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A Prosecutor’s Decarceral Potential

A new Minneapolis-area county attorney won’t end mass incarceration. But she has the chance to cause less harm and promote healing.


When George Floyd was murdered by members of the Minneapolis Police Department, I was working as a public defender in Hennepin County, the Minnesota county that includes Minneapolis. It was the third time in my decade as a public defender that there had been a high-profile police killing of a young Black man in the jurisdiction where I practiced. When you work within the criminal system, the horror is how unsurprising the police killings are. As you watch the criminal system strip Black men of their humanity at every turn, state-sanctioned death appears the logical outcome of the structures we have built.

In the summer of 2020, working in the criminal system in Minneapolis meant doing your job while navigating the pandemic, Floyd’s murder, and the uprising simultaneously. Clients were terrified of contracting COVID-19 in jail or prison and not getting health care. Cases started to back up as dockets were canceled and hearings delayed. The center of downtown Minneapolis was occupied by the national guard, making a walk from my office to the jail rather dystopian—barriers, barbed wire, armored vehicles, and twentysomethings with automatic weapons.

After getting through the summer, in September my boss, Mary Moriarty, was ousted from her position as the chief public defender in Hennepin County. Moriarty was a boss I respected, whom I believed was moving the office in the right direction; the timing of her departure was profoundly unfortunate.

Shortly after she left, I—a prison and police abolitionist—had to decide whether to lend my support to her pursuit of the top prosecutor job. It was not an easy decision. Could I support someone pursuing an office that will prosecute members of my community and inflict the harm of prison on people I care about? Ultimately, as much as I love indigent defense, I concluded that I do not believe the U.S. system of caging will be fixed by the public defense system alone. We will not plea-deal our way out of mass incarceration; we will not negotiate away mandatory minimums in the courtroom. And so, even though I wish to see the eventual end of the U.S. system of prosecution, I was left convinced that an ethic of harm reduction means changing the culture and priorities of prosecutor’s offices along the way.

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When I started approaching public defenders about supporting Moriarty, multiple young white public defenders pushed back against what I was doing, implying that I was a race traitor and that my support of the future “chief cager” of my clients was gross and probably unethical. I don’t know if any of those public defenders have sat in both the attorney visitation room and in the family and friends’ visitation room at the prison. I don’t know if they have ever bailed out people they loved who weren’t their clients. But my prior activist work in Nashville was such that I lived with, represented, and bailed out people who had become family. Reducing the harm of prison is not an academic pursuit for me; it is deeply personal. Thus, supporting someone I trust to fill a flawed and unnecessary—but extremely powerful—role felt like an honorable path toward harm reduction now.

Despite fears of how it may dilute the political power of public defenders to lend support to a prosecutor, despite fear of how this moment of change might be coopted by reformist voices, despite fear that I was sacrificing my ethics by being pragmatic, I chose to advocate for someone who will now prosecute people in my community. But here are the reasons I believe she will do so in a way that causes less harm and promotes more healing.

In the wake of Floyd’s murder, a broad cross section of Minnesotans has been seeking to reduce encounters with the criminal system and curb overincarceration in Minnesota. Proponents of a less punitive criminal system with a less violent police component have issued demands, protested, supported ballot initiatives, and boosted Moriarty’s candidacy for Hennepin County Attorney, all of which means that some of those demands may now have real support.

Across the board, our criminal system needs to adopt less punitive approaches to how we address perceived harm. On that front, prosecutors have immense power to minimize unnecessary and discriminatory suffering—both by reducing the sentences of so many who are currently languishing in our jails and prisons and by exercising their discretion to not prosecute, seek money bail, or demand pretrial detention in the first place, as justice allows.

In support of those goals, at a legislative level, the Minnesota Democratic–Farmer–Labor Party currently holds a supermajority in Minnesota and has the opportunity to meaningfully reform our criminal system in the state. One potential change in the legislature’s sights includes expediting the pardon process through a proposed Clemency Review Commission. And there is growing demand to give prosecutors the authority to reconsider and seek reductions of extreme sentences. As the chief prosecutor in Hennepin County, Minnesota’s most populous, Moriarty has the platform and the background to push for such commonsense reforms statewide.

California, Washington, Illinois, Louisiana, and Oregon are the only states where prosecutors have statutory authority to take a “second look” at sentences of people who are already serving time—and in Washington, D.C., recent legislation empowers people to initiate this review. In 2022 five other states—New York, Massachusetts, Georgia, Maryland, and ours—considered adopting similar laws, but none were brought to a vote. The Minnesota bill would give prosecutors authority to petition the court to reduce sentences already handed down. This stalled legislation was supported by the local prosecutors in both Minneapolis and St. Paul, and with the vocal support of Moriarty this time around, there is renewed hope for success at the capitol.

The expectations many have for Moriarty’s tenure as county attorney rests in the lessons she learned from her thirty-one-year career as a public defender, the power she now has to directly address certain policies, and her platform to advocate for reforms in front of the DFL supermajority at the state.

Moriarty spent decades observing the redemptive qualities of people who have caused harm. That knowledge and experience undermine prevailing theories of punishment as a societal good and has equipped her with a predisposition to resist the pressure prosecutors face to be more punitive. In my view, Moriarty has an opening to tackle eight key issues that represent significant decarceral potential in Minnesota.

First, Moriarty has a chance to address racial disparities in the Hennepin County judicial system. One of the first opportunities she has is to weigh in on the racial makeup of the jury panels in Hennepin County. The Hennepin County Public Defender’s Office is currently engaged in long-term litigation over how juries are selected in the county. The allegation is that jury pools assembled here do not meet the standard of a fair cross section of the population as required under the Sixth Amendment. This litigation is based on Hennepin County’s own data, which shows Black jurors are underrepresented in jury pools relative to the countywide population. Black jurors were underrepresented at a rate of 40.7 percent in 2018, 36.9 percent in 2019, and 51.5 percent in 2020. These wildly unrepresentative jury pools can and must change, and there are hearings happening in which Moriarty’s office will have to weigh in.

Moriarty spent decades observing the redemptive qualities of people who have caused harm. That knowledge and experience undermine prevailing theories of punishment as a societal good and has equipped her with a predisposition to resist the pressure prosecutors face to be more punitive.

Second, Moriarty has a chance to impact the offers made by prosecutors in her office. Historically, lawyers at the Hennepin County Attorney’s Office have declined to make offers, claiming that their supervisors would not allow them to depart from a certain level of severity. Moriarty indicated on the campaign trail that she would grant line prosecutors the discretion and ability to offer less punitive resolutions to their cases—a move that will allow for dispositions that reflect the particulars of every person and their circumstances. Moriarty has also indicated that she will fight the “trial tax” often levied on defendants. It is not uncommon for prosecutors to seek harsher sentences after a trial than they sought during plea negotiations. Yet in a system with such an extreme power differential between the state and defendants, many of whom lack the sophistication to mount a trial strategy, punishing someone for exercising their rights and litigating their case undermines procedural justice norms that should be promoted.

Third, Moriarty can and should treat children like children. It has only been the last thirty years that states started transferring children from the juvenile system to be prosecuted as adults. The theory behind these statutes, which began to appear in the 1990s, is that some juvenile behavior warrants the waiver of the protections of the juvenile system. In Minnesota juveniles as young as fourteen can be transferred for adult prosecution. To handle these decisions, Moriarty has hired Sarah Davis, formerly of the Legal Rights Center, to lead the Children and Families Division. Davis, an expert on juvenile justice, has long opposed the transfer of juveniles into the adult system. Davis and Moriarty are certainly familiar with the literature and advocacy surrounding the ongoing brain development of children and young adults and should be expected to reconsider whether any juvenile should ever be prosecuted as an adult in Hennepin County. If children remain in the juvenile system, their sentences are necessarily shorter and the programming is built to rehabilitate and educate.

Fourth, Moriarty has promised to enforce discovery requirements under Brady v. Maryland. That means Moriarty must ensure her attorneys turn over all evidence of a potentially exculpatory nature to the defense. The Hennepin County Attorney’s Office has a long history of struggling to maintain an adequate Brady policy. Prosecutors often do not want to turn over evidence that may reflect negatively on their witnesses, but they cannot withhold such evidence once they have undertaken prosecutions against people. Enforcing an adequate Brady policy could affect the prosecutor’s relationship with police departments whose officers regularly serve as witnesses. An adequate policy may also offend the alleged victim of a crime, which makes it critically important to have an unambiguous policy that forces prosecutors to turn over all Brady evidence. Moriarty has pledged to enforce this constitutional principle, giving those facing the enormous power of the government a chance to seek fairness.

A secondary but notable part of Moriarty’s Brady commitment is her promise to not call as witnesses police officers who have shown themselves to be dishonest. This type of “no-call list” has been part of reforms undertaken in Philadelphia, St. Louis, and Baltimore, to name a few cities, and can prevent prosecutors from building cases based on discredited witness testimony. If enforced, this policy change has the potential to render the system more honest and accountable.

Fifth, Moriarty has said she will establish a conviction review unit to look back at old cases and determine whether there are wrongful convictions to set right. The painstaking work of a conviction review unit has the capacity to correct some of the most egregious injustices of our system. Moriarty could follow the lead of Minnesota Attorney General Keith Ellison, who started a conviction review unit in 2021 and recently saw its first exoneration last month. In fact, Ellison and Moriarty have been close colleagues since they attended law school together, and Moriarty has indicated a desire to partner with his office on her own conviction review unit. A joint effort in this area is within the realm of the possible—and could produce far better outcomes.

But there are even broader implications for such a partnership in other areas. For example, reevaluating cases for wrongful convictions will necessarily involve investigating allegations of police and prosecutorial misconduct and allegations of incompetence on the part of defense attorneys. Two offices pooling resources could work on more cases, support streamlined clemency proceedings, and push for reconsideration of prior sentences—all of which could shed light on the punitive excesses of our criminal system.

Sixth, Moriarty has committed to relying on diversion to keep cases out of the criminal system. Pretrial diversion is a statutory mechanism whereby a prosecutor can offer a defendant the choice to participate in programming that will then result in the charges against them being dismissed at a future date. Moriarty has indicated she wants her prosecutors to make use of this tool.

Seventh, Moriarty discussed openly on the campaign trail her admiration for the work of leading restorative justice advocate Danielle Sered and talked about the need for a pretrial diversion program for violent offenses here in Minnesota. This would confront the reality that, to end mass incarceration, we must address how we deal with violent crime, a primary driver of our prison population. The solution of incapacitating people who have done harm by placing them in a cage is not solving the U.S. addiction to violence. Programs that allow for accountability and repair for serious forms of harm without prison sentences must be a tool available to our system, and can lead to decarceration in ways that focusing solely on low-level offenses cannot.

Eighth, Moriarty will reform the office’s approach to cash bail. Moriarty has long sought to reduce pretrial incarceration of people due solely to their poverty and sees the constitutional problems with a system in which the quality of justice someone receives depends on whether their loved ones can scratch together funds to ransom them from jail ahead of trial. Moriarty has the power to instruct her trial attorneys to seek summons for defendants rather than warrants so that they do not enter the jail at all. If in extreme circumstances a summons would not suffice and they believe a warrant must be taken, her attorneys should advocate for no cash bail to be set. Studies show, and I know Moriarty knows, that the outcomes for individuals are far better in every sense when they have their freedom during the pendency of their case.

In a time when many in Minneapolis have been demanding transformational change, these shifts are opportunities to make a meaningful difference. I expect that these shifts will be opposed by some both inside of the Hennepin County Attorney’s Office and within pockets of the community—just like there has been pushback in other cities where reformers have been elected. But ultimately, Moriarty answers to the Minnesotans who put her into office. If she turns her campaign promises into reality, leading to a safer and more just Hennepin County, she will strengthen the case for more people like her running for office: people who have seen the power of redemption, who see the harm in a punitive approach, and who are investing in the long-term health and safety of everyone in the community. And hopefully, down the road, Moriarty may even commit to reducing her own office’s power—power that for too long has caused a lot of harm.

Image: Eastman Childs/Unsplash