How Kamala Harris sidestepped California’s criminal justice revolution

SACRAMENTO, California — Vice President Kamala Harris was elected California attorney general in 2010 as the state began to thoroughly rethink how it sentences and imprisons lawbreakers. Yet she chose to keep the debate over criminal justice reform at arm's length.

In the years that followed, California voters were presented with a series of proposals to break from decades of tough-on-crime policies by relaxing penalties for nonviolent and drug-related offenses while facilitating prisoners’ early release. Even as she shared a ballot with those measures during her reelection campaign, Harris refused to give her opinion of them.

“Kamala’s caution in terms of getting too directly engaged in some of these issues may prove wiser than we assume,” said Gil Duran, a frequent Harris critic since he worked for her as a spokesperson in 2013, but who recently said he wants her to win the presidential race.

Time may be running out on that type of caution. Since entering the presidential race just a few days ago, Harris has forcefully contrasted her law enforcement credentials with former President Donald Trump’s record as a convicted felon. That messaging dynamic is could make it difficult for her to maintain a strategic silence on the issues she claims to know best.

Harris will soon find her name atop ballots that will ask that same set of contested criminal justice questions as she avoided in 2014. This time they take the form of another California ballot initiative, which would roll back some of those decade-old reforms over concerns about public safety and quality of life that have prompted a nationwide resurgence of tough-on-crime politics.

The prosecutor-backed initiative known as Proposition 36 is roiling California politics, already dividing the state’s top Democrats. San Francisco Mayor London Breed was an early backer, while Gov. Gavin Newsom worked in vain to keep it off the ballot. The party’s candidates in congressional battlegrounds are girding for their campaigns to be shaped by the parallel state-level debate on how best to punish criminals.

This time, Harris cannot claim as she did as attorney general that the duties of her office forbid her from weighing in.

The neutrality principle

The 2014 initiative, which appeared on the statewide ballot as Proposition 47, emerged from the same progressive Bay Area milieu in which Harris rose to prominence and power. The policy proposal, which downgraded various property and drug crimes to misdemeanors in the interest of jailing fewer nonviolent offenders, was developed and funded by a cadre of criminal justice reformers that included people who had worked for her as San Francisco district attorney.

The campaign to pass Prop 47 was directed by the same elite consulting firm overseeing her reelection effort that year.

The measure split the state’s Democrats. Newsom, who served as mayor of San Francisco when Harris was district attorney and was then lieutenant governor, came out in favor of the initiative. The late Sen. Dianne Feinstein argued against it, warning that “wholesale reclassification of many dangerous felonies as misdemeanors would put the people of California at continued risk going forward.”

Brian Leubitz, who worked on Harris’ 2014 reelection campaign, said “there were always people on either side, left to right,” that wanted her to become more actively involved. “She took her time, and I think that could occasionally frustrate people, but it’s a very pragmatic approach.”

But Harris stayed neutral on the initiative, arguing that it would be inappropriate to take a position because the attorney general’s office crafts the language that goes on the ballot. The title and summary, as the language is known, is contested every election cycle by people who accuse attorneys general of trying to sway public opinion with leading summaries.

“They are charged with being the objective observer calling balls and strikes,” said Dan Newman, a Democratic political consultant who worked for both Harris’ attorney general bids and the campaign to pass Prop 47. “It was what attorneys general did so people would have faith in their objective writing of the title and summary.”

In 2016, then-Gov. Jerry Brown, a Democrat, launched a ballot initiative allowing earlier releases for more offenders. Again Harris remained neutral, citing her official duties and taking a backseat to Brown as the governor pursued a legacy capstone.

Harris was not the first attorney general to stay out of ballot fights for that reason.

Bill Lockyer, a Democrat who served as the state’s attorney general from 1999 to 2007, said attorneys general aren’t required to stay neutral. Plenty have chosen to take a leading role when questions related to criminal justice came before voters.

“Every AG probably has a different formula,” he said. “I don’t see any inherent problem with the AG having an opinion or making an opinion public after they’ve contributed to a ballot title, though … I can certainly see a reason to feel you ought to stay out of a subsequent ballot fight.”

But her decision to stay on the sidelines of seminal criminal justice fights that defined her time in state office reinforced an enduring image of Harris as careful to the point of calculating, always keeping one eye on the downside risk of committing to a controversial position.

“She was so cautious about everything, trying to perfectly curate kind of an ambivalent record that couldn’t be used against her, that she wasn’t relevant to the discussion,” said Rob Stutzman, a Republican consultant and former adviser to Dan Lungren, who as attorney general campaigned for California's era-defining three-strikes crime ballot initiative in 1994. “There’s no requirement of neutrality. It was just the excuse.”

Harris has faced such criticism from both Democrats and Republicans. In 2016, her Democratic opponent for U.S. Senate, Rep. Loretta Sanchez, slammed her for staying out of the fight around Brown’s parole initiative and accused her of distorting its summary . Last week, California Republican Party Chair Jessica Millan Patterson accused Harris of letting “criminals thrive” by “refusing to stop Prop 47.”

Major California editorial boards that otherwise endorsed her campaigns for local, state and federal office assailed her neutrality as “gutless” and “disappointing,” with the Los Angeles Times calling her “too cautious and unwilling to stake out a position on controversial issues, even when her voice would have been valuable.”

On the sidelines

Over six years as attorney general, Harris was aggressive in using the position to investigate and sue big banks and for-profit college chains. She went after international drug cartels. But she largely kept her distance from overarching policy discussions about how the state should prosecute and punish.

“There were a lot of big proposals or initiatives out there, and she wasn’t leading the charge,” said Nathan Barankin, who served as her chief of staff at the time.

Barankin pointed to Harris’ initiatives like a diversion program for low-level offenders and a portal sharing more data about arrests and in-custody deaths. He argued she straddled different poles of the wider debate: She believed serious offenders needed to face consequences, but she was “acutely aware that our criminal justice system was not perfect” given that it disproportionately punished people of color and offered few chances at real rehabilitation.

When Harris came to Sacramento in 2011, California had long led the nation in mass incarceration by passing ever more stringent sentencing laws. Months into her term, the U.S. Supreme Court ordered the state to reduce prison overcrowding, impelling Gov. Brown to initiate mass transfers from prisons to jails in a move known as realignment. Harris did not have an active role in shaping the policy, although she did at one point seek a more expansive definition of recidivism than Brown wanted.

“She wasn't that active pushing one way or another on criminal justice in the Legislature,” said Glenn Backes, a veteran lobbyist for organizations like the Drug Policy Alliance that sought more lenient policies. “Jerry Brown had a progressive agenda, lawmakers had a progressive agenda, but I don't remember Kamala Harris being particularly active in that space.”

She was similarly absent from other battles over sentencing and policing that drove a shift in how Sacramento approaches criminal justice. Her work was more narrow and included championing bills to fortify penalties for truancy and crack down on international criminal networks. She frustrated activists by sidestepping a landmark 2015 bill to address racial profiling by disclosing more data about police stops.

Advocates who have worked to overhaul California’s criminal justice system lauded Harris for staying neutral on the ballot initiatives, saying her endorsement was less valuable than her title and summaries that they saw as balanced and clear. Both propositions passed overwhelmingly.

“Her taking that role very seriously was not only understandable to me but quite appreciated,” said Lenore Anderson, who worked for Harris and San Francisco and went on to become an architect of Prop 47. “I think she demonstrated fairness and accuracy, and that really, really matters.”

Despite Harris’ neutrality on Prop 47, she has still come under criticism for her office’s handling of the initiative. She was attacked for neglecting to acknowledge Prop 47’s impact on DNA-collection practices in its ballot description, and for not sharing information about the effect of downgrading gun theft penalties with the state’s nonpartisan analyst. Republicans have long accused her of downplaying the initiative’s downsides to buoy its chances.

The return of Prop 47

Even as the Prop 47 reforms took effect, the debate over them never quite ended. District attorneys who had opposed the 2014 initiative qualified one of their own six years later to repeal parts of it. That measure fell well short of a majority in November 2020. On the same day, Harris won the vice presidency after her own presidential campaign faltered in part because progressives assailed her for being too tough on crime.

A pandemic-era rise in crime has given new urgency since then to concerns about prevalent retail theft and fentanyl abuse. A coalition of prosecutors and big-box retailers have returned to the California ballot this fall with a new measure that would strengthen criminal penalties for repeat offenders of certain drug- and property-related crimes.

Newsom and Democratic legislative leaders perceived that an increased focus on crime would spell trouble for members of their party also running in November. They scrambled in vain to have the initiative pulled before a June 27 deadline to finalize the November ballot — the same day as the fateful presidential debate that ultimately pushed Harris to the top of the ticket.

Harris’ campaign declined to provide on-the-record responses to questions about her record.

The fight over Prop 36 (the current measure that would roll back some parts of Prop 47) will dominate the political attention of Californians this year, second perhaps only to the contest between Trump and Harris. In Los Angeles, the Democratic presidential nominee will also run alongside county District Attorney George Gascón, a progressive who championed Prop 47 as Harris’ successor in San Francisco and then won her early endorsement to become LA’s top prosecutor. In her birthplace of Oakland, voters will decide if they want to recall District Attorney Pamela Price as a backlash against progressive prosecutors expands .

Both Prop 36 and Gascón’s reelection will offer voters a chance to embrace or reject California’s decade-old turn toward criminal justice reform. As Republicans work relentlessly to force Democrats to address crime concerns, Harris could have a tougher time staying out of the arena this time.

“She’s a lawyer by trade, and fundamental to being a lawyer is managing risk — the presidential election is full of risk,” said Max Szabo, a political consultant who worked for Gascón. “She either hands a gift to Republicans or risks undermining support with her base.”