Department of Justice investigating Hennepin County Attorney’s Office over new race policy

The Department of Justice has opened a civil rights investigation into the Hennepin County Attorney’s Office, according to a social media post shared Saturday by U.S. Assistant Attorney General of the Civil Rights Division Harmeet Dhillon.

The announcement comes less than a week after a new policy was instituted by Hennepin County Attorney Mary Moriarty that asks prosecutors to consider racial identity in plea deals and charging decisions.

Dhillon posted a letter addressed to Moriarty on the social media platform X. It says the investigation will seek to determine if the County Attorney‘s Office “is engaged in a pattern or practice of depriving persons of rights, privileges, or immunities” that are protected by the Constitution.

Daniel Borgertpoepping, the public information officer for the County Attorney’s Office, said in a statement that the office is aware of the letter being posted to social media but has not actually received it.

“Our office will cooperate with any resulting investigation and we’re fully confident our policy complies with the law,” Borgertpoepping said.

The letter was attributed to Attorney General Pam Bondi, acting Associate Attorney General Chad Mizelle and Dhillon.

It states that, “In particular, the investigation will focus on whether the HCAO engages in the illegal consideration of race in its prosecutorial decision-making.”

Over a week ago, the “Negotiations Policy for Cases Involving Adult Defendants” was leaked to Twin Cities media by employees within the office. The policy is a comprehensive guide for prosecutorial decision making and asked that attorneys consider racial identity as part of the “overall analysis” of a defendant.

Language about race appears in a section discussing Minnesota sentencing guidelines and when attorneys should seek upward or downward departures. It says that departures should be “based on the unique analysis of the case” including criminal history, racial identity, age and serving public safety.

“Racial disparities harm our community, lead to distrust, and have a negative impact on public safety,” the policy says. “Prosecutors should be identifying and addressing racial disparities at decision points, as appropriate.”

Moriarty told the Minnesota Star Tribune last week that the policy is constitutional and a necessary corrective to historical racism in the criminal justice system. She said asking prosecutors to consider potential unconscious racial bias at key moments was different than asking prosecutors to treat defendants differently based on race.

“It would be a constitutional issue if the policy actually said, ‘Let’s say you have a Black defendant and a white defendant, we are telling you to treat the Black defendant in a different way.’ That would be unconstitutional,” Moriarty said. “That is not what this policy is about.”

Michael Collins is a senior director at Color of Change, a nonprofit that advocates for civil rights and has worked with Moriarty in the past.

He said there is plenty of room for healthy debate around Moriarty’s new policy, but that is not what a Department of Justice investigation will set out to do.

“We are in unprecedented territories here,” Collins said. “Department of Justice does not regularly do pattern and practice investigations on the basis of one word in a policy. It is nonsense. … What’s it going to lead to? A consent decree? Mary Moriarty being ousted from office? We don’t know.”

Earlier this week, David Zimmer, a policy fellow at the Center of the American Experiment, said the new policy was an affront to the equal protection clause of the 14th Amendment, which says that every citizen must be treated the same under the law.

“I just think it’s stunning that a public prosecutor would put out a policy to treat defendants differently based on their race,” said Zimmer, who worked in law enforcement for three decades and retired as a captain with the Hennepin County Sheriff’s Office. “Once it’s challenged [in court] it’ll get defeated.”

Typically, Collins said, pattern and practice investigations of racial bias are brought in the wake of high profile killings of people of color by police. For instance, they were initiated in the wake of the killing of George Floyd in Minneapolis, Michael Brown in Ferguson, Mo., and Freddie Gray in Baltimore.

“This administration has purposefully set about reversing and destroying those types of agreements,” Collins said. “Whatever you want to say about [Moriarty’s] policy, the policy is supposed to end racial biases or reduce racial biases.”

He said the investigation is a case of “the tail wagging the dog” stemming from conservative media outrage over Moriarty’s decision last month to divert criminal charges against a man who keyed several Teslas around Minneapolis.

“We know already the DOJ is weaponizing its power to target people it believes are its enemies,” Collins said. “Mary Moriarty is a reform prosecutor and reform prosecutors are on the list.”

The letter posted by Dhillon shows the new policy led the Department of Justice to open the investigation based on the belief it could be discriminatory. While the policy was the starting point, the investigation will “include a comprehensive review of all relevant HCAO policies and practices that may involve the illegal consideration of race.”

“Please be assured that we have not reached any conclusions about the subject matter of the investigation,” the letter continues. “We will consider all relevant information, and we welcome your assistance in helping to identify what that might be.”

The letter ends by noting the Civil Rights Division’s Special Litigation Section will oversee the investigation. It also says most investigations to enforce civil rights statutes have been resolved “without contested litigation.”