¶1(concurring).
¶2It is easy to do justice, but it is much harder to do right.
¶3Sir Robert Morton
¶4Barrister and M.P.
¶5“The Winslow Boy”
¶6I join in the court’s opinion. Under the laws of the State of Minnesota, our rules, and the separation of powers doctrine, it is not a “manifest injustice” for the state to have charged Kathryn Lorraine Streiff with a felony for her alleged misconduct. Nevertheless, I write separately to add some comments on the concepts of justice, injustice, and punishment. This case demonstrates how difficult it is to establish the line separating the executive branch’s power to charge a criminal offense from the judiciary’s authority to supercede that power. Moreover, our holding illustrates that the executive branch’s power to charge a criminal offense is awesome and sometimes may be difficult to exercise in a just manner. The facts of this case and our holding provide the opportunity for me to explore the issue of whether it is sufficient for the state to see that “justice shall be done”
¶7I begin by addressing our use of the term “manifest” to modify the word “injustice” in Minn. R.Crim. P. 15.07. Much of our difficulty in interpreting this rule stems from the use of the term “manifest.” It is a word that “often functions in suspect ways in legal writing.”
¶8If everyone’s definition of injustice was uniform, there would be no need to modify' its use in Rule 15.07. But this is not the case. The definition of injustice often varies with the individual doing the defining. As Justice Oliver Wendell Holmes stated to a young aide shortly after he declined a request for a writ of habeas corpus in the Sacco-Vanzetti case:
*840Don’t be foolish, boy. We practice law, not “justice.” There is no such thing as objective “justice,” which is a subjective matter. A man might feel justified in stealing a loaf of bread to fill his belly; the baker might think it most just for the thiefs hand to be chopped off, as in Victor Hugo’s Les Miserables. The image of justice changes with the beholder’s viewpoint, prejudice or social affiliation. But for society to function, the set of rules agreed on by the body politic must be observed-the law must be carried out.
¶9Lira Baker, The Justice From Beacon Hill: The Life and Times of Oliver Wendell Holmes 608 (Harper Collins 1991) (emphasis added.) More recently and closer to home, former Anoka County Attorney Robert W. Johnson made the following observation about justice: “Now justice, you can play around with that word a lot. What’s justice to one person is not justice to another person.”
¶10Because the definition of injustice can vary based on the beholder’s viewpoint, the law requires a term that is more precise. This is especially true in the case of Rule 15.07 which operates in the realm of the delicate balance of power between the executive and judicial branches of government. The rule attempts to achieve this precision by modifying “injustice” with the word “manifest.”
¶11As used in Rule 15.07, “manifest” serves a useful purpose. It significantly narrows the circumstances under which a court can, over the state’s objection, accept a defendant’s plea to a less serious offense than the one charged by the state. For a court to exercise its discretion to accept a plea to a lesser offense over the state’s objection, the injustice must be so obvious and extreme that it exceeds the bounds of what is a reasonable exercise of the state’s power to charge an individual with a particular crime. To constitute a manifest injustice, the state’s action must approach conduct that, when a recitation of the facts is given to an average citizen, the citizen is inclined to exclaim “that’s outrageous.”
¶12With the foregoing understanding of Rule 15.07 in mind, I next explore what constitutes a just punishment. Punishment has always been part of the human retribution system. Justice requires that wrongdoers be subject to punishment. A wrongdoer must be subject to punishment because we are a society governed by the rule of law, and it is the rule of law that permits us to function as a civil society. All citizens receive benefits from participating in a civil society. We are able to live by rules that are more or less fixed, thus enabling us to ascertain in advance how others will behave and to have a reasonable assurance that all will receive like treatment. But, in return for these benefits, citizens of a civil society must accept the responsibility and burden of exercising certain restraints on individual behavior. In a civil society, when citizens obey the law, there is a moral equilibrium, but when the law is disobeyed, this equilibrium is disrupted.
¶13When a person disobeys the law, she becomes a wrongdoer who may receive an unjust double benefit. Not only does she benefit from others obeying the law, but she also may receive the physical, psychic, and/or economic benefits derived from her criminal conduct. Punishment as a consequence of misconduct is necessary for a civil society to maintain and restore its moral equilibrium. Through punishment, *841the wrongdoer repays her debt to society and then, after repaying that debt, rejoins society and does so on a full and equal footing with those who have obeyed the law. A failure to punish appropriately may even be a sign of disrespect for the wrongdoer, for when there is a serious transgression against society, too little punishment can result in injustice. By imposing the appropriate punishment, society shows respect for the wrongdoer’s interests and demonstrates the belief that the wrongdoer has the capacity of an autonomous person who was bad — not sick— and is capable of being restored as a citizen of society. Thus, there exists a sound and rational basis to appropriately punish a wrongdoer.
¶14This obvious conclusion brings me to my next question, which has a less obvious answer. What role, if any, do mercy and compassion play when ascertaining the just punishment for a particular crime? Some people exclusively emphasize retribution as the basis for punishment and argue that in a just system, there is little room for the sentimentality associated with mercy and compassion. They argue that, while mercy is a moral virtue, there is a danger that it can and will be overvalued in the justice system. They assert that anger and retribution toward the wrongdoer are natural, while mercy is an improper response to the wrongdoer’s insulting message to society. This approach can manifest itself when prosecutors, without exception, follow a policy of always charging and pursuing the most serious, readily provable offense or offenses supported by the facts of a case. Judges frequently see this attitude expressed in court, especially when the time comes to exercise sentencing authority. On a daily basis, judges face the question whether it is inappropriate, even presumptive, for them to ignore or condemn attitudes that focus exclusively on anger and retribution. Should these attitudes trump any thought of mercy? Should a judge be permitted to nurture a heightened awareness that such attitudes can blind the court to circumstances that make the wrongdoer’s actions more pathetic than evil?
¶15It is my contention that a legal system must provide room for the qualities of mercy and compassion as elements in any equation that seeks justice as its end result. Moreover, these qualities should exist at all stages of the system — with the police, prosecutors, and the courts. Without mercy and compassion, a legal system cannot be truly just. This view is neither novel nor foreign to our justice system. For example, 80 years ago, Justice Benjamin Cardozo wrote “Perhaps we shall even find at times that when talking about justice, the quality we have in mind is charity.”
¶16But when are mercy and compassion appropriate? This question can present a dilemma for judges, and I assume the same is true for the police and prosecutors. A dilemma exists because justice, mercy, and compassion are so different. Mercy and compassion are gifts that can be bestowed. They are not rights to which a wrongdoer is entitled. Shakespeare said it well in the Merchant of Venice when he wrote:
The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the plain beneath: it is twice blessed;
*842It blesseth him that gives and him that takes:
‘Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown.7
¶17Is it wise for us to have a system that permits mercy to season justice? Should the people grant to government officials the power to act mercifully? Does the general welfare and common good — the commonweal — require that mercy be part of the justice system? I submit that we want a system that allows for both justice and mercy; otherwise, we become a society that is rigid, unduly strict, unbending, and myopic in its pursuit of justice. Justice must always be our primary goal, but where circumstances demand, true justice requires that we have the discretion to act in a merciful manner. Having the power to act mercifully enables a person to do the right thing. Thus, a civil society must make room for mercy, must want it, must ask for it, and indeed in some cases must demand it.
¶18So where does the foregoing discussion take me with respect to the case at hand? As our court’s opinion points out, under Minnesota law, it was not a manifest injustice for the state to charge Marilyn Streiff with a felony for her alleged misconduct. Manifest injustice does not exist here because the felony charge does not result in an obvious injustice that exceeds the bounds of what is a reasonable exercise of the state’s power to charge. Under our separation of powers doctrine, it was the district court, not the state, that overstepped its bounds.
¶19Perhaps the district court acted as it did in an effort to do the right thing and, in doing so, season justice by bestowing mercy. As the court stated, (1) Streiff s husband, who was also the victim of her criminal conduct, did not want her to have a felony conviction; (2) Streiff s family would be unduly harmed by a felony conviction because she would lose her job; (3) public policy concerns of deterrence and punishment would be met by two gross misdemeanor convictions; (4) the offense was an unintended consequence of an intentional act; and (5) Streiff accepted full responsibility for her actions. The court may have acted as it did to prevent Mr. Streiff from being twice a victim, first by his wife and second by the justice system. Even if the court believed that it should do the right thing and act to prevent an injustice, it could not do so because the state’s action did not reach the limits of what we view to be a manifest injustice. Therefore, there is little doubt that under the law we are doing the right thing by reversing the district court’s decision.
¶20Our conclusion that the state acted within its authority under the law still leaves a question that is not for us to answer — it is one upon which I can only ponder. Has the state not only sought to see that “justice shall be done,” but, when doing so, has it done the right thing? I have no doubt that the state believes it has acted in a manner consistent with its legal mandate and is doing justice. Whether it has done the right thing is another question. In “The Winslow Boy,” defense attorney and member of Parliament Sir Robert Morton successfully defended the Winslow boy against false charges at great sacrifice to the family’s status, health, and wealth. At the end of the movie, Sir Robert said, “Right has been done.” But then he added, “It is easy to do justice, but it is much *843harder to do right.” Under the circumstances of this case, our justice system leaves it to the state to determine what is the right thing to do. I trust that the state will fulfill its role as a minister of justice, will address this hard question, and then exercise its discretion by doing what is right.
¶21. "The Winslow Boy” (Sony Pictures Classics 1999).
¶22. The United States Supreme Court has stated that a government lawyer
is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
¶23Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (emphasis added).
¶24"The primary responsibility of prosecution is to see that justice is accomplished.” Nat'l Dist. Attorneys Ass’n, National Prosecution Standards (2d ed.1991).
¶25"The duty of the prosecutor is to seek justice, not merely to convict.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-1.2 (3d ed.1993).
¶26. Bryan A. Garner, A Dictionary of Modem Legal Usage 547 (2d ed.1995).
¶28. Robert W. Johnson, Attorney at Law and former Anoka County Attorney, "The Role of the County Attorney: Ministers of Justice,” 2002 Minnesota County Attorneys Annual Meeting, November 21, 2002.
¶29. Fred R. Shapiro, The Oxford Dictionary of American Legal Quotations 231 (Oxford University Press 1993).
¶30. Elizabeth M. Knowles, The Oxford Dictionary of Quotations 688 (5th ed. Oxford University Press 1999).