Tucker v. State

TODD, Justice

(dissenting).

I dissent.

The majority opinion states that the decision about whether to transfer or release Tucker should be based upon his “entire record” consisting of his committing offense and his activity while in prison. , While I agree that this is the proper test, I do not agree that this was the test employed by the Minnesota Corrections Board (MCB) and the district court. In this case, the MCB and the district court decided that Tucker’s committing offense was so serious that he was disqualified from release under the provisions of the Youth Conservation Act. As the district court stated in its memorandum accompanying its decision:

It was conceded by Respondent [the state] at the hearing that the MCB considered other factors in its determination of dangerousness, but it was based primarily on the seriousness of petitioner’s committing offense. In essence, Respondent claims that discharge of petitioner at this time would deprecate the seriousness of the offense and make a mockery of criminal law. In view of the alternatives available to the MCB, this statement is understandable and probably a correct assessment.

This approach to the release or transfer decision frustrates the legislative intent of the Youth Conservation Act. The legislature created the Youth Conservation Act in order to substitute “for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found delinquent or guilty of crime.” Minn.Stat. § 242.01 (1976). Although Tucker has committed a heinous crime, the MCB and the district court cannot disqualify Tucker from the possibility of release under provisions of the act when the legislature has specifically determined which types of youth offenders are subject to release under the act and which types are not. Minn.Stat. § 242.13 (1976). The sole question before the MCB and the district court was whether Tucker was presently dangerous to the public at the time of his twenty-fifth birthday. If Tucker was not presently dangerous, his release is statutorily mandated.

The district court’s memorandum indicates the problem created by relying primarily on the nature of the committing offense when deciding the question of present dangerousness. The court affirmed Tucker’s transfer to adult status and continued incarceration because of the seriousness of Tucker’s committing offense, and yet, it also recommended that Tucker’s present status justified immediate parole. If Tucker is ready for immediate parole, however, it is logically inconsistent to maintain that he is presently dangerous to the public. The district court could only have recommended immediate parole if it found that Tucker was not presently dangerous. Thus, although Tucker has committed a horrible offense in the past, the record clearly and overwhelmingly demonstrates that he has achieved exactly what the YCC program contemplated — namely, self-rehabilitation. Since Tucker has become rehabilitated, I believe we must follow legislative mandate and order his discharge from custody. The fact that such discharge will be without supervision is, in my opinion, not necessarily in Tucker’s best interest. Nevertheless, we cannot impose or recommend a probationary period when no such remedy is provided for by statute.