve talked about the prosecution problem with rural jurisdictions, but what happens when one actually enters the running for the most powerful executive office in the country? She, of course, comes under the microscope.

Many say Harris is inconsistent, but many others highlight her winning track record against big business as a major consumer win, which is not common. She is also young, determined, and represents likely the most densely populated parts of America as well as the “American dream” as a second generation immigrant. Here, at MAAS, we study the CJS and not politics, inasmuch as whether politics influence the outcome of the CJS. But when a former prosecutor tries to step into the role of President? We all function as microscopes. Is a good prosecutor the same as a good president? Let’s define an ideal prosecutor and go from there.

This is an attempt to synchronise all of the articles floating around currently, in addition to some investigative reports that were also unearthed from long ago. We will try to go farther than that, and look at the legal issues present when comparing this prosecutorial idealism between what happened in Harris’s term as elected San Francisco DA (2004-2010), and California Attorney General (2011-2017).

An Ideal D.A. is…

• tough on serious crime e.g, DUI, murder, rape, child abuse, and domestic violence; but possesses restraint in cases of small and trivial criminal matters e.g., petty theft, crimes of the homeless, and juvenile matters.¹

• efficient and creative.

• compassionate to victims of crime.

• a great communicator.

• working cohesively with an equally competent team.

But because “District Attorney” is also a political role, too, in most of the U.S., this means one must also possess:

• charisma;

• good public speaking skills;

• charm; and

• an idea that others can get behind.

However, these traits really only apply to winning elections. They do not necessarily mean one will be a good CEO to the States United.² In case you can read between the lines with where this is going, Harris has opted for the political move on most issues. This goes back to my original arguments concerning the political role vs the prosecutor role in communities around America.

Tough on Crime - Mixed Reviews

As a DA, you’ve gotta enforce the law and crack some skulls, right? But, you should also take a hard stance - one way or the other - on the death penalty. Take this story from 2004: Harris opted not to seek the death penalty for a cop killer³. This didn’t make the Thin Blue Line all too happy.

"I have been very clear about not seeking the death penalty"

- Kamala Harris in 2004

Yet ten years later Harris urged the 9th Circuit to not hold the California death penalty unconstitutional as the CA Attorney General.⁴

Harris personally said she opposes the death penalty but promised voters she would enforce it. She stated that the unconstitutional ruling being appealed “undermines important protections that our courts provide to defendants.” Ultimately, the 9th Circuit agreed with Harris, but found that the petitioner did not comply with the technicalities of the confusing and detailed habeas corpus process.⁵

Possible political aspirations also might be helped by a go-slow approach. Harris faces near-certain reelection next week in her race against Republican Ron Gold, and she is considered a leading future candidate for the governor’s office or U.S. Senate. Some even have speculated about a possible presidential run or U.S. Supreme Court appointment.

- LA Times, November 2014

Look, the death penalty is literally and figuratively a black box. We are unsure how the drugs are procured⁶, given that big pharma decided to stop producing these drugs because of their death penalty use.⁷ It also signals to the rest of the nation that some crimes are bad enough that an “eye for an eye” is the only justice one should receive. People are often on death row long enough that a life sentence would be comparable, which is the point on appeal Harris argued against. Sure, one could argue that it saves taxpayer money. But that is one individual, versus the many others that are also sitting in jail, but who could be released for minor drug possession charges. Harris’s underlying point here is that, she only takes a side because the law demands her to. But this is unavailing since she specifically did not defend the anti-gay marriage Proposition 8 in 2008. Now, while I have a pretty strong view on the death penalty, let me be clear: what Harris did was wholly antithetical to consistency in the rule of law and her position as California AG.

Harris also had an… interesting policy as DA: jailing parents for their kids’ truancy. This was already the law on the books in California, but Harris pushed a standardized version of this across the state when she became AG. California has one of the highest, if not the highest, rates of socioeconomic inequality in the nation. The problem with Harris’s strategy on this “truancy” issue is that it’s often not the parents’ fault. Those parents who were processed through this monolithic grinder were overwhelmingly poor and disenfranchised folks. When Mom has to work two or three jobs to keep the lamps oiled, it’s hard to make sure that her sixteen year old daughter is going to school. That is just a fact of life for anyone who has lived this. Kids become their own parents, while their actual parents are trying to scrape by and give their kids a better life. So on and so forth.

[W]hen you use the criminal justice system to solve social problems, you will criminalize people no matter how good your intentions were.

Molly Redden - Code Switch, NPR (2020)

Gene Demby in this same NPR article above points out that Kamala wanted to divert kids from going to jail later in life, but then introduced them to the criminal system at a younger age anyway. The CJS is reactionary. It’s not something that should be used to maintain policies. We throw people in jail, at least in theory, because they represent a threat to peaceful society, not solely because we want to maintain order.⁸ There is a part of this that sends a message to the populace e.g., do not do A or the state will punish you with B because A is not conforming to our society of laws. But when this becomes, in reality, “crimes of the poor”,⁹ there is no other way to interpret the CJS in this manner, other than retaining draconian order among the populace.

So Harris likely had good intentions, but couldn’t actually touch reality with her policy here. Which makes sense. Kamala was raised in an educated family of immigrant parents. Both of her parents taught at universities, studied at UC Berkeley and Stanford respectively, and, past the age of twelve, she was raised in Montreal. Assumedly, Harris grew up in a pretty well-to-do family. A family that always likely encouraged her to go to school, and do the right thing. This is at odds with the people she was criminalizing with this truancy policy. The CJS becomes pretty tricky when you try to impose your values on others.¹⁰ MAAS is not confident in Harris here in that regard. The chance of Harris misinterpreting something and it affecting more than just kids in SF, but rather the entire American populace, increases when the people running America don’t live the same lives as average Americans. There were certainly enough examples of this kind of misinterpretation in Biden’s presidency.¹¹

After being elected attorney general in 2010, Harris's office opposed DNA testing requested by the lawyers of Kevin Cooper, a man sitting on death row for a 1985 quadruple murder he says he did not commit. As Senator in 2018, Harris then reversed course and urged California to allow such testing. This was only after the New York Times wrote an article highlighting law enforcement misconduct in Cooper’s case. Cooper was ultimately very guilty and the DNA proved that. But prohibiting testing the evidence gathered to begin with is a procedural block that is not in line with the prosecutorial goal of “seeking justice.” A good prosecutor sticks to the rules, does their duty, and still wins. If a person is guilty, the evidence will show this, and the jury will convict. This is at least, in theory, how it’s supposed to work.

In a growing urge from the populace to be protected from homelessness, drug addiction, and other scary vagrancies, Kamala strikes a cord as an officer of the law in this coming election. But the things we also equate with “crime” are really the result of our societal problems squeezing the life out of the poor. Inflation, which is really controlled by the corporations (not the Fed) has made most of the desirable places in America unlivable for poor and disenfranchised folks. If Kamala champions programs to solve these problems, attacking inequality through educational, medical, and financial means in America, she may be a good candidate. But if she tackles these problems with increased handcuffs and prison bars, the damage will be exponential.

Efficiency and Ingenuity

When we talk efficiency, we mean that a prosecutor is resolving cases at a fast clip, while maintaining important cases to dedicate resources to. When we talk about ingenuity, we are also talking about efficiency, but in the sense of the CJS mechanism as a whole. Things that affect recidivism, addiction, and violence are all issues that benefit from creative ways of seeing these issues clearly and differently.

“Why can’t you fix it from the inside?”

- Kamala Harris, 2004

This is where, to many Trumpies chagrin, Harris shines in the 2000s with the “Back on Track” program. This was the diversion-based program for first time drug offenders ages 18-30.

So [Harris] set out to build a program for people who, if reached in time, were less likely to reoffend: first-time nonviolent drug offenders, specifically those aged 18 to 30. If these offenders pleaded guilty, they could join a 12- to 18-month program of individualized support, which included job training, more than 200 hours of community service, and a requirement to find steady employment or enroll in school. It leaned heavily on public-private partnerships to create job and support services. The DA’s office reserved the right to jail participants if they broke any of the rules—even missing appointments—or were charged with another crime. At the end, there was a graduation at which a judge, who typically volunteered his or her time, would expunge the felony charge from the participant’s record.

- Jamilah King, Mother Jones 2018

This is akin to a “drug court” but done through the prosecution side of things. This is accomplished as a diversion program. These programs have been around for years but seek to target overcrowding and constant paperwork as CJS inefficiencies. From an efficiency standpoint, it makes absolute sense. If you eliminate the low level drug possessors from the typical arrest, book, and release method of processing criminals, you open up your officers to be able to focus more on crime that matters.

Harris’s BOT program went a bit further than these traditional diversion programs: it targeted employment and education at the most basic level. By giving young potential criminals an opportunity to be constructive and productive, Harris gave them things to do, rather than use. And it worked.¹² After years of success with this program, she helped get it enacted in California as a whole, while eyeing the state AG’s office all the while.

“Harris has said California needs bold leadership, but a bold leader can’t sit out on significant decisions.”

LA Times, 2016

But we need to look at what was “inefficient” as well. For example, after a 2011 U.S. Supreme Court ruling that California’s prisons were unconstitutionally overcrowded, Harris’s office argued in 2014 against releasing non-violent offenders on the grounds that early release would strip California prisons of a vital labor pool — that being the inmates, who were paid anywhere from 8 cents to 37 cents an hour. This is at odds to judicial and prosecutorial efficiency. Prisons should be reserved for the most heinous crimes, and overcrowding prisons (as a general problem) leads to decisions like this from the USSC. It’s also a weird argument, since she basically admitted that prison work is slavery.¹³

Harris also opposed removing marijuana from the federal list of controlled substances during her first term as AG. Later, in 2014 while running for re-election, she laughed out loud when asked about her Republican opponent’s support for legalization, saying, “He’s entitled to his opinion.” No matter where you are on the pot legalization spectrum, you would have to agree that the criminalization has disproportionately affected people of color. Later on, she signed Cory Booker’s bill on removing pot from the federal criminalized substances schedule. It goes without saying that Kamala Harris is a politician more than anything else.

Compassionate-ish?

Who can forget the early 2000s headlines surrounding child sex abuse in the Catholic Church? Enter the great bit of investigative journalism from

Lee Fang

, and Harris’s less public but far more muted response to discovery requests related to victims’ civil suits against the Archdiocese of San Francisco.

Let’s set the stage. In 2002, this Boston Globe article appeared, spawning a more critical look into the Catholic Church’s handling of child sex abuse allegations. This became somewhat of an awful cultural phenomenon, exposing the rampant abuse by priests and coverups by dioceses in the Catholic Church in nearly every city in the U.S. and beyond. Enter Harris, elected DA of San Francisco. She is serving during the first few years of this discovery, and in a ~20% predominantly Roman Catholic city.

Stogner v. California also appears, from our Supreme Court, which rules that the statute of limitless charges against child sexual assault perps in California is unconstitutional. Basically, the California legislature passed a law in 1994 that made the statute of limitations one year from the time the sexual abuse was reported, not when it happened. Pretty clever, but in a split 5-4 decision led by Justice Breyer, of all people, they struck this law down. At least criminally.

The statute of limitations as to civil cases, however, is a bit more fluid. Before the decision in Stogner in 2003, the SF DA Harris subsequently defeated was building these cases against priests within the archdiocese. After this, in 2004, Harris was in charge. According to many victims who were then filing civil cases, they were stonewalled when they requested any information related to the discovery in those cases. For the non-legal crowd, this “discovery” or evidence obtained by the SF DA’s office is important because it was under the auspices of government investigation, which has more advantages than regular civil firm investigation and non-law enforcement investigators.¹⁴ The evidence brought about in those investigations would have been pivotal to proving the victims’ civil cases. It also would have been easier to admit the evidence under the rules of Evidence. Without it, there is no real impeachment of the defense or substantive way to get in a lot of this testimony from the cops, and not the victims, who may be terrified to testify. This is a big roadblock to any substantive justice, and also likely for more expensive for the victims and their families to gather all of the evidence again. This is of course, if those witnesses live in SF or are even alive at all at this point. Memories fade too.

This decision by Kamala is strange, because in 1982 the Victim’s Right Act (“VRA”)¹⁵ constitutional amendment known as Proposition 8 was born. However, not until 2008 did the current version known as “Marsy’s law” come into fruition. Originally, the VRA included the rights to know about sentencing, hearings and allow for restitution to victims. Importantly, the 2008 update added the victim’s right “[t]o the prompt return of property when no longer needed as evidence.”

Even stranger, Kamala apparently advocated for the law in the case of Michael Vicks to the California Supreme Court and defended it, but it is unclear if this was because she had a “duty” or actually believed in the rights under Marsy’s Law. Harris has said that helping victims of sexual assault is “a fight not just against predators but a fight against silence and stigma.” So why not release the files?

There could be administrative reasons for this. Most importantly, Kamala’s decision could be based on not giving the evidence out to protect defendants from abuse or harassment, since they hadn’t been charged or convicted. But in another famous case in California, Goldman and Brown v. OJ Simpson the prosecution had all of the evidence from the criminal trial. This resulted in guilty verdicts that eventually ruined OJ’s life of celebrity and likely did far more long term damage to him than the criminal case did.

“She wanted the public to think this is an issue that happened years ago, that it doesn’t happen anymore. Let’s just move on.”

- Dominic De Lucca, victim of abuse of Archdiocese of SF

Unfortunately here, this seems like a political fork in Harris’s road. The Catholic Church is powerful in San Francisco, and this decision may have also been politically motivated. But still, under Marsy’s Law that Harris represented during her term as AG, this should have been released to the victims and their attorneys. This is their evidence, and the SF DA has no need to keep it under wraps at this point. Kevin V. Ryan, the former U.S. Attorney for Northern California agrees with this point. This seems to be yet another political decision for climbing the ladder than assisting victims of crime.

Kama-clusion

I’m not going to look at the last few points, because this is starting to drone on and you see the point here. When politics mix with the CJS, there will always be the preference of the “appeal to voters” rather than doing the right thing for your constituents. Throughout all of these decisions, Kamala’s point seems to be political “convenience” than making the tough decisions in the face of opposition. Even when her choices are made in the face of opposition, they usually coincide with a political move or promise.

Kamala put together some great programs, but she had some mixed reviews overall. In the dark, where it is not so overly publicized, there are some glaring issues with her track record. I make no appeal to you as a voter on who you should vote for, but I do think that by using the prosecutor metric with Kamala, this role is not her pigeonhole. She’s a politician, and she’s been ambitious for most of her life in this arena. Don’t look to her prosecutor record for anything other than examples of that ambition and political convenience.

Thanks for reading!

- HJRC