What Kamala Harris's Past As A Prosecutor Can Tell Us : Code Switch The VP candidate's biography and heritage allow people to project all kinds of ideas onto her, and to see what they want to see. But Kamala Harris's identity is a very important lens into not just her own politics, but also Black politics around crime and punishment more broadly.

Let's Talk About Kamala Harris

Let's Talk About Kamala Harris

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Photo illustration: LA Johnson/NPR; Photo: Saul Loeb/Getty Images
photo illustration of Kamala Harris, surrounded by colored bands and with &quot;CODE SWITCH&quot; overlaid on top
Photo illustration: LA Johnson/NPR; Photo: Saul Loeb/Getty Images

Not long ago, we dove into some of the big generational divides among Black Democratic voters. And in that episode — which we did right after Kamala Harris was named the Democratic nominee for vice president — we asked if we should explore her complicated history as a prosecutor.

Y'all gave us a resounding hell yes. So this week, we're going long on Harris's history as a self-described "top cop" and "progressive prosecutor" in California.

Over the last few years, voters in the Democratic party have moved to the left on issues of race and criminal justice, which has made things complicated for Harris during the 2020 presidential campaign. (Remember all the "Kamala is a cop" memes?)

But since her start as a prosecutor in Oakland, Harris has always navigated tricky political terrain, says Jamilah King, a reporter at Mother Jones and Bay Area native who has written on Harris's early political career. We talked to King about that record, what it means to be a "progressive prosecutor," and why it's so tough to pin down Harris ideologically. Our conversation has been edited and condensed for clarity.

Tell us a little bit about the landscape that Harris was stepping into in the early 1990s, when she was beginning her career as a prosecutor.

When Kamala Harris ran for public office in 2003, there was no such thing as a "progressive prosecutor." I think that's important to start with. And the person that she was replacing, Terrence Hallinan, was considered to be super progressive. And still, he prosecuted the last case in San Francisco that used the death penalty. So this was a very, very different era. Coming out of the '80s and '90s, there was still a lot of the "tough on crime" rhetoric that politicians needed to use to get elected.

But thanks to the activism of a lot of folks who were formerly incarcerated and their families, we're starting to see the limitations of those policies.

In her first race for district attorney, you said she was running against Hallinan, someone who was considered as progressive as prosecutors could have been back in the early '90s. So how was she pitching herself as a candidate against him?

She was pitching herself as a "get-it-done" progressive. This was San Francisco, so everybody was more or less somewhere on the progressive spectrum. But she was definitely more on the moderate end of the progressive spectrum, so she talked a lot about bringing law and order to the streets.

There was this sort of old-school rhetoric, like the Black folks in the neighborhood who are like, well, if they would just go to school and pull up their pants. I mean, Harris never said "pull up their pants." But we know that rhetoric, right? Like, if we can just give people the resources that they need to engage meaningfully in society, they'll do it. There was definitely this strain of personal responsibility that ran throughout what she was proposing. So she was running as a progressive, but she was a moderate progressive.

Can you say more about what it meant to be a "progressive prosecutor" the way she was trying to be?

She definitely tried to use that label to describe herself in her book, which she released shortly before she announced her run for president. But it never quite fit, right? It didn't quite make sense.

I don't want to speculate about how Kamala Harris is coming to her racial identity, but I'm going to do it anyway. She talks a lot about being the daughter of immigrants. She talks a lot about, you know, growing up sort of in the shadow of the civil rights movement, which was its own display of respectability politics. She doesn't necessarily talk about growing up in the backyard of the Black Panthers in Oakland.

She's the daughter of two professors.. She also went to Howard and pledged Alpha Kappa Alpha. And I love them — I have many AKAs in my life who I love and adore dearly — but they are not typically the folks with fists raised, trying to beat down the system. They very much have a political ideology built on being twice as good, on showing up in the crispest suit.

One quote that I find interesting, that her mother gave an interview to a Bay Area reporter, basically said, she can definitely hang with all these people; she knows which forks to use at the dinner table. She's been in these spaces of power and privilege, and she is trying to wield them in a way that's beneficial to black folks.

One of her signature programs when she was the district attorney of San Francisco was called "Back On Track." How did that program work?

"Back On Track" was a relatively small program that Kamala Harris started in the San Francisco District Attorney's office. It was an alternative to incarceration for first-time nonviolent offenders.

I spoke to one young woman who graduated from the program. She was in a tough spot. She was a college student. She was Black. She made a bad decision, started to sell drugs and got caught. And she was put in this "Back On Track" program, where the big thing was that participants had to plead guilty.

So the participants would have a felony on their records.

They would have a felony on their record, but that felony would be expunged if they finished the program. The program consisted of everything under the sun. It was an internship program, but it was also for other things: if you needed counseling, job preparation, or resume help. At one point, Kamala Harris and her staff realized that folks needed stress relief, and they wanted a gym membership. So she got 24 Hour Fitness to donate memberships to the program. And it was a pretty successful program, given how small it was.

I think it's important to note, too, that she has always had a lot of political ambition and sought higher office for herself. And half of California is a deeply conservative state, so if she was going to run statewide, she needed to not be seen as someone who was making it easy for people who had broken the law to re-enter society.

This was California. This is the land of "three strikes" sentencing laws. This is the same state that the Supreme Court said had such overcrowded prisons that it was functionally cruel and unusual to have prisoners incarcerated in them. So California is a deeply punitive state. You wrote that, in one point in her career, Harris declined to seek the death penalty in the case of a man who was convicted of killing a police officer. Can you tell us a little bit about her thinking and what the public response to that decision was?

So in 2004, a few months after Kamala Harris took office, there was a shooting in Baby Hunter's Point, which is a predominantly black working class neighborhood in San Francisco. A young police officer named Isaac Espinosa was shot and killed. Kamala Harris had run on a platform that committed to not seeking the death penalty. [So as the district attorney and prosecutor on the case], she declined to pursue the death penalty.

And at the time, it was a really controversial decision. Senator Dianne Feinstein was very opposed to Kamala Harris's decision and even said that if she'd known that Kamala Harris would have done something like this, she would not have supported her for district attorney. And California's police unions were incensed. So this made it harder for her when she decided to run for attorney general of the state. She had to really mend a lot of those bridges.

In your reporting, you get at why it's so hard to pin her down ideologically. What are some some examples of conflicting policies that she supported, as the D.A. of San Francisco and then as the A.G. of California?

As district attorney of San Francisco, she declined to pursue the death penalty. But as attorney general of California, she defended the state's use of the death penalty. She essentially said: look, I'm doing my job. It's the largest attorney general's office, second to the U.S. attorney general. And after the Supreme Court ruled that California had basically put way too many people in prison, her office argued that they needed to have these folks in prison because they were essential to prison labor. [Later, Harris told BuzzFeed that she hadn't known that was an argument that her office was taking. — Ed.]

She's tried to distance herself from the more controversial decisions that her office made. She was in support of gay marriage. She co-sponsored a bill that outlawed the so-called "gay panic defense."

But with marijuana legalization, it took her a while to come around to that — especially as someone whose signature program, "Back On Track," was largely geared toward nonviolent, first-time offenders who maybe sold weed, [her wariness] was a really big deal.

But what she didn't do was make these grand gestures like her political cousin Gavin Newsom, who in 2004 legalized gay marriage in San Francisco and began officiating ceremonies. That was a huge grand gesture. But Kamala Harris, by virtue of her temperament and also her profession, was looking at the very specific details of how to actually change the law. And that, I think, doesn't warrant as much praise [from the public].

I think it's incredibly hard to create change from within law enforcement. She was within the confines of a law enforcement system and a criminal justice system that has been very, very slow to change. And only in the last five to ten years has there really been a large following around issues like prison abolition.

So how much of this criticism of her prosecutorial record and the way she's navigated her career is about the specific social location she occupies as a Black woman? And how do we square that with legitimate concern about the overreach of the criminal justice system?

I think it's important to look at what she's done in the Senate to really get a sense on who she is and how much her ideas now contradict what she did in office. For instance, after George Floyd was murdered, she ended up co-introducing legislation that would reform policing federally. It would introduce many federal mandates around how police act in different jurisdictions. And one of the ways that her legal experience came in handy was she was looking at the actual terminology that was being used to outlaw chokeholds. Because she knows the system, she was like, look, this isn't specific enough. You need to actually change the language so that it says something like, police officers cannot use any maneuvers that stop [breathing]. So I think in that instance, you see her law enforcement experience really coming up to the fore and being incredibly useful in her attempts to reform things.

But I think another huge part of this is that she is a Black woman who was in elected office in an era when that just didn't really happen. And she was in law enforcement, no less. In the last four years, we've seen so much lip service paid to the fact that Black women have long been the backbone of the Democratic Party. But she was doing this 20 years ago. And I think just the game was different then. You didn't have a you didn't have sort of a mainstream Democratic electorate, or even a progressive Democratic electorate, that was pushing for the same issues that it's pushing for now.

I think the circumstances in the specific landscape around her has changed. It's pushed her to articulate a vision that she believes in. But more importantly, it's made her be precise about how she's going to use her law enforcement experience to shift the systems that she's trying to change.

How do people who experienced the criminal justice system under Kamala Harris's tenure —in San Francisco and later the state of California — think about her time as a prosecutor?

That's a really important question. And it depends on how deep within the system you were.

So there are folks like Jamal Trulove, a young Black man who grew up in San Francisco who was incarcerated for a murder that he was very clear that he didn't commit. And later, an appeals court found that Kamala Harris's office had overzealously prosecuted his case, despite there being evidence that he was innocent. He obviously is very, very critical of her record.

I'm from San Francisco. I know folks who've been in the system and they'll just say flat out: "Look, she's a cop. She put us in jail." I'm not trying to try to [support her]. On the other hand, it's always been really telling for me that there are a lot of organizers and community groups within California and San Francisco's criminal justice reform system that are pretty ride-or-die for her. They don't agree necessarily with all of the decisions she's made, but they recognize that she was one of the few people to even give them a seat at the table.

She's this complicated figure, but I think she's earned the respect of a lot of the people who are doing criminal justice work, who recognize what the confines are. They recognize what's possible, and they also recognize when she's wrong. That's not to say that everybody is in favor of her. But I think there's this long history in San Francisco specifically of sort of Black folks in elected office being a little bit more moderate than sort of the white progressives who end up getting the headlines.