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Kamala Harris and the Noble Path of the Prosecutor

In the opening of her memoir, “The Truths We Hold,” from 2019, Vice-President-elect Kamala Harris writes that, as a law student, she found her “calling” while interning at the Alameda County District Attorney’s Office, in Oakland, California, in 1988. Harris then spent nearly three decades in law enforcement, referring to herself as “top cop,” rising from local prosecutor to district attorney of San Francisco and then attorney general of California—the first woman and the first Black person in these jobs—until she joined the U.S. Senate, in 2017.

When I was in law school, twenty years ago, prosecution was a form of public service that was thought to carry little controversial baggage. Marked as neither liberal nor conservative, it was also an all-purpose route for young people who aspired to political or judicial positions. In recent decades, former prosecutors have been ubiquitous in public life. President Bill Clinton and multiple Presidential nominees and candidates—John Kerry and Chris Christie, for example—were once prosecutors. So were New York Governor Andrew Cuomo, Michigan Governor Gretchen Whitmer, and several dozen members of Congress, including Senators Amy Klobuchar, Kirsten Gillibrand, Richard Blumenthal, Doug Jones, and Josh Hawley. Countless federal judges have been prosecutors, among them Justices Sonia Sotomayor and Samuel Alito, and also President Barack Obama’s last Supreme Court nominee, Merrick Garland, whose prosecution of Timothy McVeigh, for the Oklahoma City bombing, in 1995, was soon followed by President Clinton’s nomination of Garland to the D.C. Circuit Court of Appeals.

Law students are far less sanguine about that choice of career today. Some of my students even tell me that a job as a prosecutor has become stigmatized among their peers—part of the contemporary consciousness of criminal justice as a major driver of systemic racial inequality. At the start of Harris’s prosecutorial career, in 1990, the American prison population had recently doubled, and tough-on-crime rhetoric was de rigueur, regardless of political party. The next two decades saw the explosion of mass incarceration, which is now the subject of deep social reckoning. During this past summer’s Black Lives Matter protests, when calls for defunding the police and for prison abolition broke into the mainstream, many doubted that a career prosecutor could meet the needs of the Democratic ticket. But, just as Harris reframed her own prosecutorial past by describing herself as a progressive reformer, so the social meaning of prosecution has been shifting in ways that track this era’s aspirations for criminal justice.

Prosecutors weren’t always so high-status. In the nineteenth century, they were about as esteemed as “dogcatchers,” doing “low-profile, low-prestige work,” often part time, according to Jed Shugerman, a legal historian at Fordham Law School, who is writing a book about the rise of prosecution as a stepping stone to higher office. He told me that the phenomenon began to emerge in the first half of the twentieth century, when prosecution became “the upwardly mobile way to get into the league of élites and, especially, into a political career.” The exemplar of the transformation of prosecution into a high-profile opportunity was Earl Warren, who, like Harris, went from being a local prosecutor, in Oakland, to being California’s attorney general. Shugerman’s research reveals that Warren’s political campaigns boasted of his crackdowns on the Mexican and Chinese communities and of his leadership in organizing the internment of Japanese-Americans during the Second World War. Warren won election as the governor of California by heightening public fear of Communists and Japanese immigrants. He went on to become the running mate to the Presidential candidate Thomas Dewey and, finally, the great Chief Justice of the United States, leading the liberal Warren Court, where he held unconstitutional some of the prosecutorial tactics he’d deployed.

After the Second World War, the appointment of Supreme Court Justice Robert Jackson as the U.S. chief prosecutor at the Nuremberg trials highlighted the heroism of the prosecutor as an enforcer of human rights. The Kennedy family burnished that liberal ideal, marrying crime-fighting with a civil-rights agenda. Robert Kennedy’s legal career began in the Justice Department’s Criminal Division, investigating espionage and corruption, and during his tenure as U.S. Attorney General famously took on organized crime and enforced laws against racial discrimination. The template stuck, especially as young people’s idealistic skepticism of government during the sixties gave way to perceptions, in the seventies and eighties, of prosecutors as fighting a nationwide rise in crime.

The political-career opportunities that prosecution presented during the past half century were deeply consequential, even tragic. In his book “Locked In,” the criminal-law professor John Pfaff observes that, between 1994 and 2008, arrests actually dropped while prosecutors’ rates of felony charges per arrest doubled—making prosecutors the primary drivers of mass incarceration. Shugerman suggests that this happened, in part, because prosecutors’ offices tended to attract people and maintain cultures shaped by political ambitions. If the work of a prosecutor was functionally a seedling campaign for higher office, it was safest for prosecutors to direct their vast discretion over charges, plea bargains, and sentences toward harshness and severity, in light of a political landscape that rewarded being “tough on crime” and criticized leniency. Perhaps those incentives also fuelled a reticence to prosecute the police. When I was trained as a prosecutor in Manhattan, sixteen years ago, supervisors warned rookies not to “end up in the newspapers” for failing to jail someone who was arrested for a misdemeanor and then went on to commit a murder.

In the early years of Harris’s career, in the eighties and nineties, Joe Biden, then a senator, sponsored, spearheaded, or wrote much of the legislation that laid the foundations of our criminal-justice crisis: laws expanding drug felonies, increasing punishments and prison funding, and creating the infamously discriminatory hundredfold sentencing disparity between crack- and powder-cocaine offenses. As Democrats competed with Republicans to prove that they could be even more punitive, Biden, as chair of the Senate Judiciary Committee, criticized President George H. W. Bush’s anti-narcotics plan as “not tough enough,” with insufficient “police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time.” Since 2008, Biden has acknowledged that some of the crime legislation he supported was wrong; in 2019, he said, without naming a specific bill, that it “was a big mistake when it was made,” and that “it’s trapped an entire generation.” In her memoir, Harris notes that she faced questions, from early on, of “how I, as a black woman, could countenance being part of ‘the machine’ putting more young men of color behind bars.” But, in the same book, she writes that “there must be serious consequences for people who commit serious crimes,” and expresses particular pride in her work in increasing sentences for “johns who paid to have sex with underage girls” and treating the crime like child sexual assault. She adds that she didn’t feel the same way about “less serious crimes,” for which “mostly black or brown or poor men” were imprisoned. Harris writes, “They represented a living monument to lost potential, and I wanted to tear it down.”

During the Democratic primaries, many activists questioned those convictions, drawing on Harris’s record as a prosecutor. Some of the strongest objections were to an anti-truancy program that she had implemented as the San Francisco district attorney, in 2008, threatening prosecution of people whose children chronically missed school, and to her support of a California law that made it possible to jail such parents for up to a year. (In 2019, she expressed regret for the “unintended consequences,” namely the criminalization of parents.) As San Francisco’s D.A., she was also tougher on drug crimes than her predecessor. In 2010, a judge lambasted Harris’s office for systematically violating defendants’ constitutional rights by hiding from defense attorneys the unreliability of a corrupt drug-lab technician’s work. And, as Lara Bazelon argued in the Times, last year, between 2004 and 2011, Harris “fought tooth and nail to uphold wrongful convictions that had been secured through official misconduct” by prosecutors. Even during the past decade, Harris held a number of positions that were typical for a prosecutor at the time but are out of step with today’s Democratic Party: in 2015, she opposed a bill that would have forced her office to appoint a special prosecutor to investigate police-involved shootings, and she supported the criminalization of marijuana until 2017. In her campaign for California attorney general, in 2010, she promised to enforce the death penalty, and went on to appeal a federal-court ruling, from 2014, that the death penalty was unconstitutional.

But Harris has also long sounded explicitly reformist notes, advocating, in her book “Smart on Crime,” from 2009, for a “criminal justice system that gets truly tough on crime by being Smart on Crime.” Harris urged prosecutors to “go after the worst criminals” but to redirect defendants accused of lower-level offenses and at-risk young people toward programs for reintegration and crime prevention. In that vein, she has touted the Back on Track program that she implemented as San Francisco’s D.A., allowing young-adult first-time drug offenders to go to an education program instead of prison, and her initiation, as California’s attorney general, of a statewide implicit-bias training for law-enforcement workers. During the 2020 Vice-Presidential debate, Harris described these reforms as part of the “model of what our nation needs to do and we will be able to do under a Joe Biden Presidency.” Harris’s shorter Senate record is decidedly reform-oriented. In 2017, she and Senator Rand Paul, a Republican of Kentucky, sponsored a bill to fund states’ reform of bail systems. Last year, she introduced a bill to federally decriminalize marijuana, in contrast to her previous hard-line stance.

In recent years, Harris’s positions and rhetoric on mass incarceration have come to conform substantially with those of the growing movement of progressive prosecutors, who have been elected to lead district-attorney offices in major cities across the country, and who share a platform of reducing the societal harms of criminal justice. The pivotal moment for that movement was the election, in 2017, of the former public defender Larry Krasner as the district attorney of Philadelphia. He began his tenure dramatically, by firing ten per cent of his prosecutors and telling the others to stop charging small amounts of marijuana possession and other low-level offenses, to forego cash bail for certain misdemeanors and nonviolent offenses, and not to charge sex workers who didn’t have three prior convictions. Chesa Boudin, San Francisco’s new district attorney, is also a former public defender—and, famously, the child of two Weather Underground activists who were incarcerated for the murder of two police officers and a security guard. Boudin immediately directed his prosecutors to end cash bail, to stop seeking enhanced punishment for gang membership or for having three strikes, to review all available evidence before charging for resisting arrest or obstructing or assaulting police officers, and to drop cases that rely solely on testimonies of officers who had previously committed serious misconduct. He is also forming a local “truth and reconciliation” commission, to seek accountability and healing for communities affected by unjust policing. Various reforms aimed at providing alternatives to prison, reducing harshness and inequality, and charging and prosecuting less have also been implemented by a slate of progressive prosecutors, notably Eric Gonzalez, in Brooklyn; Kim Foxx, in Chicago; Kim Gardner, in St. Louis; Aramis Ayala, in Orlando; and Rachael Rollins, in Boston. The latter four are following Harris as some of the first Black women to serve as top prosecutors in major American cities.

As chronicled in Emily Bazelon’s book “Charged,” progressive prosecutors’ efforts are being fiercely resisted by police organizations, some judges, and conservative legislators. Some leftist critics doubt prosecutors’ potential to drive meaningful change of such a broken and poisonous system. The law professor and former federal prosecutor Paul Butler suggested, in his book “Let’s Get Free,” from 2009, that “good people” should not be prosecutors, because the effort to change the system from within will instead lead to the system changing them. But, this year, he admitted to being “optimistically skeptical or encouragingly pessimistic” about the progressive-prosecutor movement. James Forman, Jr., whose book, “Locking Up Our Own,” described Black leaders’ role in the rise of mass incarceration, has said in an interview that he is “thrilled” about the progressive onslaught but also cautious about leaders claiming the mantle of progressive prosecutor while continuing “just the same old brutality with a little . . . tweak here or there.” Yet the fact that the mantle may be attractive in electoral politics underscores the promise of the moment.

Prosecutors are the most powerful decision-makers in criminal justice—often seen as too powerful. If past decades drew ambitious lawyers to demonstrate toughness, with destructive consequences, today’s politics are transforming what it means to be a successful prosecutor and what prosecutors consider a win. The Trump Administration has also helped to transform the profile of the profession, as prosecutors have chosen to speak out, as institutionalists, against abuses of government power, even at the risk of seeming political. In May, 2019, a bipartisan group of more than a thousand former federal prosecutors signed a statement that Trump’s conduct, as described in the special counsel Robert Mueller’s report, “would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.” In October, twenty former U.S. Attorneys, all appointed by Republican Presidents, stated that “Trump’s leadership is a threat to the rule of law in our country,” and that each of them planned to vote for Biden and Harris.

Prosecutors may still be stigmatized as administrators of racial inequality, but that reputation will perhaps be upstaged by the opportunity for public servants to make a name for themselves as fundamentally different kinds of prosecutors, championing measures that are more rehabilitative than punitive. Some have perceived Harris’s conversion to progressive prosecutor as opportunistic, but it is not entirely out of keeping with her record or with evolving public opinion, to which she and other politicians are responsive. And her leadership, as Vice-President, in enacting reform could confirm that prosecution is renewing itself as a noble path to the highest offices, with the ambition to govern by having criminal justice govern less. At the same time, in the wake of Democratic losses in congressional and state elections, some legislators have raised questions about the possibly negative effects of progressive ideas, particularly calls to defund the police. As Democrats evaluate the election results, concerns about achieving majorities might temper some enthusiasm for reform.

Harris’s emphasis on the difference between “serious” and “less serious” crimes suggests that the progressive-prosecution era may cultivate and maintain pockets of harshness and severity. The punishment of historically neglected crimes or those that address today’s social-justice concerns—including sexual assault, domestic violence, police violence, public corruption, bias crimes, and financial exploitation of workers and the poor—may expand rather than contract. Biden’s infamous 1994 crime bill, which increased drug sentences to draconian levels, is still lauded for imposing severe punishments for domestic violence and rape. And, although conventional wisdom has emphasized the role of the war on drugs in increasing prison populations, recent studies have revealed that charges for violent crimes were far more significant drivers in that explosion. Tracing the impact of feminist law reform on mass incarceration, in her recent book, “The Feminist War on Crime,” the legal scholar Aya Gruber suggests that, in the over-all surge of support for criminal-justice reform, there may be far less interest in rehabilitative approaches to gender-based violence.

Such exceptions may enable the preservation of tough-on-crime sentiment. And, even if liberals and conservatives reach some consensus on the need to reduce incarceration numbers, pressure from those who continue to emphasize law and order in electoral politics will seek a release valve. As our leading former prosecutor in the White House, Harris will be forced to negotiate the conflict, just as she did as California’s attorney general, when she both addressed racial bias in policing and followed the will of the majority of voters who continued to support the death penalty. How she and progressive prosecutors redirect the human thirst for punishment will test whether reform can rise above toxic incentives and transcend the pathologies that create them.



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