dissenting.
I dissent. I would support the efforts of five trial judges to improve our criminal justice system. The opinion of the court of appeals and that of the majority here reflect very different views of the status of our criminal justice system and the role of the judge in it. The opinion of the court of appeals, Espinoza v. Superior Court, 180 Ariz. 608, 886 P.2d 1364 (App.1993), makes it clear that Judge Martin neither violated Rule 17.4, Ariz.R.Crim.P., nor acted pursuant to an unapproved local rule. I would adopt the opinion of the court of appeals as our own.
The quadrant B policy was not in conflict with Rule 17.4, Ariz.R.Crim.P. While Rule 17.4(a) allows the parties to agree on the disposition of a case, Rule 17.4(d) allows the *154court to “either accept or reject the tendered negotiated plea.” Even after acceptance, the court may reject sentencing stipulations. Rule 17.4(d). If, after looking at the document, a judge is opposed to any part of the plea, he or she may summarily reject it. And that is precisely what Judge Martin did here. That he and other judges agreed to exercise their rights under Rule 17.4(d) does not make his decision conflict with the rule. Indeed, their agreement is collectively supportive of the rule. No one forced Judge Martin to participate in the policy. He was free to accept or reject it, altogether or in a specific case. He accepted it because he thought it was a good idea. The quadrant B policy was not binding on any judge who did not want to be bound by it.
I disagree with the court’s conclusion that the policy “violates rule 17.4 because it precludes a judge from exercising his discretion over plea agreements.” Ante, at 154, 894 P.2d at 697. The policy did not prevent the trial court from exercising its discretion. The transcript of the plea proceeding shows this. Judge Martin said “I don’t want to be bound by any of this.” Tr. at 6. He said “I don’t want it to be a part of the plea that he get concurrent sentences.” Id. He said “I don’t want to be bound by an agreement that I give him concurrent sentences now.” Id. at 7. He said “I’m not going to take an agreement for concurrent sentences.” Id The transcript suggests that Judge Martin refused to accept the plea because he believed it was inadvisable. He believed in the purposes sought to be achieved by the quadrant B policy. The premise'(the policy precludes discretion) for the majority’s conclusion is false.
Nor does the quadrant B policy constitute an unapproved local rule.1 We made this quite clear in Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992). We there distinguished between a “rule that was both adopted by the Pima County Superior Court as a whole and generally applied to all criminal cases being tried in that court,” and “the exercise of an individual judge’s discretion to use a particular technique in order to meet a specific problem.” Id. at 146, 840 P.2d at 1011. Judge Martin’s decision to subscribe to quadrant B policy was an exercise of his discretion to use a particular technique in order to meet a specific problem within the meaning of Hedlund. The quadrant B policy was not a rule adopted by the Superior Court of Arizona in Maricopa County to be “generally applied to all criminal cases being tried in that court.” Id.
The majority invites the judges of the superior court to adopt a local rule and seek our approval for it. Ante, at 150, 894 P.2d at 693. But the Superior Court in Maricopa County has petitioned to amend Rule 17.4 to prohibit sentencing stipulations and the majority rejected it. See In Re Rule 17A, Rules of Criminal Procedure, R-94-0007.2 *155We are considering an experiment with the proposed amendment, but the majority rejected Maricopa County’s request to participate in it.
I believe that this court should be in the business of rewarding creative efforts that arise elsewhere in the system. We have not been at the forefront of reform in the criminal justice system. For example, we did nothing with A System in Crisis: The Report of the Committee to Study the Criminal Justice System in the Arizona Superior Court (1993). A majority of the judges on that committee, but only one lawyer, favored amendments to Rule 17 that would “allow the parties to negotiate a recommended sentence .... but which would prohibit a stipulated sentence.” Id at 26. The public knows the “criminal-justice system has all but collapsed.” Meg Greenfield, Scandal in the Courts, Newsweek, Aug. 21, 1989 at 68. See also John H. Langbein, Money Talks, Clients Walk, Newsweek, Apr. 17, 1995, at 32. Those convicted of crimes know that too. Thomas E. McLaughlin, Through Prisoners’ Eyes, A.B.A.J., Feb. 1995, at 100. The trial judges are trying new ideas as we approach the next millennium. We should support them.
*156APPENDIX TO SPECIALLY CONCURRING OPINION OF CHIEF JUSTICE STANLEY G. FELDMAN
Comment of Ron Reinstein Presiding Criminal Judge Superior Court of Arizona in Maricopa County
IN THE SUPREME COURT STATE OF ARIZONA
No. R-94-0007
IN THE MATTER OF RULE 17.4, RULES OF CRIMINAL PROCEDURE
Comment of Ron Reinstein in Opposition to the Petition
[Filed Sept. 20, 1994]
I respectfully write in opposition to the Petition to amend Rule 17.4 of the Rules of Criminal Procedures. After having reviewed many of the comments in favor of and in opposition to the amendment it appears on the surface that this is largely a judge against lawyer issue. However, I believe that many judges throughout the state feel the same way that I do. There are passionate views expressed on both sides of the issue, but frankly many of the arguments simply overstate their respective cases.
It is apparent to me that many of the proponents of the amendment are frustrated with the extent of mandatory sentencing in our state. Yet the amendment will do nothing to change that. It is a function of the legislature to change our sentencing code. In fact, two sessions ago some progress was made in the area of drug laws and Hannah priors in particular to develop a more sensible approach to sentencing. Yet Arizona still has probably more mandatory sentences in its code than most other states.
If the proponents of the amendment believe that it will increase judicial discretion at sentencing, I believe they are naive in light of the power the prosecution has over sentencing enhancements in the charging area and also in light of the pressures put on the public prosecutor by the public, the media, and victims, in “sensitive” or dangerous cases. Given the nature of those pressures as well as the desire to see that justice is done there will be more occasions than presently occur where the prosecution will simply not drop an allegation of dangerousness, a prior conviction, or any of the other myriad of enhancements available.
The effect of this in a state with the extent of mandatories that we have will be harsher treatment for some defendants than they may otherwise deserve and also needless trauma for some victims who will have to testify at trials that perhaps otherwise could have been settled. This is particularly true for many victims of sexual assault and child molestation.
In an age when every other part of the justice system is moving toward alternative dispute resolution, mediation, and settlement, it seems incredulous that we would step backward in the criminal justice system. I can understand why this would be so if judges did not have the final say over whether a plea agreement was acceptable, but we in fact have that power and I believe most of us exercise it on a regular basis. Evidently though there are some who feel constrained not to for various reasons.
While some have argued that sentencing stipulations are regularly crafted by inexperienced young attorneys, and judges are best suited to determine in the first instance what an appropriate disposition in a case should be, the fact is that most of the more significant and sensitive cases in the justice system are handled by experienced prosecutors and defense attorneys who have lived and breathed these cases for months. The sentencing judge on the other hand more than likely only reviews the presentence report the night before sentencing. Many of those judges, while perhaps experienced in life and the law, at least in the beginning of their judicial careers or their assignment to the criminal bench, have no experience at all in criminal sentencing. We are not all anointed with mystical and instant wisdom when we don our judicial robes.
Another argument raised in favor of the amendment is that probation officers slant *157their presentence reports and recommendations to support the sentencing stipulations in plea agreements. Frankly I see that as a slap in the face of the excellent probation officers in our state. If that occurs with some probation officers, it can be rectified by adequate training and education. Most of us have done much to encourage the use of independent judgment by probation staff and is evidenced by a increasing rate of reports which recommend against the stipulated pleas.
One misconception that needs to be addressed is the notion expressed by some that Pima County judges.don’t allow stipulated sentences. It’s clear from Judge Brown and Veliz’ comments and my experience that that is simply not true, but rather that most of the judges in Pima County follow the same policy as the “Quadrant B” judges in Maricopa County, which is to allow stipulations to probation or prison, but not as to the terms of probation or the number of years in prison, except in extraordinary circumstances. If there is to be a change, I believe that is the direction we should be heading rather than a complete ban on stipulated sentences.
The proponents of the amendment argue that it will prevent “behind the scenes” negotiations. In fact what will occur in many instances will be lawyers going behind closed doors in judges’ chambers determining whether a judge will accept the sentencing “recommendations,” much as occurred years ago when that great pillar of justice (Hah!) Moise Berger’s ban on plea bargaining begat submissions in which lawyers and judges agreed to the disposition of cases behind closed doors. Or else counsel will ask the court to defer acceptance of the plea until they find out if the court will go along with the sentencing “recommendation.”
I have no idea whether there would be a significant increase in the trial rate in Maricopa County with the proposed amendment, and as several judges have expressed, that may not be a bad result if we had the resources to absorb an increase. At this point we simply don’t, unless it comes at the expense of the other divisions of the court, or health care, education, parks, or what have you. That’s not the justice system’s fault, but rather the reality of the budget crisis in Maricopa County and past poor fiscal management. But in any case a 5 to 6% jury trial rate is common to most other metropolitan court systems. The higher trial rates seen in other metropolitan jurisdictions (other than Pima County) are from a much higher degree of bench trials which by local legal culture are practically nonexistent in Maricopa County, or this state.
As is mentioned in Appendix C of the Petition, sentencing stipulations have been rejected in about 9% of the cases in Maricopa County. Yet that doesn’t include the numerous other cases where the court informs the parties it can’t agree to the stipulation, but then informs them what would be acceptable. Most of those cases are then settled without a formal rejection. In many divisions this occurs on a daily basis. Having done this on a regular basis for years, rejecting some pleas as too harsh and some as too lenient, I can count on one hand the number of cases where the parties didn’t accept my decision.
Many cases simply require a stipulated sentence. As Presiding Criminal Judge in Maricopa County I supervise the State and County Grand Juries. On a fairly regular basis I take preindictment pleas in cooperation agreements in major fraud and white collar crime cases, public corruption cases, multi-defendant wiretap conspiracy cases and the like. Without the ability to stipulate to a sentence many of those agreements which serve justice usually would not be reached.
Other types of cases which sometimes warrant a stipulation as to sentence are those involving dangerous crimes against children, complex cases that if tried would last weeks or months, and many cases which come before us as trial judges where a stipulated plea at least to probation or prison is in the interests of justice.
To have a rule which in effect ties the court’s and the parties’ hands by an absolute prohibition on all sentencing stipulations puts the court in the same position as some prose*158cutors who develop policies that are seen as absolutes or some mandatory sentence provisions which produce results in selected eases that none of the parties even believe are just. Our system should not deal in absolutes when we are talking about real people as defendants and victims.
One of the most troubling arguments in favor of the petition is that sentencing stipulations reduce or eliminate sentencing advocacy and that they add to delay. My only response to that is that judges get what they demand of attorneys. If attorneys know and let their clients know that a judge doesn’t decide what the sentence should be or whether to accept or reject a plea until counsel, the defendant, and the victim have had their say in court, it promotes not only advocacy but respect. If judges merely act as “rubber stamps” through laziness or an unwillingness to “rock the boat,” perhaps they should seek other employment.
The bottom line is that some judges need to be able to “Just say No!” if they don’t agree with a stipulation. I totally agree with the comments of Jon Sands for the Criminal Justice Section of the State Bar that “a refusal to determine if a plea is in the interests of justice for fear of rocking the boat is a sad commentary on the bench.” Likewise it is imperative that judges not willy-nilly grant thirty day continuances without good cause.
The fact of the matter is that most plea agreements are not objectionable. As a judge commands respect, in fact, he or she will see fewer stipulated sentences. Judges who see themselves as mere functionaries and who don’t exercise their authority and control in a judicious manner cannot command respect.
As an alternative to the Petition, I believe that three modifications to the current rule would improve the system. First, that stipulations be allowed to probation or prison, but not as to the terms of probation or the number of years in prison except in exceptional circumstances. Second, that there not be an automatic change of judge once a plea is rejected. This only serves to promote judge shopping. Finally, judges should be allowed to participate in settlement discussions with counsel so long as that judge is not the trial judge (unless the parties agree the judge should try the case as well.) While I realize these alternatives open up a different can of worms again, they are ideas which warrant consideration.
Respectfully submitted this 19th day of SEPTEMBER, 1994.
/s/ Ron Reinstein Ron Reinstein
. If the quadrant B experiment constitutes a local rule, then what of the Rule V Inactive Calendar Guidelines, 17B A.R.S. (Supp.1994) at 63 and the Guidelines for Rule 26.1, 16 A.R.S. (Supp. 1994) at 75? The court’s suggestion that the distinction is "obvious,” ante, at 151, 894 P.2d at 694, because these guidelines do not "negate those rules,” id., overlooks Rule 83, Ariz.R.Civ. P., and Rule 36, Ariz.R.Crim.P., both of which provide that local rules may not be "inconsistent with these Rules." Thus if a procedure is consistent with our rules, it is eligible for approval as a local rule. If it "negate[s] those rules,” as the court suggests, it is not eligible for local rule approval. But cf. Unif.R. of Prac. XIV.
. Of the approximately 60 comments received, over 40 were in favor of prohibiting sentencing agreements. Here is what some of them said: Charles E. Ares, McCormick Professor of Law Emeritus ("I wish to make the simple point that the so-called stipulated sentence results in a serious distortion of the adversary system and harms the public interest.”); Gary T. Lowenthal, Professor of Law ("I ... have practiced criminal law for many years in courts outside Arizona in which the parties are not permitted to stipulate to the sentence to be imposed by the court ... I strongly support the amendments to Rule 17.4.”); Judge Noel Fidel, Arizona Court of Appeals (“ITlheir proposal permits us collectively to take a very modest step toward reaffirming our role as judges and resuming our responsibility for the justice of the sentences we impose.”); Chief Judge Thomas C. Kleinschmidt, Arizona Court of Appeals ("I strongly urge that the Supreme Court grant Judge Rose's Petition to Amend Rule 17.4, Rules of Criminal Procedure, to preclude stipu*155lated sentencing."); Judge Rudolph J. Gerber, Arizona Court of Appeals ("Under the present practice of stipulated sentences, it is attorneys rather than judges who in fact impose sentences. Judges are reduced to the function of a mere rubber stamp.”); Judge John L. Claborne, Arizona Court of Appeals (“[Tjhe present system does not allow the judge to really make an appropriate decision.”); Judge B. Michael Dann, Superior Court of Arizona in Maricopa County ("[Tjhe widespread practice of stipulated sentencing is bad for the criminal justice system. It’s bad for judges, it’s bad for defendants and it’s bad for the public.”); Judge Robert D. Myers, Superior Court of Arizona in Maricopa County ("[Ujnless Rule 17.4 of the Rules of Criminal Procedure is revised pursuant to the Petition of Judge Rose and the Maricopa County Superior Court Bench, this basic principle of criminal law (sentencing a judicial function) is history.”); Judge Barry G. Silverman, Superior Court of Arizona in Maricopa County ("|T|he Supreme Court now has the opportunity to close down the criminal justice flea market and restore dignity and judicial responsibility to sentencing."); Judge Paul A. Katz, Superior Court of Arizona in Maricopa County ("I trust that the Supreme Court will not bow to the opportunistic pressures of the criminal bar, and will do what is philosophically and morally correct.”); Judge Barry C. Schneider, Superior Court of Arizona in Maricopa County (”[I]t is my belief that giving the parties the power to stipulate to a sentence divests the court of its proper authority____ The image that I see, when judges are denied this authority, is of a goddess who, instead of holding a sword and the scales of justice, is manacled in handcuffs.”); Judge H. Jeffrey Coker, Superior Court of Arizona in Coconino County ("(Tjhe bottom line is that we, as judges, have lost not only the confidence of the public, but the means of earning it back.”); Judge Matthew W. Boroweic, Superior Court of Arizona in Cochise County (”[W]e have enough legal fictions with which to contend which do not sit well either with logic or the public perception."); Judge H. Stewart Bradshaw, Superior Court of Arizona in Yuma County ("[TIhe comment made recently at the Judicial Conference by a prosecutor that she must be granted the discretion to choose the sentence in order to assure that justice is done is, simply, posturing.”); Judge Edward L. Dawson, Superior Court of Arizona in Gila County ("I believe that the suggested change would appropriately reinstate a degree of judicial independence in sentencings without seriously compromising the plea bargaining system now in effect.”); Judge Lawrence H. Fleischman, Superi- or Court of Arizona in Pima County (“[Wje would do better simply hiring clerks to sign sentencing documents if the Maricopa County system prevails on a state-wide basis.”); Judge Thomas W. O’Toole, Superior Court of Arizona in Maricopa County ("[Ujnless the proposed Rule 17.4 amendment is adopted, judicial rubber stamping of sentences and the resulting abdication of judicial responsibility to impose an appropriate sentence will continue.”); Judge Roberto C. Montiel, Superior Court of Arizona in Santa Cruz County ("[Tjhe sentencing of a defendant should not be left to the discretion of the prosecution or the defendant.”).
Although institutional comments in opposition were filed by prosecuting offices and public defender offices, no comment in opposition was filed by any of the “lawyers who would have had to practice under the proposed rule.” Ante, at 152, 894 P.2d at 695. The majority is persuaded by the opposition of institutional bar groups. It is natural enough for lawyers to not want to surrender their sentencing power to judges. But if judges, and not lawyers, ought to possess the power to sentence, the reluctance of lawyers to transfer that power ought not carry the day. The comments informed us that neither the federal courts nor those in other states acquiesce in sentencing agreements. If it works everywhere else, why will it not work here?