University Daily Kansan, November 19, 1982 Page.1
Plea bargain
From page one
had happened and was upset when those facts were not brought in court.
"But," he said, "we're bound by what the evidence is and what we can show."
PENNY HAS negative feelings about the judicial process and plea bargaining in particu-
people get on with that, she said.
"It took me some time to get used to it."
"It's frustrating trying to explain to people at home that someone was viciously murdered and robbed."
"It took me some time to get used to it. She said she was notified about the plea agreement after it had been made and after Bigenwell had entered a guilty plea.
Harper said, "My assessment of the case was there was a lack of communication between our teams."
But, he said, his office requests information from victims, police officers, investigators, the defendant and the defendant's attorneys before a decision is made. The decision may not reflect exactly what each of those parties wants, but all opinions are valued by the prosecutors, he said.
KANSAS ATTORNEY General Bob Stephen said, "I have always advocated that the victim or the family of the victim be advised of what the victim is going to do, and the opportunity to be heard on their views".
"There have been too many instances where the system did not focus on the victim."
Stephan said that the state could pass a law that would require notification of the victim or his relatives before a plea bargain was reached because of their opinions and concerns with the prosecutors.
District Court Judge Mike Malone, who served as Douglas County district attorney for seven years, said notifying the victim before an agreement should be automatic.
MALONE IS a defender of plea bargaining, but he says he gets angry when the process is abused because those abuses taint plea bargainings. He expresses negative opinion about the process in the public.
"People only hear about the bad parts of it and thus the whole process has a bad name," he said. "There are horror stories to tell about the abuses happening, but there are more stories about the success."
Malone said the abuses were not the fault of the judicial system, but of individual prosecutors who misused it.
"All prosecutors shouldn't be punished for the few who abuse plea bargaining," he
Malone also is a member of the Criminal Law Advisory committee, which was formed during the 1982 legislative session to make a recom-
mendation for the judicial Council about new barring in Kansas.
The committee was formed, Malone said, because the judicial council was asked to study the issue by Kansas State Rep. Anita Niles, D-Lebo.
Niles said recently that she realized plea bargaining was an important tool of the criminal justice system.
"But it is sometimes abused, and when that happens, justice is not served," she said.
THE ADVISORY committee was made up of four district court judges, two defense attorneys, a state representative, a state senator, a Kansas attorney, and a county adversary and adviser and a county prosecutor, Malone said.
Conclusions drawn by the committee said that some abuse of plea bargaining existed in the state but that abuse was not widespread, said Dr. Sasha Marshall, research associate for the Kansas Judicial Council.
The committee said that changes should be made to improve prosecutors' offices, but the members said the Legislature should not pass legislation for prosecutors, who are executive government officials.
The committee members, who Lynch said drew their conclusions based on their own experiences, said plea bargaining was a necessary operation of the judicial system.
LYNCH SAID that improvements might be made by increasing eligibility requirements for county attorneys. Many now in office are young and work only part time.
these prosecution did not always know how facts might develop during a case Plea bargaining allows prosecutors the flexibility of changing their own claim what the facts warrant
An example of such changing facts was the estimate of damage caused by five Kansas State University students on the KU campus just before this year's football game between the two universities. Upon arrest, the students were charmed with a felony, Harper said.
AT THE TIME of the arrest, the estimated damage was thought to be several thousand dollars. Harper said Later, however, the damage amounted to only several hundred dollars — a misemdgeman.
As a result, charges against the K-State students will be amended. Harper said.
In the next several months, Harper said, his office will begin using a form that will tell it a plea agreement is made and the reasons that agreement is accepted. The form will be inserted
Harper said he got angry when plea bargaining was abused.
IN ALASKA, where plea bargaining has been banned for seven years, a study found that the
han had not overloaded the courts or decreased the conviction rate.
"It changed the way some types of cases are disposed of," said Wilson Condon, Alaska attorney general. "It has increased the number of felonies that to go trial. The sentencing is decided directly by judges. It is a much more visible process."
"It is the judge who makes the decision, not the prosecutor and defense lawyer over drinks."
Stephan also said the sentencing decision should be left to the judge. He said that during the 13 years he served as a district court judge, he was asked by the judge to recommend what the sentencing should be.
Paddock said that plea agreements to some extent left sentencing up to the defendant and the prosecutor. But he said a judge did not have to accept a plea made in a plea agreement if the judge thought the agreement would be unjust for the defendant or for society.
SUPPORTERS of plea bargaining argue that it helps to speed the judicial process, save the expense of lengthy trials and relieve the case load of the courts.
Condon said, "There is a small amount of truth to that, but 90 percent of that is nonsense."
The Alaska ban affects all felony cases and is enforced by the statewide prosecutor's office because Alaska's judicial system is not divided by county or districts as Kansas 'is', Condon said.
"It's a deception in pleading. It's a sham. It takes a valuable tool away from the executive branch and turns prosecutors into robots and non-thinkers," he said.
But Malone said the ban on plea bargaining in Alaska had resulted in charge bargaining. Instead of bargaining, thesecution are worked out on charges; the cases are worked out before the charges are filed.
THOSE WHO favor a ban on plea bargains assume that a charge is static rather than dynamic, that a victim or witnesses will continue to have good memories and that facts that change a case will not come up after the charge has been filed. Malone said.
The correct response to abuse. Malone said, is not a ban on plea bargaining, but for the public to vote out of office any prosecutor who misuses it.
Another remedy, he said, would be to make the county prosecutor's position more professional by giving it full-time status. He said that only four of 105 counties in Kansas had a full-time prosecution. The other 101 counties have part-time county attorneys.
"It's an awesome responsibility, and in most counties nobody wants it, so it goes to the county."
Lawyers are not interested in the job, because it is part-time, involves a lot of work and does not pay well, he said.
Condon said that he could not recommend having plea bargaining for other states.
"It ought to be considered on a juridiction by jurisdiction basis," he said.
BESIDES THE victims or the victims' families, others who are sometimes angered by plea bargains are police officers and investigators who arrest people and work toward a
"It can be devastating to an officer and extremely disappointing at times," said Lawrence Police Crime Analyst Mark Brothers.
the officer saw the victim when he was most distraught and saw the crime's influence on the victim's life and the family. He sees the animal who preys on his fellow man."
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