Ironically, a few moments ago the news came out – that Kamala Harris, California Senator and the second black woman to serve in the US Senate, will run for President in 2020. The NY Times said this morning that her announcement “was bathed in symbolism” as she chose to enter on MLK Day.
Senator Harris, who was just elected in 2016, has naturally captured the fancy of many progressives with her outspoken attacks on President Trump and forceful interrogations of Trump administration officials and nominees – most famously during a Senate Intelligence Committee hearing with former Attorney General Jeff Sessions.
However, as I have related a number of times, while it would be inappropriate for me to take a position on a specific candidate, I will say this: in 2009, while I was editor of the California Progress Report, I interviewed all of the Democratic candidates for Attorney General, which included Kamala Harris.
I met her at a Starbucks in San Francisco and the interview only lasted about 10 minutes – whereas for most of the other candidates with the exact same questions, it lasted 20 to 30 minutes.
Interestingly, in my pre-court watch days, I was not nearly as versed on issues of criminal justice reform, but even at that time, I was struck by how conventionally and reflexively prosecutorial she was.
My view of her time at the Attorney General’s Office is one of a lost opportunity. She did not come out in favor of bail reform at a time when it was gathering momentum, nor was she willing to prosecute corrupt prosecutors across the state.
It is notable that under her watch she did very little with regard to the growing scandal in the Orange County District Attorney’s Office surrounding jail house informants. In fact, on the contrary, her office continued to defend the OCDA by fighting a judge’s order to recuse the office from prosecuting the case of Scott Dekraii. She went even further and continued to push for the death penalty in that case, despite massive evidence of prosecutorial misconduct.
So, while she was a forceful advocate on the relatively safe issue of a Sanctuary State – and pushing back against the Trump administration on immigration policies, being a strong proponent of marriage equality, and recently a supporter of Medicare for All and legalization of recreational cannabis – on the issues that mattered most, she was comparatively weak.
Indeed, Lara Bazelon, former director of the Loyola Law School Project for the Innocent in Los Angeles last week, wrote a scathing critique in the NY Times, proclaiming, “Kamala Harris Was Not a Progressive Prosecutor.”
Ms. Bazelon notes, “With the growing recognition that prosecutors hold the keys to a fairer criminal justice system, the term ‘progressive prosecutor’ has almost become trendy. This is how Senator Kamala Harris of California, a likely presidential candidate and a former prosecutor, describes herself.”
She argues: “But she’s not.”
Ms. Bazelon points out some of the same things I have – except in the area of wrongful conviction noting that “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.”
Most troubling, she writes, “Ms. Harris 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.”
She goes on to attack Harris’ record as San Francisco DA from 2004 to 2011, noting, “Ms. Harris was criticized in 2010 for withholding information about a police laboratory technician who had been accused of ‘intentionally sabotaging’ her work and stealing drugs from the lab. After a memo surfaced showing that Ms. Harris’s deputies knew about the technician’s wrongdoing and recent conviction, but failed to alert defense lawyers, a judge condemned Ms. Harris’s indifference to the systemic violation of the defendants’ constitutional rights.”
Ms. Bazelon, like me, goes after Ms. Harris for appealing an Orange County federal judge ruling that found the death penalty unconstitutional, arguing bizarrely, that the decision “undermines important protections that our courts provide to defendants.”
Ms. Harris also did not take a position on Prop. 47 which, as most know, reduced low-level felonies to misdemeanors.
And while she now favors legalization of cannabis, Ms. Bazelon notes, “She laughed that year when a reporter asked if she would support the legalization of marijuana for recreational use. Ms. Harris finally reversed course in 2018, long after public opinion had shifted on the topic.”
On police shootings, she “opposed a bill requiring her office to investigate shootings involving officers” in 2015 and “refused to support statewide standards regulating the use of body-worn cameras by police officers.”
Finally, Ms. Bazelon attacks Kamala Harris on the issue of wrongful convictions, citing the case of George Gage, “an electrician with no criminal record who was charged in 1999 with sexually abusing his stepdaughter, who reported the allegations years later. The case largely hinged on the stepdaughter’s testimony and Mr. Gage was convicted.”
Like many cases, the judge learned “that the prosecutor had unlawfully held back potentially exculpatory evidence, including medical reports indicating that the stepdaughter had been repeatedly untruthful with law enforcement.”
However, when the case reached the United States Court of Appeals for the Ninth Circuit in San Francisco, Ms. Harris’ prosecutors defended the conviction.
The appellate judge ultimately upheld the conviction on a technicality and “Mr. Gage is still in prison serving a 70-year sentence.”
Ms. Bazelon also cited the case of Daniel Larson, in prison on a 28 to life sentence “even though his trial lawyer was incompetent and there was compelling evidence of his innocence,” and she defended “Johnny Baca’s conviction for murder even though judges found a prosecutor presented false testimony at the trial.” And for Kevin Cooper she fought allowing DNA testing to prove his innocence.
Ms. Bazelon writes: “All this is a shame because the state’s top prosecutor has the power and the imperative to seek justice. In cases of tainted convictions, that means conceding error and overturning them. Rather than fulfilling that obligation, Ms. Harris turned legal technicalities into weapons so she could cement injustices.”
Ms. Bazelon concludes:
“But if Kamala Harris wants people who care about dismantling mass incarceration and correcting miscarriages of justice to vote for her, she needs to radically break with her past.
“A good first step would be to apologize to the wrongfully convicted people she has fought to keep in prison and to do what she can to make sure they get justice. She should start with George Gage.”
Lara Bazelon makes a fair point at the end. And it is important to remember that the world changes very quickly. We have learned a lot about wrongful convictions and prosecutorial misconduct in the last decade.
We saw a host of politicians, who opposed marriage equality in another era, eventually come around. People have shifted and evolved on medical cannabis and recreational cannabis. Sometimes, the converted become stronger advocates for a cause. But Kamala Harris will have to demonstrate real conviction behind these changes rather than just perceived political expediency.
—David M. Greenwald reporting