Minneapolis — County Attorney Mary Moriarty’s new policy requires prosecutors in Hennepin County to consider race when offering plea deals beginning Monday.
A constitutional law professor warns that if the policy is challenged in court, it may be ruled unconstitutional, even if Moriarty’s office intended to avoid those legal issues.
KARE 11 News reporter Lou Raguse obtained a copy of the policy from sources inside Moriarty’s office after it was distributed this week. The “Negotiations Policy for Cases Involving Adult Defendants” document outlines several factors for prosecutors to consider when negotiating and offering plea deals to criminal defendants, including the defendant’s race and age.
“While racial identity and age are not appropriate grounds for departures [from the Minnesota Sentencing Guidelines], proposed resolutions should take the person charged as a whole, including their racial identity and age.
While these factors should not be used as control variables, they should be considered in the overall analysis. Racial disparities harm our community, foster distrust, and have a negative impact on public safety. According to one section of the policy, prosecutors should identify and address racial disparities at decision points, as appropriate.
According to Jill Hasday, a constitutional law professor at the University of Minnesota, the policy appears to be deliberately ambiguous in order to avoid well-known constitutional issues involving the Equal Protection Clause.
“It both says, ‘Don’t take race into account,’ presumably because of the constitutional problems with taking race into account in addition to potentially political objections, but it simultaneously says this is something you should consider,” Hasday observed. “And the problem for the policy’s drafters is that once race is taken into account, what else you say is irrelevant. The policy will be struck down.”
Rachel Moran, a law professor at the University of St. Thomas, interprets the policy differently, believing that it instructs prosecutors to be wary of racial disparities.
“I understand that some people will be upset about the issue, but I don’t see a constitutional issue, and that’s because the policy directs prosecutors to avoid racial disparities.” “Not to create them,” Moran stated.
Moriarty declined an on-camera interview and did not respond to specific questions.
A spokesperson for the Hennepin County Attorney’s Office issued the following statement:
“This policy recognizes that there are numerous factors to consider in negotiations. Each case–and defendant–is unique. Someone’s age may influence the likelihood of growth and change. A defendant’s race is important because we know that unresolved unconscious biases lead to racial disparities, which is an unacceptable outcome.
Our goal with this policy is consistent with our overall mission: to achieve safe, equitable, and just outcomes that prioritize victim healing while improving public safety.”
Regarding constitutional issues, Hasday agreed that age consideration in the policy is likely constitutional because the HCAO mentions brain development and the science behind decision-making.
According to Hasday, the Supreme Court reviews race-based government action more rigorously and has explicitly rejected the notion that combating societal discrimination is a sufficient reason.
“As I read the policy, it appears to rest on what I think is a perfectly plausible desire to combat societal discrimination, but as the Supreme Court interprets the Constitution, that cannot justify race-based government action,” said Hasday.
Former Washington County prosecutor Imran Ali, who has previously criticized Moriarty’s policies, sympathized with prosecutors in the office who are perplexed by contradictions in their directives.
“Our sentencing guidelines, which criminal justice professionals use every day in court, state that race should not be considered in the calculation. “This appears to contradict our sentencing guidelines,” Ali stated. “It’s inconsistent not only with our sentencing guidelines, but the policy in and of itself is inconsistent.”
Moran defended Moriarty, saying the policy encourages prosecutors to look at people charged with crimes holistically and does not specify whether they can propose a better or worse plea agreement based on race.