Was Kamala Harris Really A 'Progressive Prosecutor' When She Was San Francisco District Attorney?

Feb 5, 2019

Kamala Harris speaks at a criminal justice conference in 2007, while she was District Attorney for the City and County of San Francisco.
Credit You Tube

Early in her run for president, California U.S. Senator Kamala Harris has presented herself as a 'progressive prosecutor'... someone who pushed for criminal reforms from inside the system.  Capital Public Radio PolitiFact reporter Chris Nichols examined Harris' career... and whether the image she's crafted matches with reality.

U.S. Sen. Kamala Harris, D-Calif., kicked off her campaign for president with a speech that, in part, pushed back against critics who believe she failed to challenge shortcomings of the criminal justice system during her career as an elected prosecutor.

Harris, 54, served as California’s attorney general from 2011 through 2016 and before that as San Francisco’s district attorney. In her Jan. 27 speech -- as in her new book and in media interviews -- Harris cast herself as a prosecutor who fought from the inside for progressive change.

"My whole life, I’ve only had one client: the people," Harris told a crowd of thousands of supporters gathered in front of Oakland City Hall. "Fighting for the people meant fighting on behalf of survivors of sexual assault -- a fight not just against predators but a fight against silence and stigma. For the people meant fighting for a more fair criminal justice system. At a time when prevention and redemption were not in the vocabulary or mindset of most district attorneys, we created an initiative to get skills and job training instead of jail time for young people arrested for drugs."

We examined Harris’ record to see whether it supports the image she’s crafted as a prosecutor, one who stands up for progressive principles.

Through interviews with law professors, former prosecutors, political analysts and the candidate’s campaign, we found a mixed record.

On the one hand, Harris achieved some notable reform-minded victories, including efforts to reduce recidivism and eliminate bias in law enforcement. She also burnished her progressive credentials in 2004 with a controversial decision as district attorney not to seek the death penalty for a man suspected of killing a police officer.

At other times, Harris’ positions disappointed criminal-justice advocates, and that’s becoming an issue in the Democratic presidential primary.

For instance, as attorney general in 2016, she opposed a bill to require her office to investigate shootings by police, and she declined to weigh in on state ballot measures to legalize recreational marijuana and to reduce penalties for nonviolent crimes. And despite her personal opposition to the death penalty, Harris defended it in court as attorney general.

"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," Lara Bazelon, a professor at San Francisco Law School and former director of the Loyola Law School Project for the Innocent wrote in a New York Times op-ed titled "Kamala Harris Was Not a ‘Progressive Prosecutor.’"

Harris’ criminal justice reform achievements

There’s little question that Harris has notched some achievements that are in tune with what criminal-justice reform advocates have sought. They include:

• The Back On Track program in 2005, which was designed to help nonviolent, first-time drug offenders transition back to their communities and prevent recidivism.

• Her refusal in 2013 to defend California’s voter-approved ban on same-sex marriage, Proposition 8, saying in a press release, "The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen."

• Her 2015 launch of Open Justice, a criminal-justice open-data initiative that provides information on deaths in police custody, including those that occur during arrests, as well as arrest rates by race and ethnicity. It also provides data on officers who are killed or assaulted on the job.

• Her creation of the first statewide implicit bias training for law enforcement personnel in 2015. It called for a focus on six areas of policing that "emphasize respect, listening, neutrality and trust, while recognizing and addressing implicit biases that can be barriers to these approaches," according to a news release at the time from the attorney general’s office.

• Her implementation of a body camera pilot program for all agents in her attorney general’s department in 2015.

• Her establishment of the Racial and Identity Profiling Advisory Board in 2016.

"As a prosecutor in the early and mid 2000s, a time when so many still held a ‘lock ‘em up’ mentality, Senator Harris pioneered a reentry program that became a state and national model," Ian Sams, Harris’ campaign spokesman, said in a written statement, referring to the Back On Track program. "As Attorney General, she implemented a first-of-its-kind training on implicit bias and procedural justice and made her officers wear body cameras. And in the Senate, she has championed criminal justice reform measures to end mass incarceration, upend cash bail, and confront discrimination. That is her record, and it’s one of consistently making progress and protecting people in pursuit of a fairer system."

Harris’ record on the death penalty

But alongside those achievements are a variety of criticisms, including Harris’ complicated and controversial record on capital punishment.

Harris has long said that she’s personally opposed to the death penalty, and she demonstrated that sentiment as district attorney. Just days after San Francisco police officer Isaac Espinoza was shot and killed while on patrol in 2004, Harris announced she would not seek the death penalty in the case.

Her decision drew scorn from police groups and from Democratic Sen. Dianne Feinstein, who called for the death penalty at the officer’s funeral, drawing a standing ovation from the crowd of mostly law enforcement personnel.

Yet nearly a decade later, as attorney general in 2015, Harris defended California’s death penalty law in court after a judge ruled it unconstitutional.

Harris had promised voters she would uphold the law during her run for AG. Scholars have argued, however, that she had no legal obligation to defend it.

Irene Joe, a former public defender who is now a University of California-Davis law professor, said she watched Harris’ early career with excitement, believing the young prosecutor had potential as a reformer. Over time, however, Joe said she "became more and more disappointed," citing Harris’ defense of the death penalty as a particular letdown.

"I expected her to get in and move more quickly," said Joe, an advocate for criminal justice reform. "She moved a little bit more methodically."

Staying silent on reform initiatives

During the 2016 election in California, Harris declined to take public positions on ballot measures to shorten criminal sentences and to legalize recreational marijuana -- efforts reformers said would help disadvantaged communities.

Marcia Godwin, a professor of public administration at the University of La Verne, wrote about Harris in the book The Roads to Congress 2016. She said, once again, there’s a more complex picture to consider.

Harris stayed neutral on the initiatives "under the rationale that her office prepared the ballot descriptions," as well as titles, and did not want to appear biased, Godwin said.

Other attorneys general, including Jerry Brown, have also followed the same policy, saying they’ve kept their opinions to themselves to avoid a court challenge. A number of observers labeled her too cautious for staying silent, including longtime Los Angeles Times columnist George Skelton.  

Still, Godwin pointed out, Harris "pretty strongly hinted that she supported sentencing reform and was pretty open about the desire to reduce incarceration rates." She seemed, however, "to actively avoid answering questions about marijuana legalization."

Record on wrongful convictions

In her op-ed, Bazelon said the most troubling part of Harris’ record was that she "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."

In one case cited by Bazelon, Harris’ AG’s office sought to block a defendant from leaving prison after two federal judges threw out his conviction of carrying a concealed knife. The reason cited for blocking his release, according to a news report from 2012, was that the man’s attorney had filed a petition seeking his release six years after he was legally required to do so, and because the office maintained evidence still pointed to the defendant’s guilt. Harris’ supporters have said she likely wasn’t directly involved in decisions to block the release of the defendants in question.

"She was not personally involved in every case, and she has said she wished prosecutors under her had brought more cases to her attention," Harris’ campaign said in a written response. "Some of these cases never reached her desk personally. Some cases, once she was made aware, she intervened to change course. … But as she's said, she takes responsibility for everything that happened (at her agency) while she was AG."

Lateefah Simon, an Oakland-based advocate for civil rights and racial justice, said in a letter published in The New York Times responding to Bazelon’s op-ed, that Harris’ record must be viewed through a wider lens.

"For decades, Kamala Harris has fought to make our system more just. I give her credit and hope that others will look at the totality of her record of reform before jumping to conclusions," wrote Simon, who led the creation of the Back on Track program under under Harris at the San Francisco district attorney’s office.

‘I’ve been consistent my whole career’

Under the spotlight of a presidential run, Harris will face more scrutiny of her record.

The day after her campaign kick-off in Oakland, she was asked by an attendee at a CNN town hall in Iowa to reconcile her "contradictory past with what you claim to support today."

"I’ve been consistent my whole career," Harris responded. "My career has been based on an understanding, one, that as a prosecutor my duty was to seek and make sure that the most vulnerable and voiceless among us are protected. And that is why I have personally prosecuted violent crime that includes rape, child molestation and homicide. And I have also worked my entire career to reform the criminal justice system understanding, to your point, that it is deeply flawed and in need of repair."  

In 2016, Harris faced criticism that she wasn’t doing enough to hold police accountable when she opposed a bill that would have required the attorney general’s office to independently investigate fatal police shootings.

"The African American and civil rights community have been disappointed that (Harris) hasn't come out stronger on this," state Assemblyman Kevin McCarty, D-Sacramento, told the Los Angeles Times in January 2016.

At the time, Harris agreed more needed to be done. But under her direction, she said, California had made progress on addressing bias in the criminal justice system, according to the article.

Harris has also been criticized because the attorney general’s office, under her watch,  defended law enforcement officers accused of misconduct and also argued against releasing inmates despite a Supreme Court ruling forcing California to reduce its prison overcrowding. Harris later disowned that position.

Defenders point out, however, that attorneys general have to defend some positions or personnel because of their institutional role as head of the state’s law-enforcement department, even if they are personally uncomfortable with the position.

Scott Harshbarger -- who served as attorney general of Massachusetts as a Democrat and who has since become an independent -- said that "reform impulses among prosecutors are urgently needed," but so are efforts by "police and prosecutors to arrest, prosecute and send people to prison. It’s a great and noble tension."

Harris’ tightrope walk

Harris served as either district attorney or attorney general between 2004 and 2017 -- a long period of time, in which public opinion about sentencing and other criminal justice issues changed noticeably.

For instance, a 1999 poll found that 59 percent of Americans felt that police in their community treated "all races fairly," with 33 percent saying they treated one or more groups "unfairly." But by 2018, a Quinnipiac University poll found that only 44 percent of respondents felt police treated people the same despite their race, while 48 percent -- a plurality -- said the police were tougher on blacks than whites.

Despite her disappointment at some aspects of Harris’ record, Joe, the former public defender, acknowledged that Harris’ record is complex.

"What it means to be a progressive prosecutor now is very different from what it meant to be a progressive prosecutor" when she began her career, Joe said. "Now, it’s not a surprise necessarily when you hear prosecutors use campaign slogans about ending mass incarceration, whereas in the early 1990s, that would have been a shock and, certainly, I imagine, sort of a losing campaign."

Still, Sarah Lustbader, senior legal counsel at the Justice Collaborative, a criminal-justice reform advocacy group, says that’s not enough. She said Harris has to justify her choice to serve as a prosecutor during the tough-on-crime era.

"Some people might say, well, maybe she didn't know how unfair the system was, or that it was a different time, but Harris has said in interviews that members of her own family criticized the decision (to become a prosecutor), and that she had to defend the decision like one would a thesis," Lustbader said.

Harris’ decision not to seek the death penalty for the suspect in the police officer’s killing, for example, remains an enduring obstacle to her ability to court support in the law-enforcement community, political observers said.

While Harris’ record on criminal justice "is mixed, most of the Democrats running have mixed records," said Inimai Chettiar, director of the Justice Program at the left-of-center Brennan Center for Justice at New York University Law School. She cited former Vice President Joe Biden’s apology for his vote in favor of the 1994 crime bill, which has attracted significant criticism in recent years for an overzealous approach to sentencing.

Chettiar noted Harris’ work in the Senate, including promoting a bail reform bill with Sen. Rand Paul, R-Ky.; backing another bill designed to improve the treatment of incarcerated women; and pushing for provisions to overhaul sentencing to be included in the FIRST STEP Act, which eventually passed with bipartisan support and was signed by President Trump in late 2018.

Scrutiny from right and left

What’s clear about Harris’ record as a prosecutor is that it will get picked apart by the left -- and potentially the right.

"In the primary, the left and her opponents will seize on every decision she made that could be perceived as being unfair to defendants, especially minorities," said Garry South, Democratic political strategist who managed Gray Davis’s successful campaigns for California governor in 1998 and 2002.

If Harris becomes a top contender in the primary, South said, President Trump and national law enforcement groups will likely launch "ferocious attacks" on her decisions, such as refusing to seek the death penalty against the cop killer. Those attacks, he said, "may not set well even with Democrats when they hear about them."

As her presidential campaign continues, so will the scrutiny. Looking at the question of whether Harris was truly a champion for criminal justice reform or a silent ally of the status quo, there’s no simple answer. The record is complex and, in places, includes contradictions. Our examination shows it’s a mixed record.

PolitiFact California will examine Harris' record throughout her run for president. Is there a statement by Harris you would like us to fact-check? Email us at politifactca@capradio.org, or contact us on Twitter or Facebook.