This piece is part of Twin Cities Daily Planet’s series covering the 2018 elections season. Every year we’re moving towards a possibility of a more diverse legislature. And with it, we hope comes increased opportunities for communities historically shut out of political processes and power to imagine and enact policies to create a Minnesota that benefits all its constituents.
“The prosecutor is single-handedly the most powerful person in the courtroom,” said Elizer Darris, ACLU Campaign for Smart Justice organizer. Darris is spearheading doorknocking about the role of prosecutors, elected officials known in some states as district attorneys and here in Minnesota as county attorneys. He’s focusing on Hennepin County neighborhoods with historical disinvestment – and low voter engagement.
It’s no coincidence, Darris said, that these communities are also the “most hard-hit by the criminal justice system.”
Prosecutors determine whether to bring felony charges against people accused of crimes. They can also opt to reduce charges, send defendants to treatment programs or dismiss charges altogether.
County prosecutors control the plea-bargaining process as well. In Minnesota in 2016, roughly 97 percent of felony cases were resolved by plea bargains.
Kathleen Cole, a Metropolitan State University social science associate professor who teaches classes on the criminal justice system, said, “When we talk about criminal justice reform, a lot of the conversation tends to be focused on police … But mass incarceration doesn’t happen without prosecutors choosing what to charge and what kind of sentences to pursue.”
Darris hears “a lot of frustration” as he and his volunteers knock doors and talk with people about criminal prosecution.
“There’s a lot of stories, a lot of angst, and anxiety and anger,” Darris said. Conversations resulting from doorknocking are “a great avenue to release some of that energy. Otherwise, it’s just pent up. Who’s listening? Who’s asking any questions about the role of the prosecutor and how it has impacted and affected the community? No one,” Darris continued.
Hennepin County voters have to decide
Until the last few years, county prosecutors drew little scrutiny. The mostly low-profile nature of the prosecutor started changing in Nov. 2014. That was when Missouri’s Saint Louis County prosecuting attorney Bob McCulloch announced he was not filing charges against Ferguson police officer Darren Wilson for shooting unarmed black teenager Michael Brown.
Across the country, organizers with the Movement for Black Lives, the Black Youth Project 100, and other groups led by people of color worked to oust prosecutors like McCulloch who’d declined to charge officers in high-profile police shootings. In many cases, their efforts helped topple long-serving incumbents and elect prosecutors pledging criminal justice system reform.
Nationwide there are over 1,000 district attorney and county attorney positions up for election in 2018. These elected prosecutors have the power to increase or decrease mass incarceration and all its collateral destruction through their racial equity policies and prosecutorial discretion.
On Nov. 6, Hennepin County voters will either re-elect current County Attorney Mike Freeman or place his challenger Mark Haase into this key seat of power.
Freeman has served as county attorney for almost 20 years, from 1991 to 1999 and then from 2007 to the present. The last time he faced a challenger was 2006.
When asked about his record on racial equity and social justice, Freeman often mentions his work with youth. His office has stopped prosecuting curfew and truancy violations and collaborated with community partners to halve the number of young people in the county’s juvenile detention facility. He’s also proud of establishing the Domestic Abuse Service Center, where abuse survivors can access help and resources.
But Freeman’s critics say he hasn’t done enough to reduce overall incarceration levels. At a time when most states were reducing prison populations, the number of people that Hennepin County sent to prison was going up, from 1,509 prison admissions in 2012 to 1,664 in 2017. Nearly 70 percent of the people that Hennepin County prosecutors and judges sent to Minnesota prisons in 2017 were black.
Freeman’s DFL-endorsed challenger Haase is an attorney who worked with the Council on Crime and Justice and co-founded the Second Chance Coalition, a group that helped pass drug sentencing reform at the state legislature in 2016. Haase also helped lead the Ban the Box campaign that led to the passage of a Minnesota law banning employers from asking people about their criminal records on initial job applications.
Haase is running on a pledge to reform the Hennepin County Attorney’s office. Other U.S. prosecutors who’ve won office on reform platforms in recent years have sometimes had to compromise as they confront political pushback, budget constraints and the established culture of the offices they supervise as they try to implement change.
Raj Sethmager, an associate professor of criminal justice at Metropolitan State University, said if elected, Haase will have to balance fulfilling campaign promises with responding to the many residents who’ll demand a tough-on-crime approach.
“Mark Haase … is committed. He truly believes that he can make a difference … And I want to honor his leadership,” said Sethmager. “But I also know the system is so much larger than Mark Haase.”
Reforms and transparency
One of the biggest differences between Haase and Freeman is how they answer the question of whether Minnesota even has a mass incarceration problem.
In an ACLU of Minnesota candidate questionnaire, Freeman wrote that “we have not experienced ‘mass incarceration’ in Minnesota” because we have one of the lowest incarceration rates in the U.S.
Haase responded that Minnesota does have a low incarceration rate for the U.S., but we have three times the incarceration of Canada and one of the highest rates in the nation of people on probation.
During an August interview with the Twin Cities Daily Planet, Haase said cash bail reform is one step toward making the criminal justice system more equitable. Current policies in Hennepin County mean that poor people frequently have to choose between going into debt to pay bail or staying in jail before their case is resolved, risking losing jobs, homes and sometimes even custody of their children. Cash bail also disproportionately impacts people of color.
Haase said he’ll only request cash bails for defendants who pose a high flight risk or public safety threat.
At an Oct. 9 debate sponsored by Black Votes Matter MN, Freeman said that “fully 80 percent” of defendants in Hennepin County are released before their cases are resolved. He did not specify how long they stay in jail before their release.
“The people who are held are primarily those who commit the most serious crimes,” said Freeman, “and we believe public safety demands that they be held.”
Haase also wants to enact reform on marijuana prosecution. He pointed to the way the county attorney’s office handled cases from a recent downtown Minneapolis marijuana sting as an example of why change is needed.
In the first half of 2018, undercover police arrested 47 people for selling marijuana on Hennepin Avenue. Most of the people arrested were selling a gram or two of marijuana for about $10-20. The Hennepin County Attorney’s office charged all 47 people arrested with felonies – 46 of the 47 people were black.
Public defenders approached prosecutors about the high number of small-sale marijuana felony charges they were bringing against black people. When the pattern continued, Chief Public Defender Mary Moriarty alerted Minneapolis Mayor Jacob Frey. The mayor instructed Police Chief Medaria Arradondo to end the sting. On June 7, 2018, Chief Arradondo announced he was following the mayor’s directive.
Within hours, Freeman released a statement that he hadn’t known about the sting but that he’d taken “immediate steps” to dismiss the cases once he found out about it.
In his interview with the Daily Planet, Haase said that when prosecutors charged these cases, they were “perpetuating the racial disparities that start with how we enforce our laws.”
Those disparities include Minneapolis police stopping, searching and frisking black people at much higher rates than white people. In addition, a Minnesota 2020 study found that the state has some of the worst racial disparities in marijuana possession arrest rates in the United States, with black Minnesotans an estimated six times more likely to be arrested for marijuana possession than white people even though reported usage rates are roughly equal.
“The county attorney has a responsibility to mitigate those disparities,” Haase said.
Freeman’s stance on small-amount marijuana sales appears to have changed since the sting came to light last summer. At the debate this October, Freeman said he will no longer charge sales cases under 5 grams and that he’ll divert cases between 5-10 grams. Freeman also said his office already diverts possession cases between 42.5 to 100 grams as a matter of course.
Haase has pledged to not charge first-time marijuana possession cases up to 100 grams and first-time sales cases up to 42 grams. For subsequent cases or larger amounts, he wants to use a “graduated approach” of diversion programs, with the goal of avoiding people getting conviction records.
Haase also has committed to advocating at the state legislature for full marijuana legalization, while Freeman has not.
In addition to his plans on cash bail and marijuana, Haase wants to expand the use of restorative justice. At the same debate this October, Freeman said he thought restorative justice worked best for misdemeanors, not the felonies his office handles. Haase disagreed. In talking with restorative justice practitioners, Haase is hearing that restorative justice work can be applied to high-level cases but they’re working with such low-level cases that don’t need the full spectrum of restorative justice work that it ultimately is “not a good use of resources.”
For more serious offenses, Haase said, “Sitting across from people who you’ve harmed is in some ways a greater level of accountability than just getting a fine or doing community service.”
Haase also supports collecting more data in the county attorney’s office and making that data public.
“Our justice system has been sort of this black box that people think just kind of happens to us and we don’t have any control over,” Haase said. “But it’s like any other government function. It should be transparent.”
Diverting youth and pursuing restorative justice
In an interview with the Daily Planet, Freeman talked about a way his office used data to identify and correct a racial disparity.
In 2013, he enlisted the Council on Crime and Justice (which at that time employed Haase) to study his office’s juvenile charging record. The study found a gap between the number of white juveniles who completed diversion programs and avoided criminal convictions and the number of black juveniles who did.
Freeman discovered that housing insecurity and address changes meant black youth were less likely to receive notifications about diversion programs. His office improved notification procedures, and currently, white and black youth complete diversion programs at almost equal rates.
Freeman said black youth are still detained at much higher rates than youth of other races, due to “a whole lot of societal issues, some of which are beyond my jurisdiction.” In 2016, 70 percent of youth in the Hennepin County Juvenile Detention Center were black.
But since the county started implementing a Juvenile Detention Alternatives Initiative program in 2005, the number of young people ages 10 to 17 held in detention has dropped from about 100 youth a day to just under 50 a day.
By law, officials are required to collect more data on juvenile cases than they are on adult cases. Many criminal justice advocates say the lack of data on adult felony cases makes it much harder to hold prosecutors accountable.
“We have frankly not had very good data, because we haven’t had anybody to do the data work,” Freeman told the Daily Planet. He admitted that he’s tended to prioritize hiring more prosecutors to ease his attorneys’ high caseloads over hiring a data analyst. “I finally realized that I just had to have more stuff,” he said.
His office has now employed a data analyst for about two years. At the Oct. 9 debate, Freeman said that in Jan. 2019, he plans to share much of the data they’ve gathered on his office’s website.
Accountability for police shootings of civilians
One of the most contentious issues a county prosecutor handles is deciding whether to charge police officers who shoot civilians. After white officers Mark Ringgenberg and Dustin Schwarze killed Jamar Clark, an unarmed black man, in 2015, activists pressed Freeman not to use a grand jury in the case. Many saw it as a community win for transparency and accountability when Freeman opted to make the charging decision himself and gave Freeman credit for taking responsibility. After Freeman announced that he would not charge Clark’s killers, community members gathered and marched in protest.
In a March 31, 2016 blog post, labor organizer Javier Morillo analyzed Freeman’s statement on his charging decision. Morillo wrote that Freeman did not quote any of the black eyewitnesses who said that Clark was handcuffed when officers shot him because Freeman said the testimonies did not corroborate one another. Yet Freeman quoted the officers’ testimony that Clark had said, “I’m ready to die,” even though no other eyewitnesses corroborated that testimony.
Morillo wrote, “The not-so-subtle message was clear: Police Words Matter. Black Eyewitnesses’ Words Do Not.”
More recently, community members have repeatedly asked Freeman if he thinks racial bias may have played a role in his decision to charge police officer Mohamed Noor, a Somali immigrant, in the 2017 shooting of Justine Ruszczyk, a white Australian immigrant, while not charging Ringgenberg and Schwarze in the Clark case or white officers Justin Schmidt and Ryan Kelly for shooting black North Minneapolis resident Thurman Blevins in 2018.
During Freeman’s August 2018 conversation with the Daily Planet, Freeman insisted that his office has made substantial progress on police shootings, including being much more transparent about sharing evidence than many other prosecutors and opting not to use a grand jury in the Jamar Clark and Thurman Blevins cases.
Asked what he thought about community members who believed justice was not done regardless of his claims of transparency, Freeman responded, “People said, ‘Well, great, you charge a black cop shooting white people, not white cops shooting black people.’ That’s really unfair… [I]n each case, we reviewed independently whether or not the police violated criminal standards. I don’t take the race of either the victim or the officer in hand, and no one in my office has ever done that. We consciously talk about that, OK? We recognize there’s implicit bias … Some people are simply not going to like the result and they’re going to complain about it. And I accept that that’s part of this job.”
Freeman continued, “I’m a fairly spiritual man. I’m comfortable with what I’m doing. I make mistakes, I have things to learn, but I’m comfortable with who I am and the decisions I make. OK? And I don’t mind you quoting me, because that’s who I am. And if the voters don’t like who I am, pick somebody else, God bless ‘em – that’s their job. I don’t think they will. I hope they don’t.”
Want to learn more? The National Council of Jewish Women, the ACLU of Minnesota and Jewish Community Action are sponsoring a forum with Mike Freeman and Mark Haase on Tuesday, Oct. 23 at 6:30 p.m. at North High School, 1500 James Ave. N. in Minneapolis. You can also read the candidates’ answers to questions about mass incarceration, prosecution policies and more at votejusticemn.org.