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a court doesn't accept a plea negotiation, it would be required to allow a withdrawal of the plea and to set the case for trial. Such a requirement would prevent a judge from accepting a plea but not the bargain, as is possible under the current Rules. At the same time, it would not divest the court of its control over dispositions. The proposal maintains the prosecutorial discretion that is lost in a "no plea bargain" system. Prosecutors have the discretion of charging a defendant by information and in most instances determining whether or not the accused should be tried. A posture of "no deals" takes this discretion away and places it in the hands of a judge who should remain neutral and is specifically prohibited from participating in plea negotiations. If a judge can prohibit a prosecutor from not pressing a case, hasn't the court already commented on the merits of the case? Any discussion of plea bargaining must consider the interests of not only the prosecutor and the court, but the defense attorney, society as a whole, and, most importantly, the defendant and the victim. One alternative in plea bargaining which is becoming increasingly important is restitution to the victim. Proponents of plea bargaining say the likelihood of a victim being re-paid is much greater if a defendant is told restitution is a condition of a suspended sentence than if a defendant faces a fine or prison and restitution. One bonus of such agreements is that they can include some money or property to the
county. Instead of spending money, the county saves and, indeed, makes money on a trial. Many opponents of the plea bargaining process say defense lawyers are in favor of plea agreements because they don't have to work as hard, Many defense lawyers disagree. While a somewhat repugnant concept. some lawyers have said that it's much more lucrative to be in a "no plea agreement district" because you can charge the client a higher fee by telling him he is certain to stand trial. It is very popular for candidates for judicial or prosecutorial positions to lambast the evils of plea bargaining, since plea bargaining is seen by the public as being easy on criminals, In fairness to the abolitionist, plea bargaining is sometimes used to that end. But plea bargaining can also be used in the best interest of all concerned, especially for the victim, since it results in a case being disposed of quickly and economically while giving the victim input into the case. With the question of uniformity resolved, the debate becomes, "Is society truly being served by a 'no plea bargain' system and. if not. is the current system adequate?" Here's how one judge resolves the debate: "I do not favor plea negotiations, but 1 do accept them. Without plea bargaining, we would have to have more pre-sentence investigations. In this district. that would mean hiring an additional probation officer. This district has six courthouses scattered. over 100 miles
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which are served. by one circuit judge {and one chancellor}. f doubt the counties can afford another probation officer and expenses of his office. "I have noted too that some victims desire to dispose of a case by the method we refer to as plea bargain. In any event, 1 do not accept plea bargains where there is a victim, unless the victim agrees. "It is true a victim's wishes are made known in pre-sentence reports. but the above expressed. idea would do away with the necessity of such investigations and reports in many instances. This would be a compromise between the exponents and opponents of plea negotiations. "I would favor legislation prohibiting plea negotiations. However, there should be legislation providing for state funding of increased costs, such as additional probation officers. There is a great deal of travel involved. when a probation officer has to make a roundtrip of 200 miles for an investigation. not to mention the expense of motel and meals. "If plea bargaining is not abolished entirely, 1 think it should be limited to those cases involving a victim and the victim should be a necessary party to any agreement. Cases involving drug violations or other crimes where there is no identifiable victim should not be plea bargained." 0
Editor's Note: Bart f. Virden, of Morrilton, is a member of the Loh, Massey, Yates and Virden law firm. April 1988/Arkansas Lawyer/lI3