The Progressive Prosecutor Movement Faces An Unexpected Challenge — From A Democrat

Over the past several years, dozens of counties in the U.S. have elected prosecutors who campaigned on criminal justice reform. These so-called “progressive prosecutors” argued that pursuing the maximum punishment was not always the most just response to a crime.

As progressive prosecutors have gained traction in elections, Republicans have worked to overrule the will of voters and strip these prosecutors of their power — or even remove them from office. Now the progressive prosecutor movement faces an unexpected challenge: Minnesota Attorney General Keith Ellison (D), a former co-chair of the Congressional Progressive Caucus who calls himself the “People’s Lawyer” and said in a 2021 interview that the “lock ‘em up ... ’ system had its chance and has turned out to be not very effective.”

Earlier this month, Ellison took over a case from Hennepin County Attorney Mary Moriarty because of her decision to offer the two teenage brothers accused of killing a 23-year-old woman plea deals that would keep them in the juvenile system rather than prosecuting the boys as adults. It was a stunning move by Ellison, who had endorsed Moriarty when she ran for county attorney last year — and criticized his Republican opponent during his reelection campaign for threatening to sidestep her. In taking over the prosecution of the case, Ellison is taking a rare step for a Democrat — following in the footsteps of Republicans around the U.S. who have limited the power of democratically elected prosecutors for being insufficiently punitive.

Ellison said in a statement that the governor’s power to assign cases to the attorney general “should be used very sparingly” and that he did “not expect to make a request like it again.” His office declined to provide additional comment.

Minnesota Attorney General Keith Ellison took a case from Hennepin County Attorney Mary Moriarty, a progressive prosecutor he previously endorsed.
Minnesota Attorney General Keith Ellison took a case from Hennepin County Attorney Mary Moriarty, a progressive prosecutor he previously endorsed.

Minnesota Attorney General Keith Ellison took a case from Hennepin County Attorney Mary Moriarty, a progressive prosecutor he previously endorsed.

Moriarty, a former Hennepin County chief public defender who ran on a platform of police accountability and restorative justice, won the election for the county’s top prosecutor on Nov. 8, 2022. Earlier that day, 23-year-old Zaria McKeever was fatally shot in her home in Brooklyn Park, a city northwest of Minneapolis. 

In the weeks leading up to McKeever’s death, she had been threatened and harassed by Erick Haynes, her ex-boyfriend and the father of her young child, prosecutors said. According to prosecutors, Haynes provided the brothers, ages 15 and 17, with a gun to scare McKeever’s new boyfriend at her apartment. But once inside, the boys encountered McKeever, who held a knife, one of the boys said. The younger boy shot McKeever multiple times, according to prosecutors. 

Prosecutors charged Haynes and the two teens, whom HuffPost is not naming because they are under 18, with second-degree murder. Moriarty’s predecessor, Mike Freeman, moved to certify the two teens as adults so they could be tried in the adult system and receive a lengthy prison sentence if convicted. But after Moriarty entered office in January, she offered the boys a plea deal in juvenile court in exchange for testifying against Haynes. The deal offered a hybrid sentence: two years in juvenile prison with a period of extended probation until they turned 21. If they violated probation, they would be subject to an adult prison sentence. 

The plea was a fulfillment of one of Moriarty’s promises to reduce how often the prosecutor’s office sought to transfer kids into the adult system. That promise is backed by science, which shows brain development continues into the mid-20s. As a result, adolescents are more impulsive, susceptible to peer pressure and less capable of weighing long-term consequences. In the past 20 years, the Supreme Court has banned the most severe punishment for juveniles, citing neurological research and children’s capacity for growth and change.

“We are following the science,” Moriarty told the local NBC affiliate in March. “As I said in the campaign, we need to treat kids like kids. Kids aren’t simply small adults. Their brains aren’t as developed. They’re subject to peer pressure, risky behavior, manipulation by adults — is what happened here.”

“And they can be rehabilitated because their brains aren’t fully developed. And we also know when we send kids to prison, they are going to come out at a fairly young age, they’re going to be traumatized and they will be at a greater risk to public safety,” she continued. 

McKeever’s parents opposed the plea offer, which they described as a painful betrayal. “She was very special and her life was just beginning,” Paul Greer, McKeever’s stepfather, told the Star Tribune. “We do believe that there are some [teens] that can be rehabilitated, but they didn’t just carjack. They stole a life — and we’re paying the sentence for it for the rest of our lives.”

Ellison appeared alongside McKeever’s family at a temple in Minneapolis on April 5 and said that Moriarty’s offer was “inappropriate.” The next day, Ellison asked Gov. Tim Walz (D) to assign the prosecution of anyone involved in McKeever’s death to his office, citing opposition to Moriarty’s decision from McKeever’s family and the police union. In his letter, Ellison acknowledged that prosecutors are elected by constituents to make difficult decisions, but said that in this case, Moriarty “is wrong.” 

Ellison also acknowledged that the 17-year-old had already entered a guilty plea “and it is probably too late to change that.” But the 15-year-old’s plea hearing was scheduled to take place the next day. After the governor turned over the case to Ellison, the 15-year-old’s case was delayed. 

Ellison’s move was unprecedented in Minnesota, Moriarty said in a statement, noting that there was precedent in the state for prosecuting a juvenile for homicide without seeking adult certification. Ellison’s decision “threatens the very core of a local prosecutor’s well-settled discretion and role as an elected official accountable to the people to prosecute crime in the county,” she added. 

“We have approached this case trying to balance the need for justice, the need for accountability, and the fact that we have a 10th grader who can either be kept in the juvenile system or locked up with people three times his size and are three times his age,” Moriarty said. “Our decisions were not easy but we stand by them.” 

Ellison is currently promoting his book, marketed as a “powerful and intimate trial diary” about his prosecution of former Minneapolis police officer Derek Chauvin, whose 2020 killing of George Floyd sparked nationwide protests against police brutality. In the book, “Ellison examines the roles of prosecutors, defendants, heads of police unions, judges, activists, legislators, politicians, and media figures, each in his attempt to end this chain of violence and replace it with empathy and shared insight,” according to the book description.