Kamala Harris Wants to Distinguish Herself From Joe Biden. Criminal Justice Is a Place to Start.

It did not take long after Vice President Kamala Harris replaced Joe Biden on the campaign trail for pundits to seize on an irresistible theme for the Harris/Trump matchup. “Prosecutor versus felon” was repeated ad nauseam on TV and online for days. “People are very excited to see her out there, and they love the narrative of the prosecutor against the felon,” a political strategist told CNN. The Rev. Al Sharpton gushed on MSNBC that if the election were a boxing match, it would be billed as the Prosecutor versus the Felon.

“Convicted felon” was a favorite liberal insult against Donald Trump before Harris’s ascension to the top of the presidential ticket. Trump’s conviction on 34 criminal counts launched a thousand gleeful Facebook memes. Candidate Harris fulfilled a heady fantasy of a fight between an evildoer versus the one who could bring him to justice.

But formerly incarcerated activists pushed back, arguing that labels like “felon” are less harmful to Trump than they are to the millions of Americans with convictions on their record. Sheena Meade, CEO of the Clean Slate Initiative, wrote that such dehumanizing language bolsters the barriers preventing people from securing jobs, schooling, or housing after prison. “These barriers are driven by harmful narratives about people with records that exclude us from our communities long after we have paid our debt to society,” she wrote. Through this lens, Harris’s first official campaign ad — set to Beyoncé’s “Freedom” and appealing to Americans’ desire for bodily autonomy and the chance “not just to get by but to get ahead” — served as a reminder of the things that remain out of reach to people leaving prison.

Harris has not disavowed the prosecutor vs. felon theme. But she hasn’t quite embraced it either. While her stump speech includes a crowd-pleasing riff about a career spent prosecuting predators, fraudsters, and cheats — “So, hear me when I say: I know Donald Trump’s type” — her tough-on-crime rhetoric is thus far focused on border enforcement, an area where she is seen as vulnerable (and where Democrats have never hesitated to move right).

If there are hints of how Harris might move on other criminal justice areas, her VP selection of Minnesota Gov. Tim Walz, who signed sweeping reform legislation last year, suggests at the very least that she’s not running away from the issue. More recently, news broke that New York City Council Member Yusef Salaam, one of the Exonerated Five, has been invited to speak at the Democratic National Convention — a nod toward the problem of wrongful convictions. (Trump notoriously called for the death penalty for Salaam and his co-defendants in the Central Park jogger case.)

But a few weeks into her presidential campaign and with the convention only days away, Harris has thus far remained silent on what, if any, role criminal justice reform would play in her presidency. (Her campaign did not respond to The Intercept’s questions.) This may simply reflect a strategic desire to avoid more over-the-top attacks from Republicans, who have already accused her of destroying San Francisco. Regardless, other policy areas have taken more of a priority, with Harris poised to unveil a new economic platform — her first substantive plan on any issue. In the meantime, a draft of the Democratic National Committee’s party platform, released last month, echoes Biden’s uninspired rhetoric — “We need to fund the police, not defund the police” — while highlighting goals the White House laid out last year in a “multi-year blueprint that applies a whole-of-government approach to improve the criminal justice system.”

That document broadly aligns with Biden’s previously promised reforms as well as the priorities Harris laid out in her last presidential run. Her previous criminal justice platform called mass incarceration “the civil rights issue of our time” and put forth a slew of reforms, from ending cash bail to legalizing marijuana — part of a vision to “increase public safety, reduce our outsized criminal justice system, and make it fairer and more equitable for all.”

Such messaging proved unconvincing at the time. The “Kamala is a cop” refrain ultimately eclipsed the progressive prosecutor image she’d sought to portray. While the 2024 election is taking place in a starkly different political context — and amid considerable backlash to the limited reforms made in the wake of George Floyd’s murder four years ago — Harris has an opportunity to refocus attention on the reforms she previously championed and to follow through on the many promises Biden failed to deliver. As she seeks to redefine herself in the run-up to the DNC, her statements — or silence — on criminal justice could speak volumes.

Sen. Kamala Harris, D-Calif., listens during a Senate Judiciary Committee hearing on Jan. 16, 2018. Photo: Bill Clark/ CQ Roll Call via AP

First Steps

In her 2019 memoir, “The Truths We Hold,” Harris cast herself as a change agent from her earliest days as a prosecutor. Yet others in California have described her “as a prosecutor and attorney general who waited rather than led, who moved on controversial issues only once she saw what was politically viable.”

The same criticism has been leveled at her during her years as vice president. In a profile last year, New York Times political correspondent Astead Herndon noted that as “social movements have shifted the Democrats’ message on criminal justice and public safety leftward, the figure whose career seems to speak the most to that conversation has refused to lead it.”

To the extent Harris might push back on such portrayals now, one area to highlight is her record in the Senate, which has been discussed far less than her years in California, for perhaps obvious reasons: being a prosecutor was her previous life’s work and more directly illustrative of her priorities within the system she has since spent considerable time critiquing. Throughout her brief congressional tenure, she sponsored or co-sponsored several criminal justice reform bills. The fact that all of them died on the vine presumably means Harris has unfinished legislative business on this issue.

Six months after assuming office, in July 2017, Harris visited the Central California Women’s Facility in Chowchilla, where a group of incarcerated women shared their stories. Mother Jones reporter Jamilah King accompanied Harris on the visit, writing that Harris told her, “To be relevant in elected office, I strongly believe you have to have an acute sense of how your proposal will impact real human beings. It’s more than a beautiful speech.”

Shortly afterward, Harris introduced one of her first major pieces of legislation, an effort at bail reform titled the Pretrial Integrity and Safety Act, which she sponsored alongside Republican Sen. Rand Paul of Kentucky. In a New York Times op-ed, the senators invoked the tragic case of Kalief Browder, the Bronx teenager who took his own life after spending three years jailed at Rikers Island awaiting trial for allegedly stealing a backpack. “Excessive bail disproportionately harms people from low-income communities and communities of color,” they argued. Although the Supreme Court has said that a person cannot be punished for being poor, “that’s exactly what this system does. Nine out of 10 defendants who are detained cannot afford to post bail, which can exceed $20,000 even for minor crimes like stealing $105 in clothing.”

Advocacy organizations praised the bill, from the National Association of Criminal Defense Lawyers to the American Civil Liberties Union. Although it did not advance, it was later reintroduced by House Democrats Ted Lieu of California and Jerry Nadler of New York, along with New Jersey Democratic Sen. Cory Booker, a frequent legislative ally of Harris’s.

The legislation was particularly poignant for being introduced by a former prosecutor.

The bulk of Harris’s criminal justice reform efforts came after she announced her presidential campaign in January 2019, on Martin Luther King Day. That May, Harris introduced the Ensuring Quality Access to Legal Defense Act, which sought to level the field between prosecutors and public defenders. The legislation was designed to provide $250 million in grants to be invested in state, local, and tribal public defender systems, whose attorneys are notoriously overworked and underpaid. The legislation was particularly poignant for being introduced by a former prosecutor — an acknowledgment that the system is stacked against defendants by denying their lawyers the resources they need.

The EQUAL Defense Act is one bill that, if championed by a President Harris, could make a difference that many consider long overdue. More recent iterations of the bill have been co-sponsored by members of Congress who previously worked as public defenders. Rep. Suzanne Bonamici, D-Ore., who reintroduced the House version of the legislation in 2021 and 2023, told The Intercept she is “both hopeful and optimistic” about the possibility that Harris might prioritize the issue should she win the presidency. Harris “understands the criminal justice system,” Bonamici said — and she also understood the value of bringing such reforms in a bipartisan way.

Harris also proved willing to team up with her party’s left flank, introducing the Fair Chance at Housing Act alongside Rep. Alexandria Ocasio-Cortez, D-N.Y. The bill, which had previously been introduced by Rep. Maxine Waters, D-Calif., sought to make it easier for formerly incarcerated people to secure housing by revamping the eviction and screening policies used to provide federal housing assistance. “Too many people become involved in our criminal justice system and serve their time only to return home to face additional barriers to employment, education, and housing,” Harris said at the time, echoing what formerly incarcerated people have said for generations.

And after years calling to end the “war on drugs” — while fending off accusations that she did much to perpetuate it — Harris also introduced the Marijuana Opportunity Reinvestment and Expungement Act, which would have decriminalized marijuana. Although the Senate version died in committee, a House version passed, then passed again upon being reintroduced in 2021.

Harris also co-sponsored an array of criminal justice reform legislation, from the Dignity for Incarcerated Women Act, seeking more humane conditions in federal prison, to the Promoting Reentry Through Education in Prisons Act, which would have created a new office within the Bureau of Prisons specifically designed to provide education. She co-sponsored multiple bills reining in the use of solitary confinement in prisons and immigration detention. In the early months of the pandemic, she co-sponsored legislation aimed at compassionate release, like the Covid-19 Correctional Facility Emergency Response Act, the Emergency Community Supervision Act, and the Emergency GRACE Act.

None of these reforms offered a radical re-envisioning of the criminal justice system. But they nonetheless could have positively impacted the lives of people ensnared within it. As Harris wrote when she voted for the Trump administration’s First Step Act, legislation partly advanced through the work of formerly incarcerated activists: “[T]he FIRST STEP Act is very much just that — a first step. It is a compromise of a compromise, and we ultimately need to make far greater reforms if we are to right the wrongs that exist in our criminal justice system.”

If there was hope that Harris might prioritize these issues in her role as vice president, things have not exactly turned out that way.

Still, if there was hope that Harris might prioritize these issues in her role as vice president, things have not exactly turned out that way. According to the NYT’s Herndon, Harris had an opportunity early on “to select several issues to fill out her policy portfolio, a chance for a vice president to own a signature policy lane.” But according to several sources who spoke to the Times anonymously, “Harris had no interest in taking on criminal-justice reform and policing, her area of career expertise.”

More recently, Harris has led public criminal justice-themed roundtables at the White House, inviting celebrities and people recently pardoned by the Biden administration. In March she welcomed rapper Fat Joe to discuss the administration’s efforts to ease restrictions on marijuana. In April, she was accompanied by Kim Kardashian while announcing a new agency rule to loosen restrictions on loans for people with criminal records. But both events simultaneously highlighted an uncomfortable fact: When it comes to exercising his pardon power — one of the few areas where presidents can swiftly and decisively improve the lives of incarcerated people and their families — Biden, like Barack Obama before him, has fallen short. Harris, who vowed to “significantly increase use of clemency” during her last presidential run, could make a big difference by following through on this promise.

Sen. Kamala Harris, D-Calif., speaks during a presidential town hall at Eastern State Penitentiary on Oct. 28, 2019, in Philadelphia. Photo: Mark Makela/Getty Images

What Have They Actually Done?

With a truncated presidential campaign this time around, Harris does not have much time to reintroduce herself to American voters. Those who want to know how she will handle criminal justice issues will not have another opportunity to, for instance, watch a town hall held by formerly incarcerated people, like the one that took place at Eastern State Penitentiary in Philadelphia in the fall of 2019.

Harris was one of only three primary candidates to attend the event; as The Intercept reported at the time, Harris “once again deflected attention from her career as a prosecutor, passing on what some audience members had hoped would be an opportunity to reevaluate it. Instead, she touted her work on reentry and anti-recidivism initiatives, as well as her plans to examine the for-profit prison industry and end solitary confinement.” As she told one attendee, “There are a lot of people who have language now about it, but I would ask you to challenge them, ask them, what have they actually done to reform the criminal justice system?

If the audience came away skeptical of Harris at the time, her mere presence signaled a willingness to engage with communities that had traditionally been ignored. In this sense, Harris was continuing a path forged by the Obama administration, which formed coalitions with formerly incarcerated activists but whose reforms were largely regarded as too little too late.

It is still too soon to know whether this will be the case with Harris. But for a politician who built an identity around a kinder, gentler criminal justice system, one way or another she will be called upon to prove how she might wield her power long term. After all, as she writes in her memoir, the “intractable problems” are the ones she considers most important. “The core problems of the criminal justice system are not new. … What matters is how well you run the portion of the race that’s yours.”

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