You Can Be Pro-Black and a Prosecutor

Democratic presidential candidate Sen. Kamala Harris (D-Calif.) participates in a interview and question-and-answer session with leaders from historically black colleges and universities during a Thurgood Marshall College Fund event at the JW Marriott February 07, 2019 in Washington, DC.
Photo: Chip Somodevilla (Getty Images)

Since announcing her intention to run for president this past Martin Luther King Day, a firestorm has swirled around Sen. Kamala Harris. Some attack her for her personal life; others attack her based on her record as a prosecutor in California. Kamala served as San Francisco district attorney from 2004 to 2011 and as California attorney general from 2011 to 2017. She joined the United States Senate in 2017, where she still serves today.

Some accuse her of not being “pro-black” because of her work as a prosecutor, stating that a prosecutor upholds a racist system.

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Let’s get thing straight—you can be pro-black and a prosecutor.

How do I know this?

Because I was both.

There were times I sent people of color to prison due to overwhelming evidence of guilt. There were times I dismissed cases because I felt that the evidence was thin, or that something didn’t sit right in my gut. Other times I sent folks to diversion to give them a second chance, then fought with some judges who wanted to see the person go to prison instead. I fought with some cops who disagreed with my decisions—and was not afraid to escalate the fight all the way to the top of the chain. Often victims who looked like me were surprised, then relieved that there was someone who would not judge them and shared their life experiences on some level.

There are some who believe the only way forward for people of color is to completely dismantle the criminal justice system – no more police or prosecutors. An opinion piece from Afropunk stated in speaking of Sen. Harris: “Yet some claim that she was a “progressive prosecutor.” How can there be a progressive prosecutor if the foundation of the criminal justice system is rooted in slavery and the genocide of the indigenous? If she truly was a ‘progressive prosecutor or a good prosecutor,’ she would make sure that prosecutors do not exist. There were no good slave owners, or slave auctioneers, just as there are no good prosecutors.” This belief is rooted in the fact that the system was created based on white supremacy—police started as slave patrols. The first formal slave patrol was created in the Carolina colonies in 1704. During the Civil War, the military became the primary form of law enforcement in the South, but during Reconstruction, many local sheriffs continued the trend by enforcing segregation and the disenfranchisement of freed slaves. New crimes were created to criminalize now freed slaves in the South.

While these factors are true, I see it differently. The system needs a massive overhaul to mirror that of Scandinavian countries. Rehabilitation and restoration need to be placed front and center, as opposed to solely punishment. Treatment for addiction and mental health needs to be properly funded, much like the attention given to the opioid crisis. If there is no system in place—who will assure that those among us who prey on the weak or the “different” will face justice? Someone must do that work. The question is how to do so fairly and effectively.

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If you’re not seated at the table, you are on the menu. If there are no prosecutors of color in an office, you can rest assured that injustices will happen. This may be a result of explicit racism or implicit bias. We must be at the table to mitigate the damage that has been done in the past and help create a new criminal justice system that is fair.

Let’s examine some reforms she made. Before Florida State Attorney Aramis Ayala and her fight with the Florida governor over the death penalty, there was Kamala Harris. Then-District Attorney Harris campaigned on an anti-death penalty platform. She refused to seek the death penalty in 2004 for a defendant who shot and killed a police officer. While the decision was supported by many in San Francisco, it earned her the ire of law enforcement.

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There have been other critiques of Sen. Harris’ performance as San Francisco district attorney. One criticism includes not turning over evidence of a police laboratory technician who had a criminal history and was stealing drugs from the police crime lab. Harris’ office stated that she was not aware of the technician’s past. Typically, prosecutors do not run regular background checks on people employed in the criminal justice system. The burden was on the police department that hired the technician to reveal that a problem has arisen (especially if the crime did not occur in the DA’s jurisdiction). Regardless, she dismissed more than 600 drug cases once the scandal broke.

Sen. Harris did create programming that was beneficial to the community, including the “Back on Track” program designed to help nonviolent first-time drug offenders and prevent recidivism; she also created the first statewide implicit bias training for law enforcement personnel.

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I’m not here to defend Sen. Harris’ positions on cases–not because I think she was right or wrong, but I know firsthand that there is often more to the story. There are nuances or issues behind the scenes that may cause unintended consequences for the victim and defendant alike–these aspects must be weighed in order to attain justice. I couldn’t judge her without hearing the full story. While professor Lara Bazelon, in a New York Times op-ed, took issue with a litany of occurrences during Harris’ tenure, I approach her history with open-mindedness as well as caution. People grow and evolve; the decisions one makes five or 10 years ago may be very different than the ones they make today.

Regardless of where you land on Kamala Harris, one thing is for sure—we cannot afford four more years of a president whose many policies are unconstitutional and who has made it clear that he supports the white supremacist agenda–evidenced from his reluctance to condemn white supremacists, support of police brutality and by pursuing anti-immigrant policies that disproportionately affect black and brown people.

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To paraphrase Tracey Meares, “Policing (and prosecution) is no different from clean water, good street lighting, so on, and you wouldn’t ask people to give that up, just because it’s poorly done. The argument is not getting rid of it, it’s fixing it so it works in their favor.”

We need to engage in the system, working together to fix it so that it works in favor of real justice for all.

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Melba Pearson is the deputy director of the ACLU of Florida. She was a homicide prosecutor in Miami, Fla., for close to two decades. Follow her on Twitter. 

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