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Kamala Harris Has to Reckon with the Democrats' 'Law and Order' Past

Kamala Harris is running as the candidate for "rule of law," but some progresssives see her as a symbol of an unjust system.

by Eoin Higgins
Jan 24 2019, 7:49pm

California Senator Kamala Harris is the most recent high-profile Democrat to officially announce her intention to run for president in 2020, and immediately is having to contend with her biggest potential weakness as a candidate. Her past as a prosecutor, long seen as an advantage in the public political sphere, may be a hindrance to the nomination in today's progressive Democratic Party.

Rather than apologizing for her past positions—as other candidates have done—Harris is centering that experience, tying her campaign slogan, "For the People," to the way she addressed the court during her time as a prosecutor: "Kamala Harris, for the people." A Harris adviser explicitly laid out the approach in an interview with Politico.

“In the face of a lawless president and a lawless administration," the adviser said, "Americans are going to be looking for somebody who represents and stands for the rule of law."

But Harris is also representing herself as a reformer. The candidate is trying to balance a tough on crime approach on the one hand, for those in the party that want to take on Donald Trump, and on the other Harris is responding to the party's increasingly vocal base, some of whom use “cop” as an insult.

“Our system of justice has been horribly flawed and it needs to be reformed,” Harris said in an interview with ABC's Good Morning America, where she announced her run on Monday.

But presenting herself as a reformer with experience may backfire during a campaign in which the grassroots is demanding bold progressive policies.

"The base, often led by young people, often people of color, are pushing for a vision in which the people who represent us not only look like us but also represent our vision," said Paulina Gonzalez-Brito, the executive director of the California Reinvestment Coalition, an organization that fights for equitable investment in the state's communities of color.

The Democratic electorate has changed its views on policing in recent years in the wake of the national visibility of the Black Lives Matter movement and concurrent push for criminal justice reform across the country. Harris may find emphasizing her past as San Francisco's district attorney from 2004 to 2011 and as California's attorney general from 2011 to 2017 carries with it a number of challenges with a party that's had an activist reawakening.

"Harris will have to figure out how she'll convince the movement that she's their champion," said Waleed Shahid, communications director for the progressive political action committee Justice Democrats, "when many organizers and activists are on record criticizing her approach as attorney general on issues related to prison overcrowding, police shootings, and marijuana legalization."

In a statement received after publication, Harris's national press secretary Ian Sam stressed the senator's record of reform and placed her time in office as a continuation of Harris's commitment to fixing the criminal justice system. "In the Senate, she has championed criminal justice reform measures to end mass incarceration, upend cash bail, and confront discrimination," said Sam. "That is her record, and it’s one of consistently making progress and protecting people in pursuit of a fairer system."


When she served as San Francisco's district attorney, Harris implemented a program that allowed some offenders on drug charges to avoid incarceration by getting a high school diploma and a job. As California's attorney general, Harris's office changed policies on opening criminal justice data to the public and began a program to reduce bias in police. Berkeley law professor Jonathan Simon, an advocate for criminal justice reform in the state who was critical of Harris's tenure, nonetheless told the New York Times that Harris would be an "ally to progressive change on criminal justice" as a senator in 2016.

Yet Harris's record isn't all positive, and while the California senator is presenting herself to voters as the reformer who can get results on the ground, her past may be a hindrance.

"At the very least, being hyper-critical of candidates' past should be the price of admission for support for president," said Maurice BP-Weeks, co-executive director for the Action Center on Race and the Economy.

Hyper-criticism in the age of the online campaign comes quick. Critics point out that Harris opposed court ordered surgeries for California's trans prison population as attorney general (a decision Harris has taken responsibility for, while saying that her office required her to make that argument) and that she was hardly an advocate for the kind of change and reform that would have made a positive difference. Her office took positions during Harris's tenure that will likely come back to bite her, particularly when lawyers for her office argued that reducing prison populations would deplete a pool of affordable labor (Harris has denounced the argument but has also acknowledged the buck stopped with her).

"Kamala Harris was by no means a progressive prosecutor," said Oren Nimni, the legal editor for Current Affairs magazine. "Her office defended deficient convictions and argued for keeping people incarcerated in order to benefit from their labor."

There's also a case to be made, as the Intercept's Briahna Joy Gray did this week, that simply by virtue of becoming a prosecutor Harris was de facto endorsing a system of racialized oppression.

"Even prosecutors better than Harris now have to work against the reasonable premise that having caged people in and of itself makes one unqualified to shepherd a progressive party," said Nimni.

Harris's complicated past should lead to some introspection, said BP-Weeks. The best thing to do would be to come forward and tell voters what she'll do to address issues from her time as attorney general, a move that could spark a much-needed conversation for Democrats in general.

"People do change, and hopefully Senator Harris has as well," said BP-Weeks, "but the party has a long way to go to reckon with its past positions."

That reckoning may be at hand. The Democratic Party is turning its back on the Clintonian “triangulation” style of politics that largely defined the party's approach to elections from the early 1990s until 2016, when Trump's election—and the American political chaos that has been unending since then—largely shut the door on the strategy of appealing to moderate Republicans.

"Democratic primary voters have been shaped by rising movements for racial, economic, and gender justice demanding solutions that match the scale of our problems and redistribute wealth and power," said Shahid. "For years, many Democrats learned to triangulate between these movements and the Republican Party by finding a middle ground. That era is all but over."

One of the points that Democrats used to appeal to right-wing voters was traditionally “law and order,” a phrase that evokes authoritarian approaches to crime and punishment along with aggressive law enforcement tactics. Coded within that language is an endorsement of white supremacy, too; it's no coincidence that the three presidents in the last 50 years most sympathetic to the far right—Richard Nixon, Ronald Reagan, and Trump—have made "law and order" a central plank of their appeal to white voters.

"Mass incarceration has been the big stain on the past 30 years of domestic policy," Nimni said, "and the progressive wing of the party in particular is likely to balk at someone who was part of that system and does little to ameliorate her involvement."

Of course, it's an open question as to how much activists have to say about the party's eventual nominee. Harris has plenty of support, and raised $1.5 million in the first 24 hours since announcing, with most of that haul coming from small donors—the average donation came in at $37.

Gonzalez-Brito summed up her position on Harris's past, present, and future by placing the senator's history in the context of Harris's vision for the country.

"Senator Harris has her history as a prosecutor to answer for, and just as importantly she has a bold vision to represent that is authentically hers and speaks to this new America," Gonzalez-Brito said. "We are waiting."

Update: This article has been updated to include a statement from the Harris campaign.

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