Opinion: I fact-checked assumptions about Kamala Harris’ past

Zadie Winthrop, Managing Editor

Kamala Harris was the San Francisco District Attorney (DA) from 2004 to 2011 and the California Attorney General (AG) from 2011 to 2017. The DA is an elected position that determines which arrests in a district to prosecute. The AG is an elected official who advises the governor and state legislature and acts as the prosecutor for the whole state.

The following assumptions have been reworded for clarity purposes but maintain the same meaning. Harris has done a lot in her career and it is impossible to fit it all into one article. This is my best attempt at choosing to share the most relevant information.

Assumption 1: I have heard that she prosecuted minor drug offenses ruthlessly which disproportionately incarcerated people of color.

Because of the expansive nature of the AG job, the AG is not very involved in minor drug prosecutions. So, to understand Harris’s prosecutorial past regarding marijuana violations, it makes more sense to look at her record as DA of San Francisco.

According to The Mercury News, Harris oversaw approximately 1,900 marijuana convictions as DA of San Francisco. She prosecuted more people than her predecessor, Terrence Hallinan, who was considered more liberal. Data compiled by the California Attorney General’s office found that under Harris, 24% of marijuana arrests led to convictions, while under Hallinan, only 18% of arrests led to convictions. But, under Harris, only 45 people went to state prison based on a marijuana conviction. Under Hallinan’s leadership, 135 people went to state prison for a marijuana conviction. Others went to county prison or were given other options for their crime. Paul Henderson, the leader of Harris’s narcotics team in the District Attorney’s office for several years, told The Mercury News, “our policy was that no one with a marijuana conviction for mere possession could do any [jail time] at all.” Instead, people with possession would typically be referred to drug treatment programs rather than prison. Henderson also said that marijuana sales charges often were pleaded down.

A study done by the NAACP and the Drug Policy Alliance (DPA) found that when looking at the top 25 major cities in California from 2006 to 2008, Black people were incarcerated for marijuana offenses at four to twelve times the rate of white people. However, San Francisco had such low marijuana arrests the city was not even included in the study. This suggests that, when Harris was DA, marijuana convictions also likely were relatively low and that, accordingly, the claim that Harris “prosecuted minor drug offenses ruthlessly” is not accurate.

But did Kamala Harris prosecute marijuana crimes in a way that disproportionately incarcerated people of color? The NAACP and DPA Report also found that from 2004 to 2008, while Black people in San Francisco made up approximately 7.5% of the city’s population, they made up approximately 37% of marijuana arrests. Nevertheless, who was arrested does not tell us whom DA Harris prosecuted. The specific racial demographics of marijuana prosecutions under her tenure are not available. Therefore, we have to look at other actions to gauge her consciousness of race as a factor in her prosecuting decisions.

In her first few weeks as DA, a gang member killed a police officer. Harris quickly announced that she would not seek the death penalty in the case. With the support of future governor Jerry Brown and police unions, California Senator Diane Feinstein urged her to change her mind. The AG at the time even threatened to intervene in the case. But Harris refused to change her stance, citing that the death penalty disproportionately harms low-income people and people of color.

This stance (along with many others) tells us that she was conscious of the role of race when prosecuting. However, because of the lack of data, it is still hard to come to a conclusion as to whether or not her prosecutions disproportionately harmed people of color.

Assumption 2: I think Kamala’s record as a prosecutor is extremely gross. She supported mass incarceration, systems that heavily target BIPOC offenders, and tortured trans women by putting them in men’s prisons.

I’ll begin addressing your assumptions by looking at her role in mass incarceration. Harris began her career in the 80s and 90s, which was a period of time known for high crime rates and the “war on crime.” She ran for DA, promising San Francisco law and order. It is key to remember that this was still a prominent attitude towards crime at the time, including among many Democrats. As DA, she prosecuted marijuana charges (but, as noted above, typically without seeking prison time) and believed in criminalizing sex work, things that now go against the public opinion of many liberals and are recognized as playing a large role in mass incarceration. However, she also created the Back on Track program in 2005, which provided another option besides incarceration for first-time offenders. Participants had to plead guilty and would have a felony on their record, which could be expunged at the end of the program. The program had counseling, resume assistance and even a gym membership. Back on Track is considered to be very successful in creating systemic change.

Harris receives criticism as Attorney General for not embracing criminal justice reform. Her office fought to release fewer prisoners even after federal judges ruled that overcrowding was an issue in California prisons. According to PBS, Harris made the California Department of Justice the first statewide agency in the country to adopt a bodycam program. However, she did not believe in requiring body cams because she felt a “one-size-fits-all” solution. As AG, she also expanded her Back on Track Program by creating a Procedural Justice and Implicit Bias course and established OPENjustice, a program that made crime statistics accessible to the public.

Did she support systems that harmed BIPOC? As AG, she chose not to weigh in on a bill that would require an independent investigation after any use of fatal force by police. She refused to take a stance on the bill in an attempt to respect the California Justice Department’s “hands-off rule,” which holds that the AG should not get involved in the affairs of local district attorneys, except in cases where the local DA had a conflict of interest, or there was an “obvious abuse of prosecutorial discretion.” The bill eventually expired, but in the following year, Harris herself proposed a very similar bill. Some have asserted that this respect for local DAs’ authority kept Harris from investigating several police brutality cases. On the other hand, as AG she also created a plan to assess bias in the criminal justice system, the key points of which were to: develop policy on implicit bias, establish the first bias training in the U.S, create a coalition of law enforcement leaders focused on community trust, and roll out bodycam programs.

Finally, what was her record with regard to placing transgender and gender non-conforming people in prisons that did not affirm their gender identity? In 2015, while Harris was AG, she defended the state’s decision not to give Michelle Norsworthy, a trans woman incarcerated in a men’s prison, a medically necessary surgery for her diagnosed gender dysmorphia. According to Them magazine, under her leadership, more people than just Norsworthy were placed in non-gender affirming prisons. It is true and quite disturbing that under Kamala’s leadership, transgender and gender non-conforming people were treated with immense disrespect while incarcerated. This policy however has not been continued into the Biden-Harris administration, which by no means excuses her former stance. Their current LGBTQ+ policy plan requires that “gender identity be considered when making housing assignments” and that “all transgender inmates in federal correctional facilities have access to appropriate doctors and medical care — including OBGYNs and hormone therapy.”

Assumption 3: Kamala Harris strikes me as a good leader but not necessarily a very nice person.

It seems to me, Kamala has put quite a bit of effort into how her personality is perceived. She smiles frequently enough that I have even heard people criticize her for lack of seriousness. She recently made a Happy Hanukkah, Merry Christmas, and Happy Kwanzaa video – each of which included a personal story. Footage of her dancing was a large part of her presidential campaign. I note this because I think the way we determine who seems kind, particularly when discussing politicians, is an interesting game. How do any of us know if a politician is kind? We really can only infer. I think a fair response to this assumption would be to raise the potential of racial stereotyping. It is not uncommon for Black women to be perceived as unkind or aggressive. However, you do not seem to think her level of kindness holds a bearing on her ability to be a good leader. So, I am curious, how is it that you have determined she is unkind?