While she should be commended for her intentions, her approach uses the wrong tool to fix the problem. At the same time, the response to Moriarty’s policy by the Center for the American Experiment’s David Zimmer, while correct in its description of crime victimization, also downplays the problem of institutional racism that impacts the fairness of the criminal justice system.
Minnesota, and specifically Hennepin County, has a race problem. More than 25 years ago, I was part of a research team pointing to the Twin Cities as one of the most racially and economically segregated metropolitan areas in America. We documented the disparities in housing and how they impacted education.
But the disparities extend beyond schools and neighborhoods. In 2020, the Minnesota House Select Committee on Racial Justice Report found disparities across a range of issues, including housing, health, wealth, wages and criminal justice. Minnesota remains among the worst in the nation when it comes to racial disparities in all aspects of the criminal justice system, including police stops, searches, arrests, charging and incarceration. A study issued by the Minnesota Supreme Court concludes that there is racial bias in the judicial system. These disparities have produced secondary effects, including significantly lower voter registration and turnout for racial minorities, as well as a significant problem with their exclusion from juries. George Floyd’s murder personifies the race issue in the state and Hennepin County.
Moreover, nationally we know that persons of color have been victims of prosecutorial abuse, either as a result of explicit or implicit biases. Given the above, one should appreciate the problem Moriarty is seeking to address, but there are problems with her approach.
One, for good or bad, the U.S. Supreme Court has moved the interpretation of the Equal Protection clause to render any considerations of race unconstitutional. The recent Students for Fair Admissions v. Harvard decision banning the use of race in college admissions is an example of this approach. The court is also skeptical about considerations of race when it comes to redistricting and employment. It is quite possible that Moriarty’s policy stating that race should be considered in prosecutorial decisions might be unconstitutional. This is even before the Trump administration was pressing hard against diversity, equity and inclusion (DEI) efforts. All this suggests that Moriarty’s office may be facing lawsuits from defendants and the U.S. Department of Justice if it moves forward with this policy.
Two, keep in mind that potential prosecutorial decisions that use race as a mitigating factor ignore the fact that persons of color are disproportionately victims of crime. Mitigating criminal culpability on the basis of race fails to take seriously the racial victimization of crime. Persons of color are far more likely to be victims of many crimes, including violent ones, compared with non-whites. Zimmer correctly notes this in his critique of Moriarty’s policy. With the notable exception of hate crimes, the U.S. Department of Justice and other researchers have found that much of this crime is unfortunately intraracial. People victimize those who live near them and because of persistent racial segregation, this means nationally and in Hennepin County persons of color are more likely to victimize persons of color.
Mitigating criminal responsibility based on the race of the alleged perpetrator effectively says that crime against persons of color should not be treated as seriously compared with those who are white. It also suggests the persons of color potentially are less able to obey the law compared with whites.
Three, the criminal law is the wrong tool to address societal and institutional racism. Already, the criminal justice system is asked to address problems of domestic abuse, substance abuse and domestic violence. At best, the justice system is a crude tool to address these issues.
The racial problems we need to fix include those noted by the Minnesota House Committee. If race has caused social disparities, fix the disparities. This is the part Zimmer appears to downplay in the Minnesota Star Tribune article in which he is quoted. The criminal justice system is biased as a result of other factors and does not seem to offer a solution regarding how to fix them. Lady Justice, contrary to his comments, is not blindfolded but biased. However, the fix is not to ignore the bias but work to correct it across other institutions that are driving the problems in the criminal justice system.
A fair criminal justice system recognizes that all persons, regardless of race, should be expected to obey the law. But a fair criminal justice system should reflect a quality of mercy that is not strained and background social injustices need to be fixed to secure that fairness.
David Schultz, Editor-In-Chief of Minneapolis Times, is a distinguished professor of political science at Hamline University. He teaches in political science, legal studies and environmental studies.
This article first appeared on MinnPost and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.
