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Kamala Harris’s Criminal Justice Record Killed Her Presidential Run

Harris’s record as a prosecutor was representative of a politics of the past. The nation has moved on.

Photo of Kamala Harris

News broke on Tuesday that Kamala Harris was ending her run for president. While there are a number of reasons her candidacy was not successful, chief among them was her decision to brand herself a “progressive prosecutor.” She was not, at least not by today’s standards.  

The Achilles heel for the Harris campaign has been a perceived lack of authenticity. There is no better example of the gap between public presentation and historical record than her mischaracterization of who she was and what she did from 2004-2015, when she was San Francisco’s district attorney and then California’s attorney general. In truth, Harris’s record reveals that she is a centrist on criminal justice. Had she run on that record or reckoned with it—including acknowledging the harm her status-quo policies inflicted—the outcome might have been different.   

It is understandable that Harris would want to claim the progressive prosecutor label—it is trending nationally now. It signals to voters that a candidate will break from the failed tough-on-crime policies of the past. In the last five years, reform-minded candidates across the country have run and won top prosecutor posts on a message of ending money bail, refusing to prosecute low level drug crimes, and vows to prosecute police officers who shoot unarmed civilians—who are almost always black and brown men.

Harris positioned herself as the original “progressive prosecutor.” She was first elected as San Francisco’s top prosecutor in 2004. As district attorney, she pledged to never impose the death penalty, defying the city’s police department and Democratic leaders who were clamoring for the execution of a 21-year-old who killed an undercover police officer. She later wrote a book called “Smart on Crime” that urged officials to abandon the “tough on crime” policies of the past and instead favor rehabilitation over punishment. By the standards of the time, claiming a “smart on crime” mantle was lonely territory for an elected prosecutor.

But Harris fell behind the curve over the past fifteen years, as the nation’s sense of the scope and moral urgency of needed reforms to the criminal legal system—and especially to the role of elected prosecutor—shifted dramatically. The shift revealed that Harris’s brand of “progressive prosecution” was really just “slightly less-awful prosecution”—a politics, and set of policies, that still meant being complicit in securing America’s position as the world’s leading jailer. As attorney general, she weaponized technicalities to keep wrongfully convicted people behind bars rather than allow them new trials with competent counsel and prosecutors willing to play fair. One of them, Kevin Cooper, is on death row. Another, George Gage, will die in prison without intervention from the governor. In both cases, Harris had the power to change the outcome. She could have demanded DNA testing in Cooper’s case. She refused. She could have conceded Gage’s conviction was based on the prosecutor’s decision to suppress evidence that devastated the credibility of the sole witness against him. She didn’t

Harris also failed to hold police and prosecutors accountable for misconduct. In Orange County, where a sprawling jailhouse informant scandal has robbed countless people of their right to a fair trial, her lack of meaningful oversight has contributed to a crisis of legitimacy that continues to upend the county’s criminal justice system.

In 2015, when called upon by the Legislative Black Caucus to support bills that would have mandated that all police officers wear body worn cameras and that the Attorney General’s office investigate lethal officer-involved shootings, she declined.  She championed a law that went after the parents of chronically truant children, laughed when asked if marijuana should be legal, and supported a system that locks up people who are too poor to post exorbitant money bail. These policies were part and parcel of a system of mass incarceration that has deeply harmed poor people and communities of color.  

Harris was dogged throughout her campaign by questions about her troubling acts and, perhaps more importantly, failures to act—declining to take bold stances that would have angered law enforcement officials. Rather than admit the obvious, she doubled down, insisting that she had always been a reformer of a broken system. The truth is that Harris embraced progressive criminal justice policies only when it was safe to do so, including from her seat in the U.S. Senate, after they had become popular. Harris is famous for repeating the advice, “Don’t let people tell them who you are. You tell them who you are.” 

But voters want more than talk. They want you to show them.

Lara Bazelon is a law professor at the University of San Francisco School of Law, where she directs the criminal and racial justice clinics.  Before that, she was the director of the Loyola Law School Project for the Innocent in Los Angeles.