Perry Moriearty is an associate law professor at the University of Minnesota who specializes in criminal justice and is a member of Minnesota’s Clemency Review Commission. She and Moriarty — similar names, no relation — were colleagues at the University of Minnesota Law School and worked on cases together. She contends Zimmer’s line of thinking is antiquated.

“It’s frustrating that they’re a think tank still making that argument,” she said. “Studies have shown at every decision point in this system from whether to arrest, to prosecute, to not divert, to charge, to detain and hold and place on bail, at plea negotiations, at every stage there are documented [racial] disparities.”

Moriearty said thousands of those studies have taken into account varying crime rates in certain neighborhoods and socioeconomic factors such as income levels, education and family dynamics and still found racism in the criminal justice system — especially against Black and Indigenous people.

Because of that, she said, race has been a historical factor in prosecutorial decisionmaking, it just was never acknowledged.

“We know human beings by virtue of having human brains are considering race and they’re generally doing it unconsciously,” she said. “Being explicitly race conscious can help decisionmakers recognize their automatic tendencies to rely on racial categories and, in some cases, stereotypes, even when they’re not trying to.”

Zimmer argues, though, that any emphasis on race biases the criminal justice process.