Hennepin County Mary Moriarty is ordering the prosecutors who work for her to discriminate based on race, right after she let a left-wing vandal off the hook for vandalizing six Teslas.
“After deciding to not charge 33-year-old Dylan Adams for allegedly vandalizing six Teslas and causing over $21,000 in damage, Minneapolis County Attorney Mary Moriarty, on the same day, charged a 19-year-old woman with no record with a first-degree felony for keying one car and causing $7,000 in damage. So she did not charge Dylan for causing $21,000 in damage to Teslas, but did charge someone else on the same day for doing $7,000 in damage to a non-Tesla vehicle,” notes Sawyer Merritt.
An article in the New York Post explains:
State government employee Dylan Adams, 33, was caught on video vandalizing six Teslas in late March, as a nationwide campaign of hate-fueled attacks against Elon Musk’s company was in full swing. He left $21,000 worth of damages, over $10,000 of it to a single car. But rather than prosecute his half-dozen felonies, or even the most significant one, Moriarty let Adams walk — offering him “diversion” instead of criminal charges….Yet her office’s own published diversion guidelines limit it to property crimes below $5,000.
And now local reporters have learned that, on the same day she announced the Adams diversion, Moriarty charged a 19-year-old woman — with no prior criminal record — with a first-degree felony for keying one car, belonging to a White Castle co-worker, and causing just $7,000 in damages.
To paraphrase: For Moriarty’s Democratic friends, anything; for teenaged fast-food workers, the law.
Meanwhile, Moriarty was telling the prosecutors who work for her to consider accused people’s race in what sentences to seek against them in plea agreements, when racial disparities exist in the criminal justice system. Minneapolis Channel 11 reports:
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.
“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….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.”… 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…
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….
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…A defendant’s race matters because we know unaddressed unconscious biases lead to racial disparities, which is an unacceptable outcome.”
But the existence of racial disparities is not a reason to consider defendants’ race in criminal sentences. Most courts say eliminating racial disparities is not a sufficient reason to make decisions based on race, although remedying “intentional discrimination” can be. For example, the Sixth Circuit Court of Appeals struck down the federal government’s consideration of small business owners’ race in a coronavirus relief program, which the government argued was needed because of racial disparities in access to credit, because those disparities didn’t show “intentional discrimination” against black people. (See Vitolo v. Guzman (2021)).
And the Seventh Circuit Court of Appeals overturned a desegregation decree that ordered a school district to eliminate academic disparities and higher black discipline rates, explaining that “while there are references in the district judge’s opinion on liability to the underrepresentation of minority teachers (currently 8.7 percent) in the school district’s teaching staff, there is no finding that the school district has ever discriminated (by which we mean discriminated intentionally–the only kind of discrimination that violates the equal protection clause…. in the hiring, promotion, firing, assignment (to one school or another), or transfer of teachers….The magistrate judge thought he was finding intentional discrimination in hiring…but he based his finding of intentional discrimination on statistical disparities, which need not reflect discrimination, intentional or otherwise.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)).
The Supreme Court has rejected taking race into account just because black people are overrepresented or underrepresented in something compared to their share of the population (see Richmond v. J.A. Croson Co. (1989)). It recently said race can only be taken into account in “remediating specific, identified instances of past discrimination that violated the Constitution or a statute,” not generalized racial disparities. (See Students for Fair Admissions v. Harvard (2023)).
Black people being investigated or punished at higher rates than whites is a racial disparity, but it is not usually discrimination, much less intentional discrimination. As the Supreme Court noted in 1996, there is no “presumption that people of all races commit all types of crimes” at the same rate, because that assumption is “contradicted by” reality. (See United States v. Armstrong, 517 U.S. 456 (1996)).
The higher black arrest rate is not due to overpolicing of black people. A 2021 study by the Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at much higher rate than people in general, this mostly reflected underlying crime rates: “white and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).
Similarly, the courts have often recognized that schools are not guilty of discrimination merely because black students get punished or suspended from school at a higher rate than whites, since the higher rate may just reflect higher rates of misbehavior. The Fourth Circuit Court of Appeals noted that a “‘disparity does not, by itself, constitute discrimination,’” in discussing how “statistics show that of the 13,206 students disciplined from 1996–98″ in a North Carolina school district “sixty-six percent were African–American.” It added that this disparity provided “no evidence” that the school district “targets African–American students for discipline.” (See Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001) (en banc)
Similarly, the Third Circuit Court of Appeals rejected the “assumption ‘that “undiscipline” or misbehavior is a randomly distributed characteristic among racial groups.’” (See Coalition to Save Our Children v. State Board of Education, 90 F.3d 752, 775 (3d Cir. 1996)).
Using race to eliminate punishment disparities is itself an illegal form of racial discrimination, constituting a racial quota. The Seventh Circuit Court of Appeals overturned a provision requiring a school district not “to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” It ruled such “racial disciplinary quotas” are illegal, and “violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty.” (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).
In the workplace, certain racial disparities constitute “disparate impact” in violation of the workplace discrimination law Title VII. But many disparities don’t. For example, courts don’t consider a racial disparity between an employers’ skilled workforce and its unskilled workforce to be even a prima facie case of “disparate impact” (see Wards Cove Packing Co. v. Atonio (1989), nor do they consider blacks’ underrepresentation in a skilled position compared to their percentage of the general population to be “disparate impact.” (see, e.g., Janowiak v. South Bend (1987)). Similarly, racial disparities in discipline rates don’t qualify as disparate impact when they don’t take into account employees’ actual behavior, such as their “prior disciplinary record.” (See Mozee v. American Commercial Marine Ins. Co. (1991)).
Such crude disparities don’t constitute “disparate impact,” because they are apples-to-oranges comparisons that ignore who is actually qualified for a job or disciplinary action. Similarly, comparing the percentage of criminal defendants who are black or male to the percentage of the population that is black or male makes no sense, because law-abiding people are not qualified for incarceration. So comparing the racial composition of the prison population to the racial composition of society is an apples-to-oranges comparison that does not establish disparate impact. Moreover, the Constitution, unlike workplace discrimination laws, forbids only purposeful discrimination, not “disparate impact.” (See Personnel Administrator of Massachusetts v. Feeney (1979)).
Considering race in punishment is also sufficiently extreme that it violates the rule that even when race can be considered by the government to remedy discrimination, the consideration of race must not “unduly trammel” a person’s rights. Courts have said that even otherwise valid affirmative action policies can be illegal when they impose a severe loss on someone, like firing a white person rather than merely denying them a promotion or reducing their odds of being hired. (See Taxman v. Board of Education of Piscataway (1996)).
It’s one thing to be given a lesser chance of getting a job because you are white. It is quite another thing to be sent to jail for years longer because you are white. That is far worse, and unduly trammels your rights.
