It’s been called Kamala Harris’s “most successful program.” Framed as a visionary break from an era of “tough on crime” policing, “Back on Track” (BOT) has been replicated in cities around the country and was even adopted as a model program by the National District Attorneys Association. Harris herself has cited it as an inspiration for her 2010 book, Smart on Crime.
But given the realities of the program, the praise is largely unwarranted.
Pioneered in 2005 when Harris was San Francisco’s district attorney, BOT was a pretrial diversion program targeting young adults ages eighteen to thirty who had no history with guns, gangs, violence, or drugs around schools and who were facing their first felony charge for either selling or possessing less than five grams of a controlled substance (including marijuana). All drug sales were felonies in California at the time.
Harris, now a California senator, has sought to present herself as a former “progressive prosecutor” as part of her bid to win the Democratic presidential nomination. This characterization has been met with pushback from criminal justice reform advocates, legal experts, and her Democratic opponents. At the second primary debate, presidential hopeful Tulsi Gabbard — herself no stranger to glossy depictions of her record — lit into Harris.
She put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana. She blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. She kept people in prison beyond their sentences to use them as cheap labor for the state of California, and she fought to keep a cash bail system in place that impacts poor people in the worst kind of way.
Although Gabbard’s remarks contained some errors — for example, Harris didn’t hold anyone beyond their sentence to use as cheap labor, though her office did argue against early release, citing the need for manpower to fight the state’s raging wildfires — she wasn’t all that far off. As DA, Harris prosecuted cases of elementary school truancy and marijuana, opposing its legalization. Cannabis arrests increased through most of her time in office, along with the percentage of black cannabis arrestees. The conviction rate for those offenses increased, too.
Beyond prosecuting cannabis cases, DA Harris assigned senior prosecutors to handle cases of graffiti, vandalism, and auto burglary. Later, as California’s attorney general, Harris continued her anti-truancy push, opposed police body cameras, and failed to independently investigate high-profile police shootings.
But for all the strikes against her, the one initiative Harris has been able to point to as proof of her progressivism is BOT. The program’s goal was simple: lower the prison population by reducing recidivism.
“I would suggest to you that prison overcrowding is not the problem but a symptom of the problem,” Harris explained in 2010, speaking at the Commonwealth Club of California. “The problem is that we have a revolving door. In California, on an annual basis, we release 120,000 prisoners because they have served their time. Within three years of their release, 70 percent re-offend . . . I would suggest to you, the one most effective issue we could address on this issue of prison overcrowding, is this issue of recidivism.”
To the extent the program was aimed at cutting recidivism among participants, it was a rousing success. The recidivism rate among graduates was less than 10 percent compared to 53 percent for California’s drug offenders generally, and the total cost per individual was $5,000 — less than incarceration.
But when it came to reducing prison overcrowding — the ostensible aim of the program — Harris’s much-touted measure had virtually no impact. The inmate population in San Francisco’s jails actually grew during its run, and the state prison population reached new heights the year after its implementation.
One crucial problem was BOT’s selectivity. Before they could even enroll, eligible participants had to complete a six-week probationary community service regimen. Potential enrollees then had to plead guilty (mandatory for pretrial diversion programs under California’s Penal Code in 2005), complete up to 220 hours of community service, and comply with an individualized “personal responsibility plan,” which had benchmarks like getting current on child support payments or signing up for jobs training through public-private partnerships Harris had established. Enrollees were further mandated to meet three times every week with a case manager and appear three times every month in reentry court where their progress was tracked. After graduation the original charges would be dismissed and the record sealed, but premature departure from the program triggered jail or prison time.
According to an internal work document from the DA’s office, just 241 individuals completed the BOT program between 2007 and 2011; 308 individuals left without finishing. While these numbers raise some additional questions — like how many total individuals were in the program at a given time and why the “2010–11” figure doesn’t appear to add up — the figures do suggest the scale of the program. And it was very small.
Over the same time period (2007 to 2011), there were 563 felony cannabis convictions in San Francisco, according to data gathered from the DA’s office. On January 1, 2008, the city had 1,849 active felony drug cases and by year’s end, 14,500 felony drug arrests.
Tim Kingston, a San Francisco public defender and investigator who began working in 2010 when BOT was still active, told us he’d never had any interaction with the program. “I never actually dealt with this program, and it’s not something that came up directly around the office,” he said.
Harris made clear on multiple occasions that her signature program was intended to be strict, which necessarily limited its reach. At the 2010 Commonwealth Club event, for example, she claimed her decision to require guilty pleas was all about accountability.
“In ‘Back on Track,’ we required the offender to plead guilty. Why? Because he’s guilty!” Harris said with a comical flair to chuckles from the audience. “Right? The guy was out there slinging drugs on the corner. And some people would like to suggest it’s a victimless crime. I would tell you it’s not. You were guilty, you were out there, and by the way, I don’t feel sorry for you and I’m not going to forgive you for committing a crime — but I do know what you’re capable of after you’ve been held accountable.”
But if the program’s foible was its small scope, its fatal flaw was the focus on recidivism. In essence Harris set up the pins to knock them down, achieving a false victory without actually attacking the root cause of mass incarceration: overcriminalization. Harris and her acolytes were so obsessed with whether people were getting arrested again that they failed to consider whether they should have been arrested in the first place. If anything, the program actively shifted attention away from the overcriminalization problem.
By the time BOT ended its run in San Francisco in 2011, the city’s jail population and the state prison population were on the decline. So, too, were cannabis arrests and convictions. Yet these trends were unrelated to Harris’s tiny program. They coincided instead with a broader shift against overcriminalization that began in 2009, when a federal three-judge panel ordered the state of California to drastically reduce prison overcrowding.
In October 2013, acting as the state’s attorney general, Harris created the Division of Recidivism Reduction and Reentry. Two years later, BOT would get another trial run — in Los Angeles. The program screened candidates right from the start based on their likelihood of recidivating, their education level, their degree of substance abuse, and their mental state. A paltry eighty-five males were selected.
But Harris was unconcerned. In an October 2016 press release, Harris praised the BOT’s Los Angeles iteration as “a blueprint for public-private partnerships to reduce recidivism” — just in time for her Senate election the following month.