Bitter Debate Over Judicial Discretion Divides Minnesota

Whom to charge with crimes? When to cut some slack? Which culprits get branded felons, which get a second chance? Such subjective questions are usually left to a prosecutor’s discretion, which in varying degrees may be governed by politics, ambition, values, temperament and even, on occasion, the law.

In Minnesota, however, certain county judges are balking at this arrangement. There’s an uprising going on in the state’s judicial ranks that has as much to do with matters of the heart as the law. Judges who think a prosecutor too tough are flat out refusing to enter judgments against guilty defendants. You should have given this one diversion, the judges essentially are saying. So we’re going to do it for you.

The result, not surprisingly, is a constitutional battle that, gathering steam and bile, has spread from county courthouses to the state Legislature. At a recent hearing before the state Senate’s Crime Prevention Committee, Dakota County Atty. James Backstrom, railing at the judges, declared nothing less at stake than “one of the most basic principles of our government, the separation of powers.” But others see a different sort of virtue hinging in the balance: the furtherance of justice.

It was in Carver County, just south of the Twin Cities, that this brouhaha began. The facts of the case are undisputed. On three occasions in December 1993 and January 1994, one Billy Jim Krotzer, 19, engaged in consensual sexual intercourse with his 14-year-old girlfriend. Then the girl’s mom found out; the sex stopped but the relationship continued, with the mother’s blessings and strict rules.

Someone outside the family, not satisfied with that amicable resolution, soon after notified the Chaska Police Department. A detective arrived to interview all involved parties. The Carver County Attorney’s office--over the objections of the girl and her family--in time charged Krotzer with third-degree criminal sexual conduct.

By law, a conviction or guilty plea would have required Krotzer to register as a predatory sex offender, and for 10 years notify authorities whenever he moved. Appalled, the girl’s mother urged the judge to “let it end” without any legal action, calling her daughter and Krotzer “good kids” who had “made a mistake, then learned a lesson.” Even a Department of Corrections investigator, not known around the county as an easy touch, thought the whole thing “inappropriate” because “there is no history of aggressiveness” and “the defendant seems to have a non-delinquent personality.”

That’s also what Judge Philip Kanning came to think. After Krotzer entered a guilty plea and the corrections officer submitted his pre-sentence investigation, the judge did what they both urged: He imposed a two-month jail sentence, put Krotzer on five years’ probation, forbade unsupervised contact with girls younger than 16, then “stayed adjudication” of the charge. In essence, this meant he officially declined to accept or enter Krotzer’s guilty plea; he punished the young man but spared him a criminal record and a sexual-predator label. It was a carefully calculated ruling: If the judge had simply dismissed charges, the prosecutor could have refiled them.

It was also, as even Kanning allowed, a ruling of uncertain legitimacy greatly opposed by the county attorney. It falls to legislators to define crimes and penalties, after all, and to prosecutors to decide when and whom to charge. No Minnesota statute expressly permits judges to stay adjudications over prosecutors’ objections. And yet, the final disposition of a criminal case is ultimately a matter for the presiding judge.

Facing such conflicting mandates, Kanning invited appellate review, “so maybe we’ll all know where we’re going.” He soon got it: First, the state Court of Appeals soundly supported his ruling, then last May, so did a more divided state Supreme Court. In the end, both appellate courts--after expressing puzzled regret over the prosecutor’s refusal to divert Krotzer’s case--affirmed Kanning’s “inherent judicial authority” to act in the “furtherance of justice.”

Thus the uprising began. Encouraged by the Krotzer ruling, dozens of judges in recent months have started staying adjudications. Dakota County--where Backstrom takes pride in calling himself a “tough prosecutor” with a “very restrictive” diversion policy--has seen the most: 80 stays in all, 67 of them felonies. The great majority involve welfare fraud; a good number involve first-time offenders who failed to report part-time jobs and other sources of income. One, a woman who wrongfully received $797 in welfare benefits and food stamps, won a stay because a judge feared she’d otherwise lose her education grants. Another, a Hmong immigrant who claimed she didn’t understand certain documents she signed, inspired a stay because Judge Edward Lynch felt “God knows, life for her is hard enough without a felony.” Crimes of poverty, the public defenders like to say; a felony conviction “only makes their lives more difficult.”

Yet it is also possible, thumbing through the available records, to see where a judge--fearing a family would otherwise be deported--granted them a stay despite their having wrongfully collected $21,453 by hiding all manner of assets, including six cars. It’s possible as well to see where judges, in isolated instances, have stayed charges involving third-degree assault, forgery, theft, stalking and terroristic threats. Each such case has an explanation, of course, but in the end, it doesn’t matter much. What’s riling prosecutors and politicians isn’t which cases the judges block; it’s that they’re blocking cases at all.

A backlash undeniably has set in. Angry prosecutors speak out regularly now; at the urging of the Minnesota County Attorneys Assn., a state senator has proposed a bill that means to abolish stays of adjudication altogether. “The courts simply don’t have the power to conclude that no crime should be charged,” Backstrom said. “What we have here is our judges basically making prosecutorial decisions. I’m a tough prosecutor. They don’t like it; they’re trying to get around me. They can’t do that.”

Whether that’s so, in truth, is a matter still to be resolved. No one yet has explained how a legislative bill can eliminate an “inherent judicial authority.” Then again, no one yet has shown where in the lawbooks that “inherent judicial authority” resides. Whom to trust for wisdom, whom to give power over others’ fates, how to balance advocacy with mercy--such questions swirl around just now in Minnesota, unanswered and perhaps unanswerable.

This dispute finally transcends the law, and that’s what makes it uncommonly interesting. For a passing moment, at least, we have an intriguing glimpse of sober-minded judges striving not for what they deem legal, but for what they feel is right. “It would be unfair,” they offer, by way of explaining themselves. The venerable custodians of the legal system, dissatisfied with what it sometimes yields, for once are rebelling against the rules of their game.