One of the lines of attack against Vice President Kamala Harris in her presidential candidacy is that she is soft on crime and as president will pursue a “woke,” or unduly progressive, criminal justice agenda.
Is there any basis for that accusation?
Let’s consider the facts. Harris served nearly 15 years as a prosecutor in California, first as a deputy county attorney, then as San Francisco district attorney, and finally as the state attorney general.
She was the first female, Black, South Asian attorney to hold those offices. She was admired and criticized. To supporters, she was tough, courageous and charismatic. To critics, she was harsh, abusive and unfair. But none of the commentary was based on whether she was too soft on crime.
Harris’s tenure epitomized contradictions. She opposed the death penalty and then supported it. She contributed to mass incarceration and then sought ways to alleviate it. She supported questionable police conduct and then sought reforms of police abuses.
Above all, however, Harris’s prosecutorial legacy reflects the challenges and complexities that face any responsible prosecutor who struggles to reconcile ethical injunctions to vindicate the rule of law, convict wrongdoers and serve the cause of justice with fairness and integrity.
To be sure, Harris as prosecutor left a complicated legacy. Throughout her lengthy tenure, she made mistakes, behaved inconsistently and appeared to alternate between a tough-on-crime image and that of an idealistic reformer. But as the nation evolved from high COVID-related crime rates to a significant decrease in crime, so did Harris evolve from indecision and ambiguous policies to become a strong advocate for tough but fair prosecution, committed to making the criminal justice system work better for everyone.
Consider one of the harshest attacks on Harris when she was San Francisco DA: the so-called “crime lab scandal.” After a technician in the police-run crime lab allegedly tampered with drugs and may have tainted courtroom evidence in several cases, Harris dismissed some 1,000 drug-related cases, including many convictions. She claimed she had been unaware of the technician’s misconduct, even though assistants in her office apparently had been alerted.
Defense attorneys were furious, claiming they were never notified of the misconduct, which, under legal and ethical rules, they should have been. When it was learned that the DA’s office had no written policies or guidelines for disclosure to the defense of favorable information, a judge excoriated Harris on her office’s derelictions and raised serious questions about her leadership and management style.
Is Harris’s role in this saga a demonstration of her softness on crime? Quite the opposite.
Harris, who opposes capital punishment, refused to seek the death penalty for a man who had fatally shot a police officer. The defendant was convicted and sentenced to life without parole. The police vilified Harris for her refusal. But later, as state attorney general, Harris appeared to support the death penalty when she appealed a federal court ruling that declared the state’s death penalty law unconstitutional on the ground that delays in capital punishment made the punishment cruel and unusual. Harris, who won the appeal, claimed the court’s decision was legally unsound. Years later, as senator and presidential candidate, she argued for a federal moratorium on the death penalty.
Still, opposition to the death penalty does not necessarily demonstrate softness on crime in an era when so many defendants on Death Row have been exonerated.
Critics might point to several reform initiatives that Harris pushed for throughout her career to show softness on crime, including:
- instituting the “Back on Track” youth diversion program to curb recidivism;
- implementing police reforms including installation of body cameras worn by police;
- promoting dashboard data in police cars to make data such as arrests publicly available;
- instituting police training on implicit bias;
- advocating independent investigations of police shootings;
- advocating expanded resources for public defenders;
- seeking curbs on school truancy by charging parents when their children have excessive school absences;
- seeking curbs on solitary confinement in prisons; and
- pushing for an overhaul of the bail system.
But such criticism is misguided. Rather than demonstrating softness, these admirable initiatives demonstrate the complexity of the criminal process and how a responsible prosecutor, committed to justice, seeks to improve the system.
As an aggressive prosecutor, Harris achieved historic successes. She won a $1.1 billion judgment against Corinthian Colleges for defrauding students, With other attorneys general she obtained a multibillion-dollar settlement with five of the country’s biggest banks for dishonest mortgage disclosure practices after rejecting an earlier settlement as “crumbs on the table;” and she reached several settlements with major oil companies (Chevron, BP West Coast) for violations of state hazardous waste material laws and maintenance of underground gas tanks.
Harris’s 2019 memoir, “The Truths We Hold: An American Journey,” offers a glimpse into her thinking, from personal experience, about the power of prosecutors. She observes: “America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice.” This could be a statement by any strong and honorable prosecutor about the tragic consequences from actions by so-called “tough-on-crime” prosecutors.
To be sure, Harris’s record as a prosecutor is complicated. It includes actions of both a progressive reformer and a traditionally aggressive advocate. But these approaches are not in conflict. A prosecutor can be tough and fair. And if a prosecutor like Harris is aware of her power and seeks conscientiously to use her power wisely and fairly in the pursuit of justice, then the public will have confidence in the prosecutor’s judgment and decision-making to act responsibly and professionally.
The public is deeply concerned about crime. Whether and to what extent the public will transfer the qualities and actions Harris embodied as a prosecutor into her presidential candidacy is unclear. But Harris offers a stark contrast with her opponent.
Donald Trump is a convicted felon charged with multiple other felonies; he appointed an attorney general who enabled a great deal of his wrongdoing; he pardoned dozens of friends and political allies convicted of serious crimes; he engages in inflammatory rhetoric about retribution against his political enemies.
Does that make him “soft on crime”?
Bennett L. Gershman is a former prosecutor in New York and a distinguished professor of law at Pace University. He is the author of “Prosecutorial Misconduct” (2d edition, Thomson-West). Joel Cohen, an attorney and former prosecutor, is an adjunct professor at both Fordham and Cardozo law schools. He is the author of “Broken Scales: Reflections on Injustice” (ABA Publishing, 2017).
