Kamala Harris - For California Attorney General 2010

Honorable Mario G. Olmos Law and Cultural Diversity Memorial Lecture at UC Berkeley's Center for Social Justice Symposium

 

The Mario G. Olmos Law and Cultural Diversity Memorial Lecture was established by family, friends and associates in memory of the late Judge Mario G. Olmos to honor his commitment to social justice. This annual lecture addresses issues of justice for people of diverse national, economic, racial and cultural backgrounds. Previous speakers have included Judge Thelton Henderson for the Northern District of California and Judge Sonia Sotomayor, U.S.Circuit Court of Appeals for the 2nd District.

I am so honored to speak here at Boalt Hall, particularly in my role as San Francisco District Attorney.

I grew up here in Berkeley, in a time marked by protest and the fight for civil rights. There was no better place to be than here, in a hotbed of community struggle. It was because of this struggle that I decided that I was going to be a prosecutor, to help give voice to the voiceless.

This is an important time for discussion about crime and safety and what we can or should be doing about it. I believe we have a real opportunity to look at old problems in new ways and make systemic changes.

First, we must examine and challenge some deeply held assumptions. For example, we must question the traditional debate on crime that has been mired in whether we are soft or tough on crime. We must also examine whether false choices are being presented to the public about their safety. Further, we must challenge assumptions about who is impacted by crime. According to a study by the California Attorney General, African-Americans made up seven percent of California’s population in 2003, but accounted for 30 percent of its homicide victims. Latinos comprised 32 percent of the population, but almost 45 percent of the homicide victims. In 2003, up to sixty percent of all homicide victims in California were under the age of 30.

At the same time, we must challenge the assumptions of voices from the right that are too often uni-dimensional, focused solely on lengthening prison sentences and increasing spending on policing and prisons. We must challenge long-standing institutional assumptions by law enforcement about how we define who is a victim and who is a perpetrator.

For example, youth who are called “teenage prostitutes” are, in fact, exploited, molested children in need of protection from law enforcement and social services to stop the cycle of abuse. The real perpetrators in these cases are not the children, but the pimps and the johns. In 2004, I sponsored legislation, AB 3042, to add longer prison terms for pimps and johns who target our youth. It was the first successful sentence enhancement enacted in California in a decade. This new law, now Penal Code section 675, is being used as a targeted tool for prosecutors throughout the state to deliver tough consequences to those who exploit our youth. The case of sexually exploited youth is one good example of how we, in law enforcement, must start to look at old problems in new ways.

But to make systemic change, we need to look at how we got to where we are today. So, let’s step back to take a look at the evolution of law enforcement and the role of the prosecutor.

In English Common Law, prosecutorial responsibilities belonged to private parties. People were supposed to prosecute on their own and at their own expense. This was a significant burden for a simple shopkeeper or a tenant farmer to bear.

As a departure from English Common Law, the idea of a public office to assume responsibility for prosecution was born in colonial America. The founding fathers recognized the fact that ordinary people had an interest in protecting their bodies from assault and their property from thieves. Thus a public office of prosecution was established.

The 19th century in this country was marked by a huge growth in population, in part because of massive immigration. Much of that growth occurred in large cities. The growing industrialization in this country produced a new economic order, and as a result, this increased urbanization produced communities that were fragmented along ethnic, religious and class lines. At the same time, there was an onset of political polarization resulting from differing views on slavery as well as significant class, cultural and religious instability. The combination of these factors frequently led to group violence. During this time period, the country also saw the birth of the “modern” newspaper that included bold headlines and photos. This increased attention to crime and punishment, coupled with the social instability of the time, led to calls for more order. As a result, we saw the rise of the modern police force in the late 1800s and early 1900s.

As this country entered the 20th century, crime remained a local and state concern until the aftermath of World War II, when it became a national political issue. At this time, progressive ideals about crime reduction still outweighed more reactive approaches. When Lyndon B. Johnson defeated law and order extremist Barry Goldwater in 1964, he called for a “war on poverty” and explicitly talked about the interdependency between poverty reduction and crime reduction. At that time, the crime prevention model, community corrections and traditional “cop on the beat” policing were the main approaches to crime.

Meanwhile, the fundamental role of the prosecutor was still that of a fighter for justice. For example, at a national level we created a civil rights division within the Justice Department through which the power of the prosecutor was used to enforce the Voting Rights Act and integration orders. The United States Supreme Court, under Chief Justice Earl Warren, instituted significant reform measures and broad interpretations of the 14th Amendment. Policing was regulated with rules about arrest, interrogation and searches, including the seminal Miranda decision.

In 1968 our country changed. We lost Robert Kennedy, martin Luther king, Jr. And Medgar Evers. The summer after Dr. King’s assassination, the war in Vietnam exploded and riots broke out in cities across our country. As a result of the popularity of television and the birth of local TV news, middle-class America watched people rioting on their television screens and they got scared. They got scared in a way they had not been before. That middle class fear translated into public policy - a new politics of law and order was born. In the fall of 1968, the political discussion of law enforcement became “nationalized,” and “law & order” was the major theme of Richard Nixon’s presidential campaign. And, as time went on, this country experienced white flight to the suburbs and a divisive dialogue about crime and race became the norm.

By the early 1970s, there was a backlash to the liberal jurisprudence of the 1960s. The Supreme Court lost Earl Warren, who was replaced by Warren Burger. The country was split over the war. And so there came increasing calls for a crack down on crime and subsequently the development of a national model of crime suppression. President Nixon called for a war against drugs and the U.S. Congress allocated its first real money toward crime. Police departments became increasingly hierarchal in structure, armed with technologically enhanced weaponry and increased investigative authority. More police officers were working out of cars, fewer were walking a beat.

In the 1980s, the predominant calls for crime control were for tougher laws, longer prison sentences, and more and bigger prisons. The prison population rose; it doubled and then tripled. Since 1980, the California prison population has increased five-fold, and the per capita rate of incarceration increased by almost 300 percent between 1970 and 1995. During this time, crack cocaine was invented, the epidemic took off in cities across the country, and the nation implemented severe penalties for crack possession. The war on drugs began in earnest. Since the mid-1980s, “tough on crime” has been the rallying cry and any politician courageous enough to talk about crime in any other terms did so at his or her own peril.

As the role of law enforcement changed throughout the 20th century, the role of the prosecutor changed as well. As the public called for more arrests and more convictions, the public’s expectations for the district attorney became more limited, focused on securing as many convictions as possible with sentences as long as possible. The original intent of the role of a DA as a leader in justice, violence prevention and the overall public good had been lost.

What we have seen over time is a sea change away from law enforcement and prosecutors who are focused on preventing crime, defending the weak against the powerful, and carefully weighing the balance of justice and power. Thus, today a crime suppression model is firmly entrenched to the exclusion of any other approach. Let’s analyze that model and its limitations.

The dominant paradigm of law enforcement throughout the last 50 years has been crime suppression. The key elements of that model include longer prison sentences, mandatory minimum sentencing, enormous funding for prison construction and operation, determinate sentencing, and policing that relies more on modern weaponry and rapid response mobilization strategies than on cops walking their neighborhood beats.

The crime suppression model is reactive and limited. It is reactive for victims of crime because it comes too late. It is limited because the resources are all invested after the crime has occurred and because it presupposes that the people committing crimes are actually arrested. However, this supposition is false. For example, in California in 2002, we had a clearance rate of eighteen percent of all crimes in the FBI crime index. That means that in about 80 of every 100 crimes, no one was arrested, no one was prosecuted. There was no one to even think about incarcerating, or how long he or she should spend in prison, or what kind of reentry program he or she should have. The reality is that very few reported crimes result in an arrest and conviction. So, practically speaking, the crime control dialogue in which we have been engaging only addresses about one in five crimes.

Under this current crime suppression model, we dedicate almost no discussion or real resources to handling the other 80 of 100 crimes. Crime prevention and crime reduction strategies are the only practical way to start addressing the vast majority of crime.

Today, there are more than 2 million people in our federal and state prisons and 8 million americans in jail, on probation or on parole. Collectively, the 50 states now spend more on prison building than on higher education. Despite enormous funding, rates of fear of crime and rates of reported violent crime are roughly at the same levels today as in the late 1960s. Meanwhile, the U.S. has the highest rate of violent crime of any industrialized nation.

So what does this tell us?

I think that it tells us that there should be a design to reduce crime and make people feel safer. I think we can do much better than to simply spend more on the same approaches while maintaining the same level of violence and fear of crime. We need to craft a new plan with new measures of success. This new plan must include justice reinvestment strategies that shift resource allocations from back-end reactive enforcement to front end crime prevention. This new design should be grounded in a set of core principles that guides law enforcement and, specifically, reflects the right set of values for prosecutors.

As a first step, I suggest that simply getting convictions isn’t enough for prosecutors. We must fight for justice in the true sense of the word by utilizing core principles in our approach to our work and in our decision-making. Some of these core principles include fairness, equality under the law, equal application, and due process to protect our civil liberties. To be smart on crime, we have to ensure each other’s safety from violence without doing violence to our constitutional freedoms.

The prosecutor has immense discretion about what and what not to prosecute. These decisions have an enormous impact on the individual and the community. With the recent Supreme Court decisions on search and seizure, increased criminal penalties and other legal changes enacted by state and federal courts and legislatures, this power has been expanded. Exercising this power without an understanding of what is going on in our urban communities can lead to dangerous results. Principles alone don’t mean anything until they are translated into real policy and action.

So the next step is to use discretion wisely. We must temper power with equality in application of the law. For example, in my first year of in office, we utilized a high level of discretion in the application of Three Strikes. It is the policy of my office that we only impose a third strike if it is a serious and violent felony, with exceptions for crimes committed with guns and sex offenses.

We must also use the affirmative power of prosecution to protect the vulnerable. By affirmative use of that power, I am saying that we should use the law to protect the vulnerable and to hold accountable those who prey upon them. By this, I mean going after the johns and pimps who exploit children, women and men into prostitution. I mean investigating predatory lenders who target vulnerable senior citizens. I mean ensuring the integrity of police conduct by prosecuting those who break the law and building community trust by ensuring that law enforcement agencies are culturally competent and informed.

As a concrete example of using the affirmative power of prosecution, let’s take a look at domestic violence. As more women entered law enforcement, we saw a big shift in domestic violence from the 1970s by ensuring those who were abused were protected. Prior to that shift, an incident of domestic violence was considered a “domestic disturbance” – that what happened in a king’s castle was the king’s business. We have also seen a rise of cases concerning elder abuse, immigrants, and environmental violations. In my office, we have started specialized units to address these crimes to ensure that those perpetrators are held accountable.

We’ve talked about values. We’ve talked about policies. Now, let’s talk about practices that will make them real. How do we translate this information into a real vision for the future? I believe that law enforcement must start to incorporate a public health model of public protection.

Deborah Prothrow-Stith is associate dean of the department of health policy and management at the Harvard School of Public Health. Prothrow-Stith has done groundbreaking research on treating violence as a public health problem and applying public health models to reduce violence among youth. Your professor, Franklin Zimring, has also done great work in this area.

So let’s consider what it would look like to have a public health model, to handle crime as though we were handling an epidemic. Our response to the epidemic of crime should include four primary public health-based components: 1. Prevention; 2. Early intervention; 3. Triage, and; 4. Treatment.

Let’s talk about prevention. We should invest in primary prevention in the crime reduction area because treating the symptoms alone is expensive and never gets to the underlying cause of the problem.

Let’s look at some examples of practical approaches to prevention of crime. First, we have to invest in our preschools and schools; we can use education of our population as a means of inoculation against future criminal involvement. Further, law enforcement should invest in community outreach, violence prevention education in schools, and ways to reach out of school youth.

One practical example of this is what I call our Pound of Prevention Campaign—which identifies and focuses on children of incarcerated parents and siblings. I am developing a program in which my office, in partnership with the San Francisco Health Department, will identify violent, gang-involved, drug-involved households with young children and surround them with support through my victim witness division. The need for investments at this early stage are supported by evidence showing that children of incarcerated parents, especially boys, are six times more likely to go to jail than other children.

After prevention, there must also be effective strategies for early intervention. Early intervention methods are used to address people exposed to an epidemic but who may not yet have become sick or very sick. In other words, we must try to change the odds – there are ways to change the underlying odds of survival and success, rather than simply expecting young people to beat the odds. We must create long-term safe havens and leadership development opportunities. An example of this is Geoffrey Canada’s work in creating the Harlem children’s zone where at 3:00 pm, schools across central Harlem become vibrant, year round community centers. Another example of early intervention involves connecting youth to stable institutions and to stable adults.

In San Francisco, we are looking at starting a program to reduce absenteeism among k-6 graders. It turns out that almost 60 percent of the city’s truant African-American children live in eight public housing developments. We also know there are lots of children in the public housing developments who are getting to school and getting there on time. We want to encourage neighbors to look out for each other and for each other’s children.

Another area I am very concerned about is the trauma experienced by youth exposed to violence, in their homes and on the street. Treatment must be made available for Post-Traumatic Stress Disorder and these services should be offered through the schools.

A third key component of our model is triage. Through triage, we have to make very tough choices about who gets treated first and who gets treated at all. In other words, it is important to recognize that, unfortunately, resources are limited and that we cannot avoid making difficult choices about where we can best spend what money we have.

Triage is informed by detailed knowledge of the treatment options available and research on what works and what doesn’t work. In our case, we need to know much more about what works to treat a variety of issues prevalent within the juvenile and adult criminal justice systems. It is possible to think about triage of those already in the system in many different ways. These include: age of offenders; gender; ethnicity; language; violent vs. non-violent; first time offenders vs. recidivists, etc.

Our fourth key component is treatment. For the most part, treatment in the crime prevention context refers to programs that work with people already caught in the criminal justice system. Treatment services can encompass health-focused interventions, such as drug courts, and recidivism prevention through in-custody and post-release reentry programs. Treatment services also include mental health treatment and the use of behavioral health court in the criminal justice system. Law enforcement should look to expand its application of mental health treatment, especially for juveniles.

A recent Columbia University study, released October 7, 2004, found that 4 in 5 New York state juveniles arrested are involved with alcohol or drugs. Of nearly 2 million arrests of young offenders with substance abuse problems, only 3.6 percent received some form of treatment. Examples of successful drug treatment approaches in San Francisco include drug court, juvenile drug court, and programs that allow addicts to serve their sentences in residential treatment (while still technically remaining under the constructive custody of the Sheriff’s Department).

Our approach to treatment also needs to involve preparing offenders for jobs and helping them access employment opportunities. Living wage employment is critical to recidivism prevention. We need high-quaity job readiness, soft-skills and hard-skills training. Overall community development is a crucial part of successful workforce development programs that expand the number and quality of employment opportunities. Investments in economic development and microenterprise/entrepreneurship also help. We can encourage hiring and community development in low-income neighborhoods that includes place-based affirmative action that would increase benefits for investing in and/or hiring people who live in target neighborhoods.

The creation of effective reentry programs is another crucial treatment component to decrease crime and enhance public safety. The New York Times reported in July 2004 that 81 percent of California’s male offenders under the age of seventeen are re-arrested within 36 months of release. Family strengthening and community-building investments are important parts of creating positive conditions to successful reentry into society for ex-offenders. It is also important to address the barriers to success for reentering ex-offenders – barriers that include severe stigma, and systemic and statutory obstacles. For example, there is a need for flexibility in child support enforcement and housing options for those trying to succeed. We need to revisit the multiple federal and state lifetime exclusions for student aid, assisted housing and public assistance.

I am working to develop new reentry initiatives both for adults and juveniles. There will be individualized reentry plans for all exiting county jail and juvenile offenders, with a focus of resources on violent offenders. These reentry plans encompass safety planning, housing, employment, education, responsible parenting, child care, health care, child care and child support.

As we take up the work of creating reentry initiatives for offenders at the end of their sentences, we also need to take a hard look at sentencing policy itself. First, let’s look at some historic milestones in sentencing policy.

As I have mentioned, in the early 1800s, we saw an immigration boom in this country. By 1830, two thirds of all people living in the United States were not born here. This immigration boom coincided with the first prison boom. In 1870, the Cincinnati Conference of Criminologists and prison managers created its “Declaration of Principles” – a very progressive document about how to run a correctional system. The document gave significant importance to humane treatment in prisons and also pushed for education and job opportunities. We saw the birth of indeterminate sentencing and creation of parole, which remained the main approaches for a century, until the 1970s.

In 1971-72, President Nixon started the drug war, which allocated the first large amounts of federal money to crack down on drug crimes. In 1974, the Martinson report was issued. It proclaimed that rehabilitation in correctional facilities doesn’t work. The quote from the report that was repeated over and over in the media was “nothing works”. Ironically, a few years later Martinson himself refuted the report, but the damage had already been done.

During this time the determinate sentencing movement began. In 1976 California became the second state in the country (after Maine) to institute determinate sentencing. The California determinate sentencing act passed in 1976 and went into effect in 1978. Pre-1978, seventeen percent of all felony convictions went to state prison; five years after the law was enacted, more than thirty percent of felony convictions were sent to state prison. The act also overtly removed the word “rehabilitation” as a goal in sentencing.

In the early 1980s, drug offenders were about 8 percent of the California prison population. Even now, post-proposition 36, drug offenders are more than 25 percent of the California prison population. And in March 1994, California ratified the Three Strikes Law, which established mandatory minimum sentencing for a multitude of crimes.

In 2004, the Supreme Court handed down its decision in Blakely and with this ruling, it is possible that the Supreme Court may limit or strike down determinate sentencing in the federal system. Whether or not that happens, it is time for us to look at the problems inherent in determinate sentencing and mandatory minimums. We should also pass a community corrections act in California to support and fund community-based rehabilitative programs, as seventeen states across the country have already done. California actually passed such a law in 1987, but governor Deukmejian vetoed it.

What I have laid out is a very different approach to crime than what we currently practice in most of this state and this country. This proposed agenda has enormous implications for how we spend our crime dollars. It will undoubtedly meet with stiff political opposition from those whose financial interests are tied to the current crime suppression model.

The public debate concerning crime is currently centered around whether elected officals are tough on crime. Taking this political reality into account, how can we actually implement a new vision?

There are a variety of possible methods, including building new coalitions, building models in places like San Francisco – new alliances between like-minded DAs and sheriffs, as well as other people in law enforcement. We also need a new public education campaign – one that rationally addresses crime instead of feeding on pervasive fears that already exist. There is an active role for the media here. We must look at what gets portrayed currently by the media at the expense of looking at crime prevention. We have to confront racial divisions fed by the current crime dialogue. We have to find ways to deal with the fears people have. This includes supporting the voices of people of color talking about the need for real solutions in their communities. Lastly, we need to support organizing efforts of effective local organizations working to reduce crime, especially in communities of color.

We need to have all levels of law enforcement adopt a new model of crime prevention that embraces what works in prevention instead of only implementing suppression approaches. And we have to hold law enforcement accountable for achieving real success in reducing crime and recidivism.

To implement a new paradigm will require a new set of performance measures. What are the right questions we should ask of our performance that will gauge our success?

This could be one set of questions to gauge success under this new paradigm:

-Is crime being prevented?
-Are families and communities being strengthened?
-Have we correctly identified who are the victims?
-What are the costs of current approaches? Could resources be better invested?
-Do people feel safer?
-Are we lowering the risk environment in which children live?
-Are people being reintegrated into society and reconnected with their families?
-Have we reduced recidivism rates among juveniles and adults coming through the criminal justice system?

These are just a few of the kinds of questions we need to be asking and i look forward to working with many of you to refine these measures of success.

As fellow progressives, we all need to work together to realize this new vision. The left needs to roll up its sleeves and be willing to engage itself as a problem solver within the rubric of police, prosecutors and corrections. We need the progressive community to participate in the discussion on how to best protect the public. The left must help to make a proactive, instead of a reactive approach to law enforcement. In order for the new paradigm to be effective, we need a multitude of voices -- law enforcement officials cannot serve as the only opinion leaders.

Progressives should be willing to support investments in crime prevention. The left needs to recognize the validity of law enforcement, the need for it and the positive role that it can play. Instead of limiting ourselves to conversations about whether we have too little or too much law enforcement, we must engage in a discussion of what kind of law enforcement we need. We must dispose of the myth that communities of color do not want protection.

The academic community can lead research in these areas and help us create a new set of evaluation tools for measuring success. We should develop a rigorous methodology of crime prevention. In addition the academic community can provide research and evidence about strategies that don’t work and those that do. We already have evidence of some of the strategies that don’t work so well.

We also have some evidence about strategies that seem to work, such as: Head Start, after-school safe havens, full-service community or “beacon” schools, job corps, San Francisco’s Delancey Street, boston’s approach to community policing, Arizona’s diversion of non-violent offenders out of prison and into community-based programs and other similar initiatives.

But more than a laundry list of good programs, I want to challenge all of us to be rebellious in our thinking, to think big about these very serious issues. Let’s not just tinker around the edges. We need a comprehensive new national discussion about crime, public protection and deterrence. I look forward to seeing what comes out of your deliberations during this symposium that can move us toward refining what is the right set of questions to apply to this potential new national dialogue.

In addition to the work of the academic community, we all, as a community that cares about civil rights and equal representation, must be committed to amplify the voices that are heard in the discussion about how the criminal justice system should serve them.

And in this presidential election year, it makes sense to acknowledge the people who may seek to benefit through these systems should also benefit from their power to vote. Disenfrachisement is a real threat to democratic and civil stability. It is a fact that 14 percent of the nation’s African-American men are now disenfranchised. African-Americans have persevered in the face of a history of systematic and violent denial of our voting rights. Many paid for the right to vote with their lives. In many states throughout this nation, a felony conviction results in disenfranchisement for life, even after an offender has completed their sentence. Thirty-two states disenfranchise felons on parole and twenty-eight states exclude probationers from the body politic. Only two states allow prison inmates to vote.

Voting is not only a core issue of civil rights, it is also a matter of civic responsibility and of public safety. Making sure that ex-offenders reengage themselves as responsible neighbors and citizens is part and parcel of our common commitment to seeing those who have committed crimes in the past reintegrate themselves as productive and fully participating members of our communities. Moreover, this will be an important part of bringing new voices into a new politic around criminal justice issues.

In conclusion, I see tremendous power in this room. What many of us have come to take as a given—a crime suppression model—has only been in practice for the past 50 years. It is not the way we used to do business, and it is not the way we have to do business.

I see a room full of leaders and I’m looking forward to working with you in this powerful new vision for public safety.