Will Kamala Make Prosecutors Great Again?

Not too long ago, ambitious law students wanted to land a job as a prosecutor. The best might end up in Manhattan, which was about as good as it got when it came to elite state prosecutors. The alt path was a couple years in Biglaw after their judicial clerkship, then a walk to the Southern District of New York, the epitome of prosecutorial prestige. The second team walked across the Brooklyn Bridge to the Eastern District in dreaded Brooklyn, heads bent in shame.

Law students wanted to be prosecutors. Being a prosecutor was great experience, impressive on a resume, alluring to cable television producers and a path to political prominence, whether as judge or elected official. After all, voters appreciated those who dedicated their careers to protecting us from criminals. But then, in the past couple of years, it dropped like a rock as a favored career path.

Law students are far less sanguine about that choice of career today. Some of my students even tell me that a job as a prosecutor has become stigmatized among their peers—part of the contemporary consciousness of criminal justice as a major driver of systemic racial inequality. At the start of Harris’s prosecutorial career, in 1990, the American prison population had recently doubled, and tough-on-crime rhetoric was de rigueur, regardless of political party. The next two decades saw the explosion of mass incarceration, which is now the subject of deep social reckoning.

Jeannie Suk Gersen asks whether Kamala Harris, whose entire career save the couple years as senator pretending to “cross-examine” witnesses at hearings, was spent as a prosecutor.

During this past summer’s Black Lives Matter protests, when calls for defunding the police and for prison abolition broke into the mainstream, many doubted that a career prosecutor could meet the needs of the Democratic ticket. But, just as Harris reframed her own prosecutorial past by describing herself as a progressive reformer, so the social meaning of prosecution has been shifting in ways that track this era’s aspirations for criminal justice.

By characterizing Harris’ top cop tenure as having been “reframed,” Jeannie is being kind.

Some of the strongest objections were to an anti-truancy program that she had implemented as the San Francisco district attorney, in 2008, threatening prosecution of people whose children chronically missed school, and to her support of a California law that made it possible to jail such parents for up to a year. (In 2019, she expressed regret for the “unintended consequences,” namely the criminalization of parents.) As San Francisco’s D.A., she was also tougher on drug crimes than her predecessor. In 2010, a judge lambasted Harris’s office for systematically violating defendants’ constitutional rights by hiding from defense attorneys the unreliability of a corrupt drug-lab technician’s work. And, as Lara Bazelon argued in the Times, last year, between 2004 and 2011, Harris “fought tooth and nail to uphold wrongful convictions that had been secured through official misconduct” by prosecutors.

And this barely scratches the surface of Harris’ disingenuous posing as progressive, putting the lie to the simplistic reform activists’ belief that if only prosecutors were women of color, “systemic racism” would be fixed.

I was never a prosecutor. It never occurred to me to want to be a prosecutor. I had no desire to lock anyone up, not because some people didn’t deserve to be locked up but because, well, someone else would be more willing to do so and I was not. But over the years, many law students have asked me whether they should become prosecutors, as if this were something dirty. My answer was always the same.

The system only works when there is a balance, when there are advocates for each side doing their job zealously, but with integrity. Crimes happen. People are harmed. Some killed. These are bad things and need to be addressed. There are bad dudes out there and society needs to be protected from them.

Neither side sits at the right hand of God. For a long time, prosecutors were seen as doing God’s work, saving the good people from the bad. Criminal defense lawyers were the slimy defenders of evil. My old pal, Don’t Worry Murray, gave his appearance in court by stating “Murray Richman, for the defense and the Constitution.” Murray is a treasure.

But as much as we tried to wrap ourselves in the Constitution, and prosecutors wrapped themselves in the flag, no one who toiled in the trenches was unaware that both of us were part of a larger machine which, if we each did our part with honor, worked as well as it could.

There was never any dishonor in being a criminal defense lawyer. We fulfilled a constitutional role by providing a zealous defense to the accused, and, on occasion, even served to vindicate the Constitution. Sometimes, we prevented an innocent person from being convicted, not that we ever asked or cared whether our client was guilty. Our job wasn’t to serve some higher purpose, but to zealously defend our client within the bounds of the law.

And there was nothing, absolutely nothing, wrong with being a prosecutor. It was just as critical to the functioning of the system as we were. Of course, there were limits, such as respect for the Constitution, honesty even when it was inconvenient, integrity and, as Justice Jackson explained, a duty to do justice.

That the job led to careers on the bench and in politics was neither surprising nor unexpected. Society saw prosecutors as the good guys, whereas defense lawyers served the criminals. They were pure and pristine. We were tainted by our nasty clients.

Kamala Harris enjoyed a career as a prosecutor, a brief respite as senator, and will soon be the next Mike Pence, sans fly. Will she be an inspiration to young women, to people of color, to progressives, to send their resumes to the district attorney instead of the public defender? If so, there’s nothing wrong with that. But she was never a progressive prosecutor.

9 thoughts on “Will Kamala Make Prosecutors Great Again?

  1. Michael Shapiro

    Please don’t refer to my friend and colleague, Murray Richman, in the past tense. Murray is alive, well and still defending clients and the Constitution.

    Reply
  2. CLS

    You’ve managed to express in a paragraph a worry I’ve pondered for a few months.

    I fear politics exerts far too much influence on the law today. When constitutional law professors are telling students the Supreme Court has an “aura of apolitical legitimacy” I’m worried. If the criminal justice system–hell, the whole system–is to function correctly we can’t have what’s on someone’s voter registration matter when they’re playing their role in the process.

    And no sane person ever thought Kamala Harris was a progressive prosecutor. Anyone with a functioning memory or the desire to use Google can see past that lie.

    Reply
    1. SHG Post author

      I wonder, more every day, what will become of law students as prawfs increasingly do everything in their power to undermine the legitimacy of the legal system. They’re not just turning out simplistic ignoramuses, but viciously cynical children who are certain the legal system is a massive scam. If that’s what they believe, then they should pick up guns and put down hornbooks. If not, they should do their job and teach law without infusing it with their infantile conspiracy ravings.

      Reply
  3. Richard Kopf

    SHG,

    The words “progressive prosecutors” make no sense unless, in this world where words no longer seem to have firm meaning, “conservative criminal defense lawyers” makes sense. In my view, both are simply lawyers.

    If they desire accolades for being something more than being a lawyer, they are in the wrong profession. They are like plumbers and that is exactly how we should view, and most importantly, judge them. After the pipe is fixed, does it leak? (Even for those whom you detest.)

    All the best.

    RGK

    PS Fairly recently I allowed Nebraska to kill a killer. Perhaps because I am agnostic when it comes to labels, I never once considered the words “progressive” or “conservative.” So far as I could tell, neither side of the superb group of competing lawyers thought to use those labels either. Young lawyers should ask themselves whether they could prosecute or defend both Trump and Hillary if they were tasked with the duty to prosecute each or defend each. If the answer is “yes” those are the lawyers I want in my courtroom.

    Reply
    1. SHG Post author

      Like so many phrases these days, “progressive prosecutor” seems meaningful while being meaningless. If they believe they have the authority to reject their legislatures enactment of laws and refuse to prosecute categories of crimes with which they disagree, at least it’s then clear what they’re doing. Whether it’s constitutional is another matter.

      Does that make them into “progressive prosecutors”? Maybe, unless the category of crime is murder by police officers.

      Reply
  4. Steve King

    The Stoics believed character was destiny. She will influence those with similar character, which is a hideous thought.

    I think she will inspire far more people to turn around and run in the opposite direction as fast and far as possible.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.