Portside

The idea of the “progressive prosecutor” has gained popularity with the 2017 election of civil rights attorney Larry Krasner as Philadelphia district attorney, the 2018 election of Rachael Rollins as Suffolk County (Boston) district attorney, and the upcoming 2019 district attorney race in Queens, New York, in which all seven candidates are touting criminal justice reform rather than “law and order.” This trend, a result of decades of organizing that has increased the popularity of criminal justice reform, has former prosecutors rewriting their own histories to rebrand themselves as progressives and obscure the reality that, in the not-too-distant past, they upheld draconian policies and did their utmost to not only put people in prison, but keep them there.

First, remember that the job of prosecutors is to prosecute—meaning that they charge people in criminal court and do their utmost to send them to prison. Attorneys who want to defend people’s civil and personal liberties typically take jobs as defense or civil rights attorneys. But even prosecutors can act in a way that doesn’t send people to prison—they have the discretion in choosing which charges to bring against a person—or whether to bring any charges at all.

Given prosecutors’ tremendous institutional powers, we need to dig beneath their rhetoric to examine the actions of these supposedly progressive candidates.

Before she became a Democratic senator for California—and, now, presidential hopeful—Kamala Harris served as California’s attorney general and San Francisco’s district attorney. Both jobs revolve around prosecuting and locking people up, but Harris went the extra mile. As district attorney, she threatened to prosecute parents whose children skipped school and, as state attorney general, drafted a 2010 law allowing police to file charges against parents for their children’s truancy.

In a 2010 speech, Harris is seen laughing about sending her office’s homicide and gang prosecutors to schools to meet with the families of truant students. “When you go over there, look really mean,” she remembered telling them.   

But now, with the Oval Office in her sights, she’s revised her motivations behind creating this program, which still exists today. In her 2019 memoir, she wrote, “Even today, others don’t appreciate the intention behind my approach; they assume that my motivation was to lock up parents, when of course that was never the goal. Our effort was designed to connect parents to resources that could help them get their kids back into school, where they belonged. We were trying to support parents, not punish them—and in the vast majority of cases, we succeeded.”

Harris also fought both individual and legislative efforts to free people from prison. As the state’s attorney general, Harris fought the federal court supervision of California’s prison system, as well as court-ordered parole programs, arguing that releasing prisoners early would eliminate an important labor source for the state, including wildfire firefighters who work for $1 a day.

Harris has branded herself as a proponent of women’s rights, but some of her actions say otherwise. In 2005, Kelly Savage, an abuse survivor sentenced to life without parole after her husband killed her son, filed a writ of habeas corpus to allow her to present expert testimony about domestic violence that had been missing from her 1998 trial. Keep in mind that the petition, even if granted, is not a get-out-of-jail-free card: If the court had approved her writ, Savage would have been able to present that testimony; it would not necessarily have meant that she would have walked out of prison. Harris could have chosen to do nothing and allowed the court to decide whether to grant Savage that opportunity. Instead, Harris filed motions two times opposing Savage’s petition, according to Savage’s lawyer.

As senator, Harris has been seen as a champion of LGBTQ rights, co-sponsoring the 2018 Census Equality Act, requiring the census include questions about gender identity and sexual orientation. She also co-sponsored the Equality Act and a bill prohibiting people accused of murder or violence from using gay or transgender panic as a defense. (In other words, a person can no longer justify their use of violence against another person because they were afraid of gay or trans people.) These actions have been lauded by larger LGBTQ organizations and media, which proclaim her to have a “strong Pro-LGBT record.”

But as attorney general, Harris also appealed a 2015 court decision granting sex reassignment surgery to Michelle-Lael Norsworthy, an incarcerated transgender woman, arguing that hormone therapy and counseling made surgery unnecessary. “Norsworthy has been treated for gender dysphoria for over 20 years, and there is no indication that her condition has somehow worsened to the point where she must obtain sex-reassignment surgery now rather than waiting until this case produces a final judgment on the merits,” Harris wrote.

Since announcing her presidential bid, Harris has revised her stance, stating that as attorney general, “I couldn’t fire my clients, and there were unfortunately situations that occurred where my clients took positions that were contrary to my beliefs.” But that’s not exactly true. Just as district attorneys have the discretion to decide whether to prosecute, as attorney general, she had the power not to defend a state law that she found problematic. And she did at another point, declining to defend the state’s ban on equal marriage rights.

Harris now says that she supports the decriminalization of sex work, a stance that is increasing in popularity among (some) progressive politicians. But she opposed a 2008 ballot measure (brought by sex workers) to end prostitution arrests in San Francisco. She also attempted to shut down Backpage.com, a classifieds website that included listings for sex work, which allowed sex workers to screen their clients before meeting them. As attorney general, she sought to prosecute the site’s owners in 2016, and as senator in 2018, she helped craft Stop Enabling Child Traffickers Act/Allow States and Victims to Fight Online Sex Trafficking Act (SESTA/FOSTA), which make it a federal crime to operate a website “with the intent to promote and facilitate the prostitution of another person” and allow state attorneys to bring civil actions against website operators.

Some might argue that Harris’ positions were simply a reflection of different times. While criminal justice reform was as popular as it is today, it had certainly become an increasingly discussed bipartisan issue by the 2000s. Again, Harris could have used her discretion as she did with the gay marriage ban and simply decided not to oppose efforts like Kelly Savage’s writ, Norworthy’s surgery or increased parole efforts.

Harris isn’t the only former prosecutor to rebrand herself as a progressive as she seeks political office. In Chicago, former chair of Chicago Police Board Lori Lightfoot has also recast herself. Her website touts her as an “advocate and reform expert,” and she has advertised herself as the candidate running against “machine” politics. She brands herself as a progressive “that listens to and prioritizes the needs of low-income and middle-class families.” If elected in Chicago’s April 2 runoff election, she would be the city’s first Black woman mayor and first openly gay mayor.

Like Harris, Lightfoot began her public career as a prosecutor, but this time a federal one for the Northern District of Illinois. Unlike Harris, her career as a prosecutor was not distinguished by trailblazing law-and-order reforms. But she also did not distinguish herself as a progressive during her time as a prosecutor. As she told The Chicago Reader, “I was a federal prosecutor enforcing existing federal law.” Most prisoners' rights activists would argue that any federal prosecutor who upholds the status quo is, by definition, locking a lot of people up and perpetrating injustice.

Recent comments of hers suggest that she continues to identify with law enforcement in a city fraught with police abuse. On March 13, the same day that the City Council approved Emanuel’s controversial police training academy, Lori Lightfoot announced that she would also turn 38 of Chicago’s shuttered public schools into police training academies. But this isn’t the first time that she’s caused outrage with her stance on the city’s police force.

In one of her early campaign ads, Lightfoot states that she’s held “police accountable.” In reality, her record is mixed. In 2002, then-mayor Daley appointed her head of the police department’s Office of Professional Standards. Before Lightfoot became head, OPS investigators had concluded that the officer, Phyllis Clinkscales, lied about her fatal shooting of 17-year-old Robert Washington. Lightfoot’s predecessor, Callie Baired, approved firing the officer for filing a false report. Under pressure from the police superintendent, however, Baird downgraded her recommendation to a suspension. One year later, when Lightfoot was appointed, she reversed the investigators’ findings and ruled the shooting justified though she upheld the suspension.

In 2015, then-mayor Rahm Emanuel appointed her head of the city’s police board, which was established to engage the community around certain police misconduct and decide police disciplinary cases. According to Lightfoot, her three years on the police board profoundly affected her. “Listening to the daughters of Bettie Jones come before the Police Board at a time when they were still deeply grieving the loss of their mother. Rekia Boyd’s brother was a frequent presence. … It’s impossible not to be moved by that,” she told the Chicago Sun-Times.

But when Rekia Boyd’s brother Martinez Sutton gave a heartfelt testimony at a police board hearing on August 21, 2015, demanding the firing of Dante Servin, the officer who had shot and killed his sister, Lightfoot interrupted his heartfelt pleas. “I know you feel a lot of emotion,” she is heard saying before being drowned out by organizers, wearing yellow t-shirts emblazoned with “Fire Police Officer Dante Servin.” Less than seven minutes later, Lightfoot and the other board members filed out of the room through a back door without speaking with or meeting any of the organizers. At another hearing, organizers noted that, instead of offering condolences for the murder of their family members, Lightfoot and her colleagues reprimanded organizers for their language and threatened to have them removed from the room by force.

In December 2015, Emanuel also appointed Lightfoot to head the Police Accountability Task Force. Four months later, in April 2016, the task force released a report sharply criticizing the Chicago Police Department for its “history of racial disparity and discrimination” and recommending dozens of changes.

Its findings were echoed in a 2017 Department of Justice report noting that police officers routinely engage racially discriminatory conduct as well as use of violence, including deadly violence and that the department often fails to hold them accountable. Lightfoot has taken credit for these findings, telling the Chicago Tribune that “there’s a straight line” leading from the task force to the Justice Department report and subsequent consent decree.

In a recent campaign commercial, Lightfoot called for “an independent, accountable City Hall that serves the people, not the political machine.” But even in private practice, Lightfoot has defended the political machine. In 2012, she became the lead attorney defending the city against a police neglect lawsuit. Six years earlier, Christina Eilman, a 21-year-old former UCLA student, was arrested during a bipolar episode, held overnight by the police, and, despite a police supervisor’s order that she be brought to a hospital for psychiatric evaluation, released with no further assistance or resources. She was abducted and sexually assaulted, then was pushed or fell from the seventh-floor window of a high-rise, causing permanent brain damage and other injuries. (In 2013, the city settled with Eilman’s family for $22.5 million.) Lightfoot also defended the Chicago Police Department in a lawsuit by four men whose 2006 beating by six off-duty police officers was captured by security footage. While four of the six officers were found to be at fault, the department itself was cleared, thanks to Lightfoot.

Given that all of this information is available to anyone who cares to dig past the soundbites, why then are Harris and Lightfoot lauded as progressives? For that, we might look at Sally Yates, former federal prosecutor and deputy attorney general under Obama, for how a single act of resistance can recast a person’s legacy. 

In January 2017, as acting attorney general to the newly-inaugurated Donald Trump, she ordered the Department of Justice not to defend his Executive Order 13769 (popularly known as the Muslim Ban). She was dismissed and returned to private practice. In subsequent months, her time at the Department of Justice was honored by the NAACP and Georgia state senators.   

But her time at the Department of Justice was marked by efforts to keep people in prison.

As deputy attorney general, she was responsible for making final recommendations on the petitions flooding the Oval Office in response to Obama’s clemency initiative. Yates dashed thousands of hopes, approving only 1,715 of the 33,149 commutation petitions for the president’s signature while denying nearly 19,000 others. Pardon attorney Deborah Leff resigned in protest, charging that Yates not only reversed many of her recommendations, but also blocked her access to the White House so that Obama remained unaware of her opinions regarding the merits of many cases.

One of those cases was that of Alice Marie Johnson, an Alabama mother who had been sentenced to life in prison for passing on phone messages for drug deals. In 1993, she and 15 others were arrested by federal authorities. Her co-defendants, facing lengthy prison sentences, testified against her. Johnson was convicted and sentenced to life in prison. During Obama’s presidency, Johnson was denied clemency three times. The last time was when Yates was deputy attorney general. No explanation was given about denials so Johnson, like thousands of others, was left in the dark about how to proceed. (After 21.5 years in prison, Johnson, by then a 63-year-old grandmother, was granted clemency by Trump in June 2018.)    

Yates also opposed retroactive sentencing reductions for federal drug offenses under a Sentencing Commission reform known as “drugs minus two” that would bring past sentences in line with current (less harsh) law.

But with that singular act of resistance to Trump’s Muslim Ban, Yates’ past opposition to criminal justice reform seems to have been forgotten. This rewriting happens because few keep track of issues like clemency denials for Black, Brown and poor people. That’s not to say that no one does: CAN-DO Clemency, an organization founded by former presidential clemency recipients, has long kept track of these dismaying statistics. But the larger organizations and media outlets have not, leaving a void in which her legacy can be rewritten.

The same holds true for Lightfoot and Harris. While grassroots groups have continually called them out for their punitive practices and regressive actions, their criticisms have not been echoed by larger, more well-funded organizations. Criminal justice reform may now be in vogue, but the larger public still remains indifferent to the details about the mass prosecutions, imprisonment and police violence against Black, brown and marginalized communities. But if we want elected officials who are truly progressive, we need to look past their rhetoric and examine what they really did for the most marginalized and criminalized communities.

Reprinted with permission from In These Times. All rights reserved.

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Victoria Law is a freelance journalist focusing on women’s incarceration. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women (2012) and co-author of forthcoming Your Home Is Your Prison (New Press).

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