Capitol Alert

Kamala Harris picks her fights as criminal justice crusader

As district attorney of San Francisco, Kamala Harris looked at the criminal justice system like a pyramid, with the worst crimes occupying the tip. The largest mass of the pyramid, Harris wrote in her 2009 book, is the “truly staggering” number of nonviolent offenders.

“The problem is that we have been using only the tools best suited to combating the offenders at the top of the pyramid, and we have been using them on the entire crime pyramid,” she wrote in “Smart on Crime.”

Offering a blueprint for how nonviolent offenders could be successfully redirected, including initiatives she used in her own department, Harris declared, “It’s time to rock the crime pyramid.”

Since taking office with an upset victory in 2010 over former Los Angeles County District Attorney Steve Cooley, Harris has sought to do so by creating a division to reduce repeat offenders, launching a pilot re-entry program at a Los Angeles County jail and opening a bureau for children’s justice.

Now as the Democrat campaigns for U.S. Senate, Harris also highlights broader accomplishments, from fighting mortgage fraud and reducing elementary school truancy to combating transnational gangs. She’s battled for gay marriage rights and supported a presidential order shielding unauthorized immigrants from deportation.

Yet on issues that have reshaped the state’s criminal justice system – including historic prison realignment, an initiative changing certain felonies to misdemeanors, and scores of public safety bills in the Legislature – Harris’ role has not been pivotal. The pyramid shook, but often it wasn’t her doing the shaking.

“Once she became attorney general, I didn’t see the transition from those initiatives: her writings and her overall philosophy,” said Earl Ofari Hutchinson, president of the Los Angeles Urban Policy Roundtable. Harris, he said, could have been “a more vigorous advocate for full criminal justice reform.”

“She’s been confined to (her) comfort zone and unwilling to be big and bold.”

Harris’ reluctance to use the state’s top law enforcement office as a megaphone to advance her earlier work has disappointed allies in the fight, some of whom question whether she’s strategically avoided topics that put her at loggerheads with the law enforcement community she worked hard to bring around since taking office.

Last year, retired California Supreme Court Justice Cruz Reynoso testified in favor of a bill that would have required the attorney general to appoint a special prosecutor to examine police officers’ lethal uses of force. He said independent probes are needed to uncover the facts. Harris’ office took no position at the time.

“I hate to speculate why, except of course that many of the police agencies would not want that,” Reynoso said. “It may be, politically speaking, that she does not want to be on the opposite side of those folks.”

In an interview, Harris said she didn’t support the measure, Assembly Bill 86, because it would have taken discretion from district attorneys. Unless they have been shown to abuse their powers, she thinks they should retain them. Harris disputed that her relationship with law enforcement had bearing.

“Here’s the bottom line: I am trying to change the system from the inside,” she said. “They (activists) are trying to change the system from the outside. And together, change will occur.”

Harris’ supporters point to the statewide policy initiatives and dozens of bills the attorney general’s office endorsed to bolster their case that she has accomplished far more than any of her predecessors to advance major, if not always visible, changes to the system.

She reactivated the office’s dormant powers to convene closed-door meetings with law enforcement up and down the state where she presented ways to coordinate and combat human trafficking, the need to adopt technology such as a digital forensic crime lab and to work on plans to implement realignment.

They believe her standard definition for recidivism allows law enforcement agencies across the state to accurately measure repeat offenses.

Back on Track LA, an expansion of the nationally recognized program she started in San Francisco, connects inmates with an array of services in and out of custody, such as therapy, health care, child support, education and job-training skills, to help them become contributing, law-abiding members of society.

“To look at where the dialogue was in the country before, and where it has gone on criminal justice reform, in many ways it is catching up to what she has been saying since before it was even popular,” said Lenore Anderson, executive director of Californians for Safety and Justice.

Last year, Harris initiated a web-based public portal showing years of arrest and crime rates, and deaths in custody, among other data sets, by department.

She helped develop statewide policies regulating the use of body-worn cameras, saying she favors the technology, and new training on racial profiling, implicit bias and procedural justice, also known as officer communication, which advocates say builds trust, noted Anderson, Harris’ chief of policy when she was district attorney.

“I think it would be impossible for anyone to conclude that the attorney general has been shy about what she thinks on criminal justice,” Anderson said. “This has been a major theme of her tenure as an elected official, both local and statewide.”

Harris touts her career as a prosecutor as preparation for the U.S. Senate, an office she said she’ll use to speak up for society’s voiceless, reduce sentences for nonviolent drug offenders and take questions about criminal backgrounds off job applications. In California, she’s worked to prevent sexual assault, eliminate the rape kit backlog in state labs, fight cyberexploitation and protect sensitive immigrant communities.

Harris said there’s an extensive amount she’s done in cases in which she didn’t invite the media, or politicians, into the room.

“In order for a lot of this stuff to work, law enforcement has to understand the viability and appropriateness so that they will actively participate and cooperate,” she said.

“True, I haven’t been engaged in a lot of grandstanding,” Harris added. “I haven’t sought a lot of publicity on it. But the work has happened. These are things that did not occur before.”

Harris was not the choice of law enforcement when she ran in 2010. Most of the leading groups endorsed Cooley, some citing his unwavering support for the death penalty. Harris had not sought death for the 2004 killer of San Francisco police Officer Isaac Espinoza.

Law enforcement committees alone committed roughly $1.5 million in outside spending for Cooley, with nearly $113,000 coming from the Peace Officers Research Association of California. Twenty-two days after the election, Cooley conceded the close race. Harris quickly arranged meetings with groups such as PORAC.

“She came to law enforcement and many other groups and said, ‘Here’s what I want to accomplish. Help me accomplish them. And how can we best get there?’ ” PORAC President Mike Durant said.

In 2014, Harris had a nominal Republican opponent but the backing of most public safety groups.

Asked about any areas of disagreement with Harris, Durant said, “Nothing comes to mind.”

Robert Weisberg, faculty co-director of the Stanford Criminal Justice Center, said the state AG’s power over criminal issues is limited because county prosecutors mostly operate on their own. Criminal appeals are generally handled by deputy attorneys general, he said.

“She has seen her role as synthesizing ideas that have emerged as consensus beliefs and tried to embed them into public discourse in a way that might promote action by the agencies that have more direct power than she does,” Weisberg said.

“It’s just been the nature of criminal justice lately that the attorney general, by its office, has not been the center of attention,” he added.

Harris did not help shape the public safety realignment program championed by Gov. Jerry Brown. Spurred by a federal order to reduce prison overcrowding, Brown and lawmakers in 2011 moved to shift many state responsibilities for lower-level felons to the counties, paying for it with a mix of sales taxes and fees.

Harris said she created one of the first examples of successful realignment with her program in San Francisco. Later, Brown’s policy formed the impetus for Harris’ Division of Recidivism Reduction and Re-entry as a way to embed the responsibility in the Department of Justice, Harris said.

“I think I have played quite an active role of showing how it can be done within the system,” she said.

Death penalty opponents are discouraged by Harris’ performance on the issue. Despite being a lifelong critic of capital punishment, she promised to follow the law. In office, she defended it in court. That “raised doubts” about her commitment to changing the system, said Hadar Aviram, professor at UC Hastings College of the Law in San Francisco.

“It was a big disappointment,” Aviram said. “I was surprised to see a proclaimed and vocal opponent of the death penalty take steps to actively to defend it.”

Harris’ office appealed after Cormac Carney, a federal judge in Orange County, two years ago overturned the death sentence of Ernest Dewayne Jones, sentenced for the murder of his girlfriend’s mother in 1995. In ruling it unconstitutional, Carney said the death penalty takes too long and that unpredictable impediments were unfair. His ruling was overturned by a panel of the U.S. 9th Circuit Court of Appeals.

Aviram, who at the time started a petition urging Harris not to appeal in the Jones case, contrasted her appeal with her refusal to defend the Proposition 8 ban on gay marriage, which she said was unconstitutional.

“There is no way of knowing how that case could have come out if the attorney general’s office had put up a fight based on its ministerial role,” Aviram said. “I think the death penalty issue called for similar consideration.”

Harris said she appealed the death penalty case because she wanted to ensure Carney’s arguments would not be used to hasten executions. She said the case differed from her action on Proposition 8 because she had a duty as the state’s lawyer to represent its interest on the death penalty.

“On Prop. 8, that was in my independent capacity as attorney general,” she said. “And in Prop. 8, also, the governor agreed. So everyone was on the same page.”

Harris is cautious when ballot measures are before voters, arguing that she should not take sides because her office prepares the title and summary seen by voters. Her neutrality differs from recent predecessors, including Brown, Bill Lockyer and Dan Lungren, but is consistent.

That meant she did not factor in the debate over Proposition 47, the 2014 measure pushed by Anderson and other criminal justice advocates, which reduced certain drug and property crimes to misdemeanors.

Supporters would have liked to see Harris at their side, while some law enforcement leaders believe she should have stepped in to oppose it. They blame the law for a rise in crime.

Mike Ramos, the district attorney of San Bernardino County, said that while he despises Proposition 47, calling it a “get out of jail free” card, he understands. Making her opinion known would be a conflict, he said, given her duties.

“Would I have loved for her to take my side against Prop. 47? Of course,” said Ramos, who is running for attorney general in 2018. “Do I understand why she didn’t? Yes, I do.”

Jan Scully, former district attorney of Sacramento County, said Harris should have been more involved from a prosecutor’s standpoint. Scully and other elected prosecutors and county sheriffs, who were unhappy with many of her positions, wanted her to denounce Proposition 47, insisting it stood to diminish consequences and accountability.

“We felt as prosecutors that Kamala was weak or missing when it comes to matters of public safety or criminal justice, and far more political – always looking for her next office,” Scully said. “She didn’t try to be everything to prosecutors and law enforcement. But she didn’t go so far out there on the liberal side, either. If anything, she was nothing to anyone.”

Harris has been circumspect about most legislation relating to criminal justice, though her office sometimes provides technical assistance not appearing on the record. She sponsored or supported about 60 bills, including eight dealing with human trafficking, six with firearms and four with truancy. In that time, more than 440 bills were referred to public safety committees and subsequently passed by the full Legislature. Brown signed about 85 percent of the bills, vetoing the rest.

In addition to staying out of debate over the lethal-force bill supported by Reynoso, Harris did not take a position on landmark racial- and identity-profiling legislation, steered clear of a bill limiting law enforcement’s ability to confiscate property from people not convicted of crimes, and did not support statewide standards regulating body-worn cameras by police officers, siding with law enforcement in contending there’s no one-size-fits-all approach to the issue.

Harris did back a less-fractious bill requiring agencies to report to her department incidents in which an officer is involved in the use of force.

Lockyer said Harris has had an “outstanding record,” but one that “doesn’t necessarily involve jumping into every public controversy.”

“I think she is careful, and that’s a smart thing to do,” Lockyer said. “Some people want more active engagement with the issues they get involved in. And again, that’s one way people can do these things. Another is to do the job and try to do the job well.”

Jim Miller of the The Bee Capitol Bureau contributed reporting.

Christopher Cadelago: 916-326-5538, @ccadelago

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