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.