Ladies and gentlemen of the jury, facts don’t exist in vacuums. Facts may be true on their face but inaccurate as applied and facts out of context are just as misleading as lies.
The CNN Democratic Primary Debates held this week confirmed this reality.
During the second night of debates, Senator Kamala Harris was brutally attacked by Vice President Joe Biden and Representative Tulsi Gabbard over her record as District Attorney for the County and City of San Francisco and her record as Attorney General of California. It was a painful moment to watch as a progressive prosecutor found herself cornered by two desperate politicians trying to score points by grabbing sound bites off of the Senator. And the worst part — many of these criticisms were misleading at best, and blatantly facetious at their worst.
Nevertheless, leftist Twitter pounced on the video clips, driving the hashtag #KamalaHarrisDestroyed all over social media, having taken the attacks as true without making any serious inquiry into their validity. This certainly wasn’t the first time Kamala had received flack from the Twitter universe, but it was definitely the most vitriolic moment, and it left me fuming.
Instead of intellectually sincere concerns, what we see emanating from liberal and progressive circles on Twitter is a misinformed self-righteousness that emphasizes ideological purity and ignores the pragmatic human realities of our criminal justice system. This microcosm of zealous, unqualified, commentators pedals reductive and frankly contemptuous slurs like “Kamala is a Cop” while fundamentally ignoring the gray area that exists at the root of our system.
I sound like a broken record when I say this (perhaps because this is not the first time I’ve written an article like this), but the left has a pronounced disdain for prosecutors and law enforcement — one that ignores the reality of what prosecutors do. As I wrote last month in my article On Prosecutors, Law Enforcement, and the Left:
…the most profound irony of this entire situation lies in the fact that the task of a prosecutor is one of the most consistent with progressive values. Who else can adequately bring justice to the poor child molested by a predatory teacher, or step-parent, or family member other than a prosecutor? Who else can put serial killers, and rapists, and domestic abusers behind bars and bring justice to their victims? Who else can hold large corporations accountable for wanton and willful violations of public health and safety codes when all else fails? Who else can expose fraud and hold politicians accountable when they work with foreign powers to win elections or use their influence to personally enrich themselves? Only prosecutors.
We often forget when talking about the criminal justice system that there are victims to so many of the crimes being prosecuted, whether they be society at large when it comes to crimes of indecency or individuals when it comes to crimes of violence, of deception and to property. The prosecutor speaks for the victims in these cases and has to hold the defendant accountable for the crimes he or she (or they) is accused of committing.
Wouldn’t it be an affront to decency if a prosecutor didn’t aggressively try a case where a four-year-old is brutally raped by a daycare employee that cared for them? Or if a prosecutor didn’t use every tool in the arsenal to take down a gang of criminals that was exploiting women as prostitutes? Or if prosecutors turned a blind eye to abusive and neglectful parenting because it would be seen as too harsh? This is why criminal justice is gray.
And the worst part is, in my opinion, the accusation that Kamala Harris, by being a black woman prosecutor, was complicit in the “hyper-persecution of a community she claims to represent.” Let’s confront an inconvenient truth here: defendants in the criminal justice system, by way of various socioeconomic factors and overall societal inequality, are disproportionately people of color and/or poor. In most cases, these individuals from young ages fell through the cracks in their schools, were raised in abusive or dysfunctional households, and commit crimes out of desperation or as a result of deep-seated psychological traumas that remain unresolved. But they still broke the law and prosecutors cannot ignore the law.
If state law and/or local ordinances deem sex work or possession of marijuana or some other action to be criminal, prosecutors must uphold and execute those laws to their fullest and hold defendants to those legal standards. Though they may sympathize with the socio-economic and psychological factors that drove these individuals to commit crimes, the prosecutor is not a social worker and the function of a prosecutor is not to remedy every social wrong that comes through the criminal justice system. However, prosecutors can work with judges and defense attorneys to create rehabilitative pathways or can leverage their force to help combat those social issues at play.
Guess who was a leader in that front? Kamala Harris. As evidenced by both her Back on Track initiative to rehabilitate first-time non-violent drug offenders and her anti-truancy initiative, DA Harris took effective steps to fix the issues in San Francisco’s black community. The problem is that either these measures are ignored or completely misunderstood, especially the anti-truancy initiative, with many falsely claiming that parents were imprisoned for their children being chronically truant.
City officials have confirmed that no parents were ever convicted or imprisoned under the truancy initiative and the reality is that then-DA Harris used the only tool in her arsenal to bring social services to families in crisis. Attendance in schools jumped 30%, especially in the inner-city schools. And though it was tough, it certainly had a progressive intent — to narrow the educational inequalities in terms of truancy enforcement and ensure students of color were not falling through the cracks.
Especially for the time, Kamala Harris was progressive as a prosecutor. As German Lopez of Vox News reported:
The climate at the time was far less open to progressive criminal justice policy. The year before, presidential candidate John Kerry had run, in part, on hiring more cops, adopting a “zero tolerance” approach to gangs, and “cracking down on drug trafficking.” Crime wasn’t a major issue in the 2004 presidential election, but Kerry’s platform was the legacy of the 1980s and ’90s, when Republicans and Democrats — including President Bill Clinton — competed to see who could be “tough on crime.”
“When she became district attorney, no one was talking about progressive prosecutors,” Tim Silard, who worked under Harris at the San Francisco district attorney’s office, told me. “She was absolutely an outlier within the California District Attorneys Association, [and] got some pushback and criticism from there.”
Kamala Harris became a national fighter to eliminate the “gay panic defense” that justified hate crimes against the LGBT community. She changed enforcement of the three-strikes law. And even when she had to become more conservative as the AG (given that she now had to uphold every single jurisdiction's actions as California’s top cop, including Republican ones, unless the Governor obliged otherwise), she instituted statewide bodycam regulations for police and racial bias training and led the charge to save Obamacare, take on the pharmaceutical companies, and obtain massive settlements from the banks who foreclosed on millions of California homeowners.
But of course, there were mistakes, mistakes that deserved condemnation.
Joe Biden came at Kamala Harris for the mishandling of a lab-technician evidence scandal, which resulted in a thousand cases being dismissed in admittedly a fairly accurate attack. Vice President Biden did, however, fail to mention that Harris was not the official in charge of the crime lab and did fail to mention that Harris subsequently instituted a mandatory disclosure policy. What a convenient omission.
However, Congresswoman Tulsi Gabbard in the debate leveraged the following blatantly misleading attack:
“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 — 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 bail system in place that impacts poor people in the worst kind of way.”
Let’s break this down.
First, let’s look at her claim that Senator Harris put 1,500 defendants in jail for marijuana violations and then joked about it in an interview. The good folks at Politifact marvelously debunked this in their recent fact-check article and I leave it here:
There’s some context missing in this claim, and it’s framed in a misleading way. We couldn’t independently verify the 1,500 figure, which is cited in a February article by the Free Beacon, a conservative online news website. It says “at least 1,560 people were sent to state prisons for marijuana-related offenses between 2011 and 2016,” when Harris was California attorney general. It says the data comes from reports from the California Department of Corrections and Rehabilitation.
A state prisons spokesperson could not immediately confirm the data. Gabbard’s campaign said it was too busy to cite where the information came from.
For context, marijuana sales and possession remained illegal under state law during Harris’ time as attorney general. California voters legalized recreational pot in 2016, the same year Harris was elected to the U.S. Senate and left her AG post.
Also, as attorney general, Harris would not have personally prosecuted marijuana cases. Those cases would have been handled by lower-level state attorneys.
It’s correct that Harris has laughed about using marijuana, but Gabbard’s claim makes it seem like she laughed about people being locked up for pot crimes. We didn’t find any evidence to support that.
Running for re-election in 2014 as state attorney general, Harris laughed at a TV reporter’s question about her GOP opponent’s support for legalizing marijuana, adding “he’s entitled to his opinion” but not offering her own.
In a February interview on New York-based radio show “The Breakfast Club,” Harris said she had smoked marijuana in the past, “I have. And I inhaled — I did inhale. It was a long time ago. But, yes.” The senator then laughed, according to a CNN article, and said she tried pot in college and noted that it was in the form of a joint. “I just broke news,” she said.
As California attorney general in 2016, Harris declined to weigh in on a state ballot measure to legalize recreational marijuana. Now as a U.S. Senator and presidential candidate, Harris supports marijuana legalization.
Talk about stretching the truth. Let’s keep going.
Congresswoman Gabbard went on to claim that Senator Harris as Attorney General withheld information that would have exonerated a defendant on death row. Again the folks at Politifact did a stellar job breaking this half-truth down.
Gabbard’s campaign said she was referring to the case of Kevin Cooper, a black man on death row in California. We found Gabbard’s statement leaves out some key information.
The New York Times fact-checked Gabbard’s claim about Cooper by explaining that he was “convicted by a jury for a 1983 quadruple murder. Ms. Harris, as attorney general, did not allow new advanced DNA testing in his case, denying Mr. Cooper’s request. After The New York Times wrote about the case, Ms. Harris told Times columnist Nicholas Kristof that “I feel awful about this” and called on the state to allow for such testing.”
The Times added that, “While Gov. Gavin Newsom of California has ordered additional DNA testing in the case and a number of legal and judicial experts say that Mr. Cooper was wrongfully convicted, the advanced testing has not yet proved Mr. Cooper’s innocence and allowed him to leave death row.”
The senator’s campaign spokesperson told The Washington Post after the debate that Harris was not directly involved in the decision to deny Cooper’s petition in 2016.
“Senator Harris ran an office of 5,000 people and takes responsibility for all the actions of the [California] Department of Justice during her tenure,” the statement said, according to the Post. “Most of the legal activity around this case occurred before her terms in office, but this specific request was made to and decided by lower level attorneys.”
Additionally, some context must be proffered here about how death-row appeals work.
For those not well-versed on how the appeals process works, every single appeal is exhausted to try and exonerate an individual on death row or to reduce their sentence to life imprisonment. And additionally, in many jurisdictions, such as Florida, if the initial trial counsel offered a poor defense to assist the defendant, all other causes of action must be exhausted before the defense can even bring up a claim of ineffective assistance of counsel.
Further, it’s not unusual either for the AG of a state to deny further evidentiary review… after all, the typical presumption at the appellate level is that the conviction was obtained justly. And frankly, it is the responsibility of district attorneys and attorney generals to vouch for the convictions of their subordinates, provided that there is no outside showing of malfeasance or incompetence or a blatant miscarriage of justice. There’s an old line that defense attorneys are famous for throwing arguments and defenses on the wall to see what sticks so it makes sense that AG Harris initially approached the case with skepticism, especially given how costly DNA testing is. That’s why California took so long to act until the New York Times brought validity and attention to the claims on appeal.
And also, let’s not forget that Kamala Harris has personally been on record for decades as opposed to the death penalty. In one poignant example, newly-elected DA Harris refused to seek death on a defendant who savagely slaughtered a patrol officer in San Francisco’s Tenderloin neighborhood, even after sitting Senator Dianne Feinstein called on Harris to seek death at the officer’s funeral (received to thunderous applause and a standing ovation).
For the rest of these claims, I leave you with the Politifact article, but the growing picture is clear — Gabbard misconstrued the controversies within Senator Harris’s record for cheap and expedient purposes. And the most infuriating thing about these attacks is that they come from two people with no business commenting on these issues.
First, Congresswoman Gabbard has no moral authority to criticize Senator Harris and lost all credibility the minute that she couldn’t even admit or acknowledge that Bashar al-Assad is a war criminal who has committed heinous acts against his own people. Shame on her for misleadingly attacking the Senator when she has done nothing in her terms in the House of Representatives to fix the system. At least Kamala Harris has evolved in her positions in significant ways, unlike Gabbard and her positions on gay rights. I’d take a tough-on-crime prosecutor over a dictator apologist any day.
Secondly, Vice President Biden is a tad hypocritical in attacking Senator Kamala Harris for cleaning up the mess he created with his incredibly racist and draconian crime bills. He specifically has done little to remedy the criminal justice system and in so many ways has only served as the architect for most of Black America’s present socio-economic woes. He opposed federally-mandated busing and worked to hinder one of the most effective integration programs in American history. He broke up black families with his blatantly racist drug sentencing guidelines and made sure white families could avoid much of the bite in there. And worst of all, he latches on to President Obama like Jack clinging onto the door in Titanic, hoping that America is either sufficiently stupid or sufficiently oblivious to his checkered past on racial issues. I hope he realizes his grip is slipping.
It’s rare that I let politics get to me like this, to the point where I felt physically unwell the day after the debate, but I have to say it’s shameful to see these attacks on a woman who has dedicated her life to the pursuit of justice. Her record is not perfect, but neither is that of any candidate for President, let alone any long-time law enforcement official. And it is shameful to see how easily and how negligently people attack the criminal justice system.
To the Twitterati and the left, take note – prosecutors are far more progressive than you will ever be. They fight for the people you status post about and actually hold the worst in society liable for what they do. As I have stated ad nauseum, our criminal justice system is by no means perfect, but it is by far the greatest system in the world, with some of the most stringent and effective safeguards against government misconduct in the world. It is not a left-wing system nor is it a right-wing system – it is our American system. And frankly, reform will not stem from the use of reductive commentary and misinformed smears directed towards judges, prosecutors, public defenders, and police. Reform in the system comes from productive conversation, a respect for the rule of law, and ultimately, a commitment to the ideals we as a nation we were founded upon.
Kamala Harris was a progressive prosecutor and a reformer and this is why she has the backing of figures like Benjamin Crump, the famed civil rights attorney who represented the family of Trayvon Martin. It is her background as a fighter and champion for the speechless that will empower her to become a great President and lift Americans up, regardless of their walks of life. For this reason, Kamala Devi Harris has my unequivocal vote as she strives to speak truth to power and prosecute the case against a blatantly criminal and morally-bankrupt administration. I only hope she will get yours.