Likely 2020 Democratic presidential candidate Sen. Kamala Harris (D–Calif.) released a new memoir this week. In The Truths We Hold, Harris touts her record as a “progressive prosecutor,” but the book glosses over numerous instances where her office defended prosecutorial misconduct.
Harris recounts her career as a line prosecutor in San Francisco, up through her tenure as California Attorney General and her election to the U.S. Senate. The book is a rather clear attempt by Harris to preemptively defend her record on criminal justice, which has emerged as an important issue, especially on the left flank of the Democratic Party.
“The job of a progressive prosecutor is to look out for the overlooked, to speak up for those whose voices aren’t being heard, to see and address the causes of crime, not just their consequences, and to shine a light on the inequality and unfairness that lead to injustice,” Harris writes.
She also addresses police brutality. “I know how difficult and dangerous the job is, day in and day out, and I know how hard it is for the officers’ families, who have to wonder if the person they love will be coming home at the end of each shift,” she writes. “I also know this: It is a false choice to suggest you must either be for the police or for police accountability. I am for both. Most people I know are for both. Let’s speak some truth about that, too.”
Of one of her first cases as a prosecutor, Harris writes that she begged a judge to hear the case of an innocent person arrested during a drug raid, so that the woman wouldn’t have to spend the weekend in jail. It was “a defining moment” in her life, she writes. “It was revelatory, a moment that proved how much it mattered to have compassionate people working as prosecutors.”
Harris explicitly acknowledges the immense power of prosecutors in the criminal justice system and the myriad misconduct issues it has created.
“America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice,” she writes. “I know this history well—of innocent men framed, of charges brought against people of color without sufficient evidence, of prosecutors hiding information that would exonerate defendants, of the disproportionate application of the law.”
What her book doesn’t address, however, is the many times her own office contributed to that dark history.
As I wrote last year, the California Attorney General’s office under Harris defended egregious prosecutor misconduct in several cases:
As California Attorney General, Harris’ office continued to display indifference toward concerns of misconduct. In March 2015, the California A.G. appealed the dismissal of a child molestation case after a Kern County prosecutor falsified an interview transcript to add an incriminating confession.
Harris’ office, citing state court precedent, tried to argue that the prosecutor’s action “was certainly conscience shocking in the sense that it involved false testimony by a prosecutor in a formal criminal proceeding. But it did not involve ‘brutal and … offensive’ conduct employed to obtain a conviction.” In other words, the defendant’s false confession wasn’t beaten out of him, and therefore didn’t violate his constitutional rights. The appeals court disagreed and threw out the conviction.
In another 2015 case, Baca v. Adams, Harris’ office opposed a post-conviction appeal by a defendant who was sentenced after the prosecutor in his case lied to the jury about whether an informant received compensation for his testimony. A state court found the prosecutor’s testimony was “sheer fantasy,” but declined to overturn the conviction.
In Baca, Harris’ office only withdrew its opposition after an embarrassing (and filmed) hearing before the Ninth Circuit Court of Appeals, where a panel of three Ninth Circuit judges pointedly asked why such prosecutors weren’t being charged with perjury and threatened to release an opinion naming names if Harris’ office continued in its folly.
In 2015, Harris’ office also appealed the removal of the entire Orange County District Attorney’s office from a high-profile death penalty case after a bombshell report revealed a long-running and unconstitutional jailhouse snitch program.
In 2014, the California Attorney General’s Office opposed releasing nonviolent California inmates—part of the state’s compliance with a 2011 Supreme Court ruling that found its prison system was unconstitutionally overcrowded—arguing that “if forced to release these inmates early, prisons would lose an important labor pool.” Harris said she was unaware of her office’s work and was “shocked” to read about it in the newspaper.
Those weren’t the only times that Harris’ office appeared somewhat less than progressive. As Reason wrote in a separate article about Harris’ record on criminal justice reform:
As attorney general of California, Harris challenged the release of a man who had been exonerated by the Innocence Project and had his conviction overturned. Harris argued that Daniel Larsen, who spent 13 years in prison for the crime of possessing a concealed knife, had not produced evidence of his innocence fast enough. A federal judge overturned his conviction after finding that Larsen had shown he was innocent, that the cops testifying at his trial weren’t credible, and that his attorney, since disbarred, was constitutionally ineffective because he had failed to call any witnesses.
When the Supreme Court decided that California’s overcrowded prisons represented cruel and unusual punishment, Attorney General Harris fought a ruling ordering California to release some of its prisoners. Harris claims she had to fight the ruling for Gov. Jerry Brown. “I have a client, and I don’t get to choose my client,” she said. But the attorney general in California is an independent, elected position, not an appointee serving at the governor’s pleasure.
Then there was Harris’ crusade against Backpage, an online classified ad service popular with sex workers. As Reason’s Elizabeth Nolan Brown wrote on the “performative feminism” of Harris:
In October of 2016, just before she faced voters in her Senate bid, Harris spearheaded the arrest of current and former Backpage executives on charges of pimping and conspiracy, under the (ultimately unsuccessful) theory that providing an open online platform for user-generated content made them responsible for any illegal activity committed by users who connected through the site. Federal law explicitly says otherwise—something Harris certainly knew, as she had petitioned Congress a few years earlier to change the law so that she and other prosecutors could target Backpage (and its deep assets) through state criminal justice systems. What’s more, myriad federal courts have affirmed that prosecutions like the one Harris attempted are illegal.
A Sacramento County Superior Court rejected Harris’ case against Backpage, ruling that “Congress did not wish to hold liable online publishers for the action of publishing third party speech and it is for Congress, not this court, to revisit.” Undeterred, Harris—as one of her final acts as California’s top prosecutor—filed nearly identical charges against Backpage in another California court, a move the First Amendment Lawyers’ Association called “a gross abuse of prosecutorial discretion” and part of Harris’ pattern of disrespecting due process and constitutional rights.
Meanwhile, an actual underage sex-trafficking scandal implicated dozens of police officers and other local authorities throughout the San Francisco Bay Area. Oakland went through two police chiefs trying to address it, with a third doing only questionably better. People were pleading for the state to step in and oversee an independent investigation, since local governments seemed more motivated to quash a PR nightmare than punish public officials. Harris and her office refused to intervene.
None of this is unusual for state attorneys general, who most often reflexively defend prosecutors and the state’s position, but it is a far cry from being a check on abusive government and injustice.
Harris is now one of the most vocal advocates for criminal justice reform in the Senate and has sponsored several important bills. She has plenty to draw on from her Senate record to present herself as a progressive candidate, but if she wants to talk about her record as a prosecutor, well, we should speak some truth about that, too.
Reason · by C.J. Ciaramella · January 9, 2019