When Kamala Harris made her much-heralded arrival in Washington as California’s first black U.S. senator, she made a curious early decision.
Within months of her swearing-in, she sponsored a bill urging states to eliminate cash bail, denouncing the system as a scourge on the poor and communities of color.
That position would become a key part of her criminal justice reform platform. But her choice surprised some bail reform advocates back in California. In her seven years as a district attorney, and then six as attorney general, Harris was absent on the issue, they say. In fact, less than a year earlier, her office defended the cash bail system in a pair of federal court cases, shifting course only weeks before she entered the Senate.
“For her entire career she used some of the highest money bail amounts in the country to keep people in jail cells and saddle poor families with financial debt,” said Alec Karakatsanis, an attorney who has brought several legal challenges to California’s bail system, “and as soon as she had no influence on that issue practically, she announces she has a different view on it.”
Now a presidential candidate, Harris is casting herself as a progressive who consistently leveraged her power in the justice system to further civil rights causes and advocate for the disadvantaged. She has pledged a wholesale overhaul of the country’s fractured criminal justice system, arguing for marijuana legalization, bail reform and a moratorium on the death penalty.
But when she had a chance to take a bold stand on these issues as a top law enforcement officer, Harris often opted for a careful approach or defended the status quo. Observers of her career note some of her key positions, like her opposition to cash bail, came at politically opportune moments, after public views had shifted on race, inequality and bias in the justice system.
“I never had a sense she was forward thinking or reforming,” said John Raphling, a bail reform advocate and senior researcher at Human Rights Watch who faced off against Harris’s state Justice Department as a criminal defense attorney. “Bail reform is a trendy issue, and a lot of politicians are jumping on it and saying this is unfair. I don’t have any evidence that Harris was seeing that unfairness back when she was attorney general — but to her credit, we evolve, we learn, we see things.”
California Attorney General
Harris’ supporters say as a prosecutor she was tasked with upholding the law and, as attorney general, defending the state, not making policy. She had limited ability to effect change within the rigid structure of the courts, they argue.
“Everyone who has experienced the criminal justice system knows it’s broken,” said Lateefah Simon, a civil rights activist who worked for Harris in San Francisco. “She would say, ‘we’re confined by the rules of the law, and in the areas where we have discretion, we are going to work to try to move justice.'”
“I deeply know her convictions about what could be possible and what we needed to do, but also what the boundaries and limitations were,” she said.
Simon said Harris worked to hire more people of color as prosecutors. In her first year as San Francisco district attorney, she launched a re-entry program designed to keep low-level drug offenders from returning to prison. That same year she refused to seek the death penalty for a man who killed a police officer, infuriating the Bay Area political establishment and creating friction with the law enforcement community.
But in many cases throughout her career Harris embraced the traditional role of prosecutor.
Her office defended wrongful convictions, fighting to keep behind bars those who judges determined should go free. She refused to take a position on a pair of sentencing reform ballot measures, arguing she must remain neutral because her office was responsible for preparing ballot text. She defended the death penalty in court, setting aside her personal opposition to capital punishment.
In response to critics who’ve pushed her to use her power in the courts to usher in change, she told The New York Times in 2016, “I have a client, I don’t get to choose my client.”
Moratorium on Death Penalty, Criminalizing Truancy
Harris says she would call for a federal moratorium on the death penalty if elected president.
Harris’ law enforcement approach has at times put her out of step with California’s activist community. When she pushed a controversial policy that criminalized truancy, threatening to jail parents of children who missed too much school, even Harris’ staff “winced at the plan,” she wrote in her first book released just in time for her campaign for attorney general in 2010.
The program has since become a source of tension with criminal justice advocates, who see it as sign of Harris’ outdated approach to dealing with problems that stem from poverty.
In a recent NPR interview, Harris said her truancy initiative was not designed to punish vulnerable families, but “put a spotlight” on the problem and direct resources to needy families. Her campaign hails the effort as a success, and supporters have lauded Harris for prioritizing a child’s education.
“As a result of our initiative, which never resulted in any parent going to jail — never — because that was never the goal,” Harris said.
But Harris’s legacy remains on the state’s books: She authored a state-wide truancy law modeled after her San Francisco program. It has resulted in hundreds of parents in often less affluent and less politically liberal California counties being prosecuted.
Harris’ approach at the time was considered smart politics for a politician seeking to run statewide. Throughout her career, Harris worked to win over powerful police unions. She refused to support a bill requiring her office to investigate shootings involving law enforcement officers. In 2015, she declined to back statewide standards for body cameras, arguing that individual departments should decide how to use the technology.
“If you offend all the police chiefs and sheriffs of California, you’re probably not going to get re-elected as the attorney general of California, and if you’re not elected, how do you engage in any of the reforms you want to do?” said Jim Bueermann, a former California police chief who worked on Harris’ transition to the attorney general’s office.
From Law Enforcement to Legislating
As Harris transitioned from law enforcement to legislating, the politics of criminal justice issues were changing fast.
The deaths of unarmed black men at the hands of police in 2014 and 2015 prompted outcry and spawned the Black Lives Matter movement. Democrats began rethinking their tough-on-crime strategies, focusing more on inequality and abuse in the system. Prosecutors and police came under increasing scrutiny for their roles.
Harris’ views appear to have been changing, too.
In 2014, she was opposed to legalizing recreational marijuana, and when she ran against a Republican challenger for re-election as attorney general she took the more conservative view: He wanted to legalize. Harris laughed at the idea in a local television interview.
But Harris’s public tone changed as speculation grew about her running for president in 2020. Last year, Harris endorsed Democratic Rep. Cory Booker’s bill for federal legalization of marijuana. She argued on Twitter that “making marijuana legal at the federal level is the smart thing to do and it’s the right thing to do.” She released a video declaring that “marijuana laws are not applied and enforced in the same way for all people.”
Last month, she went as far as acknowledging to a pair of morning radio hosts that she’s used recreational marijuana: “I have, and I did inhale; that was a long time ago.”
For Ron Gold, the Republican who ran against her in 2014 and who supported recreational legalization when she did not, Harris’ stance on marijuana is indicative of her tendency to take a position “that’s popular, but not necessarily held strongly by the candidate, it’s a position that curries favor with a segment of the population,” he said.
Some see a similar pattern when it comes to the call for bail reform.
Shortly after announcing her presidential bid in January, Harris declared on Twitter: “It’s long past time to address bail reform across the country.”
“This is a serious injustice,” she wrote.
Three years earlier, Harris’s office was defending cash bail in a federal case.
“Neither the bail law nor the bail schedule discriminate on the basis of wealth, poverty, or economic status of any kind,” she wrote. In response to the notion that money bail schemes unfairly punish low-income defendants, Harris wrote, “the state is not constitutionally required to remove obstacles not of its own creation.”
Harris appears to have shifted her stance 10 months later. In December of 2016, Harris filed a motion in a case challenging the application of California’s money bail laws saying the system is deserving “of intense scrutiny.” She pledged not to defend any bail scheme that fails to take into account a defendant’s ability to pay. Three weeks later she was sworn in to the Senate.
Still, she asked the judge to toss the case, arguing that the laws were constitutional even if the way some counties implemented those laws was not.
“The bail system at issue here does not categorically deny bail to any group of individuals,” she wrote.
The move perplexed bail reform advocates who say she could have used her position of power to do more as the top law enforcement official in the state, overseeing thousands of prosecutors who each day requested cash bail for those they charged with crimes.
“I’m glad she’s come to the right position now, but it’s too late for tens of thousands of Californians, real human beings who have been detained in jail every day in California throughout the whole state, that the attorney general could have stopped,” said Phil Telfeyan, one of the plaintiff’s attorneys in the bail cases.
Harris’ campaign declined to answer questions about when and why Harris’ views on marijuana and bail reform shifted.
Campaign spokesman Ian Sams noted the political arena, not the courtroom, is the appropriate place to address policy problems.
“As senator,” he said, “she has aggressively confronted the policy question by proposing a bipartisan federal law to end cash bail.”
Simon, the civil rights advocate who worked with Harris, said she often say Harris spoke, privately, in frustration about cash bail and other elements of the criminal justice system while she was a prosecutor. But still, Harris had to work within its confines, Simon said.
“Prosecutors and lawmakers are different,” she said, “as a lawmaker, you actually get to make laws. As a prosecutor, you must follow them.”
Advocates say they’re cautiously optimistic about Harris’ legislative efforts, and are glad to see the issue in the political spotlight. But they note her bill, which she co-wrote with Republican Sen. Rand Paul, endorsed the use of controversial risk-assessment tools to determine who should be released from jail and who should remain behind bars.
Raphling said Harris’ office has been receptive to feedback. Still, he said she never indicated a progressive stance on the issue before and her commitment remains to be seen.
“I give her credit for wanting to tackle bail reform, and people are listening,” Raphling said. “The question is, and this is an open question, what kind of reform is she going to push?”