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Archive for Thursday, February 7, 1991

JUDGES, PUBLIC DEFENDER DIFFER OVER DISCRETION IN SENTENCING

February 7, 1991

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— Kansas judges insist they should have latitude in sentencing criminals but the Sedgwick County public defender disagreed Wednesday, saying judicial discretion results in discriminatory sentencing.

``I submit there is too much discretion in it,'' said Richard Ney, chief public defender for the state's largest county. ``If given the opportunity, judges will continue to use too much discretion, unless there are teeth in this.''

He said allowing judges discretion in the sentences they hand out inevitably results in white defendants who can afford private attorneys being treated more leniently than the indigent minority defendants Ney he represents.

NEY TESTIFIED before the Senate Judiciary Committee, which is holding hearings this week on the recommendations of the Kansas Sentencing Commission.

Those recommendations would standardize sentences that are dealt to those convicted of crimes, to reduce or eliminate disparities that now exist when different judges sentence different persons, even when they commit identical crimes and have identical criminal histories.

Sen. Wint Winter Jr., chairman of the committee, said testimony on the proposed guidelines for the most part has been positive.

"Generally, people have said the system is broken now," he said. "It's bad for the victim and it's bad for the defendent."

Many people testifying have suggested changes to the recommendations by the Kansas Sentencing Commission, Winter said. But most of those people also have said they prefer the recommendations as is over the system in place now.

Two judges who also testified Wednesday said trial courts should continue to have discretion in the severity of sentences handed out in criminal cases.

JUDGE GARY Rulon of the Kansas Court of Appeals and District Court Judge Richard Walker of Newton urged the committee to retain the degree of discretion for judges contained in the commission's proposed sentencing guidelines.

``Hopefully, departure sentences will be reserved only for the truly exceptional cases,'' said Rulon, a former district court judge in Emporia.

However, Ney said, ``I suggest the departures are going to become more the norm than the exception.''

Noting that some of the state's trial judges are opposed to the proposed guidelines because they don't think they permit enough leeway for judges in passing sentences, Walker said he thinks judges need some flexibility and the guidelines provide them.

Most judges just want a rational, reasonable system that includes the flexibility to deal with unusual cases, Walker said.

RULON AND Walker both suggested the Legislature make permanent the Sentencing Commission, giving the state an agency to monitor sentencing guidelines and act as the conduit through which proposed future changes would come to the Legislature.

Rulon also recommended that the lawmakers take a clear position on whether to make the sentencing guidelines apply retroactively to inmates now serving time. He noted the law would not permit increasing their sentences retroactively, even if the new guidelines called for stiffer penalties for their crimes.

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