".., Too many prosecutors have embraced the fallacy that if the law allows them to do something, then it must be morally acceptable to do it, but public reaction to [Rep. Tulsi] Gabbard's attack on [former California Attorney General Kamala] Harris ... suggests it might be time for prosecutors to reconsider that fallacy, particularly if they aspire to higher office."
DURING one of the early Democratic presidential debates, Rep. Tulsi Gabbard of Hawaii tore into Sen. Kamala Harris of California for her track record as a prosecutor in San Francisco and later as California's Attorney General. The attack was sharp and effective, earning Gabbard an outsized share of the post-debate commentary. Its thrust was entirely fair, too, as any number of articles have demonstrated, including Lara Bazelon's recent takedown in The New York Times titled "Kamala Harris Was Not a Progressive Prosecutor."
The real significance of Gabbard's critique, however, lies not in the proposition that Harris was a particularly unprofessional or malign prosecutor, but rather in the fact that she seems to have been a rather ordinary prosecutor who simply did her job the way most prosecutors do--and if that makes a former-prosecutor-turned-presidential-candidate look like a monster, then perhaps that says more about prosecutors in general than it does about Harris in particular.
Gabbard's gut-punch underscores the difficult position that modern prosecutors find themselves in as the key players in a substantially immoral and increasingly indefensible criminal justice system. A near-universal blind spot of career prosecutors like Harris is their failure to appreciate the fact that law and morality can--and in our system frequently do--diverge.
Is it hypocritical for a person who has used marijuana to prosecute someone for possessing or selling it? Plainly yes, as Gabbard suggested in calling out Harris for doing precisely that, but enforcing bogus laws is not just hypocritical, it can be immoral as well.
Consider the Fugitive Slave Act of 1850, a Federal law that, among other things, required citizens of free states to assist in the capture and return of escaped slaves; or eugenics laws adopted by more than half the states during the 20th century that subjected tens of thousands of law-abiding citizens, mostly young women, to forced sterilization and a childless future.
Then there is the ordinance in Shreveport, La., making it a crime to wear saggy pants. Some 726 men, 96% of...