Valley War Machine

Topic 3 2017 2018 Plea Bargaining

AC 1

I affirm that plea bargaining ought to be abolished in the U.S. criminal justice system.

The role of the ballot is to endorse opposition to oppressive systems.

The aff burden is to show that the system of plea bargaining is oriented toward
oppression.

Warrants:

1) Oppression frustrates all ethics because it excludes its targets from ethical
consideration. It must be challenged through discourse. Winter and Leighton:
“Finally, to recognize the operation of structural violence forces us to ask questions about how and why we
tolerate it, questions which often have [can be] painful answers for the privileged elite who
unconsciously support it. A final question of this section is how and why we allow ourselves to be so oblivious to structural violence. Susan Opotow offers an intriguing set of
answers, in her article Social Injustice. She argues that our normal perceptual/cognitive processes divide people into in-

groups and out-groups. Those outside our group [which] lie outside our scope of justice. Injustice that would be
instantaneously confronted if it occurred to someone we love or know is barely noticed if it occurs to strangers or those who are invisible or irrelevant. We do not seem to be able to open our minds and our hearts to

Those who fall outside are morally excluded,

everyone, so we draw conceptual lines between those who are in and out of our moral circle.

and become either invisible, or demeaned in some way so that we do not have to acknowledge the[ir] injustice they suffer. Moral exclusion is a human
failing, but Opotow argues convincingly that it is an outcome of everyday social cognition. To reduce its nefarious effects, we

must be vigilant in notic[e]ing and listening to [the] oppressed, invisible, outsiders. Inclusionary thinking
can be fostered by relationships, communication, and appreciation of diversity.”
Winter, Deborah, & Leighton, Dana. “Structural violence.” In D. J. Christie, R. V. Wagner, & D. D. Winter (Eds.),
Peace, conflict, and violence: Peace psychology in the 21st century. New York: Prentice-Hall, 2001.

2) Oppression dominates the identities of those who suffer from it, excluding them from agency. .
Gonick 1:

“According to our definition of psychological oppression, the main feature [of oppression] of this state is the internalization
of negative conceptions of the self. The intrapersonal level refers to dynamics operating within the single individual. Beginning at this level, we identify a number
of psychological processes contributing to this situation. Among them, learned helplessness, surplus powerlessness, obedience to authority, and internalization of images of inferiority. These are well-documented

are the product of the oppressing forces of other people,

mechanisms that psychologically affect the individual experiencing domination. In effect, these

social groups, and state agencies. Following exposure to innumerable devaluing encounters, people internalize the negative images projected onto them by
dominating forces. Members of discriminated groups testify to that effect (Adam, 1978; Bulhan, 1985; Memmi, 1967,

1968; Miller & Mothner, 1981; Pheterson, 1986; Pilar Quintero, 1993; Woolley, 1993). As a deaf author confirmed, "we are oppressed from without by a

society which does not value us and does not give priority to our needs, and we are oppressed from
therefore

within because we have internalised those same attitudes towards ourselves" (Woolley, 1993,
p. 81). The feelings of guilt, shame, and worthlessness internalized by [survivors] victims of child sexual abuse are painful

reminders of the susceptibility of vulnerable groups to negative judgments imposed on them by perpetrators. These negative messages, incorporated into the child's self-image, have multiple

and enduring ill effects for the mental health of victims (Bagley & King, 1990; Browne & Finkelhor, 1986).”
Gonick, Lev and Isaac Prilleltensky. “Polities change, oppression remains: on the psychology and politics of
oppression.” Political Psychology, vol. 17, no. 1, March 1996, pp. 127-148.

and enduring ill effects for the mental health of victims (Bagley & King, 1990; Browne & Finkelhor, 1986) .”
Gonick, Lev and Isaac Prilleltensky. “Polities change, oppression remains: on the psychology and politics of
oppression.” Political Psychology, vol. 17, no. 1, March 1996, pp. 127-148.
3) Resisting oppression is a logical prerequisite to any moral project; any system that fails
to structurally resist oppression fails any moral test because it excludes some from its
rules. Gonick 2:
“ oppression entails a state of
Our own definition tries to integrate the elements of state and process, with the psychological and political dimensions of oppression. For us, then,

asymmetric power relations characterized by domination, and subordination, and resistance,

where the dominating persons or groups exercise their power by restricting access to
material resources and by implanting in the subordinated persons or groups fear or self-deprecating views about themselves. It is only when the latter can attain a certain degree of conscientization that resistance can begin.

Such asymmetric power relations lead to

Oppression, then, is a series of asymmetric power relations between individuals, genders, classes, communities, nations, and states.

conditions of misery, inequality, exploitation, marginalization, and social injustices.”

Gonick, Lev and Isaac Prilleltensky. “Polities change, oppression remains: on the psychology and politics of
oppression.” Political Psychology, vol. 17, no. 1, March 1996, pp. 127-148.

Thus, resisting oppression comes before any ends-based standards because a moral
system that fails to resist oppression excludes some from consideration of both rights and
happiness.

Consequentialist considerations should be rejected because A) aggregate actions of

systems over time have a greater impact than any circumstantial consequence; B)
speculative threat construction is a tool used by oppressors. Since consequentialist
justifications are based on speculation about the future, any one at any time can assert
that some overriding potential harm justifies oppressive treatment. Thus rejection of
oppression must function as a side-constraint on consequentialist reasoning, because the
moment we accept the premise that potential consequences justify oppression, our actual
ability to reject oppression disappears. Finally C) threat predictions are uncertain while
the injustice of oppressive systems is ongoing and real life concerns take precedence over
imagined fears.

I contend that abolishing plea bargaining is a rejection of oppression.

First, the U.S. criminal justice system is primarily a tool of oppression against minority
populations. Punishment is generally oppressive because it allows a dominating state to
take away rights. State policies grounded in ideal ethical theories of social contract and
retributive justice seek to legitimate criminal justice but the on-the-ground reality is that
the system is actively hostile to subordinated groups. Borchetta:
“A new study from Carlos Berdejo of Loyola Law School demonstrates for the first time that there are significant racial disparities in the plea deals white and
black people receive on misdemeanor charges - with black people facing more severe punishments. Berdejo analyzed 30,807 misdemeanor cases in Wisconsin over a

seven year period and found that white people facing misdemeanor charges were more than 74 percent more
likely than black people to have all charges carrying potential prison time dropped, dismissed, or
reduced. And white people with no criminal history were substantially more likely to have

charges reduced than black people with no criminal history. This suggests, as Berdejo concludes in his report, that
prosecutors use race to judge whether a person is likely to recidivate when deciding
what plea to offer.”
Borchetta, Jenn and Alice Fontier. “When race tips the scales in plea bargaining.” Slate, October 23, 2017.

The oppressive nature of the criminal industrial system is not an anomaly caused by bad
actors, but rather is a necessary part of the system’s design. Borg:
“Racism is built into our criminal justice system; it is not the result of a few individuals
deliberately acting in racist ways. It's a staggering claim, but one that is supported by the recent Racial and Ethnic Disparities Report (RED Report) completed by the county. This study of the journey individuals

black people will experience significantly more punitive

make through Multnomah County's justice system demonstrates that

treatment than whites. Blacks are more than four times as likely as whites to be arrested
and referred for prosecution. They are more likely to be given prison sentences and less likely to receive conditional
discharges or fines. Research elsewhere shows this disparity is highly unlikely to be explained simply by greater criminality among the black population. Multnomah County is not an anomaly in showing these
disparities. Countless other jurisdictions around the country have similar problems. This discriminatory treatment is fueling righteous anger, channeled into national movements such as #BlackLivesMatter. It has

a U.S. Department of Justice investigation into the police department in Ferguson,

been exposed by

Missouri, that found officers violated the Constitution and engaged in racially biased practices as a
matter of course. I find it impossible to conclude anything other than that blacks in America are effectively subject to a
separate and grossly unequal criminal justice system. As -- for the most part -- each of the
institutions that make up our justice system is following the law, what do we have other than a
legal system that enforces discrimination? I have worked as a criminal defense lawyer for most of my 32 years as a member of the Oregon State Bar. Of
all the responses I could feel, such as anger or frustration or outrage, the one I do feel is shame when I look at the numbers and the outcomes this new study reveals. I could try to excuse my own role with the
disclaimer that I'm one of the good guys; my job is to help defendants. But that would be a cop-out. In one way, laws and practices from the Jim Crow era were easier to change. Explicit discrimination, plainly

Today we are perpetuating separation between races through

encoded into the law could not be denied by anyone.

facially neutral laws enforced by people who consciously reject racism. But the RED Report shows us that every one of us who makes a living within the justice system is creating,
perpetuating or exacerbating disparities.”

Borg, Lane. “Racism is built into our criminal justice system.” Oregon Live, February 22, 2016.

Further, the attitudes underlying this oppression are constitutive of our psychology and
therefore can’t be remediated. Hill:
“For example, a UCLA study showed that black boys are viewed by law enforcement as
"older and less innocent" than their whites counterparts. This leads to circumstances where officers may excuse the behavior
of a white teenager as a youthful indiscretion while treating a black or brown youth as an
adult (and perhaps violent) criminal. The challenge of such situations is that police are not necessarily operating from a place of intentional racism or differential
treatment. To the contrary, they may sincerely intend to treat all adult criminals the same. Unfortunately, the psychology

of racism is so deeply embedded within all of our minds -- black officers often make the same errors of judgment -- that people of
color are disproportionately read as criminals. This is why nearly every police shooting of an unarmed person is met with outrage from the public, and an equally
passionate defense of the officers by friends, family, and colleagues who insist that they aren't racist. The difficult truth, however, is that both may be true. The officer may not

have had racist intentions but, given the psychological evidence offered above, nonetheless engaged in actions borne
out of racism. Similar issues emerge in courts when white police officers are charged with shooting
black citizens. In these cases, defense attorneys compel jurors (and the broader public) to put themselves in the shoes of the officer. Jurors are then legally tasked
with invoking the "reasonable person" standard of common law: "What would a reasonable person do under the same conditions?" While such
questions are typically helpful, they falter under the pressure of white supremacy, which has
normalized the fear of black bodies for nearly 400 years. As a result, jurors can relate to Darren
Wilson's fear of unarmed Michael Brown or even George Zimmerman's fear of unarmed Trayvon Martin and decide that a
shooting was justified because they, too, would have done the same thing. They too, seen the unarmed teens as violent

threats.”
Hill, Marc. “Racism is deeply embedded in our psyches.” CNN, November 30, 2015.

The promise of reform is only a ruse designed to lull subjects of oppression into
passivity. Since the nation’s inception the law has been built on the principle of
maximizing resource aggregation for the dominant caste through a process of systemic
oppression of people of color. Working within the system can’t solve because the system
itself is, by its nature, a tool of racism. Brewer:
“The call for social justice is “an implicit call for solutions, a call for remedies, a call for action” (Coates, 2004, p. 850). As we have seen, the call for social justice cannot rely
on civil justice or macro-level remedies alone; law has been the hand-maiden of what hooks (1992) has termed “the
white supremacist capitalist patriarchy” in the ever-evolving political and economic exploitation of persons of
color. To paraphrase Bell (1992), the 14th Amendment cannot save us. The call for social justice requires more. As the latest project in
racialization, criminal justice and the prison industrial complex have fundamentally racist and
classist roots that must be exposed and abolished. Reform is insufficient; “there can be no compromise with

capitalism. . . . There can be no compromise with racism, patriarchy, homophobia and imperialism” (Marable, 2002, p.

59). The work of justice must begin at the micro level; it must emerge from the grass roots. Drawing links between the movements to abolish

slavery and segregation, Davis (2003) asked us to imagine the abolition of prisons and the creation
of alternatives to mass incarceration with all its racist and classist corollaries.”
Brewer, Rose and Nancy Heitzeg. “Crime and punishment: criminal justice, color-blind racism, and the political
economy of the prison industrial complex.” American Behavioral Scientist, vol. 51, no. 5, January 2008.

Abolition of plea bargaining is willful destruction of the criminal justice system as a

whole because plea bargaining is the core building block of the system. The trial-based
criminal justice system grounded in procedural protections is a myth; for every 100 cases,
98 are resolved through plea bargaining. Trials are not a feature of the CJS but rather an
anomaly. Scott:
“The criminal process that law students study and television shows celebrate is formal, elaborate, and expensive. It involves detailed
examination of witnesses and physical evidence, tough adversarial argument from attorneys for the government and defense, and fair-

minded decisionmaking from an impartial judge and jury. For the vast majority of cases in the real world, the criminal process

includes none of these things. Trials occur only occasionally-in some jurisdictions, they amount to
only one-fiftieth of total dispositions. Most cases are disposed of by means that seem scandalously casual: a

quick conversation in a prosecutor's office or a courthouse hallway between attorneys familiar with only the
basics of the case, with no witnesses present, leading to a proposed resolution that is then ‘sold’ to
both the defendant and the judge. To a large extent, this kind of horse trading determines who goes to jail and for how long. That is what plea bargaining is. It is

not some adjunct to the criminal justice system; it is the criminal justice system.”
Scott, Robert and William Stuntz. “Plea bargaining as contract.” The Yale Law Journal, vol. 101, no. 8, Symposium:
Punishment, June 1992, pp. 1909-1968.

And the structure of incentives built into the system makes it systemically antiblack in a
way that is tied politically to antiblackness in the culture. Elected prosecutors will by
definition be responsive to antiblack pressures coming from their constituents; in this
context, maintaining a criminal justice system with the power to incarcerate black bodies
is inherently violent. Savitsky:
“Plea bargaining has become ubiquitous as the primary method of criminal case disposition in
the United States. Indeed, the vast majority of criminal convictions are obtained through a plea
bargain. Plea bargaining lowers the transaction cost of criminal prosecutions which combines
with political policies favoring large scale incarceration to drive up prison
populations. Further, plea bargaining indirectly pits defendants against each other in a multiplayer Prisoner’s Dilemma that induces defendants to take worse
bargains than they otherwise might. Moreover, the decrease in transaction costs is generally larger for cases

against poor defendants which correlates to a decrease in transaction costs for prosecuting Black defendants. Since prosecutors are
interested in maximizing successful prosecutions and minimizing costs, they are encouraged to prosecute a
disproportionate number of Black defendants.”

Savitsky, Douglas. The Problem With Plea Bargaining: Differential Subjective Decision Making As An Engine Of
Racial Disparity In The United States Prison System. Cornell University, Proquest Dissertations Publishing, 2009.

This indicates that the structural intention behind acts of plea bargaining is to implicate
marginalized groups into systems of oppression. This is true because A) plea bargaining
is the central mechanism of the system; B) the system rewards its creators for increased
convictions; and C) the system punishes agents who elevate concern for the well-being of
subordinated groups or for abstract conceptions of “rights.”

Underview:

[~:15] First, if both sides have offense on T or theory, affirm: A) mooting theory means
I’m the better debater since I neutralized more arguments in less time. B) If I have to go
all in on theory due to the time disadvantage, evaluating substance turns theory into a no
risk issue if the neg can make theory indecisive.

[~:18] Second, theory is ground to drop the neg but not the aff because if the neg runs
abusive arguments, I have to be able to go all on in theory against those arguments in the
3-minute 2AR which I can’t do if it’s only drop the argument, but the neg has a 6-minute
2NR, so they don’t need to be able to collapse. Time skew is key to fairness because you
need sufficient time to be able to develop arguments. Further, this is also a reason to grant
the aff a RVI but not the neg because the aff doesn’t have to time to win only generating
defense while the neg can generate defense on theory and easily win substance in a 6-
minute speech, thus if I win offense to a counter-interp or I-meet on T or theory, vote aff
since I have to spread out in the 1AR.

[~:08] Third, aff is disadvantaged A) there’s a 11% side bias against the affirmative. B)
6-4-7-3-time skew, C) aff has to extend offense twice while neg just once. 2 implications
- 1) force them to quantify abuse claims against the structural skew already inherent 2) if
the neg doesn’t weigh against side bias I get a free I meet, because you can’t prove a
sufficient violation 3) presume aff since if I overcame this skew I was the better debater.

Fourth, the negative may not defend counter-advocacies that rely on fiat. Whether an
agent ought to do something depends on their actual alternative. Suppose Professor
Procrastinate is asked to write a review that he’s best qualified to write, but knows that if
he says yes he’ll never actually complete the review, he ought to say no since this is
better than the actual alternative. Jackson:
There are four considerations which support Actualism's answer that Procrastinate ought to say no, and we will note that each might with suitable modifications be applied to the

Possibilism is arbitrary. It is true that saying yes is an essential part of

Jones case to give the answer that Jones ought to accelerate. (i)

the best extended course of action open to Procrastinate, namely, saying yes and later writing. This fact is the basis of
Possibilism's declaration that Procrastinate ought to say yes. But it is equally true that saying yes is an essential part of the worst extended course of

action open to him, namely, saying yes but failing to write the review. Surely then there must be more to say before the question of what
Procrastinate ought to do is settled. In themselves the fact that saying yes is part of the best, and the fact that it is part of the worst shows nothing. The first points to the answer that

Possibilism errs in allow[s]ing the first fact to settle

Procrastinate ought to say yes, the second equally to that he ought to say no.

the matter. By contrast, Actualism holds that we arbitrate[s] between the two by reference to what
Procrastinate would do were he to say yes, and would do were he to say no; and as in our case what would be the case were he to say yes would be
worse, he ought not say yes and ought to say no. […] Similarly, Jones ought to accelerate; for she ought to given she is going to change lanes, and she is going to change lanes. (iv)

If anything is clear about the case of Procrastinate , it is that he ought not unduly delay the reviewing of the book. That is the basis
for judging that his saying yes but failing to review would be the worst result. But what is unduly delaying the reviewing? Doing something which causes (in right way) the undue

delaying of the reviewing of the book. But ex hypothesi Procrastinate’s saying yes would be doing something which cause s the undue delay ing
of the reviewing of the book, hence, would be his unduly delaying the reviewing of the book. Thus, as his unduly delaying the review is something he ought not do, so is his saying
yes. ‘They’ are one and the same, and Possibilism's answer that he ought to say yes is wrong. Similarly, unduly disrupting the traffic in the lane she is going to change into is
something Jones ought not do; but it is the same action in the case as described as not accelerating; hence, not accelerating is not, and accelerating is, what Jones ought to do. We
have labored the case for Actualism, more particularly for its answers that Procrastinate ought to say no, and that Jones ought to accelerate, because Actualism has a consequence
which is prima facie untoward. We hope to have motivated you to follow us in seeing how on examination it is not untoward but rather leads us to an appreciation of the second
problem referred to at the beginning.”
K2 resolvability, it’s impossible to resolve between multiple things that are simply
possible K2 ground because the neg can just read infinite possible advocacies that have
no turn ground but defacto prove the negative is preferable K2 predictability there are
infinite possible advocacies but not infinite advocacies that will happen given the
counterfactual, also controls topic lit and thus topic ed. Means to defend a counter
advocacy the neg must prove the counterfactual.