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November 2, 2014

Interesting review of the (too cautious?) work of California's Attorney General

Images (1)The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional.  Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.…  [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands.  "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview.  She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy.  She also has created units to focus on cyber-crime and cyber-privacy.  In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights.  In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed.  He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law.  If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court.  If she decided against an appeal, the death penalty in California would probably end.  "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division.  Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris.  "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

November 2, 2014 at 07:19 PM | Permalink


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I support her appointment as AG. I want to see Michelle beat Barack's ass.

Posted by: Supremacy Claus | Nov 2, 2014 7:48:07 PM

FWIW, I tend to agree with her that the reasoning of the opinion striking down the death penalty creates perverse incentives that will result in less due process. I don't necessarily think that's why she appealed it, but I do think that's the case. She can't use the "I'll defend any law" excuse after Prop 8. She could have used a "I'll defend any law that's Constitutional" justification, but that would be a bolder statement, which is obviously not what she really wants.

However, in a state like California, any decision would piss off about half the voting population. I'm less concerned about appealing the decision than I am about appointing a strong proponent of the death penalty to the criminal division.

Posted by: Erik M | Nov 3, 2014 6:59:09 AM

As with Erik M., I can see how the ruling below can be used in an anti-defendant fashion. The death penalty decision has some shades of Justice White's concurrence in Furman v. Georgia -- fixing it in a way that might satisfy its terms might for one thing lead to more people executed.

That KS, this blog's general go to conservative voice, says "hasn't done anything really bad" is not a bad sort of compliment -- when a conservative says a liberal public figure follows the "first do no harm" principle, someone else might be tad uncomfortable. But, still ...

Posted by: Joe | Nov 3, 2014 8:57:13 AM

Erik M., I definitely agree that the most concerning thing in this article regarding the administration of criminal justice is the appointment of the head of the criminal division. The career attorney who is the head of day-to-day decision making in the criminal division has enormous influence and effectively sets policy on all sorts of issues that pass below the media radar. And if that person is a go-to-the-mat, defend-every-conviction, concede-nothing type, it can make it impossible to engage in reasonable discussions with the office. I've seen this dynamic in at least two states and my understanding is there has been something of this in parts of DOJ at the federal level. I can think of two specific innocence cases where the evidence was compelling and the AG and non-career staff seemed inclined to agree that there had been a mistake, but they were not willing to overrule the career attorney due to intra-office politics. In both cases, the client spent more unnecessary years in prison until finally being released when the State lost in court.

Posted by: anon | Nov 3, 2014 11:33:31 AM

Not bad for someone whose pillow talk got her far in politics.

Posted by: federalist | Nov 4, 2014 2:37:30 AM

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