Minnesota: Prosecutors to consider race as a factor in plea deals under new policy written by Hennepin County Attorney Mary Moriarty
At least one constitutional law professor believes the policy could be unconstitutional, even if it was written with deliberate ambiguity to avoid those issues.
MINNEAPOLIS — Starting Monday, prosecutors in Hennepin County will be required to consider race when offering plea deals, according to a new policy from County Attorney Mary Moriarty.
A constitutional law professor warns the policy could be deemed unconstitutional if challenged in court, even if Moriarty's office intentionally crafted the policy to avoid those legal issues.
KARE 11 News reporter Lou Raguse received a copy of the policy from sources inside Moriarty's office after it began being distributed this week. The document entitled "Negotiations Policy for Cases Involving Adult Defendants" lays out several considerations for prosecutors to take as they negotiate and offer resolutions to criminal defendants in the form of plea deals, including the race and age of the defendant.
"While racial identity and age are not appropriate grounds for departures [from the Minnesota Sentencing Guidelines], proposed resolutions should consider the person charged as a whole person, including their racial identity and age. While these factors should not be controlling, they should be part of the overall analysis. Racial disparities harm our community, lead to distrust, and have a negative impact on community safety. Prosecutors should be identifying and addressing racial disparities at decision points, as appropriate," one section of the policy states.
Jill Hasday, a University of Minnesota professor specializing in constitutional law, said the policy appears deliberately written to be ambiguous 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 said. "And the problem for the drafters of this policy is, once you take race into account, it doesn't really matter what else you say. The policy is going to be struck down."
University of St. Thomas law professor Rachel Moran interprets the policy differently, believing it means prosecutors are being told to be wary of racial disparities.
"I definitely think that some people will get worked up about the issue, but I don't see a constitutional problem, and that's specifically because the policy tells prosecutors to avoid racial disparities. Not to create them," Moran said.
Moriarty declined an on-camera interview and did not answer specific questions.
In a statement, a Hennepin County Attorney's Office spokesperson wrote:
"This policy acknowledges that there are many factors to be considered in negotiations. Each case – and defendant – is unique. Someone’s age may change the likelihood of growth and change. A defendant’s race matters because we know unaddressed unconscious biases lead to racial disparities, which is an unacceptable outcome.
Our goal with this policy matches the goal of all our work: to achieve safe, equitable, and just outcomes that center the healing of victims while improving public safety."
Regarding constitutional questions, Hasday agreed that age consideration in the policy is likely constitutional because the HCAO cites brain development and the corresponding science behind decision-making.
Hasday says the Supreme Court subjects race-based government action to a higher level of review, however, and has explicitly rejected the idea 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," Hasday said.
Former Washington County prosecutor Imran Ali, who has been critical of Moriarty's policies in the past, empathized with prosecutors in the office confused by contradictions within their directives.
"Our sentencing guidelines that criminal justice professionals use every single day in court say that race should not be used in that calculus. This seems to contradict our sentencing guidelines," Ali said. "It's inconsistent not only with our sentencing guidelines, but the policy in and of itself is inconsistent."
In defense of Moriarty, Moran said the policy encourages prosecutors to look at people charged with crimes in a holistic way, and it does not say they can propose a better or worse plea agreement based on race.
https://www.kare11.com/article/news/local/courts-news/prosecutors-race-plea-deals-new-policy-hennepin-county-attorney-mary-moriarty/89-5ec5744c-84cc-45fa-930f-11b1f2bf0776