Tulsi Gabbard's Attack On Kamala Harris' Criminal Justice Record, Explained

During Wednesday night’s Democratic primary debate, Rep. Tulsi Gabbard went after Sen. Kamala Harris over her criminal justice record during her time serving as California’s attorney general and San Francisco’s district attorney. Gabbard came out swinging with examples of the former prosecutor’s past record on the death penalty, marijuana, and cash bail.

“There are too many examples to cite,” Gabbard said, “but she put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana. She blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. She kept people in prison beyond their sentences to use them as cheap labor for the state of California. And she fought to keep a bail system in place that impacts poor people in the worst kind of way.”

Harris, who has branded herself as a “progressive prosecutor,” defended herself by saying that she “significantly” reformed the California criminal justice system as attorney general. “I’m proud of that work,” she said, then cited her reentry program for former offenders. In an interview with Anderson Cooper after the debate, Harris said she expected to “take hits” on stage from others as a “top-tier candidate,” then took a dig at Gabbard — “especially when people are at 0% or 1% or whatever she might be at.” (The latest 2020 presidential primary polls have Harris coming in fourth place, while Gabbard has between 0% to 2% support.)

While Gabbard’s attack on Harris’ prosecutorial record was a strong knock against the California senator, it is worth dissecting how truthful the claims were in actuality.

Harris’ stance on marijuana legalization has changed throughout her career, and on stage Wednesday night she said that she wants to “not only decriminalize, but legalize marijuana in the United States.” She expressed opposition to legalizing weed in 2010 as the district attorney of San Francisco, saying that “drug-selling harms communities.”

According to PolitiFact, the claim that Harris put “over 1,500 people in jail for marijuana violations” comes from an article in The Free Beacon, a conservative news outlet, which says that “at least 1,560 people were sent to state prisons for marijuana-related offenses between 2011 and 2016,” while Harris was attorney general. However, the fact-checker clarified that as attorney general, Harris wouldn’t have been in charge of prosecuting marijuana cases, which are handled by lower-level state attorneys.

Gabbard's assertion that Harris laughed when asked whether she had ever smoked weed is likely a reference to The Breakfast Club interview Harris gave in February, in which she admitted she has smoked weed before. “I did inhale,” the presidential candidate laughed as she clarified that “it was a long time ago.”

According to PolitiFact, Gabbard's statement leaves out some key facts. The New York Times fact-checked the claim, related to the 1983 murder case against Kevin Cooper, a Black man on death row in California: "[Cooper was] convicted by a jury for a 1983 quadruple murder. Ms. Harris, as attorney general, did not allow new advanced DNA testing in his case, denying Mr. Cooper’s request. After The New York Times wrote about the case, Ms. Harris told Times columnist Nicholas Kristof that 'I feel awful about this' and called on the state to allow for such testing," encouraging California Gov. Gavin Newsom’s decision to order the testing, which he did earlier this year. The testing hasn't been completed, so whether it would exonerate Cooper remains a question.

After the debate, Harris' campaign told The Washington Post that Harris was not directly involved in denying Cooper's request in 2016. "Senator Harris ran an office of 5,000 people and takes responsibility for all the actions of the [California] Department of Justice during her tenure," according to the statement. "Most of the legal activity around this case occurred before her terms in office, but this specific request was made to and decided by lower-level attorneys."

Gabbard seemed to be referring to an incident in 2014, when Harris was California attorney general, when the state was accused of delaying the process of releasing non-violent offenders, who under the Supreme Court Brown v. Plata ruling were eligible for parole after serving half of their sentences, due to prison overcrowding. According to The Daily Beast, lawyers from Harris’ office denied the accusation made by the class action lawsuit, but also wrote in their response that “extending 2-for-1 credits to all minimum custody inmates at this time would severely impact fire camp participation — a dangerous outcome while California is in the middle of a difficult fire season and severe drought.” (As part of a prison labor program, inmates were commissioned to fight wildfires for roughly $2 a day.)

Later that year, Harris said to BuzzFeed News she had no knowledge of the argument made by the lawyers from her office. "I will be very candid with you, because I saw that article this morning, and I was shocked, and I'm looking into it to see if the way it was characterized in the paper is actually how it occurred in court," Harris said. "I was very troubled by what I read. I just need to find out what did we actually say in court."

As San Francisco district attorney, Harris did advocate for higher bail amounts for gun-related crimes, according to a CNN fact-check. Shortly after she was elected for the position in 2004, Harris spoke at an event and argued that San Francisco’s low bail amounts encouraged people to come to the city "to commit crimes because it's cheaper to do it." By the next month, San Francisco's Superior Court exponentially raised cash bail costs for gun-related arrests.

However, as senator, Harris has addressed the need for bail reform across the country, and introduced legislation to encourage states to reform or replace the practice of cash bail. "Too often, poor people sit in jail because they don’t have the money to pay bail, while someone with the same offense but money in their back pocket gets out. This is a serious injustice," she tweeted in February.