I worked with Kamala Harris as part of her cannabis advisory group when she was San Francisco’s district attorney and have first hand experience with her work ethic, as she evolved from a DA candidate advocating for medical use only to a US Senator introducing a legalization bill in Congress to a pro-reform Vice President to a legalization candidate for US President.
Her detractors seek to generate controversy over her handling of cannabis: Either she’s too pro-cannabis or too anti-cannabis. They often point to her time as DA, so this post will look primarily at that time period of her career.
Her predecessor as DA, Terrence Hallinan, was hated by the Drug War narc cops and prosecutors, because he told his staff not file charges against medical marijuana cases unless absolutely necessary. Harris was seen as being tougher on the issue, although rumors abounded that she had taken her “medical only” stance because she had her eye on higher office.
When Hallinan took office, drug cops and DDAs engaged in an unofficial work slowdown early in his term to make him look “soft on crime” then an uptick later in his office to undermine his support in the cannabis community, then he managed to force them to reduce their arrests of medical marijuana patients and providers. When he came up for re-election, cops backed Harris for her law-and-order record – and she won.
Narcs targeted Harris’s lenient policy
Despite the outrageous claims of Fox news and the right wing media, Harris has always been moderate in her approach to the law. When she was campaigning, her position was always to advance medical marijuana but to tamp down adult use. Cannabis activists were disappointed in her position but many of us put it down to her being cautious over her political aspirations, especially in light of her Jamaican ancestry. Turns out, she was somewhere in between: An evolving political ally.
To the surprise of the narcs and lower level DDAs, Harris continued Hallinan’s policy of reducing prosecution of marijuana offenders. Part way into her term, the anti-cannabis forces decided to make her look bad to her supporters by suddenly increasing the number of raids and prosecutions of patients and caregivers, leading to a stark spike in arrests and prosecutions.
Harris took the issue to members of the reform community and set up an advisory group, including myself (in the upper right hand corner of the photo with then-brown hair and a blue tie).
Medical marijuana advisory group formed
As a Bay Area resident and the state’s top expert witness for cannabis defense, I clearly remember those meetings. We had a lively open exchange of information. Harris told us that she could not control the spike because the DDA charges followed the letter of state law (courts had ruled that Prop 215 only came into play as a legal defense after a person already had been arrested and prosecuted). She couldn’t tell her staff not to file legitimate state charges, especially felonies such as cannabis cultivation and sales.
Harris wanted to stop the arrests but was not in charge of the police department, let alone the narcotics division. She told us that only after charges were filed could her office intervene, citing “judicial economy” (meaning the cases would be a waste of court time and money). Unfortunately, that would be after a lot of the damage was done: People arrested, homes torn up, gardens destroyed, medicine seized and charges filed. Only then could she step in to push her staff to pull back, before trial and sentencing. Her policy was to let the preliminary hearing proceed and use those hearings to decide which cases to move forward.
Also most of those “convictions” were not the result of a trial but of plea bargains. A defendant might be facing three years in state prison but plea to a misdemeanor and walk out on probation or for jail time served. Meanwhile, narcs have been cross-sworn as state and federal agents. If they didn’t like the outcome of those negotiations, they could simply refer the case to the Feds, where cannabis growers and dispensary operators faced mandatory minimums of five, ten years or longer. This happened to any number of the city’s cannabis dispensary operators.
A San Francisco misdemeanor was preferable to being sent to federal prison, so getting people to plead to a misdemeanor was generally an easy win for prosecutors.
A successful strategy emerged
Harris was not happy with the status quo and asked her advisory group for proposals. We discussed ways for city-authorized medical marijuana gardens and dispensaries to be identified and protected. Such growers and dispensaries could be registered with her office to preclude prosecution, but that would also open up registered groups to harassment by street narcs who had access to the list to see if a location was City licensed. We discussed using an official label on the buildings but she was concerned that those could easily be targeted by organized criminals. I suggested using invisible fluorescent markings so that passers by couldn’t see them but a cop with a hand-held “black light” could identify them and stand down.
Harris said that she didn't control the police, so she couldn’t just order them to stand down and that cops and crooks alike might instead use those markings to target the community. Her circumspect and frank comments were refreshing.
Ultimately, the group agreed that we needed to get the State legislature to license cannabis shops, to keep the cops at bay, and she set a policy for San Francisco prosecutors to not file cannabis charges unless there were serious violations, such as diversion to the non-medical market, and to give qualified patients and caregivers the benefit of the doubt.
She had her office dismiss as many cases as necessary to dissuade narcs and narco-prosecutors from pursuing criminal charges. As a result, marijuana arrests dropped precipitously even as the City’s successful marijuana offense conviction rate increased by a third under Harris. As soon as she left office, arrests and prosecutions rose once again as prohibitionist police and prosecutors tested her successor (see chart).
Balancing act between reform and electability
Harris adapted that strategy to protect both patients and her own political interests. The chart above, from SF Chronicle based on data from the SF DAs office shows how well her strategy worked.
By the end of her tenure, Kamala Harris brought cannabis arrests and prosecutions to a lower rate than Terrence Hallinan had ever managed. By that time she was running for California Attorney General. An adult-use legalization voter initiative was on the ballot, as well. Harris came out against the initiative. While that was disappointing, the initiative, Prop 19, never had a real chance to be passed and lost by several percentage points. We supported her, despite her opposition to full legalization and her private position, according to people closer to her campaign, was that she needed to shore up the medical marijuana situation and could pivot to adult use when the time was ripe.
Harris was elected state Attorney General in 2010. She leveraged her position to support a package of medical marijuana dispensary legalization and licensing bills in the state legislature, known as MMRSA (the Medical Marijuana Regulation and Safety Act) in 2015.
The following year, 2016, she ran for US Senate at the same time as Prop 64 was on the state ballot. Both she and the Adult Use of Marijuana Act were approved by voters that November, when Hillary Clinton won the popular vote for President by 3 million votes and lost the electoral college by 70,000 voters in a handful of swing states.
As vice president, she has continued to back Biden’s efforts to undo some of the damage caused by prohibition. More about this phase of her career in a future posting. Now as candidate for President, she selected pro-legalization Minnesota governor Tim Walz as her running mate. All signs look good for legalization: If Dems win the Presidency, Senate and House.
