Kamala Harris is now the VP candidate. You may have heard her bring up the topic of systematic inequality, or injustice. Look no further than her achievements as a career prosecutor, and many others like her across the nation, to find evidence that those things indeed exist. They really do.
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Harris was a district attorney in San Fransisco from 2004 to 2011. She stood out there by being tough on crime in the form of prosecuting truant school children, sending letters to San Fransisco parents each year, threatening them with citations. She sponsored a 2010 law making it a misdemeanor crime for parents whose children miss 10 percent of a school year without an excuse the State deemed acceptable. She opposed efforts to reduce mandatory minimum prison sentences. She opposed the effort to legalize marijuana in California.
She served California Attorney General from 2011 to 2017, where at least 1,560 people were incarcerated for marijuana related offenses in those years. She fought against new DNA testing in order to determine whether death row inmate, Kevin Cooper, who many believed had been wrongfully convicted. If there’s any chance at all that he is actually innocent, what is the harm in checking the DNA? According to the New York Times, over 600 criminal cases had to be dismissed over a corrupt laboratory technician who had been accused of “intentionally sabotaging” results in criminal prosecutions. Harris and her prosecutors tried to withhold this evidence from defense lawyers – and got caught.
In 2014, she declined to take a position on a ballot initiative to reduce certain low-level felonies to misdemeanors and laughed at a reporter who asked if she would support the legalization of marijuana.
That case is not an outlier. Ms. Harris also fought to keep Daniel Larsen in prison on a 28-year-to-life sentence for possession of a concealed weapon even though his trial lawyer was incompetent and there was compelling evidence of his innocence. Relying on a technicality again, Ms. Harris argued that Mr. Larsen failed to raise his legal arguments in a timely fashion. (This time, she lost.)
She also defended Johnny Baca’s conviction for murder even though judges found a prosecutor presented false testimony at the trial. She relented only after a video of the oral argument received national attention and embarrassed her office. And then there’s Kevin Cooper, the death row inmate whose trial was infected by racism and corruption. He sought advanced DNA testing to prove his innocence, but Ms. Harris opposed it. (After The New York Times’s exposé of the case went viral, she reversed her position.)
Kamala Harris Was Not a ‘Progressive Prosecutor’, The New York Times, by Lara Bbazelon, Jan. 17, 2019.
In “The Truths We Hold,” Ms. Harris’s recently published memoir, she writes: “America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice.” She ironically claims in the book, “I know this history well — of innocent men framed, of charges brought against people without sufficient evidence, of prosecutors hiding information that would exonerate defendants, of the disproportionate application of the law.”
Indeed, I have also seen it first hand. The fact is that we have over-criminalized everything in this country. And who has it harmed the most? As I wrote about back in January, it didn’t start out this way. The Constitution was initially ratified in 1788. By 1790, we had only 30 federal crimes in existence, which consisted of the basics: treason, piracy, counterfeiting, murder, and so on. At that time, there was no concept in our law of the possession of an object being illegal in and of itself. That was imported from Sharia Law and Far-East authoritarian regimes, such as you see in the laws of Singapore.
The first modern drug law in the western world was in England in 1868. The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.” Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.
Our laws in America derived from English common law. Courts today still turn to the old English common law to resolve some questions of law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public. There was no real police force anywhere. Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded. So there was no such thing as a police force. And there was no such thing as career prosecutors, such as Kamala Harris.
Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.
In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.
Making Sense of English Law Enforcement in the 18th Century, Santa Clara University School of Law, 2 U. Chi. L. Sch. Roundtable 475 (1995).
Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms.
The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.
Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.
They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.
Making Sense of English Law Enforcement in the 18th Century, Santa Clara University School of Law, 2 U. Chi. L. Sch. Roundtable 475 (1995), at p. 92.
And again, if you want to look at systematic injustice and inequality, look no further than those individuals who have signed their names to the documents charging the people imprisoned across the county, as well as the arguments made in the courtroom to put them there. Somewhere along the way, we decided to over-criminalize America, to the point at which the Government tells us what plants, or even ideas, we can, or cannot possess. Regarding Harris’ statement in her book about the danger of prosecutors, the lady doth protest too much, methinks….