Democratic Prosecutor Dumps Racist Poison into Charging Decisions and Dispositions

Are you white? Too bad, sucker. Are you black? Come on in and relax.

I was a federal prosecutor for most of my career — a non-political appointee working for administrations of both parties. I’m happy to tell you that I never took, and was never asked to take, racial identity or any other racial consideration into account by either Democratic or Republican administrations. If I had been, I would have quit on the spot. Every sober lawyer, including all my colleagues, understood and understands that mixing race — either favoritism or animus — with law is poison. No outcome that emerges from such a mix can, will, or should be trusted. In addition to its inherent pollution, the public perception of justice as fair-minded and neutral will take a hit like nothing else could do. Defense lawyers paying off judges for favorable dispositions (see, Operation Greylord in Chicago in the 1980’s) will seem like a walk in the park by comparison.

Well, that was then. Because of the Democratic Party’s wholesale sellout to race-huckstering, times have changed. We could see it coming with Wokeness generally, a big part of which was the relentless shaming of America as a 400 year-long racist cesspool (you know, “1619”). One of the clearest manifestations came in the just-concluded Administration, in which Joe Biden, with his eyes open for once, installed Kristen Clarke as Assistant Attorney General for Civil Rights. This was after Ms. Clarke, while at Columbia Law School, wrote the following (then in her twenties, so this was not a middle school flier):

One: Dr Richard King reveals that the core of the human brain is the ‘locus coeruleus,’ which is a structure that is Black, because it contains large amounts of neuro-melanin, which is essential for its operation.

Two: Black infants sit, crawl and walk sooner than whites.

Three: Carol Barnes notes that human mental processes are controlled by melanin — that same chemical which gives Blacks their superior physical and mental abilities.

Four: Some scientists have revealed that most whites are unable to produce melanin because their pineal glands are often calcified or non-functioning. Pineal calcification rates with Africans are five to 15 percent, Asians 15 to 25 percent and Europeans 60 to 80 percent. This is the chemical basis for the cultural differences between blacks and whites.

Five: Melanin endows Blacks with greater mental, physical and spiritual abilities — something which cannot be measured based on Eurocentric standards.

Ms. Clarke did not deny writing any of that; my understanding is that the defense is that she wrote it as an ironic counterpoint to The Bell Curve by by Richard J. Herrnstein and Charles Murray. I have been unable to find any public source in which that defense surfaced before her Senate confirmation hearing, although I concede I have not checked with Christine Blasey Ford.

I should have seen that all this was the precursor to what has just happened in Hennepin County (mostly, Minneapolis), Minnesota. CBS News has the story:

Late Saturday night, the U.S. Department of Justice announced it was opening a racial discrimination investigation against the Hennepin County Attorney's Office for a new policy that would take an individual's race into consideration when making plea deals.

I should add that 90% or more of criminal cases are resolved by plea deals.

In a letter from the DOJ to Hennepin County, the agency states that it intends to see if the attorney's office "is engaged in a pattern or practice of depriving persons of rights, privileges or immunities secured or protected by the Constitution or laws of the United States." The letter also says the agency will be particularly focusing their investigation on whether or not the attorney's office engages in illegal consideration of race in its prosecutorial decision making.

So it seems that race might also be telling the tale in charging decisions as well, which any defense lawyer will tell you is the most important initial decision the prosecutor’s office makes.

The DOJ says its decision to open this investigation is based on a new policy from the Hennepin County Attorney's Office called, "Negotiations Policy for Cases Involving Adult Defendants," which directs prosecutors to consider racial identity when formulating plea offers.

The DOJ quotes the policy in its letter reading:

"Racial identity...should be part of the overall analysis," and that prosecutors, "should be identifying and addressing racial disparities at decision points, as appropriate."

The Hennepin County Attorney's Office announced this new policy change at the end of April via memo.

Prominent in the announcement was this beauty:

Mary Moriarty's office said that "proposed resolutions should consider the person charged as a whole person, including their racial identity and age."

The “whole person” part cracked me up. Could they have come up with any lamer attempt to hide the brussels sprouts in the M&Ms? It reminded me of a Woody Allen movie (I think) in which a 13 year-old is trying to buy a couple of porn magazines at the checkout counter. He nonchalantly folds them in with several other items like band-aids, newspapers, notebooks and other stuff. The middle age checkout lady is quietly tallying the price of the merchandise, but when she gets to the porn magazines, she yells at the top of her lungs to the store manager in the back, HEY JOE, HOW MUCH IS “SIN SAFARI” AND “FLESH NEST”?

On April 28, a spokesperson for the Hennepin County Attorney's Office said in a statement they are trying to address longstanding racial disparities.

"We would neglect our duty of pursuing fair and just outcomes if we pretended these didn't exist," the spokesperson said. said in a statement they are trying to address longstanding racial disparities.

Someone might want to tell the Hennepin County Attorney's Office that individual criminal cases are supposed to do justice to the particular parties involved and are not a social program. They had “collective justice” in Germany at one point, true, but is that the example we want to follow?

In Minnesota, home to Gov. Tim Wash and Attorney General Keith Ellison, maybe the bets are off.

Rachel Moran, a law professor at the University of St. Thomas, said the investigation likely lacks merit. "The Trump administration generally is taking aggressive tactics toward all manner of entities that consider race," Moran said.

Just so, and, in the Supreme Court, lopsidedly won the most prominent of them, the Harvard and UNC racial preferences case.

The difference between that case and this one is clear, and hardly cuts in favor of Hennepin County. There is an arguable case, sort of — although not a winning one, as the Court correctly found — that very widely practiced college admissions practices are a form of remedial social program. There is no case whatever that the individual prosecution of Mr. X for knocking over the gas station is any such thing. The idea the the charging decision and/or the plea deal in Mr. X’s case should depend on his race is not merely a constitutional violation. It’s appalling and odious, a slap in the face to the most important things America stands for — and a denigration of the criminal justice system like nothing I’ve ever seen.

We’ve had a lot of bad stuff from Donald Trump, but for my money, we’ve never seen anything as repulsive as this, or as ominous to our most central idea of what justice means.