New Hennepin County Attorney policy asks prosecutors to consider race of defendants

Hennepin County Attorney Mary Moriarty said a new policy asking her prosecutors to consider the racial identity of defendants is constitutional and a necessary corrective to address unconscious bias in a justice system that has been historically racist.

“There are many people in this country that have pretended that race doesn’t play a factor in arrest, charging and prosecution,” Moriarty said. “Every piece of research has suggested otherwise.”

The “Negotiations Policy for Cases Involving Adult Defendants” was leaked by employees within the Attorney’s Office to media outlets last week and made effective Monday. There have been immediate accusations that it is unconstitutional, primarily because it asks prosecutors to “consider the person charged as a whole person, including their racial identity.”

In an interview with the Minnesota Star Tribune on Wednesday, Moriarty said she was surprised that anyone found the policy shocking.

“We’re coming up on the fifth anniversary of [the murder of] George Floyd and I ran a campaign for a year and a half talking about addressing racial disparities in the criminal legal system,” she said. “I won by 16 points while talking about addressing racial disparities in the system. You simply can’t address racial disparities in the system unless you talk about them. That’s what this policy does.”

The policy is a detailed guide for how adult cases should be handled within the Attorney’s Office, including the specific scenarios where line attorneys should seek management approval for resolution to cases. It also encourages collaboration within the office and gives instructions on charging decisions, diversion programs and victim input.

Language about race appears in a section discussing Minnesota Sentencing Guidelines and when attorneys should seek upward or downward departures from the guidelines. 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.”

“There is nothing that’s unconstitutional about this,” Moriarty said. “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. That is not what this policy is about.”

She added, “I’m not entirely sure how we could correct all of the racial disparities we have in the system unless we’re acknowledging it head on.”

David Zimmer is a policy fellow at the Center of the American Experiment, a think tank focused on conservative and free-market ideas. He said the new policy is 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. However, who is going to challenge it?”

Zimmer said the idea of bias in the criminal justice system that Moriarty supports is flawed. He recently published a study which used Minnesota Bureau of Criminal Apprehension data from 2021 to argue Black people are treated preferentially to white people as cases move through the courts. He also argued Black Minnesotans are 9.5-times more likely than a white Minnesotan to be the victim of a crime.

“The system itself is not creating disparities,” Zimmer said. “The system is responding, really appropriately, to the disproportionate level of criminal offending, especially in the Black community in Minnesota.”

Perry Moriearty is an associate law professor at the University of Minnesota who specializes in criminal justice and is a member of Minnesota’s Clemency Review Commission. She and Moriarty — similar names, no relation — were colleagues at the University of Minnesota Law School and worked on cases together. She contends Zimmer’s line of thinking is antiquated.

“It’s frustrating that they’re a think tank still making that argument,” she said. “Studies have shown at every decision point in this system from whether to arrest, to prosecute, to not divert, to charge, to detain and hold and place on bail, at plea negotiations, at every stage there are documented [racial] disparities.”

Moriearty said thousands of those studies have taken into account varying crime rates in certain neighborhoods and socioeconomic factors such as income levels, education and family dynamics and still found racism in the criminal justice system — especially against Black and Indigenous people.

Because of that, she said, race has been a historical factor in prosecutorial decision making, it just was never acknowledged.

“We know human beings by virtue of having human brains are considering race and they’re generally doing it unconsciously,” she said. “Being explicitly race conscious can help decision makers recognize their automatic tendencies to rely on racial categories and, in some cases, stereotypes, even when they’re not trying to.”

Zimmer argues, though, that any emphasis on race biases the criminal justice process.

“They’re taking the blindfold of Lady Justice off,” he said, “and looking at the defendant differently.”

Legal scholars in the Twin Cities have said that the policy language feels inherently vague which muddies the question of constitutionality. But there is no question that Minnesota laws give county attorneys wide authority to implement policy around case management for their staff.

“Some people have it in their heads or they mislead people by saying, ‘There is the law. This is just how it is,’ That is not how this works at all,” Moriarty said. “County attorneys have always decided what are the priorities? What kind of cases are we going to charge? What kind of cases aren’t we going to charge? Are we going to be harsh on a particular set of cases or not? That has always been going on.”

Susan Gaertner spent 16 years as Ramsey County Attorney. She said the criminal justice system cannot focus on or fix every issue, which is why the position is so important.

“County attorney is an elected position for a reason and that is so that candidates can inform the public about what they might expect when they get into office,” she said.

Gaertner didn’t comment on the racial element of Moriarty’s new policy other than to wonder if the cultural pushback against diversity, equity and inclusion is playing a role.

“I doubt this would be as polemic an issue if we weren’t in the Trump anti-DEI era,” she said.

She added that the most important thing a county attorney can do is be consistent.

“The county attorney, as an elected official, I think has an obligation to put forth policies that provide some uniformity in the office regarding how cases will be handled,” Gaertner said. “Otherwise what you get is 100 solo practitioners making very important decisions about people’s lives and the public safety.”

Moriarty said taking race into consideration is part of her attempt to create that consistency.

She said the legal system has always been subject to bias and brought up historical injustice that has been pressed upon the Black community, from the Scottsboro Boys to the lynching of Emmett Till.

“This system and who has control and power has always made decisions about who is important, what is important, and what the priorities are,” Moriarty said, adding that her office is trying to move away from those priorities being “political” to being objectively fair.

She added that she sometimes wonders, given the current climate, “Did George Floyd actually happen here?”

Kim Hyatt of the Minnesota Star Tribune contributed to this report.