Kamala's Way Page 10
13 Attorney General Harris
On one of her first days in office, Attorney General Kamala Harris held a reception in the seventeenth-floor corner suite of the California Department of Justice headquarters in Sacramento. No cameras, no press, just her, some cookies and punch, and the staff. Veteran prosecutors, Department of Justice agents, custodians, and cafeteria workers came. It was the first time many of the staffers had been in the corner suite or shaken the hand of an attorney general. It was a hopeful, friendly, professional moment. For the first time in thirty years, the department would be led by a lawyer who had significant courtroom experience. She coached them on the pronunciation of her name, comma-la, and told them how honored she was to be holding an office once held by Earl Warren. She repeated the receptions in branch offices in San Diego, Los Angeles, and San Francisco.
Harris entered a California Department of Justice that had a staff of 4,996 people and a budget of $732 million. It was far larger than any law firm in the state, larger than any other state justice department, and second in size only to the U.S. Department of Justice. The state Department of Justice has one of the largest police forces in the country, and its forensic scientists operate one of the nation’s most sophisticated crime labs.
Old-time deputy attorneys general—DAGs as they’re called—are a skeptical bunch. They have seen attorneys general come and go, mostly going on to run for governor. Each successive attorney general seemed to care less about the office he held than the office he would later seek; he knew the office was a stepping-stone. Certainly, Harris had ambition. That could be good. But maybe she would be engaged.
She was and she wasn’t.
As attorney general, Harris showed herself to be both innovative and cautious. Depending on the issue, she was bold or she held her fire. She took strong stands or she stood mute on the important criminal justice issues of the day. On occasions when she might have led, she remained behind. In other instances, she was a trailblazer. As for her management style, veterans recall little personal direction from her. She was rarely seen at the department’s Sacramento headquarters, preferring to remain in the branch offices near her home in San Francisco and later in Los Angeles, the cities where the most voters and donors were located.
In the end, she would make her name in California and raise her profile nationally by taking stands against banks and for-profit colleges that bilked their students, and in defense of child victims of human traffickers. She used her prosecutorial discretion to file tough-to-win cases and she rejected what might have been high-profile cases. She did not, for example, prosecute alleged foreclosure law violations against OneWest Bank, then owned by Steve Mnuchin, who went on to become the Trump administration’s Treasury secretary. As detailed by the Intercept in 2017, her deputies recommended the prosecution in 2013. But Harris concluded that there was not enough evidence to warrant the resources it would take to bring the case. She left to her successor major unfinished cases.
As so often happens to politicians, events beyond her control forced her hand.
Her predecessor, the newly elected governor Jerry Brown, had been governor for two terms thirty years earlier and understood the intricacies of the state better than any living politician. In the best of times, Brown was tight with a buck. These were not the best of times. More than one million Californians lost their jobs in the Great Recession, and many more lost their homes and savings in the mortgage crisis. The statewide unemployment rate climbed to 12.6 percent, but it was much worse in parts of the Central Valley and rural expanses of the state. For the first time since 1938, Californians’ collective income actually dropped. Tax payments to Sacramento fell 24 percent. Unlike the federal government, which can print money, California, like other states, must balance its budget each year. The state faced a $27 billion budget shortfall in 2011. Brown and legislators had no choice but to cut spending and make structural changes to the state government to balance what was a $127 billion budget. Having come from the office that Harris was entering, Brown knew what it needed and what it could get by without. He trimmed $37 million from the Office of Attorney General’s budget in that first year and $75 million in the following year. The cuts would fall hardest on a public employee labor union that had endorsed Brown’s opponent in the 2010 election. Harris, caught off guard, had to scramble to save jobs and manage the cuts; there would be no money for expansion. Big ideas would have to wait, though they would come eventually.
The California Department of Justice includes the Division of Law Enforcement, with agents who combat major crime, organized crime, transnational gangs, and major drug rings. The department’s attorneys are responsible for defending consumer rights, protecting the environment, and enforcing antitrust law. Much of the department’s work is workaday. Deputies defend the state against lawsuits and provide counsel to myriad boards and commissions. Criminal division deputies defend convictions secured by county district attorneys in state and federal courts. An elite group of veterans defended death penalty judgments.
Dane Gillette had worked in the office for almost four decades, moving from line deputy to coordinator of death penalty cases for the entire office to chief of the criminal division. Raised primarily in the Central Valley cities of Fresno and Madera, Gillette was the Republican son of Republican parents and grandparents, though he changed his registration to “no party preference” after becoming disenchanted with the GOP during Trump’s presidency. As death penalty coordinator, Gillette oversaw each of the thirteen executions carried out between 1992 and 2006 in California. Harris’s view of capital punishment was well known. But Gillette never felt that she tried to interfere on a death penalty case.
“She understood the issues,” he said. “Sometimes, if she didn’t understand it as well, she would ask questions. You could talk the talk with her.”
Harris could be tough on her staff, abrasive and brusque. She also could be slow to make policy calls. In December 2013, Gillette was seeking her approval to file a petition seeking U.S. Supreme Court review of a case raising the issue of whether police improperly interrogated a murder suspect, after he initially had invoked his right against self-incrimination. The appellate court had tossed out the confession. The deadline to appeal was approaching. Figuring Harris would agree with him, and having not heard from her, he filed the petition. She called him at home shortly before Christmas, as she was preparing a holiday dinner, and told him she disagreed with his call and would not have appealed the decision. Chastened, he offered to resign. She brushed off his offer but asked that it never happen again. With a wish of good holiday cheer, she said her goodbye. One-on-one, she was at her best, he thought.
When Gillette retired the following year, Harris surprised him by coming to his send-off dinner, lingering at his table and talking with his wife and kids. It was an act of graciousness not soon forgotten.
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One of the California Justice Department’s busiest units is the one that defends the state’s massive, thirty-four-institution prison system. Lawyers for prisoners had been suing the state over conditions in the prisons for decades. Federal courts consistently were siding with prisoners against the state. As attorney general, Jerry Brown had fought the cases. But the court losses, coupled with the financial crisis and a prison system that cost the state $10 billion a year and rising, were forcing action. In May 2011, five months after Harris and Brown took their new offices, the U.S. Supreme Court in a 5–4 decision concluded that California prisons violated constitutional protections against cruel and unusual punishment. The prisons housed 173,000 prisoners at their most crowded, twice the number of inmates they were designed to hold.
The decision was written by Justice Anthony Kennedy, the one Californian on the court and an appointee of President Reagan. At one prison, Kennedy wrote, fifty-four men shared a single toilet. At another prison, an incarcerated man complained of untreated pain for seventeen months before finally succumbing to testicular cancer. A psychiatric expert reported
observing an inmate who had been held in a cage for nearly twenty-four hours, standing in a pool of his own urine, nearly catatonic. Prison officials had no other place to put him.
“As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty,” Kennedy wrote. “Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”
It was among the most important decisions ever rendered on the subject of punishment and incarceration, and it had far-reaching implications for California. The state led the nation in mass incarceration. It built twenty prisons in a twenty-year span, and the number of prisoners quintupled in that period to 173,000. Now that the state had lost before the highest court in the land, California would need to reverse itself. Brown was pushing legislators to realign the criminal justice system so that far fewer people went to prison and to institute an array of changes that would reduce the prison population to 120,000. It was Brown’s push, not Harris’s. The new attorney general deferred to the governor on the fundamental issue of incarceration.
Brown was getting some much-needed outside help: David W. Mills, a wealthy investor, civil libertarian, and Stanford Law School professor, and New York billionaire George Soros, a Holocaust survivor from Hungary who had advocated for an array of measures to reduce prison population together spent $1 million to place a measure on the 2012 ballot that would soften the hardest edges of California’s three-strikes sentencing law. Their campaign strategists, Ace Smith, Sean Clegg, and Dan Newman, were the same ones who managed Harris’s winning race for attorney general.
Under the initiative, Proposition 36, repeat felons no longer would be sent to prison for twenty-five years to life for drug or property crimes, such as shoplifting. Instead, the crime would have to be violent or serious. About three thousand people serving life sentences under the three-strikes law would gain the right to petition the courts to be released.
They were people like Shane Taylor, a sometimes homeless drug user from Tulare County, a Republican part of the Central Valley represented by Congressman Devin Nunes. Taylor’s past crimes included convictions for two burglaries when he was a teenager and stealing a checkbook to buy a pizza. One day in 1996, the former pizza thief was drinking beer with friends at a reservoir, Lake Success, outside the small town of Porterville, when police pulled up, searched him, and found 0.14 grams of methamphetamine, an amount equal in size to a tenth of a sugar packet. Superior court judge Howard Broadman, following the letter of the law, sentenced Taylor to twenty-five years to life for possession of the tiny amount of meth. Broadman wasn’t one to second-guess himself. But the sentence weighed on him.
“Shane Taylor was a mistake,” Judge Broadman said.
Taylor became one of many exhibits in the campaign to soften the nation’s harshest three-strikes law. Another was the repeat felon who got a twenty-five-to-life sentence for stealing a pair of gloves from a Home Depot. A third was a mentally ill man who was sentenced to twenty-five to life for possessing a stolen computer worth about $200. There were thousands more like them.
Given Harris’s self-portrayal as a criminal justice reformer, voters might have benefited from the California attorney general’s counsel. Los Angeles County District Attorney Cooley endorsed the measure. Harris, however, took no stand. Her stated reasoning was that her deputies wrote the blurb summarizing the measure for voters and that her deputies might have to defend the measure in court. She argued that if she were to take a stand for or against ballot measures, she would put her deputies and her office in an awkward position as they carried out their official duties. It was a position that she took on other ballot measures throughout her time as attorney general.
But there are many political reasons to not take stands on ballot measures. What if a third striker got out and committed a horrible crime? That would make for an attack ad in some future campaign. It was much easier to duck the issue. Some of Harris’s predecessors found ways to balance the needs of being lawyerly and politically engaged. For instance, Dan Lungren, the attorney general in 1994, supported the original three-strikes initiative and built his 1994 reelection campaign around his endorsement of the initiative, well aware that his deputies would be defending the new law in the appellate courts after it passed. Unlike Harris, Lungren saw no conflict between his official duties defending a law in court and his role as a political leader responsible for letting voters know where he stood on a measure of significant public importance.
The measure to roll back the three-strikes law passed in a landslide, receiving almost 70 percent of the vote. Since its passage, about three thousand third strikers have been released from prison. Relatively few have returned, and none for homicide. One who didn’t return was Shane Taylor.
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Harris failed to take stands on several other criminal justice initiatives during her tenure, including one promoted by Gavin Newsom when he was California’s lieutenant governor, to reduce sentences for drug offenses and property crimes, and one by Governor Jerry Brown, giving hope for parole to felons serving long sentences if they follow prison rules by taking classes and learning a trade. Harris, the lifelong opponent of capital punishment, also declined to take stands on initiatives to abolish the death penalty during her time as attorney general in 2012 and 2016. They failed by relatively narrow margins. Nor did she take a stand on a third measure, one sold to voters in 2016 as a way to hasten executions. Dane Gillette, the retired chief of the criminal division, cowrote the initiative. It passed, though the promised executions never occurred. Like all death penalty laws, the measure to speed up executions became entangled in litigation. Over the decades, Californians repeatedly voted for the death penalty. The state has by far the largest number of condemned inmates of any in the Union. But because of court decisions and opposition from Democrats who control state politics, California probably will never carry out another execution.
14 The Relic
Capital punishment was a relic when Kamala Harris took office as attorney general, not the sort of issue that a self-styled progressive prosecutor who was smart on crime would want to dwell on. But during the 2010 campaign, Harris promised to enforce the law as it stood, despite her opposition to the death penalty. That meant she would allow her deputies to do their jobs, which was to defend death judgments in state and federal courts. It was a futile effort.
The death chamber at San Quentin State Prison had been inactive for nearly five years when Attorney General Harris took office in January 2011. The prison sits on a slight rise on the north shore of San Francisco Bay. It had grown into a small, walled-off city of four thousand people since it opened in 1852. Within its walls, nearly seven hundred condemned men live in three high-security sections, built in 1913, 1930, and 1934. Collectively, they’re known as death row. The prisoners would have multimillion-dollar views if they had windows that faced the outside world. They don’t. No fewer than 59 of the men were sixty or older in 2011, and 145 men had died of natural causes, suicide, homicide, or drug overdoses. Most of the condemned men reside in East Block, a huge warehouselike building. Inside is a structure five tiers high, sixty cells to a tier. Cells are not quite fifty square feet. There’s a Mickey Mouse clock on the wall of the guards’ station, above a sign that reads THE HAPPIEST PLACE ON EARTH.
Capital punishment was dysfunctional in California long before Harris became attorney general. More than nine hundred men and women had been sentenced to death since capital punishment was reinstated in 1977. Some had their sentences overturned. A few walked out free. For most, appeals lasted for decades, and the result was that only thirteen men had been executed at San Quentin between 1992 and 2006.
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In 2006, Michael Morales was on the verge of being executed for the 1981 rape and murder of a Lodi high school senior, Terri Winchell, when his
lawyers persuaded U.S. District Judge Jeremy Fogel, an appointee of President Clinton, that the state’s lethal combination of drugs could cause undo pain, in violation of the Eighth Amendment prohibition against cruel and unusual punishment. Under the protocol established by the California Department of Corrections and Rehabilitation, prison officers were supposed to knock out the condemned inmate by injecting sodium thiopental, a fast-acting barbiturate. Then pancuronium bromide was to be pumped into the person’s veins, inducing paralysis. Finally, potassium chloride was to be administered, which caused death by cardiac arrest.
Morales’s lawyers presented evidence suggesting insufficient amounts of the barbiturate were used in past executions. If the inmates were not in a deep sleep, they could have suffered excessive pain when the other drugs were injected. Exactly what happened during each execution was not clear because record keeping was shoddy. But one man, who was sentenced to death after ordering murders while he was in prison, had to be injected twice with potassium chloride. Robert Lee Massie, the last San Franciscan executed, might have been conscious and felt pain when the second and third drugs were administered in March 2001, records suggested.
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As the lethal injection case dragged on, U.S. District Judge Cormac J. Carney, an appointee of President George W. Bush, considered the case of Ernest Dewayne Jones. Jones had been on death row for nineteen years by 2014, having been sentenced to death for the 1992 rape and murder of his girlfriend’s mother. Carney had seen enough. In a twenty-nine-page order issued in 2014, he detailed the many steps entailed in the death penalty system, tracing a typical case through state and federal courts and back again. He noted how few condemned inmates were executed and how many had died of other causes. At the time, the state would have to carry out more than one execution a week for fourteen years in order to empty death row. And California had no approved execution protocol.