Don’t Be Fooled — Kamala Harris’s “Criminal Justice” Plan Is Not Progressive

On Monday, Sen. Kamala Harris released her plan on criminal punishment reform — the latest Democratic presidential hopeful to do so. While some of her competitors have released ambitious, if flawed, plans that identify a political agenda, Harris’s plan rests mostly on the candidate herself.

Harris, of course, is the former attorney general of California and has pitched her campaign on the foundation of her background as a prosecutor. Her pseudo-populist campaign slogan, “For the People,” is in fact a reference to the standard judicial language to describe prosecutors in a criminal trial. Harris is the “tough” and “fearless” fighter who says she wants to “prosecute the case” against Trump. In short, Harris is not so much running for president as suing for the job.

Though her campaign traffics frequently in her legal background, her criminal punishment reform plan says little of legal policy. In fact, her plan, which largely reproduces stock talking points and technocratic half-measures, is bizarrely self-referential. It is more brand management than political vision. While many of her rivals begin their respective plans with bold calls to reimagine safety in less punitive terms, Harris opens by touting that she is “uniquely situated” to address the problem: “From the civil rights protest she attended as a child, to her time working inside the system as a prosecutor, Kamala has seen firsthand the fundamental flaws of the system.” Elsewhere, the proposal highlights Harris’s record co-sponsoring legislation and launching lawsuits. Throughout, it seems like we are being asked not to sign up for a vision of change but rather to endorse Harris the person — who is, as always, Harris the prosecutor.

The plan itself does what Harris has done throughout the run-up to the primaries: temper progressive sloganeering with technocratic fine print. Harris is, let’s not forget, the candidate who responded to calls to eliminate student debt by proposing to cancel $20,000 of student loan debt for people who operate a business for at least three years in disadvantaged communities. Her criminal punishment reform plan bears many of the same restrictive intricacies.

Harris’s plan is divided into four parts that broadly concern mass incarceration, police and prosecutors, prison conditions, and “protections” for “vulnerable people.” Throughout, she rightly highlights that much of the change needed to reimagine police and prisons will need to take place at the state and local level — something she proposes addressing through vague calls for the federal government to “incentivize” these changes. Yet, even for those elements under presidential authority, the plan blends boilerplate demands with narrowly cast ideas of change. Almost every exciting proposal is quickly undercut with a series of clauses limiting its potential application.

For instance, Harris calls for an end to the war on drugs, which she sees as the key to ending mass incarceration — yet the specific policies she highlights would fail to make a dent in either one. Like much of the Democratic field, she calls for legalizing marijuana and expunging federal marijuana convictions. But when it comes to other fronts in the drug war, her plan is predictably inadequate. She pledges to “end federal crack and powder cocaine disparity,” that is, the policies that punish crack more harshly than powder cocaine. That would end the disparity but not the punishment; it changes the caliber of weaponry used in the war but does not reduce the war. (Incidentally, that metaphor could also describe her plan for reducing police militarization, since she wants to prohibit certain military weapons from going to the police, not all of them.) Harris says nothing about opioids or other drugs, even as emphasis of drug war prosecutions has shifted. Despite rebranding herself a “progressive prosecutor,” Harris does not follow Philadelphia District Attorney Larry Krasner’s plan of fighting the opioid crisis by going after major pharmaceutical companies.

Frustratingly but not surprisingly, Harris’s plan focuses on what political scientist Marie Gottschalk has described as the “non, non, nons” of criminal punishment reform: non-serious, nonviolent, non-sexual offenses. To Harris and many centrists in the bipartisan criminal punishment reform world, people charged with “non, non, nons” are the only group that should be subject to non-punitive reforms. So Harris calls for the expungement and sealing of records but only for “offenses that are not serious or violent after five years” of release. She wants to end asset forfeiture — except for “transnational gangs and major criminal enterprises” — an exception that will prove the norm for justifying seized assets. She wants to “end juvenile incarceration … except for the most serious crimes.” Harris jukes the stats, criticizing the astronomical rise in the incarceration of women and girls but calling only to “reduce the incarceration of women convicted of nonviolent offenses.” When it comes to serious or violent offenses, the plan is silent. We can therefore expect the status quo to reign on, given that people convicted of such offenses encompass most of the 2.3 million people incarcerated.

Even the relatively stronger parts of Harris’s plan are weakened by these kinds of almost comical exclusions that limit any desired reform to so narrow a group as to be almost irrelevant. She calls to end life sentences for young people — but only “by allowing youth sentenced to more than 20 years in prison for crimes committed before their 18th birthday to petition the original sentencing court for review of their sentence after they have served 10 years.” Such requirements seem designed to apply to as few people as possible.

Where her plan is not saddled with exclusions, it suffers from a limited imagination. Like centrist prison reformers everywhere, she promises to solve the problem of prison with prison and prison-like structures. She calls for various “evidence-based” reforms, alternative “metrics and data,” and blue-ribbon commissions like those of the 1960s. Likewise, she aims to promote police accountability by supporting “a national standard for use of deadly force to only when ‘necessary’” and giving more funding to police for body cameras and to hire more people of color. All of these solutions have, time and again, created more prisons and deeper police surveillance and violence.

The stale logic of centrist reform pervades Harris’s plan. The plan features numerous but undefined calls to “invest money in states” to do away with predatory fees and other violent policies but outlines no non-punitive alternatives states should enact with such funds. She wants to create a “Bureau of Children and Family Justice,” with “wrap-around services” that could readily incorporate jailing alongside coercive therapy and surveillance instead of anything transformative.

Likewise, Harris’s call for “education, job training and treatment” for incarcerated people offers no promise of being substantively different from the largely ineffective programs that currently exist. She calls to “restore voting rights for all who have served their sentence,” which her staff subsequently clarified would include those on parole and probation but not those who are currently incarcerated. She wants to require free video conference access and parenting classes for incarcerated women but says nothing about the physical and sexual violence many women face before and during their incarceration. Likewise, the proposal makes no mention of sex workers, whose criminalization Harris has expanded through her endorsement of the Fight Online Sex Trafficking Act.

The plan’s final section, pledging protection for vulnerable populations, is the briefest and strangest. Harris calls for a $1 billion investment “to allow states to fully eliminate their rape-kit backlogs within four years” and to double the Department of Justice’s resources “to address corporate crimes and those who defraud consumers.” Harris, who almost skipped the climate crisis town hall to meet with big donors, includes no explanation of what corporate crime she would go after or how she would go after it. Instead, she assures us simply that she has gone after corporate crime in the past.

Meanwhile, her pledge to protect vulnerable populations is limited to one item: hastening the speed at which rape kits are processed — presumably to accelerate the speed at which people who commit sexual violence can be arrested and prosecuted. Even on that narrow issue, however, the problem is not a lack of resources but a lack of will by police departments, which routinely discard such examinations or otherwise fail to take sexual violence seriously. Yet Harris’s plan makes no such connection.

Her plan does include some of the same decent things that other Democratic hopefuls have in theirs. For example, it calls for an end to private prisons (while noting how few people are actually held in them), to “ban the box” during the initial round of job interviews to reduce discrimination against formerly incarcerated people, to limit solitary confinement, and to end the federal ban on access to housing, student loans and work licenses for formerly incarcerated people. All of these items are fairly standard for a Democratic presidential hopeful in 2019, and they reflect how much the needle on mass incarceration has moved — as well as how much it needs to move still. Harris fails to connect these proposals to the broader social and economic changes needed. And like every other Democratic candidate, she fails to call for closing the concentration camps or ending the other facets of “crimmigration,” (the criminalization of migration) that take place largely at the federal level and have made prison and expulsion the country’s core immigration policies.

Harris is running as a career prosecutor, but she does not want to discuss much of her record, which consisted of many repressive measures against incarcerated people and working-class parents of color. She knows the law well enough to marshal its nitpicky specificity, but her plan does not name one specific law or institutional guideline that she would like to repeal. It’s understandable that she does not want to litigate her past in this plan — which is why it is so strange that her plan for the future keeps citing her record instead. She wants us to trust her experience when she promises to use that experience in pursuit of the same failed policies she now pledges to oppose.

Clinging to a selective list of her accomplishments, Harris assures us that a few tweaks and some federal grants can solve the problem. Her plans, like those of other candidates, are attempts to stake ground in an ever-shifting center of gravity. They are a sign of where we are, not where we need to be.