The Fallacy of the Progressive Prosecutor

Photo by Gage Skidmore | CC BY-SA 2.0

by Noel Vossen

In a 2019 CBS interview, then-Democratic presidential candidate Kamala Harris claimed that during her time as district attorney for San Francisco and attorney general for the state of California, she “implemented some of the most significant reforms to date.” Recently, as the vice presidential nominee, the narrative she and the Biden campaign have been striving to create is one that depicts her as a trailblazer of ethical prosecuting.

Certainly, there were times when she committed herself to reform, such as when she kept her promise not to seek the death penalty, even in a difficult case involving a police officer’s murder. However, over the years she has also repeatedly referred to herself as a “Top Cop,” and taken several questionable actions that seem to contradict her recent claims of progressivism. Her conduct as a prosecutor contrasted with her recent remarks are concerning because the false narrative she touts has the potential to be taken as fact, which is ultimately inhibitive to effecting meaningful change. 

Harris is not alone in her claim that she was a progressive prosecutor. As awareness increases about the shortcomings of America’s fractured criminal justice system, prosecutors have begun to step forward and assert their dedication to reducing mass incarceration, such as Suffolk County, N.Y. District Attorney Rachael Rollins, who has promised not to prosecute minor crimes and issued a list of 136 police officers with potential credibility problems. Rollins is among a group of five Black, female prosecutors who have publicly branded themselves as “progressive,” and looking at the list of reforms they mention, it is clear that their approach to prosecuting is far different from the norm. They have pledged to stop accepting money from police unions, ban “no knock” warrants, pursue charges against police officers who breach rules of engagement, financially support community-led justice initiatives, and ask for feedback from Black and Brown communities.

While these policies seem like major steps forward, and have the potential to create some change if adopted on a national basis, these prosecutors are not exempt from criticism. Rollins, for example, created an extensive “do not prosecute” list, but it came to light that many of the cases on her list were prosecuted anyway. Satana Deberry, another member of the group and a district attorney in Durham, North Carolina, has been accused of intentionally withholding evidence and misrepresenting a defendant in court. Harris’ record similarly features decisions that deem her years as a prosecutor not ones of staunch progressivism, but often of convenience and deception. In 2015, when she was attorney general, she opposed a bill that would remove conflicts of interest in police-involved shootings, and failed to support a motion to mandate body cameras for all police officers. Both of these actions drew considerable frustration from activists, who said she was not doing enough to increase accountability. She also fought to uphold wrongful convictions that had been achieved through witness tampering and extensive suppression of evidence by prosecutors. Was Harris an odd woman out? Did she make the best reforms she could with the support she had? Even if she did, she also lived up to her self-proclaimed title of “top cop,” and therefore does not stand out as a bona fide leader for genuine change. 

There is a more important question to be asked: is it even possible to be a progressive prosecutor? The aforementioned attorneys call for ethical and moral prosecuting, yet have often conducted themselves in a way that exposes how prosecutors use their power to cause harm. Also, while they stand on platforms that suggest radical changes to the criminal justice system, the policies are actually reformist at heart. As the Democratic Party moves left, its circle of acceptance is widening, and the changes proposed by “progressives” still must conform to party criterion. The policies do not challenge the very existence of prisons. They do not command a reckoning of the carceral state as a whole, and these prosecutors, regardless of how progressive they claim to be, will still have to work closely with police officers in most cases. They also cannot change the law on their own, but can only enforce it. 

This is not a game of identity politics. All prosecutors, regardless of race or gender, operate within, and have often contributed to, the carceral state. All politicians, Democrats and Republicans alike, can participate in the continuance of racial injustice and mass incarceration. Harris did. Rollins did. Deberry and many other “progressive prosecutors” did. What does Harris’ candidacy for vice president say for criminal justice activism in the future? If she wins, it will be imperative that advocates remain vigilant that changes are made. If these changes follow Harris’ idea of what progressive prosecution looks like, the system as a whole will not be reshaped in the way it needs to, because prosecutors do not have the answers to injustice that activists seek. The power they exercise, even if it is to do good, ultimately does not extend farther than the carceral system they inhabit. The system itself, therefore, must be radically changed.

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