Trump’s False claim that Harris ‘redefined’ crimes like rape as ‘nonviolent’

Presenting himself as the tough-on-crime candidate, former President Trump told thousands of people gathered at Madison Square Garden that Vice President Kamala Harris altered California’s criminal law to go easier on offenders. 

"As California attorney general, she redefined child sex trafficking, assault with a deadly weapon and rape of an unconscious person as a totally nonviolent crime," said Trump at his Oct. 27 rally in New York.

When PolitiFact contacted the Trump campaign for evidence, a Republican National Committee spokesperson pointed to Harris’ tenure as California attorney general, when she wrote the title and summary language for a 2016 state ballot measure. Proposition 57, which voters passed, allowed people convicted of "nonviolent" crimes to be eligible for parole earlier.

But Trump’s claim warped the facts. Harris didn’t propose the ballot measure. She was obligated to write the ballot measure summary language as part of her role as attorney general, who writes all the summaries for all the propositions. During her attorney general tenure from 2011 to 2017, Harris sought to remain neutral on the ballot measure; she expressed neither public support for nor opposition to Proposition 57. 

It is also misleading to say that the proposition "redefined" certain crimes as nonviolent. Proposition 57’s definition of a "nonviolent" felony was based on what was already in California’s penal code: 23 crimes existing state law had classified as "violent felonies." The crimes Trump named were not on that preexisting violent felonies list, and therefore were already considered not violent under California law; Harris’ actions didn’t affect that. 

Jerry Brown, a Democrat and California’s then-governor, developed Proposition 57 to address prison overcrowding. One part of the measure allowed people convicted of nonviolent felony offenses to be considered for parole after they served time for what courts determined to be their primary offenses. 

Neither the ballot’s text nor existing state law specifically defined which crimes were considered "nonviolent." But California law already had a definition for a "violent felony." 

Dating back to at least the 1980s, Section 667.5(c) of California’s penal code has included crimes such as murder, kidnapping and any crime punishable by death among the 23 felonies the state considered "violent." 

But the penal code’s list did not — and does not — include some crimes that many people would probably consider violent acts, including crimes such as Trump mentioned: assault with a deadly weapon (that is not a firearm), human trafficking involving a minor, and rape of an unconscious person. 

"The definition of violent versus nonviolent crime has always been controversial," said Robert Weisberg, a Stanford University criminal law professor. "It's arguably arbitrary. It's set there by statute." 

In materials accompanying the Proposition 57 ballot measure, a state legislative analyst wrote that its wording "assumes a nonviolent felony offense would include any felony offense that is not specifically defined in the statute as violent." 

The ballot measure’s opponents viewed the term "nonviolent" as misleading, because some crimes commonly considered violent would be deemed nonviolent offenses for parole purposes, precisely because they were not among the 23 crimes classified as violent felonies. 

Proposition 57 passed with 64% of the vote, and its implementation by the California Department of Corrections and Rehabilitation included a definition of nonviolent offenses similar to the one the state legislative analyst described — anything not listed in section 667.5(c). 

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As the California Department of Corrections and Rehabilitation says of Prop 57 on its website: "It is important to note that although most nonviolent crimes involve criminal conduct in which there is no physical injury, many crimes involving physical injury or threat of physical injury are considered ‘nonviolent’ because they are not a ‘violent felony’ under Penal Code section 667.5, subdivision (c)."

Proposition 57 did not create or change the list of crimes considered "violent" felonies. Changing that list in the penal code, or "redefining" violent crimes would require legislation from the state Assembly or another ballot measure, not an act by the attorney general, experts said.

Harris did not write or introduce the Prop 57 ballot measure — and she was silent regarding her position on it.

Harris wrote the title and summary language that appeared on the ballot, as part of her required duties as attorney general.

"That doesn't make her the author, it doesn’t make her the primary proponent," of the initiative, Laurie Levenson, a Loyola Marymount University law professor, said. "It just means she was doing what her state office job was." 

The ballot summary read: "Allows parole consideration for persons convicted of nonviolent felonies, upon completion of prison term for their primary offense as defined."
Further, this summary language was taken almost exactly from the proposed law’s wording. 

Ballot summary language is intended to be simple, concise, and independent, experts told PolitiFact. "The Attorney General makes no comment on the accuracy of any statements made in the proposed initiatives," reads the California Office of Attorney General website. 

"In crafting a title and summary, the Attorney General considers a variety of materials, including the complete text of the measure itself and any suggested title, the fiscal analysis prepared by the Department of Finance and Legislative Analyst, and public comments," the California Attorney General’s press office told PolitiFact in an email.  

"Her job was not to write a critical evaluation and a long explanation of the pros and cons. That's not her job," Weisberg said. He also noted that "if she goes too far in her ballot titling language or description language, in interpreting or explaining the text language, then she's sort of previewing possible court interpretations."

Trump said, "As California attorney general, (Kamala Harris) redefined child sex trafficking, assault with a deadly weapon, and rape of an unconscious person as a totally nonviolent crime."

 His statement refers to California’s successful 2016 Proposition 57, which allowed people convicted of "nonviolent offenses" to be considered earlier for parole.

Harris wrote summary ballot language for the proposition as part of her attorney general duties, but her work did nothing to redefine violent or nonviolent offenses. Proposition 57’s distinction between violent and nonviolent crimes relied on the state penal code’s preexisting list of 23 crimes categorized as "violent.

Changing that penal code would require legislation or another ballot measure. This claim misleads on both Harris’ involvement and Proposition 57’s nature. We rate it False.