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When Kamala Harris ran for president in 2020, her critics from the left argued that her record as a prosecutor was out of line with where the Democratic Party should be headed, especially after movements like Black Lives Matter turned the country’s attention to racism in law enforcement. She was too tough on crime during her days as the San Francisco district attorney and as California’s attorney general, some argued, and her policies only helped fuel mass incarceration. 

Harris, on the other hand, spoke about her own record in starkly different terms. During her time as a prosecutor, Harris argued, she was a reformer — she wasn’t tough on crime but “smart on crime.” In another book she wrote before her 2020 presidential campaign, she billed herself as a “progressive prosecutor,” a label that many disagreed with. 

Since becoming the presumptive Democratic nominee for president, Harris and her supporters have been leaning into her prosecutor past, eagerly framing this election as one of a prosecutor versus a felon. “I took on perpetrators of all kinds — predators who abused women, fraudsters who ripped off consumers, cheaters who broke the rules for their own gain,” Harris said in a recent speech. “So hear me when I say: I know Donald Trump’s type.”

But despite Harris pointing to her record as a tough prosecutor when it came to serious crimes, Republicans have been trying to cast her as too soft on crime, blaming her and fellow Democrats for a crime wave that, by all accounts, seems to have subsided.

The truth, however, is that much like her policy positions and priorities, her record as a prosecutor doesn’t fit into a neatly defined box. 

While she might not have been a progressive prosecutor by today’s standards — the kind of prosecutor who focuses on reducing incarceration rates rather than sending more people to prison — she was also driven by a reformist mindset when she became district attorney in 2004. Her incremental approach to change was highlighted by some programs she would later champion that provided alternatives to incarceration for first-time offenders, including jobs training and school enrollment.

In a speech launching her 2020 presidential campaign, Harris showed she wasn’t oblivious to the damage prosecutors can do to people’s lives. “Too many Black and brown Americans are locked up. From mass incarceration to cash bail to policing, our criminal justice system needs drastic repair,” she said. When it came to her own record, she said, “At a time when prevention and redemption were not in the vocabulary or mindset of most district attorneys, we created an initiative to get skills and job training instead of jail time for young people arrested for drugs.”

There are limits, however, to how much Harris can credibly claim that she was a reformer — she also had a record of making people serve longer sentences than necessary.

So what should people make of Harris’s actual legacy on criminal justice? The short answer is: it’s complicated.

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Harris’s record as a prosecutor is difficult to define in clear ideological terms in part because it includes many contradictions — supporting diversion programs for young people on the one hand, while pushing back against wrongful conviction claims on the other.

In many ways, her time as a prosecutor looked like a balancing act: She pushed for a fairer criminal justice system at a time when prosecutors were far less concerned about unjust outcomes, but she also made sure to never push too far.

Before she became district attorney, she prosecuted cases of child sexual assault and domestic violence, a priority she brought with her into the DA’s office. But some sexual assault survivors have criticized Harris, saying she didn’t go far enough to combat sexual assault.

When it came to other issues, Harris walked a similar line.

One example was her position on the death penalty. Harris, a vocal critic of capital punishment, vowed not to pursue it when she was campaigning for district attorney, and followed through by declining to seek a death sentence against a man who killed a police officer. That was a tall order given the pressure she faced at the time from fellow politicians and police unions.

But despite that stance, she defended the state’s policy on capital punishment, appealing a federal court ruling that deemed California’s death penalty unconstitutional.

On police reform, Harris was similarly reform-minded but fell short of what advocates would have liked to see. As California’s attorney general, she launched the OpenJustice initiative, creating a public database of the state’s statistics on crime and police use-of-force, and implemented racial bias training.

But she also didn’t shy away from heavy-handed law enforcement — as was the case when it came to marijuana laws, or her more controversial anti-truancy policy, which threatened to arrest and prosecute parents whose children skipped school.

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Harris likes to contrast her career with Trump’s by focusing on the fact that she’s a prosecutor at heart.

But Harris will be walking a tightrope whenever she leans on her prosecutor bona fides, risking alienating progressive voters who take issue with the tough-on-crime elements of her record.

“I don’t know what Harris could possibly do to regain the trust of those who are intimately familiar with the ways she, like any other prosecutor, has sent people to prison and made a career off of appearing to be tough on crime,” said Wanda Bertram, a communication strategist at the Prison Policy Initiative.

Ultimately, that tension that Harris faces underscores why Republicans’ attacks on her as too soft on crime aren’t based in reality: She has plenty of evidence to point to that shows she was, at times, a tough-on-crime prosecutor. She also has plenty of evidence that shows she was, at other times, a reformer. And over the next few months, Harris will have to decide which part of her legacy as a prosecutor she wants to run on. 

But if her record is any indication, she’ll probably try to avoid those kinds of black-and-white labels altogether.

—Abdallah Fayyad, senior correspondent 

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The US Constitution is a brilliant political document, but it’s far from perfect. This week’s guest, Erwin Chemerinsky, argues that many of today’s threats to democracy are a direct result of compromises made by the Founding Fathers centuries ago. 

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Today's edition was produced and edited by Caroline Houck. We'll see you tomorrow!

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