Kamala Harris’ Disturbing Brand of Criminal Justice Reform

Her version of “progressive” law enforcement leaves mass incarceration intact.

Marie Gottschalk January 25, 2019

In her memoir The Truths We Uphold, presidential hopeful Kamala Harris casts herself as a progressive prosecutor, but it’s a tough case to make. (Illustration by Aistė Stancikaitė)

Sen. Kamala Har­ris (D‑Calif.) released a new auto­bi­og­ra­phy in Jan­u­ary, The Truths We Hold: An Amer­i­can Jour­ney, to coin­cide with her pres­i­den­tial bid. It opens with an awestruck account of her first day as a sum­mer intern with the Alame­da Coun­ty Dis­trict Attor­ney’s Office. That expe­ri­ence dur­ing her final year of law school con­firmed her desire to be a pros­e­cu­tor and pro­pelled her suc­cess­ful cam­paigns to become San Francisco’s dis­trict attor­ney and then California’s attor­ney general.

The sad reality is that Harris is in step with a troubling Washington consensus on criminal justice reform.

Har­ris writes of striv­ing to be a pro­gres­sive pros­e­cu­tor,” but her vision is com­prised of lit­tle more than gauzy invo­ca­tions to wield the pow­ers of her office with a sense of fair­ness, per­spec­tive and expe­ri­ence,” to hold seri­ous crim­i­nals account­able,” to fos­ter safe com­mu­ni­ties” through crime pre­ven­tion, and to run a pro­fes­sion­al oper­a­tion.” Har­ris fre­quent­ly men­tions her will­ing­ness to fight the good fight, to bring it on, but the bat­tle­field she por­trays is large­ly devoid of spe­cif­ic polit­i­cal inter­ests, trade-offs and oppo­nents (except for pri­mor­dial sins such as racism, sex­ism, homo­pho­bia and, of course, the bogey­man of Pres­i­dent Don­ald Trump).

When it comes to pol­i­cy, Har­ris sits foursquare in the Wash­ing­ton con­sen­sus that con­gealed around the much-her­ald­ed First Step Act of Decem­ber 2018. Instead of rein­ing in the carcer­al state, that con­sen­sus involves trim­ming around its edges at best and bol­ster­ing its long-term via­bil­i­ty at worst. 

Now com­ing under nation­al scruti­ny with her pres­i­den­tial bid, Harris’s poor record has been hid­ing in plain sight for years in Cal­i­for­nia. That record, once one looks past her mul­ti­cul­tur­al com­ing of age sto­ry and her attempts at soar­ing rhetoric, is risk-adverse and main­stream — much like Barack Obama’s at a com­pa­ra­ble point in his polit­i­cal career. She has spent lit­tle polit­i­cal cap­i­tal to curb mass incar­cer­a­tion and, like Oba­ma, her biggest polit­i­cal risks have involved the tim­ing of her elec­toral deci­sions to chal­lenge estab­lish­ment politi­cians rather than wait her turn to run for high­er office.

When Har­ris was elect­ed dis­trict attor­ney of San Fran­cis­co in 2003, the prob­lem of mass incar­cer­a­tion was invis­i­ble to the wider pub­lic. To her cred­it, she chal­lenged the idea that pros­e­cu­tors should incarcerat[e] peo­ple for as long as pos­si­ble, no mat­ter the crime, no mat­ter how much it costs to incar­cer­ate them, and despite the doc­u­ment­ed fact that our cur­rent prison sys­tem rarely pre­vents offend­ers from com­mit­ting new crimes when they come back out.” Ear­ly in her tenure, she took a coura­geous stand not to seek the death penal­ty in the case of a man accused of killing a police offi­cer, and her office was also less like­ly than many oth­er juris­dic­tions to deploy Cal­i­for­ni­a’s dra­con­ian three-strikes law. 

These are ear­ly bright spots in what is oth­er­wise a trou­bling record. A judge exco­ri­at­ed her DA’s office for its lev­els of indif­fer­ence” to defen­dants’ con­sti­tu­tion­al rights in its fail­ure to dis­close infor­ma­tion about a scan­dal in the crime lab’s drug analy­sis unit that led to the dis­missal of 700 cas­es. A tech­ni­cian had been skim­ming cocaine and tam­per­ing with evidence.

As attor­ney gen­er­al, Har­ris suc­cess­ful­ly cham­pi­oned leg­is­la­tion to crim­i­nal­ize tru­an­cy and pun­ish par­ents with fines and incar­cer­a­tion. She also sided with Gov. Jer­ry Brown to stymie imple­men­ta­tion of Brown v. Pla­ta, the most con­se­quen­tial pris­on­ers’ rights deci­sion in more than a gen­er­a­tion, by repeat­ed­ly return­ing the case to the low­er courts. The U.S. Supreme Court had declared that Cal­i­for­ni­a’s gross­ly over­crowd­ed pris­ons were uncon­sti­tu­tion­al and ordered the state to reduce its inmate pop­u­la­tion. Andrew Cohen of the Bren­nan Cen­ter for Jus­tice char­ac­ter­ized these attempts to weasel out” of the Supreme Court’s rul­ing as noth­ing short of contemptuous.”

In The Truths We Hold, Har­ris lauds implic­it bias train­ing as her weapon of choice to reduce police shoot­ings of peo­ple of col­or. There are much more effec­tive and proven mea­sures, like stricter use-of-force reg­u­la­tions for police depart­ments and man­dat­ed inde­pen­dent inves­ti­ga­tions of shoot­ings — but they are stri­dent­ly opposed by many police offi­cers and their unions, and Har­ris has not force­ful­ly advo­cat­ed them.

Har­ris has tak­en sim­i­lar­ly trou­bling posi­tions on many oth­er key crim­i­nal jus­tice issues, includ­ing the use of soli­tary con­fine­ment, civ­il asset for­fei­tures, the crim­i­nal­iza­tion of sex work, and puni­tive res­i­den­cy and oth­er mea­sures lev­eled on peo­ple con­vict­ed of sex offens­es. She resist­ed key efforts to mod­er­ate California’s three-strikes law. Har­ris peri­od­i­cal­ly has tout­ed her­self as a fierce oppo­nent of the cap­i­tal pun­ish­ment, but as attor­ney gen­er­al, she appealed a fed­er­al judge’s rul­ing that the state’s enforce­ment of the death penal­ty was uncon­sti­tu­tion­al. She con­tin­ued to come down on the side of the death penal­ty as the case made its way through the fed­er­al courts and took no pub­lic posi­tion on a 2012 bal­lot mea­sure to repeal cap­i­tal pun­ish­ment in California.

It’s easy to pile on Har­ris as a would-be reformer who is any­thing but. The sad real­i­ty is that she is in step with a trou­bling Wash­ing­ton con­sen­sus on crim­i­nal jus­tice reform. If there were any doubts, just look at the strange career of the First Step Act, which Trump signed into law in Decem­ber 2018 and CNN com­men­ta­tor Van Jones hailed as a Christ­mas mir­a­cle.”

The final ver­sion of the bill includ­ed some mod­est sen­tenc­ing reforms that will like­ly result in the ear­ly release of a few thou­sand of the fed­er­al sys­tem’s 180,000 inmates; it will not affect the release dates of the 2 mil­lion peo­ple incar­cer­at­ed in state and local jails. The leg­is­la­tion also promis­es to expand the use of com­pas­sion­ate release for grave­ly ill fed­er­al pris­on­ers and improve the con­di­tions of con­fine­ment for oth­er fed­er­al pris­on­ers by, among oth­er things, pro­hibit­ing the shack­ling of preg­nant women and the soli­tary con­fine­ment of juveniles.

Leav­ing aside the sen­tenc­ing reforms, the Fed­er­al Bureau of Pris­ons already had the broad author­i­ty to imple­ment most of these changes through its admin­is­tra­tive pow­ers. Indeed, the shack­ling of preg­nant women has been pro­hib­it­ed in the fed­er­al sys­tem for about a decade.

The First Step Act was first intro­duced by Reps. Hakeem Jef­fries (D‑N.Y.), Bob Good­lat­te (R‑Va.) and Karen Bass (D‑Calif.) in May 2018 and received 16 bipar­ti­san cospon­sors, includ­ing Kei­th Elli­son (D‑Minn.) and Tul­si Gab­bard (D‑Hawaii). The Lead­er­ship Con­fer­ence on Civ­il and Human Rights wrote a scorch­ing response, signed by dozens of crim­i­nal jus­tice reform and civ­il rights orga­ni­za­tions, includ­ing the ACLU, urg­ing leg­is­la­tors to vote no due to sev­er­al grave con­cerns,” includ­ing the act’s cen­ter­piece — a risk and needs assess­ment” algo­rithm that risked embed­ding deep racial and class bias” into ear­ly-release deci­sions. They also crit­i­cized the bill for fos­ter­ing the pri­va­ti­za­tion of the crim­i­nal jus­tice sys­tem and for fail­ing to appro­pri­ate any fund­ing for implementation.

Anoth­er con­cern was the bil­l’s focus on pro­vid­ing pro­gram­ming and ear­ly release mea­sures tar­get­ed at the non, non, nons” — peo­ple con­vict­ed of non­vi­o­lent, non­se­ri­ous and non-sex­u­al offens­es. The leg­is­la­tion excludes a wide swath of peo­ple in fed­er­al prison who may have com­mit­ted seri­ous crimes but who no longer pose seri­ous threats to pub­lic safe­ty. There are dozens of exclu­sions, includ­ing peo­ple con­vict­ed of com­put­er fraud, fail­ure to reg­is­ter as a sex offend­er, and many cat­e­gories of assault and pos­ses­sion of a firearm. 

Har­ris and Sen. Cory Book­er ini­tial­ly joined the oppo­si­tion to the bill. In Novem­ber 2018, how­ev­er, Book­er helped rein­tro­duce a revised ver­sion that includ­ed new (mod­est) sen­tenc­ing reforms. The Lead­er­ship Con­fer­ence and many oth­er advo­ca­cy groups (includ­ing the ACLU) did an about-face, endors­ing the revised leg­is­la­tion even though most of their grave con­cerns” were still unaddressed.

The revised bill tweaked the pro­posed risk-assess­ment sys­tem but left its trou­bling fea­tures intact. The new fund­ing autho­rized — $75 mil­lion annu­al­ly for five years — was less than miniscule.

Once the Wash­ing­ton estab­lish­ment of civ­il rights and oth­er advo­ca­cy orga­ni­za­tions shift­ed posi­tions, the Democ­rats had plen­ty of cov­er to sign on. Need­ing to bur­nish their image as can-do leg­is­la­tors, pres­i­den­tial aspi­rants Har­ris, Sen. Bernie Sanders (I‑Vt.), Sen. Eliz­a­beth War­ren (D‑Mass.), Sen. Sher­rod Brown (D‑Ohio) and Sen. Kirsten Gilli­brand (D‑N.Y.) applaud­ed this sore­ly com­pro­mised leg­is­la­tion. All lament­ed its mod­esty but declared it — no sur­prise — a first step.

Some major crim­i­nal jus­tice reform advo­cates, includ­ing Patrisse Cul­lors, co-founder of Black Lives Mat­ter, remained out­spo­ken oppo­nents. In a pre­pared state­ment, JustLead­er­shi­pUSA, a lead­ing advo­ca­cy group for for­mer­ly incar­cer­at­ed peo­ple, denounced the mea­sure: We must avoid fur­ther sit­u­a­tions like the First Step Act and any type of incre­men­tal reform that helps the few and sets up harm for the many. We could not endorse this bill because it con­tains what Michelle Alexan­der has apt­ly termed the Newest Jim Crow — harm­ful tech­nol­o­gy and an expan­sion of the carcer­al state that will dis­pro­por­tion­ate­ly impact Black and brown people’s free­dom.” Vivian D. Nixon, a lead­ing nation­al voice among for­mer­ly incar­cer­at­ed peo­ple, said in a state­ment, It’s tempt­ing to sup­port this bill on the mer­its of its effort to improve the con­di­tions of con­fine­ment. But these improve­ments mean lit­tle if they come at the expense of free­dom for this and future generations.”

The hoopla sur­round­ing the Wash­ing­ton con­sen­sus that has brought togeth­er Democ­rats and the ACLU with the Koch broth­ers on the issue of crim­i­nal jus­tice reform is overblown. It has been self-serv­ing­ly pro­mot­ed, espe­cial­ly by the Kochs’ polit­i­cal and pub­lic pol­i­cy machine, as the one bright spot in an oth­er­wise dys­func­tion­al cap­i­tal. As the crim­i­nal jus­tice gaze was fixed on this alleged bipar­ti­san mir­a­cle, William Barr, a cham­pi­on of hard­line penal poli­cies when he was Pres­i­dent George H.W. Bush’s attor­ney gen­er­al, was poised to return as Pres­i­dent Trump’s next attor­ney general.

The hoopla also draws atten­tion away from the major advances toward reform hap­pen­ing at the local lev­el. A new gen­er­a­tion of pros­e­cu­tors is will­ing to take on the Fra­ter­nal Order of Police and the statewide asso­ci­a­tions of dis­trict attor­neys and sher­iffs — some of the biggest obsta­cles to real crim­i­nal jus­tice reform. And pow­er­ful local coali­tions are emerg­ing to make sure that those like Har­ris, who aspire to be pro­gres­sive pros­e­cu­tors,” do not pull back once they are elect­ed to office.

Marie Gottschalk is a pro­fes­sor of polit­i­cal sci­ence at the Uni­ver­si­ty of Penn­syl­va­nia. Her lat­est book is Caught: The Prison State and the Lock­down of Amer­i­can Politics.
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