Gavin Newsom’s High-Stakes Choice For California Attorney General

California Governor Gavin Newsom may soon be charged with hand-picking the next chief law enforcement officer of the most populous state in the country.

President-elect Joe Biden has tapped Xavier Becerra, a longtime congressman who became the state’s attorney general in 2017, to serve as the administration’s Secretary of Health and Human Services. In the aftermath of the Democratic victories in Georgia’s U.S. Senate runoffs, it seems likely the Senate will confirm Becerra sometime in the coming weeks.

Like many Democratic attorneys general, Becerra spent most of the last four years dealing with the Trump administration’s myriad attacks on people, democracy, and/or the planet. Among the initiatives Becerra’s office opposed in the courtroom were the president’s efforts to build a border wall, undermine California’s cap-and-trade program, implement a Muslim ban, hollow out the Affordable Care Act, limit reproductive rights, and end the DACA program in which hundreds of thousands of undocumented young people participate. His office has spent at least $43 million to sue the Trump administration more than 100 times. 

Without an overtly hostile federal government to deal with, Becerra’s replacement will have a considerable amount of time and resources to dedicate elsewhere—and a real chance to overhaul a sprawling, bloated system of prisons and jails that incarcerates more people than any state not named Texas.

Becerra will leave office with a spotty record on issues of police misconduct and accountability. Although he voiced support for some reforms after the police killing of George Floyd in May, he declined to investigate the police killing of 22-year-old Sean Monterrosa, who was shot to death in June by Vallejo police officers who purportedly mistook a hammer at his waistband for a gun. A month later, Becerra backtracked slightly, saying he’d look into allegations that members of the notoriously violent department had destroyed evidence related to Monterrosa’s death, but not their substantive role in causing it. In 2019, Becerra’s office declined to file charges against two Sacramento police officers who shot 22-year-old Stephon Clark at least seven times in his grandmother’s backyard, killing him. Police said they thought an object he held in his hand was a gun; it was, in fact, a cell phone. 

Becerra also made headlines for fighting to conceal information about police misconduct, despite a state law that took effect in 2019 that specifically required him to make some of this information available for public disclosure. He even threatened a pair of journalists with legal consequences unless they destroyed a list of thousands of cops across the state who have been convicted of various crimes—a list the reporters obtained via a public records request. (Becerra’s office insisted that its inclusion was an accident; the list, according to KQED, identified officers who stole from their departments, filed false reports, committed perjury, and even one who donned a fake beard to rob a bank.) Spending by law enforcement-affiliated organizations on Becerra’s 2018 re-election campaign—a reliable barometer of a prosecutor’s bona fides as a reformer—exceeded $200,000.

In California’s rapidly shifting political landscape, however, traditional prosecutorial politics aren’t playing as well as they used to, as voters look for leadership from DAs who understand that the tasks of keeping people safe and putting people in prison are not synonymous with one another. In Los Angeles and San Francisco, recently-elected district attorneys George Gascón and Chesa Boudin ran for office on explicitly pro-reform platforms, defeating incumbents whose performances were insufficiently progressive for their constituents’ liking. In Contra Costa County, Diana Becton was appointed as the district attorney in 2017 and re-elected to a full term the following year. Becton, Boudin, Gascón, and San Joaquin County DA Tori Verber Salazar recently formed the Prosecutors Alliance of California as a progressive counterpart to the California District Attorneys Association. Together, its members represent four counties that are home to about a third of the state’s population.

Voters are also increasingly receptive to policy ideas that treat courtrooms as more than a system for meting out punishment. In 2020, Los Angeles paired the election of Gascón with the passage of Measure J, requiring the county to allocate hundreds of millions of dollars to housing, mental health treatment, and other social services while prohibiting officials from spending that money on policing or incarceration. In San Francisco, voters chipped away at the power of the police department by repealing an archaic law that prescribed a minimum size for the city’s police force. Statewide, Californians restored the franchise to people convicted of felonies who are on parole, and rejected a proposition that would have boosted incarceration by reclassifying certain misdemeanors as felonies. Although they rejected an effort to replace cash bail with a controversial “risk assessment” system, reformers continue to explore alternatives to a cruel, regressive system in which one’s ability to get out of jail before trial is contingent on wealth. 

Lawmakers have certainly taken notice of this trend. The new attorney general will take office with Assembly Bill 1506, which requires state prosecutors to investigate police killings of unarmed civilians, now in effect. Already, legislators are working on another bill that would make it easier to revoke the certifications of police officers who are convicted of serious crimes or fired for misconduct, thereby preventing them from getting hired elsewhere. Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California, wants to see the new attorney general embrace this legislative push for transparency. “We’re hopeful the governor will select someone that’s up for that challenge and opportunity,” she said.

Historically, candidates for state attorney general have been less ambitious would-be reformers than candidates for local prosecutor, since conventional wisdom dictates that winning a statewide race requires appealing to a broader and more ideologically diverse electorate than, say, San Francisco or Los Angeles. But given the demands for change from both lawmakers and the voters who elect them, the power to appoint Becerra’s successor allows Newsom to temporarily solve for this lingering electoral skittishness, expanding the reform movement’s visibility and viability outside of the more traditional bastions of progressivism. In a state that incarcerated nearly a quarter-million people as of 2018, the prospect of long-overdue criminal justice reform should not be attainable only in those counties where progressive DAs already happen to work.   

Newsom’s choice will also reveal a lot about his priorities as he eyes re-election, since his appointee, presumably, will appear alongside him on the ballot in 2022. Among those rumored to be in the mix are U.S. representatives Ted Lieu, Katie Porter, Adam Schiff, and Eric Swalwell; state lawmakers Rob Bonta, Lorena Gonzalez, and Scott Wiener; Becton, the Contra Costa County DA; San Francisco City Attorney Dennis Herrera and Sacramento Mayor Darrell Steinberg; and Goodwin Liu, an Associate Justice of the California Supreme Court. Although the federal lawmakers are perhaps the biggest names, given the narrow Democratic majority in the House, Newsom would have to think hard about picking an attorney general who would create a congressional vacancy, especially in a purple district like Porter’s. (Two of Biden’s nominees, Marcia Fudge to the Department of Housing and Urban Development and Deb Haaland to the Department of the Interior, are also members of Congress, but sit in safe Democratic districts unlikely to flip.)

Some members of the state’s criminal justice reform community have already voiced their support for Becton, a former state court judge, pointing to her track record of pushing for changes to the juvenile justice system, among other things. “She’s shown a desire to engage in criminal justice reform in meaningful ways for the people who need it most,” says Assemblymember Rebecca Bauer-Kahan, who represents parts of Becton’s Contra Costa County. 

Others have singled out Liu as especially well-suited for the job in this particular political environment. Writing in the Sacramento Bee, UC Berkeley School of Law dean Erwin Chemerinsky calls Liu “the court’s leading voice on criminal justice reform,” noting that several of his opinions spurred state lawmakers to address racial discrimination in jury selection, expand the availability of Miranda rights for juveniles, and reform the availability of post-conviction relief for people convicted of crimes based on false evidence. 

Newsom’s choice of a new attorney general is also important because of how frequently the office serves as a springboard to bigger things for its occupants. His predecessor, Jerry Brown, began his second tenure as governor after serving as attorney general from 2007 to 2011; Becerra’s predecessor, Kamala Harris, won a seat in the U.S. Senate in 2016 and, of course, became Vice President of the United States four years after that. (If you want to go back even further, Earl Warren went on to serve as governor for a decade and, after that, as Chief Justice of the U.S. Supreme Court.) By replacing Becerra as attorney general with a proven, committed reformer, Newsom would seize a golden opportunity to meaningfully address mass incarceration and the policing crisis that fuels it—and perhaps empower his appointee to be even more impactful in the not-so-distant future.

CORRECTION: This commentary originally misstated the number of active DACA recipients in the United States. There were around 645,000 as of June 30, 2020, according to U.S. Citizenship and Immigration Services.