• November 25, 2020

The Operator: Kamala Harris and Her Complicated Criminal Justice Record

 The Operator: Kamala Harris and Her Complicated Criminal Justice Record

Vice presidential candidate Kamala Harris, D-Calif., leaves the Capitol after voting on the Senate floor. (Photo By Tom Williams/CQ Roll Call)

SAN FRANCISCO – When it comes to US drug policy, critics of vice presidential nominee Kamala Harris think she has all too conveniently transformed from hard-nosed prosecutor to idealistic reformer. They’re not all wrong, but they’re also not right.

Their story goes something like this: Once upon a time, from her perch up in the attorney general’s office, Harris terrorized marijuana users up and down California. She prosecuted them mercilessly, locked them up at astronomically high rates, and later cackled at the prospect of legalization. Then, as the tale goes, time elapsed and the public consensus on weed shifted, especially within the Democratic Party. Thus, Harris reinvented herself as a reformer. 

The second half of that story certainly rings true. This election cycle, Harris has made marijuana reform a fixture of her political identity. On the radio show The Breakfast Club she claimed she smoked weed in college, she’s endorsed many cannabis proposals floating around the United States Senate (even becoming the lead sponsor of the MORE Act, which decriminalizes cannabis and invests revenue from its sales in the communities hit hardest by the war on ‘drugs’), and during a recent town-hall she pledged that a Biden-Harris administration would decriminalize nationally and automatically expunge all non-violent drug convictions and incarcerations.

But the first half of that story, Harris’ past prosecution of marijuana offenses, doesn’t quite hit the mark. While her critics may be right to point out her political opportunism, the tale of Kamala Harris, the drug warrior turned progressive reformer, has eclipsed the true story behind this 56-year-old – who could very well be sworn in as America’s first Black, female president in our near future. A dive into her past reveals not a drug warrior, but rather a canny operator who treated cannabis with caution, abstaining from ‘overly’ aggressive prosecutions while remaining wary of outright reform. 

Conservatives and liberals alike have strafed Harris for her marijuana record as AG. During the Democratic primary, Rep. Tulsi Gabbard (D-Hawaii) opened fire on Harris for putting “1,500 people in jail for marijuana violations.” Later, President Trump’s personal lawyer and attack dog Rudy Giuliani also took shots at Harris. He cited the same figure as Gabbard, called Harris’ record “schizophrenic,” and said she’d been “too tough” on those slapped with marijuana ‘offenses.’ 

But to truly understand Harris’ cannabis record, one must distinguish between her six-year tenure as attorney general of California and her seven-years as San Francisco district attorney. That ‘1,500 conviction’ figure that critics, like Gabbard, often cite comes from Harris’ time as attorney general rather than as district attorney. The differentiation matters. As attorney general, Harris did not prosecute such convictions, which at the time fell under the district attorney’s jurisdiction. 

Obama’s 2012 Marijuana Crackdown

But as attorney general, Harris still would have dealt with the 2012 nationwide crackdown of medical marijuana dispensaries, which even included established markets like the one flourishing across California at the time. Back then, the Obama administration had begun busting medical marijuana shops throughout the country, regardless of whether they were in compliance with state law or not. 

Dispensary owner Steve DeAngelo, whom former San Francisco Mayor Willie Brown once dubbed the “leader of the legal cannabis industry,” still feels betrayed by Harris for her conduct as attorney general when the federal crackdown engulfed communities across the United States. 

He’ll never forget when officials tried to shut down his locally-legal – even if still federally prohibited – medical marijuana dispensary, Harborside Health Center (later simply renamed Harborside) in Oakland, California. 

That’s because he thought his state’s top cop, Kamala Harris, would shield him from federal interference. After all, when she decided to run for California AG, she sought his support, as well as that of other marijuana industry leaders.  

“She courted the cannabis industry, and we supported her. I donated money to her race,” a still audibly bitter DeAngelo told The News Station. “A number of other people that I know donated money to her race. And you know, we encouraged all of our constituents to vote for her, and she won quite narrowly.” 

Then came the swift, decisive, and heavy-handed federal shakedown of medical marijuana dispensaries. In response, DeAngelo did what any good ‘drug’ dealer would do: he fought the federal government in court. 

“People were losing access [to their medicine] all over the state,” DeAngelo remembers. “Then the Feds tried to do that with Harborside. And I stood up, and I fought back against them. And it was a very scary fight, because I didn’t know whether they were going to raid me because I fought back with them in civil court. I was already fighting other litigation with the Feds around tax issues – and you know, it was quite frightening.” 

DeAngelo reached out for help. He contacted all of California’s most powerful officials; all of whom offered their support, with one exception. 

“I reached out to all of our elected representatives,” DeAngelo recounts. “[Rep.] Barbara Lee, Jean Quan, who was the mayor of Oakland at the time, Willie Brown, who was retired then but still influential in California politics, and pretty much everybody supported us. And the exception to that was the attorney general of California, who did not lift one finger to dissuade the federal government from coming in and running roughshod over an industry that was legal in California law.” 

At the time, Harris released a tepid statement all but ignoring the plight of DeAngelo and his fellow dispensary owners: “Californians overwhelmingly support the compassionate use of medical marijuana for the ill. We should all be troubled, however, by the proliferation of gangs and criminal enterprises that seek to exploit this law by illegally cultivating and trafficking marijuana.” 

Four years later, the federal government was basically forced to drop its case against Harborside. The prosecution fell apart when attorneys in other suits started using as their defense a new law that a bipartisan pair of lawmakers successfully, and deftly, attached to federal spending bills that made it illegal for the Department of Justice to interfere with state-approved medical cannabis (it was sponsored by former California Reps. Dana Rohrabacher (R) and Sam Farr (D), thus it’s simply known as ‘Rohrabacher-Farr,’ at least in the seemingly creativity-starved confines of Capitol Hill).  

Skirting a federal sentence was one thing, but DeAngelo has never forgotten that Harris abandoned him and other OG’s of the very industry she previously shook down for campaign cash. 

“You know, I spent most of my career in the underground cannabis marketplace before I got a license in 2006. And in that world, betrayal is something that can cost you many, many, years in prison, so I don’t take betrayal lightly,” DeAngelo says. “So, I felt, along with most of the industry, quite betrayed.”

This wouldn’t be her only failure to support marijuana advocates while Harris was the attorney general. In 2010, when a ballot measure for recreational pot, Prop. 19, emerged, Harris co-authored an argument against it in the voter guide

And while Harris might not have directly prosecuted pot offenses as attorney general, she certainly did as San Francisco’s district attorney. 

What’s ‘Progressive’ even Mean Anyway?

Before becoming DA herself, Harris worked for the most progressive prosecutor, in the most progressive DA’s office that the most progressive American city had ever seen. She worked for none other than Terence Hallinan. 

Nicknamed “Kayo” for his youthful days as a street brawler turned boxer (he boxed at Berkeley and nearly made the US Olympic team back in the sixties). Hallinan transformed the San Francisco district attorney’s office into a progressive oasis in the already liberal city. Upon his election to the DA’s office in 1995, he fired 14 senior prosecutors, partially to make room for more minority hires. Then, during his time in office, he vociferously opposed all-white juries, fought to decriminalize sex work, and, notably, championed medical marijuana legalization. 

In 1996, he was the only DA across all of California to support Proposition 215. That ballot initiative enabled qualifying patients to access and cultivate medical marijuana (it’s seen as the catalyst for what’s now the green revolution still sweeping through the majority of states, in spite of the federal government’s lingering, blanket prohibition on cannabis). While he was district attorney, Hallinan made a point of de-prioritizing the prosecution of weed cases. 

In 1998, he recruited Harris, who was then working as a prosecutor in nearby Alameda County. He appointed her head of the career criminal division where she prosecuted everything from burglary to sexual assault cases, among many others. 

That’s where Fred Gardner got to know her. Gardner served not only as Terrence Hallinan’s press secretary but as his “liaison to the medical marijuana community.” Hallinan had recruited Gardner, a medical marijuana activist, to help implement Prop. 215 and connect him to Bay Area pot-growers. When Gardner accepted the job, he found he needed to study up on the criminal justice system. A young Kamala Harris stepped in to help. 

“I’d been a reporter and I’d covered a dozen or more trials over the years, but I didn’t know the inner workings of the criminal justice system or the language, or the lingo,” Gardner says. “There were three or four assistant DA’s who were very helpful and Kamala was foremost among them. She was on point. Her answers were just extremely direct and helpful.”

Often, Gardner discussed Hallinan’s cannabis work with Harris. 

“She knew that I was covering Kayo’s marijuana stories, she knew that I was his liaison to the pot clubs that were beginning to grow in San Francisco,” Gardner told The News Station. “Just as she was telling me about her cases, I was telling her about my stuff and there was never any disapproval or anything. She never disapproved of me or my friends. I have no idea whether in her inner circle, people were smoking marijuana, but she was not against it. She was not a drug warrior by anything she ever said or indicated.” 

Soon tension brewed between Harris and Hallinan, who suspected she might try to unseat him. She left his office in 2000 and headed for the city attorney’s office. Soon thereafter, she ran for district attorney of San Francisco.

Who Doesn’t Want their Boss’s Job?

Under Hallinan’s tenure as San Francisco’s DA, he oversaw the lowest felony conviction rates of any county in California: San Francisco’s felony conviction rate dropped to a meager 29 percent; even as the state average was around 67.5 percent.

Throughout her campaign, Harris capitalized on this weakness and criticized Hallinan for being ineffective. She pledged she would crack down on crime and restore safety to their neighborhoods. She won in a landslide. (Hallinan, true to form, spent the remainder of his days representing pot growers and sex club owners.)

However, Harris’ rhetoric throughout the campaign focused primarily on violent crime, rather than ‘drugs.’ (And when it comes to Harris’ cannabis convictions, a breakdown reported by the San Jose Mercury News offers the raw numbers.)

Throughout Harris’ time as San Francisco DA from 2004 through 2010, her attorneys won 1,956 misdemeanor and felony convictions for marijuana possession, cultivation, or sale, according to data from the San Francisco DA’s office. Terrence Hallinan’s time in office saw significantly more cannabis convictions but also significantly more arrests. San Francisco data from the attorney general’s office indicates that while 18 percent of arrests under Hallinan lead to convictions, 24 percent of marijuana arrests led to convictions under Harris. Those numbers include San Franciscans who weren’t necessarily arrested for weed offenses.

Harris locked up a total of 45 people in state prison for pot convictions while DA. That’s compared with the 135 people Hallinan put away as DA, according to data from the state corrections department. These figures only represent offenders whose most serious conviction was for marijuana. They also don’t include San Franciscans who served time in county jail for pot offenses. 

Criminal defense lawyers working during Harris’ tenure assert that she treated weed almost exactly as her predecessor, and former boss, had.

Former San Fransisco DA Terence Hallinan, who hired Kamala Harris, died in January at 83.

“She was on the same wavelength as Terrence Hallinan,” Michael Stepanian, a longtime dope lawyer told The News Station. “She’s like the new district attorney in the city of San Francisco (Chesa Boudin; who was seated in 2020 and) is not going to arrest and jail for the mere possession of marijuana.”

Dale Gieringer, one of the original co-authors of Prop. 215, is now the state coordinator for marijuana advocacy group California NORML. He says they got along while Harris was DA, because they didn’t have to interact with her much, if ever. 

“Nobody complained about her arresting people in San Francisco,” he told The News Station. “She didn’t actually say or do almost anything when she was DA of San Francisco, but that was good with us because anything she would have done at that point would have probably been harmful.”

Even some of Harris’ most vocal opponents agree that she did little to ramp up cannabis arrests. Steve Cooley, who served as district attorney of Los Angeles from 2000 to 2012 – and who ran against Harris for AG in 2010 – does not hold Harris in high esteem. Still, he doesn’t think criticisms of Harris’ cannabis record as DA are particularly compelling. 

“I don’t think she could be characterized as a drug warrior. No one was a drug warrior over marijuana during that era. That’s basically a false charge,” the former Los Angeles DA told The News Station, “Does she have other failings? Multiple and serious and she will not withstand scrutiny. That’s my belief: That she was a terrible attorney general. For broader reasons, she was a terrible attorney general, and she wasn’t a very good DA either but this marijuana thing hanging around her neck, Nuh-uh.”

Not only did Harris mimic Hallinan’s marijuana policies; she also replicated his reforms. As district attorney, Harris created a program called, “Back on Track,” which enabled first time drug offenders to avoid prison if they pursued a high school diploma. 

The program became a fixture of Harris’ legacy as DA. It also inspired her book Smart on Crime, which she published just as she began her campaign for AG. In the book, Harris notes the importance of not just using the physical, often blunt, and rarely forgiving power of the state when dealing with crime, but of being reform-minded as well.

Though Susan Breal, a San Francisco Superior Court judge and former prosecutor, recently told Fred Gardner, who now writes for the Anderson Valley Advertiser, that Harris’ Back on Track program was really just a knockoff of Terrence Hallinan’s ‘Streets to School’ program. 

Gardner writes that Hallinan described his program to an interviewer in 2001 as: “I make a deal with the small-time minor league drug offenders. If they go to school for two years, get a degree and get into an education system, then I will  drop the charges against them. It has had a terrific success rate. The first 25 kids who went through it, 19 ended up in college.”

“I don’t know if you know football, but (Hallinan) was like a blocking guard for her,” Gardner says. “You know, the guy runs down the field, he pushes the tacklers away so that the halfback can run through. He did that. He took the heat. He was the one that legalized medical marijuana. He was the one that said that diversion was always preferable to incarceration.”

“She’s always just checked which way the winds are blowing, frankly.”

Dale Gieringer

Though she has long supported medical marijuana, Harris took her time coming out in support of recreational cannabis. It took nearly 30 years in public service for her to finally endorse full, adult-use legalization in 2018, even as her constituents approved it back in 2016. 

Many Democrats eyed this change suspiciously. When she announced her candidacy for president in 2019, she had trouble winning over minority voters and she’s been dubbed “inauthentic” by many pundits and voters alike. That’s usually when others then label those critiques as sexist and racist on her highly decorated behalf. 

Still, others aren’t trying to define her. While she’s surely a historic vice presidential candidate, many average Americans, her GOP opponents, and especially advocates now feel like they know her; for better and worse. 

“Kamala Harris is a politician and she’s going to do what is politically fashionable…I think we live in a different political climate which would necessitate her being true to the progress on weed,” Hawk Newsome, the co-founder of Black Lives Matter New York, told The News Station. “I don’t think it’s because she changed her views in any way. She’s going to do it because it’s the right thing to do politically. And there’s going to be so much pressure on her politically that she’ll have to.”

To others, the notion of a “flip flop” is passe, especially to voters who’ve been willing to do nearly anything possible to evict Donald Trump from the White House. That stems, in part, from the stark contrast presented between the unflinching, remorseless, and unwavering Trump-Pence ticket and the seemingly empathetic, surely apologetic – if politically opportunistic – and perpetually evolving Biden-Harris ticket. 

“Well everybody changes, and we welcome any change,” Dale Gieringer tells The News Station. “If there was never any change, we would never get the laws fixed would we now? So, we’re happy with her position.”

When I ask him one more time if he thinks Harris deserves her reputation as a toughened drug warrior, Gieringer dismisses me, “No, no. She was just very cautious. She’s always just checked which way the winds are blowing, frankly.” 

Dylan Croll

Dylan Croll

Dylan Croll is a freelance writer based in California. In the past, he’s worked at the Laslo Congressional Bureau, as a CollegeFix Fellow at The Weekly Standard, Norwood News, and in public relations. He can be found on Twitter at @CrollonPatrol

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