Her legal work, in particular, not only drew ire from the court—it also raised eyebrows among observers. “Defiance of the federal court order requiring the reduction of the California prisoner population is reminiscent of the Southern governors of the 1950s declaring their defiance of federal court desegregation orders,” Erwin Chemerinsky, dean of UC Berkeley Law School, told
NPR at the time. “Both were misguided efforts to undermine enforcement of the Constitution.” Added Barry Krisberg, longtime president of the National Council on Crime and Delinquency, “The legal arguments that the state is putting forward make no sense.”
Meanwhile,
The Atlantic was even more unsparing of Harris’s behavior in the case, writing that her “court filings are largely void of dispositive facts and unworthy of a first-year associate, much less the chief lawyer of our nation’s most populous state.” According to writer Andrew Cohen, Harris’s behavior may have even put her in breach of California’s legal and ethical standards, which forbid filing a motion “for an improper purpose, such as to harass or cause unnecessary delay.”
Indeed, that particular behavior is condemned multiple times in the court’s June 2013 ruling: “defendants have repeatedly found new and unexpected ways to frustrate this Court’s orders,” the three-judge panel decried, and “used this Court’s patience and good-faith attempts to achieve a resolution as an excuse for protracting these legal proceedings to a time that could hardly have been imagined.” Harris’s work on that case alone would likely disqualify her from a shot at a federal bench or Supreme Court appointment, Cohen opined.
Harris’s use of the anti-desegregation playbook to prevent the release of low-level offenders ultimately failed. Finally, in 2014, the state acceded, and the prison population was reduced.
This era of Harris’s tenure as attorney general escaped the recent close re-examination of some of the higher-profile cases in her prosecutorial past. During her brief presidential run, a memo from the tail end of this battle resurfaced; in late 2014, lawyers from her office claimed that nonviolent offenders needed to stay incarcerated, lest they lose bodies for fire camps in the wildfire-plagued state, as Jackie Kucinich of the Daily Beast
reported.
Harris was quick to disavow the memo, claiming she had no knowledge of it and telling
BuzzFeed News she was “shocked” by the argument. But it squares firmly with the sort of arguments her office was putting forward for multiple years preceding it. Harris, meanwhile, was
known to run an extremely centralized attorney general’s office, with few things coming in or going out without her express sign-off. With a ruling handed down from the country’s highest court, this was one of the highest-profile cases she managed in her role as attorney general. An extremely high-stakes case involving a decarceration order she spent years resisting is unlikely to have escaped her awareness.
Of course, Harris has been criticized on multiple occasions for fighting to keep people, including innocent ones, in prison. In the case of Daniel Larsen, an ex-felon sentenced to 27 years to life under California’s “three strikes” law, Harris argued “that even if Danny was innocent, his conviction should not be reversed because he waited too long to file his petition,” according to the California Innocence Project, which
took Larsen’s case. And while her trenchant opposition to decarceration of the state’s prisons does align with those stories, her role in attempting to subvert the authority of the country’s highest legal body, for the sole purpose of preventing the release of a number of low-risk prisoners, has gone largely unchallenged.
Her role in blocking the Supreme Court’s prison reduction order is deeply troubling on multiple counts. First, with the increased salience of criminal justice reform in the Black Lives Matter era, a forceful opponent of decarceration on the ticket hardly conveys that the Democratic Party is on the side of racial justice. Second, placing someone with a history of defying the Supreme Court on the Democratic ticket would significantly undermine Democratic nominee Joe Biden’s pledge to return to the pre-Trump era of governance, where the three branches of government are seen as coequal and the courts are respected.
Biden
plans to name his running mate next week. The importance of a vice-presidential pick is often overblown. There’s little reason to believe that it can influence the outcome of a presidential election one way or the other. But given the stakes of this year’s election, and Trump’s unique willingness to disregard the legal constraints on his office, elevating Harris would send a dubious message. And given Biden’s spoken commitment to serve just one term, Harris would immediately slot in as the most powerful VP in modern history, primed for a presidential run as a quasi-incumbent if Biden does win in November. It’s likely, too, given the age of liberal Supreme Court justices Ruth Bader Ginsburg and Stephen Breyer, both in their eighties, that a Biden administration and/or its successor will be in a position to appoint multiple judges.
Perhaps, if Harris had mounted a longer presidential campaign, these issues would have been raised on their own. But given her early departure, her record, in some senses, escaped a thorough vetting. In the time she’s transitioned from presidential hopeful to vice-presidential favorite, even some of her fiercest critics have changed their tune on her legacy. Last month, University of San Francisco law professor Lara Bazelon, who penned a much-talked-about 2019
New York Times op-ed titled “Kamala Harris Was Not a ‘Progressive Prosecutor,’” was quoted on
NPR saying, instead, that Harris “did champion progressive causes … her record has been consistent, and it’s been good.” But as Harris’s work in the
Plata case alone shows, that’s far from the truth. She has not only been a frequent enemy of progressive causes, but she’s opposed them in ways so dubious they threaten to undermine the very institutions in which she has served.
As California attorney general, she spent years subverting a 2011 Supreme Court ruling requiring the state to reduce its prison population. The overseeing judicial panel nearly found the state in contempt of court.
prospect.org