Hennepin County's new race-conscious approach to plea bargains could face constitutional challenges.
Starting next week, prosecutors will be required to consider race when negotiating plea deals. Hennepin County Attorney Mary Moriarty says the move is part of the office's work to address longstanding racial disparities.
Political Science Professor David Schultz says that may not sit right with many Minnesotans.
"I think most people would say discriminating on the basis of race was wrong in the past, and prosecutors shouldn't have done it," Schultz says. "I don't think too many people are going to like the idea of now race maybe being a mitigating factor in decisions."
Schultz says the practice could be seen as discriminatory and could face legal roadblocks along with leaving too many thing to chance.
"Either the U.S. Justice Department coming in, or potentially I could see individuals raising the race issue as part of a constitutional argument challenging any type of legal action being brought against them," Schultz says.
Detractors argue the change may be violating the equal protection clause of the 14th Amendment.
Retired Hennepin County Judge Kevin Burke, who Moriarty clerked for early in her career, tells WCCO's Chad Hartman that it is an issue that needed to be brought into the spotlight.
"We're really divided as a nation about race," Burke begins. "So if you end up saying things like, 'should you consider race in a decision,' a whole bunch of people will say no. But the fact of the matter is we know from implicit-bias research, people do consider race. So it could very well be that all Mary Moriarty's policy is, is an attempt to bring out of the shadows what has been there for a long, long time."
Burke adds he doesn't see any reason why it shouldn't be a legal part of the process.
"So, raising the issue about how do we deal with charging decisions and plea bargaining, and acknowledge that race can negatively impact how we make decisions, is not an irresponsible thing to do," Burke says.
He does say the issue is likely on its way to the Supreme Court, where he thinks it is likely they won't even offer up a ruling.
"The decision to even consider how plea bargaining occurs was a very split decision by the U.S. Supreme Court, and I think it's as likely or more likely that the Supreme Court would just say plea bargaining has nothing to do with judges and we're going to ignore it," Burke explained. "So I don't see any chance that this is unconstitutional."