MINOT, N.D. — Why would a state prosecutor sue a district court judge?
Well, it's complicated but in a nutshell, the prosecutor thinks North Dakota's prisons are being too easy on repeat DUI offenders, and he's undertaken a unique strategy to keep those offenders in county jails where they serve more time.
In State of North Dakota vs. The Honorable Stacy J. Louser, the Ward County State's Attorney argues that Judge Stacy Louser is guilty of violating the separation of powers in refusing to sign off on a plea deal with a DUI defendant that, if allowed, would have ignored one of the defendant's DUI convictions.
Why would a prosecutor want to do that?
Not so long ago, the Legislature, intending to stiffen the penalties for driving under the influence, made a fourth DUI offense a felony. On paper, a third DUI within seven years is a class A misdemeanor that carries a 120-day jail sentence.
A fourth DUI in that time period is a class C felony that has a one-year-and-one-day prison sentence.
Only, as the Ward County prosecutors argue, this is only a "paper sentence." The State of North Dakota's Department of Corrections and Rehabilitation, they say, releases felonious DUI offenders too early. Those sentenced to state prison for felony DUI's are doing less time than those sentenced to a county jail, they say.
Here's an excerpt from the Ward County petition making that argument (you can read all filings on the docket here):
The prosecutors game the system so that they can give repeat DUI offenders more time in the county slammer, even if that means giving up a felony charge.
Some defendants are willing to make that bargain, trading more time in a county jail for the opportunity to avoid a felony on their record.
Judge Louser isn't buying it and has refused to accept a plea deal reached with a defendant that would have ignored a DUI charge to keep the county under three.
The prosecutors in Ward County think that's a violation of the separation of powers. Specifically, they're accusing the judicial branch, as represented by Louser, prohibiting the executive branch, as represented by the prosecutors, from exercising their authority to make plea deals.
Louser's rebuttal? The law says what it says, essentially.
First, she argues that the ultimate deciders on plea deals are judges, not prosecutors.
"The district court’s inherent and express authority to reject plea agreements under Rule 11(c)(3) demonstrates that a prosecutor’s executive power to negotiate pleas is not without limits, and judicial review is required to make the ultimate determination whether the plea agreement is in the public interest," she argues in her response to the court. "North Dakota’s rule is consistent with the law in other states, indicating the judicial branch has the ultimate authority to accept or reject a plea agreement and to determine whether pleas negotiated by a prosecutor are in the public’s interest."
She also argues that if the Legislature writes law dictating a specific sentence for a specific crime, that law must be followed, not worked around with legal gymnastics. "[T]here are some instances where the legislature acts within its sphere in mandating a particular sentence for a particular crime, and neither the judicial branch nor the executive branch have the discretion to interfere," her response reads.
Louser's argument is the right one, I believe. Even prosecutors and judges have to follow the law, even when they don't like it. In fact, there is a good argument to be made for enforcing bad law vigorously, if only to expose it and, hopefully, prompt reform.
What this case reveals is the gap that often exists between what law says and how it is applied in the real world.
By a plain reading of the North Dakota Century Code, it's not unreasonable to believe that citizens found guilty of a fourth DUI offense in seven years are spending a year in jail. Yet, as a practical matter, putting people in prison is expensive, and prison facilities have a finite amount of space. The folks who run our prisons are often forced to triage inmates, deciding which need to remain incarcerated (the particularly dangerous offenders, one would hope) and which can be safely released, such as nonviolent offenders.
To the extent it is a problem, the solution isn't some alternate reality invented by prosecutors who want to pretend as though a fourth DUI is really a third DUI.
Instead, it's hard questions for the taxpayers and their representatives.
Do we want to spend more money on prison cells and guards so that felonious DUI offenders can get more time in the clink?
Or do we want to accept the status quo?
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at email@example.com.