Minneapolis’ Rogue Prosecutor Orders Assistants to Discriminate Based on Race

Minneapolis’ disgraced-public-defender-turned-prosecutor, Mary Moriarty, put out a memo innocuously entitled “Negotiations Policy for Cases Involving Adult Defendants.” But the policies she puts forward in it are far from innocuous. In fact, they’re illegal.

Beginning on Monday, April 28, she has ordered prosecutors in her office to begin treating people differently based on their race.

Of course, this differential treatment shouldn’t come as a surprise given the lenient “diversionary” deal she recently gave to a former Minnesota Gov. Tim Walz aide who keyed numerous Teslas, resulting in almost $20,000 damage while throwing the book at a different individual accused of causing similar damage of around $7,000 for nonpolitically motivated reasons.

Yet her race-based preference policy is even more egregious.

Any first-year law student knows that prosecutors cannot legally treat people differently based on their race—and that morally they should not. And yet, Moriarty has done just that.

Likely aware of the constitutional problems presented by her policies, she issued a mealy-mouthed order implementing them.

She said that “While racial identity and age are not appropriate grounds for departure [from the Minnesota Sentencing Guidelines], proposed resolutions should consider the person charged as a whole person, including their racial identity and age.” She continued that “While these factors should not be controlling, they should be part of the overall analysis.” She finally opined that “Racial disparities harm our community, lead to distrust, and have a negative impact on community safety.”

She then problematically says that “prosecutors should be identifying and addressing racial disparities at decision points, as appropriate.”

As one University of Minnesota law professor pointed out, the policy says at one point, “Don’t take race into account,” but then simultaneously says, “This is something you should consider.” The professor explained that “the problem for the drafters of the policy is, once you take race into account, it doesn’t really matter what else you say.” It taints everything else.

Moreover, once someone commits a crime—whatever his or her race—that person must be held accountable.

But why is Moriarty pursuing these policies?

As part of the Soros-backed rogue prosecutor movement, Moriarty has bought into the twin myths that our criminal justice system is systemically racist against young black men (it’s not) and that the United States has a mass incarceration problem—or locks up too many people (It doesn’t).

But these flawed beliefs have led to egregious miscarriages of justice—especially her refusal to appropriately prosecute certain juvenile offenders. One instance where she refused to prosecute juveniles accused of murder as adults proved to be so egregious that even Minnesota’s extremely left-wing Attorney General Keith Ellison and Walz balked. And Walz ultimately reassigned the case to Ellison to prosecute instead of Moriarty.

So, what can be done about it?

Voters could recall and remove Moriarty from office. But that’s always an expensive and lengthy battle for voters to fight—though voters in other places like San Francisco and Oakland have been successful under California law using this tactic. (The Minnesota Board of Public Defense had dismissed Moriarty from her previous position as Hennepin County, which includes Minneapolis, public defender over concerns about her policies and management of that office).

In this particular instance, Moriarty herself should worry about becoming a defendant. Federal law 18 U.S.C. § 242 makes it a crime for anyone acting “under color of any law, statute, ordinance, regulation, or custom” to willfully deprive someone “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” and importantly for this instance, to subject individuals “to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race.”

These types of cases can be difficult to prove, but rarely today are there written policies in place as explicit as the one promulgated by Moriarty.

At a minimum, the Minnesota Supreme Court should consider disciplining Moriarty since Minnesota’s Rules of Professional Conduct prohibit discrimination—that is, treating people differently—based on race.

Moriarty’s race-based policies are legally and morally problematic, and she should be held to account for implementing them.

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