Kamala Harris’s Controversial Record As A District Attorney, Explained

California Senator Kamala Harris has, in the roughly seven months since she began her presidential campaign, become a front-runner in the crowded Democratic primary. She even saw a significant bump in favorability in several major polls after the June debates, in which she took former Vice President Joe Biden to task for his views on school busing. She has positioned herself as a progressive candidate, thanks in large part to her deft ability to stand up to the Trump administration in her brief tenure as a Senator.

But Harris’s rise has irked some on the left, particularly those with an eye on her prosecutorial record as San Francisco District Attorney from 2004 until 2011 and, more famously, as California Attorney General, a position she held from 2011 until she joined the Senate in 2017. On Twitter, you’ll frequently see leftists referring to Harris as a cop and a fake progressive. So when fellow presidential hopeful Congresswoman Tulsi Gabbard reamed Harris at the July 31 Democratic debate over her prosecutorial record, it not only visibly upset Harris — who has largely avoided mainstream criticism — but sent people in droves to Google to figure out what Gabbard was talking about.

So what is the deal with Harris’s record as a prosecutor? We break it down.

What did Gabbard say about Harris?

When Gabbard went after Harris, she was doing so to bring up a greater point about the current criminal justice system in the United States. Harris prides herself on being a “progressive prosecutor” and has said that she will bring her prosecutorial skills to the White House. Gabbard’s core claim is that this would be an overwhelming negative for the U.S.

Here’s what Gabbard said:

I want to bring the conversation back to the broken criminal justice system that is disproportionately, negatively impacting black and brown people all across this country today. Now, Senator Harris says she’s proud of her record as a prosecutor and that she’ll be a prosecutor president. But I’m deeply concerned about this record.

There are too many examples to cite but she put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana. She blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. She kept people in prison beyond their sentences to use them as cheap labor for the state of California, and she fought to keep a cash bail system in place that impacts poor people in the worst kind of way.

While Harris defended herself as committed to criminal justice reform, any one of these accusations would not bode well for someone positioning themselves as a progressive. So is anything Gabbard said true?

Gabbard’s claim: Harris put over 1,500 people in jail for marijuana violations.

This is true.

In her 2019 book, The Truths We Hold: An American Journey, Harris wrote a sort of road map to who she is and who she would be as president — and she addressed how she feels about marijuana. “We need to legalize marijuana and regulate it,” she wrote. “And we need to expunge nonviolent marijuana-related offenses from the records of the millions of people who have been arrested and incarcerated so they can get on with their lives.” So on the surface of things, she’s pro-legalization. Makes sense, given that she has spent the lion’s share of her career in California.

But that doesn’t tell the whole story — not even close. A 2019 Washington Free Beacon investigation found that, from 2011 to 2016, she sent at least 1,560 people to prison for marijuana-related offenses. Due to overcrowding in California prisons, innumerable nonviolent offenders were instead sent to county jails and are not accounted for in the total number of incarcerated — which means that 1,560 is a low estimate of how many marijuana-related offenses Harris prosecuted.

At the same time that she was prosecuting marijuana-related offenses, Harris said in 2011 and reiterated in her 2014 re-election bid that she was supportive of medical marijuana but nothing beyond that, and she even declined to join other states demanding that the Drug Enforcement Administration remove marijuana from its list of dangerous controlled substances.

Which is why her more recent statements — laughingly stating on The Breakfast Club that she smoked in the past and waving off assertions she’s anti-legalization while joking, “Half my family’s from Jamaica. Are you kidding me?” — upset Gabbard and her ilk. (That said, to claim that she laughed about putting people in prison is a stretch.)

Harris’s stint in Senate has been marked by a much more lax attitude toward marijuana, starting with her support for fellow candidate Senator Cory Booker’s 2017 Marijuana Justice Act, which “would remove the drug from the list of federally banned substances and aims to penalize states that have disproportionately high rates of arrest for marijuana offenses for people of color.” And just last week, she co-sponsored the 2019 MORE Act, which would federally decriminalize marijuana and expunge “low-level” possession charges, which have disproportionately affected people of color.

Gabbard’s claim: Harris blocked exonerating evidence for a man on death row until “forced” to release it.

This is partially true. First: what’s true.

Kevin Cooper, now 61, is on death row in California for the alleged murder of two adults and two children in 1983. Over the years, doubts have grown about whether or not he is, in fact, guilty, and when she was the California Attorney General, Harris had DNA evidence that could have been tested using new technology. Per the San Francisco Chronicle, the testing Cooper is requesting “would include modern-day DNA testing of critical evidence: a bloody T-shirt found near the victims’ home, a hatchet, and hairs found on the victims that may have come from the killer or killers.” She declined to test the evidence.

That said, there are a few caveats to Gabbard’s assertion: the first is that the evidence would not necessarily have freed Cooper; Gabbard asserted this as if it were certain that Cooper is innocent, when the fact of the matter is that we don’t know yet. Second, she conflated two different scandals when she asserted that Harris was “forced” to release information. Harris was never forced to act in Cooper’s case or any other known death penalty case (though she did argue to protect the death penalty from a “statewide legal challenge”); rather, she later came out in support of Governor Gavin Newsom’s February 2019 decision to test the DNA evidence.

The evidence Harris was “forced” to release has to do with another scandal all together, and in fact, it’s not even accurate to say she was forced to release anything. Soon after Gabbard went after Harris, Biden referred to a crime lab scandal, which led to about 1,000 drug cases being dismissed. When critics speak of Harris’s record of withholding evidence, this lab scandal often goes hand-in-hand with the Cooper case to which Gabbard was referring.

When she was the San Francisco District Attorney, Harris was condemned for “withholding information about a police laboratory technician who had been accused of ‘intentionally sabotaging‘ her work and stealing drugs from the lab.” Harris’s deputies were aware of the technician’s wrongdoings, according to findings by a San Francisco judge, who stated that Harris’s “office violated defendants’ rights by hiding damaging information about a police drug lab technician and was indifferent to demands that it account for its failings.”

Though Harris asserts to this day that she did not know about the technician’s mishandling of evidence, the judge in the case stated that prosecutors “at the highest levels of the district attorney’s office knew” that the technician was not a reliable witness.

Gabbard’s claim: Harris “kept people in prison beyond their sentences to use them as cheap labor for the state of California.”

This is mostly true. In 2011, the Supreme Court found that California’s prison population was so overcrowded that it amounted to cruel and unusual punishment, and they ordered the state to “reduce its prison population by some 33,000 prisoners within the next two years.” In 2014, the state was again ordered to reduce its prison population by allowing non-violent second-time offenders who had served half their sentence to become eligible for parole.

But Harris’s office actually argued against releasing prisoners eligible for parole on the grounds that they would be taking away a vital, cheap source of labor for the state. Per The Daily Beast, “According to court filings, lawyers for the state said California met benchmarks, and argued that if certain potential parolees were given a faster track out of prison, it would negatively affect the prison’s labor programs, including one that allowed certain inmates to fight California’s wildfires for about $2 a day.”

In other words: because the state met the bare minimum requirements to relieve overcrowding, Harris’s office argued that they should be allowed to keep prisoners as a labor source. There is no evidence, however, that Harris herself directed the office to make these arguments and, in fact, Harris told Buzzfeed News in 2014 that she was “shocked” by the argument and looking into the matter. Her campaign later issued a statement which read, “She looked into it and directed the department’s attorneys not to make that argument again.” Additionally, her office later expanded the credits which allow second-time offenders to become eligible early.

Gabbard’s claim: Harris tried to maintain a cash bail system.

This is true. In 2004, Harris argued to the Commonwealth Club of California that San Francisco should raise cash bail costs. She said, “We are in the process of asking the bench, the judiciary, to reevaluate the fact that we require people who have been arrested to pay a lot less than other counties, and so people come to San Francisco to commit crimes because it’s cheaper to do it.” (Cash bail systems have been shown to disproportionately hurt poor people of color. According to a 2017 study,” a breakdown tracking bail deposits with race and gender reveals that people of color were the most likely to pay.”)

Shortly thereafter, it was announced that Superior Court judges would be “doubling, tripling and even quadrupling bail for people arrested for weapons-related felonies. The bail for assault with a firearm, for instance, will jump from $35,000 to $75,000.”

In 2017, making somewhat of an about-face, Harris introduced bipartisan legislation, along with Republican Senator Rand Paul, to reform the cash bail system. Per their joint op-ed, the bill would provide “Department of Justice grants directly to the states so each can devise and carry out the most effective policies, tailored for its unique needs.” For comparison, nine other Democratic candidates (including Gabbard) actually support ending the cash bail system altogether, which California did in 2018.

Is there anything Gabbard didn’t cover?

There are two chief criticisms of Harris’s record that Gabbard did not cover: her staunch defense of what some consider a racist truancy law, and a specific case in which she blocked a trans prisoner’s medical care.

In 2008, when she was still the San Francisco D.A., Harris implemented an anti-truancy program that threatened parents with jail time for chronically truant children. The program did not result in any jail time, but critics said it was an example of overreach, and it had racist undertones that failed to take into account the racism and classism that might lead to parents not being able to get their kids to school.

Harris laughingly called the idea “controversial” in 2010 (just around the 16:00 mark of a video of her appearance at the Commonwealth Club of California). When she described the program, she said, “I believe a child going without an education is tantamount to a crime, so I decided I was going to start prosecuting for truancy. […] We recognized that in that initiative, as a prosecutor and law enforcement, I have a huge stick. The school district has got a carrot. Let’s work in tandem around our collective objective and goal, which is to get those kids in school.” She then joked about a woman who sat her children down and said, “If you don’t go to school, Kamala’s gonna put you and me in jail!”

Other prosecutorial decisions she has taken heat from progressives for: blocking efforts to allow trans prison inmates to receive gender reassignment surgery, which is considered by experts to be medically necessary and life-saving; working to shut down Backpage.com, a website sex workers use to advertise services; operating prostitution stings that disproportionately targeted latinx men; and vocally opposing the decriminalization of sex work.

Harris also did a fair amount of good as a prosecutor, namely in her work on early intervention to reduce recidivism. She first introduced her “Back on Track” program in 2004, when she was San Francisco D.A. The program “put first-time offenders between ages eighteen and twenty-four into eighteen-month-long city college apprentice programs, which contributed to the city’s recidivism rates dropping from 54 percent to 10 percent in six years,” according to Jacobin. She later implemented the program in Los Angeles as California Attorney General. She additionally implemented racial bias training for California’s police force in 2015.

She also refused to defend the infamous Proposition 8, which defined marriage as between a man and a woman; called for a Homeowner’s Bill of Rights, which led to plummeting foreclosures; created an Environmental Justice Unit in the city of San Francisco; and introduced new testing technology which “cleared all 1,300 untested rape kits in the state’s backlog in one year.”

What does this mean for Harris’s presidential campaign?

So far, not much. After the debates, she’s still hovering around 10 percent, putting her behind Biden and Senators Elizabeth Warren and Bernie Sanders. While she lost some of the post-debate favorability between her late June busing moment with Biden and the July debates, it seems that, overall, Gabbard’s attack hasn’t hurt the Senator as much as some leftists hoped it might. But what the Gabbard-Harris moment does tell us is that Harris’s prosecutorial record is a sore spot for the candidate — and not without good reason. So this likely isn’t the last time we’ll be hearing about her past as a state attorney.