When Former Prosecutors Rebrand Themselves as Progressives to Win Elections

From Kamala Harris to Lori Lightfoot, former prosecutors are rewriting their own histories to present themselves as progressive.

Victoria Law March 14, 2019

Lori Lightfoot (L) and Kamala Harris (R). (Photos by KAMIL KRZACZYNSKI/AFP/Getty Images and Ethan Miller/Getty Images)

The idea of the pro­gres­sive pros­e­cu­tor” has gained pop­u­lar­i­ty with the 2017 elec­tion of civ­il rights attor­ney Lar­ry Kras­ner as Philadel­phia dis­trict attor­ney, the 2018 elec­tion of Rachael Rollins as Suf­folk Coun­ty (Boston) dis­trict attor­ney, and the upcom­ing 2019 dis­trict attor­ney race in Queens, New York, in which all sev­en can­di­dates are tout­ing crim­i­nal jus­tice reform rather than law and order.” This trend, a result of decades of orga­niz­ing that has increased the pop­u­lar­i­ty of crim­i­nal jus­tice reform, has for­mer pros­e­cu­tors rewrit­ing their own his­to­ries to rebrand them­selves as pro­gres­sives and obscure the real­i­ty that, in the not-too-dis­tant past, they upheld dra­con­ian poli­cies and did their utmost to not only put peo­ple in prison, but keep them there.

Given prosecutors’ tremendous institutional powers, we need to dig beneath their rhetoric to examine the actions of these supposedly progressive candidates.

First, remem­ber that the job of pros­e­cu­tors is to pros­e­cute — mean­ing that they charge peo­ple in crim­i­nal court and do their utmost to send them to prison. Attor­neys who want to defend people’s civ­il and per­son­al lib­er­ties typ­i­cal­ly take jobs as defense or civ­il rights attor­neys. But even pros­e­cu­tors can act in a way that doesn’t send peo­ple to prison — they have the dis­cre­tion in choos­ing which charges to bring against a per­son — or whether to bring any charges at all.

Giv­en pros­e­cu­tors’ tremen­dous insti­tu­tion­al pow­ers, we need to dig beneath their rhetoric to exam­ine the actions of these sup­pos­ed­ly pro­gres­sive candidates.

Before she became a Demo­c­ra­t­ic sen­a­tor for Cal­i­for­nia — and, now, pres­i­den­tial hope­ful — Kamala Har­ris served as California’s attor­ney gen­er­al and San Francisco’s dis­trict attor­ney. Both jobs revolve around pros­e­cut­ing and lock­ing peo­ple up, but Har­ris went the extra mile. As dis­trict attor­ney, she threat­ened to pros­e­cute par­ents whose chil­dren skipped school and, as state attor­ney gen­er­al, draft­ed2010 law allow­ing police to file charges against par­ents for their children’s truancy.

In a 2010 speech, Har­ris is seen laugh­ing about send­ing her office’s homi­cide and gang pros­e­cu­tors to schools to meet with the fam­i­lies of tru­ant stu­dents. When you go over there, look real­ly mean,” she remem­bered telling them. 

But now, with the Oval Office in her sights, she’s revised her moti­va­tions behind cre­at­ing this pro­gram, which still exists today. In her 2019 mem­oir, she wrote, Even today, oth­ers don’t appre­ci­ate the inten­tion behind my approach; they assume that my moti­va­tion was to lock up par­ents, when of course that was nev­er the goal. Our effort was designed to con­nect par­ents to resources that could help them get their kids back into school, where they belonged. We were try­ing to sup­port par­ents, not pun­ish them — and in the vast major­i­ty of cas­es, we succeeded.”

Har­ris also fought both indi­vid­ual and leg­isla­tive efforts to free peo­ple from prison. As the state’s attor­ney gen­er­al, Har­ris fought the fed­er­al court super­vi­sion of California’s prison sys­tem, as well as court-ordered parole pro­grams, argu­ing that releas­ing pris­on­ers ear­ly would elim­i­nate an impor­tant labor source for the state, includ­ing wild­fire fire­fight­ers who work for $1 a day.

Har­ris has brand­ed her­self as a pro­po­nent of women’s rights, but some of her actions say oth­er­wise. In 2005, Kel­ly Sav­age, an abuse sur­vivor sen­tenced to life with­out parole after her hus­band killed her son, filed a writ of habeas cor­pus to allow her to present expert tes­ti­mo­ny about domes­tic vio­lence that had been miss­ing from her 1998 tri­al. Keep in mind that the peti­tion, even if grant­ed, is not a get-out-of-jail-free card: If the court had approved her writ, Sav­age would have been able to present that tes­ti­mo­ny; it would not nec­es­sar­i­ly have meant that she would have walked out of prison. Har­ris could have cho­sen to do noth­ing and allowed the court to decide whether to grant Sav­age that oppor­tu­ni­ty. Instead, Har­ris filed motions two times oppos­ing Savage’s peti­tion, accord­ing to Savage’s lawyer.

As sen­a­tor, Har­ris has been seen as a cham­pi­on of LGBTQ rights, co-spon­sor­ing the 2018 Cen­sus Equal­i­ty Act, requir­ing the cen­sus include ques­tions about gen­der iden­ti­ty and sex­u­al ori­en­ta­tion. She also co-spon­sored the Equal­i­ty Act and a bill pro­hibit­ing peo­ple accused of mur­der or vio­lence from using gay or trans­gen­der pan­ic as a defense. (In oth­er words, a per­son can no longer jus­ti­fy their use of vio­lence against anoth­er per­son because they were afraid of gay or trans peo­ple.) These actions have been laud­ed by larg­er LGBTQ orga­ni­za­tions and media, which pro­claim her to have a strong Pro-LGBT record.”

But as attor­ney gen­er­al, Har­ris also appealed a 2015 court deci­sion grant­i­ng sex reas­sign­ment surgery to Michelle-Lael Nor­swor­thy, an incar­cer­at­ed trans­gen­der woman, argu­ing that hor­mone ther­a­py and coun­sel­ing made surgery unnec­es­sary. Nor­swor­thy has been treat­ed for gen­der dys­pho­ria for over 20 years, and there is no indi­ca­tion that her con­di­tion has some­how wors­ened to the point where she must obtain sex-reas­sign­ment surgery now rather than wait­ing until this case pro­duces a final judg­ment on the mer­its,” Har­ris wrote.

Since announc­ing her pres­i­den­tial bid, Har­ris has revised her stance, stat­ing that as attor­ney gen­er­al, I couldn’t fire my clients, and there were unfor­tu­nate­ly sit­u­a­tions that occurred where my clients took posi­tions that were con­trary to my beliefs.” But that’s not exact­ly true. Just as dis­trict attor­neys have the dis­cre­tion to decide whether to pros­e­cute, as attor­ney gen­er­al, she had the pow­er not to defend a state law that she found prob­lem­at­ic. And she did at anoth­er point, declin­ing to defend the state’s ban on equal mar­riage rights.

Har­ris now says that she sup­ports the decrim­i­nal­iza­tion of sex work, a stance that is increas­ing in pop­u­lar­i­ty among (some) pro­gres­sive politi­cians. But she opposed a 2008 bal­lot mea­sure (brought by sex work­ers) to end pros­ti­tu­tion arrests in San Fran­cis­co. She also attempt­ed to shut down Back​page​.com, a clas­si­fieds web­site that includ­ed list­ings for sex work, which allowed sex work­ers to screen their clients before meet­ing them. As attor­ney gen­er­al, she sought to pros­e­cute the site’s own­ers in 2016, and as sen­a­tor in 2018, she helped craft Stop Enabling Child Traf­fick­ers Act/​Allow States and Vic­tims to Fight Online Sex Traf­fick­ing Act (SESTA/FOSTA), which make it a fed­er­al crime to oper­ate a web­site with the intent to pro­mote and facil­i­tate the pros­ti­tu­tion of anoth­er per­son” and allow state attor­neys to bring civ­il actions against web­site operators.

Some might argue that Har­ris’ posi­tions were sim­ply a reflec­tion of dif­fer­ent times. While crim­i­nal jus­tice reform was as pop­u­lar as it is today, it had cer­tain­ly become an increas­ing­ly dis­cussed bipar­ti­san issue by the 2000s. Again, Har­ris could have used her dis­cre­tion as she did with the gay mar­riage ban and sim­ply decid­ed not to oppose efforts like Kel­ly Savage’s writ, Norworthy’s surgery or increased parole efforts.

Har­ris isn’t the only for­mer pros­e­cu­tor to rebrand her­self as a pro­gres­sive as she seeks polit­i­cal office. In Chica­go, for­mer chair of Chica­go Police Board Lori Light­foot has also recast her­self. Her web­site touts her as an advo­cate and reform expert,” and she has adver­tised her­self as the can­di­date run­ning against machine” pol­i­tics. She brands her­self as a pro­gres­sive that lis­tens to and pri­or­i­tizes the needs of low-income and mid­dle-class fam­i­lies.” If elect­ed in Chicago’s April 2 runoff elec­tion, she would be the city’s first Black woman may­or and first open­ly gay mayor.

Like Har­ris, Light­foot began her pub­lic career as a pros­e­cu­tor, but this time a fed­er­al one for the North­ern Dis­trict of Illi­nois. Unlike Har­ris, her career as a pros­e­cu­tor was not dis­tin­guished by trail­blaz­ing law-and-order reforms. But she also did not dis­tin­guish her­self as a pro­gres­sive dur­ing her time as a pros­e­cu­tor. As she told The Chica­go Read­er, I was a fed­er­al pros­e­cu­tor enforc­ing exist­ing fed­er­al law.” Most pris­on­ers’ rights activists would argue that any fed­er­al pros­e­cu­tor who upholds the sta­tus quo is, by def­i­n­i­tion, lock­ing a lot of peo­ple up and per­pe­trat­ing injustice.

Recent com­ments of hers sug­gest that she con­tin­ues to iden­ti­fy with law enforce­ment in a city fraught with police abuse. On March 13, the same day that the City Coun­cil approved Emanuel’s con­tro­ver­sial police train­ing acad­e­my, Lori Light­foot announced that she would also turn 38 of Chicago’s shut­tered pub­lic schools into police train­ing acad­e­mies. But this isn’t the first time that she’s caused out­rage with her stance on the city’s police force.

In one of her ear­ly cam­paign ads, Light­foot states that she’s held police account­able.” In real­i­ty, her record is mixed. In 2002, then-may­or Daley appoint­ed her head of the police department’s Office of Pro­fes­sion­al Stan­dards. Before Light­foot became head, OPS inves­ti­ga­tors had con­clud­ed that the offi­cer, Phyl­lis Clinkscales, lied about her fatal shoot­ing of 17-year-old Robert Wash­ing­ton. Lightfoot’s pre­de­ces­sor, Cal­lie Baired, approved fir­ing the offi­cer for fil­ing a false report. Under pres­sure from the police super­in­ten­dent, how­ev­er, Baird down­grad­ed her rec­om­men­da­tion to a sus­pen­sion. One year lat­er, when Light­foot was appoint­ed, she reversed the inves­ti­ga­tors’ find­ings and ruled the shoot­ing jus­ti­fied though she upheld the suspension.

In 2015, then-may­or Rahm Emanuel appoint­ed her head of the city’s police board, which was estab­lished to engage the com­mu­ni­ty around cer­tain police mis­con­duct and decide police dis­ci­pli­nary cas­es. Accord­ing to Light­foot, her three years on the police board pro­found­ly affect­ed her. Lis­ten­ing to the daugh­ters of Bet­tie Jones come before the Police Board at a time when they were still deeply griev­ing the loss of their moth­er. Rekia Boyd’s broth­er was a fre­quent pres­ence. … It’s impos­si­ble not to be moved by that,” she told the Chica­go Sun-Times.

But when Rekia Boyd’s broth­er Mar­tinez Sut­ton gave a heart­felt tes­ti­mo­ny at a police board hear­ing on August 21, 2015, demand­ing the fir­ing of Dante Servin, the offi­cer who had shot and killed his sis­ter, Light­foot inter­rupt­ed his heart­felt pleas. I know you feel a lot of emo­tion,” she is heard say­ing before being drowned out by orga­niz­ers, wear­ing yel­low t‑shirts embla­zoned with Fire Police Offi­cer Dante Servin.” Less than sev­en min­utes lat­er, Light­foot and the oth­er board mem­bers filed out of the room through a back door with­out speak­ing with or meet­ing any of the orga­niz­ers. At anoth­er hear­ing, orga­niz­ers not­ed that, instead of offer­ing con­do­lences for the mur­der of their fam­i­ly mem­bers, Light­foot and her col­leagues rep­ri­mand­ed orga­niz­ers for their lan­guage and threat­ened to have them removed from the room by force.

In Decem­ber 2015, Emanuel also appoint­ed Light­foot to head the Police Account­abil­i­ty Task Force. Four months lat­er, in April 2016, the task force released a report sharply crit­i­ciz­ing the Chica­go Police Depart­ment for its his­to­ry of racial dis­par­i­ty and dis­crim­i­na­tion” and rec­om­mend­ing dozens of changes.

Its find­ings were echoed in a 2017 Depart­ment of Jus­tice report not­ing that police offi­cers rou­tine­ly engage racial­ly dis­crim­i­na­to­ry con­duct as well as use of vio­lence, includ­ing dead­ly vio­lence and that the depart­ment often fails to hold them account­able. Light­foot has tak­en cred­it for these find­ings, telling the Chica­go Tri­bune that there’s a straight line” lead­ing from the task force to the Jus­tice Depart­ment report and sub­se­quent con­sent decree.

In a recent cam­paign com­mer­cial, Light­foot called for an inde­pen­dent, account­able City Hall that serves the peo­ple, not the polit­i­cal machine.” But even in pri­vate prac­tice, Light­foot has defend­ed the polit­i­cal machine. In 2012, she became the lead attor­ney defend­ing the city against a police neglect law­suit. Six years ear­li­er, Christi­na Eil­man, a 21-year-old for­mer UCLA stu­dent, was arrest­ed dur­ing a bipo­lar episode, held overnight by the police, and, despite a police supervisor’s order that she be brought to a hos­pi­tal for psy­chi­atric eval­u­a­tion, released with no fur­ther assis­tance or resources. She was abduct­ed and sex­u­al­ly assault­ed, then was pushed or fell from the sev­enth-floor win­dow of a high-rise, caus­ing per­ma­nent brain dam­age and oth­er injuries. (In 2013, the city set­tled with Eilman’s fam­i­ly for $22.5 mil­lion.) Light­foot also defend­ed the Chica­go Police Depart­ment in a law­suit by four men whose 2006 beat­ing by six off-duty police offi­cers was cap­tured by secu­ri­ty footage. While four of the six offi­cers were found to be at fault, the depart­ment itself was cleared, thanks to Lightfoot.

Giv­en that all of this infor­ma­tion is avail­able to any­one who cares to dig past the sound­bites, why then are Har­ris and Light­foot laud­ed as pro­gres­sives? For that, we might look at Sal­ly Yates, for­mer fed­er­al pros­e­cu­tor and deputy attor­ney gen­er­al under Oba­ma, for how a sin­gle act of resis­tance can recast a person’s legacy. 

In Jan­u­ary 2017, as act­ing attor­ney gen­er­al to the new­ly-inau­gu­rat­ed Don­ald Trump, she ordered the Depart­ment of Jus­tice not to defend his Exec­u­tive Order 13769 (pop­u­lar­ly known as the Mus­lim Ban). She was dis­missed and returned to pri­vate prac­tice. In sub­se­quent months, her time at the Depart­ment of Jus­tice was hon­ored by the NAACP and Geor­gia state senators. 

But her time at the Depart­ment of Jus­tice was marked by efforts to keep peo­ple in prison.

As deputy attor­ney gen­er­al, she was respon­si­ble for mak­ing final rec­om­men­da­tions on the peti­tions flood­ing the Oval Office in response to Obama’s clemen­cy ini­tia­tive. Yates dashed thou­sands of hopes, approv­ing only 1,715 of the 33,149 com­mu­ta­tion peti­tions for the president’s sig­na­ture while deny­ing near­ly 19,000 oth­ers. Par­don attor­ney Deb­o­rah Leff resigned in protest, charg­ing that Yates not only reversed many of her rec­om­men­da­tions, but also blocked her access to the White House so that Oba­ma remained unaware of her opin­ions regard­ing the mer­its of many cases.

One of those cas­es was that of Alice Marie John­son, an Alaba­ma moth­er who had been sen­tenced to life in prison for pass­ing on phone mes­sages for drug deals. In 1993, she and 15 oth­ers were arrest­ed by fed­er­al author­i­ties. Her co-defen­dants, fac­ing lengthy prison sen­tences, tes­ti­fied against her. John­son was con­vict­ed and sen­tenced to life in prison. Dur­ing Obama’s pres­i­den­cy, John­son was denied clemen­cy three times. The last time was when Yates was deputy attor­ney gen­er­al. No expla­na­tion was giv­en about denials so John­son, like thou­sands of oth­ers, was left in the dark about how to pro­ceed. (After 21.5 years in prison, John­son, by then a 63-year-old grand­moth­er, was grant­ed clemen­cy by Trump in June 2018.)

Yates also opposed retroac­tive sen­tenc­ing reduc­tions for fed­er­al drug offens­es under a Sen­tenc­ing Com­mis­sion reform known as drugs minus two” that would bring past sen­tences in line with cur­rent (less harsh) law.

But with that sin­gu­lar act of resis­tance to Trump’s Mus­lim Ban, Yates’ past oppo­si­tion to crim­i­nal jus­tice reform seems to have been for­got­ten. This rewrit­ing hap­pens because few keep track of issues like clemen­cy denials for Black, Brown and poor peo­ple. That’s not to say that no one does: CAN-DO Clemen­cy, an orga­ni­za­tion found­ed by for­mer pres­i­den­tial clemen­cy recip­i­ents, has long kept track of these dis­may­ing sta­tis­tics. But the larg­er orga­ni­za­tions and media out­lets have not, leav­ing a void in which her lega­cy can be rewritten.

The same holds true for Light­foot and Har­ris. While grass­roots groups have con­tin­u­al­ly called them out for their puni­tive prac­tices and regres­sive actions, their crit­i­cisms have not been echoed by larg­er, more well-fund­ed orga­ni­za­tions. Crim­i­nal jus­tice reform may now be in vogue, but the larg­er pub­lic still remains indif­fer­ent to the details about the mass pros­e­cu­tions, impris­on­ment and police vio­lence against Black, brown and mar­gin­al­ized com­mu­ni­ties. But if we want elect­ed offi­cials who are tru­ly pro­gres­sive, we need to look past their rhetoric and exam­ine what they real­ly did for the most mar­gin­al­ized and crim­i­nal­ized communities.

Vic­to­ria Law is a free­lance jour­nal­ist focus­ing on women’s incar­cer­a­tion. She is the author of Resis­tance Behind Bars: The Strug­gles of Incar­cer­at­ed Women (2012) and co-author of forth­com­ing Your Home Is Your Prison (New Press).
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