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.