King: Leave Kamala Alone

Can Kamala Harris become President? After Obama winning in 2008 and Trump winning in 2016, it seems anything is possible. Although there are reasons to be concerned about a President Kamala Harris, Briahna Gray at the Intercept muses about whether her experience as a prosecutor is fatal to her chances.

The Intercept states its concern as this:

The problem isn’t that Harris was an especially bad prosecutor….The problem, more precisely, is that she was ever a prosecutor at all. To become a prosecutor is to make a choice to align oneself with a powerful and fundamentally biased system.

Nobody tell Gray that Justice Sotomayor was a New York assistant district attorney; that might make her sad. She goes on to take issue with Harris’ explanation as to why she became a prosecutor, which was:

There is a duty and responsibility to be a voice for the most voiceless and vulnerable and to do the work of justice. And that’s the work I wanted to do.

Gray appears to conclude that enforcing crimes against offenders is unjust. That’s a curious place to start. In the current progressive world of intersectionality-rationalized feelz, this conclusion is treated as a priori. So it now seems that consideration of experience and evidence are tools of oppressors, thus to be avoided whenever possible.

But the fact is that murders, thefts, rapes, robberies, and so on do actually happen; crimes cause direct harm to victims, and crime causes indirect harm in communities. Prosecutors can bring a reasonably close approximation of justice to the direct victims. And the creation of boundaries for conduct promotes justice by punishing hurtful conduct, and prosecutors have a role in policing those boundaries.

Really, it seems that these throwaway paragraphs are the setup for the real criticism of all but a few exceptional prosecutors—they aren’t promoting progressive doctrine through their offices:

Harris’s choices are thrown in a more unflattering light when compared to the relatively short tenure of former public defender and civil rights lawyer Larry Krasner, district attorney of Philadelphia….As California’s “top cop,” Harris was no Krasner.

Oh, and here I thought we were talking about justice.

The point here isn’t to judge Harris by Krasner’s standard. But it is important to acknowledge that Harris, who regularly describes herself as a progressive prosecutor, is not one, and criticizing her record is fair game.

I’m just a simple country lawyer, but this is moving the goalposts. The initial proposition was that she was “a prosecutor at all.” Now, the problem with Harris is that she wasn’t a progressive prosecutor. These are two entirely different arguments, and as a reader, I don’t appreciate a writer wasting my time.

Ultimately, the claim that prosecutors necessarily align themselves with a “powerful and fundamentally biased system” is vastly overstated. This borrows heavily from the privilege and implicit bias accusations that now frequently substitute for reasoning. And this claim tends to misplace responsibility.

For example, John Pfaff frequently apportions great blame to prosecutors. This argument ignores that the definition of crimes, mental states, the level of felony, range of sentences, and the assessment of other penalties comes from the legislature and prosecutors are downstream from those policy decisions. The implicit argument here, which Gray makes explicitly, is that prosecutors should use their discretion to achieve progressive outcomes.

If the problem until now is that prosecutors have improperly used their discretion in service of tough-on-crime social conservatives, the solution is to use it in service of the intersectional progressives. Both ends of this suffer from the same problem, namely demanding that prosecutors engage in macro-scale policy-making.

Instead prosecutors should be appropriately deferential to the legislature as the chief policy maker. Failing to so defer to the legislative body invites, among other things, unpredictability and instability into the legal system. Prosecutorial discretion is better viewed as an exercise of the lawyer’s judgment about a particular matter.

A prosecutor should be primarily making evaluations of the quality and quantity of evidence, the likely outcome of a trial, and the justice a particular charge or plea promotes in the particular matter. In contrast, decisions about entire classes of people or offenses are broad policy decisions committed to the legislative branch. For example, the question of whether marijuana should be decriminalized shouldn’t be made by an individual prosecutor declining to ever pursue those otherwise lawful charges.

None of that should be seen as a dodge. Prosecutors can still use their influence to promote policy change. And voters are free to ask their local prosecutors to pursue legislative changes. In high-volume jurisdictions, the system tends to settle around moving cases forward, which creates an environment where injustice is more likely to occur—in either direction. So, the failure of prosecutors to appropriately manage and monitor charging and plea decisions is a legitimate grievance.

The rest of the article is largely discussing whether Harris should be judged on a sliding scale because she’s a minority woman and whether being a tough-on-crime prosecutor is good for Harris. In sum, the article raises an interesting question about prosecutors, and then poorly attempts to answer it.

Certainly being a prosecutor hasn’t historically hurt a politician’s chance at achieving higher office. But that argument is focusing on the outliers who are self-selected individuals that sought and achieved federal or higher state office. This means it’s entirely possible that attorneys like Harris sought out being a prosecutor because it could lead to a more coveted office.

For these attorneys, prosecutorial decisions might be tainted by that covetousness. In other words, Harris was purposefully tough on crime not because her role demanded it but rather because she calculated it would aid her career. A prosecutor that does such a thing shouldn’t be promoted to another office.

Likewise, good attorneys shouldn’t be discouraged from becoming prosecutors. Attorneys that believe that due process is essential before depriving people of their life, liberty, and property should be encouraged to become prosecutors. Otherwise, you end up with prosecutor offices headed by career-building politicians or busy-body do-gooders who have no quarrel with promoting their policy preferences, which will often be at the expense of the principles of republicanism.

While it might not be popular at the moment to say so, prosecutors do serve a necessary public purpose. The state controlled criminal justice system is a marked improvement from the private methods of handling crimes, which often devolved into revenge killings and a state of constant low-intensity warfare between clans and families. It was famously said that “if men were angels, no government would be necessary.”

11 thoughts on “King: Leave Kamala Alone

  1. Gregory Smith

    not clear if you are defending Harris or criticising Gray. There is nothing inherently wrong with being a prosecutor. The problem is that no Democrat has, for example, demanded the prosecution of those responsible for the aerial asssult on the hospital at Kunduz. Prosecutors ARE ‘downstream’, as you refer to it, from the legislative framework that created mechanisms for prosecuting the perpetrators of that atrocity. Yet their collective response was to pretend they never noticed. Not even a 1 paragraph press release acknowledging the existence of evidence that a crime was a committed, just an apparent decision to pretend it never happened. Only a miniscule fraction of all criminal acts that prosecutors are aware of get prosecuted, and there’s nothing wrong with that. But exactly which miniscule fraction does get the attention of prosecutors is an entirely valid question, and it’s not a criticism of the prosecutorial function generally to say that Harris answered this question very badly.

    1. SHG

      When I read Andrew’s post, I told him to anticipate some bizarre comments. But I never anticipated a comment this bizarre. Yet again, my fertile imagination proves lacking.

  2. Jim Tyre

    SHG:

    At the time you published, Harris had not yet announced her candidacy. Now, she has. Coincidence? I think not!

  3. David Meyer-Lindenberg

    In high-volume jurisdictions, the system tends to settle around moving cases forward, which creates an environment where injustice is more likely to occur—in either direction.

    Andrew, I’m not sure I understand you correctly: Are you saying that offices that process a large number of cases are more likely to produce false negatives as well as false positives?

    1. Andrew King

      David,
      I’m allowing for a difference in scale and therefore the quality of information an elected prosecutor will have.

      In some rural areas, a single prosecutor, sometimes even part time, handles all the cases. In high density urban areas, the elected prosecutor is unlikely to have a good sense of what is happening in any particular case, unless it’s sufficiently high profile. This means there is less accountability for line prosecutors to the principal, making it much easier for individual preferences to seep in. On the other hand, when you handle nearly every case yourself, your accountability for charging and plea decisions are more direct.

      In a system with more agents exercising “discretion” and frequent repetition, it’s more likely you’re going to have greater variance, thus less uniform justice. That is why I don’t hate on the U.S.S.C. Guidelines or the formerly named U.S. Attorney Manual. Both are attempts to reduce variance caused by individual preferences. In other words, they help address the problem of agency. Such a goal is laudable, particular in the federal system that includes so many individuals and is extremely large geographically.

      1. David Meyer-Lindenberg

        Thanks. (I must say, I feel rather like I dipped a toe in a puddle and found myself up to my neck in water!) Agreed for the most part, though I find the Guidelines to be an odd example, as I most frequently find people arguing that they increased prosecutorial agency across the board at the expense of judges.

  4. Tom Moran

    What Gray’s comment misses is two really important points.
    First, minorities often are victims of crime. People don’t sell drugs or turn tricks on street corners in Beverly Hills. They do it in Watts.
    The same is true for violent crime and serious property crime. It’s your neighbors who break into your house. Minority neighborhoods statistically have a lot of violent crime against people living there. Minorities have the right to live in safety.
    Second, and most important, is a rule articulated by a very good judge in my jurisdiction. There are two kinds of criminals: Those we’re mad at and those we’re afraid of. They should be treated differently.
    Prisons exist for people we’re afraid of. There should be alternatives to incarceration for those we’re mad at.
    Any prosecutor who recognizes these truths and who plays by the rules — who doesn’t hide Brady, who try cases fairly and who treat both victims and defendants with dignity — should be encouraged.

  5. MonitorsMost

    Your point that prosecutors should not be political operatives creating policy or changing the criminal criminal code by fiat is well-taken.

    However, I’m not sure this helps Ms. Harris. She still campaigned heavily against Prop 66 which would have reformed California’s three strike law to require a violent felony for the third-strike. In doing so, she lended the prestige and experience of her office to keeping people in jail for 25 years for non-violent offenses.

    That’s not acting like a “progressive” prosecutor and that’s not acting like a “progressive” politician.

  6. H

    I agree with you in principle about the role of a prosecutor’s discretion, but I’m sympathetic to a city like Philadelphia seeking to carve local exceptions from the laws of a more conservative state legislature. After all, why is District Attorney an elected position? One reason is to give the voters a chance to say “back off”.

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