Progressives rejoiced last year when Democrat Keith Ellison won a tight reelection race for Minnesota attorney general against a police-backed opponent who attacked him as being “soft on crime.”
In the same election cycle, Ellison’s ally Mary Moriarty won election as Hennepin County attorney, installing a reform-minded prosecutor in Minneapolis about three years after the city’s police murdered George Floyd. Moriarty, previously the chief public defender for Hennepin County, took office in January and implemented reforms with a focus on correcting failures in the juvenile justice system.
Now, three months into their terms, Ellison and Moriarty are no longer on the same side of the reform platform they once shared.
Late last month, Moriarty’s office issued new guidance on prosecuting children, which was designed to keep as many kids as possible out of the adult criminal system. Before issuing the guidance, Moriarty’s office chose not to charge two teenage brothers accused of murder as adults.
Last week, Ellison’s office intervened in the juvenile murder case. His office described the juvenile charges as “inappropriate” and requested that the governor take the case away from Moriarty’s office and assign it to him. Democratic Gov. Tim Walz, who was reelected along with Ellison and Moriarty last November, assigned the case to Ellison on Thursday — pitting the two would-be reformers against each other.
The affair has become a tense point in what was once a roundly promising trajectory for reforms in Minnesota. In 2022, Ellison endorsed Moriarty, who, like him, faced a police-backed opponent. And Ellison’s popularity was propelled in part by his handling of the prosecution of the cops who killed Floyd, and his campaign for reelection celebrated his record on reform.
A source involved in the jurisdictional dispute, who requested anonymity to discuss sensitive private deliberations, said Ellison told Moriarty he needed to appear tough on crime for his next reelection campaign. “The Attorney General denies having said that or anything like it,” said Ellison spokesperson John Stiles.
Ellison also has a tour planned for this spring to promote his upcoming book on ending the cycle of police violence. Some Minnesota political operatives suspect he’s mulling a run for governor.
The case stands as a poignant example of how the politics of crime have limited the movement to elect reform prosecutors by exerting a constant pressure to moderate progressive positions. Ellison’s intervention abandons hard-won reforms that were only recently given the stamp of approval by Minneapolis voters.
Ellison’s move against Moriarty is part of a larger pattern of state-level officials seeking to limit and even strip power from reform-minded local prosecutors. The juvenile murder case, however, is an outlier because, in most cases, the attacks on prosecutorial independence are being carried out by Republicans against Democratic prosecutors.
Moriarty told The Intercept the decision to reassign the case was purely political. “They’re not looking at this in the larger picture. We are the only Western country that tries children as adults and sends them to adult prison.” She added, “China and Afghanistan don’t do that.”
Ellison told Moriarty the boy who pulled the trigger would go to prison one way or another — either he would send him or she would.
Moriarty expressed dismay that Democrats are taking up the same strategy as the Republicans who target reform-minded prosecutors.
“It’s very disappointing that we can’t have the conversation about our policies having failed us. Clearly sending youth to prison for decades hasn’t kept us safer. It has not deterred youth from being involved in these kinds of behaviors,” Moriarty said. “It’s really disappointing to have that undermined by Democrats. I guess you would expect that from Republicans, but not Democrats who campaigned on reform.”
Advocates for reformist prosecutorial policies echoed Moriarty. “A harsh, fear-driven narrative is causing many elected leaders to worry about not simply perceptions of crime but the backlash when more reform-minded policies are implemented,” said Miriam Krinsky, executive director of Fair and Just Prosecution, a group that advocates for judicious prosecutions. “Communities are being impacted by this fear narrative rather than looking dispassionately at data and what research tells us.”
“It’s ironic that for decades no one has questioned the exercise of prosecutorial discretion when that discretion has been used to ramp up penalties or to look the other way.”
There’s pressure across the political spectrum to return to policies adjacent to the failed crime policies of the 1980s, she said. “It’s ironic that for decades no one has questioned the exercise of prosecutorial discretion when that discretion has been used to ramp up penalties or to look the other way in lieu of holding police accountable.” Now that some prosecutors are trying to embrace a more restrained and sensible approach, it’s causing pushback by those who feel threatened by those changes.
Some of the advocates targeted the governor directly. “You have tragically become part of a disturbing reactionary trend,” said a Sunday letter to Walz from the Minnesota chapter of the National Lawyers Guild, “and placed yourself in the company of the likes of Florida Governor Ron DeSantis and Missouri Governor Mike Parson by preventing a local progressive prosecutor from exercising her prosecutorial discretion in acting consistently with her principles — and the principles that she was elected to carry out. Your decision to play to the crowd does grave damage toward making reform a reality.”
In Minnesota history, it’s extremely rare to have the governor assign a case to the attorney general. The last time it happened was in the 1990s. In the exchange of letters preceding the reassignment of the case to the attorney general, both Ellison and Walz acknowledged the rarity of such occurrences.
“I do not make this request lightly and I do not expect to have to make a request like this again,” Ellison wrote. (Ellison’s office referred questions about the case to its statement last week.)
Under Minnesota law, county attorneys can refer criminal cases to the attorney general, and the governor may assign cases to the office as well. Usually, when cases get transferred, it is because the elected county attorneys who would normally handle felony criminal cases are understaffed or lack experience — but transferred with the approval of the county attorneys themselves.
Over the last four years, the attorney general’s office has taken at least 50 cases that were referred from county attorneys in Minnesota, including the prosecution of the cops who murdered Floyd.
Nothing in Minnesota statute requires the attorney general to request the governor to reassign a case. “The governor’s hope here was that whatever criticism there might be would be focused on the attorney general,” Moriarty said.
Family members of Zaria McKeever, the 23-year-old woman killed in the juvenile case that Ellison took on, were outraged by Moriarty’s decision not to charge the two teenage brothers in the case as adults.
Erick Haynes, McKeever’s 22-year-old ex-boyfriend who she shares a 1-year-old child with, recruited the boys, ages 15 and 17, to break into her apartment and beat up her new boyfriend. Haynes drove the boys to McKeever’s apartment, where they broke in and shot her. Her new boyfriend escaped through a window and called 911.
In March, Moriarty’s office offered the boys a plea bargain in exchange for their testimony against Haynes, who had been harassing McKeever in the weeks leading up to her murder, according to court filings. The boys were offered two years in a juvenile facility and probation until their 18th birthdays. Haynes was charged in November with second-degree murder.
In a heated exchange with McKeever’s family during a press conference last week, Moriarty defended her charging decision and pointed to the failures of the adult criminal system in stopping juveniles from reoffending. Instead, adult charges would increase the likelihood that the boys went on to commit more crimes, she said.
“We know that when you send kids to prison, violence happens in prison. Everybody is traumatized by prison,” Moriarty told The Intercept. “What do we expect a 15-year-old to look like when they get out of prison in their 30s?”
Ellison’s request to take over the case was met with opposition before it was made. Though it did not mention the case by name, the Minnesota County Attorneys Association voted unanimously in favor of a resolution expressing that it did not support the attorney general asking the governor to involuntarily remove county prosecutors from cases.
After Ellison formally requested to take over, the county attorneys association followed up, stating its objections to the governor’s intervention in a case that was actively being prosecuted by a county attorney. “Without discussing the merits of any particular case, our Association is of the view that when a County Attorney is actively prosecuting a case and exercising the decision-making authority for which the County Attorney was elected, the Governor should not choose to exercise that statutory authority,” the group wrote. (The association declined to comment on Walz’s decision to reassign the case.)
Moriarty said media coverage often seizes on a single case but fails to address how out of step “tough-on-crime” approaches are with juvenile brain development and research on recidivism. “There are many in the community who do support our decision,” she said. “There are many in the community who want us to be doing something different with youth. I think that’s why I got elected by such a large margin. There is nothing new that I am doing that I didn’t talk about during the campaign,” she said.
“There is this perception that because of the nature of the act, a youth is irredeemable,” Moriarty said. “There’s a huge gap here in reporting on brain development, and how yes, it’s intuitive that somebody who pulls a trigger, even if they’re 15, is less likely to be rehabilitated, when the science says that’s not true.”
Critics of Ellison’s decision have pointed to examples where Walz denied requests to reassign cases to the attorney general when the accused were police officers or jail staff.
The National Lawyers Guild letter said, “Instead of promoting equal justice, you are reinforcing the status quo where prosecutions are not permitted against the privileged but are required to be harsh against people from marginalized communities.”
Ellison’s intervention in the case could have a chilling effect on future reformers as well as the plea bargaining process in general, Krinsky, of Fair and Just Prosecution, said. When Moriarty made her decision in the McKeever case, she was doing what she told the community that elected her she would do — and Ellison’s request and the governor’s compliance took that decision-making power away from the community.
“It sets a hugely dangerous precedent to create a starting point that undoubtedly is going to chill faith in the plea bargaining process, and chill the autonomy of local prosecutors, and chill the next prosecutor from making tough decisions around when to show restraint, and when to treat kids as kids,” Krinsky said. “And when compassion and mercy is the better result for the individual as well as the community.”
Update: April 13, 2023, 3:55 p.m. ET
The story has been updated with a comment from Keith Ellison’s office received after publication.