What A Day - Kamala Harris' Time As DA: Cop or Progressive?

Episode Date: August 3, 2024

When then-Sen. Kamala Harris ran for president in the 2020 election, progressive activists quickly labeled her a “cop,” a reference to her time as the district attorney of San Francisco. Activists argued that being a D.A. was an inherently pro-police, pro-prisons job — a charge Harris hasn’t always shied away from in her political career. To get a sense of how Harris’ past has shaped the politician she’s become, Max and Josie examine her time as the San Francisco D.A., and later the attorney general of California. They explore key moments in her career, like when she opted not to seek the death penalty against a man who killed a police officer, to get a sense of her instincts and thinking about criminal justice more broadly. They come out the other side of the conversation with something hard to come by in politics these days: nuance.

So, Josie, I look at all the progressive excitement around Kamala Harris, and there's one thing that kind of puzzles me. Tell me, Max. What is it? Back when she ran in the 2020 Democratic presidential primary, I feel like there was a word that I heard progressives use to describe her, and they didn't mean it as a compliment. I bet I know what the word was. It was cop. Right. Kamala is a cop, they would say. Yeah, this is in reference to her background as a former district attorney for San Francisco. In other words, as a prosecutor. Yeah, and the charge is that being DA is an inherently pro-police, pro-president's job.

And she hasn't exactly shied away from that all the time. Here's a clip from a campaign ad she did in 2016 when she ran for Senate. As a career prosecutor, I've seen how we make the biggest difference when we focus on the needs of our children. Kamala Harris. As attorney general, she aggressively prosecuted predators who victimized children and took on elementary school truancy to get more students on track. Aggressively prosecuted. Josie, I got to be honest, I don't know what to think here. When it comes to issues like policing and prisons, is Kamala Harris a cop or is she a progressive? Well, Max, you have come to the right place because this week we are going to dive into Harris's record from her years as San Francisco DA. And we're going to come out the other side with some nuance, at least.

Oh, I love nuance. I'm Max Fisher. I'm Josie Duffy Rice, filling in for Aaron Ryan. This is How We Got Here, a series where we explore a big question behind the week's headlines and tell a story that answers that question. Our question this week, what does Kamala Harris's record as DA tell us about who she is? And it's an important question because this is the job in which she spent the bulk of her career. 20 years in the San Francisco prosecutor's office, including seven as DA, then another six as state attorney general, another somewhat prosecutorial role. So she spent a lot of her career dealing with issues like policing and incarceration and criminal justice. Yeah. And it maybe also tells us something about her instincts and her thinking more broadly, right? Because when we look at her record,

what do we see? Do we see a reformer? Do we see a radical? Do we see a traditionalist? Josie, I truly cannot think of a single person I would trust more than you to walk me through this. You have been writing and reporting for years on these issues. You're also an authority on prosecutors and specifically on progressive prosecutors. So I feel very lucky that you're here. I'm always happy when someone lets me just talk about prosecutors. So this is very exciting for me. All right, well, let's get into it. Let's start by rewinding to the 2000s. Josie, you remember the 2000s.

I do. Bush was president. Kanye and Radiohead were on the air. Cargo pants, you know, rained. Boy, did they. And San Francisco's DA was a rising hotshot named Kamala Harris. I want to play you a clip from 2006, two years into her tenure, when she appeared at an annual C-SPAN conference hosted by Tavis Smiley called the Black State of the Union and talked about how she saw her job. Let's listen.

The criminal justice system is not working for the African-American community. I can tell you as the chief law enforcement officer for a major city in this country that it is not working. We see that in the statistics that you've outlined. Two million people are in the prison system in this country. Over 40% are African-American in spite of the statistics that you've outlined, 2 million people are in the prison system in this country. Over 40% are African American, in spite of the fact that we only constitute 13% of the general population. It's not working. It's not working when we recognize that African American men,

the leading cause of their death is homicide. We are overly represented, both as victims and as defendants and as witnesses. Our communities suffer because our babies hear the gunfire every night, so the 7-year-old has post-traumatic stress disorder and cannot go to school the next day and learn. and as witnesses, our communities suffer because our babies hear the gunfire every night, so the seven-year-old has post-traumatic stress disorder and cannot go to school the next day and learn. The criminal justice system is not working for us.

Okay, so far, pretty straightforward. She's reflecting a fairly common leftist-center strain in the discourse at the time. The criminal justice system is flawed, and the primary flaw is how racially biased it is. But here's where she takes a more controversial stand, and Josie, I'm hoping you can help decode this part for us. What I think we have failed to do as a community, however, is own this issue of law enforcement. We talk about these statistics in the context always of it is unfair, it's morally incorrect. Maybe we have learned that from the church. It is morally incorrect, but nobody cares about that. You can look at Katrina. Nobody cares about the fact that we've got a bunch of young black and brown men in prison. That argument is not working. What I

suggest we do as African Americans is own this issue in law enforcement and then define it in the way that works for us. Because it is a myth to say that African Americans don't want law enforcement. We do. We want our grandmothers to be able to walk to church and be safe. We want our babies to be able to walk to the park and be safe. What we don't want is racial profiling. What we don't want is excessive force. What we don't want is to have our civil liberties and civil rights be stripped. But we do want law enforcement. So let's define it in the way that works for us by saying, I want community policing. I want a police department that works in my neighborhood and in my community that reflects the mores and the culture and respects my grandmother

again when they walk in to talk to her. I want a system of accountability in the criminal justice system that says law enforcement needs to own crime prevention as much as it talks about long sentences. Because nationally, only 18% of serious crime results in an arrest. So if I, as law enforcement, with my responsibility to keep you safe, only talk about keeping you safe by sending people to prison for a long time, I'm necessarily going to fall short because the vast majority of that crime is not even hitting my system. So if I'm going to keep my promise to you to keep you safe, I better talk with you about what I'm doing in terms of crime prevention, which means recognizing that people coming out of the state prisons,

60% will recidivate if we don't get them in reentry programs, if we don't get them in job training, job readiness, get them in programs that deal with their substance abuse, get them in meaningful housing and employment so they don't recidivate. We could talk about it in terms of is it the right thing to do? Of course it is. But you know, I'm done talking about it like that. I'll just talk about it on this basis. If that person commits another crime, I have to spend $10,000 to try that felony. They sit in my county jail for $35,000 a year. I'm running a reentry program out of my office in San Francisco DA's office that brings folks back into the community at an expense of $8,000 a year.

Guarantees them employment. Guarantees them meaningful reunification with their family. And in that way, and in that way fulfills my responsibility to keep my community safe. So let's redefine this issue in the context of public safety and just simply talk about doing crime prevention, investing in people coming out of prisons is the smart thing to do for law enforcement. Forget that it's just the right thing to do. It's the smart thing to do. Okay, Josie, help us make sense of Harris's comments there.

Are these progressive positions she's taking out, tough on crime positions? The answer is kind of complicated. It sort of depends on when we're asking that question. Today, I'd consider her comments to be pretty moderate, relatively. Back then, I'd say there were to be pretty moderate, relatively. Back then, I'd say there were parts that were very progressive for the time. And Max, remember, 2006 is a very, very different time. Crime was near a 20-year low at that point. But the massive crime spikes that we had seen in the late 80s and, you know, early to mid 90s, they still had a major

impact on politics. Like, it was still kind of a driving fear of everybody's, right? And that was particularly true in California. Here's what Lori Levinson, professor of law at Loyola Law School, told me. I think it's misguided for people to think, oh, California is not tough on crime. Are you kidding? We were the ones who had three strikes and we were using it. And we incarcerated a whole generation of people of color in California for these crimes. And we made a lot of special circumstances, qualified for the death penalty. We went after juveniles and seeing them as predators. There's a great fear out there. And that fear led to increased enforcement.

So, Josie, what were the positions that we heard Kamala Harris taking in 2006 that were progressive at the time and are seen as moderate now? And why are they now seen as more moderate? It's kind of interesting, right? Because she does say some things that are pretty progressive at this point. Like she points out that most harm that happens, that most crime that happens never even gets to her office. And that's true. Most crime isn't reported. Most reported crime isn't, you know, arrests aren't made for those crimes. You know, very little crime is solved. So the prosecutor is actually covering a very small amount of crime, and most prosecutors don't really want you to know that. She also makes it clear she can't keep you safe just through prosecution. She identifies this

need to fix parts of the system. And there's also this kind of the criminal justice as public health frame that was gaining popularity in that era. The criminal justice system should help prevent, it should help fix, right? And this is seen as very progressive at the time. But there's also some pretty, I would say, moderate, average stuff, average prosecutor stuff that we see. And one of those is that there's still this over-reliance on the system as the system as the best thing to fix the system. There's still this perception that prosecutors should be the ones to solve the problem of crime, to prevent it. And the truth is that that is a pretty antiquated perspective at this point, because what we actually see now more is a push to get prosecutors and the system out of, you know, to shrink the system, not to expand it, not to have it also doing prevention, not to have it also doing after school programs, not to have it also, you know, working with, you know, the social workers and that.

To not have it weaved in more, but to have it weaved in less, right? And so in that way, the comment she makes, you know, they would be taken very differently now. It's also very clear when you like hear her, there's just the limits of imagination, right? Of not just her. I mean, this is an entire party at this point. Like the conversation is about Black people wanting law enforcement versus Black people and everybody just not wanting crime. Like, people don't actually want law enforcement. They don't want crime at all, right? If we're going to actually imagine what people want, it's to not need law enforcement. It's to just be safe, right?

It's to not need a cop to be, you know, on the corner. We just want it to not need so many cops to begin with. We want less crime. Right. And a point that you've made, too, is that back in the 2000s when Kamala Harris was kind of first rising as a DA, prosecutors as a topic and as a force in our society and our politics was just not something that we thought or talked about much. But of course, most prosecutors, regardless of where they stand in the political spectrum, took a very tough on crime approach, right? Yeah. You know, at the time, there was a really direct connection between I'm going to lock up as many people as possible, and therefore you'll be safe, right? That's what public safety was. It was arrests, it was prosecution. And it was a connection that nobody in law enforcement really questioned, at least publicly. So it's interesting to hear

her comments because she does seem to be acknowledging that, right? Which was pretty radical for the moment. Here's what Professor Levinson said. I think there have been a lot of shifts. I think that we could have predictably relied upon 10, 20 years ago, prosecutors to be people who are just an extension of law enforcement. And law enforcement would bring them cases and then they would take the cases, bundle them and bring them to court and go through the court procedures. So let's take a step back. If Kamala Harris was part of this wave of progressive prosecutors, and in that clip we heard she was articulating positions consistent with that,ly, what is that movement's theory on things like policing and crime? are often also victims, right? She identifies that, you know, the system is racially biased.

She identifies the need to address police brutality. There are elements of her in 2006 and a progressive prosecutor today that are aligned. I would say some of the differences, though, are that you never actually hear an acknowledgement of the role prosecutors have played in the harms of the criminal justice system. There's this acknowledgement of the role prosecutors have played in the harms of the criminal justice system. There's this acknowledgement, the system isn't working, but she's part of the system, right? That's what a prosecutor is. And I don't mean to say that it's something specific about her. It's the role. The prosecutor is the most powerful person in the criminal justice system, and they've typically gotten the least amount of attention, right? And now when you see progressive prosecutors, there's some acknowledgement of people have used this role and done harm, right? And I want to try to address that harm. I want

to try to compensate for it. But you don't really hear that. And also, I think, you know, again, there's just more skepticism now from prosecutors and others about the capacity for a system like this to change. She sort of says, look, we need to fix the system. Black people need to make this our issue, right? But the truth is that, like, the system is not malleable enough for that. And that's something that people are more aware of now. You know, black people are not going to make law enforcement theirs, right? Law enforcement is hundreds of years old, you know, hundreds of years of terrible incentives that have created this morass of bureaucracy and cruelty. It's not really something

we can disrupt in the way that I think that used to be the perception. So the old view kind of working within the system and the more current progressive view being kind of changing the system as a whole. What I would actually say is I think the old view was let's make the system better. Let's do more training. Let's get body cameras. Let's, you know, do this DEI thing. Let's, you know, the new kind of perspective is let's shrink this system. Yes, it would be great if it's also better.

But we don't need it to take up so much space. We don't need it to be doing everything. It should be doing less. I feel like that sheds a lot of light on why people took a critical eye to Kamala Harris specifically in 2020, because at a moment when we were thinking we need to shrink the system, well, you know who was part of it was the DA of San Francisco. Right. Okay. So now that we understand the kind of ideological movement and the moment that Harris

fit within as DA, Josie, what can you tell us about the specifics and substance of her record on the job? Yeah, so she was elected in a pretty contentious race in 2003, and she beat the incumbent. He had been there for a couple of terms. When she's running, she gets a police union endorsement, the sheriff endorsement. She has law enforcement support, but relatively speaking, she's still on the more progressive end for the time. So I interviewed Emily Bazelon. She's a lawyer and writer at The New York Times who has written a lot about prosecutors. And she's followed Kamala's career pretty closely.

So here's what she told me about Kamala's first election. And so when Harris ran for DA, she was in a city that, you know, was pretty, for the time, pretty liberal on criminal justice issues. People weren't really talking about ending mass incarceration in the way that has become much more of a theme. But there was a kind of possibility there. And so when she ran for district attorney, she ran against the death penalty. So the death penalty is a big part of her story, as my understanding. It's something that ended up really impacting her tenure as DA. Yes, I think it created a controversy that has stuck with her ever since. You know, this might have been the biggest controversy in her political career, honestly, because early on in her tenure as DA, a police officer is shot and killed. And

there's a question of whether or not she will seek the death penalty. She has said that she would not. But the death penalty for killing a police officer was a very popular political decision at the time, right? And so here's Emily again, talking about what happens next. And before the funeral of this officer, she announced that she would not bring the death penalty. And that turned into a big controversy with the police union, also with other Democratic politicians like Dianne Feinstein at the time denounced her. And I think that was a pretty formative event for her, both that she stuck to her promise and kind of afterward some backpedaling that she did.

When you say it was formative for her, how do you think it shaped her willingness to make kind of bold promises moving forward as a politician? It seems like it sort of made her more cautious. Yeah, I think it did make her more cautious. You know, her mother sent her flowers at the time, you know, congratulating for her, for her courage. But there was real political fallout. And so then you see her shift to what she called smart on crime. So that's the title of a book she wrote in 2009. And she's doing things that, you know, she thinks of as reform and as like better value for the investment in public dollars. So she talks about how many people who go to jail and prison get out and then go back. And so she's

saying to the voters, that's a really bad investment and we need to improve those numbers. And so she did start a program that offered first time drug offenders the chance to earn a high school diploma and get a job instead of going to prison. But it was a really small program. It had, I think, fewer than 300 graduates over eight years. And so what you see there is, like, some effort to grapple with the real injustices in the system and try to create second chances for people, but also to keep it very small, because you don't want people to fail out.

You don't want to have another big controversy explode on your watch. I think it's worth just mentioning, Max, that this is sort of the hazard of the job, right? I don't actually know how much of this is specific to her personality and how much of it is kind of inherent in what it means to be a prosecutor. Because a prosecutor has, you know, so many, they make so many decisions in their tenure, you know, hundreds of thousands of cases. All those cases have multiple steps. They have all these line DAs under them. And there is a real incentive to be risk averse because one of those decisions goes wrong, something happens and, you know, you are blamed for it. Someone gets out on bail and they, you know, hurt a family member or you, you know, you are blamed for it. Someone gets out on bail and they, you know,

hurt a family member or you, you know, a cop, someone gets out on bail and kills a cop or whatever it is. You end up shouldering the blame for a lot of decisions in a way that I think incentivizes caution. It's hard to be a courageous DA because the easier thing to do is to be more punitive and to kind of toe the line, right? Let's talk a little bit more about her record as DA. In 2009, a few years into her tenure, Kamala Harris wrote a book titled Smart on Crime, A Career Prosecutor's Plan to Make Us Safer. And I'm so sad to say that there's no audiobook version of this that we can play, but I wanted to read a passage from it, Josie, to get your sense of what this tells us about her thinking. Here's Harris writing about a San Francisco neighborhood called the Tenderloin. Many people who are living on the streets there are suffering from addiction and mental illness but are receiving no treatment. Turning a blind eye dooms a lot of individuals and

turns the neighborhood into a dangerous, dirty, crime-ridden zone. Our Community Justice Center is a collaborative problem-solving center with a court on site designed to provide accountability for lower-level criminal behavior and at the same time to address the root issues associated with this behavior, such as substance abuse, mental illness, and lack of shelter. The center is based on the principle of immediacy, immediacy of consequences, and immediacy of services. Key is having everything under one roof, criminal justice agencies, service providers, members of the bench. It's simple but effective model. Josie, what do you think?

Again, I think the rhetoric here is pretty progressive for its time. This is still an era where the perception of drug use was that you could kind of punish your way out of it, right? And so to see someone say, look, these people are suffering, they need help, is out of the norm to see a prosecutor say that, right? But at the same time, I think the solution is wrong. Because again, it requires the criminal justice system to be more kind of interconnected with things like rehab, right? Things like addiction services, things like treatment, housing services, and kind of all with things like rehab, right? Things like addiction services,

things like treatment, housing services, and kind of all of the elements of the social fabric that are supposed to support people. And we have discovered that that is not the most effective way to reform the system. The most effective way to reform the system is to be able to utilize those tools without criminal justice involvement, right? Without needing to be prosecuted first, without the prosecutor being in the same building, not to weave them in more. There's another issue that if you go through Harris's public appearances during her time as DA, she talked about a lot. And this one kind of surprised me.

It is in her word, truancy or kids skipping school. She mentioned it in the Senate campaign ad we played at the top of the show. And here is a clip from 2009 when Harris went on a local TV show called View from the Bay to promote her book. When a traumatic event occurs in the life of a child, it will be forever imprinted

unless we take seriously the need to engage in intervention and to help that child process and deal with and cope with what caused that trauma. And the same is true on this issue of elementary school truancy. You had me here probably about a year ago talking about that. I started an initiative that basically started prosecuting parents if their elementary school child was chronically and habitually truant. Because I was looking at our crime statistics, and I figured out that 94% of our homicide victims who were under the age of 25 were high school dropouts.

And then when you look backward, it's the elementary school student who has missed 50, 60 days of a 180-day school year who will be that high school dropout. And those were the cases that we've seen when we started this truancy initiative. So you did hear that correctly. She did say prosecuting parents. And this was a really big thing for her as DA. She ran to be the California Attorney General in part on it. At her inauguration as AG in 2011, she said, quote, we are putting parents on notice. With her support, California made it a misdemeanor to

have a kid in grades K through 8 who misses 10% of school days without a valid excuse. The punishment was a $2,500 fine or up to a year in jail. Josie, what do you make of this? So as a policy, I hate it. I'm sure you won't be surprised to hear. Yeah, it's a lot. I think it's completely misguided policy. But it also was not totally uncommon.

Really? Prosecuting parents for truancy was something that a lot of DAs across the country did. And the logic was, you know, it was aligned with the logic and this focus at the time of like protecting children. You were harming children by not having them at school and we want to protect them. And the best way to do that, like Emily said to me, right, is with a stick, not a carrot. I think that the stick, not a carrot operating theory of, you know, government is not the right way to run government. So I don't like this policy. But I do see where it comes from. And I think what's really interesting is that you point out

she ran on this. That's because the messaging really worked, right? Things have changed a lot since 2011 when she ran for attorney general. And she was running against a pretty conservative guy, Steve Cooley. And that was a very close race, right? She was kind of moderating and I think was focusing on these tough on crime, tough on parents, protecting children policies that at the time pulled pretty well. Now there's a sort of more understanding that if a child has issues at home or has parents struggling to get them to school, probably the worst thing you can do is, you know, you

know, lob a criminal charge on them. That's not going to help them. That's not going to get them back on track. That's going to make their lives more difficult and the child's life more difficult. But at the time, this was the operating theory of, you know, behavioral intervention in cities and states and, you know, DA's offices across the country. She no longer wants to lock up all the parents, at least as far as we're aware. I feel like a big data point here is Harris's campaign in the 2020 Democratic presidential primary, which she actually dropped out of pretty early.

It was actually 2019 when she dropped out. But this is also a somewhat fuzzy data point for how to read her because she initially tacked left, which meant downplaying her time as a prosecutor. But then later she leaned into that record and even made her campaign slogan, justice is on the ballot.

Josie, what do you think this tells us about her and her politics? Yeah, Max, this is such a good point because I've also been thinking about that shift, right? From tougher on crime to more progressive to really engaging in the prosecutor frame once again. It also reflects the kind of contradictory beliefs of the electorate as well. There's a big push, right, for criminal justice reform. I think there's a lot more skepticism about prosecutors and police and prisons. And at the same time, there's really an engagement with the power of the prosecutor because of the former president, Trump, right? There is a real push for his prosecution. There's a real kind of insistence that the system keep who, you know, the entire kind of left feels

has violated the law so brazenly for so long. It's a great point about how she is both caught between, but also an expression of the contradictions within what people want on prosecution and policing, the ways that our views on that have changed over time. It makes it a really fascinating episode. And Josie, on this podcast on Monday, you talked about how voters might feel about Harris's background as a former prosecutor, how it might affect the race. But I wanted to ask you, someone who is progressive, who is deeply versed in these issues, like how do you feel about her record as DA? To you, does that record speak to someone who is in their heart progressive, not progressive, tough on crime, not too tough on crime, pragmatic, ideological? Like,

who do you think she is kind of viewed through her resume and her journey on all this? You know, Max, the job of prosecutor is inherently not progressive. The job is to put people in prison, right? It's a back-end job. It's a punishment job. And so there is a big part of me that can never really rectify the job as one that could be a progressive space, right? It's not really eligible for progressive values because it is so regressive. It is so punitive. But I think that what I kind of see and see a lot more in these past few weeks is that,

contrary to popular opinion, she was a lot more thoughtful about many of these issues than she's gotten credit for. Again, I don't think that means that she was a perfect prosecutor. I think there's plenty of things she did that I would have issues with. The same with any prosecutor's office in the country, right? But people sort of think prosecutors are bad and she was one of the worst.

And what I think is prosecutors do cause a lot of harm and she was one of the better ones for sure. And I also think like, it's an interesting job arc because as president, she'll have way less control or influence over the criminal justice system than she did as the DA of San Francisco. She would have way more control in her old job than if she wins, you know, the election. And so in some ways, I think the focus on that part of her record is maybe, I understand it from a values perspective, but not from a policy perspective, right? Because what she's going to have to do in this new role is to take on all these other issues, take on foreign policy, right?

Take on the economy, take on the country. One of the things she's not going to have to do is really have any influence over criminal justice at all, because that's a local issue. So maybe the answer is, you know, this is a new era. What she did then, good or bad, doesn't actually have to really reflect what her tenure will be like as president at all. Yeah. Well, Josie, let's go out with this clip from a 2020 episode of The View in which Meghan McCain tries so very hard to ask Kamala the most leading question imaginable about defund the police, which really speaks to your point about the tensions and polls on how people feel about these issues. Oh, boy. So I'm going to ask the same question the protesters

asked him. Are you for defunding the police? How are you defining defund the police? Well, I'm not for anything remotely for that. So I would ask the protesters the same thing. But I assume it's I assume. And again, this is something that is new to me. I assume it's removing police. And as Congresswoman Ilhan Omar said, bringing in a whole new way of governing and law and order into a community. And my understanding, again, this is something that has just come into my understanding recently,

is that you would not have police officers like this Minneapolis city councilwoman said that I would be a place of privilege if someone broke into my home and I wanted to call the police. So, again, we need to reimagine how we are achieving public safety in America. edits the show. Jordan Cantor, sound engineers the show. Audio support from Kyle Seglin, Charlotte Landis, and Vasilis Fotopoulos. Production support from Adrian Hill, Leo Duran, Erica Morrison,

Raven Yamamoto, and Natalie Bettendorf. And a special thank you to What A Day's talented hosts, Traevelle Anderson, Priyanka Arabindi, Josie Duffy Rice,

and Juanita Tolliver for welcoming us to the family.