Kamala Harris’s slogan, ‘for the people,’ raises the question: Who really represents the people?

What you’ll read today

• Spotlight: Kamala Harris’s slogan, ‘for the people,’ raises the question: Who really represents the people?

• ‘I feel the oxygen going out of my mouth’

• Public defender tweeted that prosecutor was blocking defense investigation; an hour later, prosecutor backed down

• Jacksonville sheriff candidate discusses police accountability and inequities in arrests

• Baltimore prosecutor makes history, will no longer prosecute marijuana possession

• St. Louis prosecutor won’t ask for cash bail on low-level felonies

In the Spotlight

Kamala Harris’s slogan, ‘for the people,’ raises the question: Who really represents the people?

When Kamala Harris launched her presidential campaign on Sunday, she unveiled her new campaign slogan: “Kamala Harris: For the People.” This phrase comes from her time as a prosecutor, when she would introduce herself in court as “Kamala Harris, for the people.” She explained, “My whole life, I’ve only had one client: the people.” This claim to represent “the people” is not unusual for a prosecutor, but, according to law professor Jocelyn Simonson, whose essay “The Place of ‘the People’ in Criminal Procedure” was published in Columbia Law Review this week, “it is a deeply misguided claim, one that misunderstands the role of a prosecutor and risks undermining any larger goal of fighting mass incarceration or reforming the criminal legal system.” The notion of prosecutors as “the people” causes harm beyond the courtroom, she told The Daily Appeal, excluding marginalized communities from larger public debates about the purposes of criminal law. It also omits their well being in its definition of justice. “In this way, the idea that Harris, and all prosecutors, represent ‘the people’ is in direct conflict with another one of the promises that Harris makes early on in her speech: ‘to be conscious and compassionate about the struggles of all people,’” Simonson told The Daily Appeal.

“The customary case caption in criminal court, ‘The People v. Defendant,’ pits the local community against one lone person in an act of collective condemnation,” writes Simonson. “Or, as the opening credits of ‘Law and Order’ tell us, ‘The people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders.’” Procedures for policing, adjudication, and punishment often flow from this understanding of prosecutors and police officers as representatives of the public at large.” These procedures attempt to balance individual protections with law enforcement goals. “The public is brought into conversation with ‘the People’ by voting for prosecutors and serving on the occasional jury, but rarely are members of the public at large—the people—envisioned as being on the side of defendants themselves.” But community members, especially marginalized people, regularly participate through bail funds, participatory defense, copwatching, courtwatching, and other methods. Those efforts are often stymied by officials who view them as nuisances. [Jocelyn Simonson / Columbia Law Review]

“Rarely do we acknowledge in any formal manner that the arrest and prosecution of an individual can run against the interests of local community members,” Simonson writes. She argues that this traditional people-defendant dichotomy is critically flawed because it assumes that prosecutors are the primary representatives of the public and that we must limit public participation to those deemed “neutral” and “unbiased.” This excludes the voices of those who could be harmed by prosecutions and incarceration, and promotes punitive practices. There are, of course, “communal interests beyond prosecution” and an inclusive system of criminal adjudication should be “responsive to the multidimensional demands of the popular will.” [Jocelyn Simonson / Columbia Law Review]

In my criminal defense practice, I saw “the people” explicitly extended to the defense exactly once. I was representing a young man as he was in the process of enlisting in the armed forces. The charge was serious but nonviolent. The remarkably thoughtful prosecutor recognized that a conviction would destroy any future for him in the military––and in many other fields––and she agreed to drop it down to a noncriminal violation. When I told her what a difference this was going to make in his life, she said, “You know, it is not lost on me that ‘the people’ includes your client, too.”

Shonda Rhimes plays with this dichotomy in her 2018 series, “For the People,” which tracks young and improbably attractive attorneys on the prosecution and defense side. And in a 2012 book, “For the People,” historian Ronald Formisano examines populist political movements in American history, which is a bit of a mismatch for a candidate like Harris, who, if she gets the nomination, would most likely be running against a man often described as a populist.

So what should Kamala Harris do? “By all means, she should aspire to be a presidential candidate who acts ‘for the people’ at all times,” Simonson said. “But she should also recognize that she did not represent all people when she was a prosecutor. Harris, and all of the presidential candidates, should aim to be better than that: They should aspire to represent us all.

Stories From The Appeal

‘I Feel the Oxygen Going Out of My Mouth.’ In October 2018, Marshall Miles was taken into custody by Sacramento County sheriff’s deputies outside a convenience store. About 14 hours later, he was dead. [Aaron Morrison]

Stories From Around the Country

Public defender tweeted that prosecutor was blocking defense investigation; an hour later, prosecutor backed down: This week, Whitney Williams, a public defender, tweeted that the Manhattan district attorney’s office was trying to get a judge to stop defense lawyers from asking a private building for its video surveillance, saying that defense counsel is “subverting the discovery process.” In New York, defendants are entitled to very little evidence against them until trial, so defense lawyers “have an obligation to our clients to investigate their cases and assess the state’s evidence,” writes Williams. “To try and interfere with that process & prevent defense counsel of doing their job, is a gross overreach of @ManhattanDA’s power.” Just over an hour later, Williams tweeted that the prosecutors had reversed course. [Whitney L. Williams]

Jacksonville sheriff candidate discusses police accountability and inequities in arrests: Tony Cummings is challenging Jacksonville Sheriff Mike Williams in the March 19 election. In recent years, the sheriff’s office has faced allegations of racial profiling and use of force. This week, the Appeal: Political Report interviewed Cummings, who described how he would “make sure the citizens have a seat at the table” by supporting the creation of a public accountability office and civilian review boards. “They’re holding me accountable, they’re holding my directors accountable, they’re holding my chiefs accountable,” he said. “That’s how you run a transparent police department.” Cummings also pledged that his officers would be “trained to recognize that they don’t have to arrest on every offense.” Immigration was another story. Cummings said he would maintain the sheriff’s office’s 287(g) contract with ICE and assist the agency in detaining undocumented immigrants. [Daniel Nichanian / The Appeal: Political Report]  

Baltimore prosecutor makes history, will no longer prosecute marijuana possession: This week, Baltimore State’s Attorney Marilyn Mosby announced that her office would stop prosecuting people for possessing marijuana, regardless of the quantity or the person’s criminal history. Mosby also asked the courts to vacate convictions in nearly 5,000 cases of marijuana possession. “When I ask myself: Is the enforcement and prosecution of marijuana possession making us safer as a city?” Mosby said, “the answer is emphatically ‘no.’” No police or city officials joined her at the announcement. [Tim Prudente / Baltimore Sun]

St. Louis prosecutor won’t ask for cash bail on low-level felonies: In St. Louis, Prosecutor Kim Gardner said this week that her office would stop requesting cash bail for many low-level felonies, such as drug possession. Gardner also pledged to boost the number of people accepted into her office’s diversion programs, and she has already started issuing summonses for misdemeanor charges, doing so in 56 percent of the cases her office handled in 2018, she said. “I know that a history of high arrest rates, high conviction rates and lengthy prison stays have not made our city safer,” Gardner said. [Rachel Lippmann / St. Louis Public Radio]   

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