When former career public defender Mary Moriarty was elected as Hennepin County district attorney, a choice was made. After all, elections have consequences, whether for better or worse. And Moriarty did what she was elected to do.
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.
Had this policy been that black defendants were to be treated more harshly than white defendants, a storm of outrage would have rightly arose. After all, it would be fundamentally wrong, not to mention unconstitutional, for black people to be treated worse because of their race. But, of course, that’s not what Moriarty meant.
“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.
If this policy statement smacks of internal inconsistency, both stating that race was not an appropriate ground for departures, but also that race should be part of the consideration of a proposed resolution (read plea bargain), it’s because Moriarty is trying to have it both ways. The policy appears to seek to avoid a blatant constitutional violation by using race as a factor in the exercise of prosecutorial discretion while using race for exactly that purpose.
Prosecutors should be identifying and addressing racial disparities at decision points, as appropriate,” one section of the policy states.
It would be uncontroversial for prosecutors to consider the specific details of every defendant’s life, just like the details of the alleged crime, in fashioning a disposition. After all, many defendants had influential factors in their lives that had a deleterious impact on their opportunities and choices, and influenced their engagement in criminal conduct. Part of that calculus includes their upbringing, education, job opportunities and treatment as children and adults.
To the extent that the legitimacy of punishment for criminal conduct is grounded in the five sentencing considerations,* these require a prosecutor to give serious consideration into who the defendant is, what caused the defendant to commit the crime and how punishment can prevent the defendant from doing so again. Easier said than done, of course. And within that paradigm, the defendant’s race will, almost certainly, play a role.
But the consideration of race isn’t a primary policy directive. It can’t be because the Constitution prohibits it, despite the rhetorical games played to reimagine racial discrimination so that discrimination in favor of black people, or against white people as is the tacit flip side. In other words, what District Attorney Moriarty tried to gingerly to state without exactly saying so is that she is directing her line prosecutors to make plea offers that cut black defendants a break for no reason other than being black.
The district attorney’s office tried to slough off the problem under a barrage of rationalizations.
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.”
Notably, by saying “we know unaddressed unconscious biases lead to racial disparities,” she gave away the game. Some believe this. Others do not. But believing is a far cry from “knowing,” and “unaddressed unconscious biases” are an ideological view that might be appropriate for a politician, but irrelevant to a prosecutor. The victim of a black killer is just as dead as the victim of a white killer, and unconscious biases don’t change that.
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.
If the message is that prosecutors should be wary of discriminating against defendants on the basis of race in fashioning plea offers, then there would be no constitutional issue as the policy is to not discriminate on the basis of race. And to the extent disparate impacts happen, they could reasonably give rise to prosecutors looking more deeply into their exercise of discretion to determine whether they are letting race affect their plea offers. While disparate impact is not conclusive proof of racial discrimination, it may be evidence of it and worth digging deeper to make sure racial discrimination isn’t influencing decision-making.
Whether the rationale behind this policy is one of unlawful and unconstitutional racial discrimination in favor of black defendants, and therefore against white defendants is unclear. Despite the fuzzy wording of the policy statement, it certainly looks that way. If the point was to take a more holistic view of defendants when fashioning plea offers so as to avoid discriminating against defendants on the basis of race, then that’s what the policy should have said. As written, the inclusion of “proposed resolutions should consider . . . their racial identity” seems pretty much the constitutional kiss of death.
*The five sentencing considerations are:
- Specific deterrence
- General deterrence
- Incapacitation
- Rehabilitation
- Retribution