If Kamala Harris holds on in the race for attorney general — she held a slight lead at press time Wednesday — California voters will have elected a reformer and an innovator as their top cop. Curiously, they also elected the one person who could stand in her way: her immediate predecessor, Governor-elect Jerry Brown.
Harris became a hero in the prison-reform movement during her tenure as San Francisco district attorney. She launched programs that targeted truancy and recidivism. She wrote a book, Smart on Crime, that tried to move the debate beyond the framing of "tough on crime" versus "soft on crime."
Brown, by contrast, has fought efforts to reduce prison overcrowding over the last four years, and has made few friends in the prison-reform movement.
And it is Brown and the legislature, not Harris, who will have the greatest responsibility for dealing with overcrowding, recidivism and re-entry programs — all the issues closest to Harris' heart and at the center of her book.
While Harris could wield some influence, prison-reform experts say Brown's tenure as attorney general suggests he will be an obstacle to reform.
"Jerry Brown has been pretty litigious and not very constructive," says Don Specter, director of the Prison Law Office, which is suing the state. "Instead of acknowledging obvious problems and trying to help his clients fix them, he's been defending them in court, and without much success."
In a recent interview with the L.A. Weekly, Harris avoided a question about how her priorities as attorney general would differ from Brown's, perhaps not wanting to criticize a fellow Democratic candidate.
"The world right now is very different from what it was when Jerry Brown ran for and was elected attorney general," she said.
The issue of prison overcrowding, however, has been a battle throughout Brown's tenure.
Last year, a three-judge federal panel ordered the state to reduce its prison population by 40,000 inmates to remedy deficiencies in the prison health-care system. Brown and Gov. Arnold Schwarzenegger appealed that ruling to the U.S. Supreme Court. The court is scheduled to hear arguments at the end of the month.
In a debate during the attorney general's race, Harris said the state "has to comply" with the panel's ruling.
Harris would not be sworn in before the case goes to oral arguments, so it seems unlikely that she would be able to drop the appeal or reach some settlement. Moreover, the ultimate decision rests with the governor, and Brown has adamantly opposed the panel's ruling.
"The attorney general is the governor's lawyer," says Barry Krisberg, senior fellow at the Berkeley Center for Criminal Justice. "He or she can advise the governor. But if the governor says we're going to fight this, then we're going to fight this."
Brown has said he is trying to protect taxpayers during a dire fiscal emergency. But many prison reformers say that by rejecting efforts to settle the case, he has missed an opportunity to be a progressive voice on the issue.
"He was much more of a criminal justice reformer when he was out of office," says Marc Mauer, executive director of the Sentencing Project in Washington, D.C. "He's adopted more of the tough-on-crime approach in recent years. From a policy point of view, he's bought into the resistance to achieving any significant reduction in the prison population."
Candidates for attorney general tend to bill themselves as the state's "top cop." But in fact the job has much less to do with enforcing criminal law than it does with suing companies to protect consumers and the environment.
Harris likely would be liberal on those issues, but her passion from a career spent as a prosecutor has been criminal justice reform. Her new job wouldn't give her much of a portfolio in that area.
The most she could do would be to nudge policymakers in a progressive direction. Previous attorneys general such as Bill Lockyer and John Van de Kamp have used the influence of the office to convene conferences and publish reports on criminal justice reform.
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So far, however, neither Brown nor Harris has laid out a plan for reducing the prison population. Neither has supported a sentencing commission, which would review mandatory prison sentences. And some say Harris' successes in San Francisco wouldn't be scalable to the state level.
Harris' supporters, though, note that her long-standing engagement on criminal justice reform is a sign of hope.
"I don't know that anybody in the world would be so bold as to say it's 100 percent fixable," says San Francisco City Attorney Louise Renne. "But if there's anybody who can fix it and take a look at the problems from a systemic point of view, it would be Kamala."
While Harris can wield some influence, prison reform experts say that Brown's tenure as attorney general suggests he will be an obstacle to reform.