Opinion | The Case Kamala Harris Can’t Stop Prosecuting

As Kamala Harris seeks to become the first career prosecutor to win the presidency, she has faced persistent questions: What kind of prosecutor was she? And how would that background shape her presidency? Instead of fitting into the familiar categories, she has been campaigning as another first: the first white-collar-crime prosecutor in chief. Instead of policies to reverse mass incarceration, the signature objective of progressive prosecutors, her approach seems to be for more equal incarceration, a new twist on an old populist economic theme.

Ms. Harris’s campaign for president is translating — and maybe transforming — the tough-on-crime prosecutor archetype as the economy overshadows crime as the issue of the 2024 election. She is not only campaigning against Donald Trump as a white-collar criminal. She is also waging a populist campaign against white-collar crime and fraud, in contrast with Mr. Trump’s populism, which she describes as yet another kind of fraud. Her line about knowing “Donald Trump’s type” emphasizes America’s “fraudsters,” “cheaters” and “predators” of all kinds, and she pivots to her law enforcement record against banks, corporate fraud and white-collar crime as a prosecutor’s tools to address pocketbook issues.

Ms. Harris is leveling the economic playing field to achieve populist ends through America’s quintessentially conservative means: as a tough-on-crime prosecutor enforcing the law, implicitly threatening to lock “them” up, while telling crowds to stop the “lock him up” chants.

These themes were clearer in August, before and during the Democratic National Convention, but emphasized less recently. Undecided voters are still asking to know more about her and her policy specifics. As polls show that voters identify economic issues and inflation as the most important and Ms. Harris trails among voters who focus on the economy, she may need to return to the theme of law enforcement to promote economic opportunity and affordability.

There seems to be a lot of confusion about whether Ms. Harris fits into one of two categories of prosecutor: tough or progressive. Over her career as a prosecutor and as the California attorney general, Ms. Harris sometimes leaned into the labels “law and order” (especially in her 2003 race for San Francisco district attorney) and “progressive” (especially in 2019 and in some passages in her book “The Truths We Hold”). Some commentators have said that she has been “shifting” between the two, “repositioning” and “repackaging” herself, calling her “a political chameleon” or even “contradictory” on criminal justice.

But she has been consistently pragmatic and nonideological. A prosecutor’s approach should vary case by case and include an open-minded mix of policies.

Rather than highlighting specific cases, a better way to answer this question is to look at how she addresses the most definitive issue for American criminal justice: mass incarceration. Ms. Harris’s approach to this crucial debate offers us strong clues about how she would govern as president.

Mass incarceration surged in the tough-on-crime era in which Ms. Harris first served as prosecutor, district attorney and California attorney general. And elected prosecutors, in a unique position in America, contribute to mass incarceration.

In “Locked In,” the Fordham law school professor and economist John Pfaff showed that the most common explanations for mass incarceration, such as mandatory minimum sentencing and three-strikes-and-you’re-out policies, play only marginal roles. Instead, Mr. Pfaff found a remarkable shift in the 1990s through the early 2000s: Even though the number of arrests was declining, the likelihood of a prosecutor charging an arrestee with a felony doubled.

My historical research identifies the emergence of the prosecutor politician as a distinctly modern American phenomenon and a cause of mass incarceration. More politically ambitious lawyers become steppingstone prosecutors, cultivating tough-on-crime reputations for their future campaigns. The surest way to lose re-election (or lose an election for higher office) is to fail to charge someone who becomes the next Willie Horton. Political hindsight is 20/20 and unforgiving.

After reading Ms. Harris’s books, watching many of her speeches and studying what she did in office, it is clear that she has carefully and deliberately navigated a more pragmatic, incremental approach.

Unlike progressive prosecutors, Ms. Harris has not talked or written much about mass incarceration. She consistently has defended long sentences — even those she calls “tough” and “harsh” — for violent crimes, and she has taken other stances that have made liberals and progressives uncomfortable. As The Times reported this week about her 12 years as an elected prosecutor, Ms. Harris was “consistent”: She “seemed particularly focused on protecting the most vulnerable victims by cracking down on violent offenders while seeking alternatives to incarceration for less serious criminals.” Considering the long sentences for violent offenders, this approach would not significantly reduce mass incarceration.

In 2019, Ms. Harris offered a criminal justice reform plan that addressed mass incarceration with positive but only incremental steps. She has opposed mandatory minimum sentences, but as Mr. Pfaff has shown, such reform would have only minor impact.

Ms. Harris calls her approach “smart on crime,” the title of her 2009 book, to distinguish herself from both the “tough” and the “progressive.” In practice, she is tough but smart on crime, and smart on electoral political strategy.

However, Ms. Harris’s campaign isn’t a reboot of Richard Nixon or Ronald Reagan on law and order, or of George H.W. Bush’s demonization of Willie Horton and pro-rehabilitation furloughs, or of Bill Clinton’s tough-on-crime governorship and his Crime Bill prison expansionism, or of George W. Bush’s Texas hold ’em in prison and on death row.

“Smart on crime” is not just a new spin on old tough-on-crime rhetoric; it is also a rejection of such simplistic blunt-force policies. Ms. Harris has taken difficult anti-death-penalty stances while still deferring to the California law on the books. She is serious about the public health model of crime, focused on prevention, rehabilitation and re-entry.

The reality is that presidents can’t undo mass incarceration, even if they try: As of 2022, roughly 13 percent of people in American prisons were at the federal level, and states generally ignore federal incentives for reform. Mass incarceration starts and ends with the states.

On the other hand, federal law much more robustly covers white-collar crime, and this is where Ms. Harris is signaling a bolder smart-on-crime role as a prosecutor in chief. These lines from Ms. Harris’s stump speech spark the loudest cheers: “I took on perpetrators of all kinds: Predators who abused women. Fraudsters who ripped off consumers. Cheaters who broke the rules for their own gain. So hear me when I say: I know Donald Trump’s type.”

If she wins, Ms. Harris would not only be the first prosecutor president. Her speeches are a reminder that she could also be the first president prosecutor — the first president to preside over the federal prosecution of a former president. Ms. Harris is making Mr. Trump’s crimes a symbol of a broader problem in the American economy: a rigged system in which the rich play by a different set of rules.

Ms. Harris has turned her smart-on-crime campaign into one that’s smart and tough on white-collar crime, which allows for two pivots. First, she can pivot away from the criminal justice questions that have no winning answers. Sadly, no answer on mass incarceration is a safe answer in 2024.

The second pivot is to make her prosecutorial experience the top issue of 2024. While crime is down since 2021, inflation has gone up. It is smart politics for Ms. Harris to differentiate herself from President Biden’s approach, and one way to do that is to break through the bipartisan reluctance to prosecute white-collar crime. As Jesse Eisinger documented, federal prosecutors in administrations of both parties have been too cautious to hold Wall Street, banks and corporations accountable — partly because of the political risks in taking them on.

Her campaign is prosecuting a political case, not a criminal case, against Mr. Trump. She is turning him into a symbol of what is unfair and broken about the American economy, and she highlights her prosecutorial ability and credibility to fix it. Ms. Harris may be previewing how she’d govern differently from the more pro-Wall Street presidents from both parties who shied away from enforcing these laws.

A President Harris might not reverse mass incarceration, and putting white-collar criminals in jail is the opposite of the decarceration movement. But being tougher on so-called frauds, cheaters, and financial predators would at least make the criminal justice system a bit more equal. It might make American markets a bit more free and fair. And it might be one of the keys to winning the election.

Jed Handelsman Shugerman is a law professor at Boston University.

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