Kamala Harris, Progressive Prosecutor?

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So we are barely into 2019, and 2020 is upon us.

The presidential race has officially begun with the entry of Democrats, including Elizabeth Warren, Julianne Castro, Tulsi Gabbard, and Kirsten Gillibrand, and of course, heightened expectations that Bernie and Betto and Bloomberg might be waiting in the wings.

But the biggest rollout so far has been that of Kamala Harris.

I stand before you today

to announce my candidacy for President of the United States.

The two-year senator from California is already being talked about as a presumptive frontrunner.

Kamala Harris came out yesterday and had a message, and it was a message that I think resonates.

Giant crowd.

A gigantic crowd for the story.

So number one that we have on our rankings is Kamala Harris.

A lot of people see Harris as a liberal icon, a mixed-race, self-made American success story in the vein of Barack Obama.

But Harris's previous career in law enforcement complicates this.

Before she won federal office in 2016, Harris was the Attorney General of California.

Before that, she was a career prosecutor.

And some people say she was not a particularly progressive one.

In the era of criminal justice reform and Black Lives Matter, can a former prosecutor win the Democratic nomination?

And how much does it matter that that same former prosecutor is a woman of color?

This is Radio Atlantic.

Joining me today to talk about this very complicated and compelling candidacy.

So many alliterations.

This is a great Paul Butler, a Georgetown Law Professor, MSNBC legal analyst, and former federal prosecutor.

Professor, great to have you on the podcast.

Hey, Alex, it's great to be here.

And Emily Basilon, the New York Times Magazine's legal correspondent, co-host of the fantastically successful Slate Political Gab Fest, and author of the forthcoming book, Charged, the New Movement to Transform American Prosecution and End Mass Incarceration.

Emily Basilon, a delight and a pleasure to have you as well on our podcast.

Thanks so much.

So glad to be here.

So, Emily, you profiled Kamala Harris for the Times Magazine so presciently in 2016.

For people who are unfamiliar, tell us about her early career and how she got into law enforcement.

So Kamala Harris has two parents who are academics, an economics professor and a health policy professor.

And she grew up in working class African-American Berkeley, and her parents were civil rights activists.

So they marched, they brought folks back to her home who were important in the civil rights movement.

And so she comes from that sort of activist childhood.

But then she went to Howard in Washington, D.C.

She became a lawyer, and her first job was as a prosecutor in Alameda County, which is Oakland and the surrounding towns.

And that's kind of a surprising choice from someone who comes from a civil rights background because you're going to be enforcing the law rather than pushing up against its boundaries.

And when I asked her, asked

Harris, when I profiled her about why she made that choice, she talked about the importance of changing the system from the inside.

I know Paul has a lot of thoughts about this because earlier in his career, he made a similar choice to become a prosecutor.

Paul, so with that, you know, you spent the 90s as a criminal prosecutor in Washington, D.C.

The relationship, as we understand it, between the black community and law enforcement is fairly fraught.

Can you explain how you made that decision and what was the sort of broader view of prosecutors at that time?

I grew up in Chicago, a young black man in a community where I could walk for blocks and blocks and never see a white person.

I'm 13 years old riding my bike to the library, which is in the white area, literally across the tracks.

And when I cross those tracks, a cop car pulls along beside me.

Cop rolls down the window.

Is that your bike?

He says.

I said, yeah, is that your car?

And I sped off.

And when I got home, I told my mom, my mom, who was a civil rights activist, marched with Martin Luther King, took it to the streets with Malcolm.

I told her what I said to that cop, and she spanked me.

Wow.

Don't I know what happened to black boys who talked to the cops like that?

And it turns out that she was exactly right.

During this time in Chicago, the police were operating an off-site where they were literally torturing African-American men.

They were pouring soda down their throat, attaching electrodes to their genitals.

This was an organized campaign by a number of officers.

Now Chicago is paid $60 million

in settlements.

So why with that background would I become a prosecutor?

I went in as an undercover brother.

I was hoping that I could change things.

from within.

You mean you went in to, right, not literally an undercover brother, but be at the table,

be in the room where the decisions are made and see if you can't move the needle that way.

Yeah, I was the last person my friends from law school would think would be a prosecutor.

They expected me to be a civil rights lawyer or a defense attorney, at least.

But I hoped that if I went in, I'd heard that prosecutors had all this power and all this discretion, that I could use that power for good, that I could change things in a way that that would lead to better outcomes for poor people and people of color.

What I found is that the system is too broke to be fixed.

I also found that the culture of the office was such that rather than me change the system, the system changed me.

So that's fascinating sort of context for all of this, Emily.

You know, when Kamala Harris gets to be a law enforcement official, becomes the district attorney for San Francisco and eventually the Attorney General, tell us a little bit about, you know, what her record looks like.

Your sister, a former defense attorney in San Francisco, recently wrote an op-ed in The Times titled, Kamala Harris Was Not a Progressive Prosecutor.

You know, what are the big criticisms of her record?

Well, I think that the issue that Harris is having now with critics among several criminal justice reformers is that she's making a claim to be a progressive prosecutor prosecutor without recognizing that whatever she did in the early 2000s, the movement has moved far beyond that.

And people who are claiming the label of progressive prosecutor now and who deserve it are doing much more to reduce incarceration and ensure fairness than she was doing then.

I think with Harris's record as DA, you have to start with this like sort of origin story.

So three months into her first term, a police officer was murdered in San Francisco.

There was a lot of pressure on Harris to charge the death penalty, as there often is when a police officer is killed.

And she decided not to do that.

There was huge blowback from that decision from the police union, from other political leaders, including Senator Dianne Feinstein.

And I think you can in some ways understand Harris's record ever since then as

an attempt to build bridges back to law enforcement that, you know, at the time, because of that one decision, really seemed like they were going going to be broken forever.

And she's made a lot of compromises along the way as a result.

And she has reassured law enforcement.

When she first ran for eight attorney general in 2010, she had basically zero support from the law enforcement groups in California.

In 2014, when she ran for re-election, she had about half of them.

So in order to do that, particularly as Attorney General, she did things like not support sentencing reform in California with a number of ballot initiatives that progressives now, you know, are looking at with a lot of skepticism.

Trevor Burrus, Jr.: And she's not been particularly good in policing, if you will, prosecutorial misconduct, right?

These are big issues as far as her record's concerned.

Aaron Powell, yes.

And that also goes to her record as Attorney General.

You know, it's standard for the AG's office in California to defend past convictions, but when you have her lawyers, the lawyers working for her office standing up there and defending blatant,

blatant instances of prosecutorial misconduct, that

bothers people.

At the time when that happened,

a judge on the Ninth Circuit really called Harris out, and then she changed her office's position.

So I think what you see there is that she wasn't paying attention to that part of the office.

She wasn't trying to transform it.

It was business as usual.

Paul,

there seems to be a sort of political strategy that undergirds perhaps some of the decisions Kamala Harris makes as AG.

You talk about, in your experience the lure of respectability politics and

how kind of tempting that is, especially for people of color in the position that you were in.

Can you give us a little insight into that?

You know, most prosecutors of color get hired in jurisdictions that have a whole lot of black people or Latinx people or Native American people in prison.

And one of the reasons that you are hired is to be a prosecutor of color.

So your skin is supposed to send a message to everybody else that the criminal legal process is fair, that it's working just fine, and that it's not infected with race bias because otherwise what would you be doing working there?

And you go in, most of us do.

knowing better than that, but imagine what it's like to spend your workday locking up people who look like you and so I think you start to rationalize it you tell yourself that these folks deserve to be in prison and it's your job to keep the community safe even though almost all of us have people in our families now who have been in the system in this age of mass incarceration almost every African-American and

Latinx family has a member who has been locked up.

And so you know better, but at the same time, you don't do better.

Paul, I wonder

how you have processed some of the criticisms around Kamala Harris's record, you know, that she didn't do enough, that she isn't actually a progressive prosecutor in light of your own experience.

I mean, her defenders will say, look, Kamala Harris is judged more harshly.

She is a black woman, and she had to take a tough on crime stance to even get close to where she is.

I mean, in terms of for just for context, two years ago, she was one of only two black female Democrats serving in statewide office.

Now she's only the second black woman to ever, literally in the history of the United States, serve in the Senate.

Some people will say, look, this is by any means necessary.

What do you think of that?

Although things are getting better, thanks to the movement for black lives, where people are starting to see literally with cell phone videos the racism, the class bias, the violence of our criminal legal process.

But despite that, the politics, especially the state and national politics, is still controlled by a dysfunctional view about race and about black criminals.

And so elected prosecutors have to respond to that dynamic.

And the interesting thing about Harris is when she first ran for DA, she was running against an incumbent named Terrence Hallahan.

And I actually had an opportunity when he was the DA to talk to Mr.

Hallahan.

And again, this is San Francisco.

And he was against locking up people for marijuana.

He didn't think that sex work should be a crime.

He was against the death penalty.

And as we talked, I thought, oh my God, I can't believe that this man is actually an elected prosecutor.

And Harris ran against him, and guess what?

She ran as, I wouldn't say the conservative in the race, but she ran as someone who was more pro-law and order than he was.

And so, ironically, when she entered her elected office as a prosecutor, she was the more conservative candidate.

And there's often this balance that prosecutors, especially progressive prosecutors, have to strike.

They want to do the right thing, which usually means locking up way fewer people, but at the same time, they have to respond to this dysfunctional politics.

So I think the classic cautionary tale is Craig Watkins.

He was a former defense attorney who, by a fluke, got elected to be DA in Dallas.

And he was very progressive, came in with all of these reforms, but also wanted wanted to get re-elected.

He was personally against the death penalty, but thought you can't be against the death penalty and get elected DA in Dallas.

And so during his first term, he actually argued a death penalty case, asking the jury to send the defendant to die as punishment.

It was against everything he stood for except wanting to be re-elected.

And ironically, he ended up not even getting re-elected.

But there's often this really hard choice that elected progressive prosecutors have to make between, again, doing the right thing, doing what they feel is in the best interest of their community and the most ethical thing versus getting re-elected, which often requires a harsher stance on crime and punishment.

Emily, to that end,

You know, Kamala Harris was forced to, again, defend the death penalty in her career.

She, She, you know, there's a wrongful conviction case where a lot of people say she was on the wrong side of ethics and perhaps the wrong side of history.

She seems to, in your time with her, suggest that, looks, I have to defend the position of the state.

I'm not always going to agree with it, but that's the job.

Did you get a sense that there's an internal tension that she grapples with or grappled with in some of these instances?

I think in some of them, yes.

But I think she decided to kind of play it safe politically.

So, when you're attorney general, it is usually your job to defend the laws of the state.

And so, when she defended in court the constitutionality of the California death penalty, that was the role she was playing.

But there are public officials who choose not to defend laws.

It's unusual, but it certainly happens.

You know, one example during the Obama administration was the Justice Department's refusal to defend the Defense of Marriage Act, which prohibited same-sex marriage.

So

I think that it is fair to hold her accountable for those decisions, whether or not she says that she was acting in her official capacity.

There's another piece of this, too, not just the race piece, but the gender piece.

And I thought David Axelrod had such an interesting piece of insight when you interviewed him.

He said, the image of toughness that comes from being in law enforcement may help female candidates repel the biases against electing women to higher office.

Basically, that by showing they're tough, right, that they're taking politically difficult positions, by sort of rebuking the softer side of liberalism, if you will, that that helps these women in their quest for a higher office.

You think that's fair?

Yeah.

Well, after David said that to me, I went and like ran the numbers.

And there are a bunch of women in the Senate who have law enforcement backgrounds.

Now, I don't know if there are more women than men, but it seems possible that for women, being attorney general or district attorney, a job where you're kind of wielding the force of the state behind you is a way to do exactly what you said.

You can show voters that you're in a position of authority.

And I think for Kamala Harris, a couple of her most high-profile and successful moments in the Senate have been when she was asking questions as a member of the Senate Judiciary Committee of various Trump nominees, including Jeff Sessions, who was the Attorney General.

You've sort of seen there her prosecutorial flair, and I think the virtue of standing up for rule of law in those moments.

Now, that's a different kind of prosecutorial skill and attribute than what we've been talking about thus far.

We're going to pause it there for one second and take a quick break.

But when we come back, we will have much, much more on Kamala Harris and the politics of progressive prosecution.

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And we're back with Paul Butler and Emily Baslon.

You know, when we're talking about all of this and trying to place Harris's past in the context of the present, the conversation around mass incarceration and more broadly criminal justice reform is a constantly changing weather system, right?

I mean, Paul, let's talk a little bit about sort of where you think we are right now in terms of the fundamental debate over, you know, criminal justice being a left-right issue.

There was recently a very large criminal justice reform bill that was passed with bipartisan support.

Do you think that makes it tougher for a candidate like Kamala Harris, given the fact that there seems to be emerging consensus?

Emerging consensus is an overstatement about where our criminal legal process is now.

We still lock up more people than almost any country in the history of the world, famously 5% of the world's population, 25% of the world's inmates.

If you're an African-American man, you have a one in three chance of getting locked up during your lifetime.

And so part of the effort has been to get people to understand that mass incarceration and race disparities are actually a problem.

For a while, the idea was that it was locking up so many people and frankly, locking up so many young black men that was keeping us safe that was responsible for the lower crime rate and now we've dispelled those myths in part because in states that have reduced their prison populations and states that have locked up fewer people they've also seen crime rates go down even more So there's nothing about mass incarceration that makes us safer.

That's the argument that a lot of reformers were making in the 90s.

The poster boys and girls we chose were drug users because everybody has drug users in their family.

Nobody thinks that their family members who are using controlled substances should be locked up.

If they have problems, then it's a public health issue, not a law enforcement issue.

A lot of headweight there, but it turns out that if nobody's locked up for any drug crime, possession, distribution, trafficking.

U.S.

is still number one in incarceration.

And so we have to think about reform and even transformation in a different way.

And so progressives have usually been there in part based on concerns about racial justice and economic justice.

And there were arguments that should have appealed to people on the right.

faith-based conservatives.

A lot of this is about redemption, second chances, not giving up on anybody.

Libertarians like Rand Paul have often been concerned about how much law there is, how much power the police have.

There are 4,000 at least federal crimes.

No one's actually been able to

count them all, and there are way more state crimes.

And then fiscal conservatives, because locking up, let's say, 2.3 million people, conservative estimate, $25,000 a year for each of those 2.3 million.

It's classic inefficient government spending.

And so with this new First Step Act, we saw a lot of the people in the conservative community get it.

They signed on, and in part, they were

in part this new bill was strengthened by this school of progressive prosecutors who are talking about being smart on crime rather than just tough on crime.

And it turns out that being smart on crime can mean being in favor of giving people who've caused harm the kind of services that they need so that they won't cause that harm again.

Well, smart on crime, not ironically, perhaps that was Kamala Harris's sort of like slogan, right, Emily?

Yes.

Paul brings up the question.

I mean, so there is, there are the political dynamics at play.

There's also a sort of, if you will, almost like a measuring a yardstick, a litmus test that Kamala Harris's career might be compared to, which is the progressive prosecutors that exist in reality today.

You've written an entire book about this, right?

There's a new crop of people who are decidedly and specifically progressive, who are working as DAs and sometimes attorney generals across the country.

What are they doing?

And how much do they really test the upper bounds of Harris's claim to be a progressive prosecutor?

Well, first of all, Paul was ahead of this curve for a long time.

And so he has this more historical perspective on all of this than I do.

And I think that's important to keep in mind because there's promising to do things and then there's actually delivering.

The movement I'm talking about and focusing on in my book really just started in 2016.

So we're talking about people who've been in office for for a year or at the most two years or even just a couple of months.

I do think there is momentum for a wider array of changes.

Not prosecuting marijuana charges is like the low-hanging fruit that people start with, but they have to go way past that to make a real dent in mass incarceration, just as Paul was saying.

So here's another example.

A couple of prosecutors, Kim Fox in Chicago and Larry Krasner in Philadelphia, have changed how they prosecute shoplifting.

The state may say that, like, if you just steal a few hundred dollars worth of goods, that's a felony.

You can go to jail for that.

These prosecutors are saying, in my office, we're going to raise the threshold.

We're going to say that unless you steal $1,000 worth of goods, really a lot of stuff, we're going to treat this as a misdemeanor and we're going to try to divert you away from jail or prison.

Not charging sex workers is another kind of change

you can hold people accountable for in this area.

And then I think there's just this broader challenge of changing the whole way that prosecutors charge and plea bargain because almost all the cases that end in convictions go through plea bargaining, upwards of 95%.

We really have very few trials anymore.

When prosecutors charge the maximum they possibly can, they have a lot of leverage over defendants and people knuckle under and they plead guilty.

If prosecutors are willing to charge less from the outset, they set a different baseline.

And that's where you can start to see some charges that we count as violent crimes, but don't necessarily involve actual violence or a minor violence, for example, like punching someone in the face.

These are things we've been treating as serious felonies and sending people to jail or prison for.

Can we stop doing that if prosecutors change how they charge these offenses?

So, I mean, you can look at this as kind of a continuum, right?

I mean,

as I'm sure Harris's campaign does to a certain degree, right?

Like that, these change agents couldn't exist had the system not been to some degree broken open by people, you know, who were sympathetic to these causes, like Kamala Harris, and in their careers, complicated and I won't say checkered, but mixed,

there were reforms and then there were steps backwards, but it's all part of the work more broadly.

Paul, before we go, I want to get your, you know, your thoughts on your career specifically, right?

You go into law enforcement with this idea.

You become disillusioned.

What happens next?

How did you end up where you are in terms of your position on all of this?

I decided that I didn't go to law school to lock up black people.

And since that's a lot of the work of prosecutors, I wanted to be more thoughtful about ways to transform the criminal legal process, which is how I ended up as a law professor writing about this stuff.

And I'm hopeful about this new movement for progressive prosecutors, this new smart on crime, but I'm still concerned that reform is too modest a goal, that transformation.

is the ideal.

And the concerns that I have even about the limited success of progressive prosecutors has to do with, first of all, the politics that I've already described, which is dysfunctional, which will require people to do all kinds of compromises.

And yeah, that's what any politician does.

That's what any lawmaker does.

But the compromises in these contexts are often significant.

Again, for Craig Watkins, it was literally asking the jury to sentence a man to death.

There's also the adversarial system.

And so a lot of folks think, well, it's the prosecutor's job to put people in prison.

It's the defense attorney's job to keep people out.

And if you have all this concern about people who are getting locked up, you ought to be a defense attorney, not a prosecutor.

And then the third concern that progressive prosecutors run into is getting buy-in from the lying prosecutors.

So I work with these issues with cops and with prosecutors and cops are a lot easier to deal with in terms of teaching them because police officers are used to sitting in a classroom and being told what to do.

Prosecutors on the other hand don't like that and they certainly don't like any inference that they're responsible for some kind of racial injustice or economic or social injustice, which is the result of them putting so many people in prison.

And so it's hard for, I think, a lot of

lying prosecutors, even if there's a progressive DA,

to fall in line.

You know, for police, President Obama's commission recommended that they stop thinking of themselves as warriors, but rather think of themselves as guardians.

And if you think about it, there's a whole different kind of profile for a person who would want to be a warrior than a person who would want to be a guardian.

And I think the same thing is true for prosecutors.

You know, there's a lot of, you know, ego and competitiveness among all lawyers.

And for prosecutors, you want to win cases.

And the way that you rise up in most offices is to put as many people in prison for as long as you can.

And so that's the mindset.

of a lot of

people who want to do that job as just regular day-to-day work.

And so Larry Krasner in Philly, he had to fire a whole bunch of people in his office.

If other prosecutors aren't willing to do that, then again, I'm not sure how successful their enterprise is going to be if the only person who wants change is the woman or man on top.

Warriors versus Guardians.

I like that a lot.

Emily, I'll ask you one question before we close here, which is, you know, you've followed Kamala Harris's career.

You know a lot about politics.

How How do you see this issue playing out for Harris, given the current crop of 2020 candidates, which inevitably will expand?

You have people on one hand like Tulsi Gabbard and Elizabeth Warren, Pete Buttigige, Corey Booker, you have Joe Biden, you might have Michael Bloomberg, you have Centrists, and you have a pretty far left wing of the party.

How do you see the dynamics here?

Well, there are certainly people like Joe Biden who

have a more more reactionary criminal justice record than Kamala Harris does.

At the same time, there are a lot of people who are positioned as liberals who have no record, and it will be easier for them to say the things liberals want to hear if that's the position they want to take.

They're not going to have to reckon with a record that's somewhat at odds with that.

So, that's a challenge for Harris, potentially.

You know, so far, I have not heard that kind of reckoning from her.

She has been kind of sticking with the more traditional prosecutor rhetoric.

And

that may reflect her feeling that even in a Democratic primary, that's the better bet politically, that most voters are not going to reject her

because they don't think she was progressive enough when she was DA or attorney general.

And she may be right about that political bet.

You know, there's a really interesting primary calendar this year.

California, her home state, is very early, right?

For the first time.

For the first time.

So that's like a shakeup that presumably will favor her.

And then there are three southern states with significant African-American electorates in the Democratic primary that are also early on.

You know, Harris wants to sew up those voters.

It's going to be interesting to see whether they, you know, really go for her or whether some of this becomes a sticking point, especially for younger voters, black voters and other Democrats.

I think these criminal justice issues are more significant than they've been in the past.

They are definitely animating some part of the switchboard nationally.

Yeah, if I could just add to Emily's point, if I were advising Harris at the beginning of her career, knowing that one day she would run for president, I'm not sure I would tell her to do anything differently.

Fascinating.

Now the concern is because

she

has been, quote unquote, a progressive prosecutor, but not progressive enough that that will hurt her with some voters.

So the main voters there I think are people in the movement for black lives.

If you compare that group to the broad swath of the body politic who Harris would need to win, I think that larger group is going to be more central, more centrist, and certainly not as many people of color, more white folks.

And so what do we know about the way that white people vote?

No Democratic candidate ever gets a majority of the white vote, not Hillary Clinton, not Barack Obama, not anybody since I think the 1960s.

And so Harris has got to get this 42% of white people to vote for her, and they're going to want reassurance.

You know, Barack Obama, he took some stands when he first ran that I knew he couldn't actually believe.

He claimed that he was

for the death penalty.

He said that he was against gay marriage.

All of us, Harris, Obama, me, we're all around the same age.

We're all African Americans.

You know, we all have kind of mutual friends.

And I knew.

There's no way that he could actually think that.

But these are political stances that we understand everybody has to take.

And again, just like Obama was very strategic, I think that Harris is also very strategic.

And so she's not going to run away from the fact that she was tough on crime.

And I'm not sure she's going to shy away from dissent, from people in the movement for black lives about that, because that will bolster her in some other communities.

I won't say it's the same as a sister soldier moment, but the fact that she is being criticized by folks who a lot of people would think of as radical or far left, that's not going to hurt her in her

a credential for her in the general election, right?

The question is

how much deference you pay to primary voters versus general election voters when the field is much wider and more centrist.

A question none of us can truly answer in this insanely unpredictable moment in American politics and with a field that grows ever large by the day.

But nonetheless, an important conversation and one that is ongoing.

Paul Butler and Emily Baslon, it is so great to have you guys with us.

Thank you for your energy and your thoughts and your smarts and of course your time.

Thanks for having us.

Great to be with you, Alex.

And always a pleasure to be on with you, Emily.

Yes, exactly.

Thank you.

I appreciate it.

I feel the same way.

It all ends in harmony.

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