You are on page 1of 412

Copyright 2017 by Champion Briefs, LLC

All rights reserved. No part of this work may be reproduced or transmitted in any
form or by any means, electronic or mechanical, including photocopying,
recording, or by an information storage or retrieval system, without the prior
written permission of the copyright owner and the publisher.
Public Forum, Lincoln-Douglas, Congress
Interpretation, Original Oratory, and Extemp

Sessions for
any schedule!

Commuter
and Residential
options available June 25 - July 8 July 9 - July 21 July 30 - August 12

What is CBI?
CBI is a two-week speech and
debate workshop for high school
Join us in
2018
students. Throughout the session,
our amazing instructors guide
students through unique seminars,
practice rounds, and personalized
coaching to improve persuasion, for an experience
public speaking, argumentation, you’ll never forget!
and performance skills.

What is a Champion?
At CBI, becoming a Champion is about
more than winning trophies. We teach
students the leadership and advocacy
skills that will be useful for the rest of
their lives. While our approach doesn’t
focus on trophies, CBI scholars have
won National Championships and
achieve incredible success at local,
regional, and national tournaments.

www.ChampionBriefsInstitute.com
The Evidence Standard Jan/Feb 2018

The Evidence Standard




Speech and Debate provides a meaningful and educational experience to all who are involved.

We, as educators in the community, believe that it is our responsibility to provide resources

that uphold the foundation of the Speech and Debate activity. Champion Briefs, its employees,

managers, and associates take an oath to uphold the following Evidence Standard:

1. We will never falsify facts, opinions, dissents, or any other information.

2. We will never knowingly distribute information that has been proven to be inaccurate, even

if the source of the information is legitimate.

3. We will actively fight the dissemination of false information and will provide the community

with clarity if we learn that a third-party has attempted to commit deception.

4. We will never support or distribute studies, news articles, or other materials that use

inaccurate methodologies to reach a conclusion or prove a point.

5. We will provide meaningful clarification to any who question the legitimacy of information

distributed by ourselves or by any third-party.

6. We will actively contribute to students’ understanding of the world by using evidence from a

multitude of perspectives and schools of thought.

7. We will, within our power, assist the community as a whole in its mission to achieve the

goals and vision of this activity.


These seven statements, while simple, represent the complex notion of what it means to

advance students’ understanding of the world around them, as is the purpose of educators.

Champion Briefs 4
Letter from the Editor Jan/Feb 2018

Letter from the Editor

Happy New Year! We at Champion Briefs thank you for your continued support.

2018 starts with a topic addressing a critical element of the American Government: The

Criminal Justice System. The resolution addresses the concept of plea bargaining and our

writers have taken three different approaches in how to answer whether the concept of

plea bargaining should continue. First, we looked at plea bargaining through a theoretical

lens, seeing if it meets traditional conceptions of justice and our constitution. Then, we

looked at how plea bargaining is actually being instituted and asked if it meets those ideals.

Finally, we looked at the criminal justice system as a whole to determine if the problems

that were identified existed only in the confines of plea bargaining or if they permeated the

entirety of the justice system.

Just as the first topic of the new year asks us to reevaluate our justice system this is

a time for all of us to take a step back and ask how we can be better. If you found success

during the first semester focus on where you didn’t succeed. If this past semester didn’t go

as you hoped, do not despair because you can turn the year around with hard work and

honest evaluation of what you’re good at and what you need to work on. Writer T.S. Elliot

put it best saying: “What we call the beginning is often the end. And to make an end is to

make a beginning. The end is where we start from.” Let the end of this year be a beginning

to a new and better year for all of us.

Good luck in the next few months!

Daniel Shatzkin
Editor-in-Chief

Champion Briefs 5
Table of Contents Jan/Feb 2018

Table of Contents


The Evidence Standard ............................................................................................... 4

Letter from the Editor ................................................................................................. 5

Table of Contents .......................................................................................................... 6

Topic Analyses ............................................................................................................... 17
Topic Analysis by Sheryl Kaczmarek ......................................................................................... 18
Topic Analysis by Rory Jacobson .............................................................................................. 28
Topic Analysis by Shankar Krishnan ......................................................................................... 38
Topic Analysis by Lindsey McNamara ....................................................................................... 52

Affirmative Cases with Negative Responses .................................................... 64

AFF: Constitutionality AC ....................................................................................................... 65
Determining the threshold of coercion for plea bargaining is difficult. ................................... 66
A study simulating the effects of plea bargaining shows that people are liable to plead guilty
even when innocent. ................................................................................................................ 67
The sixth amendment states the necessity of a jury trial in all cases. ..................................... 69
The coercion of plea bargaining is an affront to the constitution. ........................................... 70
Courts have recognized that plea bargaining at least impairs rights. ...................................... 71
Despite rights infringements courts are yet to find plea bargaining unconstitutional. ........... 72
Governments cannot indirectly inhibit rights; if it is not their intention. ................................ 73
Plea bargaining undermines trial by jury rights. ...................................................................... 74
Appellate and bargaining waivers have different constitutional backgrounds. ....................... 75
There are several rights included within the constitution- whatever system in place must
comply with these. ................................................................................................................... 76

A/2: Constitutionality AC ................................................................................................ 78
Supreme court has recently validated the constitutionality of plea bargaining. ..................... 77
Fair trials restrictions also regulate plea bargaining. ............................................................... 78
Multiple cases have ruled plea bargaining doesn’t violate 6th or 8th amendment. ............... 79
Guilty plea doesn’t not waive constitutional rights of appeals. ............................................... 80
Pleas are a waiver of constitutional rights not a lack of them. ................................................ 81
Rights in the justice system are not absolute per the Supreme Court. .................................... 82

AFF: Justice AC ................................................................................................................... 83

Champion Briefs 6
Table of Contents Jan/Feb 2018

Plea bargaining stigmatizes citizens that shouldn’t have to bare the badge of criminal. ........ 84
Plea bargaining can be abolished why maintaining concessions thus maintaining justice and
autonomy of trial. ..................................................................................................................... 85
Despite the harms of abolishing plea bargaining it must be don’t because plea bargaining
risks to innocent. ...................................................................................................................... 86
Even if it is more inefficient to abolish plea bargaining it is currently inefficient to pressure
innocent people into guilt. ....................................................................................................... 87
Bargaining is the result of fear of a great punishment and public spectacle. .......................... 88
There is no such thing as a consensual bargain because accused are under duress. .............. 89
Innocent people are at risk of guilty pleas though plea bargaining benefits the justice system.
90
Plea bargaining benefits the prosecutor- it lessens their work load and burden of proof. ..... 91
The criminal justice system stacks up against black individuals- treatment by police, lawyers,
judges push black males towards pleas. .................................................................................. 92
The goal of the criminal justice system should be reducing crime. ......................................... 93
Justice is meant to be impartial; the purpose of the justice system is to punish wrong doers.
94
Judicial and prosecutorial jurisdiction trade off- increasing the punitive nature of the criminal
justice system. .......................................................................................................................... 95
The end goal of the justice system should be a trial- trials rarely happen because of plea
bargaining. ................................................................................................................................ 96
Plea bargaining doesn’t meet the threshold of justice- it’s not due process and procedural
justice. ...................................................................................................................................... 97
Plea bargaining upsets the balance of court power - prosecutors gain far too much power. . 98
Courts must balance politics of power with the fairness of justice. ........................................ 99
Lawyers can pressure their clients towards unethical deals- threatens legitimacy of the
system. ................................................................................................................................... 100
European torture laws are designed in similar ways to plea bargaining- they use a mask of
voluntary consent to participation. ........................................................................................ 101
Tortured confessions and pleas rely on the same base of false ‘factuality’ and ‘lack of
coercion’. ................................................................................................................................ 102

A/2: Justice AC .................................................................................................................... 104
Plea bargaining is a contract between the justice system and individual. ............................. 103
Right to trial and right to not have a trial are comparable it is about whether the duty of
innocence is on the government or individual. ...................................................................... 104
Abolishing plea bargaining is not the ideal way to improve the criminal justice system- energy
should be focused elsewhere. ................................................................................................ 105
Courts weren’t built to be fair they were built to try to be efficient. .................................... 106
Please can be overturned-there are checks and balances. .................................................... 107
Checks and balances exist to help reduce sentences of or withdraw the plea. ..................... 108

Champion Briefs 7
Table of Contents Jan/Feb 2018

AFF: Judicial Legitimacy AC .................................................................................................. 109


Although politicians like Flynn lied to the FBI about Russian collusion in the Trump campaign,
the plea deal made merely wants him to wear a wire as opposed to serving time. .............. 110
Plea deals are allowing important politicians to get off scot-free even though they deceived
the FBI. ................................................................................................................................... 111
Plea deals are allowing public officials to get away with their crimes. .................................. 112
Although defendants have the right to a fair trial, the system is structured in such a way that
it is better for everyone to just plead guilty. .......................................................................... 113
Prosecutors even admit that they coerce the defense to waive their rights and just plead
guilty, even if they are innocent. ............................................................................................ 114
Bordenkircher v. Hayes proves the injustices in the criminal justice system with plea
bargaining. .............................................................................................................................. 115
Individuals are pressured to accept a plea as opposed to facing the wrath of government and
risking trial by jury. ................................................................................................................. 116
Those who do not accept pleas from prosecutors and take their chances in court only find
that the prosecution will respond with additional charges out of spite. ............................... 117
Alabama public official receives slap on the wrist plea deal for crimes that would have
amounted to 50 years in prison. ............................................................................................ 118
By making this pleading guilty for one misdemeanor, former city official avoids two separate
felony charges dealing with the flint water crisis. .................................................................. 121
Plea bargaining forces those who are innocent to plead guilty anyways out of fear. ........... 123
The supreme court gave the seal of approval to plea bargaining under the pretense it would
not be used to pressure innocents, but our current reality states otherwise. ...................... 124
Former Governor of Alabama avoids any jail time with plea deal when he would have faced
over forty years. ..................................................................................................................... 126
Currently, prosecutors have too much power in the criminal justice system. ....................... 129
Plea bargaining is coercive- multiple warrants. ..................................................................... 130
Not only is there a clear coercive process to plea bargaining, but an extreme abuse of power
from the prosecutor. .............................................................................................................. 132
The coercion embedded in plea bargaining only exacerbates as time goes on. .................... 133
Meta-analysis proves that there are lay perceptions of coercion in plea bargaining processes.
135
Perceptions of coercion delegitimize the criminal justice system. ........................................ 136
Judges use coercion via pleas to speed up the process- which led to death of 19-year-old boy.
137
A rejected plea should have no impact on a further trial- but in the status quo, it does. ..... 138
Duncan vs Louisiana proves the arbitrariness of court sentencing and plea bargains. .......... 140
Prosecutors are virtually in charge of the sentencing when it comes to plea bargaining. ..... 142
Proceedings in our criminal justice system are often one sided and subject to no oversight.
143
Plea bargaining causes defendants who are innocent to plead guilty. .................................. 144
More transparency is necessary in criminal justice system to prevent innocent defendants
pleading guilty out of fear. ..................................................................................................... 145

Champion Briefs 8
Table of Contents Jan/Feb 2018

A/2: Judicial Legitimacy AC .................................................................................................. 147


Prosecution doesn’t punish those who don’t accept plea deals, merely punish those who
violate the law. ....................................................................................................................... 146
Trump’s “Fake News” propaganda might now be disproven with public official’s plea deal. 147
Plea bargaining is not the issue, coercion is. .......................................................................... 149

AFF: Kant AC ........................................................................................................................ 150
Private rights are impossible without a “unified and lawgiving will”. .................................... 151
Governmental institutions are necessary to solve rights violations. ..................................... 152
The solution to problems of enforcement of rights is through the omnilateral will. ............. 153
Public authority provides assurances that private persons cannot. ...................................... 154
Law provides objective standard for enforcement of rights. ................................................. 155
Public officials are precluded from utilizing their states for private purposes. ...................... 156
Kant’s version of social contract stems from legitimacy of the public institution to provide a
rightful condition subject to law. ........................................................................................... 158
Laws that govern must be subject to universality. ................................................................. 159
Individuals rights constrain public power. ............................................................................. 160
Individuals cannot be sacrificed for another’s purpose. ........................................................ 162
The justification for punishment does not stem from consequences, but from a rightful
condition. ............................................................................................................................... 163
Criminals must be subject to punishment. ............................................................................. 164
Enforcement of punishment upholds violated rights. ............................................................ 165
Enforcement of punishment is necessary to not exclude criminal from law. ........................ 166
Plea bargaining renders “wild lawless freedom” and shows the laws guidance of conduct to
be ineffective. ......................................................................................................................... 168
Punishment renders the laws effectiveness, without punishment strong enough to deter
harmful action, we will have no assurance out rights are protected. .................................... 169

AFF: Prison Industrial Complex AC ....................................................................................... 171
Plea bargaining, and crony capitalism are inextricably linked. .............................................. 172
Plea bargains fuel private prisons. ......................................................................................... 173
Plea bargaining is part and parcel of mass incarceration and its oppressive consequences. 174
Plea bargaining is an example of how constitutional rights are sacrificed for a cult of judicial
economy. ................................................................................................................................ 175
The modern criminal justice system serves the prison-industrial complex. .......................... 176
Defendants should crash the CJS by refusing to plea out--that will strike a major blow to the
prison-industrial complex. ...................................................................................................... 177
Mass incarceration depends on the cooperation of individuals it seeks to control--the refusal
of plea bargaining can crash this oppressive system. ............................................................ 178
Crashing the CJS through the refusal of plea bargaining is key. ............................................. 179
The system would be overwhelmed if it abolished plea bargaining. ..................................... 180
The abolition of plea bargaining would mean prosecutors would focus more energy on
socially important cases, like white-collar crime, instead of small-time marijuana dealers. . 181

Champion Briefs 9
Table of Contents Jan/Feb 2018

The institution of plea bargaining plays a serious role in rising mass incarceration. ............. 182
Plea bargaining is integral to mass incarceration. .................................................................. 183
Plea bargaining is necessary for maintaining the extremely high prison population in the US--
the system can’t achieve maximal efficiency without it. ....................................................... 184
There are real differences in bargaining outcomes for white and black defendants. ............ 186
Black defendants are more likely to take plea bargains, and comparatively likely to accept
worse ones. ............................................................................................................................ 187
Empirics prove that Alaska. .................................................................................................... 189
Empirics prove racial bias in plea bargaining. ........................................................................ 190
Overwhelming evidence proves that plea bargaining results in prison stratification. ........... 191
Plea bargaining is the actus reus of mass incarceration......................................................... 192
Plea bargaining is a technology of racial domination--it’s necessary to enforce the
contemporary racial contract. The aff interrogates the hollow promises of liberalism. ........ 193
Prosecutorial power is the main element of the prison-industrial complex. ......................... 195
The system is one of pleas, not trials. Defendants are forfeiting their due process rights, and
susceptible to strategic charge-stacking. All this fuels mass incarceration. ........................... 196
Plea bargaining is linked with racist sentencing regimes. ...................................................... 198
The cost-benefit calculus of a plea bargain is rooted in the attempt by the prison-industrial
complex to obtain a “net return” for convictions. ................................................................. 199
Liberalism masks the racial domination which underlies plea bargaining. ............................ 200
Plea bargaining is procedural entrapment--oppressed people are systemically forced by plea
bargaining into no-win situations. .......................................................................................... 202
Plea bargaining is procedural entrapment--oppressed people are systemically forced by plea
bargaining into no-win situations. .......................................................................................... 203
Mass refusal of plea bargains will crash the system, because the system depends on the
denial of due process rights. .................................................................................................. 204
The refusal of plea bargaining as a protest strategy would crash the system, forcing
policymakers to confront mass incarceration. ....................................................................... 205
Mass incarceration is on the rise, and it. ................................................................................ 206
The Racial Contract produces a warped epistemology that precludes genuine understanding
of anti-blackness in a white polity. ......................................................................................... 207
The risks of mass refusal may be greater than accepting a plea, but people should know that
exercising their rights can shake the foundations of an anti-black criminal justice system,
even if they must risk their lives to do it. ............................................................................... 208
Mass plea refusal is essential to ‘creating a crisis’ for racist institutions--it’ll throw the whole
system of mass incarceration into disarray and force the government to remedy racial
injustice. ................................................................................................................................. 210
Mass plea refusal would strike a blow to the prison-industrial complex. .............................. 211
Individual and collective consent greases the wheels of the carceral state. ......................... 212
The aff is a historically informed imaginative act which fosters solidarity with the procedurally
entrapped. .............................................................................................................................. 213

Champion Briefs 10
Table of Contents Jan/Feb 2018

A/2: Prison Industrial Complex AC ....................................................................................... 215


Sentencing reform would reduce the pressure prosecutors put on defendants to plead guilty.
214
Reforms aren’t a cure-all, but the counterplan can help rectify deeply embedded structural
oppression in plea bargaining, which contributes to mass incarceration. ............................. 215
Sentencing reform can reduce mass incarceration. While plea bargaining is often a poor
substitute for justice, “crashing the system” would prevent it from dealing with real, harmful
crimes, too.............................................................................................................................. 216
The time has passed for any realistic chance people will conscientiously “crash the courts” --
all the momentum is going to reform. ................................................................................... 217
The aff oversimplifies mass incarceration--the prison-industrial complex isn’t the sole source
of blame--private prison companies are re-positioning themselves in a climate of criminal
justice reform. ........................................................................................................................ 218

AFF: Proportionality AC ....................................................................................................... 219
With plea bargaining, punishments are far too low, making them disproportionate with the
crime. 220
Plea bargaining is inconsistent with proportionality. ............................................................. 221
Plea bargaining is intrinsically incompatible with proportionality. ........................................ 222
Plea bargaining results in disproportionate punishment. ...................................................... 223
Bordenkircher v. Hayes proves that plea bargaining undermines desert. ............................. 224
Reducing sentences in exchange for a guilty plea is unjustifiable, even if remorse is a relevant
consideration. ........................................................................................................................ 225
If plea bargaining were just a negotiating ploy, then it’s even less proportionate. ............... 226
Plea bargaining is structurally unjust under the principle of proportionality. ....................... 227
The “grade bargain” is an instructive analogy for how plea bargaining is an affront to the
purposes of the criminal justice system. ................................................................................ 228
With plea bargains, defendants would be waiving their inalienable right to the lowest
reasonable sentence if convicted. .......................................................................................... 229
Proportionality is essential to any theory of punishment. ..................................................... 230
Plea bargains undermine proportionality. ............................................................................. 231
Restrictions on the force of punishment are necessary in a democracy. .............................. 232
Utilitarianism requires proportional punishment. ................................................................. 233
Proportionality is a basic moral intuition and should be incorporated into our understanding
of the Eighth Amendment. ..................................................................................................... 234
Proportionality cannot be excluded from any legitimate philosophy of punishment. .......... 235
Proportionality is essential to Eighth Amendment jurisprudence--it’s not a purely retributivist
notion. .................................................................................................................................... 236

A/2: Proportionality AC ....................................................................................................... 238
The abolition of plea bargaining would be worse for the innocent. ...................................... 237
Prohibiting plea bargaining will increase the amount of innocent people convicted. ........... 238

Champion Briefs 11
Table of Contents Jan/Feb 2018

The aff’s claim that plea bargaining prevents adequate punishment for the guilty represents
the worst, most absolutist form of deontology. .................................................................... 239
Plea bargaining isn’t inconsistent with just deserts. .............................................................. 240
Retributivism has a consequentialist element which makes plea bargaining justifiable. ...... 241
Plea bargaining can be more consistent with “just deserts” if it’s reformed to include victim
participation. .......................................................................................................................... 242
Victim Participation CP: Victim participation in plea bargaining would not undermine the
goals of a prosecutor. ............................................................................................................. 243
Plea bargaining doesn’t lead to overly lenient sentences. ..................................................... 244
Plea bargaining is essential to the judicial process, and some “sentence bargaining” is
inevitable. ............................................................................................................................... 245

AFF: Racism AC .................................................................................................................... 246
If plea bargaining is susceptible to bias it cannot be counted as a just/reliable system. ....... 247
Because attorneys project potential jury bias onto justification for pleas they also project
racism onto their clients. ........................................................................................................ 248
Lawyers steryotype black defendents which leads to higher rates of plea bargaining
compared to white defendants- though plea bargains are on the rise for both groups. ....... 249
Statistically black and latino people are pushed towards bargains more than white people.
251
Racial bias in pleas and policing make an unbalanced justice system based on race. ........... 252
White defendants are significantly more likely to have all charges dropped. ....................... 253
Black people are attacked on all sides of the justice system from being the most affected by
crime to the most persecuted for it. ...................................................................................... 254
Criminal justice system categorizes people into a hierarchy based on race. ......................... 256
Coercion of defendants is based on social class- leading to essentialization of groups of
people. ................................................................................................................................... 257

A/2: Racism AC .................................................................................................................... 259
Sentence reduction rates based on pleas are mixed based on race and gender. .................. 258
Blinding can help shift bias in plea bargains. .......................................................................... 259

Negative Cases with Affirmative Responses .................................................. 260

NEG: Virtue Ethics NC .......................................................................................................... 260
Plea bargaining based in dialogue can enable the defendant to present their positive
character traits. ...................................................................................................................... 262
Plea bargaining can become a forum for forgiveness. ........................................................... 263
Plea bargaining can facilitate restorative justice. ................................................................... 264
There is no unique danger that defendants will fake remorse. ............................................. 265
The virtue of forgiveness requires restorative justice, which does not prioritize the harshest
punishments. .......................................................................................................................... 266
Forgiveness is a virtue--it is what a good person would pursue. ........................................... 267

Champion Briefs 12
Table of Contents Jan/Feb 2018

Character ethics is compatible with a focus on desert in criminal justice. ............................ 268

A/2: Virtue Ethics NC ........................................................................................................... 270
A criminal justice system driven by plea bargaining leaves no room for forgiveness. ........... 269

NEG: State Bad NC ............................................................................................................... 270
The state has always been one that does not care about its people. .................................... 271
Criminal justice system is extremely corrupt- laundry list. .................................................... 274
America’s criminal justice system focusing on punishment and not rehabilitation will never
move forward and break cycles of recidivism. ....................................................................... 276
It is virtually impossible to bring about legal reform in the United States. ............................ 278
Even those who seek reform have given up due to the impossibility of change. .................. 280
Focus on punishment in the CJS is not addressing the root cause of the problem. ............... 282
After the Criminal Justice system fails a rape victim, she sues the defendant in civil court. . 284
Although the criminal justice system was created to keep communities safe, it has only
furthered incarceration and corruption. ................................................................................ 287
Plea bargaining is non-unique, criminal justice system as a whole is unjust. Examples prove:
(trigger warning mention of sexual assault). .......................................................................... 288
Plea bargaining is only a bullet point on the list of the things wrong with the Criminal Justice
system. ................................................................................................................................... 290

A/2: State Bad NC ................................................................................................................ 300
The law is malleable, and optimism is justified; pessimism ignores specific reforms that both
achieved lasting reductions racial inequality and spilled over to broader social movements.
291
Utilizing bad institutions like the CJS is inevitable so we need to engage it for effective
movements.. .......................................................................................................................... 299
Good policies are possible if we work together as a community. .......................................... 302
Reform of the criminal justice system is vital. ........................................................................ 303

NEG: Ableism K .................................................................................................................... 304
Plea bargaining for a defendant with a mental illness can ensure treatment. ...................... 305
Prisons have been viewed as the easy alternative to mental hospitals and treatment facilities
and disabled bodies are overrepresented in prison. .............................................................. 306
Mass incarceration of disabled individuals is unjust. ............................................................. 308
Disabled individuals are more likely to be subject to police violence and be incarcerated. .. 309
While in prison, disabled individuals are less likely to receive the care they need. ............... 310
Supreme Court Case proves we cannot segregate those with disabilities. ............................ 311
Plea bargaining is not the issue, the issue is a lack of understanding of mentally disabled in
the criminal justice system. .................................................................................................... 312
Plea bargaining is not the answer, mental health courts are. ................................................ 314
Mental health courts mandate treatment as opposed to promoting punishing. .................. 315
Mental health courts focus on a wide variety of cases. ......................................................... 316

Champion Briefs 13
Table of Contents Jan/Feb 2018

Study on mental health courts prove that they are the future for law and mental illness. ... 317
Results of meta-analysis prove effectiveness of mental health court reducing recidivism
amongst disabled individuals. ................................................................................................ 318

A/2: Ableism K .................................................................................................................... 321
Cases involving mental illnesses only exacerbate how corrupt plea deals are. ..................... 320
Cases involving mentally ill victims fail to punish the guilty offender. ................................... 321
Mental health courts are only modestly effective at reducing recidivism. ............................ 323

NEG: Court Clog DA ............................................................................................................. 324
Over 1/5 a million people on prison every day and 70% are in for pretrial proceedings. ...... 325
Decentralized bargaining has spread responsibilities of the court out preventing
inefficiencies. .......................................................................................................................... 326
Empirically bans on plea bargains have clogged dockets. ...................................................... 327
Judges are already overworked- small cases are filling up the court. .................................... 328
Court backlogs and lack of judges constrains the efficiency of courts-harms economy because
business matters can’t be adjudicated. .................................................................................. 329
Pleas exist now, and the system is already overworked. ....................................................... 330
Misdemeanors are the most common cases to go trial- these trials often don’t have lawyers
and hearings often finish in less than 3 minutes. ................................................................... 331
Guilty pleas lead to 30 seconds of court interaction- small violations are not prosecuted
adequately already. ................................................................................................................ 333
Plea bargaining is a response to rise in crime- our courts weren’t built to address the current
work load. ............................................................................................................................... 337
The expansion of the justice system necessary if pleas were eliminated is not feasible. ...... 338
Pleas reduce appeals meaning the courts have even less of a work load. ............................. 339
Please serve a public service and save judicial resources and time. ...................................... 340
A transformation of societal values in necessary to fixing the justice system. ...................... 341
The failure of the CJS system for black Americans continues to today. ................................. 342
Deportations are down now- court backlog is out for years. ................................................. 343

A/2: Court Clog DA .............................................................................................................. 345
An increase in litigation can be increased with only a small increase in judicial resources. .. 344
Even if the system gets overloaded more innocent people would be convicted under the plea
bargaining system. ................................................................................................................. 345
Abolition of plea bargaining does not trade off with the efficiency of the system. ............... 346
The prison population is so large because of a variety of faults in the justice system not just
pleas. 347
Efficiency needs to be maximized in the CJS to make it more effective. ............................... 348

NEG: Critical Legal Studies K ................................................................................................ 349
Under the current paradigm of the CJS small fixes won’t work- it’s about a larger social view
of crime. ................................................................................................................................. 350

Champion Briefs 14
Table of Contents Jan/Feb 2018

The best way to fix the justice system is to allow judges to engage in the moral calculus and
to not focus on efficiency. ...................................................................................................... 351
The CJS is completely corrupted with racism-needs a complete overhaul. ........................... 352
The legal system is endowed with commodification and market like tendencies. ................ 353
The supreme court defends plea bargaining on the basis of efficiency which is wholly market
based and treats people like commodities. ........................................................................... 354
If people start demanding trials it can crash the justice system by overloading it-breaking the
violent system. ....................................................................................................................... 355
The war on African Americans is part of a capitalist drive of the criminal justice system. .... 356
The justice system can’t be broken because it was never together- it was designed to be
racialized. ............................................................................................................................... 358
Racism in the criminal justice system predates plea bargaining-a total system overhaul is
needed. .................................................................................................................................. 359
The CJS has continually supported the subjugation of black Americans- it was never broken
its always been that way. ....................................................................................................... 360
The CJS is corrupt its built to prop up power and ensure tyranny. ........................................ 361
The justice system doesn’t operate under innocence but rather control. ............................. 363

A/2: Critical Legal Studies K ................................................................................................. 365
It’s not the courts its criminal law that is the problem- this regulates all action and
acceptability in the courts. ..................................................................................................... 364
Now is the perfect time for CJS reform-public pressures are rising. ...................................... 365
Funding and proper staffing are the keys to fixing the justice system. .................................. 366

NEG: Drug Reform CP .......................................................................................................... 367
Accounting for the “stock” and “flow” of prisons means that reducing the population of drug
offenders in prisons is essential. ............................................................................................ 368
Drug laws are the primary driver of mass incarceration, and it’s racially disproportionate. . 369
Black people and Latino people are disproportionately arrested and incarcerated for drug
crimes. .................................................................................................................................... 370
Policy recommendations from the Drug Policy Alliance. ....................................................... 371

A/2: Drug Reform CP ........................................................................................................... 373
The War on Drugs is not the primary cause of mass incarceration--new analysis proves. .... 372
The goal of real decarceration requires a broader focus beyond the drug war. .................... 373
Most state prisoners are serving time for violent crimes, not drugs. .................................... 374
Meaningful reform requires changing how we approach violent crimes as well as the war on
drugs. 375

NEG: Federalism DA ............................................................................................................ 376
Plea bargaining takes place within the context of a federalist criminal justice system. ........ 377
States should be laboratories of experimentation in criminal justice. ................................... 378
The imposition of federal uniformity in sentencing undermines flexibility and pragmatism.379

Champion Briefs 15
Table of Contents Jan/Feb 2018


A/2: Federalism DA ............................................................................................................. 381
Federal laws in criminal justice have increased exponentially. .............................................. 380
The right to trial by jury is binding on the states. .................................................................. 382

NEG: Sentencing Reform CP ................................................................................................. 383
Revising how crimes are defined can reduce mass incarceration. ......................................... 384
The distinctions between felonies and misdemeanors should serve legitimate policy
objectives. .............................................................................................................................. 385
Most mandatory minimum sentences should be eliminated. ............................................... 386
Eliminating mandatory minimums in enhancements is necessary. ....................................... 387
Reforming the plea system would shine light on abusive prosecutorial behavior--it would
become a system-wide audit. ................................................................................................ 388

A/2: Sentencing Reform CP ................................................................................................. 390
Even if mandatory minimums are ended, judges will strategically give severe sentences to
induce a guilty plea. Abolishing plea bargaining is necessary. ............................................... 389

AFF/NEG: Politics DA Links .................................................................................................. 390
Plea bargains are tool to get corrupt politicians to resign. .................................................... 391
Plea bargaining is being used as a political tool to depart undocumented peoples. ............. 393
Plea bargaining is being used for force undocumented people to sign away due process right.
395
Jeff sessions is pushing courts to bypass trial via plea bargaining. ........................................ 397
Plea bargaining allows White House defectors to help speak out without more fear- Flynn
shows. .................................................................................................................................... 398
Supreme court decides and continues to decide plea bargaining on party lines- Gorsuch will
tip the court. .......................................................................................................................... 399
Flynn sets a trend for more arrests on Russia scandal- plea bargains are going to be key to
new information. .................................................................................................................... 401
Congress is bipartisan on juvenile justice reform. .................................................................. 404
Perceptions of the criminal justice system is divided on race lines. ...................................... 405
Because prosecutors are tied to political affiliations plea bargaining can be political.. ........ 406
Immigrations courts are backlogged now- over 1/2 million cases for 58 courts. .................. 407
Deportation hearing waits are up 700%. ................................................................................ 408
Trump is hiring judges to speed up deportations. ................................................................. 409
Trumps actions on those found guility in the Russia scandal could spell impeachment. ...... 410
More pleas are coming in the Trump-Russia scandal, this could spell trouble for US-Russia
international relations. ........................................................................................................... 411
Flynn’s plea sets a precedent for testifying against other government corruption and
obstruction of justice. ............................................................................................................ 412

Champion Briefs 16
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

Topic Analysis by Sheryl Kaczmarek

Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.

“Oh…wow…easiest topic to coach ever. All we need is a good Court Clog DA, and the ability to

flip Neg in every single round.” So went the monologue in my head when I first saw the

January-February topic (also known as “The Topic That Lasts Forever” for LDers eventually

headed to the TOC). Putting together a Court Clog DA should not be difficult, but since LDers

don’t get to flip Neg very often in the prelims, and half the competitors need to be Aff in the

elims, I believe this topic is going to demand some innovative affirmative thinking. Every

affirmative idea I think up is immediately answerable, in my own mind, at least, by more than a

few negative arguments, from a range of argument genres.

Thinking Outside the Debate Box

If I step outside of my debate coach self for a moment, I can identify many problems with plea

bargaining, starting with the fact that the process requires accused persons to admit to

committing some sort of crime, in exchange for a specified amount of punishment. Absent plea-

bargaining, accused persons are taking the chance that the government will not be able to

prove them guilty, and if it cannot be done, they suffer no penalty at all. Since our legal system

is built on the concept of “innocent until proven guilty,” it hardly seems reasonable to expect

Champion Briefs 18
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

innocent people to admit to committing crimes, rather than risking trials, but the key word here

is risking. No one knows what will happen at trial, and with over-worked prosecutors on one

side, and underpaid public defenders on the other, many lower income persons likely believe

they are unable to take the chance. Accused persons who can afford to hire attorneys might be

willing to go to trial, especially if they believe they can win, but according to the Marshall

Project: “Ninety-seven percent of federal convictions and ninety-four percent of state

convictions are the results of guilty pleas.”

[https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-the-innocent] This

suggests that even wealthy individuals try hard to avoid courtrooms, at least when it appears in

their best interests to do so.

My private citizen self is bothered by the fact that wealthy individuals can afford better legal

representation than anyone else, and that persons of color (especially those who are also

economically disadvantaged) can find themselves shunted off to prison far too easily, and

silently, given that plea negotiations happen behind closed doors, with little to no public, or

even judicial, oversight. Whether low income persons, or persons of color, would fare better if

they went through the entire trial process is another question, but it is not one we can

empirically answer, since plea arrangements are so much a part of our criminal justice system.

Also, since the resolution specifies the United States criminal justice system, I am not sure it will

be valid to compare systems that do not currently rely on plea-bargaining, to what the United

States might look like if it were abolished. Other legal systems are built on different laws, and

punish crimes in different ways. Drug offenses are a case in point. More permissive societies do

Champion Briefs 19
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

not even criminalize the use of substances like heroin, but in places like the Philippines, even

suspected low level drug offenders have been legally killed in the street, without any sort of

due process.

It is probably also true that plea-bargaining increases the already substantial differences in the

penalties for the same crime between jurisdictions in the United States, because it can literally

change the crime for which one is punished. Principles of equality and justice ought to be

important to our criminal justice system, which means the punishment ought to fit the crime,

the actual crime, not the one listed in the plea agreement. While my essentially liberal private

citizen self does not readily admit the possibility that plea-bargaining is wrong because it is too

lenient, this is clearly an objection some private citizens might raise, and even I would, if it were

a question of allowing corporate polluters to plead guilty to lesser offenses to save the

government millions fighting their high-priced lawyers in court. Others might argue that if

someone kills someone else with their car, it ought to be murder (not vehicular manslaughter)

or that when someone gives illegal drugs, even small amounts, to friends, they ought to be

charged with sale or distribution, not possession. In various situations, plea-bargaining can

clearly be seen by some citizens as allowing criminals to “get off too easily.”

Taking the Human Back into the Debate Round on the Affirmative

Since individuals from a range of political viewpoints can find flaws, inequities, constitutional

and moral objections to the use of plea-bargaining, our next task is to determine how those

Champion Briefs 20
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

concerns translate into affirmative cases, preferably cases that do not link to the Court Clog DA.

Let’s start with my last thought, the notion that justice demands that people pay penalties for

the crimes they commit, not the less serious crimes they did not commit. An AC could be built

around a simple “justice is equality” framework. Plea-bargaining guarantees injustice because

different punishments are given for the exact same original crime, depending on the skill of

defense attorneys, the focus of prosecutors and the fear of going to trial that faces many

defendants. Alternatively, one could try some sort of “justice as retribution” framework, or a

“justice as deterrence” framework. “Justice as retribution” argues that criminals need to be

punished, to the fullest extent of the law, for their transgressions against individuals, or society

as a whole. “Justice as deterrence” argues that since people expect to be able to plead guilty to

lesser offenses, they are less likely to be deterred from committing the more serious crimes in

the first place.

These “get tough on crime” cases, even the one that includes a mention of equality, are

designed to make the lives of the accused miserable, which means Court Clog might not matter

so much. In fact, knowing that you would need to sit in jail for months, or even years, before

you got your day in court, might be an even better deterrent than the final penalty, because if

you can’t afford bail, you stay locked up until trial, which could be VERY far in the future. People

with money, or individuals who are good risks, could get out on bail anyhow, so Court Clog

would not be much of a problem for them, and individuals out on bail, who are not yet

convicted, can continue working, and having a more or less normal life, as long as they don’t try

to leave the jurisdiction. The people who can’t get out on bail would suffer the most from Court

Champion Briefs 21
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

Clog, but since the framework in these cases is based on retribution, or deterrence, an

affirmative could argue that Court Clog is part of the punishment, or part of the reason people

might decide not to commit crimes in the first place, and regardless, there would be

punishments that matched the actual crimes, not other crimes, which is more equal.

If we return to the more liberal interpretations of the resolution, I have to believe that many

affirmatives are going to try to decrease the amount of discrimination in the criminal justice

system that is experienced by persons of color, especially lower income persons of color. Since

the original plea deals are cut behind closed doors, and since low-income persons of color

almost certainly do not have the best of representation, they are probably getting worse deals

than higher income white defendants. This is also an equality question, but one that tends to be

more concerned about protecting the rights of accused persons than making sure as many as

possible of the accused end up convicted and punished.

It occurs to me that one of the important questions for this resolution is whether an affirmative

can advocate for the abolition of plea bargaining…period…without being required by negatives,

or judges, to propose an alternative. If that were possible, most of the impact from the Court

Clog DA would vanish, because affirmatives could claim they are not responsible for devising

solutions to the evils of plea-bargaining, if they prove plea-bargaining itself to be evil. The long-

time policy coach in me says that simply rejecting plea-bargaining is not enough. After all, what

value is there in pointing out that a problem exists, if no attempt is made to solve that

problem? LD embraced the concept of solvency years ago, and any time I try to convince any of

Champion Briefs 22
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

my student to embrace the resolution, as written, and leave their solvency cards at home, they

roll their eyes and consider me hopelessly old-fashioned. But why couldn’t affirmatives do

precisely that? My human self knows plea-bargaining is bad – why shouldn’t my debate side

endorse an affirmative case that proves it?

My debate side would accept it, until the negative starts making the argument that, as bad as

plea-bargaining is, the alternatives are worse. Then I believe I’d go back to thinking those

negative thoughts. Before I talk about the negative, however, I have one more affirmative area

to comment on, that being our old friend the “parametrized” case. What if the affirmative

abolished plea-bargaining only for cases of sexual assault, or murder, or everything but drug

offenses, or any of a thousand other crimes, and combinations? I am VERY much afraid that

even for “The Topic That Lasts Forever” there may be too many different individual reasons to

abolish plea-bargaining, and obviously, the narrower the circumstances, the smaller the link to

the Court Clog DA. Of course, very narrow interpretations will invite topicality violations. I voted

once in the elims at the Glenbrooks on T, and would have done so a second time had T been in

the NR, so a good T violation always makes me smile, and these could be good.

Whether an affirmative takes the topic broad (and tries to avoid mentioning solvency), or takes

it narrow, as a way of avoiding Court Clog, at the risk of inviting T, or does something in

between, like defending the maximization of punishment or the more equal treatment of the

accused, especially low income accused persons of color, it does appear that there is

Champion Briefs 23
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

affirmative ground with this resolution after all, perhaps too much ground. So, what’s a

negative to do? I believe the Negative also has a wide range of choices.

What’s a Negative to Do, Given the World of Affirmative Possibilities?

Given how many times I have already mentioned it, I really must start by discussing the Court

Clog Disadvantage. Remember those statistics I offered at the start of this analysis: 97% of

federal convictions come because of guilty pleas, and 94% of state convictions. Absent plea-

bargaining, all those cases, or most of them (prosecutors might let some cases go), would need

to be tried in front of judges, or even judges with juries. Television classics like the original Law

and Order, or the more contemporary Bull, get at least one thing right. There are a great many

people involved in a trial, with or without a jury. It would literally take years to hold trials for all

the people accused of crimes in a single year, assuming the current number of court officials

and courtrooms. Increasing the number of court personal and courtrooms five to seven-fold

might allow the criminal justice system to keep up with the cases, but the cost of doing that

would be astronomical, and unsustainable. It would seem affirmatives could be caught between

“justice delayed is justice denied” and the bankrupting of the state and federal criminal justice

systems, not a comfortable position, unless the affirmative’s real goal is to destroy the system.

Anyone who has read any Afro-Pessimism literature will know that “burning it down” is a

common refrain, and what better way to burn down the justice system, and government more

generally, than to destroy the functioning of its criminal justice system.

Champion Briefs 24
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

I’m not sure how common that affirmative approach will be, so much as I believe in the Court

Clog DA, I would advise using it carefully, and would recommend having other argumentative

choices. One of them should clearly be Topicality. An affirmative that embraces the resolution

as a whole, and does not worry much about solvency, will probably be topical, but any

affirmative that starts slicing and dicing the resolution really will not be topical, and really will

be stealing negative counterplan ground. This is one of the many things I find fascinating about

LD. While the affirmative is carving out narrower and narrower ground to avoid arguments like

the Court Clog DA (on this resolution), the negative will be trying to force the affirmative to

defend the entire resolution, so that their nice, narrow PICs offer the judges better policy

options, and the PICs, and the “parametrized” affirmative interpretations of the resolution are

effectively interchangeable.

Pretty much regardless of the affirmative approach, the negative will have the option of

running a Federalism Disad, unless the affirmative interprets the resolution to mean that only

actual federal courts need to do away with plea-bargaining. This is a potentially valid

interpretation because the wording is “United States criminal justice system,” not the criminal

justice system in the United States, but if the affirmative is NOT offering a federal only

interpretation, the negative can argue that the USFG simply does not have the authority to tell

state (and even lower level) courts how to handle their cases. To institute that much control

really would upset the balance between state and federal power. Federalism impacts are a bit

nebulous, but with affirmatives talking about things like justice and equality and the rights of

criminal defendants, the impacts are comparable.

Champion Briefs 25
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

Odd though it might be to say, the implications from the range of topic-relevant critical

negative positions might be more tangible than at least some of the counterplans and

disadvantages on this topic. Anti-Blackness arguments clearly have a place in the plea-

bargaining debate, as well as critiques of the legal system itself (Critical Legal Studies/Scholars

comes to mind). Even old school kritiks of the State, or of the role/legitimacy of punishment,

could make a come back. With this much substance, surely, we can put away those theory

shells and spikes, at least until TOC.

The Final Thoughts

Now that I have written my way through this analysis, I think I was partially incorrect in my

initial reaction to resolution. Oh, I still think flipping neg is a good idea, but I also think there is

affirmative ground of substance, and I would STRONGLY encourage everyone to find some, and

leave the junk theory at home. There is time to break it out again for the TOC, if you must, but

in the meantime, please read, think and write about the resolution.

About Sheryl Kaczmarek

Sheryl is about to finish her 35th year of coaching speech & debate. Her career began at

Brookfield Central High School in Wisconsin in the 1982-83 school year, coaching exclusively

policy debate (and speech) since LD had not yet spread across the country, and no one had

Champion Briefs 26
Topic Analysis by Sheryl Kaczmarek Jan/Feb 2018

even dreamed of PF. She spent 10 years at Brookfield Central, before spending one year at

Glenbrook North, then moved east to Newburgh Free Academy in New York, where she

coached Policy, LD and PF for 21 years. She is now in her third year at Lexington High SChool in

MA, teaching advanced classes in PF, LD, and Policy, in addition to novice classes and managing

a team of 130 students. She is also the Lincoln-Douglas Curriculum Coordinator for the

Champion Briefs Institute.

Champion Briefs 27
Topic Analysis by Rory Jacobson Jan/Feb 2018

Topic Analysis by Rory Jacobson

Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.

From my perspective, this year's January-February topic indicates that affirmatives must

defend a clear eradication of the plea bargain system in the US criminal justice system. As a

result, any implementation of an alternative program or reconstruction of the plea bargain

could reasonably be considered extratropical, and negative ground. There is a reasonable and

clear point that the eradication of the plea bargain program is effectively affirmative ground

since the program requires a substitute, but this will likely be a difficult point to prove. Given

the clarity of this topic, I feel the framers intended to offer the bulk of argumentation of

whether it is just for a legal system to sanction innocent individuals.

As a brief update, the plea bargain system has many critics and as the primary legal term

in the resolution, signals to two practices commonly employed by prosecutors in the United

States criminal justice system. First, prosecutors can offer a non-binding sentencing agreement

in exchange for a guilty plea (meaning their charges could still vary and that the prosecutor will

only suggest a lenient sentence), and second, prosecutors can offer a binding sentencing

agreement in exchange for a guilty plea. The purpose of this system is to reduce expensive legal

fees and time associated with carrying out trials in which the defendant is either obviously and

admittedly guilty or innocent. Unfortunately, the gap between the extremity of sentencing

faced with plea bargains and tried convictions is large, causing many innocent defendants to

Champion Briefs 28
Topic Analysis by Rory Jacobson Jan/Feb 2018

plead guilty due to risk of a wrongful conviction during trial. The primary issue is that

prosecutors offer plea bargains strategically to achieve convictions of accomplices, causing

defendants offered plea bargains to accept the deal, even when they would likely not be found

guilty.1 There is of course literature that defends a fairness principle to plea bargaining,

indicating that guilty defendants are more likely to accept plea bargains, than innocent

defendants. This of course begs the issue of whether having any innocent defendant go to jail is

ethical at all (provided a guilty plea).2

While some believe plea, bargains were derived as a panacea for crowded courts, their

presence during the early 20th Century demonstrates that their intention was likely to conclude

trials with a clear verdict, without wasting the jury's time, as opposed to an overburdened legal

system.3 As mentioned above, the primary difficulty regarding innocent defendants pleading

guilty is that incredibly lenient sentences are offered in harsh juxtaposition to the penalties

faced after trial. In response, some legal scholars have argued that restricting the sentencing

reduction offered with plea bargains would decrease the incentive for innocent defendants to

plead guilty. But plea bargains don't just exist in felony trials, rather, their entire purpose is to

abate unnecessary legal fees for unnecessary misdemeanor trials.4


1 Bar-Gill, Oren, and Omri Ben-Shahar. "The Prisoners'(Plea Bargain) Dilemma." Journal of Legal Analysis 1.2
(2009): 737-773.
2 Tor, Avishalom, Oren Gazal-Ayal, and Stephen M. Garcia. "Fairness and the willingness to accept plea
bargain offers." Journal of Empirical Legal Studies 7.1 (2010): 97-116.
3 Wishingrad, Jay. "The plea bargain in historical perspective." Buff. L. Rev. 23 (1973): 499.
4 Cade, Jason A. "The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court." Cardozo L. Rev. 34 (2012):
1751.

Champion Briefs 29
Topic Analysis by Rory Jacobson Jan/Feb 2018

In this sense, the affirmative will be responsible for defending an ethical system that

permits some unjust detentions to provide a more efficient and just legal system. It should not

be difficult to find a variety of legal philosophers in the literature that are inherently opposed to

unjust punishment.5 A variety of claims on the negative related to critical legal studies should

be expected, as plea bargains lead impoverished defendants of color to accept plea bargains

due to the racist tendencies of juries. The role of legal counsel in these instances also becomes

an important issue, given that court appointed lawyers are likely to suggest that defendants

accept plea bargains in order circumvent the extensive workloads of a full trial.6 The same can

be said in many instances for the mandatory minimums that effect plea bargain sentencing, as

without mandatory minimums prosecutors can offer very lenient sentences in hopes of not

having the organize a trial by jury.7

While affirmatives will likely employ ethics prescribed by critical legal studies scholars

that indict any wrongful detainment or punitive measure against an innocent individual,

negatives will likely argue that the court clogging inefficiencies and potential alterations to be

made to the program outweigh its altogether abandonment. This argument is relatively simple,

as 95% of cases in the United States criminal justice system are resolved through the

acceptance of a plea bargain.8 Therefore, if this system is eradicated, the US judicial system will


5 Bibas, Stephanos. "Bringing moral values into a flawed plea-bargaining system." Cornell L. Rev. 88 (2002):
1425.
6 Sampson, Paul J. "Ineffective Assistance of Counsel in Plea Bargain Negotiations." BYU L. Rev. (2010): 251.
7 Mirza, Faizal R. "Mandatory minimum prison sentencing and systemic racism." Osgoode Hall LJ 39 (2001):
491.
8 Ross, Jacqueline E. "The entrenched position of plea bargaining in United States legal practice." Am. J. Comp.
L. 54 (2006): 717.

Champion Briefs 30
Topic Analysis by Rory Jacobson Jan/Feb 2018

inevitably be clogged with pointless or obvious cases that defendants will bring to trial

regardless of guilt. The implementation difficulty of the affirmative poses the issue of either

defending implementation and facing the court clog DA or attempting to win the framework

debate and indicting the system from a means based perspective. Additionally, many argue that

the plea bargain system is inherently coercive, as prosecutors often incentivize the defendant

to accept minimal sentences by threatening more extreme sentences after a trial by jury. As a

result, acceptance of a plea bargain is largely contingent upon the quality of legal counsel and

the sentencing gap, and unfortunately, more wealthy defendants with better legal counsel are

more likely to be able to predict and strategize against a guilty verdict.

Of course, the ethical implications of such a verdict are substantially multiplied when

the defendant faces lethal punishment, as capital punishment in court incentivizes the

acceptance of any other punishment via plea bargain.9 Moreover, an attorney defending a

victim with an option of plea bargaining is incentivized to do a poor job of counseling their

client, as going to trial forces lawyer to continue to serve their clients (assuming they are court

appointed). Many have argued that this is because the state had provided insufficient resources

to bring every case to trial.10 As result, negatives may argue that the state is obligated to

provide resources to suffice a system of legal aid that allows for all innocent defendants to

pursue trial.


9 Ehrhard, Susan. "Plea Bargaining and the Death Penalty: An Exploratory Study." Justice System Journal 29.3
(2008): 313-325.

10Burke, Alafair S. "Prosecutorial passion, cognitive bias, and plea bargaining." Marq. L. Rev. 91 (2007): 183

Champion Briefs 31
Topic Analysis by Rory Jacobson Jan/Feb 2018

The interpersonal aspect of plea bargaining is appalling, as defense lawyers often reach

agreements with judges in as little as a few minutes, and many details of cases are obscured

and excluded.11 The unfortunate limitations of budgeting constraints, unmotivated legal

defense, and human emotion have yielded a system that inherently punishes the innocent. As a

result, the defense for the plea-bargaining system must come from the legal necessity to

alleviate the absurd number of obviously guilty verdicts. Fortunately for the negative willing to

defend plea bargaining, many legal scholars have offered a reformed concept of the legal tool

by arguing that a more impartial, equal, and unedited explanation of defendant’s cases would

solve this difficulty.12

Another worthy issue to be considered with innocent plea bargaining is the ethical issue

of self-incrimination, particularly as an issue of human rights.13 Inversely, there is the difficulty

that plea bargaining in many cases offers an opportunity for the release of criminals for the

conviction of other. As mentioned previously, with cases where defendants could face the

death penalty in trial, there is an extreme incentive for any defendant to accept a plea

bargain.14 The right to trial is of course a constitutional right, however, such a right can be

forfeited in the case of a plea bargain, thus arguments regarding the constitutional nature of


11Yaroshefsky, Ellen. "Ethics and Plea Bargaining-What's Discovery Got to Do With It." Crim. Just. 23 (2008):
28.
12 Hashimoto, Erica. "Toward Ethical Plea Bargaining." Cardozo L. Rev. 30 (2008): 949.
13 Lippke, Richard L. The ethics of plea bargaining. Oxford University Press on Demand, 2011.
14 Kuziemko, Ilyana. "Does the threat of the death penalty affect plea bargaining in murder cases? Evidence
from New York’s 1995 reinstatement of capital punishment." American Law and Economics Review 8.1
(2006): 116-142.

Champion Briefs 32
Topic Analysis by Rory Jacobson Jan/Feb 2018

plea bargaining should not be persuasive. Rather, I think that most judges will be more

intrigued by arguments related to the punishment of innocent citizens.

Most thoughtful or creative negatives will not defend the plea bargaining system, but

will instead rely on defending competitive counterplans with advocacies such as the

replacement, restructuring, or restriction of the plea bargaining process or system.15 As

suggested previously, this would typically imply restricting the gap between the sentences

faced in trial by jury versus accepting a plea bargain, or increasing the time spent dedicated to

raising the threshold of evidence required to bring cases to trial. Arguably, the pressure should

be on the prosecution to offer more reasonable sentencing structures that do not yield a

prison-industrial complex. Plea bargaining is in many regards, an informal system used between

judges and prosecutors the minimize the impact of cases on an already very overcrowded

judicial system. Nonetheless, reducing efforts during trial to increase the effort put into

punishing is rather unethical.

The real issue with plea bargains as a loophole to solve the overcrowded court system is

the associated rise in convictions, since prosecutors can charge defendants that they do not

intend to take to trial. Expect a variety of well linked kritiks regarding the racist implications of

plea bargaining system, as well as the rising rates of incarceration.16 Along with these

arguments, many debaters will likely make critical legal studies arguments surrounding the

implicit racism of prosecutors, the unjust racism juries demonstrate against people of color, and

the general violence of a legal system that convicts and imprisons innocent defendants that


15 White, Welsh S. "Proposal for Reform of the Plea Bargaining Process." U. Pa. L. Rev. 119 (1970): 439.
16 Quigley, William. "Racism: The Crime in Criminal Justice." Loy. J. Pub. Int. L. 13 (2011): 417.

Champion Briefs 33
Topic Analysis by Rory Jacobson Jan/Feb 2018

cannot afford to face trial by jury, given their racial disadvantage.17 Returning to the point of

racist juries, this adds another elements to the affirmative, as people of color will be less likely

to refuse a plea bargain, as they are less likely to have a jury that actually reflects a jury of their

peers.

Another issue that will likely be important, is that affirmatives eradicating the plea-

bargaining system (topical affirmatives) must find a solution to the massive number of cases

that will require juries. A twenty-fold increase in jury trial implies that most of us able to serve

on juries will be serving on juries almost constantly. Unless the criminal justice system can

somehow increase the number of jurors in the United States tenfold or more, the

implementation portion of the affirmative is literally impossible. Moreover, simply assuming

that prosecutors will charge fewer defendants is unlikely, as this would similarly require a 90%

reduction in cases. As a result, I expect that many affirmatives will choose means based

frameworks and argue that on principle, the plea-bargaining system must be rejected as it

inherently convicts innocent people and reaffirms racial and socioeconomic biases. This is clear

given that court appointed counsel will never be as invested in securing a reasonable plea

bargain (or trial) as a well-paid defense attorney.18

While I don't think that many affirmatives will focus on the fact that many guilty

individuals are offered very light sentences through the plea-bargaining system, it is another


17 Lieb, Doug. "Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future."
Yale LJ 123 (2013): 1014.
18 Kramer, Greg M., Melinda Wolbransky, and Kirk Heilbrun. "Plea bargaining recommendations by criminal
defense attorneys: Evidence strength, potential sentence, and defendant preference." Behavioral sciences &
the law 25.4 (2007): 573-585.

Champion Briefs 34
Topic Analysis by Rory Jacobson Jan/Feb 2018

ethical issue. While it isn't likely that these individuals will cause an extensive level of harm to

their community, it seems incredibly unethical that innocent defendants must plead guilty to

avoid wrongful incarceration, while guilty defendants can plead guilty and still avoid more

extreme sentences. While the plea-bargaining gap can grow wider, it is important to

understand that those that accept plea bargains, whether guilty or innocent, achieve the same

legal status. The moral flattening involved with the plea-bargaining system leaves criminals with

the same punishment as innocent civilians.19

There are also many interesting legal criticisms on behalf of innocent defendants that

plead guilty. The psychology and game theory behind choosing whether to accept a plea

bargain are incredibly complex, however, when the odds are stacked against a defendant due

to lack of exonerating evidence, many defendants, assuming that they will be found guilty

regardless, are willing to accept the minimal sanctions offered with a plea bargain. I imagine

that many affirmatives will question whether these guilty pleas are coerced or not. This

argument would essentially assert that the courts knew that the wagered punishment scenario

would lead any reasonable person to plead guilty implying that the court should reasonably

understand that there isn't a way out for innocent defendants. Moreover, with regard to

defendants that face issues of mental health, navigating the plea-bargaining system and

trusting the court appointed counsel can be incredibly difficult, leading their health issues to be

ignored.20


19 Bjerk, David. "Guilt shall not escape or innocence suffer? The limits of plea bargaining when defendant guilt
is uncertain." American Law and Economics Review 9.2 (2007): 305-329.
20 Parsons, Jim, and Tiffany Bergin. "The impact of criminal justice involvement on victims' mental health."
Journal of traumatic stress 23.2 (2010): 182-188.

Champion Briefs 35
Topic Analysis by Rory Jacobson Jan/Feb 2018

On the affirmative, some have argued that employing plea bargains is an abuse of

power and implicitly undercuts the constitutional right to a fair trial by jury, since the plea

bargain incentivizes the individual to not use their right to trial.21 This argument essentially

points out that while the courts have honored their constitutionally derived obligation to offer

a trial by jury, they have worked extensively to ensure that the defendant has every reason to

not request a trial by jury. This is an abuse of power as offering a right is not the same thing as

actually allowing citizens to employ such a right, since the implementation of a system like plea

bargaining undercuts the value of a trial by jury. This issue is clear since a resistance by

defendants (such a universal rejection of plea bargains), would leave the court incapable of

handling the extreme number of cases they would need to send to trial. Since the court does

not have the resources to offer every one of their citizens a trial by jury, some may argue that

the utilization of the plea bargain allows the criminal justice system to offer trials by jury that

could never happen in practice. To some ethicist, the state's willingness to offer these trial is

unethical as they are technically offering more trials than they could perform, like the way that

universities will offer more students admission than could ever actually be accepted. Both

systems assume that there is a statistical significant to the percentage of individuals that will

not elect to proceed to trial (or school).

Even while they may be unethical in theory, in practice, defendants have never been

able to collectively resist the plea bargain system, as the individual incentive to accept the

bargain precludes an aligned resistance of the state. Ultimately, it is my hope that students


21 Acevedo, Roland. "Is a Ban on Plea Bargaining an Ethical Abuse of Discretion--A Bronx County, New York
Case Study." Fordham L. Rev. 64 (1995): 987.

Champion Briefs 36
Topic Analysis by Rory Jacobson Jan/Feb 2018

understand the deep ethical inequalities engrained in the plea bargain system, particularly as to

the race and socioeconomic status of the defendant inform their ability to successfully acquire

the lowest possible sentence.

One of the interesting epistemic barriers to plea bargaining is that while prosecutors will

often claim that plea bargains resolve cases to the same effect as the jury, however, if one

accepts a plea bargain it is impossible to determine whether they would have been found guilty

by a jury. I am hopeful that students debating this topic are sensitive to the anxieties and

hopes of plea bargainers, while also acknowledging the utilitarian purposes of the system and

its efficiencies. The debaters that win on this topic will be those that can empathize and

understand both the prosecutor and the defendant.

Good luck!

Champion Briefs 37
Topic Analysis by Shankar Krishnan Jan/Feb 2018

Topic Analysis by Shankar Krishnan

Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.

1. Background of Plea Bargaining

In this section I shall go the historical application of plea bargaining in the United States criminal

justice system. In any Lincoln-Douglas topic about the judicial system, it is important to

understand the history of how the judicial system has responded to similar issues such as the

resolution in the past, regardless of what framework debaters choose to adopt.

1.1 Pre-Civil War Plea Bargaining

Before the Civil War, plea bargaining was discouraged for the most part, partly because it was

seen as a violation of the fifth amendment, and the right against self-incrimination. However,

some cases did exist, including one in colonial Massachusetts in 1749, where three burglars who

pleaded guilty were not prosecuted. In general, though, guilty pleas themselves were

uncommon, let alone plea bargaining. Throughout the 1800s, the rate of convictions due to

defendants pleading guilty grew, as evidenced by a study conducted by Raymond Moley in New

York State22. However, in general, individuals did not debate the concept, nor was it prevalent

enough to represent a significant part of the topic literature.


22
Alschuler, Albert W. "Plea bargaining and its history." Columbia Law Review 79.1 (1979): 1-
43.

Champion Briefs 38
Topic Analysis by Shankar Krishnan Jan/Feb 2018

1.2 Post Civil War Thoughts (1800s ~ 1900s)

After the Civil War, plea bargaining was a highly contested concept. Some courts, especially at

the beginning, still actively disliked plea bargaining, mainly because they saw it as coercing or

influencing the defendant to forsake their right to trial. One quote from the course in Deloach v

State illustrates the courts’ views clearly:

“As the plea of guilty is often made because the defendant supposes that he will thereby

receive some favor of the court in the sentence, it is the English practice not to receive such

plea unless it is persisted in by the defendant after being informed that such plea will make

no alteration in the punishment.... [J]udicial discretion... should always be exercised in favor

of innocence and liberty. All courts should so administer the law.., as to secure a hearing upon

the merits if possible”23

However, the guilty plea as a concept was legitimized by the Supreme Court in Hallinger v.

Davis24, although this case did not include an instance of plea bargaining. In general, many court

cases and encyclopedias included moral philosophical justifications against plea bargaining.

Documents from this time may be helpful to affirmatives who are looking for more philosophical

or constitutional justifications against plea bargaining.


23
Deloach v. State, 77 Miss. 691, 692, 27 So. 618, 619 (1900).
24
146 U.S. 314 (1892).

Champion Briefs 39
Topic Analysis by Shankar Krishnan Jan/Feb 2018

1.3 The Exponential Rise (1900s - )

In the twentieth and twenty-first century, we have seen an exponential growth in plea bargaining.

In the early part of the twentieth century, an interesting argument arose against plea bargaining,

which pinned the blame on police officers, claiming that police officers convinced people to plead

guilty so that they could earn more money by driving them to prison25. These corruption charges

were not unique to police officers in the history of plea bargaining. Alschuler conducted

interviews about plea bargaining, where he found that during Prohibition, plea agreements were

arranged by bribing officers and judges and other officials in courts26. Thus, due to this

corruption, a cycle was created where plea bargaining rose, giving rise to more corruption and in

turn more plea bargaining, regardless of appellate courts’ opinions on plea bargaining.

In more recent years, the rise of caseloads has led to a rise in plea bargaining to reduce the

amount of work that the courts system would have to do; caseloads increased at a rate far greater

than judicial resources did, leading to a massive need for efficiency and caseload reduction27. As

these needs grew, the Supreme Court finally, building upon its growth of the guilty plea due to

the case cited in section 1.1, concluded, referring to plea bargaining,

“The issue we deal with is inherent in the criminal law and its administration, because guilty

pleas are not constitutionally forbidden, because the criminal law characteristically extends


25
Alschuler op. cit.
26
ibid.
27
ibid.

Champion Briefs 40
Topic Analysis by Shankar Krishnan Jan/Feb 2018

to judge or jury a range of choice in setting the sentence in individual cases, and because both

the State and the defendant often find it advantageous to preclude the possibility of the

maximum penalty authorized by law,”28

ultimately ending the constitutional debate over plea bargaining, for the time.

2. Affirmative

In this section I shall outline two different affirmative ideas. The point of these strategies is to (a)

deal with negative positions and (b) offer interesting insights into the topic, giving way for more

areas of inquiry.

2.1 Communications AC

The first idea I would recommend for the topic would be a communications affirmative, which

follows the following model:

Premise 1: Plea bargaining reduces the amount of cases that go to trial

Premise 2: Court cases give defendants and prosecutors a platform to express their ideas

Premise 3: This platform is especially potent as it allows for media coverage and widespread

attention


28
Brady v. United States, 397 U.S. 742, 751 (1970).

Champion Briefs 41
Topic Analysis by Shankar Krishnan Jan/Feb 2018

Premise 4: Court case communication is a unique form of communication as it is an expression

of agency that can reach widespread audiences, giving other people individual insight

Premise 5: Removing plea bargaining offers the potential for different types of cases to go to trial,

decreasing the stifling of communication.

The framework that would be used for this affirmative case would be one that privileges the fact

that communication should not be stifled. This framework is a little confusing so I will walk

through it a little bit here.

The framework starts from the premise that individuals can change ideologies because

individuals develop their concepts of moral obligations based on the subjective standpoint that

they come from. Therefore, individuals can change ethical systems, thus changing the nature of

their moral obligations. For example, I can change from a utilitarian to a deontologist, which

fundamentally changes how I perceive morality, ethical obligations, and even the term “ought.”

As such, any moral system that attempts to determine moral obligations must begin from this

initial premise. As such, this framework sort of flips the traditional notion of a framework, as

instead of it evaluating different impacts as good or bad, it makes the claim that we should

prioritize that which allows us to evaluate good or bad in the first place. As such, the framework

makes the claim that the standard, which in this case would be something along the lines of

“reducing threats to communication,” would imply the resolution because the process of the

affirmative would be necessary to determining right or wrong. In other words, removing plea

bargaining is necessary to create moral systems which can figure out right or wrong.

Champion Briefs 42
Topic Analysis by Shankar Krishnan Jan/Feb 2018

One thing to understand here is that the affirmative no longer follows traditional notions of truth-

testing, or proving that the resolution is “true.” The affirmative would contend that things cannot

be proven “true” or “false,” or “more true than false” because that’s based on moral systems

that define the paradigms for truth or falsity. Rather the affirmative would contend that the

resolution would be a constitutive necessity of morality, in a system where we cared about what

is “good” or “bad” or “right” or “wrong.” As such, this framework is strategic in that it would

preclude truth-testing paradigms by proving that in order to prove “truth” or “falsity,” the

affirmative paradigm must first be evaluated. The only way to disprove the framework then,

would be to claim that we don’t care about what is “good” or “bad,” which, in the absence of a

very competent critical debater, would be a very difficult argument to persuade judges to accept.

Good authors to pursue for the framework would be Nietzsche or Habermas, depending on how

radical debaters want to go in pursuing the central thesis of the affirmative. Another way to adapt

the framework and add a role of the ballot would be to add a Foucauldian argument that deals

with the constitutive obligation of individuals in the pursuit of “ways to determine truth” rather

than the pursuance of some objective truth.

The good thing about this affirmative position is that it gets rid of most negative positions or

negative advantages to counterplans, by dealing with the issue of “court clog” as its initial

premise. “Court clog” is a common debate argument on most resolutions dealing with the

criminal justice system; in this case, it would claim that removing plea bargaining would increase

Champion Briefs 43
Topic Analysis by Shankar Krishnan Jan/Feb 2018

the caseload on courts which would lead to the courts being clogged and at the very least no

“justice” doled out and at the very worst a litany of impacts terminating in extinction. The

framework would set out that the problem arises when objectivity is imposed, as in when

communication is actively stifled, rather than the actual ability of individuals to communicate.

The framework is based on reducing institutional constraints on our ability to determine truth,

rather than increasing our ability to determine truth. The mere possibility of individuals being

able to express their ideas rather than being coerced by objectivity increases the amount of

perspectives that enter the realm of discussion. Even the process of going through trial and cases

being clogged up would raise publicity about the issue, such that individuals can gain a platform.

As such, the possibility of communication philosophically satisfies the framework, while the

media attention due to courts clogging would be decreasing the stifling of the amount of

perspectives in the system. In dealing with court clog, the second affirmative idea offers a more

radical, but more potent way of answering court clog.

2.2 Power AC

This affirmative idea is for those who want a more radical option than that discussed in 2.1, and

feel comfortable handling potentially controversial topics in the debate. It follows the following

model.

Premise 1: Plea bargaining is a way to stop cases from going to trial

Champion Briefs 44
Topic Analysis by Shankar Krishnan Jan/Feb 2018

Premise 2: Usually, the people who carry out plea bargaining are people in positions of power

such as lawyers or judges

Premise 3: The usual motive for plea bargaining is to avoid the costs imposed by the system

Premise 4: These costs reify the power of the system

Premise 5: Plea bargaining gives more power to the institution of criminal justice than the

ordinary citizenry

The idea behind this affirmative is essentially that plea bargaining is a way to reify the disciplinary

power of the state, by making sure that it can continue to push people into self-incrimination,

giving the state increased control over people’s lives.

The framework for this affirmative position would be something that deals with the increased

power of the state as a disciplinary structure, which means the state exists to regulate the

citizenry as if they were objects. Further, debaters could expand this to refer to disciplinary power

structures in general, which would include power structures created by monetary incentives and

“elites.” In general, debaters could refer to Foucauldian representations of the state as a

surveillance state, and the general power of the state and individuals’ ability to effect change

upon their state of affairs. As such, the framework would argue that decreasing the power of the

state and increasing people’s ability to determine their own ends would be a good thing under

the framework.

The contention level could especially deal with the fact that the state functions to discipline the

citizenry; by offering plea deals, the state makes the citizenry feel as if they are getting off with a

Champion Briefs 45
Topic Analysis by Shankar Krishnan Jan/Feb 2018

better situation while the people are relieved of their platform for saying anything that could

threaten the power of the state. Here, debaters could incorporate ideas from 2.1 with how the

communications aspect of a trial offers individuals a public platform. The state is afraid of this

public platform as it undermines its tight control of the people. At the very least, plea bargaining

lets the state and other people in power control the administration of justice by offering deals

and scaring individuals into accepting them. In this affirmative, we refer to the state as anyone

who is part of any criminal justice system, including police officers, the government itself,

lawyers, judges, “elites” so on and so forth.

The thesis of the affirmative is simple to prove, but the real strategic notion of this affirmative

comes from how it can be adapted to different situations.

In terms of a critical debate, this affirmative can be deployed effectively to deal with things such

as critiques of the legal system. The affirmative does not seek to endorse the legal system, nor

does it say that this system will provide “justice.” Rather, the affirmative provides a metric for

defeating the legal system, by claiming that the legal system is so wrapped up with power

structures that plea bargaining only increases this interlocked system of power. Thus, any revolt

or breakdown of the legal system first begins with the affirmative, as plea bargaining makes sure

that the ultimate control over sentencing and guilt determination lies with the coercive power of

the state rather than the jury which is a representation of the citizenry. No matter how radical

the alternative goes, it must first begin with some practical step, and affirmatives could argue

that the affirmative is the first radical step, effectively sequencing the entirety of the negative.

Champion Briefs 46
Topic Analysis by Shankar Krishnan Jan/Feb 2018

The best part of this affirmative comes with how it deals with court clog. First, it would claim that

the possibility of a case reaching trial rather than going through a plea bargain decreases the

power of “elites” in the system, as the possibility is a threat to governance. This puts severe

mitigatory defense on court clog, as even if cases don’t go to trial, it doesn’t really matter under

the framework as the possibility of a threat to power structures offers a net advantage over the

status quo. More importantly, debaters could argue that court clog is good, as it would prove

that a system which attempts to administer justice doesn't work. As such, the system would grind

to a halt, which would prove the infeasibility of a courts system that is ruled by power structures.

This would necessitate a form of reform by the state which would inevitably decrease its own

power, or it would necessitate some form of resistance or revolt by the public, as the entire

justice system would not work. This puts the negative in a double bind. Either the impacts are

not as bad as they claim, which would mean that it does not outweigh the affirmative impact of

decreasing the power of the state, or the impacts are as bad as they claim, which means that it

is still good under the affirmative framework as collapsing the system is still net beneficial to the

status quo.

2.3.3 Genealogy Add On

Another thing debaters could do would be to add why a genealogical examination of history is

essential in the context of the U.S. justice system. This could be justified by Foucault again, and

his examination of genealogy in Discipline and Punish. Debaters could then add on the interesting

Champion Briefs 47
Topic Analysis by Shankar Krishnan Jan/Feb 2018

fact about police officers as well as the corruption of the criminal justice system of the past

exposed in section 1.2 and 1.3 and reveal that these things that we didn’t know were happening

back then could still be happening right now, but be rendered invisible to the public eye. In other

words, we should learn from these genealogical examinations, and understand that there may

be new types of corruption regarding police officers and lawyers that we don’t even know of, and

we must hedge against that possibility.

3. Negative

3.1 Legal System Critique

This critique has a lot of versatility, and affords a good way to beat back most affirmative

positions that deal with the resolution. This critique would argue that the legal system itself is

flawed, and engaging with it more than one should would destroy the system.

This critique ultimately states that the system has too much power, and only by disengaging with

the system could individuals afford any hope or possibility of undermining the power of the state.

In other words, the critique would argue that the power of the state is inevitable if we as

individuals continue to engage with it and thus legitimize it.

As such, plea bargaining is necessary to make sure that disputes can be resolved outside of the

zone of the legal system, and as such undermine the legal system. The alternative can also be

more radical, and claim that we need to disengage with the system, and plea bargaining can be

one part of this.

Champion Briefs 48
Topic Analysis by Shankar Krishnan Jan/Feb 2018

Another way to go about this critique is to claim that if individuals avoid plea bargaining, they

ache to go through more payments and manipulation of the state’s legal system. This in the end

would destroy the person’s agency and would make them puppets of the government to be

pulled and dragged around until the system spits them back out.

The impacts of this could be “bare life,” a term from Agamben which claims that people are

rendered as mere objects, which is what the legal system tends to do to people.

Another way individuals could adapt this critique is to make it deal with the racism inherent in

the legal system, and as such detail that engagement with the legal system forces individuals,

especially minorities, into harsher sentences; data from plea bargaining can be involved to detail

how the system wants to convict minorities and shut them away in jail for as long as possible

because they are a “threat” to the functioning of a majority white system.

This would be very strategic, as the initial premise of most affirmatives deals with the fact that

taking away plea bargaining would make engaging in the legal system better; this negative case

sequences that whole issue by claiming that engaging with the system at all is problematic.

3.2 Agency NC

Another way to approach the negative would be with the concept of agency. This negative case

could be leveraged against bio power affirmatives, and claim that the power of the state

decreases if individuals take plea bargains.

This negative position would claim that individuals must be afforded the agency to make

decisions outside of court. The argument could be made that individuals can choose not to take

Champion Briefs 49
Topic Analysis by Shankar Krishnan Jan/Feb 2018

plea bargains, which means that the decisions in the status quo ultimately lie with the individual.

Otherwise, by going through a trial, or by essentially forcing individuals to go through trial, the

affirmative forces people into years of litigation and complication, making them essentially spend

a lot of money time and resources when they did not have to in the first place.

In this way, this negative case would say that the status quo places the fate of people in their

own hands, whereas the affirmative puts people’s fate in the hands of the state. As such, this

could effectively combat biopolitics affirmatives, which would make it very strategic on this topic.

Further, this framework would also be means based, which means that it would be useful to

leverage against even ends based critical frameworks. It would also offer a lot of grounds for

preclusion, as there are many arguments as to why agency, or the ability to make choices,

precludes individuals own determinations of moral obligations. All in all, this is a solid negative

strategy to deal with both critical and philosophical affirmatives.

3.3 Traditional NC

A traditional negative case on this topic would deal with the issue of pragmatics, and claim that

the legal system has the obligation to operate pragmatically.

Pragmatics usually functions as a side constraint, which means that the entire framework would

be a side constraint on the affirmative. Regardless of what the affirmative is based on, then, this

framework would be a litmus test the affirmative would have to pass through to function. For

example, utilitarian frameworks must pass through a test of pragmatism, such that any obligation

must be pragmatic for agents to have an obligation to carry it out under utilitarianism.

Champion Briefs 50
Topic Analysis by Shankar Krishnan Jan/Feb 2018

As such, arguments here could be made as to why plea bargaining is the most effective way to

carry out the criminal justice system, as it reduces the amount of cases and makes sure that the

legal system is able to deal with the caseload (this is what I referred to above as the “court clog”

argument). This is a good sell to most parent judges, as it is practical, and most arguments against

it are too radical to be explained persuasively to traditional judges. Backing up this argument with

solid research and studies would give negatives a lot of leverage.

Further, negatives could add a short argument about how the Supreme Court has ruled that it is

inherent to the functioning of the justice system, as cited above, to prove that pragmatically as

the state must abide by the constitution and the Supreme Court’s interpretation of it, it makes

the most sense under the framework to keep plea bargaining.

4. Conclusion

These are all strategies I would utilize if I were debating this topic, and believe that they are

adaptable, robust, and durable, which make them applicable to many rounds and allow them to

have the same thesis but evolve throughout the topic. I wish you all the best for the topic and

hope these strategies can serve you well or can serve as a springboard for your own ideas.

Good Luck!

Champion Briefs 51
Topic Analysis by Lindsey McNamara Jan/Feb 2018

Topic Analysis by Lindsey McNamara

Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.

Background and Definitions

Every year, there is an LD topic that is devoted to prominent issues in the legal system.

Many of these legal topics address the constitutional implications of changing a legal policy in the

United States. This topic addresses whether the policy of plea bargaining that occurs in the status

quo should be eliminated in the criminal justice system. The resolution is worded vaguely and

leaves the debater guessing who the actor is and whether the resolution applies to all criminal

courts in the U.S. or just federal ones. There is a lot of ground and controversy on this topic for

both sides. It will be interesting to see the various interpretations and topicality (T) arguments

that are made to address these ambiguities. Also, there are many opportunities for plan inclusive

counterplans (PICs) on the negative to address that plea bargaining should be abolished in certain

instances, but not all instances.

There has been a great deal of uproar in the media these past few months regarding

various politicians and their lax plea deals. The plea bargain struck in the case of Trump’s former

national security advisor, Michael Flynn is a prime example of a case wherein a politician will

exchange information and assistance for a lesser punishment. Flynn will cooperate with covert

law enforcement operations by wearing a wire or sharing information about the Trump campaign

and administration, in exchange for a more lenient sentence. Michael Flynn pleaded guilty to

Champion Briefs 52
Topic Analysis by Lindsey McNamara Jan/Feb 2018

lying to the FBI about whether he had conversations with Russia’s ambassador. (CNN Flynn

pleads guilty to lying to FBI, is cooperating with Mueller December 1, 2017)

The Trump Administration has been at the forefront of these scandalous criminal cases

wherein prominent political figures have pleaded guilty to crimes to lessen their charges, and

therefore their punishments. George Papadopoulos, another former advisor to Donald Trump

also pleaded guilty to making false statements to federal agents about contacts with Russian

nationals. He entered into a plea agreement and is currently cooperating with the U.S.

government to assist in the ongoing investigation about Russian attempts to interfere with the

2016 election. (Ex-Trump advisor George Papadopoulos pleaded guilty to lying to FBI agents,

authorities reveal- CNBC October 30, 2017)

Alabama Governor Robert Bentley was nearly impeached, but resigned on his own after

he pleaded guilty to campaign finance violations. Bentley’s legal team met with the Special

Prosecutors “to get Bentley a good deal in exchange for his resignation…In the end, Bentley

agreed to plead guilty to two class B misdemeanor charges- far less that the four class B felonies

referred to the Attorney General’s Office by the Alabama Ethics Commission, for which Bentley

could have been potentially prosecuted. And the sentence was far more lenient, too. Instead of

2-20 years for each count, Bentley will serve no jail time.” (Alabama Political Reporter December

9, 2017 Here’s a closer look at Robert Bentley’s plea agreement, sentence)

In the wake of these events, the public has become outraged with the judicial system and

the lack of accountability of politicians who should be serving jail time for their crimes; yet, these

politicians merely walk away from these crimes with a slap on the wrist and an agreement to

cooperate with ongoing investigations. If these politicians blatantly lied to the FBI, their

Champion Briefs 53
Topic Analysis by Lindsey McNamara Jan/Feb 2018

constituents and ethics commissions, what makes prosecutors and judges think that they will be

honest now? There is no check on this governmental abuse and there is no legitimacy in

government when these officials commit crimes and walk free.

Plea bargaining corruption also occurs at a local level and happened with city officials in

the Flint, Michigan water crisis. The city’s former utilities administrator Daugherty Johnson

pleaded no contest along with two others in the water crisis to a misdemeanor charge rather

than facing two felony charges for false pretenses and conspiracy to commit false pretenses. He

pleaded no contest to failing to furnish documents to the health department who was

investigating the possibility of a connection between Legionnaires’ disease outbreaks and the

Flint water. (read the article… two others pleaded out too- Mlive by Ron Fonger Former city

official takes plea, third to take deal in Flint water crisis.)

Political plea bargaining is not the only type of negotiation of criminal cases that occurs.

At a local level, criminals who commit sex crimes, DUIs, manslaughter and a plethora of other

illegal acts are offered deals to make their cases go away. The courts are overburdened and

understaffed with prosecutors and judges to handle the numerous cases before them. Also, due

process and speedy trial requirements cause inordinate burdens on the judicial system to handle

cases quickly and efficiently. Moreover, there are cases that prosecutors do not want to try

because they are concerned about the lack of evidence in the case, who defense counsel is or

whether it will result in embarrassment for them or their department if the defendant is

acquitted. Such intangible constraints on prosecutors lead to back room deals which allow

everyone to save face and can possibly enable the prosecution to secure some punishment for a

defendant in a case that could possibly be dismissed at trial or the defendant would go free.

Champion Briefs 54
Topic Analysis by Lindsey McNamara Jan/Feb 2018

Sometimes some punishment of the accused is better than the risk of a guilty defendant walking

free- perhaps?

Since there is so much terminology that is required for understanding this topic and

ensuring accuracy of usage of legal terms, it is important to define some of the common legalese

that is used in the evidence herein. Also, there are many law students and attorneys who judge

LD and cringe at the inaccuracies that students have in their cases, because of not understanding

these terms. This nomenclature is important because these topics repeat themselves, the

concepts are re-used in cases and most importantly, it affects us in the real world.

Here are some terms you should familiarize yourself along with finding definitions that work for

you:

• Miranda Rights

• Speedy Trial

• Due Process

• Pleading the 5th

• Differences between felony and misdemeanor

• Acquitted

***Along with all the important words/phrases that show up in the resolution that should be

defined.

Champion Briefs 55
Topic Analysis by Lindsey McNamara Jan/Feb 2018

Debaters will usually define ought as a moral obligation or what should occur; however, since

the topic is a legal topic where the actor isn’t exactly one person, the definition of ought might

depend on the framework you decide to run. Others might argue it as a legal obligation.

(Merriam Webster)

It is also important to define and set parameters for what the Criminal Justice System is. Since

there are many levels of our justice system, it might be strategic to specify a particular level

(local, state, federal).

Abolished will also be a term that needs to be defined. Does it mean it is now illegal to plea

bargain? Or is it merely discouraged in the system? Are we abolishing it for anyone? These are

all things that should be specified in your advocacy.

Finally, plea bargaining will need to be defined. For most of the definitions and terms above, I

recommend using Black’s Law Dictionary but for plea bargaining, I recommend using the

American Bar Association’s description.

Many criminal cases are resolved out of court by having both sides come to an

agreement. This process is known as negotiating a plea or plea bargaining. In

most jurisdictions it resolves most of the criminal cases filed.

Plea bargaining is prevalent for practical reasons.

Defendants can avoid the time and cost of defending themselves at trial, the risk

of harsher punishment, and the publicity a trial could involve.

The prosecution saves the time and expense of a lengthy trial.

Champion Briefs 56
Topic Analysis by Lindsey McNamara Jan/Feb 2018

Both sides are spared the uncertainty of going to trial.

The court system is saved the burden of conducting a trial on every crime

charged. Either side may begin negotiations over a proposed plea bargain,

though obviously both sides have to agree before one comes to pass. Plea

bargaining usually involves the defendant's pleading guilty to a lesser charge, or

to only one of several charges. It also may involve a guilty plea as charged, with

the prosecution recommending leniency in sentencing. The judge, however, is

not bound to follow the prosecution’s recommendation. Many plea bargains are

subject to the approval of the court, but some may not be (e.g., prosecutors may

be able to drop charges without court approval in exchange for a "guilty" plea

to a lesser offense).

Plea bargaining is essentially a private process, but this is changing now that

victims’ rights groups are becoming recognized. Under many victim rights

statutes, victims have the right to have input into the plea-bargaining process.

Usually the details of a plea bargain aren’t known publicly until announced in

court.

Other alternatives are also possible in the criminal justice system. Many states

encourage diversion programs that remove less serious criminal matters from

the full, formal procedures of the justice system. Typically, the defendant will be

allowed to consent to probation without having to go through a trial. If he or she

successfully completes the probation - e.g., undergoes rehabilitation or makes

Champion Briefs 57
Topic Analysis by Lindsey McNamara Jan/Feb 2018

restitution for the crime - the matter will be expunged (removed) from the

records.

(How Courts Work | Public Education. (2017). Americanbar.org. Retrieved 10

December 2017, from

https://www.americanbar.org/groups/public_education/resources/law_relate

d_education_network/how_courts_work/pleabargaining.html)

Aff Arguments

The great thing about legal topics is many case positions can be argued in more progressive

styles and in more traditional styles and still be running the same argument. The first type of

affirmative that could be strategic is an accountability aff. Currently in the status quo, allowing

plea bargaining is not holding those who commit heinous crimes accountable. Victims and

families of victims are not receiving justice because of plea bargaining. Murderers, sex

offenders and other criminals are given lesser sentences and not prosecuted to avoid lengthy

trials, court clog and possible deals with defense lawyers who are friends with the prosecutors.

There are a lot of political reasons that make the judicial system corrupt which could be a facet

of the affirmative that you decide to run.

Currently, many politicians are committing crimes and getting away with it because they

plead out to a lesser offense. An advisor to Trump’s campaign pleaded guilty to lying to FBI

agents about meeting with Russian officials, but received a plea deal instead of going to trial.

Champion Briefs 58
Topic Analysis by Lindsey McNamara Jan/Feb 2018

An advisor to President Donald Trump's campaign pleaded guilty on Oct. 5

to lying to FBI agents about when he met with Russian nationals to get

"dirt" on Hillary Clinton, according to court filings released Monday.

The documents revealed that George Papadopoulos was arrested on July

27 upon arrival at Dulles International Airport from an undisclosed

location.

According to the documents, shortly after Papadopoulos learned he would

become a foreign policy advisor to the Trump campaign, he met in March

2016 with a Russian professor who claimed to have "dirt" on Clinton.

Investigators say Papadopoulos had told them he met with the professor

before he learned of his role in the campaign.

Ten days later, Papadopoulos met with a female Russian national who was

introduced to him as a niece of Russian President Vladimir Putin with ties

to senior Kremlin officials, investigators said.

Papadopoulos later learned, however, that the woman was in fact not

related to Putin.

He told investigators that his correspondence with the woman was

superficial when in fact the purpose of the contacts was to set up a

meeting between Russian leaders and the Trump campaign, the court

filings said.

Champion Briefs 59
Topic Analysis by Lindsey McNamara Jan/Feb 2018

The filings say Papadopoulos is cooperating with the U.S. government in

its ongoing investigation of Russian attempts to interfere in the 2016

election.

In a Monday afternoon press briefing, White House press secretary Sarah

Huckabee Sanders said Papadopoulos had an "extremely limited" role in

the 2016 campaign. She said he was in a "volunteer position" and had not

done work in an "official capacity on behalf of the campaign."

But investigators said a campaign supervisor had urged Papadopoulos to

try to visit Russia for an off-the record meeting with officials.

Papadopoulos' attorneys declined to comment on the case.

"We will have the opportunity to comment on George's involvement when

called upon by the Court at a later date," his legal representatives said.

"We look forward to telling all of the details of George's story at that time."

News of Papadopoulos' plea deal came on the heels of a

separate indictment unsealed Monday of former campaign chairman Paul

Manafort and his longtime business partner Rick Gates.

Earlier Monday, surrendered after being charged on 12 counts related to

concealing foreign payments, including one count of "conspiracy against

the United States."

The Papadopoulos filings highlight interactions with campaign advisors,

but does not name them only describing them with titles like "high-ranking

Champion Briefs 60
Topic Analysis by Lindsey McNamara Jan/Feb 2018

campaign official" and "campaign supervisor." One of these officials is

Manafort, two people familiar with the Papadopoulos charges told NBC

News.

The two men had been the first people charged in the Russia investigation

led by former FBI Director Robert Mueller.

Trump responded to the news on Twitter, saying that the alleged crimes

occurred well before Manafort joined the Trump campaign in 2016.

(Wang, C., & Wilkie, C. (2017). Ex-Trump advisor George Papadopoulos

pleaded guilty to lying to FBI agents, authorities reveal. CNBC. Retrieved

10 December 2017, from https://www.cnbc.com/2017/10/30/ex-trump-

adviser-papadopolous-pleaded-guilty-to-lying-to-fbi-agents.html)

Furthermore, consequentialist arguments will be very prevalent on this topic on both

sides. Although this is more of a stock issue, it is inescapable in this debate. Other persuasive

frameworks could be constitutionality and due process. Citizens are being coerced to waive

their right to a trial. This makes the court less legitimate and restricts justice.

More kritikal frameworks on the topic could be a race aff. Currently the system is

discriminatory to minorities and does not hold their best interests in mind, plea bargaining

would only exacerbate these social issues. The same logic can be applied with virtually any

Champion Briefs 61
Topic Analysis by Lindsey McNamara Jan/Feb 2018

social issue that would potentially affect someone’s perception of another, i.e., gender identity,

sexual preference, ability, etc.

Neg Arguments

The disad ground is going to be important on this topic. It is time for everyone to pull

out their court clog and federalism back files because this is the perfect time to run them. Court

clog means that when we abolish plea bargaining, that means that virtually everyone will have

to go to trial instead completely slowing down or “clogging” the process of the court. The

federalism disad follows along the lines of abolishing plea bargaining undermines federalism

(reasons will differ in each disad), and undermining federalism leads to x,y,z bad impacts.

The politics disad could also be very persuasive on this topic, especially considering

politicians and advisors from the Trump campaign were charged with colluding with Russia (and

some plead guilty). Abolishing plea bargaining might lead to backlash from the republican party

creating all kinds of link chain scenarios.

This topic also lends itself to interesting counterplan ideas. There is the potential for a

sentencing reform counterplan where we make new rules and guidelines for sentencing as

opposed to letting both sides argue over the sentencing using coercion from all angles. Another

potential counterplan could be a diversion program counterplan.

Other alternatives are also possible in the criminal justice system. Many

states encourage diversion programs that remove less serious criminal

matters from the full, formal procedures of the justice system. Typically,

Champion Briefs 62
Topic Analysis by Lindsey McNamara Jan/Feb 2018

the defendant will be allowed to consent to probation without having to

go through a trial. If he or she successfully completes the probation - e.g.,

undergoes rehabilitation or makes restitution for the crime - the matter

will be expunged(removed) from the records.

(How Courts Work | Public Education.(2017).Americanbar.org.

Retrieved10December2017,from

https://www.americanbar.org/groups/public_education/resources/law_r

elated_education_network/how_courts_work/pleabargaining.html)

This type of counterplan lends itself to a completely new side of the debate. Make sure when

running these kinds of counterplans, you also pair it with a disad to establish a net benefit!

Final Thoughts

All in all, even though there are a lot of new concepts to learn for legal topics, each side

allows for so many different types of arguments to be run and different interpretations of laws

to be expressed. These issues of plea bargaining we see in the news every day whether it be a

politician or the everyday person you see on the street. Either way, this topic can be taken in

many different directions and I hope you all use that to your advantage! Good luck!

Champion Briefs 63
AFF: Constitutionality AC Jan/Feb 2018

AFF: Constitutionality AC

The constitutionality AC may be a tricky one on this topic. There have been several
supreme court cases that have ruled in favor of plea bargaining (including in recent years). The
best approach for this AC would be to argue that plea bargaining OUGHT to be unconstitutional
(rather than it already is). Most arguments against plea bargaining on the ground of legality rely
on the 6th or 8th amendment. Plea bargaining potentially violates both of these amendments. It
violates the 8th by imposing fines/punishing when it may not be due. Plea bargaining also may
violate the 6th amendment by denying the defendant a trial. Cards in here rely on both of these
justifications as well as descent from the supreme court cases that have happened.
Additionally, there are plenty of justifications for why plea bargaining may be unconstitutional
on the basis of fairness in that it unfairly targets minority communities and is not a presumed
innocence.
Arguing against the constitutionality AC is easy as there is a plethora of supreme court
cases that have upheld plea bargaining. Additionally, negatives should remember that just
because something should be illegal or is illegal does not mean it is unconstitutional. Nuances
like this can delink the affirmative offense from their framework.

Champion Briefs 65
AFF: Constitutionality AC Jan/Feb 2018

Determining the threshold of coercion for plea bargaining is difficult.

Stanek, Charis. “Supreme Court Must Strike Down Plea Bargaining.” Mic. August 03, 2012. Web.
December 05, 2017. <https://mic.com/articles/11949/supreme-court-must-strike-
down-plea-bargaining#.rrpkkhDyI>.

In a recent Supreme Court decision, Lafler v. Cooper, Justice Antonin Scalia in his dissent
describes plea bargaining thus: “In the United States, we have plea bargaining a-plenty, but
until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial
overcharging that effectively compels an innocent defendant to avoid massive risk by pleading
guilty to a lesser offense; and for guilty defendants it often -- perhaps usually-- results in a
sentence well below what the law prescribes for the actual crime. But even so, we accept plea
bargaining because many believe that without it our long and expensive process of criminal trial
could not sustain the burden imposed on it, and our system of criminal justice would grind to a
halt.” Plea bargaining can be thought of as a practical way to conserve court resources, and
may be a necessary evil when guilty defendants get lighter sentences as a result of their
bargains. However, a plea bargain is unconstitutional when an innocent person is coerced into
it. How do we determine how many defendants who have entered pleas were actually guilty?
How do we find out how many innocent defendants have entered a plea in order to avoid a
significantly harsher sentence?

Champion Briefs 66
AFF: Constitutionality AC Jan/Feb 2018

A study simulating the effects of plea bargaining shows that people


are liable to plead guilty even when innocent.

Stanek, Charis. “Supreme Court Must Strike Down Plea Bargaining.” Mic. August 03, 2012. Web.
December 05, 2017. <https://mic.com/articles/11949/supreme-court-must-strike-
down-plea-bargaining#.rrpkkhDyI>.

The aforementioned study: attempted to answer the question of how many innocent people
would admit guilt and accept lesser consequences rather than face a trial and the risks of more
severe penalties. In the study, college students were asked to participate in what they thought
was a “psychological inquiry into individual versus group problem solving performance.” During
the study, the participants were asked to complete the first portion of a test as a group; in the
second portion, they were to answer the questions individually. To set up the guilt/innocence
scenario, during the second portion of the test, a research assistant posing as a study
participant, and an actual study participant would be placed in a room together to take the
portion of the test to be completed individually. During the test, for half of the study
participants, the research assistant would ask the study participant what answers he/she got, or
ask for help in answering the questions. All but two of the study participants who were asked
for help by the research assistant answered the questions and helped the research
assistant. The other half of the study participants were not asked questions by the research
assistant, completed the test individually and thus, did not “cheat”. After a short time to
review the test answers, the distributor of the test came back and informed the students that
they had been accused of cheating based on the oddly similar answers that they
submitted. The research assistant offered each study participant a deal where they would
admit that they cheated and agree to give up the compensation promised to them for their
participation in the study. If they did not take the “deal,” the matter would be presented to the
Academic Review Board (“ARB”), (which was described as a sort of trial ) and if they were found
guilty, their cheating would be reported to their academic advisor, they would lose their
compensation for the study, and they have to take a mandatory ethics class. They were told

Champion Briefs 67
AFF: Constitutionality AC Jan/Feb 2018

that 80-90% of the time, the ARB found that the student was “guilty.” The study found that the
great majority, 88%, of the guilty participants, that is, the participants who had helped the
research assistant with his test, agreed to the deal. What was startling was that 56.4% of the
students wrongfully accused of cheating chose to plead guilty. Although many would argue that
plea bargains are necessary to maintain efficiency and cost effectiveness in the justice system,
the justice system is founded on the principles of equality and fairness. When the innocent
confess to crimes that they have not committed and the guilty receive less severe punishments,
justice is not administered fairly, and the extensive use of plea bargains need to be
reconsidered.

Champion Briefs 68
AFF: Constitutionality AC Jan/Feb 2018

The sixth amendment states the necessity of a jury trial in all cases.

Langbein, John. “On The Myth If Written Constitutions: The Disappearance Of Criminal Jury
Trial.” Harvard Journal of Law and Public Policy. 1992. Web. December 05, 2017.
<https://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html>.

The Sixth Amendment says: “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed....”1 ”All” is not a word that constitution-makers use lightly. The drafters
of the Sixth Amendment used it and meant it. Indeed, the Framers of the Constitution had
already used the same word for the same end when speaking to the same subject two years
earlier. Article III of the Constitution insists: “The Trial of all Crimes, except in Cases of
Impeachment, shall be by jury….”2 Two hundred years later, this Constitution and its Bill of
Rights continue to govern our criminal justice system. Indeed, because the Sixth Amendment
has been treated as incorporated by the Fourteenth Amendment, the federal jury guarantee
now governs not only in the federal courts that the Framers had in mind, but also in the state
systems where we process the bulk of our criminal caseloads.3 Although the texts mandate jury
trial for “all” criminal cases, the reality is far different. In place of “all,” a more accurate term to
describe the use of jury trial in the discharge of our criminal caseload would be “virtually none.”
Like those magnificent guarantees of human rights that grace the pretended constitutions of
totalitarian states, our guarantee of routine criminal jury trial is a fraud. This article discusses
the astonishing discrepancy between what the constitutional texts promise and what the
criminal justice system delivers.

*Ellipsis from source

Champion Briefs 69
AFF: Constitutionality AC Jan/Feb 2018

The coercion of plea bargaining is an affront to the constitution.

Langbein, John. “On The Myth If Written Constitutions: The Disappearance Of Criminal Jury
Trial.” Harvard Journal of Law and Public Policy. 1992. Web. December 05, 2017.
<https://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html>.

Plea bargaining is also wrong because it is coercive. A legal system that comes to depend upon
coercing people to waive their supposed rights is by definition a failed system. The system can
no longer function by adhering to its own stated principles. Plea bargaining puts the accused
under ferocious pressure to bear false witness against himself.13 As the disparity grows
between the sentence offered for confession and the sentence threatened for conviction upon
trial, the inducement to confess becomes ever more intense. I do not think that large numbers
of innocent people are confessing themselves guilty to crimes committed by strangers. At the
margin, however, such cases do indeed arise.14 The want of trial is also costly in another way.
There is an important civic interest in having public inquiry and adjudication take place in cases
of serious crime -- a positive externality, the economists would say. Plea bargaining prevents
the citizenry from learning about the circumstances of the crime and punishment. There is, for
example, a lingering distaste among substantial sections of the American people about the way
that James Earl Ray was sent off to prison in Tennessee. Without trial, we do not feel
adequately informed about whether our institutions have responded fully and fairly to events.
In the end, however, the worst aspect of plea bargaining is simply the dishonesty. Charge
bargaining has made our criminal statistics into hash. The person who committed murder is
pretended to have committed manslaughter; the person whose real crime was child molesting
is convicted of loitering around a schoolyard.15 Not only has this willful mislabelling turned our
criminal statistics into a pack of lies, it has also forced us into the widespread practice of
preferring arrest records over conviction records for a host of purposes. Continental observers
find our reliance upon bare arrest records in matters of sentencing and employment to be
incredible.16 And looming over the whole of the saga of plea bargaining is the lie that has to be
lived to escape the Constitution and the Bill of Rights -- the lie that persons accused of serious
crime really do not want a jury trial.

Champion Briefs 70
AFF: Constitutionality AC Jan/Feb 2018

Courts have recognized that plea bargaining at least impairs rights.

, Anonymous. “ALTERNATIVES TO PLEA BARGAINING.” University of Pennsylvania Law Review.


1984. Web. December 05, 2017.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627&context=penn_la
w_review>.

On the first level of the three part test, the Court seems to have recognized that defendants’
constitutional rights are impaired by the plea bargaining process. In United States v. Jackson,
the Court prohibited the needless chilling of the exercise of constitutional rights,10 3 implicitly
suggesting that the exercise of constitutional rights could be impaired for a proper purpose.
Likewise, in Corbitt, the Court said that “not every burden on the exercise of a constitutional
right… is invalid, ‘ “ implicitly indicating that the plea in that case was valid despite the
impingement upon constitutional rights. Not everything the Court has said supports the view
that plea bargaining is an impingement upon constitutional rights. In Brady and Bordenkircher,
the Court claimed that a plea bargaining system was advantageous to defendants.”” The Court
has also asserted that defendants are “presumptively capable of intelligent choice” and are
“unlikely to be driven to false self-condemnation.” ‘

*Ellipsis from source

Champion Briefs 71
AFF: Constitutionality AC Jan/Feb 2018

Despite rights infringements courts are yet to find plea bargaining


unconstitutional.

, Anonymous. “ALTERNATIVES TO PLEA BARGAINING.” University of Pennsylvania Law Review.


1984. Web. December 05, 2017.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627&context=penn_la
w_review>.

Given the unconstitutional conditions cases, one might well have expected the Court to find
plea bargaining unconstitutional. In the last analysis, plea bargaining is no more than the
offering of incentives to waive trial rights guaranteed by the Constitution.” The Court appeared
to accept this evaluation when it invalidated a statutory form of plea bargaining in United
States v. Jackson.6 5 The Court held that a statute providing that the death penalty could be
imposed only after a jury trial put “an impermissible burden upon the exercise of a
constitutional right.””6 Justice Stewart’s opinion stated that provisions the “purpose or effect”
of which is to “chill the assertion of constitutional rights by penalizing those who choose to
exercise them” are “patently unconstitutional. ‘67 The Court found that “the evil in the federal
statute was not that it necessarily coerce[d] guilty pleas and jury waivers but simply that it
needlessly encourage[d] them.”

Champion Briefs 72
AFF: Constitutionality AC Jan/Feb 2018

Governments cannot indirectly inhibit rights; if it is not their


intention.

, Anonymous. “ALTERNATIVES TO PLEA BARGAINING.” University of Pennsylvania Law Review.


1984. Web. December 05, 2017.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627&context=penn_la
w_review>.

An unconstitutional condition exists when the government “structure[s] an individual’s choice


in such a way that he will voluntarily forgo” one or more constitutional rights “in order to retain
a different state-granted benefit.”’2 5 The unconstitutional conditions doctrine “holds that
government may not condition the receipt of its benefits upon the nonassertion of
constitutional rights even if receipt of such benefits is in all other respects a ‘mere privilege.’
“26 Simply put, the doctrine means “that whatever an express constitutional provision forbids
government to do directly it equally forbids government to do indirectly.”12 7

Champion Briefs 73
AFF: Constitutionality AC Jan/Feb 2018

Plea bargaining undermines trial by jury rights.

, Anonymous. “ALTERNATIVES TO PLEA BARGAINING.” University of Pennsylvania Law Review.


1984. Web. December 05, 2017.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627&context=penn_la
w_review>.

The right, to a trial by jury, a right guaranteed by the sixth amendment,’ has been seriously
undermined by the huge criminal caseload and the limited resources of our judicial system. Jury
trial has become the exception rather than the rule as guilty pleas dispose of the vast majority
of criminal cases without trial.’ Plea bargaining, the system whereby criminal defendants are
given inducements in the form of reduced charges or lighter sentences in exchange for pleading
guilty, has been accepted as a necessary evil and upheld by the Supreme Court as a
constitutional method of determining guilt.8 Some commentators, however, dispute the
Supreme Court’s view, arguing that plea bargaining infringes a criminal defendant’s absolute
right to a trial by jury, and thus is unconstitutional.4 These commentators urge that the system
provide resources adequate to permit the exercise of this constitutional right.5

Champion Briefs 74
AFF: Constitutionality AC Jan/Feb 2018

Appellate and bargaining waivers have different constitutional


backgrounds.

Reimelt, Alexandra W.. “An Unjust Bargain: Plea Bargains And Waiver Of The Right To Appeal.”
Boston College Law Review. May 01, 2010. Web. December 05, 2017.
<http://lawdigitalcommons.bc.edu/bclr/vol51/iss3/7/>.

The U.S. District Court for the District of Columbia has held that plea agreement provisions
waiving appeal rights are facially invalid because these waivers can never be knowing and
voluntary. In its 1997 decision in United States v. Raynor, the court explained that a waiver of
future rights is by definition “uninformed and unintelligent.” The court cited the U.S. Supreme
Court’s statement that a valid waiver under Rule 11 must constitute “an intentional
relinquishment or aban- donment of a known right or privilege.” The court in Raynor concluded
that a defendant cannot know what right he is waiving until a sentence is imposed.
Furthermore, the district court explained that the waiver of appellate rights is not analogous to
the typical waiver of constitutional rights in guilty pleas. Unlike appellate waivers, most
constitutional waivers in guilty pleas involve the relinquishment of a presently known, clearly
defined right. Concurring in the U.S. Court of Appeals for the Fifth Circuit’s 1992 decision in
United States v. Melancon, Judge Robert M. Parker added that the act of waiving a right
typically occurs at the moment the waiver is executed; one waives the right to be free from
selfincrimination and then admits guilt.126 In contrast, waiving the right to appeal a future
sentencing error frees the defendant from none of the uncertainties surrounding the
sentencing process.

Champion Briefs 75
AFF: Constitutionality AC Jan/Feb 2018

There are several rights included within the constitution- whatever


system in place must comply with these.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

Whichever conception of justice should be prioritized, America’s constitution requires due


process of law, which can be thought of providing accused criminals with the process they are
due (Orth 2007). These include freedom from unreasonable searches and seizures (Fourth
Amendment), freedom from arrest or search without probable cause (Fourth Amendment),
freedom from self-incrimination (Fifth Amendment), freedom from double jeopardy (Fifth
Amendment), freedom from cruel and unusual punishment (Eighth Amendment), freedom
from excessive bail or fines (Eighth Amendment), right to speedy, public, and fair trial by jury
(Sixth Amendment), right to an impartial jury (Sixth Amendment), right to counsel (Sixth
Amendment), and most generally, freedom from being deprived of life, liberty, or property
without due process of law (Fifth Amendment and Fourteenth Amendment) (Fuller 2005).

Champion Briefs 76
A/2: Constitutionality AC Jan/Feb 2018

Supreme court has recently validated the constitutionality of plea


bargaining.

Barnes, Robert. “Supreme Court Expands Plea Bargain Rights Of Criminal Defendants.” March
21, 2012. Web. December 05, 2017.
<https://www.washingtonpost.com/politics/supreme-court-expands-plea-bargain-
rights-of-criminal-
defendants/2012/03/21/gIQA6vIZSS_story.html?utm_term=.2efb752e17c3>.

A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective
legal representation applies to plea bargain agreements, significantly expanding the
constitutional rights of defendants as they move through the criminal justice system. In a pair
of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge
their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides
of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial,
and the ruling could affect thousands of cases. “The reality is that plea bargains have become
so central to the administration of the criminal justice system that defense counsel have
responsibilities … that must be met to render the adequate assistance of counsel that the Sixth
Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal
justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
*Ellipsis from source

Champion Briefs 77
A/2: Constitutionality AC Jan/Feb 2018

Fair trials restrictions also regulate plea bargaining.

Sacks, Mike. “Supreme Court: Plea Bargain Advice That Is Absurdly Bad Violates The
Constitution.” Huffington Post. March 21, 2012. Web. December 05, 2017.
<https://www.huffingtonpost.com/2012/03/21/supreme-court-plea-bargain-
constitution-violation_n_1369549.html>.

In Missouri v. Frye, the justices held that the constitutional guarantee of a fair trial extends to
pre-trial activities such as plea bargains. “This Court now holds that, as a general rule, defense
counsel has the duty to communicate formal offers from the prosecution to accept a plea on
terms and conditions that may be favorable to the accused.” In Lafler v. Cooper, in which there
was actually a trial, the same justices explained that defendants are entitled to a remedy when
they can show that there is a reasonable probability they would have accepted the plea bargain
had they not received bad advice from their lawyer and that the trial court would have
accepted the guilty plea. In such cases, the trial court would then have the discretion to replace
the stiffer sentence with the plea agreement, to throw out part of the conviction and re-
sentence accordingly, or leave the original sentence in place.

Champion Briefs 78
A/2: Constitutionality AC Jan/Feb 2018

Multiple cases have ruled plea bargaining doesn’t violate 6th or 8th
amendment.

Alexander, Michelle. “Go To Trial: Crash The Justice System.” New York Times. March 10, 2012.
Web. December 05, 2017. <http://www.nytimes.com/2012/03/11/opinion/sunday/go-
to-trial-crash-the-justice-system.html>.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor
crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right
to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for
a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual
punishment.

Champion Briefs 79
A/2: Constitutionality AC Jan/Feb 2018

Guilty plea doesn’t not waive constitutional rights of appeals.

Reimelt, Alexandra W.. “An Unjust Bargain: Plea Bargains And Waiver Of The Right To Appeal.”
Boston College Law Review. May 01, 2010. Web. December 05, 2017.
<http://lawdigitalcommons.bc.edu/bclr/vol51/iss3/7/>.

The Court clarified this rule when it stated that a guilty plea does not inevitably “waive” all prior
constitutional violations.65 It explained that several violations do survive a guilty plea and can
be appealed after the taking of the plea.66 A guilty plea merely renders irrelevant the
constitutional violations logically consistent with the establishment of the defendant’s guilt.67
For example, the constitutional claim of double jeopardy survives a guilty plea.68 Additionally,
violations that occur during the taking of the plea, such as claims of ineffective assistance of
counsel, survive a guilty plea.69 Sentencing issues that arise after the court accepts a guilty plea
can also be appealed.70 Lastly, certain states have carved out statutory exceptions to the
general rule stated in Tollett and permit defendants to appeal suppression motions despite the
fact that their convictions were based on a guilty plea.71 All of these claims survive a guilty plea
and can be subject to express appellate waivers.72

Champion Briefs 80
A/2: Constitutionality AC Jan/Feb 2018

Pleas are a waiver of constitutional rights not a lack of them.

Reimelt, Alexandra W. “An Unjust Bargain: Plea Bargains And Waiver Of The Right To Appeal.”
Boston College Law Review. May 01, 2010. Web. December 05, 2017.
<http://lawdigitalcommons.bc.edu/bclr/vol51/iss3/7/>.

The Supreme Court addressed the waiver of constitutional rights in plea bargains in Brady when
it held that defendants may waive these rights as a valid condition of a plea bargain.45 To
comport with due process, the Court required that waivers of constitutional rights in guilty
pleas be “voluntary[,] … knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.”46 The Supreme Court has instructed lower courts
accepting guilty pleas to apply the knowing and voluntary test with great care.47 Courts must
satisfy themselves that defendants’ admissions of guilt are accurate and reliable.48 The Court
has explained that factors such as a defendant’s representation by competent counsel and
awareness of the nature of the charges against him support the conclusion that a plea is
constitutional.49 The Court noted, however, that an otherwise valid plea is not rendered invalid
because the defendant overestimated the strength of the State’s case or the likely penalties
stemming from a trial.50 Furthermore, although guilty pleas may dissuade a defendant from
exercising constitutional rights, the Constitution does not bar criminal defendants from making
those difficult decisions.51 Rule 11 of the Federal Rules of Criminal Procedure (“FRCP”) provides
additional guidelines for district courts accepting guilty pleas.52 The courts must address
defendants directly and determine that they understand that their guilty pleas waive, amongst
other things, their right to a jury trial, right to confront witnesses, and right to be free from self-
incrimination.53 The court must also determine that the plea is voluntary and did not result
from force or threats.54 States tend to follow the Brady guidelines and the FRCP when
accepting guilty pleas.55 For example, Michigan courts require that no guilty plea shall be
accepted by a trial judge until facts “sufficient to establish the defendant’s guilt have been set
out in the record.”56 The court must make an inquiry “to ascertain that the plea was freely,
understandably, and voluntarily made ...”57 Rule 17 of the Arizona Rules of Criminal Procedure
states that a guilty plea must be accepted only when knowingly and voluntarily made by the
defendant personally in open court.58

*Ellipsis from source

Champion Briefs 81
A/2: Constitutionality AC Jan/Feb 2018

Rights in the justice system are not absolute per the Supreme Court.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

Although these rights are at times violated by various criminal justice actors, courts have ruled
these rights are not absolute and that certain violations are permissible. Appellate courts,
particularly the U.S. Supreme Court, have routinely created exceptions to these rights (e.g., the
“good faith” exception to the exclusionary rule (see U.S. v. Leon 1984), and right to counsel only
for those who are incarcerated (see Scott v. Illinois 1979). Further, numerous protections have
been eroded as a result of the drug war (Gray 2001). As a result, procedural justice (justice as a
process) is not an absolute and can be subverted by crime control concerns. In at least some of
these cases, many would argue that criminal justice practice is unfair.

Champion Briefs 82
AFF: Justice AC Jan/Feb 2018

AFF: Justice AC
The justice AC is a staple of any criminal justice system. The cards in this brief indicts the
goals of the criminal justice system. At a basic level these cards argue that the system of plea
bargaining works against the goal of the criminal justice system. These cards can be thought of
as a general case or better yet they are just general topic cards that can be applied to virtually
any framing or case. Cards include points such as the effectiveness of plea bargaining, indicts of
the fairness, evidence of bias, and statements of what the ideal criminal justice system looks
like. Many of the cards state that specific reforms are necessary for the justice system to
function properly. If these cards were used as their own case and not just supporting cards a
Rawls theory of justice would be an appropriate framing. There are cards included that define
the goals and intent of the criminal justice system too; these would provide good overviews for
the case.
Arguments against justice ACs primarily revolve around the efficiency of the system.
Some cards argue that plea bargaining is an integral part of the justice system due to the length
of time it has been around (civil war era) and that it gives defendants autonomy. Plea
bargaining allows defendants to choose the best route through the criminal justice system. The
court clog DA could directly turn the justice AC because if the system crashes then the purpose
of it can no longer be achieved.

Champion Briefs 83
AFF: Justice AC Jan/Feb 2018

Plea bargaining stigmatizes citizens that shouldn’t have to bare the


badge of criminal.

Yoffe, Emily. “Innocence Is Irrelevant.” The Atlantic. September, 2017. Web. December 05,
2017. <https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-
irrelevant/534171/>.

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the
National Employment Law Project estimated that figure at 65 million. It is a mark that can carry
lifetime consequences for education, employment, and housing. Having a record, even for a
violation that is trivial or specious, means a person can face tougher charges and punishment if
he or she again encounters the criminal-justice system. Plea bargaining has become so coercive
that many innocent people feel they have no option but to plead guilty. “Our system makes it a
rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive
director of the Innocence Project, told me. The result, according to the late Harvard law
professor William J. Stuntz, who wrote extensively about the history of plea bargains in The
Collapse of American Criminal Justice (2011), is a system that has become “the harshest in the
history of democratic government.”

Champion Briefs 84
AFF: Justice AC Jan/Feb 2018

Plea bargaining can be abolished why maintaining concessions thus


maintaining justice and autonomy of trial.

Schulhofer, Stephen J. “Plea Bargaining As Disaster.” The Yale Law Journal. June, 1992. Web.
December 05, 2017.
<https://www.jstor.org/stable/796954?seq=1#page_scan_tab_contents>.

By abolishing bargaining but not abolishing concessions, a jurisdiction could retain control over
its guilty plea rate and preserve its existing low level of resources committed to trials. Such a
system has frequently been pro-posed;85 it was adopted by Italy when it transformed its
criminal procedure into an adversary system in 1988;86 and it is approximated, though
imperfectly, under the guilty plea provisions of the federal sentencing guidelines.87 In such a
system, the proportion of defendants pleading guilty would be similar to the present number,
but the composition of the guilty plea pool presumably would change. Those who elect trial in
the present system do not necessarily have the greatest chance of acquittal because such
defendants are also the ones most likely to win the best sentence concessions in negotiation.
Rather, those who now go to trial tend to be those who are least risk averse, a group that may
include disproportionate numbers of those who are actually guilty. In contrast, in a system of
nonnegotiable sentence concessions, defen-dants who elect trial are most likely to be those
with the greatest likelihood of acquittal, a group that should include disproportionate numbers
of the innocent. The normative premise of this approach is that the trial process, however
infrequently used, should be reserved for cases where guilt is most in doubt.

Champion Briefs 85
AFF: Justice AC Jan/Feb 2018

Despite the harms of abolishing plea bargaining it must be don’t


because plea bargaining risks to innocent.

Schulhofer, Stephen J. “Plea Bargaining As Disaster.” The Yale Law Journal. June, 1992. Web.
December 05, 2017.
<https://www.jstor.org/stable/796954?seq=1#page_scan_tab_contents>.

Constitutional and doctrinal objections aside, plea bargaining seriously impairs the public
interest in effective punishment of crime and in accurate separation of the guilty from the
innocent. Unlike most defenders of American plea bargaining, Dean Robert Scott and Professor
William Stuntz acknowledge these dangers.’ They pay close attention to prior research that has
identified structural flaws in the bargaining system, and they make imaginative use of economic
analysis to extend that work and reinforce its conclusions. But Scott and Stuntz do not take the
next logical step and join those who have advocated the abolition of bargaining. Rather, they
argue that abolition would make matters worse and that modest reform of the bargaining
process can significant- ly reduce its harmful effects.

Champion Briefs 86
AFF: Justice AC Jan/Feb 2018

Even if it is more inefficient to abolish plea bargaining it is currently


inefficient to pressure innocent people into guilt.

Schulhofer, Stephen J. “Plea Bargaining As Disaster.” The Yale Law Journal. June, 1992. Web.
December 05, 2017.
<https://www.jstor.org/stable/796954?seq=1#page_scan_tab_contents>.

This paradoxical conception of loss reveals one way that “efficiency” and the “innocence
problem” are misspecified in the Scott-Stuntz model. Litigating cases against innocents is
indeed inefficient (if avoidable), but inability to impose punishment on innocents is not a loss
for prosecutors or anyone else. There is a broader difficulty here too. The “innocence
problem,”’ in its paradox- ical Scott-Stuntz formulation, turns traditional objections to plea
bargaining inside out In a previous article, I discussed the same information barriers, but drew a
much different conclusion about their implications for the innocent.17 I counted information
asymmetry (the defendant knowing that he is innocent when the prosecutor does not) as a
factor that might save bargaining from unfairness: it would leave innocent defendants more
likely than guilty defen- dants to refuse any given offer and go to trial, where they could win
acquit- tal.’ But I also noted that this advantage was undercut by the fact that “the prosecutor
cannot distinguish the response [to her offer] of the innocent but highly risk-averse defendant
from that of the guilty but less risk-averse defen- dant, and sorting mistakes (that is, conviction
of the innocent) will occur.”19

Champion Briefs 87
AFF: Justice AC Jan/Feb 2018

Bargaining is the result of fear of a great punishment and public


spectacle.

Scott, Robert. “Plea Bargaining As Contract.” Yale Law Journal. 1992. Web. December 05, 2017.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2144&context=journ
al_articles>.

The idea of allocating criminal punishment through what looks like a street bazaar has proved
unappealing to most outside observers. Critics point to the seeming hypocrisy of using an
elaborate trial process as window dressing, while doing all the real business of the system
through the most unelaborate process imaginable.9 They emphasize the unfairness (and
inaccuracy) of determining defendants’ fate without full investigation, without testimony and
evidence and impartial factfinding; they emphasize too how this unfairness disproportionately
harms the poor and unsophisticated.1 Perhaps especially, they note the seem- ing
pervasiveness of coercion and fraud in the system. Defendants accept bargains because of the
threat of much harsher penalties after trial; they are thus forced to give up the protections that
the trial system’s many formalities provide.’ And judges often give bargained-for sentences
because of what prosecutors and defense lawyers do not say at sentencing; the sentencing
hearing seems rigged to support the deal that the two attorneys have already struck.12

Champion Briefs 88
AFF: Justice AC Jan/Feb 2018

There is no such thing as a consensual bargain because accused are


under duress.

Scott, Robert. “Plea Bargaining As Contract.” Yale Law Journal. 1992. Web. December 05, 2017.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2144&context=journ
al_articles>.

One of the central arguments for prohibiting plea bargaining is the claim that such bargains are
impermissibly infected by duress.30 Under ordinary contract principles, a duress defense is
successful if the defending party can prove that he would not have entered into the contract
absent the improperly coercive behavior of the other contracting party.31 At first glance, the
defense seems entirely unproblematic. After all, facilitating the exercise of voluntary choice is
the central normative justification for contractual enforcement. Not all coercion justifies
nonenforcement, however. A poor consumer, for example, cannot avoid a contractual
obligation on the sole ground that his impoverished circumstances forced him to accept an
otherwise “voluntary” agreement.32 The duress claim must be based on the acts or conduct of
the promisee and not merely on the necessities of the promisor. The wrongful acts that
constitute duress may be either physical force or an improper threat, but in any case the
compulsion must be “produced” by the promisee and not by exigent circum- stances
confronting the promisor.3

Champion Briefs 89
AFF: Justice AC Jan/Feb 2018

Innocent people are at risk of guilty pleas though plea bargaining


benefits the justice system.

McDonough, Nancy. “Plea Bargaining: A Necessary Evil.” University of Arkansas at Little Rock
Law Review. 1979. Web. December 05, 2017.
<https://lawrepository.ualr.edu/cgi/viewcontent.cgi?referer=https://www.google.com/
&httpsredir=1&article=1398&context=lawreview>.

A final problem that haunts both proponents and opponents of plea bargaining is the fear that
a defendant may be induced to plead guilty when he is in fact innocent. This fear has been
expressed by many: [T]here must be more than a lingering concern, when a negotiated plea is
heard, that an innocent defendant has been prevailed upon, or has chosen to ‘play the odds,’
rather than to staunchly maintain his innocence. In fact, must it not be accepted by the
proponents of plea bargaining that, statistically, a certain number of innocent people will suffer
judicial penalties because of that system? … One can say that, in such situations, the defendant
is simply exercising rational choices affecting his self-interest. That is true, and it may not be
unreasonable for him to make such a choice. But should the federal criminal justice system give
an innocent man that choice? This Court says, ‘No.’ [Judge Eisele] “ “ [T]he plea negotiation
system creates a significant danger to the innocent. Many of the rights it discourages are rights
designed to prevent the conviction of innocent defendants. To the extent these rights are
rendered non-operative by the plea negotiation system, innocent defendants are endangered.
[Moise Berger, County Attorney, Maricopa County, Arizona] 5’ While plea bargaining thus
reduces the inaccuracies and costs of the traditional model, it also presents a danger that
innocent defendants will be tempted to plead guilty. Courts have attempted to minimize this
risk by inquiring into the factual basis for the guilty plea before accepting it. This remedy is
insufficient, though, because defense counsel might advise their clients to admit involvement in
the crime in order not to jeopardize the bargain that has already been struck. [Harvard Law
Student]52
*Ellipsis from source

Champion Briefs 90
AFF: Justice AC Jan/Feb 2018

Plea bargaining benefits the prosecutor- it lessens their work load and
burden of proof.

McDonough, Nancy. “Plea Bargaining: A Necessary Evil.” University of Arkansas at Little Rock
Law Review. 1979. Web. December 05, 2017.
<https://lawrepository.ualr.edu/cgi/viewcontent.cgi?referer=https://www.google.com/
&httpsredir=1&article=1398&context=lawreview>.

The prosecutor may benefit as much or even more than the defendant from the plea bargaining
process. The prosecutor is faced with the burden of proving the guilt of the defendant beyond a
reasonable doubt. Due to constitutional restraints which are guaranteed the defendant, it may
be impossible for the prosecutor to convict even the guiltiest defendant at trial.” In such a
situation the prosecutor is generally willing to bargain in order to obtain a certain conviction on
a lesser offense. In further support of plea bargaining agreements, one district court has noted:
“A defendant who enters a plea affords the government an opportunity to insure prompt and
certain application of correctional measures while avoiding the costs and uncertainties of a
trial.”’“

Champion Briefs 91
AFF: Justice AC Jan/Feb 2018

The criminal justice system stacks up against black individuals-


treatment by police, lawyers, judges push black males towards pleas.

Fremon, Celeste. “Does Race Affect Plea Bargaining? A New Study Says YES.” Witness LA. April
03, 2017. Web. December 05, 2017. <http://witnessla.com/does-race-affect-plea-
bargaining-a-new-study-says-yes/>.

The study’s authors, Ted Chiricos, a professor of Criminology and Criminal Justice at Florida
State University, and Christi Metcalfe, PhD, an assistant professor in the Department of
Criminology and Criminal Justice at the University of South Carolina, were quick to point out
that their study focused on “a single decision-making stage”—namely plea bargaining—which
“may mask disparities originating at other discretionary points in the system.” In other words, it
may not be simply the decisions made by prosecutors that influence the differences the
researchers found. Decisions made at “earlier phases of the process,” by people such as police
officers, judges at arraignment, and others, could be influencing the fact that black males seem
to be “at a disadvantage in the plea process, such that they will likely get worse plea offers.”
The researchers were particularly interested in the fact that the black males they studied were
less likely than white males to plead guilty rather than go to trial. This led them to theorize that
perhaps “the lower value received for their plea,” which they found in their study, “may be an
impetus for going to trial among black males.” They also wondered if the black men were less
likely to trust the plea bargaining process to begin with, give possible previous negative
experiences.

Champion Briefs 92
AFF: Justice AC Jan/Feb 2018

The goal of the criminal justice system should be reducing crime.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

One goal of the criminal justice system is to reduce crime. Reducing crime can be achieved
through reactive means (such as responding to a call for service, making an arrest, obtaining a
criminal conviction, and carrying out the punishment imposed by the court), or through
proactive means (such as eliminating the conditions that produce criminality) (Fuller 2005). The
former type of crime reduction is referred to as crime control, and accurately depicts the
majority of criminal justice activity in the United States (Worrall 2008). The latter type of crime
reduction is referred to as crime prevention, and is far less emphasized in America (Lab 2007).

Champion Briefs 93
AFF: Justice AC Jan/Feb 2018

Justice is meant to be impartial; the purpose of the justice system is to


punish wrong doers.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

Another goal of the criminal justice system is to do justice. Doing justice has two related
meanings, both of which are reflected in Justitia, the blindfolded lady justice who holds a sword
and scales and adorns many courthouses and legal buildings across the country (Curtis and
Resnick 1987). The sword is thought to represent the first meaning of justice, which is aimed at
holding the guilty responsible for the harms they inflict. If a criminal is not punished for his or
her wrongdoings, we would say that justice has not been achieved. This type of justice is
referred to as corrective justice (as in corrections or punishment), or justice as an outcome
(Robinson 2009). The scales and blindfold are thought to represent fairness, the second
meaning of justice. This conception of justice assumes that all persons will be treated equally in
the eyes of the law – that justice will be blind. Justice thus would not be present when any
group is somehow left out or singled out for differential treatment by the law. This type of
justice is referred to as procedural justice, or justice as a process (Robinson 2009).

Champion Briefs 94
AFF: Justice AC Jan/Feb 2018

Judicial and prosecutorial jurisdiction trade off- increasing the


punitive nature of the criminal justice system.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

Ironically, one of the reasons for the more punitive changes in the criminal justice system was
to reduce judicial discretion. It was thought that judges, when allowed to practice unfettered
discretion in indeterminate sentencing systems, could easily discriminate against certain
offenders by imposing different sentences on similarly-situated offenders. To create more
“fairness” in the system, judicial discretion has largely been constrained by the use of
mandatory sentences and habitual offender laws, in hopes of creating more equity in the
system. However, these sentences are largely only applied to certain types of offenders, such as
drug offenders, so the goal of producing equity by reducing discretion has led to a zero-sum
gain as one brand of “fairness” has been replaced with another. For example, a study of
Oregon’s implementation of Measure 11 in 1994, which required mandatory minimums for
sixteen violent and sex-relatedoffenses, yielded interesting results. On the one hand, it did
meet its goal of increasing prison sentences of offenders eligible for mandatory sentences,
which effectively reduced judicial discretion. On the other hand, many other offenders who
should have been sentenced to mandatory minimums under Measure 11 were not, as
prosecutors were able to use their discretion to reduce charges or avoid charging defendants
with Measure 11 offenses. In effect, judicial discretion was limited by the law, but prosecutorial
discretion increased, allowing many offenders to escape the punishment that the law initially
set out to impose (Merritt, Fain, and Turner 2006; see also Tonry 1996; Walker 2005; Walker,
Spohn, and DeLone 2007).

Champion Briefs 95
AFF: Justice AC Jan/Feb 2018

The end goal of the justice system should be a trial- trials rarely
happen because of plea bargaining.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

The ideal of criminal court processes is the criminal trial. Although the right to trial is
mentioned in the Declaration of Independence, the U.S. Constitution, and scores of Supreme
Court cases, the reality is that trials rarely happen. Currently, only about 3 percent of felony
cases lead to a criminal trial (Bureau of Justice Statistics 2008). The rest are resolved through
informal means such as plea bargaining, which occurs in private, behind closed doors, without a
determination of guilt beyond a reasonable doubt, and with little regard for the rights of the
accused or the victim of the crime. It is no wonder that no one seems to like plea bargaining – it
is regretted by both conservatives and liberals (Walker 2005) – yet it is seen as a necessary evil
because of the more than 14 million arrests each year made by the police (Vogel 2006). Courts
employ the fewest number of criminal justice employees and receive the lowest portion of
resources in any given year, far less than police and corrections. Courts receive roughly 20
percent of all criminal justice resources, including funding and employees (Robinson 2009). As a
result, courts must plea bargain in order to resolve cases.

Champion Briefs 96
AFF: Justice AC Jan/Feb 2018

Plea bargaining doesn’t meet the threshold of justice- it’s not due
process and procedural justice.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

The primary problem with plea bargaining is that it fails to meet either of two definitions of
justice. First, plea bargaining fails to respect due process requirements and also does not
achieve procedural justice (justice as a process), thereby assuring that some innocent people
may plead guilty for crimes they did not commit (Walker 2005). Second, plea bargaining does
not achieve corrective justice (justice as an outcome), for the guilty receive far less punishment
than they deserve under plea bargaining.

Champion Briefs 97
AFF: Justice AC Jan/Feb 2018

Plea bargaining upsets the balance of court power - prosecutors gain


far too much power.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 05, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

Plea bargaining also results from a serious imbalance in courtroom power. Prosecutors have far
more power and resources than the typical defense attorney in the United States, who is a
public defender with thousands of cases each year to handle. As noted earlier, about 82
percent of American court clients are indigent. Given the large number of cases to handle,
public defenders have little time to visit with clients and thus often encourage guilty pleas to
get rid of cases. Data from 1999 show that the average public defender in the nation’s largest
hundred counties had approximately 520 cases to deal with each year (Bureau of Justice
Statistics 2008). In 1999, public defenders handled 3.4 million cases, spending about $876
million, which amounts to only $258 per case. The total spent defending all indigent clients in
1999 (including assigned counsel as well as public defenders) was $1.2 billion. Compare this
with the roughly $114 billion spent on law enforcement and corrections in the same year
(Bureau of Justice Statistics 2008). These realities mean criminal trials are simply not possible
for each client.

Champion Briefs 98
AFF: Justice AC Jan/Feb 2018

Courts must balance politics of power with the fairness of justice.

McConville, Mike. “ Plea Bargaining: Ethics And Politics.” Journal of Law and Society. 1998.
Web. December 06, 2017.
<https://www.jstor.org/stable/1410639?seq=1#page_scan_tab_contents>.

But if Blake and Ashworth are right in their analysis of this tradition of argument, as I believe
they are, the quest for a resolution of the ethical prob- lems will be endless and unsuccessful.
Lawyers are always left with discretion; they commonly have to operate where the rules are
indeterminate or where there is no rule; and in trying to rationalize their conduct they may be
forced to choose between conflicting obligations. What these debates do not do, however, is
engage with the forces which drive the criminal justice process and which give it shape and
meaning. In short, they do not deal with the politics of criminal justice. Once the politics of the
criminal justice process become the focus of interest, the role of ethics takes on a new
understanding in which it is linked to the historic role of the court and, in recent years, the
intensification and legitimation of its core activities. As Isaac Balbus48 made clear in his classic
study of the legal sector’s involvement in the 1960s ‘race riots’ in the United States of America,
a core role of the courts is in the preservation and maintenance of social order. This role is
essentially repressive. A system founded in repression is not, however, likely to secure long-
term acceptance. Accordingly, the courts must attempt to secure formal rationality. And it falls
to the courtroom actors to balance these contradictory functions of maintaining social order
and secur- ing formal rationality. At different historical moments, the achievement of one of
these functions may be at the expense of the other. In his own study, Balbus found that, in
processing people of colour:49 the interest of court authorities - as well as the defense
community - in formal rationality was simply not as manifest as it would otherwise have been.
The blatant abrogations of legality which did occur during and immediately following the
revolts would have been more difficult to justify, and therefore far less likely to have occurred,
had whites, rather than blacks, been the object of the sanctioning process.

Champion Briefs 99
AFF: Justice AC Jan/Feb 2018

Lawyers can pressure their clients towards unethical deals- threatens


legitimacy of the system.

McConville, Mike. “ Plea Bargaining: Ethics And Politics.” Journal of Law and Society. 1998.
Web. December 06, 2017.
<https://www.jstor.org/stable/1410639?seq=1#page_scan_tab_contents>.

From the earliest formulations, the defence of plea bargaining was based upon a celebration of
adversary ideals. In particular, the contested trial was held out to be the epitome of adversary
justice and no defendant was to be discouraged from going to trial. Cases could be disposed of
by guilty plea only on the voluntary election of the defendant. Such a free choice was likely to
be made only by those who were both factually guilty and repentant. It was the job of defence
counsel, operating within codes of conduct, to ensure that defendants had a free choice of
plea, that those pleading guilty were factually guilty, and that, in consequence, sentence
reductions went only to those who deserved them. The orthodox challenge took this defence of
plea bargaining on its own terms. The sentence discount, it was alleged, was a blunt not a
precision instrument, applying indiscriminately to all defendants who came before the court.
The innocent were just as much at risk of being induced to forgo trial as the guilty. The discount
operated to limit that free choice which was supposedly the hallmark of ethical bargaining.
Additionally, not only did the ethical codes permit lawyers to pressure their clients, experience
showed that cases were prepared in the expectation of non-trial disposition so that guilty pleas
became achieved outcomes of the process established by bargain-ing. At all events, any claim
to legitimacy based in notions of remorse and repentance was contradicted by the notorious
fact that remorse was neither expected nor looked for and by the fact that the discount was a
bureaucratic rather than a principled response to the needs of criminal justice

Champion Briefs 100


AFF: Justice AC Jan/Feb 2018

European torture laws are designed in similar ways to plea


bargaining- they use a mask of voluntary consent to participation.

Langbein, John H.. “Torture And Plea Bargaining.” The University of Chicago Law Review. 1978.
Web. December 06, 2017.
<https://law.yale.edu/system/files/documents/pdf/Faculty/Langbein_Torture_and_Plea
_Bargaining.pdf>.

I have said that European law attempted to devise safeguards for the use of torture that proved
illusory; these measures bear an eerie resemblance to the supposed safeguards of the
American law of plea bargaining. Foremost among the illusory safeguards of both systems is the
doctrinal preoccupation with characterizing the induced waivers as voluntary. The Europeans
made the torture victim repeat his confession “voluntarily,” but under the threat of being
tortured anew if he recanted. The American counterpart is Rule 11(d) of the Federal Rules of
Criminal Procedure, which forbids the court from accepting a guilty plea without first
“addressing the defendant personally in open court, determining that the plea is voluntary and
not the result of force or threats or of promises apart from a plea agreement. “27 Of course,
the plea agreement is the source of the coercion and already embodies the involuntariness. The
architects of the European law of torture sought to enhance the reliability of a torture-induced
confession with other safeguards designed to substantiate its factual basis. We have said that
they required a probable cause determination for investigation under torture and that they
directed the court to take steps to verify the accuracy of the confession by investigating some
of its detail. We have explained why these measures were inadequate to protect many
innocent suspects from torture, confession, and condemnation. Probable cause is not the same
as guilt, and verification, even if undertaken in good faith, could easily fail as a safeguard, either
because the matters confessed were not susceptible of physical or testimonial corroboration,
or because the accused might know enough about the crime to lend verisimilitude to his
confession even though he was not in fact the culprit.

Champion Briefs 101


AFF: Justice AC Jan/Feb 2018

Tortured confessions and pleas rely on the same base of false


‘factuality’ and ‘lack of coercion’.

Langbein, John H.. “Torture And Plea Bargaining.” The University of Chicago Law Review. 1978.
Web. December 06, 2017.
<https://law.yale.edu/system/files/documents/pdf/Faculty/Langbein_Torture_and_Plea
_Bargaining.pdf>.

The American law of plea bargaining has pursued a similar chimera: the requirement of
“adequate factual basis for the plea.” Federal Rule 11(f) provides that “the court should not
enter judgment upon [a guilty] plea without making such inquiry as shall satisfy it that there is a
factual basis for the plea. 2 8 As with the tortured confession, so with the negotiated plea: any
case that has resisted dismissal for want of probable cause at the preliminary hearing will rest
upon enough inculpating evidence to cast suspicion upon the accused. The function of trial,
which plea bargaining eliminates, is to require the court to adjudicate whether the facts proven
support an inference of guilt beyond a reasonable doubt. Consider, however, the case of North
Carolina v. Alford, 2 decided in this decade, in which the U.S. Supreme Court found it
permissible to condemn without trial a defendant who had told the sentencing court: “I
pleaded guilty on second degree murder because they said there is too much evidence, but I
ain’t shot no man ….I just pleaded guilty because they said if I didn’t they would gas me for it …
I’m not guilty but I plead guilty. ‘3 I invite you to compare Alford’s statement with the
explanation of one Johannes Julius, seventeenth-century burgomaster of Bamberg, who wrote
from his dungeon cell where he was awaiting execution, in order to tell his daughter why he
had confessed to witchcraft “for which I must die. It is all falsehood and invention, so help me
God….They never cease to torture until one says something.”

*Ellipsis from source

Champion Briefs 102


A/2: Justice AC Jan/Feb 2018

Plea bargaining is a contract between the justice system and


individual.

Scott, Robert. “Plea Bargaining As Contract.” Yale Law Journal. 1992. Web. December 05, 2017.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2144&context=journ
al_articles>.

One place to look for an answer is in the law and literature of plea bargain- ing as contract. Plea
bargains are, as the name suggests, bargains; it seems natural to argue that they should be
regulated and evaluated accordingly. But while that argument is common, there is little
agreement on where it leads. Two of the harshest and most influential critics of plea bargaining,
Albert Alschuler and Stephen Schulhofer, maintain that contract theory supports prohibiting
any bargained-for allocation of criminal punishment.6 The courts, on the other hand, have
proceeded to construct a body of contract-based law to regulate the plea bargaining process,
taking for granted the efficiency and decency of the process being regulated. The many
academic arguments for abolishing (or at least severely restricting) plea bargaining have thus
been largely ignored. It is tempting to explain this reaction as a product of the chasm between
an overly fastidious academic world and the unpleasant realities of modem criminal processes.
But the intuition that plea bargaining is fundamentally flawed is too strong and too widespread
to be so casually dismissed.

Champion Briefs 103


A/2: Justice AC Jan/Feb 2018

Right to trial and right to not have a trial are comparable it is about
whether the duty of innocence is on the government or individual.

Scott, Robert. “Plea Bargaining As Contract.” Yale Law Journal. 1992. Web. December 05, 2017.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2144&context=journ
al_articles>.

The argument that leads from the initial entitlement to contractual autonomy can be easily
trumped, of course, by simply redefining the entitlement, Thus, for example, one might say that
the right to trial is absolute or inalienable and therefore not subject to purchase or sale.
Alternatively, defendants might be said to have not a right to trial, but rather a duty or
obligation to force the govern- ment to prove the charges against them.”9 (Prosecutors, by the
same token, might have not the right to seek the maximum sentence, but the duty to do so.n)
Under this conception, the entitlements are located elsewhere-with society or the larger
community-and are not appropriate subjects for individual trades Of course, those who believe
in truly inalienable rights might say that party preferences do not matter. Individual citizens
have many rights that they might prefer to trade yet may not relinquish. Many people might
find it welfare maximizing to sell their right to vote or their right to criticize particular
government officials; sales of such entitlements are nevertheless forbidden. Perhaps the right
of a criminal defendant to take his case to trial should be viewed in the same way. This
argument fails, however, because the right to trial differs in important ways from those rights
that are ordinarily thought to be inalienable. When an individual sells his vote, the social costs
of the transaction are borne by the rest of the electorate. The same principle applies to sales of
the right to criticize government officials. There are obvious reasons not to permit sales of
entitle- ments where the costs are imposed on third parties. Such is not the case with the right
to trial; the defendant’s entitlement is to a process of dispute resolu- tion, and the parties to
the bargain are the parties to the dispute. It follows that the parties do internalize the great
majority of the costs and benefits of the bargain.2 Just as there is no inherent conflict between
a tort plaintiff’s right to a day in court and his ability to trade that right in settlement
negotiations, there is no inherent conflict between the right to a criminal trial and the ability to
sell that right for sentencing concessions.

Champion Briefs 104


A/2: Justice AC Jan/Feb 2018

Abolishing plea bargaining is not the ideal way to improve the


criminal justice system- energy should be focused elsewhere.

Walsh, Dylan. “Why U.S. Criminal Courts Are So Dependent On Plea Bargaining.” The Atlantic.
May 02, 2017. Web. December 06, 2017.
<https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/>.

In theory, abolishing the use of plea bargains wouldn’t take much: Prosecutors would simply
stop offering deals. That would be that, though the massive influx of trials would jam courts.
(Michelle Alexander, author of The New Jim Crow, discussed defendants’ deliberately going to
trial and “crashing the courts” as a form of resistance to mass incarceration.) But both sides of
the debate agree the odds of this happening are infinitesimal. Even Alschuler, who throughout
his career remained one of the staunchest critics of plea bargaining, admitted in 2013 that “the
time for a crusade” had passed. Instead, he suggested people work to make the criminal-justice
system “less awful.” Consistent with this, reformers are exploring two avenues to make plea
bargaining either more accountable or less common: The process could be altered to afford
defendants more protection, or the jury trial could be simplified to ensure more people take
advantage of this right.

Champion Briefs 105


A/2: Justice AC Jan/Feb 2018

Courts weren’t built to be fair they were built to try to be efficient.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 06, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

This imbalance of power in the courts is inconsistent with the notion of fairness in criminal
justice. To some, it is evidence of a lack of objectivity in the courts, as if the courts are not really
interested in whether defendants are factually guilty or not. Instead, it suggests the primary
goal of courts is efficiency – i.e., keeping the docket flowing. When trials do (rarely) occur, they
may best serve those with resources to hire jury consultants to hand pick sympathetic jurors
and to use expert witnesses to question the government’s evidence (Pizzi 2000). Additionally,
research has shown that black defendants (who are more likely to be poor) are more likely to
be convicted at trial compared to white defendants (see Fleury-Steiner 2002; Kalven and Zeisel
1966; Sommers and Ellsworth 2001; Williams and Burek 2008), especially if the jury is
comprised of white jurors. Williams and Burek (2008) noted that black defendants whose cases
were deliberated by majority white juries were more likely to be convicted by those juries than
white defendants.

Champion Briefs 106


A/2: Justice AC Jan/Feb 2018

Please can be overturned-there are checks and balances.

Randolph, Tyler. “Plea Bargains.” 2007. Web. December 06, 2017.


<https://www.clientspace.org/guide.asp?firm=591EF0E9&level=2&id=151>.

Plea bargains are voluntary agreements, made as a result of negotiations between prosecutors
and defendants, that avoid a trial in exchange for a certain sentence. At least 90 percent of
criminal cases in the United States are disposed of through plea bargaining. The prosecutor
avoids the time and expense of a trial and the defendant is getting something less than the
worst punishment a jury could give. Both sides avoid the uncertainty of a jury verdict. The court
must approve plea bargains. Because judges often work with the same prosecutors in their
court on a daily basis, it is not common for a judge to refuse a plea bargain. A plea bargain
requires the defendant to plead guilty or nolo contendere, meaning “no contest.” Plea bargains
can result in a variety of dispositions-a lighter sentence, dismissal of additional charges against
the defendant or reduction of the charge from a felony to misdemeanor.

Champion Briefs 107


A/2: Justice AC Jan/Feb 2018

Checks and balances exist to help reduce sentences of or withdraw


the plea.

Randolph, Tyler. “Plea Bargains.” 2007. Web. December 06, 2017.


<https://www.clientspace.org/guide.asp?firm=591EF0E9&level=2&id=151>.

After pleading guilty, the judge sentenced me to a longer time in jail than I expected. Can I
withdraw my plea? No, not if this is your only grounds for withdrawal and if you were informed
by the court that there was a range of possible sentences. TIP: Courts use presentencing reports
to help determine the punishment that will be imposed. After a plea is made in court, judges
will often defer sentencing until the report is made. If you find out that the report recommends
a greater punishment than you expected, you will not be able to withdraw your plea, although
the court has not yet imposed a sentence. If you can, delay making your plea until the
presentencing report is completed and you have seen it. Can a plea of guilty made pursuant to
a plea agreement be withdrawn? Yes, if you do so before the court accepts it or a sentence is
imposed. After the court sentences you, based on your guilty plea, you will have to prove that
facts exist that show a fair and just reason for the withdrawal of the plea. If such facts exist, the
court will hold an evidentiary hearing. If a fair and just reason for your plea withdrawal is
proved, you will be allowed to withdraw it. For example, if new evidence has been found
tending to show your innocence, you may be allowed to withdraw your guilty plea and plead
not guilty. You do not have the right to a hearing on the matter of withdrawing a guilty plea just
by bringing it up to the court. Furthermore, you do not have an inherent right to withdraw your
guilty plea, although federal and state laws give you the right anytime before acceptance or
sentencing.


Champion Briefs 108
AFF: Judicial Legitimacy AC Jan/Feb 2018

AFF: Judicial Legitimacy AC


The Judicial Legitimacy affirmative seeks to eliminate corruption from the Criminal
Justice system and render justice in its purest form. This affirmative seeks to establish
accountability for those prosecuted. Many guilty individuals have utilized plea bargaining as a
form of sentence reducing/eliminating when the Criminal Justice system is meant to hold
criminals accountable and punish them for their wrongdoings. Plea-bargaining has let many
politicians and important public figures set a bad precedent for how crimes are meant to be
dealt with. Crimes from Russian collusion in the Trump campaign to the Flint water crisis, no
one is being punished. The judicial legitimacy affirmative is one that values transparency in
government and prioritizes that above all else.

Champion Briefs 109


AFF: Judicial Legitimacy AC Jan/Feb 2018

Although politicians like Flynn lied to the FBI about Russian collusion
in the Trump campaign, the plea deal made merely wants him to wear
a wire as opposed to serving time.

Herb, Jeremy. “Flynn Pleads Guilty To Lying To FBI, Is Cooperating With Mueller.” CNN.
December 01, 2017. Web. December 10, 2017.
<http://www.cnn.com/2017/12/01/politics/michael-flynn-charged/index.html>.

Flynn is the fourth person connected to Trump’s campaign to be charged as part of Mueller’s
investigation into possible collusion between the Russian government and members of Trump’s
team, as well as potential obstruction of justice and financial crimes. Trump’s former campaign
chairman Paul Manafort and his deputy Rick Gates were indicted last month; they pleaded not
guilty. And Trump campaign foreign policy adviser George Papadopoulos pleaded guilty for
making a false statement to the FBI over contacts with officials connected to the Russian
government. Flynn’s plea agreement stipulates that he’ll cooperate with federal, state or even
local investigators in any way Mueller’s office might need, according to a document filed in
court Friday. He could also be required to participate in covert law enforcement operations
(such as wearing a wire) if asked, or share details of his past dealings with the Trump transition
and administration. The agreement adds that Mueller’s office won’t prosecute Flynn for
additional crimes they outlined in his statement of offense Friday, such as his misreported
foreign lobbying filings about his work for Turkey. If other prosecutors outside the special
counsel’s office, such as US attorneys or state law enforcement, wanted to charge Flynn with
alleged crimes, they still could, and he’s not protected if he lies to investigators again in the
future or breaks the terms of his plea agreement.

Champion Briefs 110


AFF: Judicial Legitimacy AC Jan/Feb 2018

Plea deals are allowing important politicians to get off scot-free even
though they deceived the FBI.

Herb, Jeremy. “Flynn Pleads Guilty To Lying To FBI, Is Cooperating With Mueller.” CNN.
December 01, 2017. Web. December 10, 2017.
<http://www.cnn.com/2017/12/01/politics/michael-flynn-charged/index.html>.

According to the special counsel charges, McFarland and Flynn talked about the potential
impact of the sanctions on the incoming Trump administration’s foreign policy and that the
transition team did not want Russia to escalate the situation. The bulk of the back-and-forth
calls from Flynn to the Russian ambassador and to Trump advisers happened around December
29, while the advisers were at Mar-a-Lago in Florida. Flynn lied to investigators about these
calls with the ambassador, according to his guilty plea and the criminal statement of offense.
The charging document states that Flynn made a false statement to the FBI when he stated that
in December 2016 he did not ask Kislyak “to refrain from escalating the situation in response to
sanctions that the United States had imposed against Russia that same day; and Flynn did not
recall the Russian ambassador subsequently telling him that Russia had chosen to moderate its
response to those sanctions as a result of his request.” They “discussed that the members of
the presidential transition team at Mar-a-Lago did not want Russia to escalate the situation,”
the filing said. Flynn lied to investigators about these calls with the ambassador, according to
his guilty plea and the criminal statement of offense. The charging document states that Flynn
made a false statement to the FBI when he stated that in December 2016 he did not ask Kislyak
“to refrain from escalating the situation in response to sanctions that the United States had
imposed against Russia that same day; and Flynn did not recall the Russian ambassador
subsequently telling him that Russia had chosen to moderate its response to those sanctions as
a result of his request.” The document also says that Flynn falsely said he did not ask Kislyak to
delay the vote on a pending United Nations Security Council resolution. Flynn’s other instance
of lying to investigators involved what he told them about his conversations with foreign
officials related to their planned UN Security Council votes on Israeli settlements

Champion Briefs 111


AFF: Judicial Legitimacy AC Jan/Feb 2018

Plea deals are allowing public officials to get away with their crimes.

Arbuiso, Charlie. “Preston Is Lucky She Got A Plea Bargain.” Pressconnects. April 27, 2017. Web.
December 10, 2017.
<http://www.pressconnects.com/story/opinion/readers/2017/04/27/preston-lucky-got-
plea-bargain/100989242/>.

Debbie Preston was recently found guilty for “official misconduct” while a public official. She
had been charged with three counts, but she plea-bargained to one charge. Let her have no
doubt that the public knows she was guilty of all three counts, but this “deal” was negotiated
on her behalf to spare the cost of a trial balanced against the penalty. The district attorney
realized that her guilty plea would be enough to punish her with the public humiliation of
admitting to this. Preston admits misconduct charge, gets fine. Ms. Preston seems to have tried
to lie her way through this whole episode with stories about a flood necessitating her using a
credit card that she shouldn’t have (even though she started using the card months before it
started to rain), and she continued to use it after she was told to stop, apparently for many
years. She did this, she was wrong, she got caught, end of story. This trial was not political, as
she claims; it was criminal. She herself is the criminal. She should just apologize to the people of
Broome County for her crimes. She should not be allowed to explain her way out of this. She
broke the law, and she luckily was offered this plea bargain.

Champion Briefs 112


AFF: Judicial Legitimacy AC Jan/Feb 2018

Although defendants have the right to a fair trial, the system is


structured in such a way that it is better for everyone to just plead
guilty.

Lynch, Timothy. “The Case Against Plea Bargaining.” SSRN. 2003. Web. December 10, 2017.
<https://ssrn.com/abstract=511222>.

Justice Hugo Black once noted that, in America, the defendant”has an absolute, unqualified
right to compel the State to investigate its own case, find its own witnesses, prove its own facts,
and convince the jury through its own resources. Throughout the process, the defendant has a
fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’”
By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.
Given the Fifth Amendment’s prohibition of compelled self-incrimination and the Sixth
Amendment’s guarantee of impartial juries, one would think that the administration of criminal
justice in America would be marked by adversarial trials — and yet, the opposite is true. Fewer
than 10 percent of the criminal cases brought by the federal government each year are actually
tried before juries with all of the accompanying procedural safeguards noted above. More than
90 percent of the criminal cases in America are never tried, much less proven, to juries. The
overwhelming majority of individuals who are accused of crime forgo their constitutional rights
and plead guilty. The rarity of jury trials is not the result of criminals who come into court to
relieve a guilty conscience or save taxpayers the costs of a trial. The truth is that government
officials have deliberately engineered the system to assure that the jury trial system established
by the Constitution is seldom used. And plea bargaining is the primary technique used by the
government to bypass the institutional safeguards in trials. Plea bargaining consists of an
agreement (formal or informal) between the defendant and the prosecutor. The prosecutor
typically agrees to a reduced prison sentence in return for the defendant’s waiver of his
constitutional right against selfincrimination and his right to trial. As one critic has written, “The
leniency is payment to a defendant to induce him or her not to go to trial. The guilty plea or no
contest plea is the quid pro quo for the concession; there is no other reason.”

Champion Briefs 113


AFF: Judicial Legitimacy AC Jan/Feb 2018

Prosecutors even admit that they coerce the defense to waive their
rights and just plead guilty, even if they are innocent.

Lynch, Timothy. “The Case Against Plea Bargaining.” SSRN. 2003. Web. December 10, 2017.
<https://ssrn.com/abstract=511222>.

Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense
lawyers. But is it proper for a government thatis constitutionally required to respect the right to
trial by jury to use its charging and sentencing powers to pressure an individual to waive that
right? There is no doubt that government officials deliberately use their power to pressure
people who have been accused of crime, and who are presumed innocent, to confess their guilt
and waive their right to a formal trial. We know this to be true because prosecutors freely
admit that this is what they do.

Champion Briefs 114


AFF: Judicial Legitimacy AC Jan/Feb 2018

Bordenkircher v. Hayes proves the injustices in the criminal justice


system with plea bargaining.

Lynch, Timothy. “The Case Against Plea Bargaining.” SSRN. 2003. Web. December 10, 2017.
<https://ssrn.com/abstract=511222>.

Paul Lewis Hayes, for example, was indicted for attempting to pass a forged check in the
amount of $88.30, an offense that was punishable by a prison term of two to 10 years. The
prosecutor offered to recommend a sentence of five years if Hayes would waive his right to trial
and plead guilty to the charge. The prosecutor also made it clear to Hayes that if he did not
plead guilty and “save the court the inconvenience and necessity of a trial,” the state would
seek a new indictment from a grand jury under Kentucky’s “Habitual Criminal Act.” Under the
provisions of that statute, Hayes would face a mandatory sentence of life imprisonment
because of his prior criminal record. Despite the enormous pressure exerted upon him by the
state, Hayes insisted on his right to jury trial. He was subsequently convicted and then
sentenced to life imprisonment. On appeal, Hayes argued that the prosecutor violated the
Constitution by threatening to punish him for simply invoking his right to a trial. In response,
the government freely admit- ted that the only reason a new indictment was filed against Hayes
was to deter him from exercising that right. Because the indictment was supported by the
evidence, the government maintained that the prosecutor had done nothing improper. The
case ultimately reached the U.S. Supreme Court for a resolution. In a landmark 5–4 ruling,
Bordenkircher v. Hayes, the Court approved the prosecutor’s handling of the case and upheld
the draconian sentence of life imprisonment. Because the 1978 case is considered to be the
watershed precedent for plea bargaining, it deserves careful attention. The Hayes ruling
acknowledged that it would be “patently unconstitutional” for any agent of the government “to
pursue a course of action whose objective is to penalize a person’s reliance on his legal rights.”
The Court, however, declined to overturn Hayes’s sentence because he could have completely
avoided the risk oflife imprisonment by admitting his guilt and accepting a prison term of five
years. The constitutional rationale for plea bargaining is that there is “no element of
punishment or retaliation so long as the accused is free to accept or reject the prosecutions
offer.”

Champion Briefs 115


AFF: Judicial Legitimacy AC Jan/Feb 2018

Individuals are pressured to accept a plea as opposed to facing the


wrath of government and risking trial by jury.

Lynch, Timothy. “The Case Against Plea Bargaining.” SSRN. 2003. Web. December 10, 2017.
<https://ssrn.com/abstract=511222>.

Plea bargaining rests on the constitutional fiction that our government does not retaliate
against individuals who wish to exercise their right to trial by jury. Although the fictional nature
of that proposition has been apparent to many for some time now, what is new is that more
and more people are reaching the conclusion that it is intolerable. Chief Judge William G. Young
of the Federal District Court in Massachusetts, for example, recently filed an opinion that was
refreshingly candid about what is happening in the modern criminal justice system: []Evidence
of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by
jury is today stark, brutal, and incontrovertible.… Today, under the Sentencing Guidelines
regime with its vast shift of power to the Executive, that disparity has widened to an incredible
500 percent. As a practical matter this means, as between two similarly situated defendants,
that if the one who pleads and cooperates gets a four-year sentence, then the guideline
sentence for the one who exercises his right to trial by jury and is convicted will be 20 years.
Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the
right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in
this District are plummeting due to the simple fact that today we punish people— punish them
severely — simply for going to trial. It is the sheerest sophistry to pretend otherwise.[“]

Champion Briefs 116


AFF: Judicial Legitimacy AC Jan/Feb 2018

Those who do not accept pleas from prosecutors and take their
chances in court only find that the prosecution will respond with
additional charges out of spite.

Lynch, Timothy. “The Case Against Plea Bargaining.” SSRN. 2003. Web. December 10, 2017.
<https://ssrn.com/abstract=511222>.

First, everyone acknowledges that the state may not punish or penalize a person for simply
invoking a right that is supposed to be guaranteed under the Constitution. And yet, this is
precisely what the government does with plea bargaining. For example, every month police
officers in Washington, D.C. encounter tourists who are carrying handguns. The tourists are
unaware of the District’s strict laws against handgun possession. They regularly surrender
handguns to police officers who are supervising metal detectors at museums around the
capital. When the tourists openly surrender their firearms, they mistakenly believe that they
are doing nothing illegal. The gun is then confiscated and the tourist is arrested. If a tourist
agrees to forgo a trial and plead guilty, prosecutors do not request jail time. However, if a
tourist were to seek a jury trial, prosecutors would respond with additional charges, such as
possession of illegal ammunition (conceivably, a count for each bullet in the pistol chamber).
Not surprisingly, 99.9 percent of the tourists decide to plead guilty.

Champion Briefs 117


AFF: Judicial Legitimacy AC Jan/Feb 2018

Alabama public official receives slap on the wrist plea deal for crimes
that would have amounted to 50 years in prison.

, Yellowhammer News. “Former Alabama Lawmaker Enters Plea Bargain With U.S. Attorneys On
Bribery And Fraud Charges.” Yellowhammer News. June 23, 2017. Web. December 10,
2017. <http://yellowhammernews.com/politics-2/former-alabama-lawmaker-enters-
plea-bargains-with-u-s-attorneys-on-bribery-and-fraud-charges/>.

According to U.S. Attorney’s press release, an FBI investigating a has led to bribery and fraud
charges against former Alabama House Member. 57-year-old Oliver Robinson, a Democrat from
Birmingham, entered a plea agreement which includes his admission of guilt to the charges and
his promise to “never again to seek elected office and pledges to pay restitution and
forfeiture.”The case was the result of a multi-agency investigation in which the lead
investigators were Acting U.S. Attorney Robert O. Posey, FBI Special Agent in Charge Roger
Stanton, and Internal Revenue Service, Criminal Investigation, Acting Special Agent in Charge
James E. Dorsey. They said the former Alabama lawmaker “accepted bribes from a Birmingham
lawyer and an Alabama coal company executive in exchange for advocating their employers’
opposition to EPA actions in North Birmingham.” The report goes on to explain that Posey
received a “valuable contract between the Birmingham law firm Balch & Bingham and the
Oliver Robinson Foundation to influence and reward Robinson for using his position as a
member of the Alabama House of Representatives, vice-chairman of the Jefferson County
Legislative Delegation, and an elected representative of citizens of Birmingham to pressure and
advise public officials to oppose EPA’s prioritization and expansion of a North Birmingham EPA
Superfund site.” Posey said, “This case gets at the heart of public corruption in Alabama…Well-
funded special interests offer irresistible inducements to public officials. In exchange, the
officials represent the interests of those who pay rather than the interests of those who vote.
Here a public official betrayed his community to advocate for those who polluted their
neighborhoods.”Stanton said, “As a result of Robinson’s greed, he sold his office and betrayed
the public’s trust for personal gain…Robinson’s case is a prime example of why public

Champion Briefs 118


AFF: Judicial Legitimacy AC Jan/Feb 2018

corruption remains the FBI’s top criminal investigative priority, and why my office established a
public corruption tip line.” And Dorsey added, “Elected officials take an oath to serve the
community. Instead of helping the community, Robinson was enriching himself at the expense
of the taxpayers who elected him to serve. IRS Criminal Investigation is committed to tracing
financial transactions to ensure that those who engage in these illegal activities are brought to
justice.” Mr. Robinson represented Alabama’s House District 58 from 1998 before resigning in
the fall of 2016. The U.S. Attorney’s press release also said the charges include “fraud charges
connected to campaign contributions and to contributions that Robinson solicited for events he
sponsored. The final count in the information charges Robinson with tax evasion for the 2015
calendar year.” The background of this story is that an area of North Birmingham that includes
Harriman Park, Fairmont, and Collegeville, and that was later expanded to include Tarrant, and
Inglenook was found to have high levels of pollution. These pollutants include arsenic, lead, and
benzo(a)pyrene. As a result, the Environmental Protection Agency (EPA) designated this area as
a Superfund site referred to as “35th Avenue Superfund Site.” The report says that in 2013, the
EPA told five companies they could be responsible for this pollution, which could lead to “tens
of millions of dollars in cleanup costs and fines. A year later, in the fall of 2014, the EPA added
the 35th Avenue Superfund site to its National Priorities List.”The U.S. Attorney’s media release
says that the Birmingham law firm of Balch & Bingham represented Drummond and its
subsidiary ABC Coke, which was one of the five companies the EPA named as having potential
responsibility for the 35th Avenue Superfund site. A partner at the law firm helped coordinate
ABC Coke’s response to the EPA. As part of that effort, the U.S. Attorneys say the lawyers and
their client formed a tax-exempt corporation called “Alliance for Jobs and the Economy” to
raise money to help fund their response to the EPA. The report says their efforts included
“working to prevent EPA from listing the 35th Avenue site on the National Priorities List and
expanding the Superfund site into Tarrant and Inglenook.” The report continues, stating: The
plan included advising residents of North Birmingham and public officials to oppose EPA’s
actions. As part of the overall strategy, Balch & Bingham paid Robinson, through his non-profit
foundation, to represent Balch & Bingham’s and its clients’ interests, exclusively, in matters
related to EPA’s actions in North Birmingham. Over the course of the contract in 2015 and

Champion Briefs 119


AFF: Judicial Legitimacy AC Jan/Feb 2018

2016, Balch & Bingham paid $360,000 to the foundation.In exchange for the payments,
Robinson appeared before the Alabama Environmental Management Commission and said he
was “really here today to try to protect the residents of north Birmingham.” He said, “[T]he
thing that gets me and what is in the process of hurting the residents in that area is that the
EPA has included five other corporations in on this process, but there have been no reports
stating that these individuals are culpable in any way. And where that hurts the residents is the
fact that we will have decades of litigation that will occur because of these five companies
being added.” In exchange for these payments, the report says Robinson asked the Alabama
Environmental Management Commission (AEMC) “to help narrow the list of potentially
responsible parties if there were no reports or tests implicating the corporations. Concluding,
Robinson told the AEMC that if the areas of North Birmingham are designated as a Superfund
site or listed on the NPL, the residents are ‘considered to live in a dump and nothing can
happen there until it’s either cleaned up and after that, it will take tremendous investment to
get it to move forward.’” Additionally, the U.S. Attorney said “Fraud charges brought against
Robinson outside of the bribery conspiracy include two counts of wire fraud for spending
$17,783 of campaign contributions on personal items unrelated to his legislative campaigns.
The final wire fraud count charges Robinson with soliciting money from corporations,
representing he would use it to publish a magazine or to defray costs for an annual Partnering
for Progress Business Conference or the annual Alabama Black Achievers Awards Gala, which
the Oliver Robinson Foundation sponsored. Robinson spent at least $250,000 of those
contributions on personal items unrelated to the magazine or the annual events, according to
the charges. The press release concludes by stating the maximum penalty for conspiracy is five
years imprisonment and a $250,000 fine. The maximum penalty for bribery is 10 years
imprisonment and a $250,000 fine. The maximum penalty for each count of wire fraud is 20
years imprisonment and a $250,000 fine. The maximum penalty for tax evasion is five years
imprisonment and a $100,000 fine, together with the costs of prosecution.”

Champion Briefs 120


AFF: Judicial Legitimacy AC Jan/Feb 2018

By making this pleading guilty for one misdemeanor, former city


official avoids two separate felony charges dealing with the flint
water crisis.

Fonger, Ron. “Former City Official Takes Plea, Third To Make Deal In Flint Water Crisis.” Mlive
News. November 28, 2017. Web. December 10, 2017.
<http://www.mlive.com/news/flint/index.ssf/2017/11/former_flint_water_official_pl.ht
ml>.

FLINT, MI -- The city’s former utilities administrator has struck a plea deal with prosecutors,
becoming the third of 15 Flint water crisis defendants to agree to cooperate in other pending
cases, including those against officials inside Gov. Rick Snyder’s cabinet. Daugherty Johnson,
Flint’s former utilities administrator, pleaded no contest Tuesday, Nov. 28, to a misdemeanor
public records charge rather than facing two felony charges -- false pretenses and conspiracy to
commit false pretenses. Johnson pleaded no contest to failing to furnish water documents to a
Genesee County Health Department employee investigating a possible connection between
Flint water and Legionnaires’ disease outbreaks. He is scheduled to return to court in May for
sentencing, facing up to one year of imprisonment or a fine of not more than $1,000. By making
the deal, Johnson avoids a Dec. 5 preliminary examination on the felony charges in Genesee
District Court. “The cooperation and assistance Mr. Johnson has given … has been paramount
to cutting open the center of this onion,” special prosecutor Todd Flood told Judge Nathaniel
Perry. Johnson, 48, declined to comment after his appearance. The original charges against him
were tied to his role in a process that led to the issuance of bonds to pay for a portion of the
Karegnondi Water Authority pipeline project. Prosecutors have said that city and state officials
were only able to borrow millions to pay for a share of the KWA pipeline by claiming the funds
would be used to clean up of a lime sludge lagoon where by-products of water treatment were
dumped. A state waiver, required because of Flint’s financial emergency at the time, was issued
by the Michigan Department of Treasury even though a clause in the state’s Home Rule City Act
only allowed for borrowing in cases of “fire, flood, or other calamity.” Prosecutors contend that

Champion Briefs 121


AFF: Judicial Legitimacy AC Jan/Feb 2018

a 15-page Statement of Purpose for an upgrade of Flint’s water treatment plant required the
city to use the Flint River as an interim water source and the treatment plant as the sanitizing
and distribution center. Charges against Johnson claimed he pressured employees of the plant
to get the treatment facility in working order before April of 2014, the time that was targeted
for the city to begin using the Flint River for drinking water. Prosecutors said Johnson and
former Flint Department of Public Works Director Howard Croft helped former emergency
managers Gerald Ambrose and Darnell Earley restart the city’s water treatment plant for the
first time in decades despite warnings from others that it and the employees working at the
plant were unprepared. “When the deadline closed in, rather than sound the alarm, the
defendants allegedly ignored warnings and test results and shut off the pipes pulling clean
water from Detroit, and turned on the Flint River valves,” a statement from the Michigan
Attorney General said at the time Johnson was charged in December 2016.
*Ellipsis from source

Champion Briefs 122


AFF: Judicial Legitimacy AC Jan/Feb 2018

Plea bargaining forces those who are innocent to plead guilty


anyways out of fear.

, The Economist. “The Troubling Spread Of Plea Bargaining From America To The World.”
Economist. November 09, 2017. Web. December 10, 2017.
<https://www.economist.com/news/international/21731159-tool-making-justice-
swifter-too-often-snares-innocent-troubling-spread>.

A PROTEST in Madrid about the cost of the pope’s visit in 2011, when Spain’s economy was
moribund, was not the first Flavia Totoro had attended. Marching alongside families, she was
unconcerned about her safety. But after an altercation with police she and seven others were
arrested. She was charged with assaulting an officer. Just before her trial she was offered the
chance to plead guilty, in which case she could avoid a possible 18-month prison sentence and
merely pay a fine. If all the defendants pleaded guilty, none would be imprisoned, the
prosecutor said. But if she insisted on going to trial, the others would go, too. Unwilling to
jeopardise other people’s freedom, she accepted, though she still maintains she was innocent
and could have proved it in court. In plea-bargaining, as the promise of a lesser penalty in
return for a guilty plea is commonly known, prosecutors offer to drop some charges, to replace
the original charge with a less serious one or to seek a lower sentence. It has long been central
to America’s criminal-justice system. But over the past three decades it has spread across the
world. A study of 90 countries by Fair Trials International, a campaigning group, found that in
1990 just 19 used some form of plea-bargaining. Now 66 do.

Champion Briefs 123


AFF: Judicial Legitimacy AC Jan/Feb 2018

The supreme court gave the seal of approval to plea bargaining under
the pretense it would not be used to pressure innocents, but our
current reality states otherwise.

, The Economist. “The Troubling Spread Of Plea Bargaining From America To The World.”
Economist. November 09, 2017. Web. December 10, 2017.
<https://www.economist.com/news/international/21731159-tool-making-justice-
swifter-too-often-snares-innocent-troubling-spread>.

When America’s Supreme Court gave its seal of approval to plea bargains in 1970, it did so on
the understanding that they would not be used to press innocent defendants falsely to admit
guilt. But since then a series of miscarriages of justice and new psychological research suggest
that, all too often, that is what happens. In 2002 Brian Banks, a high-school football player, was
accused of rape and kidnapping by an acquaintance. After his arrest, prosecutors offered him
the chance to plead guilty and spend just a few years in jail, or to go to trial where he could face
up to 41 years if convicted. He took the deal. After he was released, his alleged victim contacted
him. They met and, in a conversation which he recorded, she admitted that she had invented
the incident. In 2012 he was exonerated. Mr Banks is not alone in pleading guilty to a crime he
did not commit. Of the 149 Americans absolved of crimes in 2015, 65 had pleaded guilty. The
Innocence Project, an organisation that uses DNA evidence to re-examine convictions, has
proven the innocence of 300-odd people, most of them convicted for rape and murder. At least
30 had pleaded guilty. According to the National Registry of Exonerations, a collaboration
between several law schools, a quarter of Americans cleared of murder between 1989 and
2012 had confessed. But such figures only hint at the scale of the problem. Often, plea bargains
are conditional on giving up the right to challenge a conviction later. And exoneration efforts
focus on serious crimes, where sentences are long and there is more likely to be forensic
evidence. Researchers are starting to demonstrate how common false confessions are likely to
be. In a study in 2013 by Lucian Dervan of the Belmont University College of Law, together with
Vanessa Edkins, a psychologist at the Florida Institute of Technology, students were asked to

Champion Briefs 124


AFF: Judicial Legitimacy AC Jan/Feb 2018

solve logic problems, first in a team and then alone. An accomplice of the researchers asked
half the participants for help on the second set. All were then accused of cheating and offered a
“plea bargain” to avoid penalties that could include losing the payment for participation and
having their supervisors notified. Nearly 90% of those who had aided the accomplice confessed.
But so did a majority of those who were innocent. Mr Dervan is now running studies in Japan,
which is introducing plea-bargaining, and South Korea, which may do so. Japan, where criminal
suspects may be held for 23 days without charge, often with only minimal contact with a
lawyer, perhaps deprived of sleep, is already worryingly good at extracting confessions. Plea
bargains are being brought in as part of the horse-trading over a larger criminal-justice reform,
in which prosecutors opposed to routine recording of interrogations have managed to limit it,
in exchange for formal recognition of plea-bargaining and other aids to investigating complex
crimes.

Champion Briefs 125


AFF: Judicial Legitimacy AC Jan/Feb 2018

Former Governor of Alabama avoids any jail time with plea deal when
he would have faced over forty years.

Brownlee, Chip. “Here’s A Closer Look At Robert Bentley’s Plea Agreement, Sentence - Alabama
Political Reporter.” Alabama Political Reporter. April 11, 2017. Web. December 10, 2017.
<http://www.alreporter.com/2017/04/11/heres-a-closer-look-at-robert-bentleys-plea-
agreement-sentence/>.

The scene was set: Alabama’s Legislature was ready to conduct its first impeachment hearings
since 1915. The House’s special counsel had released his bombshell report. He had begun
presenting his case. But then it turned out all to be for nothing. Or was it? Instead of being
impeached, Gov. Robert Bentley decided to bow out on his own accord, on his own terms. Well,
kind of. Instead of being impeached, Bentley pleaded guilty to two misdemeanor campaign
finance violations and submitted his resignation, allowing Lt. Gov. Kay Ivey to become governor.
“I think this states to all of us that no one is above the law, even the governor,” said Ellen
Brooks, the acting attorney general who has been overseeing Bentley’s case since February. “It
states to us that you must do what is right.” The impeachment hearings were real, they weren’t
just a show, sources close to the committee tell APR. If Bentley had not resigned, the
committee would have continued on through the process and likely would have voted to make
a recommendation for Bentley’s impeachment. They were real, but they weren’t just about
impeachment. They were about getting Bentley gone. Several lawmakers believed Bentley
would only resign if the House actually moved forward with the effort to impeach him. And
they were right. By the time House Judiciary Committee Chairman Mike Jones, R-Andalusia,
gaveled in the committee for its first day of hearings, the governor agreed to step down, as APR
reported first early Monday morning. The rest of the day was spent finalizing the deal with
officials from the Alabama Attorney General’s Special Prosecutions Division and Brooks herself.
Meanwhile, Jack Sharman, the committee’s special counsel, explained the separation of powers
to legislators and read the executive summary from his 130-page report into the Governor.
Shortly after returning for lunch, the House Judiciary Committee abruptly ended their hearings.

Champion Briefs 126


AFF: Judicial Legitimacy AC Jan/Feb 2018

The governor was resigning. David Byrne, the Governor’s Office chief legal counsel, had gone to
meet Bill Athanas and Lewis Gillis, two of Bentley’s personal attorneys, at the Montgomery
County Courthouse, where Bentley would sign a plea agreement only a few hours later. The
legal team, on Bentley’s behalf, met with the muscle of the Special Prosecutions Division,
including division chief Matt Hart and Brooks, to get Bentley a good deal in exchange for his
resignation. In fact, they had been meeting over the weekend as well, urging the governor to
take a deal. A tentative deal was reached Sunday night, sources told APR. It wasn’t done,
though, and Bentley had to sleep on it. He woke up the next day defiant but was eventually
coaxed back into resigning by Monday morning around the start of the impeachment hearings.
At about 4 p.m., Bentley was booked into the Montgomery County Jail and charged with the
two crimes. Brooks later said they worked Sunday night into Monday morning. “It became clear
to me that the people of Alabama deserved an end to this,” she said. “Part of our requirement
was that it be done today, that is be completed. This is now over as to this defendant.” In the
end, Bentley agreed to plead guilty to two class B misdemeanor charges — far less than the
four class B felonies referred to the Attorney General’s Office by the Alabama Ethics
Commission, for which Bentley could have potentially been prosecuted. And the sentence was
far more lenient, too. Instead of 2–20 years for each count, Bentley will serve no jail time. “The
misdemeanor punishments were most appropriate for these offenses,” Brooks said. “You have
to look at the big picture.” Montgomery County District Judge Troy Massey, who was assigned
to Bentley’s case at about 4 p.m. on Monday, accepted Bentley’s guilty plea and sentenced him
— in accordance with the plea — to 12 months unsupervised probation and fined him, in total,
about $7,100 in addition to court costs. According to the plea agreement, Bentley will also pay
back $8,912.40 to his campaign committee’s bank account, and then he will turn over the
$36,912 left in his account to the State. He has agreed never to run for office again, has waived
his rights to appeal and has promised to perform 100 hours of community service. “I think the
judge was fair considering the fact that Bentley was 74 years old,” Brooks said. “He has lost his
job. He has lost his church. He has lost his family. Don’t take that to say I feel sorry for him. He
did what he did. Now, he deserves to be called a criminal.” Bentley also agreed to forfeit his
state retirement package and security needs, which Brooks said will save the cash-strapped

Champion Briefs 127


AFF: Judicial Legitimacy AC Jan/Feb 2018

General Fund about $1 million. The two charges around which the plea agreement was based
were related to campaign finance disclosures with the Secretary of State’s Office. On one
charge, Bentley pleaded guilty to failing to report a $50,000 loan he gave himself within the
required 48-hour notice period. The other charge was over Rebekah Mason. Bentley paid
$8,912.40 in the form of a check out of his campaign account to cover Mason’s legal fees. He
will now reimburse all of that back to the state, according to the plea agreement. Toward the
end of his hearing, an emotional Bentley admitted his guilt in front of the court. He said he did
not disagree with anything that had been said in the hearing Monday and when Massey asked
Bentley if he was guilty of the charges, he said only, “Yes sir.” An investigation may be
conducted into Mason or others and their involvement in the Governor’s Office, Brook said
Monday. According to the report from House Special Counsel Jack Sharman, Mason had a
strong grip on policy and political power in the Governor’s Office during her relationship with
Bentley.

Champion Briefs 128


AFF: Judicial Legitimacy AC Jan/Feb 2018

Currently, prosecutors have too much power in the criminal justice


system.

Hoban, Brennan. “The Need For Criminal Justice System Reform.” Brookings Institute. August
30, 2016. Web. December 10, 2017. <https://www.brookings.edu/blog/brookings-
now/2017/08/30/the-need-for-criminal-justice-reform/>.

Clint Smith discussed the role that prosecutors can play in criminal justice reform. He explained
that “prosecutors have a wide range of discretionary power that is often used to put people
away for much longer than they need to be.” He highlighted the fact that, by 2030, a third of
prisoners in the U.S. will be over the age of 55 years, despite research that shows how unlikely
it is that people of that age will commit another crime.

Champion Briefs 129


AFF: Judicial Legitimacy AC Jan/Feb 2018

Plea bargaining is coercive- multiple warrants.

De La Fuente, Alejandra. “Plea Bargaining: Coercion Or Choice?.” Innocence Project of Florida.


January 23, 2013. Web. December 10, 2017.
<http://floridainnocence.org/content/?p=8304>.

Those skeptical of or against plea bargains state it’s a tool used to undermine the sixth
amendment and gives too much power to prosecutors. During sentencing, judges are given
strict guidelines to follow; however, prosecutors are allowed much more freedom. It has been
noted that prosecutors have been found to use threats to pressure defendants into a plea
bargains, especially when the evidence is feeble. Others argue the use of plea bargains in turn
punishes defendants who exercise their constitutional right and proceed to a trial. For example,
in 1963, Henry Alford was indicted on first degree murder charges. Although he plead guilty to
the crime, he was very vocal about his innocence. The plea deal offered him a life sentence in
place of capital punishment. Alford stated on many occasions that he was coerced into a
confession and plead guilty for the fear of a harsher sentence. While Alford’s innocence is
important, his case raised more significant questions. Does fear constitute coercion and do plea
bargains really offer a choice for some defendants? On the other side of the spectrum there are
those who argue no one is forced into taking a plea bargain, and it’s a choice the defendant
must make. However, with the options given to defendants, is it really a choice?A college
student in Florida was accused of cheating on a logic test being administered as part of a
psychological study. She was given two choices. If she confessed to cheating and saved the
university time and money of going to trial in front of the Academic Review Board, she would
lose her right to compensation for participating in the study. However, if she proceeded to trial
and was found guilty, she would lose the compensation, her faculty adviser would be informed
and she would be forced to enroll in an ethics course. Although the loss of compensation was a
great punishment, it was far better than having to take a time consuming ethics course. Though
she was completely innocent, with the options given to her, the student chose to admit to
cheating. What the student didn’t know was she was actually part of a psychological study that

Champion Briefs 130


AFF: Judicial Legitimacy AC Jan/Feb 2018

attempted to recreate why and how an innocent person might plead guilty. The result’s of The
Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence
Problem revealed 56 percent of the innocent participants admitted to cheating. Although the
punishment and the situations aren’t precise to criminal cases, the study puts into perspective
how a persons feels while weighing their options. The study found what most may have
predicted, guilty persons are more likely to plead guilty than innocent persons. However, the
fact that more than half of the innocent participants admitted guilt is a significant find. Most
innocent students chose to avoid the trial and the consequences that may come of it. For 56
percent of the innocent persons, it was more beneficial to admit to cheating, than being found
guilty at trial, even though they didn’t cheat. This is parallel to the criminal cases. Defendants
are “rewarded” for accepting a plea bargains, yet if found guilty are punished for going to trial.
One must ask would the founding fathers – who included the Bill of Rights in the constitution as
a protective measure against the government – consider this justice, a system that gives
criminals the easy way out, and puts innocent people in a tricky predicament.

Champion Briefs 131


AFF: Judicial Legitimacy AC Jan/Feb 2018

Not only is there a clear coercive process to plea bargaining, but an


extreme abuse of power from the prosecutor.

Caldwell, H. Mitchell. “Coercive Plea Bargaining: The Unrecognized Scourge Of The Justice
System.” Catholic University Law Review. 2011. Web. December 10, 2017.
<https://scholarship.law.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&h
ttpsredir=1&article=1003&context=lawreview>.

In implementing the plea-bargaining process, the state, as the prosecutor of crimes, has a
powerful incentive to begin the inevitable negotiating process from a position of strength,
which often results in overcharging.14 Yet whenever a prosecutorial agency files charges that
are disproportionate or misrepresentative of the defendant’s actions, that agency runs afoul of
the ethical guidelines governing prosecutors,15 abuses its prosecutorial power,16 and
compromises the justice system as a whole. However, identifying the shortcomings of the plea-
bargaining power is less problematic than actually discovering sensible and workable solutions
to those problems. Most would agree that coercive plea or sentencing bargaining is wrong. The
rub, of course, is fixing the problem. With that ambitious and perhaps elusive goal in mind, this
Article offers an approach to reduce, if not eradicate, coercive plea and sentence bargaining.

Champion Briefs 132


AFF: Judicial Legitimacy AC Jan/Feb 2018

The coercion embedded in plea bargaining only exacerbates as time


goes on.

Firth, Kristin. “Perceptions Of Coercion In Plea Bargaining.” SSRN. July 11, 2015. Web.
December 10, 2017. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629211>.

Since plea bargaining resolves a vast majority of criminal cases, if it is perceived as coercive that
can be a threat to the perceived fairness of the criminal justice system. In understanding the
coercive dimensions of plea bargaining from a lay perspective, we hope to gain insight into
what might improve overall perception of the criminal justice system’s legitimacy. There are
also potential procedural reasons that a lay perception of coercion in the plea bargaining
system could be harmful. In some cases plea bargains can happen mid-trial. 32 If a jury has
already been involved with a case and then is dismissed because of a plea that they perceive as
coercive, this can be problematic. They may believe their voices no longer matter and feel
negatively about the process.counter to the economic efficiency explanation (i.e. that plea
bargaining is based on the need to save money and time of trials.) Another recently published
study of the origins of plea bargaining16 amplifies this interpretation of what was happening in
U.S. courts from 1780 through 1900. Based on his in-depth case study of the first appearance of
plea bargaining in Massachusetts courts, George Fisher asserts that the law itself fostered the
practice. Combined with the increased professionalization of the office of the prosecutor — a
full-time prosecutor with a caseload of similar types of offences was first instituted then at the
beginning of the nineteenth century — the conditions for increased guilty pleas were set. The
law that fostered plea bargaining was mandatory sentencing, under which the prosecutor
could, in effect, set the sentence himself by arranging a guilty plea to a lesser-included charge
that avoided the highest fines for the highest charge. This occurred first in violations of liquor
laws, but soon spread to cases of homicide because of the mandatory-sentencing structure for
that offence (i.e. whether the case would be prosecuted as a first-degree homicide with a
mandatory death penalty attached, or at a lower level without the possibility of the death
penalty). The prosecutor was able to move into the territory previously reserved for the trial

Champion Briefs 133


AFF: Judicial Legitimacy AC Jan/Feb 2018

court by agreeing not to prosecute further if the defendant would accept the statutorily
required punishment attached to a lesser, agreed-upon charge. Since the sentence was
mandatory, the judge had no discretion to intervene in the agreement; if there was a
conviction, either by confession or after trial, the sentence was pre-determined. Although the
bench at first resisted this arrangement and the legislature investigated the prosecutor who
invented it, they concluded that the practice was not unethical because it was limited to
offences in which the legislative intent in enacting mandatory penalties had been to obtain
certain and swift punishment.

Champion Briefs 134


AFF: Judicial Legitimacy AC Jan/Feb 2018

Meta-analysis proves that there are lay perceptions of coercion in


plea bargaining processes.

Firth, Kristin. “Perceptions Of Coercion In Plea Bargaining.” SSRN. July 11, 2015. Web.
December 10, 2017. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629211>.

The studies seem to show that there is a lay perception of coercion in the plea bargaining
process used by prosecutors. We have shown that simply the idea of a prosecutor negotiating a
plea bargain can seem coercive on its own. Furthermore, we have highlighted some specific
factors that may increase the perception of coercion. A prosecutor can use the threat of a
longer sentence if the case reaches trial as a bargaining chip. When the prosecutor does so it
seems more coercive, as in our scenario where immediately after the plea the prosecutor
indicated he would request a specific sentence at trial. Additionally, when a higher sentence is
being mentioned it seems more coercive. Facts on the defendant’s side can also make the plea
bargain process more coercive. When the defendant knows himself to be innocent the situation
seems more coercive. Also, when the defendant has lower quality attorney representation it
seems more coercive. These latter results are especially interesting because the level of
coercion used by the prosecutor is technically staying constant across these conditions. For
example, if the prosecutor’s actions are coercive when the defendant is innocent, they are also
coercive even if the defendant happens to be guilty. Meanwhile, if there is a perception that
most defendants are guilty42 then somebody campaigning for policy reform might want to
emphasize ideas about the innocently accused accepting pleas bargains.

Champion Briefs 135


AFF: Judicial Legitimacy AC Jan/Feb 2018

Perceptions of coercion delegitimize the criminal justice system.

Firth, Kristin. “Perceptions Of Coercion In Plea Bargaining.” SSRN. July 11, 2015. Web.
December 10, 2017. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629211>.

These four studies surveying lay individuals show that the public broadly perceives at least
some coercive elements within the plea bargaining system. As previously discussed, this poses
potential problems for the continued legitimacy of the criminal justice system – both as it
pertains to the plea bargaining process and the wider criminal justice enforcement and
adjudicative regime. We hope this provides a foundation for further research in identifying
appropriate reforms to plea bargaining and highlights concerns that current and future
prosecutors should be aware of while bargaining with defendants.

Champion Briefs 136


AFF: Judicial Legitimacy AC Jan/Feb 2018

Judges use coercion via pleas to speed up the process- which led to
death of 19-year-old boy.

Klein, Richard. “Due Process Denied.” Hofstra Law Review. 2004. Web. December 10, 2017.
<http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1250&context=schol
arlyworks>.

It is, perhaps, in the criminal courts of our largest cities where judges most commonly fail to
comply with the professional and ethical mandates that they are required to uphold. In the
New York State Supreme Court case cited above,6 the judge made it clear that if the defendant
were to refuse the “for today only” plea offer and choose instead to go to trial, he would, if
convicted, be sentenced to the maximum prison time the law permitted.7 The defendant
responded to the judge: “I’m 19 years old, your Honor …. That is terrible. … That’s terrible.”8
The defendant turned and told his mother, who was weeping as she sat in the courtroom, 9
“Mom, I can’t do it” and jumped to his death out of the window of the sixteenth floor
courtroom.’ 0 The Smith case stands out, and was the object of press coverage, not because of
the coercive tactics of the judge that were designed to achieve a plea,” but because of the
defendant’s subsequent suicide. The “for today only,” “this is a one-time-offer,” “if you don’t
plead guilty you’ll get the max if convicted at trial” style-of-judging is all too common to
warrant tabloid headlines. 12 There was no media coverage at all when another New York State
Supreme Court judge allegedly told the defendant’s counsel: “Tell the defendant that if he
doesn’t take the 15 years to Life, I promise if he is found guilty after trial, I will give him 25 to
Life for the murder and 12-V2 to 25 for the attempted murder, running consecutive.”’3 Over
the years, a pattern has emerged where judges

*Ellipsis from source

Champion Briefs 137


AFF: Judicial Legitimacy AC Jan/Feb 2018

A rejected plea should have no impact on a further trial- but in the


status quo, it does.

Klein, Richard. “Due Process Denied.” Hofstra Law Review. 2004. Web. December 10, 2017.
<http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1250&context=schol
arlyworks>.

Further support for the principle that however disparate the posttrial sentence is from that
which was offered pre-trial, the excessiveness of the sentence imposed after the trial should
not be measured by that which was offered pre-trial, comes from those courts applying
contract theory to the plea bargaining context. 39 The New Jersey Supreme Court determined
that “consistent with contract principles.., a rejected plea should have no impact on sentencing
following a trial., 40 In ruling that the rejection by the defendant of the sentence-deemed-
appropriate during plea negotiations voids that offer “for all purposes,” the court made it clear
that the sentence imposed after trial can be many times greater than that offered earlier.41 To
apply contract theory to a situation where an all-powerful judge is negotiating with a powerless
defendant about how long the judge will send the defendant to prison for is inappropriate.42
The process of negotiation generally implies and assumes relatively comparable positions of
power on each side. The Commentary to the Restatement (Second) of Contracts43 defines
“undue influence” in a way that is certainly applicable to judicially-initiated plea bargaining:
“Undue influence is unfair persuasion of a party who is under the domination of the person
exercising the persuasion or who by virtue of the relation between them is justified in assuming
that that person will not act in a manner inconsistent with his welfare. ‘ 4 Perhaps the
defendant in State v. Williams,45 who “negotiated” his plea with the judge in the judge’s
chambers, best made the point regarding undue influence as he was later attempting to
withdraw his plea: I had no intentions of pleading guilty, but … you invited me into [your]
chambers, you influenced me and pressured me into giving a guilty plea…. Your Honor, since I
originally turned down a plea bargain in the hallway, I can honestly say if you wouldn’t have
taken me in your chambers, I wouldn’t have never pled guilty. Myself being in a powerful

Champion Briefs 138


AFF: Judicial Legitimacy AC Jan/Feb 2018

judge’s chambers, you eroded my ability to make a decision of my own. 46 The bringing of a
defendant into the judge’s chambers is truly bringing the “full force and majesty of [the] office ‘
47 of the judge home to the defendant. Most defendants, however, don’t need to be taken into
chambers to be aware of the “awesome power’ 48 of the judge. The judge sitting on high in his
robes is symbolism enough.49
*Ellipsis from source

Champion Briefs 139


AFF: Judicial Legitimacy AC Jan/Feb 2018

Duncan vs Louisiana proves the arbitrariness of court sentencing and


plea bargains.

Klein, Richard. “Due Process Denied.” Hofstra Law Review. 2004. Web. December 10, 2017.
<http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1250&context=schol
arlyworks>.

To be sure, there is the appearance of arbitrariness when a judge just throws a certain number
of extra years at a defendant who chose to go to trial rather than plead guilty. And it is this
abuse of judicial discretion that the Supreme Court warned of in Duncan v. Louisiana:50
Providing an accused with the right to be tried by a jury of his peers gave him an inestimable
safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or
eccentric judge…. [T]he jury trial provisions in the Federal and State Constitutions reflect a
fundamental decision about the exercise of official power-a reluctance to entrust plenary
powers over the life and liberty of the citizen to one judge ….51 As to those judges who do act
arbitrarily, the criminal justice system would be far better off if they were not quite so crude
about it all. For example, the judge in People v. Young 52 explained to the defendant why he
was getting sentenced to a longer prison term after the trial: “You shot the dice and they just
came up craps. 53 In State v. Peterson,54 there was only a slight deviation from that language
as the trial judge explained to the defendant that he had “rolled the dice in a high stakes game
with the jury, and it’s very apparent that [you] lost that gamble. 55 Somehow, exercising one’s
constitutional right to trial ought not be analogized to a roll of the dice-the imposition of extra
years of incarceration is not quite comparable a penalty as is the dice “coming up craps.” But
for an extreme example of a judge acting arbitrarily, consider the action of a veteran Long
Island judge who had to determine the appropriate sentence for the defendant who had pled
guilty to driving while impaired.56 The judge increased the sentence because the defendant
was wearing jeans, explaining that the fine “would be normally 300 [dollars], but it will be 350
[dollars] because he’s got a pair of jeans on.”,57 But lest anyone think that the defendant was
being punished for wearing jeans, the judge clarified that the extra fine wasn’t punishment, the

Champion Briefs 140


AFF: Judicial Legitimacy AC Jan/Feb 2018

defendant just would have gotten a break if he hadn’t been wearing the jeans.5 8 The judge
didn’t elaborate on what other forms of appearance-overweight, dreadlocked, tatooed-might
also disqualify a defendant from lenient treatment, but did add that “[i]f you show the law
respect, the law will show respect back to you.’ 59
*Ellipsis from source

Champion Briefs 141


AFF: Judicial Legitimacy AC Jan/Feb 2018

Prosecutors are virtually in charge of the sentencing when it comes to


plea bargaining.

Rakoff, Jed. “Http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-


guilty/.” New York Review of Books. November 20, 2014. Web. December 10, 2017.
<http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/>.

But what really puts the prosecutor in the driver’s seat is the fact that he—because of
mandatory minimums, sentencing guidelines (which, though no longer mandatory in the
federal system, are still widely followed by most judges), and simply his ability to shape
whatever charges are brought—can effectively dictate the sentence by how he publicly
describes the offense. For example, the prosecutor can agree with the defense counsel in a
federal narcotics case that, if there is a plea bargain, the defendant will only have to plead
guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and
a guidelines range of less than two years; but if the defendant does not plead guilty, he will be
charged with the drug conspiracy of which his sale was a small part, a conspiracy involving
many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines
range of twenty years or more. Put another way, it is the prosecutor, not the judge, who
effectively exercises the sentencing power, albeit cloaked as a charging decision.

Champion Briefs 142


AFF: Judicial Legitimacy AC Jan/Feb 2018

Proceedings in our criminal justice system are often one sided and
subject to no oversight.

Rakoff, Jed. “Http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-


guilty/.” New York Review of Books. November 20, 2014. Web. December 10, 2017.
<http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/>.

First, it is one-sided. Our criminal justice system is premised on the notion that, before we
deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the
government to its proof and present his own facts and arguments, following which a jury of his
peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is
found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded
approach are embodied in our Constitution, and were put there because of the Founding
Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain
system we have now substituted for our constitutional ideal similarly rigged? Second, and
closely related, the system of plea bargains dictated by prosecutors is the product of largely
secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no
review, either internally or by the courts. Such a secretive system inevitably invites arbitrary
results. Indeed, there is a great irony in the fact that legislative measures that were designed to
rectify the perceived evils of disparity and arbitrariness in sentencing have empowered
prosecutors to preside over a plea-bargaining system that is so secretive and without rules that
we do not even know whether or not it operates in an arbitrary manner.

Champion Briefs 143


AFF: Judicial Legitimacy AC Jan/Feb 2018

Plea bargaining causes defendants who are innocent to plead guilty.

Rakoff, Jed. “Http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-


guilty/.” New York Review of Books. November 20, 2014. Web. December 10, 2017.
<http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/>.

Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by
creating such inordinate pressures to enter into plea bargains, appears to have led a significant
number of defendants to plead guilty to crimes they never actually committed. For example, of
the approximately three hundred people that the Innocence Project and its affiliated lawyers
have proven were wrongfully convicted of crimes of rape or murder that they did not in fact
commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they
did so because, even though they were innocent, they faced the likelihood of being convicted of
capital offenses and sought to avoid the death penalty, even at the price of life imprisonment.
But other publicized cases, arising with disturbing frequency, suggest that this self-protective
psychology operates in noncapital cases as well, and recent studies suggest that this is a
widespread problem. For example, the National Registry of Exonerations (a joint project of
Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged
exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or,
again, about 10 percent) involved false guilty pleas. It is not difficult to perceive why this should
be so. After all, the typical person accused of a crime combines a troubled past with limited
resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective
defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce
his likely time in prison, he may find it “rational” to take the plea. Every criminal defense lawyer
(and I was both a federal prosecutor and a criminal defense lawyer before going on the bench)
has had the experience of a client who first tells his lawyer he is innocent and then, when
confronted with a preview of the government’s proof, says he is guilty. Usually, he is in fact
guilty and was previously lying to his lawyer (despite the protections of the attorney–client
privilege, which many defendants, suspicious even of their court-appointed lawyers, do not
appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by
saying he is guilty when in fact he is not, because he has decided to “take the fall.”

Champion Briefs 144


AFF: Judicial Legitimacy AC Jan/Feb 2018

More transparency is necessary in criminal justice system to prevent


innocent defendants pleading guilty out of fear.

, Fair Trials International. “Plea Bargaining In The US – Why Innocent People Plead Guilty.” Fair
Trial. February 16, 2015. Web. December 10, 2017.
<https://www.fairtrials.org/whyinnocentpeoplepleadguilty/>.

The pressures of trial and in making a choice between accepting an offer and going to trial are
difficult for every defendant. Probably the most extreme examples are when the defendant
could face the death penalty after trial is made a lower pre-trial offer. However, the pressures
are present and the choices extreme even in non-violent and more pedestrian cases. Aaron
Swartz, a young internet activist, with no prior convictions, was charged with several counts of
wire fraud after downloading articles. The prosecutor offered him the choice between going to
trial where he could face over thirty years in prison or taking a plea agreement to six months in
jail. This choice, and the pressures of the trial process, contributed to his committing suicide.
The judge, prosecutor, and defence attorney all have a role to play in ensuring that guilty pleas
are not coerced. In practice, however, it may be impossible to determine whether a defendant
is pleading guilty because they are guilty or whether they are acting out of fear. The choice
between risking conviction at trial and pleading guilty is extremely difficult and for some, the
consequences of having to choose between the two extremes can be devastating. To minimise
the risk of innocent people pleading guilty, a more levelled negotiation table with greater
transparency is necessary.


Champion Briefs 145
A/2: Judicial Legitimacy AC Jan/Feb 2018

Prosecution doesn’t punish those who don’t accept plea deals, merely
punish those who violate the law.

Lynch, Timothy. “The Case Against Plea Bargaining.” SSRN. 2003. Web. December 10, 2017.
<https://ssrn.com/abstract=511222>.

Sandefur argues that, in such cases criminal defendants are not being punished for a refusal to
bargain; they are instead being punished for “violating the law.” According to Sandefur, the
tourists have no right to complain because they have no “right to leniency.” That line of
argument has surface appeal, but it is defective. The logical fallacy of division says that what
may be true for the whole is not necessarily true for the parts. Thus, a prosecutor can indeed
“throw the book” at any given tourist. However, if it came to light that the prosecutor was
targeting, say, Hispanics for harsher treatment, we would know that something was very
wrong. The retort that Hispanic arrestees do not have a “right to leniency” would be an
unsatisfying defense of the prosecutor’s handling of such cases. Plea bargaining tactics fail for
similar, though perhaps more subtle, reasons. Just because the state can throw the book at
someone doesnot mean that it can use its power to retaliate against a person who wishes to
exercise his right to a trial. Sandefur’s defense of plea bargaining repeatedly returns to the idea
that criminal defendants have the “right to make a contract,” as in other free-trade situations.
But plea bargaining is not free trade. It is a forced association. Once a person has been charged
with a crime, he does not have the option of walking away from the state.

Champion Briefs 146


A/2: Judicial Legitimacy AC Jan/Feb 2018

Trump’s “Fake News” propaganda might now be disproven with


public official’s plea deal.

Lambro, Donald. “Lambro: With Plea Bargain And Indictments, Russia Probes Gain Steam.”
North West Herald. November 05, 2017. Web. December 10, 2017.
<http://www.nwherald.com/2017/11/02/lambro-with-plea-bargain-and-indictments-
russia-probes-gain-steam/akcxw50/>.

From the start of the emerging scandal over Russian meddling in last year’s presidential
election, Trump has maintained that the media’s fixation on the story was “fake news.” But the
events of this week provided further evidence that individuals in Trump’s campaign sought
contacts with foreigners who claimed to have connections with high-level Russians in the
Kremlin. Moreover, major U.S. online tech giants like Facebook, Google and Twitter have
acknowledged in congressional testimony that their investigations have revealed a huge
amount of content on their platforms that was produced and disseminated by Russian
operatives. And that the scope of this content was a great deal larger than they had previously
believed. In a blog post this week, Google said for the first time that it has uncovered evidence
of Russian operatives using its platforms to influence American voters and the outcome of the
elections. It said that at least 1,108 videos, containing 43 hours of content, were placed on
YouTube. Twitter also told congressional investigators it found 2,752 accounts that were
produced by Russian operatives and 36,000 bots that sent out tweets 1.4 million times over the
course of the election. All told, the Russians were saturating U.S. platforms on a massive scale
with fake stories, written to mimic divisive social issues that dealt with illegal immigration, the
rising Muslim population and African-American protests over sometimes deadly law
enforcement practices. Facebook told the Senate Judiciary Committee that at least 126 million
of its viewers may have seen this content. Just one Russian operation alone based in St.
Petersburg, for example, posted 80,000 news feed stories targeting American voters that were
seen by an estimated 29 million people. To date, Trump has leveled no complaints about any of
this, repeatedly sticking by his claim, which he tweeted again Monday, “There is no collusion.”

Champion Briefs 147


A/2: Judicial Legitimacy AC Jan/Feb 2018

He has called Russian President Vladimir Putin “a leader,” and the former KGB agent has
returned the compliment by calling Trump “bright and talented.” He has gone so far as to tell
ABC News that Russian troops were not in Ukraine, when all the evidence is to the contrary.
Thus far, Mueller and his army of investigators have yet to reveal any hard evidence that Trump
had anything to do with Moscow’s election-year cyber invasion of America’s biggest social
media networks. But one of the three men charged in the first indictments Monday was former
Trump foreign policy adviser George Papadopoulos, who lied to FBI investigators when asked if
he had contacted foreigners who claimed to have high-level Russian connections. The guilty
plea agreement he signed in October, which was made public Monday, tells of his attempts to
arrange a meeting with Russian officials and the Trump campaign. By striking a plea deal,
Papadopoulos will presumably have plenty to tell prosecutors about whose orders he was
following when he attempted to broker a meeting with Russian agents. Last April 25, he wrote
this to a senior policy adviser for the Trump campaign: “The Russian government has an open
invitation by Putin for Mr. Trump to meet him when he is ready.” In the summer of 2016, a
Trump campaign supervisor told Papadopoulos and another adviser to go ahead and meet with
Russian officials, but that meeting never took place, according to the plea. This week, attorneys
for Papadopoulos said, “We will have the opportunity to comment on George’s involvement
when called upon by the court at a later date. We look forward to telling all of the details of
George’s story at that time.” Meantime, congressional hearings have cracked open Russia’s
sinister cyberwarfare plot, backed and bankrolled by the Kremlin, pushing deeply divisive racial
issues that in the end led to Trump’s election. It is now up to Mueller and his team to unravel all
of this to find out who were the accomplices in the campaign that knew about Moscow’s efforts
to deceive millions of voters. Donald Lambro has been covering Washington politics for more
than 50 years as a reporter, editor and commentator.

Champion Briefs 148


A/2: Judicial Legitimacy AC Jan/Feb 2018

Plea bargaining is not the issue, coercion is.

Caldwell, H. Mitchell. “Coercive Plea Bargaining: The Unrecognized Scourge Of The Justice
System.” Catholic University Law Review. 2011. Web. December 10, 2017.
<https://scholarship.law.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&h
ttpsredir=1&article=1003&context=lawreview>.

By itself, plea bargaining is not the problem. Quite the contrary, it is essential to our judicial
process.78 According to one commentator, it defines “contemporary criminal prosecution.”79
Plea and sentence bargaining are only problematic, as previously set forth, when an accused is
coerced into a so-called bargain for fear of punishment disproportionate to his or her actual
criminal conduct, if any.80 Yet, some persist in painting the entire practice of plea bargaining as
the problem. Detractors maintain that plea bargaining is a product of “laziness,
bureaucratization, overcriminalization, and economic pressure.”81 Although elements of each
may, and do, foster dependence on plea bargaining, it is ultimately a function of a burgeoning
population,82poverty,83 urbanization,84 the prevalence of drugs,85 and the nature of the
adversarial process.86 The contemporary criminal-justice infrastructure simply cannot
accommodate each criminal defendant with a trial.87 Furthermore, even critics of plea
bargaining must acknowledge that some form of bargaining is the norm, even in the most
mundane types of cases.88 Sentence bargaining is one such example. Before defendants agree
to plead to the precise charge filed, they typically strike a bargain with the prosecutor about the
actual length of sentence they must serve.89 To reach this settlement, prosecutors and
defendants have open discussions about the consequences of the bargain, thereby allowing
defendants to be informed when entering their pleas and thereafter receiving their
sentences.90 This arrangement is called sentence bargaining because the charge filed is not in
dispute; rather, the defendant pleads to the filed charge, and the only point in question is the
sentence to be imposed.91

Champion Briefs 149


AFF: Kant AC Jan/Feb 2018

AFF: Kant AC
The Kant affirmative uses Ripstein’s explanation of Kantian political philosophy as a
basis for property rights and punishment. Kantian philosophy believes that we need a unified
will and that is how we establish our private rights; however, our private rights cannot be
ensured without governmental institutions and public assurance. In order to establish
precedence for rights protection, crimes cannot go without being punished. Kant’s political
philosophy dictates that laws provide objective standard for enforcement of rights. Like in
Kant’s moral philosophy, laws must be subject to universality. This position is also known as
being consistent with the omnilateral will.


Champion Briefs 150


AFF: Kant AC Jan/Feb 2018

Private rights are impossible without a “unified and lawgiving will”.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Kant’s characterization of the three defects in the state of nature provides an account of why,
in the absence of a “united and lawgiving will,” conclusive private rights are impossible, and
even the innate right of humanity in your own person is insecure. The arguments also show that
a fully rightful condition must contain a separation of powers between legislative, executive,
and judicial branches, because the resolution of disputes and the enforcement of rights must
be done in accordance with prior law. Kant characterizes the need for a rightful condition as the
“postulate of public right.” Like the other postulates in the Doctrine of Right, it is both the
conclusion of a normative argument and, at the same time, a postulate in Kant’s technical sense
of the term: an application of normative concepts to objects of experience, in this case
governments and their officials. The arguments about the defects establish a negative claim:
private interaction is morally incoherent without a public standpoint created through
institutions. This chapter develops Kant’s argument for the corresponding positive claim: a
public standpoint, and so a rightful condition, is possible through institutions. Each of the
defects in the state of nature requires an omnilateral authorization to solve it; solutions to the
general problem of political authority and the problems of enforcement and classification of
particulars are only consistent with the system of equal freedom provided that they are
instances of an omnilateral will. Kant needs to explain how institutions can act omnilaterally.
The first part of this chapter will provide Kant’s solution to that problem, and show that the
postulate of public right can be satisfied.

Champion Briefs 151


AFF: Kant AC Jan/Feb 2018

Governmental institutions are necessary to solve rights violations.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

The second part of the chapter considers a further characterization Kant gives of a rightful
condition in terms of the ideal version of it, which he calls “the idea of the original contract.”
Kant says that the state cannot make a law that the people could not impose on itself. What
work is the idea of self-imposed law doing, and on what basis could the people decide between
potential laws? This part also frames the general issue addressed in the next several chapters,
each of which considers what Kant characterizes as the “effects with regards to rights” that
follow from the nature of the civil union. Each of these reflects an institutional precondition of
omnilateral lawgiving.

Champion Briefs 152


AFF: Kant AC Jan/Feb 2018

The solution to problems of enforcement of rights is through the


omnilateral will.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

In the Preface to The Metaphysics of Morals, Kant concedes that “toward the end of the book I
have worked less thoroughly over certain sections than might be expected in comparison with
the earlier ones, partly because it seems to me that they can be easily inferred from the earlier
ones and partly, too, because the later sections (dealing with public right) are currently subject
to so much discussion, and still so important, but they can well justify postponing a decisive
judgment for some time.”2 In developing Kant’s position in the chapters on public right I draw
on the earlier analyses in private right, from which the arguments might be “easily inferred.” I
have also taken account of more recent discussions of the same issues, both philosophical and
juridical, which remain “subject to so much discussion, and still so important,” two centuries
later.

Champion Briefs 153


AFF: Kant AC Jan/Feb 2018

Public authority provides assurances that private persons cannot.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Kant’s solution to these difficulties is not to find some other principle of private ordering,
because no principle of private ordering can do the job. Instead, he works through the
implications of the idea that “the best constitution is that in which power belongs not to human
beings but to the laws.”11 His basic strategy is to show that a rightful condition can give
authority to laws rather than human beings, so that the actions of particular human beings in
making, enforcing, and applying laws can be exercises of public rather than private power, and
so are instances of an omnilateral will. Institutions can do so because they incorporate a
distinction between the offices they create and the officials carrying them out.

Champion Briefs 154


AFF: Kant AC Jan/Feb 2018

Law provides objective standard for enforcement of rights.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

We have already seen part of the solution in Kant’s claim, considered in the last chapter, that
the incentive provided by a public authority is different from the incentive provided by another
private person, and in his claim that the decision of the court is different from the decision of
your neighbor. Neither of those arguments rests on any claim about the ability of officials to do
anything more than act on their own best judgment, or to take the point of view of the
universe.12 Instead, both arguments focus on the way in which a publicly constituted role
makes the provision of incentives or the exercise of judgment consistent with the rights of
everyone. The legal rule solves the problem of assurance by providing each with the assurance
that others have that incentive to respect everyone’s acquired rights; a legally constituted court
solves the problem of indeterminacy by interpreting objective standards from a standpoint that
is not defined by the views of either party, not merely from the perspective of some other
private party. In so doing, the court acts consistently with the freedom of the parties,
something that neither of them could do on his or her own. The solutions to the problems of
assurance and determinacy incorporate the idea of an official acting within his or her mandate.
An official is permitted only to act for the purposes defined by that mandate. The concept of an
official role thus introduces a distinction between the mandate created by the office and the
private purposes of the officeholder. That distinction shows what it is for laws rather than
people to rule, even though the actual ruling is done by people.

Champion Briefs 155


AFF: Kant AC Jan/Feb 2018

Public officials are precluded from utilizing their states for private
purposes.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Focusing on the executive and judiciary might seem to simply push the same question back: the
claim that lesser officials act for the state when they act within their legal mandates is only
helpful if the legislature that confers those mandates is itself an omnilateral will. But the
distinction between rule by laws and rule by human beings once more maps onto the
distinction between an office and a person occupying it. All that is required for the legislative
will to be omnilateral is for the distinction between public and private purposes to apply to it in
the right way. As I shall now explain, the only public purpose that is relevant is the public
purpose of creating and sustaining a rightful condition. The clue to the application of the
person/office distinction to the legislature is contained in the failure of the private law models
of consent. As a principle of private right, actual agreement regulates interacting persons.
However, in circumstances in which actual agreement is not possible, either because one
person is incompetent to consent, as in the case of children or comatose patients, or because a
person is unavailable to be consulted about particular matters, as in the case of a person who
entrusts his affairs to another, one person can “make arrangements for another” consistent
with right provided that the first does so subject to the formal constraints of relations of status.
First, the person making arrangements must act so as to ensure the ongoing purposiveness of
the one for whom the arrangements are being made, and second, the person making the
arrangements is precluded from using the power to make those arrangements for his own
private purposes. Even the power to ensure the ongoing purposiveness of another person can
only be exercised on terms to which that person could consent; as we saw in Chapter 5, there
are certain arrangements to which a person could not consent, as a matter of right, even if he
found them advantageous. You cannot sell yourself into slavery, even if the proceeds could be
used to care for others whom you care about more than your own freedom; you could not

Champion Briefs 156


AFF: Kant AC Jan/Feb 2018

consent to participate in a public gladiatorial contest even if you were confident you would win,
or if the prospect of your heirs receiving a handsome fee was more important to you than life
itself. You can only make arrangements for yourself that do not allow others to treat you as a
mere means. If you cannot make such arrangements for yourself, no other person could act on
your behalf to make them for you. If a person cannot sell herself into slavery even in the
expectation of a benefit, then parents lack the rightful power to sell their children into slavery,
even if circumstances are such that those children would have a better life or be more likely to
survive as slaves than as free persons.13

Champion Briefs 157


AFF: Kant AC Jan/Feb 2018

Kant’s version of social contract stems from legitimacy of the public


institution to provide a rightful condition subject to law.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Kant’s account of the authority of public institutions shows how the postulate of public right
can be satisfied by actual people filling humanly created offices. People “leave the state of
nature and proceed” with others “into a rightful condition” simply by being subject to laws.26
The postulate of public right lays out the minimal conditions for the existence of a rightful
condition; it can be “explicated analytically from the concept of right in external relations as
opposed to violence,”27 because it contains only the requirement that institutions make, apply,
and enforce laws. In a rightful condition, citizens know where they stand in relation to each
other: each is secured in his or her rights because objects can be acquired and owned, and
disputes resolved consistent with the freedom of all. Kant also gives a further account of a
rightful condition when he argues that every state must be understood, and assessed, in light of
what he calls the “idea of the original contract.” The point of the contract argument is not to
represent the state as the product of voluntary agreement between private wills, but to show
the normative structure through which the exercise of public power is consistent with
individual freedom. Although Kant introduces the term in his discussion of the unilateral nature
of acquisition,28 the full explanation appears in Public Right: The act by which a people forms
itself into a state is the original contract. Properly speaking, the original contract is only the idea
of this act, in terms of which alone we can think of the legitimacy of the state. In accordance
with the original contract, everyone (omnes et singuli) within a people gives up his external
freedom in order to take it up again immediately as a member of the commonwealth, that is, of
the people considered as a state (universi). And one cannot say: the human being in a state has
sacrificed a part of his innate outer freedom for the sake of an end, but rather, he has
relinquished entirely his wild, lawless freedom in order to find his freedom as such
undiminished, in a dependence upon laws, that is, in a rightful condition, since this deÂ
pendence arises from his own lawgiving will.29

Champion Briefs 158


AFF: Kant AC Jan/Feb 2018

Laws that govern must be subject to universality.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Kant’s final qualification suggests that a different principle is at work: “The touchstone of
whatever can be decided upon as a law for a people lies in the question: whether a people
could impose such a law upon itself.”43 In the particular example, the difficulty with imposing a
binding religious creed is not that each person would expect some disadvantage from it, nor
that, taken in the aggregate, people would experience significant disadvantages. Such
advantages or disadvantages could not be assessed a priori. Instead, a binding and enforceable
religious doctrine would conflict with both the right of each person and the right of the people
considered as a collective body. Each person is entitled to decide on his or her own what his or
her purposes will be. That entitlement can be limited to reconcile each person’s purposiveness
with that of the others, but it cannot be limited on material grounds, that is, on the basis of
some particular purpose, such as social stability or religious salvation, that many, or even all,
people happen to share. Material purposes are, in the requisite sense, merely private, no
matter how common they are. Each person is entitled to make what he or she will of what
others say about any matter; any restriction on that entitlement could not be consented to.
There is also a problem for the people considered collectively, for they could not decide in
advance to preclude the possibility of making their condition more rightful; the “vocation” of
human nature “lies in such progress” in the ability of a people to give laws to itself. One
generation could not “conspire” to render the next passive in relation to the laws that govern
them. Both of the uses of the idea of agreement in Kant’s discussion of enlightenment figure in
public right more generally. A state is required to act for public purposes, but prohibited from
acting for private ones, and individual rights constrain the means that the state may use in
pursuit of public purposes. Cast in the vocabulary of agreement, the test of whether the state is
entitled to exercise a class of powers is whether the people must give itself such a power,
whether a public authority having such a power is a necessary condition of the people binding
themselves through law. Each of Kant’s detailed arguments for specific powers follows this
pattern.

Champion Briefs 159


AFF: Kant AC Jan/Feb 2018

Individuals rights constrain public power.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Individual rights also constrain state power through the idea of possible agreement by
restricting the means the state can use in pursuing public purposes to those consistent with
each person’s innate right of humanity. Further limitations can be generated by the systematic
realization of rights, so that the state is also precluded from using means inconsistent with the
possibility of citizens ruling themselves. Cast in the vocabulary of possible agreement, citizens
lack the power to bind themselves to arrangements inconsistent with their own rightful honor,
that is, ones in which they are treated as mere means, and from binding themselves to
conditions in which they are merely passive in relation to the laws that govern them. A citizen
does not have a right against the state that he be in a certain situation, considered apart from
how it came about, only a right that the state not do certain things to him through its official
acts. This restriction parallels the distinction in Private Right between wronging a person and
changing the context in which that person acts. Rather than focusing on the effects of action or
inaction, considered as such, it focuses on the means that are used. The question of whether
agreement is possible thus makes no reference to any matters of advantage. In particular, the
ease or difficulty of keeping a potential agreement is not relevant to whether it is possible; Kant
does not offer a version of Rawls’s idea of the “strains of commitment.” Rawls argues that a
person could not undertake an obligation if he believed he would be unable to bring himself to
carry it out. He argues that people choosing institutions from behind “a veil of ignorance” who
did not know what social positions they would occupy would not agree to legally established
slavery because they would foresee that if they turned out to be slaves, they would be unwilling
to do the bidding of their masters.44 Kant is concerned with the authorization to coerce, so it
cannot matter whether someone would foreseeably lack an internal incentive to conformity
with positive law. If something is wrongful, it can be prohibited, no matter how significant the
contrary inclinations. As Kant observes in his discussion of the so-called right of necessity, the

Champion Briefs 160


AFF: Kant AC Jan/Feb 2018

fact that in sufficiently dire circumstances wrongful conduct could not be prevented by
externally given law does not make that conduct rightful or place it beyond the scope of legal
regulation, even if it makes punishment pointless.45 The foreseen ease or difficulty of
compliance depends on the matter of choice. The argument against institutional slavery cannot
be that rational persons would not take on a burden they expect to have difficulty in meeting,
because questions of right are never questions about burdens at all. Instead, a rightful
constitution could not institute slavery because it cannot make arrangements between private
persons that those persons could not be entitled to make for themselves. If a person cannot
bind him- or herself to a condition of slavery, neither can an official bind that person. No
expected material advantage can override this. Instead of advantage, possible agreement is
limited by each person’s innate right of humanity. Many individual rights are grounded in the
“authorizations” that are “already contained” in the innate right to freedom; political rights are
derived from the idea of the original contract. Freedom of expression follows from the innate
right of humanity authorizing a person “to do to others anything that does not in itself diminish
what is theirs, so long as they do not want to accept it—such things as merely communicating
his thoughts to them, telling or promising them something, whether what he says is true and
sincere or untrue and insincere; for it is entirely up to them whether they want to believe him
or not.”46 The right to say what you think is a reflection of the more general point that no
person has a right that others conduct themselves in ways best suited to his or her preferred
purposes. Short of depriving you of something you already have a right to, I can use my words
as I see fit. Other aspects of right determine the ways in which one person can be wronged by
another’s words. Your right to a good reputation, which Kant argues extends even beyond your
death, is one example. Others include the wrongfulness of fraud and even of speaking in
another person’s name by publishing a copyrighted book without the author’s permission

Champion Briefs 161


AFF: Kant AC Jan/Feb 2018

Individuals cannot be sacrificed for another’s purpose.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Innate right also governs the presumption of innocence and the burden of proof when
someone is accused of wrongdoing. Each person’s right to be “a human being beyond
reproach” can be appealed to “when a dispute arises about an acquired right and the question
comes up, on whom does the burden of proof fall, either about a controversial fact, or if this is
settled, about a controversial right, someone who refuses to accept this obligation can appeal
methodically to his innate right to freedom (which is now specified in its various relations), as if
he were appealing to various bases for rights.”47 Most significantly, innate right includes “a
human being’s quality of being his own master (sui juris),”48 that is, the right not to be used for
the purposes of others. This aspect of innate right means that people could not rightfully give
themselves a law that made some official their master, and so precludes the use of public
power to achieve merely private purposes. It also guarantees freedom of association. Part of
your entitlement to set and pursue your own purposes is the entitlement to choose those with
whom you will make arrangements, subject only to their entitlement to decline to enter into
arrangements with you. The right to independence of the choice of others constrains public
officials because the people could not give themselves a master, that is, someone with
unlimited discretion, or even someone who was empowered to make arrangements for them in
pursuit of his or her own private purposes.4

Champion Briefs 162


AFF: Kant AC Jan/Feb 2018

The justification for punishment does not stem from consequences,


but from a rightful condition.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Both deterrence and retribution are sometimes conceived as extrinsic goals that a system of
punishment should try to achieve: either the reduction in certain kinds of harmful acts or the
matching of suffering to wickedness. Each of these results could conceivably be brought about
in ways other than a legal institution of punishment. Each might also, at least in principle, justify
punishing someone who had not broken any law. The conflict between these instrumentalist
versions of both retribution and deterrence is yet another instance of the antinomy generated
by instrumentalist conceptions of law. Both suppose that the legal institution is in the service of
results that make no reference to legal institutions as such. A Kantian does not need to deny
that both the prevention of crime and the matching of virtue to happiness3 (and so, conversely,
of suffering to wickedness) are valuable results, but neither could justify the use of force except
as authorized by law. Unless the right to punish is inherent in the idea of a rightful condition, no
good consequences could authorize it. If it is inherent, its justification does not depend on
those consequences. A Kantian account must analyze punishment as a fundamental aspect of
legality, and show how each of deterrence and retribution is partially constitutive of a system of
equal freedom under law.

Champion Briefs 163


AFF: Kant AC Jan/Feb 2018

Criminals must be subject to punishment.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

Deterrence and retribution are united through Kant’s view of punishment as something that
can only be done by a superior; he also emphasizes the way in which the distinctive feature of
crime is the way in which the criminal seeks to exempt himself from the law. Bringing these
strands together, I will argue that the criminal exempts him- or herself from public law, and is
liable to punishment simply because public law cannot permit unilateral exemptions.
Punishment is the guarantee that public law is effective in space and time. The deterrent effect
of the prospect of punishment is not something separate from this guarantee. Instead, for
public law to be effective in space and time is for it to provide assurance to all by creating an
incentive to compliance by announcing in advance that attempts to violate it will fail. The threat
of punishment is thus the announcement that public law will remain supreme. The prospective
threat and retrospective applications of punishment are thus not an aim to be pursued and an
extrinsic constraint on its pursuit; they are equivalent.

Champion Briefs 164


AFF: Kant AC Jan/Feb 2018

Enforcement of punishment upholds violated rights.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

The idea that enforcement upholds a right that has been violated reflects the specific sense in
which rights both are and are not vulnerable to wrongdoing. A wrong is, on the one hand, a
violation of a right, and rights are, as reciprocal limits on freedom, themselves vulnerable to
violation. This vulnerability is not merely factual and empirical, although its particulars will
often have a factual and empirical component. In Chapter 2, we considered H.L.A. Hart’s
suggestion that law and morality overlap in their content, prohibiting, for example, crimes
against persons and property, because of the specific facts of human vulnerability and need.10
We saw that for Kant, the basic law of persons and property does not depend on factual
vulnerability to harm or injury, but rather on juridical vulnerability to wrongdoing, that is, to the
violation of reciprocal limits on freedom. Hart’s invulnerable beings could commit batteries
against each other, if one were to touch another without permission. They could also commit
wrongs against the property of others. Hart’s empirical speculations are potentially relevant to
the inclination of such beings to commit crimes, but the ground for prohibiting crime is not that
it is tempting, but that it is wrongful. Rational beings who occupy space are vulnerable to wrong
if they interact.

Champion Briefs 165


AFF: Kant AC Jan/Feb 2018

Enforcement of punishment is necessary to not exclude criminal from


law.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

The possibility of enforcement is crucial to this account, because enforcement hinders


hindrances to freedom, both prospectively and retrospectively. We saw in Chapter 6 that public
law makes private rights conclusive by providing everyone with assurance that others will
comply; it assures everyone that others will have an incentive—a reason for taking an interest
in an action—to comply. A parallel point applies to public right: institutions make public law
effective protectively and prospectively by providing an incentive to conform with law; that is,
they prevent people from violating the law. They do so retrospectively in those cases in which
wrong is committed, and the same law guarantees that the wrongful acts do not change the
rights of their victims or the entitlement of the legal system to govern conduct. The prospective
and retrospective fit together because the external incentive to conform with the law is just the
law’s guarantee that any violation will be legally nothing, its guarantee that rather than earning
the criminal the exemption from the law that he seeks, it will exclude him from the aspect of
the law that he has violated. By announcing in advance that the law will make a wrong fail, the
law also provides a prospective incentive against it by announcing that the criminal will be
burdened in the very way he hopes to succeed. If people were to be so “well disposed and
right-loving” that they had no inclination to violate the law, the incentives provided by law
would be empirically unnecessary, but they would still be legally required. The prospective and
retrospective applications of public law are thus not an aim and a constraint on its pursuit, in
the way that Hart, for example, supposes that the aim of punishment is to discourage crime,
and the principle of its distribution is to make the law a system of individual choices.15 Instead,
the threat is one of retributive punishment—that the supremacy of the law will be upheld.
Announcing penalties in advance enables the law to guide conduct; carrying out the threatened
punishment upholds the law even when it is violated.16 These two aspects of punishment are

Champion Briefs 166


AFF: Kant AC Jan/Feb 2018

not only mutually supporting but mutually constituting. That is why each can be represented as
prior to the other. The retrospective application appears conceptually prior to the prospective,
because it determines the content of the threat that can be made; the prospective application
appears conceptually prior because retrospective application does nothing more than uphold
the law’s entitlement to guide conduct externally

Champion Briefs 167


AFF: Kant AC Jan/Feb 2018

Plea bargaining renders “wild lawless freedom” and shows the laws
guidance of conduct to be ineffective.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

In this section I will begin with the retrospective aspect of punishment. The basic idea is simple,
but each part of it requires explanation: the criminal, through her crime, chooses to exempt
herself from one or more of the prohibitions contained in public law. She thus asserts a form of
what Kant calls “wild, lawless freedom.” The crime does not change the law normatively—
violations do not change what people are entitled to do—but it is a case in which the law’s
guidance of conduct is ineffective. In every case of a crime, the law has partially failed to create
a system of equal freedom by constraining conduct. The punishment restores the supremacy of
the law because it deprives the criminal’s deed of its effect. It does so by turning the criminal’s
maxim—the principle though which he makes “such a crime his rule”17—against him: where he
sought exemption, he receives exclusion, so that the law remains supreme.

Champion Briefs 168


AFF: Kant AC Jan/Feb 2018

Punishment renders the laws effectiveness, without punishment


strong enough to deter harmful action, we will have no assurance out
rights are protected.

Ripstein, Arthur. “Force And Freedom: Kant.” Harvard University Press. 2009. Web. December
10, 2017. <http://www.jstor.org/stable/j.ctt13x0hb0>.

If punishment is nothing more than the effectiveness of law in space and time, Kant’s seemingly
extreme remarks about the need to punish are cast in a new light. Outside of a rightful
condition, only “protective right” is available as a hindrance—you block the aggressor who is
about to interfere with your person, and the prospect of defensive force provides a potential
incentive to refrain from aggression. In a rightful condition, the prospect of remedial force also
provides a possible incentive. Both protective and remedial force are only possible incentives,
because they are fully discretionary on the part of the person exercising them. A person
defending himself may follow the recommendation of ethics and “show moderation” against a
wrongful assailant.43 The person who is entitled to a remedy in accordance with strict right
may listen to conscience and decline to claim it, or think that she would achieve her purposes
better in some way other than reclaiming what is hers. More generally, a private person may
decline to stand on his or her rights for any number of reasons, and so the prospect of
protective or remedial force must be merely possible. The prospect of punishment is different,
because it must provide an incentive if the law is to be effective in space and time. Moreover, it
must provide the incentive systematically¸ and thereby provide everyone with an assurance
that each of the others will act in conformity with their rights. Again, as we saw in Chapter 6,
Kant argues that in private right, you are under no obligation to refrain from interfering with
the property of others unless you have assurance that they will do the same with yours.
Instead, rights to external objects of choice are only consistent in a civil condition, because
“assurance requires omnilateral public enforcement.”44 Assurance under public law mediates
between each person’s en titlement to stand on his or her own rights and the rights of others:
to refrain from the possession of others when they do not do the same allows them to treat

Champion Briefs 169


AFF: Kant AC Jan/Feb 2018

you (and what belongs to you) as mere means in pursuit of their purposes. The only way to
reconcile these is to provide everyone with the assurance that everyone else has an external
incentive for conformity with the rights of everyone else. People may have a variety of
incentives for such conformity, including morality, sympathy, and concern for reputation. Each
of these may lead to acts in conformity with law, but they fail to provide assurance because
their overlap with the requirements of law is contingent in any particular case. Only public law,
with the threat of punishment, provides the requisite assurance, by providing an incentive that
is available even when others fail in a particular case. In his lectures on natural right, Kant
makes the same point, remarking that there are only two possible incentives to conform with
law as such: the ethical incentive of respect for the law as such, and the juridical incentive of
systematic coercion. Only these incentives can lead someone to conform to the law, rather
than to do the things that the law requires.45 Only the availability of public enforcement can
assure others that a person will conform to the law, and so only systematic enforcement can
assure everyone with regard to everyone else.


Champion Briefs 170


AFF: Prison Industrial Complex AC Jan/Feb 2018

AFF: Prison Industrial Complex AC


This affirmative case is arguing that the abolition of plea bargaining is necessary to help
rectify structural, socioeconomic inequalities in the criminal justice system. Plea bargaining
facilitates mass incarceration, which harms people’s life chances if they ever get released, so
this practice can be connected to a larger systemic chain. For reference, the phrase “prison-
industrial complex” was inspired by the farewell speech of President Eisenhower, where he
warned against a “military-industrial complex,” based on the twin problems of a ballooning
defense budget and the privatization of warfare. A quintessential example of the PIC (not a
plan-inclusive counterplan) would be the private prison business, which needs the system to be
constantly filling prison beds to make a profit.
The ethical framework of this aff would be more particular to the impacts, but not
“impact-justified” (as in simply asserting that the impacts are wrong without any impact
calculus). Your impact calculus shouldn’t be some standard normative theory, but instead some
framing like “anti-blackness matters most for our ethical decision-making,” or “need to
understand the intersections of race, class, gender, etc. to best protect rights/the goals of
distributive justice.” You could totally read this aff with a Rawls framework which argues for a
more equal distribution of goods in a democratic society. There are very strong critiques of
Rawlsianism for being rooted in anti-blackness, but Tommie Shelby has written about why
Rawls’ framework can be re-tooled to tackle structural racism (rather than simply assuming
we’ve created a fair and equal democracy via a thought experiment).
The best negative strategy is to either argue for a more pessimistic take on institutions
(they’ll always be oppressive even if you remove one element of them, ex. plea bargaining), or
to argue for major reforms to plea bargaining which can reduce mass incarceration. The
alternative to that kritik could be movements for prison abolition, with the total aim of
decarceration.
The negative shouldn’t have to deny the basic truth claims that the system is unequal
and that mass incarceration is a problem; instead, they should argue that reforms can resolve
the issues with plea bargaining, and that there are independent costs to abolition which cannot
be ignored.

Champion Briefs 171


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining, and crony capitalism are inextricably linked.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

The current system of plea bargaining has corrupted criminal defense law as it stampedes the
constitution, leaving in its wake intimidation and fear. In practice, a defense lawyer’s main job is
negotiating guilty pleas and subsequent sentences, not defending the criminally accused, as
many would believe. Instead, because over 90 percent of criminal cases are resolved through
plea bargains, the economics of defense lawyers depends on pushing paper and maintaining
good relationships with prosecutors; therefore, it is not uncommon for defense attorneys to
allow a client to “take a fall” rather than accuse a prosecutor of misconduct and risk legal
retaliation in future cases. Crony legalism is an essential part of crony capitalism, and nowhere
is this better seen than in the halls of justice.

Champion Briefs 172


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargains fuel private prisons.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

The current system of plea bargaining has corrupted criminal defense law as it stampedes the
constitution, leaving in its wake intimidation and fear. In practice, a defense lawyer’s main job is
negotiating guilty pleas and subsequent sentences, not defending the criminally accused, as
many would believe. Instead, because over 90 percent of criminal cases are resolved through
plea bargains, the economics of defense lawyers depends on pushing paper and maintaining
good relationships with prosecutors; therefore, it is not uncommon for defense attorneys to
allow a client to “take a fall” rather than accuse a prosecutor of misconduct and risk legal
retaliation in future cases. Crony legalism is an essential part of crony capitalism, and nowhere
is this better seen than in the halls of justice.

Champion Briefs 173


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is part and parcel of mass incarceration and its


oppressive consequences.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

Plea bargaining has also become an essential element of both mushrooming prison growth and
the racially disparate state of American prison populations, with the gravity of the burden
falling on the backs of blacks and Latinos. Without plea bargaining, the explosion in prison
populations of color, especially those of for-profit prisons, could never be possible.

Champion Briefs 174


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is an example of how constitutional rights are


sacrificed for a cult of judicial economy.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

American Justice: The Cult of Efficiency and Deception The American judicial system has
become one in which constitutional rights and protections are sacrificed through mendacity
and deception to appeal to a cult of judicial efficiency and economy. The public has been lied
to; plea bargaining does not make society safe or tackle the problem of crime itself. This is
simply another necessary illusion that is funneled into the minds of the populace to rationalize
the commodification of people for profit. The problem with all of this, as the late thinker
Hannah Arendt noted in her New York Review of Books article “Lying in Politics,” is that: “the
trouble with lying and deceiving is that their efficiency depends entirely upon a clear notion of
the truth that the liar and deceiver wishes to hide. In this sense, truth, even if it does not prevail
in public, possesses an ineradicable primacy over all falsehoods.”

Champion Briefs 175


AFF: Prison Industrial Complex AC Jan/Feb 2018

The modern criminal justice system serves the prison-industrial


complex.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

In reality, the current criminal justice system has little to do with public safety, truth-telling or
avoiding falsehoods. Many of those currently incarcerated and languishing in for-profit or
government prisons include nonviolent drug offenders and those accused of parole-violation
technicalities, such as not having a job or missing a parole officer appointment. In reality,
Americans are locked up for crimes, such as writing bad checks or using drugs, that would
rarely, if ever, produce prison sentences in other countries. The United States incarcerates 2.3
million criminals. The number of people on lockdown in America is more than that in any other
nation. The modern criminal justice system primarily serves the interests of the increasingly
privatized and financialized prison-industrial complex, which includes, among others, “tough on
crime” politicians, seedy bail bondsmen, Wall Street-traded for-profit prison corporations, the
drug-testing industry, police and corrections officers, and parole and prison officers’ unions.

Champion Briefs 176


AFF: Prison Industrial Complex AC Jan/Feb 2018

Defendants should crash the CJS by refusing to plea out--that will


strike a major blow to the prison-industrial complex.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

What Would Happen if Defendants Crashed the Court System by Refusing to “Plea Out”? As
long as plea bargains are used as a club to coerce defendants into abdicating their right of the
constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow
exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-
industrial complex, rendering transparent the American political resolve to incarcerate more
and more people even if it means bankrupting their municipalities, cutting education and
devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the
mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can
be said to represent the actus reus, the physical act of carrying out the industrial carceral state.
If plea bargains were eliminated, or even severely monitored and reduced, the states and the
federal government would then be required to carry out their burden under the constitution of
proving the guilt of a criminal defendant in accordance with the law. If this happened, there
would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift
would be an important step in ending the current carceral culture of mass confinement and
cruelty.

Champion Briefs 177


AFF: Prison Industrial Complex AC Jan/Feb 2018

Mass incarceration depends on the cooperation of individuals it seeks


to control--the refusal of plea bargaining can crash this oppressive
system.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

But the question Burton asks remains: could criminal defendants really crash the system if they
demanded their constitutional rights and refused to plea to crimes they did not commit? From
the point of view of American University law professor Angela J. Davis, the answer is yes. The
system of mass industrial incarceration is entirely dependent on the cooperation of those it
seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights,
then there would not be enough judges, lawyers or prison cells to deal with the flood tide of
litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: “if
the number of people exercising their trial rights suddenly doubled or tripled in some
jurisdictions, it would create chaos.”

Champion Briefs 178


AFF: Prison Industrial Complex AC Jan/Feb 2018

Crashing the CJS through the refusal of plea bargaining is key.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

The entire carceral system is riddled with corruption and broken beyond comprehension. Davis
and Burton might be right: crashing the judicial system by refusing to get roughhoused into
phony plea bargain deals could be the most responsible route to cleaning up the courts and
restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent
incarcerated for plea bargains, it is courage we need.

Champion Briefs 179


AFF: Prison Industrial Complex AC Jan/Feb 2018

The system would be overwhelmed if it abolished plea bargaining.

Weil, Danny. “Widespread Use Of Plea Bargains Plays Major Role In Mass Incarceration.” Truth-
out. November 07, 2012. Web. December 08, 2017. <http://www.truth-
out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-major-role-in-
mass-incarceration>.

The literature on plea bargaining has focused on the one-on-one interaction between a
prosecutor and a defendant (Weimer, 1978), and beyond this focus, the broader social
significance of the plea bargaining system has not been widely considered. For instance, what
would happen if no defendants pled guilty? That is, what might the counterfactual thought
experiment of no plea bargaining tell us about the societal impact of the plea bargaining
system? It is clear that prosecutors lack the resources to bring every defendant to trial. Were
defendants not to plea bargain, each case would cost a prosecutor more in resources, which
would influence the ways in which the prosecutor must select which, if any, defendants to
prosecute. Thus, if a sufficient number of defendants refused a guilty plea, it would change the
bargaining interaction for them all. Indeed, the criminal justice system would likely become
overwhelmed. In contemplating eliminating plea bargains, Chief Justice Burger once surmised
that reducing the number of guilty pleas from 90% to 80% would increase demand for judges,
jurors, court reporters, bailiffs, clerks, and courtrooms by 100% (Burger, 1969). Thus, without
plea bargaining, for every defendant to receive the criminal procedure due under the law, the
number of prosecutions would need to drop precipitously.

Champion Briefs 180


AFF: Prison Industrial Complex AC Jan/Feb 2018

The abolition of plea bargaining would mean prosecutors would focus


more energy on socially important cases, like white-collar crime,
instead of small-time marijuana dealers.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

Moreover, prosecutors would need to reassess where they invested their resources. The likely
result would be not only fewer prosecutions, but fewer prosecutions for low-level crimes and
for poor defendants. Currently it is more expensive to prosecute a white-collar embezzlement
case involving a lengthy investigation and trial than a low-level case, like a drug case, that can
be disposed of quickly via a plea bargain. A prosecutor who wants to show she is effective must
win a large number of convictions. As such, she does well to focus on cases that can be easily
disposed of through a plea bargain. However, if the easily disposed of cases were to become
expensive, due to the need for a trial – with the cost of the difficult ones staying about the
same, as they already require a trial or at least an expensive investigation – then a prosecutor’s
incentives would likely shift. She would be incentivized to prosecute cases with greater social
importance, especially when prosecuting those cases costs the same, or only slightly more, than
the less important ones. The definition Savitsky 135 of what constitutes a socially important
case is subject to disagreement. However, in the wake of Enron, Bernie Madoff, and the sub-
prime meltdown, it is difficult to argue that the prosecution of a smalltime marijuana dealer is
more important to society than the prosecution of a white-collar criminal.

Champion Briefs 181


AFF: Prison Industrial Complex AC Jan/Feb 2018

The institution of plea bargaining plays a serious role in rising mass


incarceration.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

All of this is to argue that the institution of plea bargaining must be both an important cause
and a necessary factor in the skyrocketing prison population and the inequality within that
population. Thus, the purpose of this paper is to link the extensive literatures on prison
population and stratification with the literature on plea bargaining, reviewed later in this paper,
to provide a sociological model of plea bargaining. To make this argument, this paper will
present game theoretic rational choice models as well as empirical evidence to support those
models. To do this, I will delineate the argument that plea bargaining is an essential causal
element in the escalating American prison population. In essence, I will argue that plea
bargaining, through its efficiency, and by placing defendants in a multi-player Prisoner’s
Dilemma, works in conjunction with the political will to incarcerate large numbers of people to
drive up the prison population. I will then lay out the argument showing how plea bargaining
has exacerbated underlying inequalities to help foster inequality in the prison system. In
existing plea bargaining models, defendants are treated as largely homogenous. However, this
paper argues that the weaker the bargaining position a defendant is in, the worse bargain he
will be able to make. It further argues that black defendants are in a worse bargaining position
than white ones, and that this differential bargaining power makes black defendants more likely
to make worse bargains than similarly situated white defendants. These differential bargains
aggregate into differential prison populations. Empirical data is presented to support these
arguments, after which I present my conclusions.

Champion Briefs 182


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is integral to mass incarceration.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

Plea bargaining, it is hypothesized here, is integral to the size of the prison population in two
ways. First, plea bargaining lowers the transaction cost of criminal prosecutions, which
combines with political policies favoring large-scale incarceration to drive up the prison
population. Second, beyond a mere lowering of transaction costs, by indirectly pitting
defendants against each other in what is in essence a multi-player Prisoner’s Dilemma,
defendants are induced to take worse bargains than they otherwise might. This second aspect
can be visualized as a standard “Coleman Boat.” Plea bargaining is the macro-level institutional
structure that, through sheer efficiency, funnels large numbers of defendants through the
criminal justice system. While efficiency alone may drive up incarceration rates, the multiplayer
Prisoner’s Dilemma accelerates this increase.

Champion Briefs 183


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is necessary for maintaining the extremely high prison


population in the US--the system can’t achieve maximal efficiency
without it.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

There is likely little debate about the efficiency aspect of plea bargaining and its role in
conviction numbers (see e.g. Easterbrook, 1983). It is widely acknowledged that plea bargaining
became common due to its ability to relieve congestion in the criminal justice system (Fisher,
2003). However, the opposite side of the argument, that plea bargaining is an important factor
in prison crowding, is largely absent from the literature. Just how important plea bargaining is
in this regard can be illustrated with a simple example. Illinois courts disposed of approximately
90,000 felony cases in 2009.7 Trials take on average three to five days.8 Using the low end of
the estimate, taking all of these cases to trial would require more than 1000 judges who did
nothing but hear felony cases 5 days per week, 50 weeks per year. Illinois currently has about
525 judges, who also need to hear civil, misdemeanor, and DUI cases – which, combined,
outnumber felony cases by more than 16 to one. Further, Cook County (Chicago) Illinois pays
jurors US$17.20 per day. If each trial required the empanelment of 15 jurors,9 simply paying
the jurors who serve would cost nearly US$70 million per year. Including the cost of the
perhaps 35 people summoned per case who do not end up serving, the number would increase
to over US$120 million, which is approximately half of the state’s court system’s 2009 operating
budget, or six times the budget of the public defender’s office (Quinn, 2011). It also represents
over seven million lost workdays per year for the jurors, whose salaries for those days are paid
by the employers in many cases. This estimate also does not include the costs of paying travel
expenses and childcare, or for the additional necessary court employees, or of witnesses
missing work. Finally, these are all low estimates. Time can be a very powerful tool in the hands
of a defense attorney (Adelstein, 1978), and 138 Rationality and Society 24(2) defense

Champion Briefs 184


AFF: Prison Industrial Complex AC Jan/Feb 2018

attorneys have every incentive to drag the process out as much as possible. Thus, due to the
expense and time requirements, the simple will to incarcerate large numbers of people is not
sufficient to do so without an efficient system. This makes plea bargaining an absolutely
necessary factor in producing and maintaining the high prison population.

Champion Briefs 185


AFF: Prison Industrial Complex AC Jan/Feb 2018

There are real differences in bargaining outcomes for white and black
defendants.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

In this model, it is not necessarily critical whether there actually is a differential in the criminal
justice system based on race. Instead, what matters is whether there is a differential in
perception based on race. This can work in several ways. First, if a black defendant believes that
his likely prison sentence for a particular infraction is higher than that which a white defendant
believes he will receive, this would constitute such a perceived difference. Second, if there is a
common social belief that blacks receive harsher sentences than whites, then a black defendant
who accepts this conventional wisdom may be willing to accept a worse deal than whites might
accept, as he may assume that his costs are likely to be higher anyway. This suggests that there
may be an effect even in a district without a large racial differential in its criminal justice
system. Even if blacks actually participate in crime at higher levels than whites, and even if the
makeup of the criminal justice system reflects this to an extent (Blumstein, 1982, 1993), this
could still give the impression to a particular black defendant that his chances in the criminal
justice system are comparatively low, leading him to make a worse bargain.

Champion Briefs 186


AFF: Prison Industrial Complex AC Jan/Feb 2018

Black defendants are more likely to take plea bargains, and


comparatively likely to accept worse ones.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

To understand how differences in perception can aggregate in this paper’s model, one might
consider that there are four possible categories in which a defendant can be placed. First, for
the sake of simplicity, a defendant either believes that he is innocent or that he is guilty, or
perhaps that he can be, or cannot be, convicted. Second, he can either believe that he will be
treated fairly by the criminal justice system, or that he is likely to be treated unfairly by the
criminal justice system (Figure 5). If one breaks down which defendants occupy each category,
a pattern emerges. Holding other things equal, black defendants are more likely than similarly
situated white defendants to plea bargain, and they are also likely to reach worse bargains.
Innocent white defendants have little outside incentive to plea bargain. A white defendant who
believes himself to be innocent and has confidence that the criminal justice system will work to
his advantage is unlikely to accept a plea bargain. A guilty black defendant has every incentive
to bargain. He likely believes he will be found guilty at trial and that the system is stacked
against him. As such, any concession he can get in exchange for a guilty plea lowers his
expected sentence from what might be received at trial. However, the two other categories are
more interesting. First, for a guilty white defendant, there are incentives cutting in both
directions. While he considers himself guilty, he also is more likely to be a risk taker. Thus, he
may choose not to plea bargain, hoping for a win at trial. However, even if he does plea
bargain, he is likely able to win greater concessions from prosecutors than a black defendant
who is guilty, because he is in a better bargaining position to begin with. That is, a white
defendant has more faith in the criminal justice system, expecting that he will receive a fair
trial, and thus he believes that it takes more than simply guilt to be found guilty. This belief puts
the white defendant in a relatively strong bargaining position, making it unclear whether he will

Champion Briefs 187


AFF: Prison Industrial Complex AC Jan/Feb 2018

bargain. The case for an innocent black defendant is also not quite clear. As with innocent
whites, an innocent black defendant is also pushed to refuse a bargain due to the expectation
of winning at trial. However, due to the history of poor treatment of black defendants in the
criminal justice system, a black defendant will likely expect the worst. Additionally, there is a
likelihood of risk aversion. How these factors might balance in a particular case is impossible to
predict. However, what is predictable is that an innocent black defendant is more likely than a
similarly situated innocent white defendant to accept a guilty plea. Further, when compared
with an innocent white defendant who does accept a guilty plea, a black defendant is
comparatively likely to accept a worse bargain.

Champion Briefs 188


AFF: Prison Industrial Complex AC Jan/Feb 2018

Empirics prove that Alaska.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

According to Carns and Kruse (1991), under the ban, there was also a disappearance of racial
disparity in the implementation of Alaska’s criminal justice system. They further note that some
attorneys suggested this disappearance was a direct result of the ban. In light of such anecdotal
evidence, in a 1997 report commissioned by the Alaska Supreme Court in order to “identify
concerns about racial and ethnic bias in the state court system and make recommendations”
(Alaska Court System, 1997) the report made the following observation: And, while the
Attorney General’s ban on plea bargaining was credited with eliminating some of the racial
disparities found in earlier studies, these disparities that may have returned since the ban on
plea bargaining was lifted in 1993. The Alaska Legislature should fund a new sentencing study
by the Judicial Council (Alaska Court System: 90). Thus, anecdotal evidence suggests that under
Alaska’s plea bargaining ban, racial disparity in the administration of justice seemingly
“disappeared,” only to reappear once the state lifted the ban.

Champion Briefs 189


AFF: Prison Industrial Complex AC Jan/Feb 2018

Empirics prove racial bias in plea bargaining.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

A more direct analysis focused on modern data (US Department of Justice, 2011) can also help
determine whether racial bias currently exists in the plea bargaining system. By comparing
initial charges brought by prosecutors with bargained for dispositions, a differential in plea
bargainingpower can be revealed. In a race neutral criminal justice system that arrested and
prosecuted defendants of particular races in proportion to theamount of crime committed by
members of those races, black and white drug defendants would be expected to plead guilty
and be sentenced at similar rates. Higher rates of guilty pleas, or higher sentences for
bargainers from one group, would indicate that that group of defendants accepted bargains
more readily and that they accept worse deals. However, as with most criminal justice data,
there is a strong caveat that external factors, such as biased arrest rates, may heavily bias it. For
instance, drug use and drug crime is largely equivalent across races, but prosecution for drug
crime is much higher among blacks than whites. Assuming that within each group there is a
continuum of people from least guilty to most guilty, that the people who are prosecuted are
drawn predominately from the latter group, that strength of case and sentence is correlated,
and that overall rates of prosecution are biased, one would not expect equal plea bargaining
data between races. Instead, in a non-race neutral criminal justice system with race neutral
plea bargaining, where blacks are arrested at higher rates for drug crimes, one would expect
lower sentences and lower plea bargain rates for those black defendants, owing to more
defendants being drawn from the less convictable portion of the Savitsky 159 continuum. Thus,
even similar rates of plea bargaining and sentencing between black and white drug defendants
would indicate bias in the plea bargaining system.

Champion Briefs 190


AFF: Prison Industrial Complex AC Jan/Feb 2018

Overwhelming evidence proves that plea bargaining results in prison


stratification.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

The analysis supports the proposition that blacks do make worse plea bargains for drug crime
than whites, even without the caveats above. The US Department of Justice collects and
publishes data for all felony cases filed in May of every second year in 40 of the 75 most
populous counties in the United States (US Department of Justice, 2011). Filtering this data for
black and white (non-Hispanic) men charged with drug crimes, the mean sentence for blacks is
16.7 months with a standard deviation of 35.5, while for whites the mean is 12.4 months with a
standard deviation of 28.1. The data distribution is not normal, having a heavy bias toward
lower sentences (Figure 7). However, a normalized bar graph of sentences shows that,
sentence-by-sentence, black men are more likely to receive higher sentences than are white
men (Figure 7). This is true even though black defendants were more likely to receive a
sentence of 0. As sentences become more severe, black men are proportionally more highly
represented. Taking into account the unequal variances between groups, the mean sentences
are highly significant (t (7723.477)=7.334, p<0.00001). In the sample, n for black men was
10,627, while n for white men was 3582. While arrests for drug crime are skewed, they are
likely not as skewed as these numbers reflect, as the numbers most likely reflect the
demographics of the urban counties where the data was gathered. While a more thorough
analysis of the data is beyond the scope of this theoretical paper, and while no one piece of
data is likely enough to prove bias in plea bargaining, the weight and preponderance of the
evidence all point to plea bargaining being a factor in prison stratification.

Champion Briefs 191


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is the actus reus of mass incarceration.

Savitsky, Douglas. “Is Plea Bargaining A Rational Choice? Plea Bargaining As An Engine Of Racial
Stratification And Over.” Rationality and Society. 2012. Web. December 08, 2017.
<http://journals.sagepub.com/doi/pdf/10.1177/1043463112441351>.

Conclusion In the United States there is a political will to incarcerate large numbers of people
(Blumstein, 1988). While this political tone is important for understanding the rise in
incarceration rates, without plea bargaining as a mechanism to bring it about, political will
alone would have been unable to create so drastic a change in the prison population. It is
through both efficiency and the multi-player Prisoner’s Dilemma structure of the plea
bargaining system that prison populations have been able to soar in recent decades. In
addition, due to both socio-economic factors and differential subjective appraisals of the
criminal justice system, plea bargaining has also contributed to the highly stratified nature of
the American prison system. In essence, while the political will to incarcerate represents the
mens rea, the mental state, for mass incarceration, plea bargaining is the actus reus, the
physical act of carrying it out.

Champion Briefs 192


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is a technology of racial domination--it’s necessary to


enforce the contemporary racial contract. The aff interrogates the
hollow promises of liberalism.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

Prosecuting the postbellum racial contract The US Constitution, through its philosophical
separation of the legal powers of legislation, interpretation and enforcement, is conventionally
celebrated for eliminating the kind of irresponsible, unaccountable power that Douglass
describes. And yet, writing some 70 years after the framing of the US Constitution, Douglass
identifies the operation of the unchecked power of racially structured domination and
discrimination, not as a regrettable, contingent, accidental deviation from American ideals of
governance, but as the norm – normative ‘not merely in the sense of de facto statistical
distribution patterns but … in the sense of being formally codified’.16 To conceptualize this
contradiction, which substructures both US democracy and the modern project of European
liberalism, political philosopher Charles Mills argues that the modern social contract was
underwritten by a racial contract. The racial contract is ‘a visible or hidden operator that
restricts and modifies the scope of [the social contract’s] prescriptions’, conceptually
partitioning and transforming human populations into ‘white’ persons, who enjoy the privileges
and protections of full citizenship, and ‘nonwhite’ subpersons, who are excluded by a social
ontology of race from enjoying those privileges and protections.17 Mills also argues that the
racial contract ‘is continually being rewritten’, suggesting that even after the period of formal,
de jure white supremacy, the racial contract continues to give differential powers and privileges
to whites and to subordinate and disadvantage non-whites through ‘an illusory color
blindness’.18 The contemporary racial contract, according to Mills, has been installed now as a
subtext, ‘the invisible writing between the lines’ of the facially race-neutral discourses of
mainstream moral and political philosophy, the philosophy of law, and the official contractual

Champion Briefs 193


AFF: Prison Industrial Complex AC Jan/Feb 2018

mechanisms of legal statute and jurisprudence.19 In passing, Mills also mentions that the racial
contract requires enforcement: The coercive arms of the state, which include the police and the
penal system, need to be seen as in part the enforcers of the Racial Contract, working both to
keep the peace and prevent crime among white citizens, and to maintain the racial order and
detect and destroy challenges to it, so that across the white settler states nonwhites are
incarcerated at differential rates and for longer terms.20 I would like to take up this claim,
suggested but undeveloped in Mills’ text, on the enforcement of the contemporary racial
contract. I will argue that in the current era of mass incarceration, the racial contract is
enforced through an arbitrary power functionally analogous and genealogically linked to the
irresponsible power that Frederick Douglass denounced in the mid-19th century. This current
power circulates between the prosecutorial and policing functions of the American system of
penality; it is activated and embodied in the actions of individual prosecutors and police
officers; and it inhabits an unchecked, virtually unaccountable discretionary space carved out,
unremittingly enabled and deferentially sustained by legislative, judicial and executive branches
of government. I will focus here on the prosecutorial function. I will show how the American
plea bargain system is a technology of racial domination. Specifically, it is a form of procedural
entrapment through which meanings and practices of racial domination from previous eras
have been functionally sedimented in the contemporary criminal justice system.

*Ellipsis from source

Champion Briefs 194


AFF: Prison Industrial Complex AC Jan/Feb 2018

Prosecutorial power is the main element of the prison-industrial


complex.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

A pipeline has been constructed in America between working communities of color and the
prison industrial complex – a pipeline whose structural genealogy goes back to the postbellum
Black Codes and convict lease system and more recently involves de-industrialization, the war
on drugs, pervasive ‘tough on crime’ political rhetoric and policy, corporate media construction
and amplification of ‘moral panics’21 around immigration and racialized street crime, and
public disinvestment in education, housing, welfare, and drug and alcohol treatment. Along this
pipeline, prosecutors operate as the main valve. They unilaterally decide which and how many
of the accused are prosecuted and which and how many charges are leveled against them. They
also increasingly determine, through the charges they select, how severely the convicted are
sentenced, as mandatory minimum sentencing legislation, federal sentencing guidelines and
the proliferation of criminal statutes in recent decades have vastly shifted adjudicatory power
from judges to prosecutors.22

Champion Briefs 195


AFF: Prison Industrial Complex AC Jan/Feb 2018

The system is one of pleas, not trials. Defendants are forfeiting their
due process rights, and susceptible to strategic charge-stacking. All
this fuels mass incarceration.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

One of the reasons for this is the widely overlooked or unknown fact, recently voiced by
Supreme Court Justice Anthony Kennedy, that ‘criminal justice today is for the most part a
system of pleas, not a system of trials’.33 Plea bargaining is a process that entails an (often
quick) conversation in a prosecutor’s office or a courthouse hallway between attorneys familiar
with only the basics of a criminal case – with no witnesses present, no full investigation,
testimony, or impartial fact-finding – resulting in a proposed resolution that is then ‘sold’ to
both the defendant and the judge.34 Justice Kennedy asserts that the plea bargaining process –
which he (quite tellingly) describes, following legal scholars, as a form of ‘horse trading’ – ‘is not
some adjunct to the criminal justice system; it is the criminal justice system’.35 As things
currently stand, more than 95 per cent of criminal convictions are the product of closed-door
plea bargains that result in defendants ‘forfeiting’ their Fifth, Sixth and Fourteenth Amendment
rights to due process,36 including, in the majority of cases, ‘waiving’ the right to appellate and
post-conviction review.37 This means that currently more than 95 per cent of those convicted
never see the fair trial by judge or jury that the constitution guarantees them – a state of affairs
that led a federal judge recently to call trial by jury ‘an inconvenient artifact’.38 The cases of
more than 95 per cent of the 7.5 million people under US penal control have not been held to
the high evidentiary standard required to validate a criminal conviction in court. The pre-trial
evidentiary threshold for leveling charges is much less exacting, merely requiring a prosecutor
to persuade a grand jury that there is probable cause to indict. It is not just out of cynicism that
most lawyers repeat the famous expression of former New York Court of Appeal Judge Sol
Wachtler that prosecutors can get a grand jury to indict a ‘ham sandwich’.39 US attorneys

Champion Briefs 196


AFF: Prison Industrial Complex AC Jan/Feb 2018

prosecuted 162,000 federal cases in 2010; grand juries declined to return an indictment in 11 of
those cases.40 Prosecutors admit to routinely engaging in strategic charge-stacking and
overcharging in the plea bargaining process. Since the onset of the era of mass incarceration in
the 1970s, federal and state legislatures have fragmented and multiplied criminal statutes so as
to produce an abundance of overlapping crimes. This proliferation of criminal codes has
constructed a context in which a single unlawful incident typically violates a half-dozen or more
prohibitions.41 Coupled with the parallel adoption during this same period of mandatory
minimum sentencing schemes at state and federal levels, the power to adjudicate guilt and
impose sentences has shifted from the courtroom to the backroom, from judges and juries to
plea bargaining prosecutors and police officers.42 Through the practice of strategic charge-
stacking and overcharging, prosecutors exercise lax double jeopardy doctrine by charging
criminal defendants with an arsenal of overlapping crimes for which they technically have
probable cause, but which they seriously doubt they could ever prove in court (i.e. beyond a
reasonable doubt). The strategy of this practice is to leverage what legal scholars call the ‘trial
penalty’ to compel people to ‘convict themselves’ by pleading guilty to the lesser charge or set
of charges that prosecutors then offer as a more ‘lenient’ alternative to the excessive, tenuous
and redundant stack of charges originally leveled.43 Occasionally, defendants even enter ‘open
pleas’ to all the charges against them, with no sentencing promises

Champion Briefs 197


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is linked with racist sentencing regimes.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

Lest one wonder whether this coercive strategy were an accidental by-product of the
mandatory sentencing regime, consider the following statement of the US Sentencing
Commission, an agency in the judicial branch of government, among whose principal purposes
is ‘to advise and assist Congress and the executive branch in the development of effective and
efficient crime policy’. The commission identifies ‘inducement to plea bargain’ as one of the
rationales for mandatory minimum sentencing legislation. In its 1991 Special Report to
Congress, it stated that ‘the value of a mandatory minimum sentence lies not in its imposition,
but in its value as a bargaining chip to be given away in return for the resource-saving plea from
the defendant to a more leniently sanctioned charge’.44 Justice Kennedy affirmed this design in
a recent Supreme Court ruling, claiming that ‘[defendants] who do take their case to trial and
lose receive longer sentences than even Congress or the prosecutor might think appropriate,
because the longer sentences exist on the books largely for bargaining purposes’.45

Champion Briefs 198


AFF: Prison Industrial Complex AC Jan/Feb 2018

The cost-benefit calculus of a plea bargain is rooted in the attempt by


the prison-industrial complex to obtain a “net return” for convictions.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

A ‘bargain’ typically signifies a mutually advantageous agreement, an agreement between two


parties in which a settlement is reached regarding what each party will give 600 Philosophy and
Social Criticism 42(6) and take, perform and receive in the transaction.46 What is given and
what taken in these plea bargains? According to the conventional, facially neutral account of
the plea bargain contract, prosecutors give leniency to the accused. Specifically, prosecutors
agree to drop a select number of the charges that the criminal code permits – charges, which is
to say, for which probable cause has been established. In exchange for this ‘gift’, the accused
must in turn forfeit his or her Fifth, Sixth and Fourteenth Amendment rights of protection
against self-incrimination, to trial by jury, to confront and cross-examine adverse witnesses, to
present evidence, to compel the attendance of witnesses, and to require prosecutors to prove
guilt beyond reasonable doubt. By inducing defendants to forfeit these rights, district attorneys
(and public defenders) save the resources that would otherwise be required to grant the
accused the trial by jury that the constitution guarantees her or him. As legal scholars Scott and
Stuntz put it, employing the vocabulary of cost-benefit calculus that is the stock-in-trade of the
prison industrial complex: ‘Plea bargaining provides a means by which prosecutors can obtain a
larger net return from criminal convictions, holding resources constant.’47

Champion Briefs 199


AFF: Prison Industrial Complex AC Jan/Feb 2018

Liberalism masks the racial domination which underlies plea


bargaining.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

In actuality, the plea bargain regime is concretely constituted by structural asymmetries and
relations of domination that are masked by the liberal contractual framework. The ‘self-
incrimination’ that results from plea bargains is frequently the product of duress and
unconscionable information deficits wherein defendants (who are often indigent) are deprived
of the opportunity to deliberatively evaluate the ‘exchange’ of risks and penalties into which
they enter. For instance, one formerly incarcerated person with whom I spoke at Project
Rebound in San Francisco was given 10 minutes in court to decide in isolation whether to
accept a plea carrying a 25-year sentence or face a potential life sentence. Such duress is not
exceptional. Also, few criminal defendants (or people in general) realize that felony conviction,
beyond possible prison time, entails a host of ‘collateral consequences’ or civil penalties that
persist even after one has been released from prison. Judges and lawyers are not required to
inform criminal defendants of some of the most important rights and entitlements that
defendants are forfeiting when they plead guilty to a felony (and that they incur whether or not
they spend a day in prison). These civil penalties (technically called ‘civil disabilities’, since
courts have generally declined to interpret that such sanctions, for constitutional purposes, are
actually ‘punishment’) include deportation, and denial of the rights to Heiner 601 vote, serve on
a jury, or be employed in certain occupations, as well as lifetime ineligibility for food stamps,
cash assistance programs, public housing and student loans.51 Legislative and judicial
representatives readily admit that mandatory minimum sentencing schemes are excessive and
thus in violation of the retributive principle of proportional punishment – not by accident, but
by design.52 And they readily admit that such utilitarian design is consequentially to ‘induce’
defendants to forfeit their constitutional rights. In the executive branch, prosecutors routinely

Champion Briefs 200


AFF: Prison Industrial Complex AC Jan/Feb 2018

and openly apply leverage and overlap these excessive sentencing schemes to compel
defendants to ‘self-incriminate’ by ‘pleading out’ of the jury trial system to which they are
constitutionally entitled. And yet, the Supreme Court masks the coercion that undergirds this
system. In the 1978 precedent-setting case that gave ultimate legal sanction to prosecutorial
compulsion in plea bargaining, the Court acknowledged that punishing a person accused of a
crime for exercising his or her right to trial by jury ‘is a due process violation of the most basic
sort, and for an agent of the State to pursue a course of action whose objective is to penalize a
person’s reliance on his legal rights is patently unconstitutional. But’, the Court continues, ‘in
the ‘‘give-and-take’’ of plea bargaining, there is no such element of punishment or retaliation
so long as the accused is free to accept or reject the prosecution’s offer.’53 This was in the
context of a decision ruling it constitutionally legitimate for a prosecutor to threaten someone
with life imprisonment (!) for a minor crime (i.e. forging an $88.30 check) in an effort to strong-
arm him into forfeiting his right to a jury trial.54 How many reasonable people, when faced
with the ‘double bind’ alternative between a potential life sentence and a guaranteed 5-year
sentence, would feel meaningfully free to ‘accept or reject the prosecution’s offer’ and risk
exercising her or his constitutional right to due process?55 Cognizant of systemic racial
disparities, like the steeply higher rate of criminal conviction and disproportionate severity of
criminal sentences meted out to subjects of color,56 reasonable people of color are especially
unlikely to feel the freedom of choice that would distinguish a relation of equal exchange from
a relation of domination

Champion Briefs 201


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is procedural entrapment--oppressed people are


systemically forced by plea bargaining into no-win situations.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

The systematic practice of plea bargaining, I submit, functions massively and predominantly as
a form of procedural entrapment. Poor criminal defendants of color are often caught in an
oppressively dilemmatic, ‘no-win’ situation. Faced with a stack of selectively applied charges
carrying excessively harsh, often deliberately disproportional mandatory sentences, under-
resourced public legal defense, and a trial process that they are reasonably mistrustful will
produce a racially unbiased verdict, they are compelled to self-incriminate. Indeed, they are
arguably (if not literally) already confined, even before they are convicted, sentenced, or
imprisoned.75

Champion Briefs 202


AFF: Prison Industrial Complex AC Jan/Feb 2018

Plea bargaining is procedural entrapment--oppressed people are


systemically forced by plea bargaining into no-win situations.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

The systematic practice of plea bargaining, I submit, functions massively and predominantly as
a form of procedural entrapment. Poor criminal defendants of color are often caught in an
oppressively dilemmatic, ‘no-win’ situation. Faced with a stack of selectively applied charges
carrying excessively harsh, often deliberately disproportional mandatory sentences, under-
resourced public legal defense, and a trial process that they are reasonably mistrustful will
produce a racially unbiased verdict, they are compelled to self-incriminate. Indeed, they are
arguably (if not literally) already confined, even before they are convicted, sentenced, or
imprisoned.75

Champion Briefs 203


AFF: Prison Industrial Complex AC Jan/Feb 2018

Mass refusal of plea bargains will crash the system, because the
system depends on the denial of due process rights.

Alexander, Michelle. “Go To Trial: Crash The Justice System.” The New York Times. March 10,
2012. Web. December 09, 2017.
<http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-
system.html>.

On the phone, Susan said she knew exactly what was involved in asking people who have been
charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking
what we can do. Can we crash the system just by exercising our rights?” The answer is yes. The
system of mass incarceration depends almost entirely on the cooperation of those it seeks to
control. If everyone charged with crimes suddenly exercised his constitutional rights, there
would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of
litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar
Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or
tripled in some jurisdictions, it would create chaos.”

Champion Briefs 204


AFF: Prison Industrial Complex AC Jan/Feb 2018

The refusal of plea bargaining as a protest strategy would crash the


system, forcing policymakers to confront mass incarceration.

Alexander, Michelle. “Go To Trial: Crash The Justice System.” The New York Times. March 10,
2012. Web. December 09, 2017.
<http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-
system.html>.

Such chaos would force mass incarceration to the top of the agenda for politicians and policy
makers, leaving them only two viable options: sharply scale back the number of criminal cases
filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial
“emergency” fiat). Either action would create a crisis and the system would crash — it could no
longer function as it had before. Mass protest would force a public conversation that, to date,
we have been content to avoid.

Champion Briefs 205


AFF: Prison Industrial Complex AC Jan/Feb 2018

Mass incarceration is on the rise, and it.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

As is well documented, the United States has high incarceration rates8 and imprisons more
people than any nation in the world.9 African American and Latino communities suffer even
higher incarceration rates.10 Our incarceration rates increased dramatically in the 1980s and
into the 1990s. Some commentators identify the “war on drugs” as a major contributor to
increasing incarceration rates during this period.11 Others suggest that the increase is due to a
number of factors including changes in criminal codes that increased potential penalties for
crimes across the board, not only for drug crimes.12 One scholar, John F. Pfaff, concludes that
the single biggest reason for increased incarceration rates since 1990 is not an increase in
arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of
felony filings per arrest.13 Pfaff concludes that the reason there are more filings is because
prosecutors are filing a higher percentage of cases and therefore prosecutors are the
predominate reason for mass incarceration.14

Champion Briefs 206


AFF: Prison Industrial Complex AC Jan/Feb 2018

The Racial Contract produces a warped epistemology that precludes


genuine understanding of anti-blackness in a white polity.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

The Court’s willful refusal to entertain evidence that conflicts with its racialized conception of
criminality illustrates a point made by Charles Mills in his contribution to the epistemology of
ignorance in The Racial Contract: [T]he Racial Contract prescribes for its signatories an inverted
epistemology, an epistemology of ignorance, a particular pattern of localized and global
cognitive dysfunctions (which are psychologically and socially functional), producing the ironic
outcome that whites will in general be unable to understand the world they themselves have
made. Part of what it means to be constructed as ‘white’ [i.e. as a political construct, not simply
an ethnic category] … is a cognitive model that precludes self-transparency and genuine
understanding of social realities [related to race].118 These localized and global cognitive
dysfunctions construct ‘a racial fantasyland, a consensual hallucination’ that is ‘in no way
accidental, but prescribed by the terms of the Racial Contract, which requires a certain
schedule of structured blindnesses and opacities in order to establish and maintain the white
polity’ – a white polity that continues to sustain itself through a systematically racist practice of
mass incarceration.

*Ellipsis from source

Champion Briefs 207


AFF: Prison Industrial Complex AC Jan/Feb 2018

The risks of mass refusal may be greater than accepting a plea, but
people should know that exercising their rights can shake the
foundations of an anti-black criminal justice system, even if they must
risk their lives to do it.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

Initially stunned, Alexander ‘launched, predictably, into a lecture about what prosecutors would
do to people if they actually tried to stand up for their rights’, reminding Burton of the risks
involved in facing down the arsenal of excessive and overlapping sentencing schemes that
prosecutors were equipped with. She may also have reminded Burton of the severity of the so-
called ‘trial penalty’ that, according to recent data analysis, makes the sentence following a jury
trial conviction on average 3.5 years more severe than the sentence imposed after a guilty
plea.125 Painfully and personally aware of such risks, Burton replied, ‘Believe me, I know. I’m
asking what we can do. Can we crash the system just by exercising our rights?’ To which
Alexander responded: The answer is yes. The system of mass incarceration depends almost
entirely on the cooperation of those it seeks to control. If everyone charged with crimes
suddenly exercised [their] constitutional rights, there would not be enough judges, lawyers or
prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for
the revolt to have an impact; as the legal scholar Angela J. Davis noted, ‘if the number of people
exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create
chaos.’ Such chaos would force mass incarceration to the top of the agenda for politicians and
policy makers, leaving them only two viable options: sharply scale back the number of Heiner
615 criminal cases filed (for drug possession, for example) or amend the Constitution (or
eviscerate it by judicial ‘emergency’ fiat). Either action would create a crisis and the system
would crash – it could no longer function as it had before. Mass protest would force a public

Champion Briefs 208


AFF: Prison Industrial Complex AC Jan/Feb 2018

conversation that, to date, we have been content to avoid. Burton, who shares Alexander’s
assessment of the risk and potentiality of mass plea refusal, claimed: I’m not saying we should
do it. I’m saying we ought to know that it’s an option. People should understand that simply
exercising their rights would shake the foundations of our justice system which works only so
long as we accept its terms. As you know, another brutal system of racial and social control
once prevailed in this country, and it never would have ended if some people weren’t willing to
risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just
not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to
risk our lives.

Champion Briefs 209


AFF: Prison Industrial Complex AC Jan/Feb 2018

Mass plea refusal is essential to ‘creating a crisis’ for racist


institutions--it’ll throw the whole system of mass incarceration into
disarray and force the government to remedy racial injustice.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

It would be difficult to overstate the strategic advantages and potentially transformative


political repercussions of the mass conscientious plea refusal that Burton incisively proposes. In
the tradition of the civil rights movement practice of non-violent direct action – which, in
Martin Luther King, Jr,’s famous formulation, sought to ‘create a crisis’ in the racist structures of
society by establishing a ‘creative, constructive tension’ that forces society to confront and
correct racial injustices that it has constantly refused to address – the mass assertion of
constitutional due process rights would rapidly and efficiently overwhelm the prosecutorial
regime, throw the system of mass incarceration into crisis, and force the government to take
immediate and substantive action to remedy its racial injustice.126

Champion Briefs 210


AFF: Prison Industrial Complex AC Jan/Feb 2018

Mass plea refusal would strike a blow to the prison-industrial


complex.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

Mass plea refusal could intensify such efforts by striking a major blow to the prison industrial
complex, which, as Angela Y. Davis points out, ‘devours the social wealth needed to address the
very problems [related to employment, education, housing, addiction, mental disorder, etc.]
that have led to spiraling numbers of prisoners’.132 Not even accounting for the multibillion
dollar corporate industry that weaves in and out of the public and private prison systems,133
US criminal justice expenditures grew by over 600 per cent between 1980 and 2006, from $35
billion to $215 billion. Criminal justice system employment (including police, and corrections,
judicial and legal, at federal, state and local levels) doubled during that same period, rising from
1.2 million to 2.5 million people.134 Widespread sentencing mitigation at all or most levels of
existing criminal codes and de-criminalization in the lower-spectrum of existing penal codes
would disemploy and disencumber a significant portion of these people and resources for more
socially generative employment and investment.

Champion Briefs 211


AFF: Prison Industrial Complex AC Jan/Feb 2018

Individual and collective consent greases the wheels of the carceral


state.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

As a parent myself, I strongly identify with Alexander’s hesitancy, which reflects the significant
human risks and costs of this grassroots strategy of challenging mass Heiner 619 incarceration
and its system of procedural entrapment. Nevertheless, when we read (and likely identify with)
her words – ‘I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that
accepting a plea was the only way to get home to my children’ – I think we also ought to hear
the echoes of the words spoken a century ago by the anonymous African American laborer
from postbellum Georgia mentioned earlier. When faced with the plea bargain of his day, he
claimed, ‘We would have signed anything, just to get away.’ We should also recall the
consequence of the coerced consent that he and his contemporaries gave to that executive
order of the postbellum racial contract: ‘Really we had made ourselves lifetime slaves, or
peons, as the laws called us.’ By continuing to individually consent (on, however, an
instrumentally rational basis) to the coercive contract of the plea bargain regime, by continuing
to collectively consent to the procedural entrapment of the system of mass incarceration, we
are greasing the wheels of the carceral machine that labels those whom it targets as lifetime
felons and imposes upon them permanent status-based forms of civil death and disability
comparable with those experienced by antebellum slaves and postbellum debt peons and
leased convict laborers.139

Champion Briefs 212


AFF: Prison Industrial Complex AC Jan/Feb 2018

The aff is a historically informed imaginative act which fosters


solidarity with the procedurally entrapped.

Heiner, Brady. “The Procedural Entrapment Of Mass Incarceration: Prosecution, Race, And The
Unfinished Project Of Am.” Philosophy and Social Criticism. 2016. Web. December 09,
2017. <http://journals.sagepub.com/doi/pdf/10.1177/0191453715575768>.

Inspired by Susan Burton, this article conceptualizes procedural entrapment as a contemporary


mechanism of racial domination, begins to think through organized mass plea refusal as a viable
strategy of resistance, and articulates the connections between these forms of domination and
resistance and those of the antebellum and postbellum periods. In tracing these connections, I,
like Burton, seek to foster a historical and imaginative way of thinking about contemporary
anti-racist struggle against mass incarceration that enables us to see ourselves as acting in
concert with the legacy of struggle left to us by Frederick Douglass, Harriet Tubman, Ida B.
Wells and Martin Luther King, Jr. They, along with a multitude of other abolitionists and civil
rights activists of the past, also faced inestimable odds, severe existential risks and the
inevitability of racialized legal violence, and yet they persevered in fashioning radically
reconstructive collective projects of racial and social justice. Galvanized by our connection to
this legacy, we ought to allow ourselves to be emboldened by Burton’s incisive observation
that, by simply demanding and exercising their constitutional rights to due process, those who
are systematically targeted by our carceral state can swiftly throw it into crisis through
organized, concerted action. Such action on the part of the procedurally entrapped, who
shoulder the most existential risk, would in turn have to be sustained by solidarity efforts
outside of prison walls and court halls, by an abolitionist movement that collectively struggled
and sacrificed to counterbalance the social, economic and existential costs incurred by those
refusing to forfeit their constitutional rights, especially those punitively sentenced on account
of their refusal.140

Champion Briefs 213


A/2: Prison Industrial Complex AC Jan/Feb 2018

Sentencing reform would reduce the pressure prosecutors put on


defendants to plead guilty.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

As long as prosecutors hold unfettered power, there is little incentive for them to not charge
people with crimes when they have the evidence to support a conviction.57 Simply asking for
prosecutors to exercise more discretion to return to earlier filing rates, and file fewer cases, is
unlikely to have the necessary far-reaching impact.58 This means that legislative change, aimed
at reducing some prosecutorial power, and aimed at making high filing rates less attractive,
should be part of any meaningful discussion about how to reduce incarceration rates. This is
not to suggest that legislative reform would be quick or easy,59 although some states have
started to make some of the changes discussed in this section.60 This is also not to suggest that
legislative reform alone will dramatically change how prosecutors approach their jobs. But,
legislative reform in a few key areas could reduce the pressure put on defendants to accept
plea deals and might, therefore, help to reduce the number of cases that prosecutors file, as
extracting guilty pleas will not be as easy. The first suggested category for reform is to change
how crimes are defined to reduce the number of crimes that can be charged as both
misdemeanors and felonies and to reduce some felonies to misdemeanors. The second
category is to reduce potential punishment ranges by eliminating mandatory minimums for
most crimes and for enhancements. These reforms would reduce the pressure that prosecutors
now routinely put on defendants to plead guilty.61

Champion Briefs 214


A/2: Prison Industrial Complex AC Jan/Feb 2018

Reforms aren’t a cure-all, but the counterplan can help rectify deeply
embedded structural oppression in plea bargaining, which contributes
to mass incarceration.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

Clearly these are not quick fixes. Prosecutors have had decades to use these extraordinary
powers and the institutional cultures within many prosecutorial agencies will likely resist
moving beyond punitive approaches. Nonetheless, although simple legislative change is not a
cure-all, it is one approach to change the deeply embedded structural power imbalances in the
plea bargaining process that contribute to the problem of mass incarceration.

Champion Briefs 215


A/2: Prison Industrial Complex AC Jan/Feb 2018

Sentencing reform can reduce mass incarceration. While plea


bargaining is often a poor substitute for justice, “crashing the system”
would prevent it from dealing with real, harmful crimes, too.

McArdle, Megan. “Plea Bargains Are A Travesty. There’s Another Way.” Bloomberg View.
September 26, 2017. Web. December 09, 2017.
<https://www.bloomberg.com/view/articles/2017-09-26/plea-bargains-are-a-travesty-
there-s-another-way>.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory
minimums and prosecutors who are rewarded for being “tough on crime.” 1 These factors
aggravate the flaws of the plea-bargaining system. Prosecutors can threaten to prosecute on
draconian charges, which carry draconian sentences -- and all but force a defendant, even an
innocent one, to take a plea bargain, with a lesser charge and a lesser sentence. Defendants
(guilty and innocent alike) usually conclude that the risk of going to trial is simply too great. And
the plea bargains, in turn, keep the machine from choking on the volume of cases being run
through it. Instead it grinds out a very poor substitute for justice. Reducing the number of laws
and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many
offenses would reduce mass incarceration and start to unclog our court system. We should do
these things. Unfortunately, they won’t be enough. While the popular picture among de-
incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent
drug offenders, in fact, the system handles an immense amount of real, harmful crime. We’re
not going to decriminalize theft or assault or robbery, nor should we. If we really want a justice
system that is not too overwhelmed to provide justice, we are going to have to focus on
reducing crime.

Champion Briefs 216


A/2: Prison Industrial Complex AC Jan/Feb 2018

The time has passed for any realistic chance people will
conscientiously “crash the courts” --all the momentum is going to
reform.

Walsh, Dylan. “Why U.S. Criminal Courts Are So Dependent On Plea Bargaining.” The Atlantic.
May 02, 2017. Web. December 09, 2017.
<https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/>.

In theory, abolishing the use of plea bargains wouldn’t take much: Prosecutors would simply
stop offering deals. That would be that, though the massive influx of trials would jam courts.
(Michelle Alexander, author of The New Jim Crow, discussed defendants’ deliberately going to
trial and “crashing the courts” as a form of resistance to mass incarceration.) But both sides of
the debate agree the odds of this happening are infinitesimal. Even Alschuler, who throughout
his career remained one of the staunchest critics of plea bargaining, admitted in 2013 that “the
time for a crusade” had passed. Instead, he suggested people work to make the criminal-justice
system “less awful.” Consistent with this, reformers are exploring two avenues to make plea
bargaining either more accountable or less common: The process could be altered to afford
defendants more protection, or the jury trial could be simplified to ensure more people take
advantage of this right.

Champion Briefs 217


A/2: Prison Industrial Complex AC Jan/Feb 2018

The aff oversimplifies mass incarceration--the prison-industrial


complex isn’t the sole source of blame--private prison companies are
re-positioning themselves in a climate of criminal justice reform.

Gottschalk, Marie. “It’s Not Just The Drug War.” Jacobin. March 05, 2015. Web. December 09,
2017. <https://www.jacobinmag.com/2015/03/mass-incarceration-war-on-drugs>.

We need to get away from a simple-minded, left-leaning approach to understanding mass


incarceration that blames it all on economic interests and the prison-industrial complex. That
said, what built the carceral state is not the same thing that sustains it today. The prison-
industrial complex and economic interests were not the primary driving forces behind the
construction of the carceral state, but they do much to sustain it today. The biggest private-
sector prison companies, notably The GEO Group and CCA (Corrections Corporation of
America), have become very nimble political actors. They have been repositioning themselves
to adapt to a new political climate in which calls for criminal justice reform are escalating. They
view the criminalization of immigration enforcement as a new frontier to make money and
repurpose excess jail and prison beds. They increasingly talk about the need to invest more in
the “corrections lifecycle,” that is, to privatize not just jails and prisons, but also to expand and
privatize probation, parole, electronic monitoring, drug testing, etc. They are aggressively
pushing to expand the “prison beyond the prison,” that gray area where people are not in
prison but are tightly surveilled and not full citizens.

Champion Briefs 218


AFF: Proportionality AC Jan/Feb 2018

AFF: Proportionality AC
This aff would argue that the best standard for punishment is that it properly fit the
crime. This could be justified through an appeal to the requirements of justice (ex. our
intuitions about what people are due), or the “practice rules” of the system (what judges and
prosecutors are obligated to pursue). Your contentions would be as follows:
1. Plea bargaining encourages defendants to accept sentences that are far too lenient in
relation to the severity of the crime they’re pleading guilty to.
2. Plea bargaining pressures the innocent to plead guilty for crimes they did not commit,
if they believe that they’re unlikely to prove their case in a trial.
3. Plea bargaining leads to the inconsistent application of sentences, as two people who
committed the same crime could receive completely different sentencing based
on the terms of their plea deal, or whether one person got a plea deal and the
other went to trial.
The best negative arguments would focus on the impracticality or inefficiency of trying
to achieve this ideal of proportional punishment. You could argue, as a framework matter, that
proportionality is impossible, and, for your offense, that the abolition of plea bargaining would
clog the courts, undermining justice for all. I would also read the sentencing reform CP because
it resolves at least some of this offense (which limits the aff’s ability to weigh against the DA).
You should also read an NC which proffers an alternative theory of punishment (like restorative
justice; see virtue ethics NC how-to).

Champion Briefs 219


AFF: Proportionality AC Jan/Feb 2018

With plea bargaining, punishments are far too low, making them
disproportionate with the crime.

Echewija, Sule Peter. “Plea Bargaining And The Administration Of Criminal Justice In Nigeria: A
Moral Critique.” IAFOR Journal of Ethics, Religion & Philosophy. October, 2017. Web.
December 06, 2017. <http://iafor.org/archives/journals/iafor-journal-of-ethics-religion-
and-philosophy/10.22492.ijerp.3.2.03.pdf>.

Several issues can be garnered from this submission. The first is that the most fundamental
start point in the fight against corruption is a review of Nigeria’s obsolete penal laws.3 These
laws are naturally weak and cannot guarantee justice in the retributive sense much less to
deter. And when plea bargaining is applied, the punishment becomes counter-intuitively
disproportionate with the severity of crime. Nigeria is tough on crimes ranging from terrorism,
kidnapping, robbery, to offences such as gay marriages, but not on corruption. For instance,
robbery and conspiracy for armed robbery attracts life imprisonment or the death penalty in
the Robbery and Firearm Special Provision Act, 2004; while same sex marriage attracts 14 years
imprisonment and above under the Same Sex Marriage (Prohibition) Act, 2014. Corruption is
not punished as severely. The maximum sentence in the Penal Code for misappropriation or
embezzlement is two (2) years imprisonment or a fine or both.4 In the EFCC Act 2004, the
maximum is five years, while it is seven years under the Corrupt Practices and Other Related
Offences Act 2000 (of course this drops to about two years when plea bargained). When
compared to other African countries like South Africa, we find that these punishments are far
too lenient. In South Africa, the minimum sentence under the Criminal Law Amendment Act
105 of 1997 is fifteen (15) years imprisonment. Punishment goes as high as life imprisonment in
the Prevention and Combating of Corrupt Activities Act of 2004. The argument here is that
unless punishments for corruption are reviewed from these abysmally low provisions, the
application of plea bargaining will yield nothing close to justice.

Champion Briefs 220


AFF: Proportionality AC Jan/Feb 2018

Plea bargaining is inconsistent with proportionality.

Echewija, Sule Peter. “Plea Bargaining And The Administration Of Criminal Justice In Nigeria: A
Moral Critique.” IAFOR Journal of Ethics, Religion & Philosophy. October, 2017. Web.
December 06, 2017. <http://iafor.org/archives/journals/iafor-journal-of-ethics-religion-
and-philosophy/10.22492.ijerp.3.2.03.pdf>.

Justice as one’s due in the above context carries with it a principle of morality. Dworkin (as
cited in Campbell, 2007, p. 234) highlights this moralism in his argument that law contains other
norms such as principles which have different functions from laws. For him, the principle that
“no one shall be permitted to profit from his own fraud, or take advantage of his own wrong”
may be used to set aside an otherwise valid rule like plea bargaining. In this sense, principles
are different from rules as they perform a legitimating role. Laws operate within a principle
without which they can only be said to be legal. But where they operate on good, moral
principles like Dworkin’s, they lead to justice. In essence, principles have “justice conferring”
weight as they represent, according to Campbell (2007), the underlying justificatory values
within a legal system. It is this underlying principle of law that confers IAFOR Journal of Ethics,
Religion & Philosophy Volume 3 – Issue 2 – Autumn 2017 43 morality on justice. What is the
principle of plea bargaining? That in making trial expeditiously convenient for prosecutors one
can benefit from crime? As Dworkin further argues, the principle of the judiciary is that “the
courts will not permit themselves to be used as instrument of inequity and injustice” (as cited in
Campbell, 2007, p. 234). A judicial system which allows very abysmal punishment by way of
plea bargaining is unjust and immoral in this sense.

Champion Briefs 221


AFF: Proportionality AC Jan/Feb 2018

Plea bargaining is intrinsically incompatible with proportionality.

Slobogin, Christopher. “Plea Bargaining And The Substantive And Procedural Goals Of Criminal
Justice: From Retribution And A.” William & Mary Law Review. 2016. Web. December
06, 2017.
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3644&context=wmlr>.

Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-
accepted premises of American criminal justice. The practice of negotiating an admission of
guilt in exchange for a lowered charge or sentence cannot be reconciled with either a
retributively-based criminal law or an open, confrontational procedure. It inevitably results in
sentences or the threat of sentences that are disproportionate to desert, using a process that
ignores the panoply of constitutional rights that are viewed as the linchpin of American justice.1

Champion Briefs 222


AFF: Proportionality AC Jan/Feb 2018

Plea bargaining results in disproportionate punishment.

Slobogin, Christopher. “Plea Bargaining And The Substantive And Procedural Goals Of Criminal
Justice: From Retribution And A.” William & Mary Law Review. 2016. Web. December
06, 2017.
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3644&context=wmlr>.

Unfortunately for this point of view, plea bargaining regularly results in disproportionate
punishments.12 Plea bargaining creates a fundamental problem for retributivism because, for
bargaining to work, there must be a significant divergence between the sentence that results
from a plea and the sentence that results from trial.13 Perhaps the sentence proffered by the
bargaining prosecutor is retributively appropriate, perhaps the sentence that can be imposed at
trial is, or perhaps neither is. The important point is that, at best, only one of these sentences
can reflect a defendant’s true desert. While most retributivists are willing to contemplate a
sentencing range for a given crime, those sentencing variations are meant to recognize that
different offenders charged with the same crime might warrant different punishments, not that
the same offender can receive divergent sentences.14

Champion Briefs 223


AFF: Proportionality AC Jan/Feb 2018

Bordenkircher v. Hayes proves that plea bargaining undermines


desert.

Slobogin, Christopher. “Plea Bargaining And The Substantive And Procedural Goals Of Criminal
Justice: From Retribution And A.” William & Mary Law Review. 2016. Web. December
06, 2017.
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3644&context=wmlr>.

As a result, bargaining practices routinely make a joke out of the conceit that our system is
founded on desert. Take the most famous case in this regard, Bordenkircher v. Hayes. 19 There,
the prosecution told Paul Hayes, charged with his third offense (a forgery), that if he did not
plead guilty and accept a five-year sentence, then he faced trial under a three-strikes statute
that required life in prison upon conviction; Hayes refused the deal, was convicted, and was
sentenced to life.20 Most would agree that the life sentence was disproportionate to Hayes’s
crimes; indeed, one can make a plausible argument that even the five-year sentence offered by
the prosecution was disproportionate, especially if the focus is solely on the forgery. But the
important point is not that the legislature may have ignored retributive ideals in authorizing
these sentences. It is that, rather than pursue the just disposition, whatever it may be, the
institution of plea bargaining requires prosecutors to be willing to seek two entirely different
sentences, at least one of which will be disproportionate to the defendant’s culpability.

Champion Briefs 224


AFF: Proportionality AC Jan/Feb 2018

Reducing sentences in exchange for a guilty plea is unjustifiable, even


if remorse is a relevant consideration.

Slobogin, Christopher. “Plea Bargaining And The Substantive And Procedural Goals Of Criminal
Justice: From Retribution And A.” William & Mary Law Review. 2016. Web. December
06, 2017.
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3644&context=wmlr>.

From a purely retributive perspective, the practice of reducing a sentence or charge in


exchange for a guilty plea or information is unjustifiable. The mere fact that the defendant is
willing to plead guilty has little or no bearing on an offender’s desert. Even if one were to
accept the disputed notion that remorse is relevant to desert,24 and the even more
questionable assumption that a guilty plea signals genuine remorse,25 the mitigating impact of
the agreement to plead guilty cannot account for such a huge windfall.26 When, as in Shuster’s
case, the discount results from providing the government substantial assistance in solving other
crimes or fingering other criminals, the insult to retributivism is even more flagrant. Willingness
to rat on one’s colleagues in crime often has nothing to do with an individual’s culpability for his
or her current charge, and, as in Shuster’s case, may even be inversely related. 27 Yet a
significant number of plea deals are based on cooperation.28

Champion Briefs 225


AFF: Proportionality AC Jan/Feb 2018

If plea bargaining were just a negotiating ploy, then it’s even less
proportionate.

Slobogin, Christopher. “Plea Bargaining And The Substantive And Procedural Goals Of Criminal
Justice: From Retribution And A.” William & Mary Law Review. 2016. Web. December
06, 2017.
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3644&context=wmlr>.

One might try to salvage the situation, at least outside substantial assistance cases, by positing
that the reduced charges or sentences that occur in plea bargained cases reflect true desert,
while the initial charge is merely a negotiating ploy.29 But if that were true, in the 5 percent or
so of the cases in which defendants reject the plea and are convicted, the resulting sentence
would, by definition, be disproportionate. Furthermore, if the prosecutor’s offer reflects true
desert, defendants have a good argument that they should receive an even better deal. After
all, by pleading guilty and obviating trial they are giving the prosecutor something of value; in
return, they should receive punishment that is more lenient than they deserve. In practice, plea
bargaining often works in that fashion. A negotiated sentence will be significantly lower than
desert would dictate, or at least lower than what the public thinks offenders deserve,30 simply
because efficiency becomes the preeminent concern (which helps explain the hundreds of
thousands of nonprosecutions on low-level charges).31 However, it should also be recognized
that the negotiated sentence or charge could also be much higher than desert dictates (as
might be the case with the five-year sentence offered in Hayes and many of the drug cases
noted by Judge Rakoff).32 As William Stuntz has argued, prosecutors often push legislators to
enact extremely harsh sentences and easier-to-prove crimes to provide leverage during
bargaining.33 That means that even bargained-for punishment can be well above the optimum
desert threshold.

Champion Briefs 226


AFF: Proportionality AC Jan/Feb 2018

Plea bargaining is structurally unjust under the principle of


proportionality.

Kipnis, Kenneth. “Plea Bargaining: A Critic’s Rejoinder.” Law & Society Review. October, 1979.
Web. December 06, 2017.
<https://www.jstor.org/stable/3053268?seq=1#page_scan_tab_contents>.

In my earlier article (1976:102 ff.) I argued that our system can best be understood as an
institutionalization of two princi- ples. The first is that those (and only those) individuals who
are clearly guilty of serious specified wrongdoing deserve an of- ficially administered
punishment proportional to their wrong- doing. Justice in punishment is realized when the
guilty person receives neither more nor less punishment than is de- served. Under the reforms
advocated by Church and Brunk, those accused tried by juries would be guaranteed “theoreti-
cally correct” sentences, the sentences deserved by persons who have done that with which
they are charged.2 Those tak- ing advantage of plea bargains would have these sentences dis-
counted in some way. Obviously, either those pleading guilty have committed their crimes or
they have not. If they have, they receive less than the punishment they deserve-an injus- tice. If
they have not, they receive more than the punishment they deserve-another injustice. Under
plea bargaining, it will never be reasonable to believe that those convicted receive the
punishment they deserve. This systematic misapplication of punishment, this structural
injustice, is what discredits the le- gitimacy of plea bargaining.

Champion Briefs 227


AFF: Proportionality AC Jan/Feb 2018

The “grade bargain” is an instructive analogy for how plea bargaining


is an affront to the purposes of the criminal justice system.

Kipnis, Kenneth. “Plea Bargaining: A Critic’s Rejoinder.” Law & Society Review. October, 1979.
Web. December 06, 2017.
<https://www.jstor.org/stable/3053268?seq=1#page_scan_tab_contents>.

Consider another familiar context in which allocations are supposed to be made in accordance
with desert: grading in an academic context. A student has turned in a term paper. The
instructor, glancing at it, says that it probably deserves a C but if the student were to waive his
right to a careful reading and a conscientious critique, the instructor would agree to give the
student a B. The grade-point average being more important to the student than either
education or “justice in grading,” the student accepts the B and the instructor gets a reduced
work- load. The same considerations that establish the illegitimacy of the “grade bargain” in the
educational system confirm the im- propriety of the plea bargain in the criminal justice system.
Bargains are out of place in contexts where persons are to re- ceive what they deserve. Our
courtrooms, like our classrooms, should be such contexts. It is this objection to plea bargaining
that must be central: not that it cannot be justified by any of the rationales of punishment
(although I believe it cannot), but that it flies in the face of the very raison d’etre of the criminal
justice system itself. That objection is not met in Church’s dis- cussion.3

Champion Briefs 228


AFF: Proportionality AC Jan/Feb 2018

With plea bargains, defendants would be waiving their inalienable


right to the lowest reasonable sentence if convicted.

Kipnis, Kenneth. “Plea Bargaining: A Critic’s Rejoinder.” Law & Society Review. October, 1979.
Web. December 06, 2017.
<https://www.jstor.org/stable/3053268?seq=1#page_scan_tab_contents>.

But are inalienable rights given up under plea bargaining? I believe so. A strong case can be
made for a principle of parsi- mony in sentencing decisions (Morris, 1974:60 if.). The state en-
dangers its authority when it regularly punishes convicted criminals more severely than they
deserve. Excessive punish- ment is cruelty and a state that is cruel in administering pun-
ishment is less worthy of respect. Aside from those unnecessary costs, the state may well be
committing an injus- tice against the criminal. I can think of no reason why con- victed criminals
should be permitted to opt for punishment that is in excess of the lowest reasonable sentence.
There is therefore some ground for supposing that the right to the low- est reasonable
sentence should be inalienable, one that cannot be waived.

Champion Briefs 229


AFF: Proportionality AC Jan/Feb 2018

Proportionality is essential to any theory of punishment.

Tonry, Michael. “Retributivism Has A Past: Has It A Future?.” Oxford University Press. December
12, 2011. Web. December 08, 2017. <Book>.

Although I believe that the dual-track model in which drug courts are embedded poses special
problems for retributivists, it should be noted that it raises a challenge to any penal philosophy
that takes proportionality seriously. Despite its centrality to retributive thought, other theories
of punishment are and ought to be interested in proportionality as well (Ristroph 2005). The
intuitive appeal of proportionality is so powerful that nonretributivists struggle mightly to
explain how their theories of punishment can accomodate it. After all, the instrumental value
assigned to proportionality within consequentialist frameworks still is value, even if it is not
intrinsic. These heroic efforts suggest that proportionality might be regarded as a deeply shared
intuition about penal justice that is essential to any respectable justification of punishment
(Farrell, 2010). If I am correct, the drug court movement is hard to reconcile with nearly all
penal philosophies.

Champion Briefs 230


AFF: Proportionality AC Jan/Feb 2018

Plea bargains undermine proportionality.

Tonry, Michael. “Retributivism Has A Past: Has It A Future?.” Oxford University Press. December
12, 2011. Web. December 08, 2017. <Book>.

My central claim should not be construed to suppose that parity is typically preserved
elsewhere in the criminal justice system. In fact, sentencing disparities are ubiquitous as long as
we continue to rely so heavily on plea bargains. In order to induce guilty pleas, defendants who
insist that the state prove their guilt risk a severe “trial tax” or (what is more charitably called) a
“plea discount.” As a result, two defendants who commit the same crime receive drastically
disparate sentences depending on their pleas. Still, I have reason to highlight the respects in
which dual-track systems produce disparity and disregard proportionality. No one has proposed
a realistic solution to the enormous problems posed by our excessive use of plea bargains, but
the means to reduce the disparities created by drug courts are well within our grasp. Or so I will
argue.

Champion Briefs 231


AFF: Proportionality AC Jan/Feb 2018

Restrictions on the force of punishment are necessary in a democracy.

Ristroph, Alice. “Proportionality As A Principle Of Limited Government.” Duke Law Journal.


2005. Web. December 11, 2017. <https://scholarship.law.duke.edu/dlj/vol55/iss2/2/>.

Incarceration and capital punishment involve direct exercises of force against the human body
that occur almost nowhere else in domestic politics in a liberal state. Because liberal
democratic governments trace their legitimacy to something other than superior physical force,
and because liberal democratic governments claim to protect the lives and liberties of their
subjects, the imposition of these sanctions may be one of the most illiberal practices of a liberal
state. For a variety of reasons, penal sanctions are often practically and perhaps morally
necessary. But punishment’s inherent tension with liberal ideals suggests a need for principled
restrictions on the scope of the penal power

Champion Briefs 232


AFF: Proportionality AC Jan/Feb 2018

Utilitarianism requires proportional punishment.

Ristroph, Alice. “Proportionality As A Principle Of Limited Government.” Duke Law Journal.


2005. Web. December 11, 2017. <https://scholarship.law.duke.edu/dlj/vol55/iss2/2/>.

The most sustained and detailed arguments for proportional punishments come not from
retributive theorists, but from their philosophical adversaries: advocates of utilitarian theories
of punishment. Jeremy Bentham is known as the father of utilitarianism and as a leading
theorist of punishment, but on both counts he owes much to Cesare Beccaria. The Italian
Beccaria published his best-known work, Of Crimes and Punishments, when Bentham was only
sixteen (though already graduating from Oxford).27 In that book, Beccaria argues that
government and justice must be based on the principle of utility—the greatest happiness for
the greatest number.28 Though this phrase is commonly attributed to Bentham as the
“fundamental axiom” of utilitarianism, it is a translation of Beccaria’s “la massima felicita divisa
nel maggior numero.”29 The familiar invocation of “pleasure and pain” as the “moving powers
of sentient beings” was also used first by Beccaria.30 Utilitarianism is, of course, a theory of
politics that reaches far beyond the practice of punishment. Though Beccaria’s short treatise is
focused primarily on crime and punishment, it articulates broad political principles that apply to
the structure of government more generally. Penal institutions and practices are only a subset
of the institutions and practices that make up a political system. Beccaria clearly considers
punishment as part of a larger political context, and consequently, he offers two different kinds
of arguments for proportional punishments. He sometimes argues for proportional
punishments on specifically penological grounds—on the basis of the special purpose of
punishment—but more often, he argues for proportionality on broader political grounds.

Champion Briefs 233


AFF: Proportionality AC Jan/Feb 2018

Proportionality is a basic moral intuition and should be incorporated


into our understanding of the Eighth Amendment.

Farrell, Ian. “Gilbert & Sullivan And Scalia: Philosophy, Proportionality And The Eighth
Amendment.” Villanova Law Review. August 16, 2012. Web. December 11, 2017.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130722>.

1. A presumption in favor of proportionality.– The degree to which we are wedded to the


principle of proportionality as a matter of both moral intuition and moral theory should, at the
very least, require a very strong presumption in favor of an understanding of the Eighth
Amendment that incorporates proportionality. Even when considering the original meaning, we
should start with the presumption that the public understanding of ‗cruel and unusual
punishment’ was consistent with fundamental notions of just punishment, notions that precede
the Eighth Amendment.222 We should not lightly conclude that the only constitutional
limitation on punishment was understood (or intended, depending on which flavor of
originalism you prefer) not to include a limitation so central to commonly held convictions
about just punishment. This presumption would only be rebutted by the clearest historical
evidence, not just that the clause was understood to prohibit inhumane methods of
punishment, but also that it was positively understood to not include a requirement of
proportionality. A prohibition on inhumane methods of punishment is consistent with a
prohibition on disproportionate punishment.223 Only clear evidence that the proportionality
principle was rejected by the framing generation would, on this proposal, rebut the
presumption in favor of a proportionality requirement in the Eighth Amendment.

Champion Briefs 234


AFF: Proportionality AC Jan/Feb 2018

Proportionality cannot be excluded from any legitimate philosophy of


punishment.

Farrell, Ian. “Gilbert & Sullivan And Scalia: Philosophy, Proportionality And The Eighth
Amendment.” Villanova Law Review. August 16, 2012. Web. December 11, 2017.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130722>.

2. The unacceptability of excluding proportionality.– In all the philosophical accounts of just


punishment considered above, excluding the principle of proportionality is considered
unacceptable. Even if we might doubt whether the framing generation had strong pre-
theoretical convictions against disproportionate punishment, it can hardly be doubted that
contemporary standards of justice demand proportionality. Disproportionate punishment is
unpalatable to contemporary sensibilities, both at the level of individual intuitions and at the
level of theoretical principles. Justice Scalia has conceded that even if it could be
―demonstrated unequivocally‖ that punishments such as public flogging and hand branding

―were not cruel and unusual measures in 1791, and even though no prior Supreme Court

decision specifically disapproved them,‖224 the fact that they are so unpalatable to modern
moral sensibilities requires the Eighth Amendment now be construed as prohibiting them. A
construction of the Eighth Amendment that contains no proportionality requirement would
allow, for example, life imprisonment for parking offenses – a result just as unacceptable to us
as hand branding. To borrow Justice Scalia’s language, I am confidence that life imprisonment
for overtime parking ―would not be sustained by our courts, and any espousal of originalism as
a practical theory of exegesis must somehow come to terms with that reality.‖225 Our theories
of constitutional interpretation, like our theories of punishment, ought to accommodate
considered judgments as obdurate as the principle of proportionality.

Champion Briefs 235


AFF: Proportionality AC Jan/Feb 2018

Proportionality is essential to Eighth Amendment jurisprudence--it’s


not a purely retributivist notion.

Farrell, Ian. “Gilbert & Sullivan And Scalia: Philosophy, Proportionality And The Eighth
Amendment.” Villanova Law Review. August 16, 2012. Web. December 11, 2017.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130722>.

The principle of proportionality – the sublime requirement ―that the punishment fit the crime,‖
as Gilbert and Sullivan would say – is a central component of the Supreme Court’s Eighth
Amendment jurisprudence. Most recently, the Court invoked the requirement of
proportionality to declare that the death penalty could not be imposed for the crime of raping a
child. In contrast to the majority of his brethren past and present, however, Justice Scalia
maintains that the Eighth Amendment contains no principle of proportionality. As this Article
demonstrates, Justice Scalia’s position is untenable. The cornerstone of Justice Scalia’s
argument – the philosophical claim that the ‗inherently retributive’ principle of proportionality
is unintelligible once weight is given to the consequentialist goals of punishment – is false. An
examination of retributive and consequentialist theories demonstrates emphatically that the
principle of proportionality is intelligible when deterrence, incapacitation and rehabilitation are
given weight. In fact, almost all philosophers understand that a compelling theory of
punishment requires a Gilbert & Sullivan and Scalia 71 combination of consequentialist goals
with constraining principles such as proportionality. In addition to demonstrating that Justice
Scalia’s construction of the Eighth Amendment should be rejected, the philosophical theories
discussed in this Article show that the proportionality principle should not be characterized as a
retributivist notion. The principle of proportionality is, rather, a theoretically ubiquitous belief
about the limits of morally acceptable punishment. Philosophers have been uniformly reluctant
to give up the intuitive commitment to proportionality even when it has proven difficult to
reconcile with their fundamental theoretical principles, such as utility. We should be similarly
reluctant when interpreting the Eighth Amendment.

Champion Briefs 236


A/2: Proportionality AC Jan/Feb 2018

The abolition of plea bargaining would be worse for the innocent.

Scott, Robert. “Plea Bargaining As Contract.” The Yale Law Journal. June, 1992. Web. December
06, 2017. <https://www.jstor.org/stable/796952?seq=1#page_scan_tab_contents>.

Unfortunately, abolition would likely only worsen innocent defendants’ plight. In order to
accommodate the dramatic increase in trials, the trial process itself would have to be
truncated, as Stephen Schulhofer’s famous discussion of the Philadelphia process shows. The
mini-trials that took the place of bargaining in Philadelphia were brief affairs, most lasting no
more than an hour, the pretrial preparation on both sides was minimal.”36 Altering the trial
pro- cess in this way necessarily increases the error rate (unless our current trial system is
nonsensical), meaning that it raises the rate at which innocent defen- dants are convicted. That,
in turn, alters prosecutors’ incentives when making decisions about which cases to take to trial.
Indeed, it may alter police incen- tives when making arrests. Police officers and prosecutors
alike can afford to be less careful in screening their cases if the trial “backstop” becomes more
casual

Champion Briefs 237


A/2: Proportionality AC Jan/Feb 2018

Prohibiting plea bargaining will increase the amount of innocent


people convicted.

Scott, Robert. “Plea Bargaining As Contract.” The Yale Law Journal. June, 1992. Web. December
06, 2017. <https://www.jstor.org/stable/796952?seq=1#page_scan_tab_contents>.

In short, prohibiting plea bargaining would likely raise the proportion of innocents who are
convicted of crimes. The problem of defendants’ inability to use their private information in
bargaining would disappear since bargaining would disappear. But if the trial process itself led
to a substantially higher rate of conviction of innocent defendants, the ex ante position of those
defendants would not improve.

Champion Briefs 238


A/2: Proportionality AC Jan/Feb 2018

The aff’s claim that plea bargaining prevents adequate punishment


for the guilty represents the worst, most absolutist form of
deontology.

Walen, Alec. “Retributive Justice.” Stanford Encyclopedia of Philosophy. June 18, 2014. Web.
December 06, 2017. <https://plato.stanford.edu/entries/justice-retributive/>.

Moore entertains the idea that one could take an absolutist sort of deontological attitude
towards the positive duty to punish. In that spirit, one could assert that it is always wrong to
make the sorts of tradeoffs made in plea-bargaining, or indeed in deciding to devote resources
to anything other than punishing the guilty if those resources might help ensure that the guilty
are punished. Obviously, this position is too extreme to be of any practical use unless one is a
“threshold deontologist”, willing to put aside deontological restrictions when the harm of
abiding by them is too great (Moore 1997: 158). This, however, is an implausibly brittle form of
deontology—absolutist until it snaps. A more plausible view of deontology is one in which
deontological reasoning determines how and when consequences count (Kumm and Walen
2014). For example, it is a deontological claim that it is harder to justify causing harm than
allowing harm, but that does not mean that it is a violation of a deontological constraint to
cause a small harm in the course of preventing a larger one. Likewise, a retributivist can hold
that there is a deontological reason to punish the guilty, while acknowledging that that reason
should be weighed against other reasons when determining whether to devote resources to
punishment or other valuable goals.

Champion Briefs 239


A/2: Proportionality AC Jan/Feb 2018

Plea bargaining isn’t inconsistent with just deserts.

Walen, Alec. “Retributive Justice.” Stanford Encyclopedia of Philosophy. June 18, 2014. Web.
December 06, 2017. <https://plato.stanford.edu/entries/justice-retributive/>.

The possibility of punishing less than deserved is also normatively significant, but it provides a
much weaker constraint. First, it does not seem to wrong anyone in particular (see Duus-
Otterström 2013: 472–475). One might think that the victims of crime are wronged if
wrongdoers are not punished. Arguably this view was held by Kant (1797: 142) who wrote that
if a people do not insist on the execution of murderers, “blood guilt” would “cling” to them “as
collaborators in this public violation of justice”—though this text might better be read as an
assertion that the people have an obligation to do justice, not for the victim, but for the
integrity of the law (see Hill 1999: 443). But the view that it wrongs victims not to punish
wrongdoers confuses vengeance, which is victim-centered, with retributivism, which is agent-
centered: concerned with giving the wrongdoer the punishment he deserves (see Paul
Robinson’s 2008 contrast between vengeful and deontological conceptions of deserved
punishment). Second, it is clear that in any criminal justice system that allows plea-bargaining,
intentional deviations below desert will have to be tolerated. Russell Christopher (2003) has
argued that retributivists cannot accept plea-bargaining. But he bases his argument on a
number of unsound assumptions, including that “[r]etributivism imposes an absolute duty to
punish culpable wrongdoers whenever the opportunity arises” (ibid.: 101), and that punishing a
wrongdoer less than he deserves violates his “right to punishment” (ibid.: 128–129). Both of
these have been rejected above. Christopher correctly notes that retributivists desire to treat
equally culpable people alike (ibid.: 131). But this desideratum can be sacrificed for the sake of
other goods, as long as no one is punished to a disproportionately large degree.

Champion Briefs 240


A/2: Proportionality AC Jan/Feb 2018

Retributivism has a consequentialist element which makes plea


bargaining justifiable.

Walen, Alec. “Retributive Justice.” Stanford Encyclopedia of Philosophy. June 18, 2014. Web.
December 06, 2017. <https://plato.stanford.edu/entries/justice-retributive/>.

Insofar as retributivism holds that it is intrinsically good if a legitimate punisher punishes the
guilty, it seems to have a consequentialist element. This good has to be weighed against other
possible goods to decide what it would be best to do. Thus most retributivists would accept
that it is justifiable to forego punishing one deserving person if doing so would make it possible
to punish two equally deserving people, or one more deserving person—as happens on a
regular basis in plea-bargaining (Moore 1997: 157–158; Berman 2011: 451–452). See section
4.4.

Champion Briefs 241


A/2: Proportionality AC Jan/Feb 2018

Plea bargaining can be more consistent with “just deserts” if it’s


reformed to include victim participation.

Starkweather, David. “The Retributive Theory Of “Just Deserts” And Victim Participation In Plea
Bargaining.” Indiana Law Journal. 1992. Web. December 08, 2017.
<https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=https://www.go
ogle.com/&httpsredir=1&article=1445&context=ilj>.

CONCLUSION Victims have been gaining many new rights in the criminal system. These gains
have been attributed mainly to victims’ desires for revenge or retaliation. However, victim
participation in the plea-bargaining process is appropriate under a just deserts theory of
retribution. Victim participation in plea bargaining would pr6tect a victim’s interest in both
financial and psychic restitution without encroaching on the interests of the traditional plea
bargain parties-judge, defendant, and prosecutor. The present plea bargain system undermines
the retributive theory of just deserts by excluding considerations of a victim. The defects in plea
bargaining can be cured and reconciled with just deserts retribution by (1) requiring a
prosecutor to provide a victim with a written statement setting forth a proposed plea offer and
other information relevant to a victim’s case, (2) requiring a prosecutor to consult with a victim
before a plea proposal is made to a defendant, (3) giving a victim and an offender an
opportunity for reconciliation, and (4) giving a victim the right to be heard at a plea hearing.

Champion Briefs 242


A/2: Proportionality AC Jan/Feb 2018

Victim Participation CP: Victim participation in plea bargaining would


not undermine the goals of a prosecutor.

Starkweather, David. “The Retributive Theory Of “Just Deserts” And Victim Participation In Plea
Bargaining.” Indiana Law Journal. 1992. Web. December 08, 2017.
<https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=https://www.go
ogle.com/&httpsredir=1&article=1445&context=ilj>.

One goal often noted by commentators is the swift disposition of cases.’ 41 This is the primary
justification for plea bargaining. 42 Plea bargaining is supposed to facilitate justice by
unclogging the courts and reserving judicial resources for cases that most merit trial.1 43
Prosecutors fear that giving victims a participatory role in the plea process will undermine this
goal in two ways.’“ First, victim participation will result in fewer plea bargains, thus clogging the
court system. 45 Second, allowing victims to participate in plea negotiations will disrupt and
slow down the plea process.’ l Evidence suggests, however, that prosecutors’ fears are
unwarranted. The claim that fewer pleas will be made is based on the assumption that victims
demand only harsher prison sentences. However, research indicates that when victims
recommend imprisonment they do so because they are unaware of alternative sentencing
solutions such as restitution, community service, or other diversionary dispositions. 47 Also,
victim participation does not result in increased sentence severity, delays, or expense.’“ In fact,
victim participation may in some instances result in a quicker disposition of the case 49 or even
reduced sentences and reduced use of imprisonment.5 0 In sum, victim participation does not
conflict with the role of the prosecutor in a retributive theory of punishment.

Champion Briefs 243


A/2: Proportionality AC Jan/Feb 2018

Plea bargaining doesn’t lead to overly lenient sentences.

McCoy, Candace. “Politics And Plea Bargaining: Victims.” University of Pennsylvania Press.
1992. Web. December 08, 2017. <Book>.

The coercion objection springs from due process advocates’ concerns about the “trial penalty.”
If a defendant can expect to receive a significantly higher sentence should he or she be
convicted at trial than would be imposed after a plea of guilty, a prudent, risk averse accused
person will confess even if innocent or--as is more likely--even if that person could perhaps
have demonstrated guilt of some crime to the court, though not of the crime charged. (In that
case, supporters of plea bargaining would return, a charge-bargained outcome is the same as
the trial outcome would have been.) From the opposite side of the political spectrum--a side
most often voiced by victims, witnesses, and their families--plea bargaining appears to be
lenient because it bestows lower sentences than would have been imposed had the defendant
been convicted by trial verdict. (Again, supporters of the practice argue that it is scarcely
lenient if a defendant’s case is reviewed carefully by counsel and a judge, and they agree on a
certain and sure punishment. Moreover, they argue, plea bargaining is one of the few means of
injecting appropriate mercy into a draconian penal code.) The “leniency” critique lays bare a
critical dilemma for justice professionals. Most attorneys and judges deny that plea bargaining
produces leniency, arguing instead that the process imposes proportionate and certain
punishment. It is not lenient because sentences imposed are roughly comparable in each crime
offense category and are graded in severity between offenses, as the law requires.

Champion Briefs 244


A/2: Proportionality AC Jan/Feb 2018

Plea bargaining is essential to the judicial process, and some


“sentence bargaining” is inevitable.

Caldwell, H. Mitchell. “Coercive Plea Bargaining: The Unrecognized Scourge Of The Justice
System.” Catholic University Law Review. 2011. Web. December 08, 2017.
<https://scholarship.law.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&h
ttpsredir=1&article=1003&context=lawreview>.

By itself, plea bargaining is not the problem. Quite the contrary, it is essential to our judicial
process.78 According to one commentator, it defines “contemporary criminal prosecution.”79
Plea and sentence bargaining are only problematic, as previously set forth, when an accused is
coerced into a so-called bargain for fear of punishment disproportionate to his or her actual
criminal conduct, if any.80 Yet, some persist in painting the entire practice of plea bargaining as
the problem. Detractors maintain that plea bargaining is a product of “laziness,
bureaucratization, overcriminalization, and economic pressure.”81 Although elements of each
may, and do, foster dependence on plea bargaining, it is ultimately a function of a burgeoning
population,82poverty,83 urbanization,84 the prevalence of drugs,85 and the nature of the
adversarial process.86 The contemporary criminal-justice infrastructure simply cannot
accommodate each criminal defendant with a trial.87 Furthermore, even critics of plea
bargaining must acknowledge that some form of bargaining is the norm, even in the most
mundane types of cases.88 Sentence bargaining is one such example. Before defendants agree
to plead to the precise charge filed, they typically strike a bargain with the prosecutor about the
actual length of sentence they must serve.89 To reach this settlement, prosecutors and
defendants have open discussions about the consequences of the bargain, thereby allowing
defendants to be informed when entering their pleas and thereafter receiving their
sentences.90 This arrangement is called sentence bargaining because the charge filed is not in
dispute; rather, the defendant pleads to the filed charge, and the only point in question is the
sentence to be imposed.91

Champion Briefs 245


AFF: Racism AC Jan/Feb 2018

AFF: Racism AC
The racism AC is likely going to be the most popular AC on the circuit. This AC will likely
be seen in general res version, plans, advantages, and lay cases. There is a mountain of topic
literature on this issue and it has been studies extensively across multiple disciplines. The
argument is simple: plea bargaining is racist. This argument is obviously more nuanced;
statistically black Americans are more likely to not only plea but also be coerced or forced into
pleas. There is sufficient data to suggest that many please are also forced or coerced too,
especially in the case of black Americans. This is because not only do prosocutors push pleas
harder due to implicit and explicit racism but defense attorneys may also believe that pleas
offer their clients protection against potential racism in a jury. In a system where for-profit
prisons exist plea bargaining can be a way to ensure that prisons stay full. This argument just
furthers the evidence that the justice system cannot and is not fair to people of color.
Arguing against this case will be difficult due to the solid evidence base supporting the
AC. Another critical argument is likely the best option. If you consider the critique of the legal
system section you will find many cards that state the criminal justice system is beyond saving
and abolishing plea bargaining won’t make it better for people of color. Additionally, some
counter plans exist such as using blinding of prosecutors to reduce bias in the plea system.
Ultimately the way to beat the racism AC is to provide a better alternative or to prove that
resistance against the criminal justice system is futile.

Champion Briefs 246


AFF: Racism AC Jan/Feb 2018

If plea bargaining is susceptible to bias it cannot be counted as a


just/reliable system.

Scott, Robert. “Plea Bargaining As Contract.” Yale Law Journal. 1992. Web. December 06, 2017.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2144&context=journ
al_articles>.

If plea negotiations are peculiarly susceptible to systematic errors of judgment, then the
bargaining process can no longer be trusted to generate an efficient result. Consider in this
connection the now-familiar anchoring phenom- enon, which suggests that the way choices are
framed affects individuals’ assessments of the gains and losses of exercising any particular
option.63 Criminal defendants may suffer from this type from refusing a proposed plea bargain
are anchored to the prospect of acquit- tal-a prospect that may seem remote when the bargain
is struck. Anchoring the benefits of trial to the remote possibility of acquittal may irredeemably
impair the ability of criminal defendants to evaluate the choice correctly. And the error will not
be random. According to some studies, individuals tend both to overestimate the likelihood of
conjunctive events, such as events leading to conviction, and to underestimate the likelihood of
disjunctive events, such as acquittal after trial.’ As a result, defendants may not be fully
compensated for their guilty pleas, in which case they presumably would prefer a world
without plea bargaining.

Champion Briefs 247


AFF: Racism AC Jan/Feb 2018

Because attorneys project potential jury bias onto justification for


pleas they also project racism onto their clients.

Edkins, Vanessa. “Defense Attorney Plea Recommendations And Client Race: Does Zealous
RepresentationApply Equally To A.” Journal of Law and Human Behavior. 2011. Web.
December 06, 2017. <https://www.ncbi.nlm.nih.gov/pubmed/21103915>.

Another explanation for the disparity in plea recom- mendations would be that the attorneys
are acting on how they feel a jury would perceive their client - perhaps experience leads them
to believe that an African American defendant would be better off avoiding trial at any cost.
The results here do not lend credence to that particular theory; there were no significant
differences between the perceived chances of conviction for the two races. If the disparity in
plea recommendations was due to some rational assessment of how the average jury treats an
African American client, then the African American client should have been seen as more likely
to be convicted if the case went to trial. This could also be seen as a measure of whether or not
the differential treatment by race was something conscious. Asking attorneys about chances of
conviction allows the attorneys to acknowledge that the system may be racist (or the
individuals constituting juries may be racist) without having to acknowledge that they
themselves may possess a similar bias - “I’m not racist, but juries are and so my client should
avoid trial.” In fact, the supposed “racist system” theory would show that any differential
recommendations on the part of the attorney would actually be strategic and quite possibly
rational, and not a measure of the attorney’s personal bias. Perhaps we do not see that trend in
this study because the attorneys are not actually aware of the differential treatm

Champion Briefs 248


AFF: Racism AC Jan/Feb 2018

Lawyers steryotype black defendents which leads to higher rates of


plea bargaining compared to white defendants- though plea bargains
are on the rise for both groups.

Edkins, Vanessa. “Defense Attorney Plea Recommendations And Client Race: Does Zealous
RepresentationApply Equally To A.” Journal of Law and Human Behavior. 2011. Web.
December 06, 2017. <https://www.ncbi.nlm.nih.gov/pubmed/21103915>.

A less optimistic assessment of lawyer “debiasing” abilities is put forth by Hollander-Blumoff


(2007). She correctly points out that, “there is no body of social science research that suggests
that attorneys are free from cognitive bias and heuristic processing” (p. 173). In fact, Hollander-
Blumoff suggests that the structure of the criminal justice system may promote a lawyer’s
reliance on heuristics, and other cognitive shortcuts, during plea negotiations. One heuristic
that may lead to disparities in incarcera- tion rates is that of stereotyping. Perhaps lawyers are
using stereotypes about African American’s and criminal behavior to inform their negotiations,
leading to that group being more likely to be incarcerated or more likely to receive a longer
sentence. There is some real- world evi- dence to suggest that this may be the case and that
sentencing disparities exist within the world of plea bar- gains. Looking at burglary cases across
different jurisdictions in the United States, when the defendant pleaded guilty and forfeited his
right to a trial, minority defendants were 20% more likely to be given a sentence that included
some prison time than were their Caucasian counterparts (Humphrey & Fogarty, 1987). This
effect was most pronounced in the southern jurisdictions studied. One study investigated the
issue of disparities in plea deals in the U.S. Army courts-martial system (Verdugo, 1998). Just as
the nation has struggled with the issue of overrepresentation of minorities in prison population
so has the U.S. Army justice system. In 1995, African American men made up 27.5% of those
enlisted but 46.1% of those receiving General Courts-Martial. Caucasian American men, in
contrast, made up 61.1% of enlisted and 44.5% of those receiving General Courts-Martial. The
reason for the discrepancy seemed to be that Caucasian American men were more likely to be
receiving “Article 15” citations (nonjudicial punishments including forfeiture of pay, extra

Champion Briefs 249


AFF: Racism AC Jan/Feb 2018

duties, arrest in quarters, etc.) than their African American counterparts (59.3% of total Article
15s compared to 32.8%); in other words, the Caucasian American soldiers were getting a “slap
on the wrist”. Verdugo (1998) also found that the African American soldiers were not getting
offered plea deals as often as the Caucasian American soldiers. For example, in aggravated
assault cases tried between 1986 and 1992, the rate of pretrial agreements for the Caucasian
American soldiers was 69% compared to 51% for African American soldiers. This trend of
offering pleas more often to Caucasian American defendants has also been noted.

Champion Briefs 250


AFF: Racism AC Jan/Feb 2018

Statistically black and latino people are pushed towards bargains


more than white people.

, Constitutional Rights Foundation. “The Color Of Justice.” Constitutional Rights Foundation.


2017. Web. December 06, 2017. <http://www.crf-usa.org/brown-v-board-50th-
anniversary/the-color-of-justice.html>.

More than 90 percent of all criminal cases never go to trial. The defendant pleads guilty, often
after the prosecutor and defense attorney negotiate. A 1990 study of about 1,000 cases by the
U.S. Sentencing Commission found that whites did better in plea bargains. Twenty-five percent
of whites, 18 percent of blacks, and 12 percent of Latinos got their sentences reduced through
bargaining. The reason for the disparity was not determined. The San Jose Mercury News
conducted a massive study of 700,000 California legal cases over a 10-year period. The paper
reported in December 1991 that a third of the white adults who were arrested, but had no prior
record, were able to get felony charges against them reduced. Only a quarter of the African-
Americans and Latinos with no prior records were as successful in plea bargaining. The Mercury
News study did not blame intentional racism for these inequalities. It did, however, suggest
that subtle cultural fears and insensitivity contributed to the problem. The study noted that
more than 80 percent of all California prosecutors and judges are white, while more than 60
percent of those arrested are non-white.

Champion Briefs 251


AFF: Racism AC Jan/Feb 2018

Racial bias in pleas and policing make an unbalanced justice system


based on race.

Rolnick Borchetta, Jenn. “When Race Tips The Scales In Plea Bargaining.” Slate. October 23,
2017. Web. December 06, 2017.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/new_resear
ch_finds_that_prosecutors_give_white_defendants_better_deals_than.html>.

If there are racial disparities in pleas in misdemeanor cases that lead to worse punishment of
black people, it means a significant proportion of our criminal justice system is meting out
punishment in a racially biased manner. Prosecutors wield enormous power and total
discretion in deciding whether and how to charge people, whether to request pre-trial
detention or money bail, and what plea to offer. One factor guiding this decision is whether the
attorney believes the person will be held on bail. Frequently, people charged with
misdemeanors accept pleas just to go home. A young black man from the South Bronx, one of
the poorest congressional districts in the country, may have almost no chance of paying bail, so
the only option is a criminal record and probation. Contrast that to a wealthier white man who
knows that if the judge sets bail he can pay his way out. This man has no pressure to accept a
plea, and his lawyer can investigate his case and negotiate a better plea. Immediate
interventions could stem racial disparities in pleas. New York must eliminate money bail for
misdemeanors to end the threat of pretrial incarceration that disparately extracts guilty pleas.
Prosecutors should state the reasons for plea offers on the record to create transparency and
be required to collect and share data about their offers to expose any disparities. It is only
through established facts and data that we can educate prosecutors and judges, as well as work
to combat implicit and overt bias. Prosecutors have virtually unchecked power in the plea
bargain process. It’s the power to take away freedom, destroy livelihoods, and tear families
apart. Ultimately, it’s the power to devastate low-income communities already suffering from
aggressive and discriminatory law enforcement tactics. In a place like the Bronx, unfair police
and prosecutor practices combine to create a situation in which nearly all of the people facing
criminal charges are black or brown men, even though one-third of the population is white.

Champion Briefs 252


AFF: Racism AC Jan/Feb 2018

White defendants are significantly more likely to have all charges


dropped.

Rolnick Borchetta, Jenn. “When Race Tips The Scales In Plea Bargaining.” Slate. October 23,
2017. Web. December 06, 2017.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/new_resear
ch_finds_that_prosecutors_give_white_defendants_better_deals_than.html>.

Berdejó 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 who had no criminal history. This suggests, as Berdejó concludes in
his report, that prosecutors use race to judge whether a person is likely to recidivate when
deciding what plea to offer.

Champion Briefs 253


AFF: Racism AC Jan/Feb 2018

Black people are attacked on all sides of the justice system from being
the most affected by crime to the most persecuted for it.

Highsmith, Gary. “Black Skin, White Justice: Race Matters In The Criminal Justice System.” Yale-
New Haven Teachers Institute. 1996. Web. December 06, 2017.
<http://teachersinstitute.yale.edu/curriculum/units/1996/1/96.01.10.x.html>.

An examination of several statistics in regards to Blacks and their relationship to the criminal
justice system is in order here. For what is rarely mentioned, but of tremendous significance, is
that Blacks are most often the victims where more serious crimes are concerned. For example,
from 1973 to 1978, white males were victimized by violent crime at rates between 42 and 45
per year per thousand … For Black men, the rate was between 53 and 57 per thousand … Any
Black man in the U.S. (in the aforementioned time frame) had a 6 to 8 time greater chance of
being murdered than any white man.12 Of all Black households in 1985, 27 percent had been
touched by crime. Two years later, black households continued to be more vulnerable than
whites for violent crimes (5.4 percent vs. 4.6 percent), burglary (7.6 percent vs. 5 percent), and
theft in and around the home (9.1 percent vs. 7.9 percent.)13 Unfortunately, there has been no
improvement in this area. In fact, things have gotten much worse. According to the FBI’s
Uniform Crime Report, in 1986 Blacks accounted for 46.5% of all arrests for violent crimes even
though Blacks comprised 12% of the US population. Blacks accounted for 48% of the persons
arrested for murder; 46.6% of all arrests for rape; 39.8% for assault … In 1986, of those person
under 18 years of age, Blacks accounted for 54% of those arrested for violent crimes … the
highest violent crime rates are demonstrated by young Black males…. Over 40% of all jail
inmates throughout the nation are Black—and the percentage is rapidly rising.14 More young
Black men died from homicide in one year (1977) than died in ten years in the Vietnam War …
15 (The number of Black females murdered between 1980 and 1985 exceeds the number of
American casualties in Vietnam in 1967, one of the peak years of fighting.16) Murder is the
fourth leading cause of death for Black males of age 20 to 29. Clearly, crime statistics can be
interpreted in many different ways, depending upon ones motivation(s), agenda(s) or political

Champion Briefs 254


AFF: Racism AC Jan/Feb 2018

perspective(s). Furthermore, “Unless we have a fair understanding of the characteristics of


crimes that become official and those that do not, we are on very tenuous ground when we use
official statistics to try to determine if crime is related to such things as income, racial inequality
or a variety of other variables for we do not know what crime rates measure.”17 What can be
said however, with little if any serious discourse to the contrary, is that Black people in America
are facing a serious crisis in regards to their involvement in the criminal justice system, and that
this crisis manifests itself at every level of interaction with this system. Yet, a further note of
caution is in order here in regards to the statistics mentioned above. For as William Ryan states,
“ … the FBI Crime Report—with all its tables and charts, its fatuously precise summations … is
one of the most preposterously non-factual documents ever to roll off the print presses of the
U.S. Government Printing Office. As a basis for serious discussion of social problems and social
policies, it is approximately as useful as Madame Zelda’s Lucky Number Dream Book.”18

*Ellipsis from source

Champion Briefs 255


AFF: Racism AC Jan/Feb 2018

Criminal justice system categorizes people into a hierarchy based on


race.

Levi, David. “Chapter Two: Perceiving Race And Hierarchy.” The “Vanity of the Philosopher”:
From Equality to Hierarchy in Post-Classical Economics. 2005. Web. December 06, 2017.
<http://edwardmcphail.com/eugenics/vanity.2.7.04/2_race_hierarchy.pdf>.

Following Mill, we suppose that one person perceives another directly through the immediate
senses or indirectly through words and pictures of that other person. The judgment which
results is “the same as me” or “different from me”. “The same as me” affirms analytical
egalitarianism; “different from me” affirms analytical hierarchicalism. In the debates we study,
the step is always taken from “difference” to “inferiority” or “superiority”.2 In line with Mill, we
suggest that people learn to perceive “similarity” or “difference.” Part of the learning process
involves images and stories which insist upon human homogeneity – the Wedgewood image
that accompanied the slogan supposing the truth of Genesis, “Am I not a man and a brother?”
(below, Chapter 9), was central to the anti-slavery movement3 – as well as images and stories
which purport that some people are closer to beasts than they are to people (Chapter 3). Even
as the perception of homogeneity widened to people across the globe and sympathy extended
to other races, the argument was put forward that some are more deserving of sympathy than
others, that “charity begins at home.” This slogan is central to nineteenth century
“paternalism” in that it recognizes that unregulated sympathy and choices can endanger
hierarchy.

Champion Briefs 256


AFF: Racism AC Jan/Feb 2018

Coercion of defendants is based on social class- leading to


essentialization of groups of people.

McConville, Mike. “ Plea Bargaining: Ethics And Politics.” Journal of Law and Society. 1998.
Web. December 06, 2017.
<https://www.jstor.org/stable/1410639?seq=1#page_scan_tab_contents>.

This calls for a more radical critique which addresses the increasing tendency towards coercion
of criminal defendants whose rights and entitlements are subject to serious and continuous
erosion; who are abstracted from their social context so that selected attributes which they
might share with classes of people become indicators of guilt both of those being processed
and those sharing these selected characteristics who might fall to be processed in the future;84
who are subjected to a lawyering culture in which preparation and advocacy standards are
trivialized; and who may be pressurized into pleading guilty in a production line in which the
actual relationships of power which animate social exchange and give meaning to ‘decisions’
are obscured by a system of professional ethics and a specific legal discourse to which these
give rise.85 It is in this context that the ethical codes of conduct need to be viewed, as an
integral part of the system’s solution to the contradictions created by the political economy of
justice rather than as an object of inquiry abstracted from the conditions which gave birth to
them.



Champion Briefs 257
A/2: Racism AC Jan/Feb 2018

Sentence reduction rates based on pleas are mixed based on race and
gender.

Fremon, Celeste. “Does Race Affect Plea Bargaining? A New Study Says YES.” Witness LA. April
03, 2017. Web. December 06, 2017. <http://witnessla.com/does-race-affect-plea-
bargaining-a-new-study-says-yes/>.

The authors of a new study just published in Justice Quarterly have attempted to fill that gap.
The report, which used a random sample of 500 felony plea cases initiated between 2002 and
2010, all drawn from one of Florida’s more populous counties, found that, after the researchers
controlled for offense seriousness, offense type, and prior record, the plea bargain process was
not, in fact, color blind. As it happens, plea bargaining is not blind to gender either. First of all
the authors looked at whether race affected whether a defendant would enter into a plea
agreement at all. The answer was yes, and the size of the difference was surprising. “The odds
of a plea decrease by about 46.4% when a case involves a black defendant, as opposed to a
white defendant.” As the process went on, race continued to markedly affect outcomes. Yet,
there were also significant differences in outcomes for male versus female defendants. If a
black male defendant did plea, the authors found he fared worse than white males, white
females, and black females, when it came to the probability of a charge reduction in return for
his plea. Specifically, for black males pleading guilty increased the probability of a charge
reduction by 46.1%. For white males the probably of a reduced charge jumped to 53.9%, then
to 55.9% for white females. Interestingly, black females fared best of all with a 58.1%
probability of a charge reduction in return for a guilty plea. In plainer terms, black men are less
likely to receive lower charges and, as a result, lower sentences, in return for a plea bargain
than white men, white women, or black women.

Champion Briefs 258


A/2: Racism AC Jan/Feb 2018

Blinding can help shift bias in plea bargains.

Baughman, Shima. “3 Professors Have A Radical Idea For How To Remove Bias From The
Criminal Justice System.” Business Insider. October 22, 2016. Web. December 06, 2017.
<http://www.businessinsider.com/how-to-remove-bias-criminal-justice-system-2016-
10>.

Prosecutors typically make charging decisions based on police files, rather than direct contact
with the suspect. Although a suspect’s race and mugshots are now included in their file, those
are intended for police identification purposes. That information is almost never relevant to the
merits of the prosecution. Even with plea bargaining, in many jurisdictions, prosecutors usually
work with defense attorneys, rather than being exposed to the defendant. In most cases, the
only way prosecutors learn the person’s race is through police reports, and these can be
blinded. Blinding to prevent unconscious bias – racial or otherwise – is standard procedure in
several fields. Medical research requires that most drug trials use double-blinding of patients
and physicians, whenever possible. In a study on symphony orchestras, blinding of musician
auditions increased the probability that a woman would advance by 50%. One media company
recently announced it would use blind auditions to hire tech journalists. Blinding prosecutors to
the race of criminal defendants can have equally positive effects. In 2001, the Justice
Department formed a system for attorneys to conduct blind reviews in death penalty cases. It is
a positive step in the right direction, and we believe more work should be done to document
the impact of this practice. Prosecutor bias has a significant impact, and even a small reduction
in bias will be meaningful. Research shows that racial bias may result in blacks serving
20% more prison time than whites for the same crime. Two-thirds of those convicted of a
felony serve prison time, and the average sentence is about five years at an average cost of
$25,000 annually. Of course, the primary benefit will be to the accused, their families and to the
rest of society who can trust that all efforts are being taken to remove bias from a justice
system. We aspire to a race-blind justice system – why not actually make decisions blind?

Champion Briefs 259


NEG: Virtue Ethics NC Jan/Feb 2018

NEG: Virtue Ethics NC


This NC would argue that plea bargaining is essential to restorative justice, as opposed
to the retributive justice of the proportionality aff. The goal of the justice system should be
restitution, forgiveness, and adequate moral education or rehabilitation. Part of that should
entail giving defendants the right to plea to a more lenient sentence out of penance, especially
if going to trial may mean that defendants face life sentences or the death penalty. The virtue
framework would set up an argument that it’s worse for judges and prosecutors to focus on the
rigid letter of the law, or the vengeance of just deserts, instead acting on the virtue of mercy
and allowing victims to participate in the dialogue of a plea deal (which would be a great
counterplan to couple with this NC).
The best affirmative answer would be to introduce the proportionality debate in the
1AR, if the AC hasn’t already made that argument. It would be like an affirmative “add-on” (to
borrow a phrase from Policy debate) where the 1AR reads two cards, one to say that
proportionality is best, or better than restorative justice, and another to say that justifies the
abolition of plea bargaining. You can also argue that the abolition of plea bargaining may
spillover to end harsher sentencing writ large, especially considering how long sentences
usually exist as a bargaining tool for plea deals.

Champion Briefs 261


NEG: Virtue Ethics NC Jan/Feb 2018

Plea bargaining based in dialogue can enable the defendant to


present their positive character traits.

Kitai-Sangero, Rinat. “Plea Bargaining As Dialogue.” Akron Law Review. November, 2015. Web.
December 08, 2017.
<http://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=2354&context=akronlawr
eview>.

IV. DIALOGUE THROUGH PLEA BARGAINING As we have seen, character evidence may distort
justice. A lack of character evidence, however, strips the defendant of his unique human
characteristics. Plea bargaining as dialogue may sidestep the problem of character evidence and
suggest a middle path between exploring the defendant’s soul, as illustrated by The Stranger,
and addressing the defendant as a pure number devoid of personality, as reflected in the kind
of plea bargaining offered to Galin E. Frye of Missouri. This intermediate approach is
manifested in the conducting of true negotiations between prosecutor and defendant in which
the defendant and the defense counsel are given the opportunity to present the defendant’s
positive traits.

Champion Briefs 262


NEG: Virtue Ethics NC Jan/Feb 2018

Plea bargaining can become a forum for forgiveness.

Kitai-Sangero, Rinat. “Plea Bargaining As Dialogue.” Akron Law Review. November, 2015. Web.
December 08, 2017.
<http://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=2354&context=akronlawr
eview>.

Bibas suggests the interesting possibility of allowing crime victims to express their feelings and
to forgive the offender in appropriate cases through the plea-bargaining process. Additionally,
the victim and the defendant should have the opportunity to meet and talk during these
proceedings, at which time defendants should have the opportunity to manifest remorse and
offer restitution to victims.133 This suggestion leads to the next advantage of plea bargaining
as dialogue: securing some of the aims of restorative justice without depending on the victim’s
attitude toward the defendant.

Champion Briefs 263


NEG: Virtue Ethics NC Jan/Feb 2018

Plea bargaining can facilitate restorative justice.

Kitai-Sangero, Rinat. “Plea Bargaining As Dialogue.” Akron Law Review. November, 2015. Web.
December 08, 2017.
<http://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=2354&context=akronlawr
eview>.

Restorative justice allows the defendant to understand the human side of the harm that was
caused.136 People’s attitudes following the offense reflect the importance of the social norm
violated.137 Undoubtedly, an apology that is attendant upon repentance may have a curative
effect on the victim.138 Many victims prefer forgiveness over retribution.139 Plea bargaining
negotiations may provide an excellent opportunity for a remedial offender-victim
encounter.140 The prosecutor could simply enter the victim into the dialogue with the
defendant in appropriate cases and at the appropriate time

Champion Briefs 264


NEG: Virtue Ethics NC Jan/Feb 2018

There is no unique danger that defendants will fake remorse.

Kitai-Sangero, Rinat. “Plea Bargaining As Dialogue.” Akron Law Review. November, 2015. Web.
December 08, 2017.
<http://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=2354&context=akronlawr
eview>.

C. Faking Good Character and Repentance Scholars argue that one of the justifications for plea
bargaining is that it allows prosecutors to take human considerations into account156 and,
hence, to bypass the rigidity of the Sentencing Guidelines.157 It may be argued, however, that
laying stress on a dialogue that provides the defendant with the opportunity to present his
good qualities may benefit manipulative defendants who succeed in deceiving with their charm.
The defendant can simply fake repentance in order to gain a milder punishment.158 It is
difficult to identify repentance or to evaluate its sincerity.159 After all, “if a jurisdiction reduces
punishment for convicts who express contrition, it invites a parade of purely instrumental
apologies into its sentencing procedures and risks rewarding the best actors rather than the
most transformed.”160 At any rate, it is difficult to assess a defendant’s traits in the short span
of time available to become familiar with him.161 Additionally, most of an offender’s personal
characteristics are not relevant to sentencing.162 However, defendants might prompt
sympathy for reasons unrelated to the degree of guilt or degree of dangerousness. Sympathy
and lack of sympathy for the defendant can be influenced by irrelevant grounds, such as race,
gender, religion, and the social class to which the defendant belongs.163 The danger that the
defendant would fake remorse or be judged by irrelevant criteria is not unique to plea
bargaining negotiations; it also exists at a trial.164 Therefore, this argument fails to undermine
the process of a true dialogue with the defendant. Moreover, if expressed repentance is
revealed to be insincere, it can hurt the victim and enhance the injury caused by this person in
the wake of the offense.165 Such insincerity would not personally hurt— certainly not to the
same degree—the prosecutor who conducts the negotiations with the defendant.

Champion Briefs 265


NEG: Virtue Ethics NC Jan/Feb 2018

The virtue of forgiveness requires restorative justice, which does not


prioritize the harshest punishments.

Pillsbury, Samuel. “Learning From Forgiveness.” May 20, 2009. Web. December 08, 2017.
<http://www.tandfonline.com/doi/abs/10.1080/07311290902831490>.

Critics, especially those making restorative justice arguments, have proposed a conceptual and
emotive reworking of criminal responsibility. They argue that we should move away from
sentencing based exclusively on deserved punishment for past wrongs, because this promotes
rage at wrongdoers by reducing them to a criminal category. We should move toward to a
relational process that is informed by compassion for victims and offenders. In this fashion we
might reconcile offender and society through more personal, moral, and emotional processes,
especially through acts of apology and forgiveness.8 Some contend that if our real aim were
reconciliation, then we would not feel the need for such harsh punishments. We would not feel
driven to condemn a 15 year old to permanent incarceration, even for murder. All of this
suggests that the criminal law might be reformed by a taking a different approach to
punishment and a different view of the convicted. Even in sentencing we might take lessons
from a more personal and overtly compassionate form of judgment: forgiveness. Forgiveness,
after all, is a virtue celebrated in most other contexts.

Champion Briefs 266


NEG: Virtue Ethics NC Jan/Feb 2018

Forgiveness is a virtue--it is what a good person would pursue.

Griswold, Charles. “On Forgiveness.” Practical Ethics. January 17, 2011. Web. December 08,
2017. <http://blog.practicalethics.ox.ac.uk/2011/01/on-forgiveness/>.

Why forgive? What makes it the commendable thing to do at the appropriate time? It’s not
simply a matter of lifting the burden of toxic resentment or of immobilizing guilt, however
beneficial that may be ethically and psychologically. It is not a merely therapeutic matter, as
though this were just about you. Rather, when the requisite conditions are met, forgiveness is
what a good person would seek because it expresses fundamental moral ideals. These include
ideals of spiritual growth and renewal; truth-telling; mutual respectful address; responsibility
and respect; reconciliation and peace. My sketch of the territory of forgiveness, including its
underlying moral ideals, has barely mentioned religion. Many people assume that the notion of
forgiveness is Christian in origin, at least in the West, and that the contemporary understanding
of interpersonal forgiveness has always been the core Christian teaching on the subject. These
contestable assumptions are explored by David Konstan in “Before Forgiveness: The Origins of a
Moral Idea.” Religious origins of the notion would not invalidate a secular philosophical
approach to the topic, any more than a secular origin of some idea precludes a religious
appropriation of it. While religious and secular perspectives on forgiveness are not necessarily
consistent with each other, however, they agree in their attempt to address the painful fact of
the pervasiveness of moral wrong in human life. They also agree on this: few of us are
altogether innocent of the need for forgiveness.

Champion Briefs 267


NEG: Virtue Ethics NC Jan/Feb 2018

Character ethics is compatible with a focus on desert in criminal


justice.

Ingram, Andrew. “A (Moral) Prisoner.” December 11, 2017. Web. December 08, 2017.
<http://moritzlaw.osu.edu/students/groups/osjcl/files/2013/12/8.-Ingram.pdf>.

The idea of a side constraint carries over to the field of criminal justice. Today, many
retributivists argue that desert is a side constraint on punishment.46 According to these
thinkers, the gravity of a person’s misdeed only establishes the ceiling for punishment, and
other considerations, like deterrence, can be used to make adjustments below that
maximum.47 For example, a person may deserve to spend two years in prison for a robbery,
but the optimal level of deterrence established by empirical studies is six months. If desert is
merely regarded as a side constraint, there is no objection to sentencing her to six months. Just
as consequentialist concerns, such as deterrence, can be wedded to the side constraint view of
desert, the values of character ethics can also be melded to it. For instance, a criminal justice
system that affirmatively sought to build good character could also well recognize that its
authority to imprison in the interests of rehabilitation was bounded at the top end by the
severity of the criminal’s deeds. Likewise, we can worry about the relationship of plea-
bargaining practices to character without thereby forgetting that a wrongful action is the
condition precedent to any invocation of the criminal justice process. When this is recognized,
character ethics cannot be dismissed out of hand as inapposite to conversations about the
morality of criminal justice.


Champion Briefs 268
A/2: Virtue Ethics NC Jan/Feb 2018

A criminal justice system driven by plea bargaining leaves no room for


forgiveness.

Bibas, Stephanos. “Forgiveness In Criminal Procedure.” University of Pennsylvania Law School.


2007. Web. December 08, 2017.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1920&context=faculty_s
cholarship>.

The process leading to forgiveness is an important social ritual. Family members, friends, and
colleagues routinely express remorse, apologize, and seek forgiveness from those whom they
have wronged. Forgiveness, while acknowledging the wrongfulness of the act, separates that
act from the actor and paves the way for the offender to return to the moral fold. Having
forgiven, victims can heal, move on with their lives, and go back to living and working with the
offender more normally. Modern American criminal justice, however, has little room for
forgiveness. It has become an assembly line, a plea-bargaining factory that speeds up cases and
reduces costs by sacrificing the offender’s and victim’s day in court.1 The state exacts its justice
impersonally, nominally for the community, primarily to incapacitate the dangerous offender
and to deter him and others. This lawyer-driven state monopoly minimizes the roles of
offenders, victims, and communities. There is little effort to understand, heal, or reform
offenders. Police and lawyers take control of the process from the moment of the crime report,
and they forbid or discourage offenders and victims to have any contact or discuss a case. The
logic of adversarial combat leads each side to take an antagonistic posture, instead of engaging
in dialogue and seeing the other’s point of view. Victims and community members play little
role, apart perhaps from allocuting or submitting letters at sentencing. There is thus little room
for the parties most involved to communicate, let alone to understand, apologize, and forgive.

Champion Briefs 269


NEG: State Bad NC Jan/Feb 2018

NEG: State Bad NC


The State Bad negative is a criticism of the state. Certain arguments may pertain to
working within the state being bad or certain things within the state failing (i.e., legal reform).
These kinds of case positions are ones that directly clash with the affirmative. If the affirmative
is making the claim that we should abolish plea bargaining, this case directly responds by
explaining abolishing plea bargaining will not solve the root cause of corruption and how
working within the state to do so is problematic. These arguments can either be made using
real world examples of how there is corruption other than plea bargaining in the Criminal
Justice system, or using more theoretical arguments of how any state institution will always be
problematic.

Champion Briefs 270


NEG: State Bad NC Jan/Feb 2018

The state has always been one that does not care about its people.

Pulido, Laura. “State Regulation And Environmental Justice: The Need For Strategy
Reassessment.” Capitalism Nature Socialism. March 04, 2016. Web. December 10, 2017.
<http://www.tandfonline.com/doi/full/10.1080/10455752.2016.1146782>.

Conclusion. We have argued that through its reliance on the state the EJ movement has not
been successful at improving the environmental quality of vulnerable populations. Exide
Technologies illustrates the inability and/or refusal of diverse parts of the state to enforce
existing laws. The many reasons for this include a lack of awareness, the judiciary’s willingness
to strike deals, and the local regulatory agency’s failure and/or unwillingness to close the facility
when it did not comply with regulations. In the second case, a predominantly Black community
in Gainesville Georgia has not been able to secure a clean environment for decades. Here, no
laws are being broken. Rather, there is an absence of meaningful regulation and enforcement,
especially concerning small emitters. The local state consistently tells activists that its hands are
tied and that nothing can be done, when in reality, the inaction reflects a lack of political will.
Though certainly there is room for enhanced regulatory science and policy practices, especially
around cumulative exposure (Sadd et al. 2011 Sadd, James, Manuel Pastor, Rachel Morello-
Frosch, Justin Scoggins, and Bill Jesdale. 2011. “Playing It Safe: Assessing Cumulative Impact and
Social Vulnerability through an Environmental Justice Screening Method in the South Coast Air
Basin, California.” International Journal of Environmental Research and Public Health 8 (5):
1441–1459. doi: 10.3390/ijerph8051441), it should be clear that the problem is primarily one of
politics.The question we are left with is “why?” Why have these communities and the larger EJ
movement been unable to extract meaningful protection from the state? Part of the challenge
in answering this question is the diversity of the EJ movement, the myriad challenges individual
communities face, and the various measures of success within and outside the movement.
Despite this diversity, we feel there are important overarching themes. The first point to stress
is the extent to which vulnerable communities, in this case communities of color, are essential
to the functioning of racial capitalism. Racial capitalism is a distinct interpretation of capitalism

Champion Briefs 271


NEG: State Bad NC Jan/Feb 2018

that acknowledges race as a structuring logic (Robinson [1983] 2000 Robinson, Cedric. [1983]
2000. Black Marxism: The Making of the Black Radical Tradition. Chapel Hill: University of North
Carolina Press.). Racism, as a material and ideological system that produces differential
meaning and value, is harnessed by capital in order to exploit the differences that racism
creates. In this case, devalued communities, places, and people serve as pollution “sinks,” that
enable firms to accumulate more surplus than would otherwise be possible (see also Faber
2008 Faber, Daniel. 2008. Capitalizing on Environmental Injustice: The Polluter-Industrial
Complex in the Age of Globalization. Lanham, MD: Rowman & Littlefield., ch. 1).We must bear
this fundamental truth in mind when considering how the EJ movement has imagined the state
and approached it. There is no doubt that activists understand that they are essential to racial
capitalism, even if they do not express it in those terms. But they seem to believe that the state
will actually protect them. Accordingly, they approach the state with a great deal of faith and
hope. This is especially the case in California with its many Latina/o politicians. Hope and faith
are not the only emotions that accompany interactions with the state, however. There is also
distrust, disappointment, and desperation. In the case of the NFC, who have worked with EPA
Region 4 for over 25 years and seen little change in the community, they still feel that the EPA is
the only option, even if they are pessimistic that such efforts will actually result in meaningful
change. The fact that activists continually turn to the state and see it as the only option
suggests the hegemony of the state in terms of creating social change: activists cannot readily
identify paths outside of the framework offered by the state. It is important here to recall the
deep connections between the CRM and the EJ movement. While Swyngedouw and Heynen
(2003 Swyngedouw, Erik, and Nik Heynen. 2003. “Urban Political Ecology, Justice and the
Politics of Scale.” Antipode 35 (5): 898–918. doi: 10.1111/j.1467-8330.2003.00364.x) have
argued that the EJ movement is a fundamentally liberal project, we believe that the movement
includes a diversity of political orientations, including some quite radical and some more
conservative (Carter 2016 Carter, Eric. 2016. “Environmental Justice 2.0: New Latino
Environmentalism in Los Angeles.” Local Environment: The International Journal of Justice and
Sustainability 21 (1): 3–23. doi:10.1080/13549839.2014.912622.). Yet, there is no denying that
the movement’s dominant strand is liberal. Indeed, Pellow and Brulle (2005 Pellow, David, and

Champion Briefs 272


NEG: State Bad NC Jan/Feb 2018

Robert Brulle. 2005. Power, Justice, and the Environment: A Critical Appraisal of the
Environmental Justice Movement. Cambridge, MA: The MIT Press.) have advocated for a critical
EJ studies. As a primarily liberal movement, EJ seeks to address the most problematic aspects of
capitalism and racial domination, without necessarily challenging capitalism or the state’s
efforts to protect it. Perhaps EJ is following the path of many other social movements,
splintering between more liberal and radical factions. Liberal groups will continue to work with
the state, while the latter confronts it, perhaps through alliances with anarchist and/or anti-
capitalist formations, with environmentalists from the Global South, or with counterhegemonic
identity movements, such as Black Lives Matter.Using conventional strategies, especially relying
on the state in this neoliberal era, will not produce conditions that compel polluters to stop.
The state is not about to eliminate the necessary “sinks” that communities of color provide, for
fear of both capital flight and the wrath of conservatives. Instead, the state gives lip-service to
EJ but in fact does little to change the materiality of disproportionate pollution patterns. In the
case of Exide, it was only after the story had been publicized for years by the Los Angeles Times
that the facility was finally closed down. The inability of regulators to control Exide became a
joke, and the legitimacy of state and local regulators was threatened.3 And recall, Exide
decided to close instead of facing criminal charges.What is needed on the part of the EJ
movement is a fundamental rethinking of its attitude towards the state. Instead of seeing the
state as a helpmate or partner, it needs to see the state as an adversary and directly challenge
it. While the early EJ movement did this, over the decades it has been increasingly co-opted by
the state and lost much of its oppositional content. It can regain its radical position by not only
challenging the state, but refusing to participate in regulatory charades. The EJ movement
should take a page from Black Lives Matter. It’s not about being respectable, acknowledged,
and included. It’s about raising hell for both polluters and the agencies that protect them. Given
the planetary crisis we are facing, we need a radicalized EJ movement more than ever.

Champion Briefs 273


NEG: State Bad NC Jan/Feb 2018

Criminal justice system is extremely corrupt- laundry list.

Gordon, John. “A Corrupt Criminal Justice System.” Commentary Magazine. March 20, 2014.
Web. December 10, 2017. < https://www.commentarymagazine.com/american-
society/a-corrupt-criminal-justice-system/>.

Glenn Reynolds not only runs the indispensable Instapundit website, he is also a distinguished
law professor at the University of Tennessee and writes a regular column for USA Today.
Today’s column is an important one, “Our Criminal Justice System Has Become a Crime.” The
problem with the system is that prosecutors have acquired far too much power and face few
consequences for bad behavior. Prosecutorial discretion—deciding whom to go after and
whom to ignore—is an open invitation to corruption. And this corruption can have
consequences beyond the individuals involved. Had Senator Ted Stevens not been convicted a
week before he narrowly lost reelection in 2008 in a trial that involved “gross prosecutorial
misconduct,” he undoubtedly would have been reelected and the Democrats would not have
had the sixty votes in the Senate they needed to ram ObamaCare through. Criminal statutes
have proliferated to such an extent that the federal government doesn’t even know how many
federal criminal statutes there are. People break laws all the time without knowing it. So a
prosecutor investigating an individual can often find evidence of dozens, even hundreds, of
“crimes” and charge the individual with them. And usually the case never goes to trial. Instead
the person charged is offered a plea bargain and has no real option but to take it. As Reynolds
points out, while a criminal trial positively bristles with due process—especially the jury’s power
to determine guilt—the pretrial process has little due process. Prosecutors decide whom to
investigate and what charges to file. Grand juries seldom refuse to indict. Reynolds has
solutions: First, prosecutors should have “skin in the game” — if someone’s charged with 100
crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would
discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.)
Second, plea-bargain offers should be disclosed at trial, so that judges and juries can
understand just how serious the state really thinks the offense is. Empowering juries and grand

Champion Briefs 274


NEG: State Bad NC Jan/Feb 2018

juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham
sandwich) would also provide more supervision. And finally, I think that prosecutors should be
stripped of their absolute immunity to suit — an immunity created by judicial activism, not by
statute — and should be subject to civil damages for misconduct such as withholding evidence.
As Reynolds likes to say, read the whole thing. This problem needs much more attention.

Champion Briefs 275


NEG: State Bad NC Jan/Feb 2018

America’s criminal justice system focusing on punishment and not


rehabilitation will never move forward and break cycles of recidivism.

Tillis, Chris. “America’s Criminal Justice System Is Broken.” CNN. January 09, 2017. Web.
December 10, 2017. <http://www.cnn.com/2017/01/09/opinions/america-needs-
criminal-justice-reform-coons-tillis/index.html>.

That’s not the case. We share a strong belief that America’s criminal justice system is broken,
focusing far too much on criminalization and incarceration and far too little on rehabilitation. A
compelling example of the urgent need for reform is how our system treats juvenile offenders.
We know that young people’s relationship with the criminal justice apparatus has powerful,
lasting consequences for them, their families, and their communities. It is therefore vitally
important we make sure that all children who come into contact with the criminal justice
system are treated fairly and appropriately, are not forgotten, and are afforded an opportunity
to rehabilitate and become productive, contributing members of society. Our agreement on
this issue was on display late last year at a juvenile justice summit, where we shared the stage
for a discussion on a key challenge facing our country: a criminal justice system that over-
emphasizes incarceration and is woefully inadequate when it comes to rehabilitation, even for
our nation’s youth. Men and women in law enforcement work hard to protect our communities
across the country. As legislators, we must be committed to developing a criminal justice
system that effectively promotes public safety, fairness, and rehabilitation. We believe
Congress has both a moral and a fiscal imperative to ensure that our criminal justice system
appropriately calibrates sentences to offenses. That is being smart on crime, not soft on crime.
Despite political disagreements in Congress on a broader criminal justice reform package --
disagreements we hope to move past next year -- Democrats and Republicans surely can agree
that children shouldn’t be locked in a solitary confinement cell for 23 hours a day, or housed
with other prisoners twice their age and size, or unnecessarily restrained and shackled for
minor infractions, or harshly punished for low-level, nonviolent offenses. Surely we can agree
that juveniles’ interactions with the judicial system shouldn’t be just about punishment, but

Champion Briefs 276


NEG: State Bad NC Jan/Feb 2018

instead must also focus on understanding the impacts of what they have done and why it was
wrong. A system that focuses on rehabilitation, not punishment, doesn’t excuse bad behavior.
Rather, it helps all parties heal and move forward, and it keeps all of us safer by breaking cycles
of recidivism.

Champion Briefs 277


NEG: State Bad NC Jan/Feb 2018

It is virtually impossible to bring about legal reform in the United


States.

Howard, Philip. “Reform Is Not Enough: The Federal Government Needs A Complete
Makeover.” The Atlantic. August 03, 2012. Web. December 10, 2017.
<https://www.theatlantic.com/politics/archive/2012/08/reform-is-not-enough-the-
federal-government-needs-a-complete-makeover/260669/>.

Congress has created rules that require herculean effort to make easy choices -- say,
confirmation of officials -- and render meaningful change impossible. The filibuster rule assures
stalemate in the Senate. Committee rules make it almost impossible to bring a new proposal to
the floor of the House. Bright new people get elected and find themselves suffocated and
powerless. The Executive Branch operates in a dense jungle of accumulated law. The president
can’t approve a new power line or wind farm without a decade or so of environmental review.
The president can’t even appoint a committee to clean out the legal jungle without complying
with the Federal Advisory Committee Act, which is so laden with conditions on membership and
public process that a meaningful recommendation is almost impossible. The Simpson-Bowles
proposal, for example, didn’t have a chance of approval by the appointed committee, so
Simpson and Bowles just took it upon themselves to present their own proposal. Special
interests are not principals but agents, motivated not to solve problems but to “work them.”
Actually solving a problem would eliminate their jobs. An entire industry is built around the
conflict between “pro-life” and “pro-choice” factions. The more polarization, the better off both
sides are. The political parties each fill their campaign coffers by milking this conflict for all it’s
worth. Even if some pure-minded lobbyist wanted to solve a problem, the dynamics of special-
interest groups would keep driving positions toward the lowest common denominator. Senior
environmentalists have told me that it would be desirable to radically streamline environmental
review to enable rebuilding of our country’s power grid, but they could never join with industry
to support such a speedy process, because their “base” would think they were selling out.
Democracy’s goals have changed. Government is played as a game, not as a fiduciary

Champion Briefs 278


NEG: State Bad NC Jan/Feb 2018

responsibility to get things done. Running the country is not what political leaders mainly think
about. They wake up every morning calculating how to beat the other party. You think this is
too cynical? Hearings for completely unobjectionable judicial candidates are held up for years
because of unrelated partisan bickering. A chief of staff for a Democratic senator once told me
that a bill that perfectly reflected Democratic policy was rejected because it was introduced by
a moderate Republican.

Champion Briefs 279


NEG: State Bad NC Jan/Feb 2018

Even those who seek reform have given up due to the impossibility of
change.

Howard, Philip. “Reform Is Not Enough: The Federal Government Needs A Complete
Makeover.” The Atlantic. August 03, 2012. Web. December 10, 2017.
<https://www.theatlantic.com/politics/archive/2012/08/reform-is-not-enough-the-
federal-government-needs-a-complete-makeover/260669/>.

Even reformers have given up. What is politically feasible, they ask? The answer is clear:
nothing. Change will nonetheless happen, political scientists tell us. How? Through a crisis. (See
my March essay “The U.S. Government Is Too Big to Succeed.”) The main challenge then will be
not merely to reform Medicare and other unsustainable programs. The challenge will be to
change the culture of government. Fixing democracy certainly requires toppling the walls of the
status quo: constitutional amendments to reform campaign finance and to require programs to
sunset every 15 or 20 years; empowering spring cleaning commissions to turn the junk pile of
regulatory law into coherent codes; scrapping civil service as we know it, to end the
presumption of lifetime careers and to revive public accountability; and eliminating the
revolving door between Congress and K Street by banning lobbying for at least five years after
public service. Even all these changes, possible only in the desperation of a crisis, might not be
enough to change a culture that is terminally cynical. Somehow we have to change how people
in government behave. I had a fantasy in my last book that America should move the national
capital. It wouldn’t matter where, as long as government is run by new people not infected by
the current culture. Almost no current public employees would be able to move to the new
capital … because they wouldn’t be able to sell their homes. Just imagine it: a sea of “For Sale”
signs up and down the streets of Georgetown and Chevy Chase, with no takers because there
are soon to be no jobs. I ended this riff with Disney taking over Washington as a theme park
and rehiring everyone to do just what they’re doing now -- pretending to do something. If we
can’t move the capital, the only way to change the culture is to put public employees on the
spot. Today, with the exception of Federal Reserve Chairman Ben Bernanke, it’s almost

Champion Briefs 280


NEG: State Bad NC Jan/Feb 2018

impossible to identify a government official who actually has responsibility to make choices.
Democracy can never work until we bulldoze the current bureaucratic model and replace it
with individual responsibility and accountability. American culture is still strong, but our
democracy is broken. It cannot be fixed by this reform or that. Its failure is now embedded in a
subculture that is devoid of individual responsibility. Government needs a complete makeover -
- not only new rules, but a transformation of how public choices get made. We’ll never have a
responsible government until identifiable people have the responsibility to get things done and
can be fired if they don’t.

*Ellipsis from source

Champion Briefs 281


NEG: State Bad NC Jan/Feb 2018

Focus on punishment in the CJS is not addressing the root cause of the
problem.

Kelly, William. “The Criminal Justice System Is A Massive Failure. Here’s A Solution.” UT News.
June 01, 2015. Web. December 10, 2017. <https://news.utexas.edu/2015/06/01/the-
criminal-justice-system-is-failing-here-s-a-solution>.

Contrary to logic, intuition and common sense, the hard fact is that punishment does not
reduce criminal offending. This may be a difficult one for some to swallow, especially since the
past 45 years and more than $1 trillion have been spent on punishment as the centerpiece of
American criminal justice policy. We essentially bet the farm on punishing more and more
criminal offenders more and more severely. Unfortunately, we lost the farm. We missed one
very important observation. The simple fact is that while punishment works for the most part
on those of us who are law abiding, criminal offenders are not us. They lack many of the
opportunities, alternatives and options we have. Punishment doesn’t change many of the
problems, deficits and impairment that characterize the offender population. A number of
factors came into play to keep punishment as the primary tool of criminal justice. Front and
center are the political benefits of keeping the train headed in the same direction and gaining
momentum. Politicians routinely claimed it worked, often accompanied by the rallying cries of
“lock them up and throw away the key” and “do the crime, do the time.” But there is
overwhelming evidence of just how big of a policy failure it actually is. We have the largest
prison population in the world, and the vast majority of criminal offenders, well north of 60
percent, reoffend within three years of being released from prison. Fortunately, today we have
the tools to remarkably reduce crime, recidivism, victimization and cost, if we are smart.
Criminal justice policy going forward should be based on the simple premise of accurately
distinguishing between those offenders we should rightfully fear and those who just make us
mad. For those we rightfully fear — violent offenders, truly habitual offenders and those who
have no interest in behavioral change — there is prison. Those are the offenders who need to
be removed from society. But for those who do not fall into the “truly fear” category, we need a

Champion Briefs 282


NEG: State Bad NC Jan/Feb 2018

different path. The evidence is clear that the key is diversion from incarceration, accompanied
by accurate screening and assessment to determine what problems need to be addressed, and
providing the necessary resources to effectively change behavior. All of this needs to be done in
an environment of supervision, compliance and accountability, accompanied by appropriate
sanctioning for noncompliance. Sounds simple, but the devil is truly in the details. We need to
build sufficient diversion and treatment capacity, change sentencing laws to provide for much
greater diversion, bring the necessary clinical expertise to the table, make judicial and
prosecutorial decision making much more collaborative, and change how we think about crime
and punishment.

Champion Briefs 283


NEG: State Bad NC Jan/Feb 2018

After the Criminal Justice system fails a rape victim, she sues the
defendant in civil court.

Resnick, Sofia. “Victims Of Rape And Sexual Assault, Failed By Criminal Justice System,
Increasingly Seek Civil Remedy.” Rewire. January 08, 2016. Web. December 10, 2017.
<https://rewire.news/article/2016/01/08/victims-rape-sexual-assault-failed-criminal-
justice-system-increasingly-seek-civil-remedies/>.

Alfredo Simón, a former pitcher for the Detroit Tigers who is now a free agent, is big for a
baseball player. The 34-year-old stands 6 feet 6 inches tall and weighs 265 pounds, according to
his official stats. Simón’s stature may be imposing on the field, but it seems even more so when
reading through a civil complaint lodged in 2014 that accuses him of rape. According to his
accuser, the assault occurred when Simón was in Washington, D.C., playing with his old team,
the Cincinnati Reds, in a game against the Washington Nationals. The 29-year-old woman, who
in court documents is named Jane Doe, says she met Simón at a club, where she consumed
several drinks and became intoxicated. Doe left with Simón in the early morning hours of April
28, 2013, and they started making out in his hotel room. Simón, she says, held her down
despite her resistance, and anally raped her. Each time she tried to flee, she says, he would
push her back onto the bed. Doe says he eventually yanked her by her hair and ejaculated in
her face. A forensic nurse examiner recorded Doe’s injuries in the sexual assault exam she took
at the hospital later that day. Four days later, Doe reported the assault to police. According to
the court documents, the rape kit detailed vaginal and anal abrasions and anal tears—injuries
that, forensic medical experts would later testify in the civil case, corroborated her story. These
injuries were not, however, recorded in photographs. Doe declined the nurse’s offer to snap
images of her injuries, perhaps not understanding their potential value in bolstering her version
of events. Instead, an image that did make it into Doe’s police file was a photocopy of her cell
phone exchange with the friend she had gone out with that night. Doe told her friend she was
leaving the club to go “fuck the baseball player.” In her initial interview with police, Doe
explained that she had intended to have sex with Simón. But, as noted in her civil complaint,

Champion Briefs 284


NEG: State Bad NC Jan/Feb 2018

she withdrew her consent once Simón “started to get rough with her.” Police did not interview
Simón, according to court records. Ultimately, the evidence gathered wasn’t enough for the
U.S. Attorney’s Office for the District of Columbia, which prosecutes crimes that occur in D.C.
The prosecutors presented this case to a grand jury, but notes from Doe’s police file indicate it
was the U.S. Attorney’s Office that made the decision not to file charges against Simón, citing
“insufficient evidence” and “good defense.” Historically, that would have been the end of the
matter, at least from the defendant’s perspective. But Doe did not accept the state’s view as
the final say on her case. Instead, she filed a civil lawsuit against Simón, claiming $10 million in
punitive damages for assault, battery, and intentional infliction of emotional distress, and $5
million to compensate her for medical expenses and lost wages. The case ultimately settled for
a fraction of that amount—$150,000, Simón’s attorneys told USA Today—and Simón did not
admit any wrongdoing. William Miller, a spokesperson for the U.S. Attorney’s Office for D.C.,
would not comment on Doe’s case. “We are legally barred from providing information about
confidential grand jury proceedings,” he said in an email. Legal experts told Rewire that by
suing her alleged attacker in civil court, Jane Doe joined the ranks of a growing movement in
the field of sexual assault. Though there is no comprehensive national database that tracks the
number of civil cases brought against alleged perpetrators of sexual assault, anecdotal evidence
suggests a trend in the United States for victims to seek civil redress. Every year, thousands of
cases involving allegations of sexual assault are abandoned in the United States due to a range
of reasons. These include lackluster police investigations, lack of forensic evidence, a victim’s
unwillingness to testify, and, according to a recent White House report, because “law
enforcement officers and prosecutors are not fully trained on the nature of these crimes or how
best to investigate and prosecute them.” Indeed, rape is notoriously difficult to prosecute and
harder to prove. Even after decades of criminal justice reform and dedicated efforts from
survivors and advocates, prosecutors are generally reluctant to go after alleged persecutors
aggressively, often fearing they won’t win a conviction. Trials can also be traumatic for victims,
who frequently face juries biased by cultural assumptions about rape. “We [in society] generally
don’t second-guess people who say that they were burglarized or say that their car was stolen
or who say that they were assaulted, but we absolutely second-guess people that claim that

Champion Briefs 285


NEG: State Bad NC Jan/Feb 2018

they were sexually assaulted,” former special victims prosecutor Roger Canaff told Rewire in a
phone interview. “We either are skeptical of the truth of the allegation or we look to blame
that person.” Unlike criminal trials, which require the prosecution to prove the defendant’s
guilt “beyond a reasonable doubt,” civil trials have a much lower bar, requiring only that a
plaintiff persuade a judge or jury that it is more likely than not that the events occurred. For
many victims, it is easy to see the appeal of choosing a venue where they are at least held to a
more attainable burden of proof than in a criminal court. Sometimes they file a civil suit in
addition to pursuing criminal charges, or they only make a civil complaint. Civil rights attorney
Gloria Allred, whose Los Angeles-based firm has specialized in representing women who have
been victims of various types of sexual abuse and harassment, says she is seeing increasing
numbers of women consider civil remedies as a form of justice after they have been sexually
attacked. “More and more, I think victims are very seriously considering the civil option,
because it’s empowering,” Allred told Rewire in a phone interview. “You’re moving from being
a victim to a survivor to a fighter for change.” This shift in mentality is especially apparent in the
civil claims against Bill Cosby, who has become the face of one of the most high-profile cases of
sexual assault allegations in the past decade. Allred’s firm—Allred, Maroko & Goldberg—
represents about half of the nearly 60 women who have so far come forward with claims,
reaching as far back as the ‘60s, against the man formerly known as “America’s Dad.” Coverage
of the claims against Cosby has intensified over the past two years, but the fact remains that
the fallen Hollywood star has yet to serve time for any of the allegations against him. Cosby
faced his first criminal charges in one of these cases only very recently. Prosecutors in
Pennsylvania charged him with sexual assault in late December for allegedly drugging and
sexually assaulting a woman in 2004. For his accusers, Allred says civil court offers women
another opportunity for justice. And she says the civil route is empowering because, unlike
criminal prosecutions where the state is in charge, civil cases enable victims to decide whether
and how to proceed in their case. “It’s the case of the victim, not the case of the people of that
state,” Allred said. “As [people] see women standing up and not being afraid to fight back, it
does have a ripple effect, and it does inspire other survivors to think, ‘Well, if she can do it,
maybe I can do it, too.’”

Champion Briefs 286


NEG: State Bad NC Jan/Feb 2018

Although the criminal justice system was created to keep


communities safe, it has only furthered incarceration and corruption.

DeRoche, Craig. “A Failing Criminal Justice System.” March 12, 2012. Web. December 10, 2017.
<https://www.nytimes.com/roomfordebate/2012/03/12/young-black-and-male-in-
america/a-failing-criminal-justice-system>.

The criminal justice system in America was created to keep communities safe, to respect and
restore victims, and to return offenders who leave prison to be self-sufficient and law-abiding.
What the system has become is a monumental failure that our states and nation can no longer
afford. Beyond the dollars spent, our failing criminal justice system contributes to our cultural
decline, the breakdown of the traditional family and dependency on public assistance
programs. The statistics documenting the failure of our system are unrivaled in human history.
The United States today imprisons 1 in 100 residents and has 1 in 31 citizens on parole or
probation. The growth in criminalization has led to no measurable decrease in recidivism
despite increasing our prison population tenfold. Government employment in criminal justice
has grown by 1 million employees since 1980, as is noted by Michelle Alexander in “The New
Jim Crow.” Amazingly, the call to continue to grow the government and perpetuate this failure
is usually led by conservatives and supported by African-American leaders, from the president
to our local mayors. The fact that minorities are unfairly targeted goes beyond decriminalizing
marijuana or a handful of petty crimes. Prosecutors and police budgets are rewarded for
convictions, and they are not held to account for their contribution to spending in prisons or for
increases in welfare and Medicaid dependence. Our minority population is a reliably easier
target for getting the numbers by which society measures law enforcement today. Statistically,
trolling for low-level law breakers has distracted the public from demanding justice where it is
most needed. For example, Chicago solved only 30 percent of the murders committed in 2011
(down from 80 percent in 1991). Comparing this to a Brookings employment study for 2011,
getting away with murder was easier than finding a job for the unemployed in Chicago.

Champion Briefs 287


NEG: State Bad NC Jan/Feb 2018

Plea bargaining is non-unique, criminal justice system as a whole is


unjust. Examples prove: (trigger warning mention of sexual assault).

Backus, Tatyana. “Why Our Criminal Justice System Is Failing.” Odyssey. September 25, 2016.
Web. December 10, 2017. <https://www.theodysseyonline.com/why-our-criminal-
justice-system-is-failing>.

The criminal justice system is the set of agencies and processes established by governments to
control crime and impose penalties on those who violate laws, as defined by The National
Center for Victims of Crime. In America, the justice system has proven countless of times that it
does not uphold high standards. In July of 2014, Kraigen Grooms was arrested during a child
pornography investigation, where his original sentence was ten years in prison. Grooms
pleaded guilty, and was required to register as a sex offender, which in my opinion, was still an
ameatur sentencing because he would have the ability to be released from prison by 2024, just
shy of his 30th birthday. On Monday September 19th, The Washington Post posted an article,
discussing the aftermath his court case. It was revealed that Groom was caught on video,
engaging in a sexual act with a one-year-old girl, and after being in jail since 2014, was
sentenced to five years of probation. Yes, you read correctly, a mere five years of probation.
Grooms was relieved from a ten year sentence, but to make matters worse, the his family
spoke on his behalf, communicating their wishes that Grooms does not receive a prison
sentence, as stated in the article. It also goes to say that the Grooms family’s thoughts and
opinions significantly influenced the judge’s sentencing, which angered not only myself, but
many others, whether they were personally involved in the case, or not. Grooms assaulted an
innocent little girl; he assaulted a toddler, and somehow, both his family and the judge believe
that his actions warrant less than prison time because the victim is “too young to be aware of
what was happening,” and “suffered no ill effects as a result of his actions.” Why does any of
that matter? Why does anyone believe that because this child was unaware and unharmed,
mean that it is okay to let this criminal go? Grooms is eighteen years older than this child. There
was/is no chance of consent, and because the child in still in early stages of development, she

Champion Briefs 288


NEG: State Bad NC Jan/Feb 2018

does not have a strong sense of trust, meaning her lack of communication and know-how, was
taken advantage of. Society has joined together, and petitioned to remove the judge from the
bench because they believe he is a “sympathizer for a “toddler rapist,” which has earned more
than 7,000 signatures. Both this case, and the justice system is failing miserably. There are
people receiving almost life-long sentences for simple misdemeanors such as possession of
marijuana, burglary, or even car theft-- when rapists, in some cases murderers, are being let
off. Now, I am not saying that misdemeanors are not crimes that do not require recognition,
because they do. However, time and time again, men AND women guilty of sexual assault
and/or rape, are getting off with a simple slap on the wrist. How is that okay? Why is the
criminal justice system afraid of letting drug dealers and those who use drugs recreationally
back on the streets, yet show little to no hesitation in putting a rapist back into family friendly
neighborhoods? Something needs to be done about this. RAINN --Rape Abuse & Incest National
Network-- kindly shared statistics on victims of all kinds. There are 228,820 victims of rape and
sexual assault per year, 1 out of 6 women are victims of attempted or successful sexual assault
or rape, and 1 out of 10 rape victims are male. On the Bureau of Justice Statistics website, they
stated that over 60% of rape and sexual assault victimizations go unreported. This is more than
likely because the justice system is failing at their job of keeping civilians safe. Giving levels of
sentencing ranging from moderate to none at all, places a strong sense of terror within each
victim because their assailiant(s) are being tossed back into the real world, possibly with
vengeance in their minds.

Champion Briefs 289


NEG: State Bad NC Jan/Feb 2018

Plea bargaining is only a bullet point on the list of the things wrong
with the Criminal Justice system.

Black, Conrad. “America’s Justice System Has Failed Us All.” Huffington Post. January 24, 2012.
Web. December 10, 2017. <https://www.huffingtonpost.com/conrad-black/us-justice-
system_b_1110623.html>.

Almost everything about the American system is wrong. Grand juries are a rubber stamp for the
prosecutors; assets are routinely frozen or seized in ex parte actions on the basis of false
government affidavits, so targets don’t have the resources to pay avaricious American counsel
and are thrust into the hands of public defenders, who are usually just Judas goats for the
prosecutors. The prosecutors poison the jury pool with a media lynching at the start; bail is
often outrageously high, and prosecutions and ancillary proceedings from the SEC, IRS, etc.,
drag on for a whole decade, all contrary to the Fifth, Sixth, and Eighth Amendments. The plea
bargain system, for which prosecutors would be disbarred in most other serious countries,
enables prosecutors to threaten everyone around the target with indictment if they don’t
miraculously recall, under careful government coaching, inculpatory evidence. Prosecutors win
95 per cent of their cases, 90 per cent of those without a trial, and people who exercise their
constitutionally guaranteed right to go to trial receive more than three times the sentence they
receive if they cop a plea, as a penalty for exercising their rights.



Champion Briefs 290
A/2: State Bad NC Jan/Feb 2018

The law is malleable, and optimism is justified; pessimism ignores


specific reforms that both achieved lasting reductions racial inequality
and spilled over to broader social movements.

Omi, Michael. “Resistance Is Futile?: A Response To Feagin And Elias, Ethnic And Racial Studies.”
Special Issue: Symposium - Rethinking Racial Formation Theory. 2013. Web. December
10, 2017. <http://www.tandfonline.com/doi/abs/10.1080/01419870.2012.669839>.

In Feagin and Elias’s account, white racist rule in the USA appears unalterable and permanent.
There is little sense that the ‘white racial frame’ evoked by systemic racism theory changes in
significant ways over historical time. They dismiss important rearrangements and reforms as
merely ‘a distraction from more ingrained structural oppressions and deep lying inequalities
that continue to define US society’ (Feagin and Elias 2012, p. 21). Feagin and Elias use a concept
they call ‘surface flexibility’ to argue that white elites frame racial realities in ways that suggest
change, but are merely engineered to reinforce the underlying structure of racial oppression.
Feagin and Elias say the phrase ‘racial democracy’ is an oxymoron – a word defined in the
dictionary as a figure of speech that combines contradictory terms. If they mean the USA is a
contradictory and incomplete democracy in respect to race and racism issues, we agree. If they
mean that people of colour have no democratic rights or political power in the USA, we
disagree. The USA is a racially despotic country in many ways, but in our view it is also in many
respects a racial democracy, capable of being influenced towards more or less inclusive and
redistributive economic policies, social policies, or for that matter, imperial policies. What is
distinctive about our own epoch in the USA (post-Second World War to the present) with
respect to race and racism? Over the past decades there has been a steady drumbeat of efforts
to contain and neutralize civil rights, to restrict racial democracy, and to maintain or even
increase racial inequality. Racial disparities in different institutional sites – employment, health,
education – persist and in many cases have increased. Indeed, the post-2008 period has seen a
dramatic increase in racial inequality. The subprime home mortgage crisis, for example, was a
major racial event. Black and brown people were disproportionately affected by predatory

Champion Briefs 291


A/2: State Bad NC Jan/Feb 2018

lending practices; many lost their homes as a result; race-based wealth disparities widened
tremendously. It would be easy to conclude, as Feagin and Elias do, that white racial dominance
has been continuous and unchanging throughout US history. But such a perspective misses the
dramatic twists and turns in racial politics that have occurred since the Second World War and
the civil rights era. Feagin and Elias claim that we overly inflate the significance of the changes
wrought by the civil rights movement, and that we ‘overlook the serious reversals of racial
justice and persistence of huge racial inequalities’ (Feagin and Elias 2012, p. 21) that followed in
its wake. We do not. In Racial Formation we wrote about ‘racial reaction’ in a chapter of that
name, and elsewhere in the book as well. Feagin and Elias devote little attention to our
arguments there; perhaps because they are in substantial agreement with us. While we argue
that the right wing was able to ‘rearticulate’ race and racism issues to roll back some of the
gains of the civil rights movement, we also believe that there are limits to what the right could
achieve in the post-civil rights political landscape. So we agree that the present prospects for
racial justice are demoralizing at best. But we do not think that is the whole story. US racial
conditions have changed over the post-Second World War period, in ways that Feagin and Elias
tend to downplay or neglect. Some of the major reforms of the 1960s have proved irreversible;
they have set powerful democratic forces in motion. These racial (trans)formations were the
results of unprecedented political mobilizations, led by the black movement, but not confined
to blacks alone. Consider the desegregation of the armed forces, as well as key civil rights
movement victories of the 1960s: the Voting Rights Act, the Immigration and Naturalization Act
(Hart- Celler), as well as important court decisions like Loving v. Virginia that declared anti-
miscegenation laws unconstitutional. While we have the greatest respect for the late Derrick
Bell, we do not believe that his ‘interest convergence hypothesis’ effectively explains all these
developments. How does Lyndon Johnson’s famous (and possibly apocryphal) lament upon
signing the Civil Rights Act on 2 July 1964 – ‘We have lost the South for a generation’ – count as
‘convergence’? The US racial regime has been transformed in significant ways. As Antonio
Gramsci argues, hegemony proceeds through the incorporation of opposition (Gramsci 1971, p.
182). The civil rights reforms can be seen as a classic example of this process; here the US racial
regime – under movement pressure – was exercising its hegemony. But Gramsci insists that

Champion Briefs 292


A/2: State Bad NC Jan/Feb 2018

such reforms – which he calls ‘passive revolutions’ – cannot be merely symbolic if they are to be
effective: oppositions must win real gains in the process. Once again, we are in the realm of
politics, not absolute rule. So yes, we think there were important if partial victories that shifted
the racial state and transformed the significance of race in everyday life. And yes, we think that
further victories can take place both on the broad terrain of the state and on the more
immediate level of social interaction: in daily interaction, in the human psyche and across civil
society. Indeed we have argued that in many ways the most important accomplishment of the
anti-racist movement of the 1960s in the USA was the politicization of the social. In the USA and
indeed around the globe, race-based movements demanded not only the inclusion of racially
defined ‘others’ and the democratization of structurally racist societies, but also the recognition
and validation by both the state and civil society of racially-defined experience and identity.
These demands broadened and deepened democracy itself. They facilitated not only the
democratic gains made in the USA by the black movement and its allies, but also the political
advances towards equality, social justice and inclusion accomplished by other ‘new social
movements’: second-wave feminism, gay liberation, and the environmentalist and anti-war
movements among others. By no means do we think that the post-war movement upsurge was
an unmitigated success. Far from it: all the new social movements were subject to the same
‘rearticulation’ (Laclau and Mouffe 2001, p. xii) that produced the racial ideology of
‘colourblindness’ and its variants; indeed all these movements confronted their mirror images
in the mobilizations that arose from the political right to counter them. Yet even their
incorporation and containment, even their confrontations with the various ‘backlash’
phenomena of the past few decades, even the need to develop the highly contradictory
ideology of ‘colourblindness’, reveal the transformative character of the ‘politicization of the
social’. While it is not possible here to explore so extensive a subject, it is worth noting that it
was the long-delayed eruption of racial subjectivity and self-awareness into the mainstream
political arena that set off this transformation, shaping both the democratic and anti-
democratic social movements that are evident in US politics today. What are the political
implications of contemporary racial trends? Feagin and Elias’s use of racial categories can be
imprecise. This is not their problem alone; anyone writing about race and racism needs to

Champion Briefs 293


A/2: State Bad NC Jan/Feb 2018

frame terms with care and precision, and we undoubtedly get fuzzy too from time to time. The
absence of a careful approach leads to ‘racial lumping’ and essentialisms of various kinds. This
imprecision is heightened in polemic. In the Feagin and Elias essay the term ‘whites’ at times
refers to all whites, white elites, ‘dominant white actors’ and very exceptionally, anti-racist
whites, a category in which we presume they would place themselves. Although the terms
‘black’, ‘African American’ and ‘Latino’ appear, the term ‘people of colour’ is emphasized, often
in direct substitution for black reference points. In the USA today it is important not to frame
race in a bipolar manner. The black/white paradigm made more sense in the past than it does
in the twenty-first century. The racial make-up of the nation has now changed dramatically.
Since the passage of the Immigration Reform Act of 1965, the USA has become more ‘coloured’.
A ‘majority–minority’ national demographic shift is well underway. Predicted to arrive by the
mid-twenty-first century, the numerical eclipse of the white population is already in evidence
locally and regionally. In California, for example, non-Hispanic whites constitute only 39.7 per
cent of the state’s population. While the decline in the white population cannot be correlated
with any decline of white racial dominance, the dawning and deepening of racial multipolarity
calls into question a sometimes implicit and sometimes explicit black/white racial framework
that is evident in Feagin and Elias’s essay. Shifting racial demographics and identities also raise
general questions of race and racism in new ways that the ‘systemic racism’ approach is not
prepared to explain.3 Class questions and issues of panethnicizing trends, for example, call into
question what we mean by race, racial identity and race consciousness. No racially defined
group is even remotely uniform; groups that we so glibly refer to as Asian American or Latino
are particularly heterogeneous. Some have achieved or exceeded socio-economic parity with
whites, while others are subject to what we might call ‘engineered poverty’ in sweatshops, dirty
and dangerous labour settings, or prisons. Tensions within panethnicized racial groups are
notably present, and conflicts between racially defined groups (‘black/brown’ conflict, for
example) are evident in both urban and rural settings. A substantial current of social scientific
analysis now argues that Asians and Latinos are the ‘new white ethnics’, able to ‘work toward
whiteness’4 at least in part, and that the black/white bipolarity retains its distinct and
foundational qualities as the mainstay of US racism (Alba and Nee 2005; Perlmann 2005; Portes

Champion Briefs 294


A/2: State Bad NC Jan/Feb 2018

and Rumbaut 2006; Waters, Ueda and Marrow 2007). We question that argument in light of
the massive demographic shifts taking place in the USA. Globalization, climate change and
above all neoliberalism on a global scale, all drive migration. The country’s economic capacity to
absorb enormous numbers of immigrants, low-wage workers and their families (including a
new, globally based and very female, servant class) without generating the sort of established
subaltern groups we associate with the terms race and racism, may be more limited than it was
when the ‘whitening’ of Europeans took place in the nineteenth and twentieth centuries. In
other words this argument’s key precedent, the absorption of white immigrants ‘of a different
color’ (Jacobson 1998), may no longer apply. Indeed, we might think of the assimilationist
model itself as a general theory of immigrant incorporation that was based on a historically
specific case study – one that might not hold for, or be replicated by, subsequent big waves of
immigration. Feagin and Elias’s systemic racism model, while offering numerous important
insights, does not inform concrete analysis of these issues. It is important going forward to
understand how groups are differentially racialized and relatively positioned in the US racial
hierarchy: once again racism must be seen as a shifting racial project. This has important
consequences, not only with respect to emerging patterns of inequality, but also in regard to
the degree of power available to different racial actors to define, shape or contest the existing
racial landscape. Attention to such matters is largely absent in Feagin and Elias’s account. In
their view racially identified groups are located in strict reference to the dominant ‘white racial
frame’, hammered into place, so to speak. As a consequence, they fail to examine how racially
subordinate groups interact and influence each others’ boundaries, conditions and practices.
Because they offer so little specific analysis of Asian American, Latino or Native American racial
issues, the reader finds her/himself once again in the land (real or imaginary, depending on
your racial politics) of bipolar US racial dynamics, in which whites and blacks play the leading
roles, and other racially identified groups – as well as those ambiguously identified, such as
Middle Eastern and South Asian Americans (MEASA) – play at best supporting roles, and are
sometimes cast as extras or left out of the picture entirely. We still want to acknowledge that
blacks have been catching hell and have borne the brunt of the racist reaction of the past
several decades. For example, we agree with Feagin and Elias’s critique of the reactionary

Champion Briefs 295


A/2: State Bad NC Jan/Feb 2018

politics of incarceration in the USA. The ‘new Jim Crow’ (Alexander 2012) or even the ‘new
slavery’ that the present system practises is something that was just in its beginning stages
when we were writing Racial Formation. It is now recognized as a national and indeed global
scandal. How is it to be understood? Of course there are substantial debates on this topic,
notably about the nature of the ‘prison-industrial complex’ (Davis 2003, p. 3) and the social and
cultural effects of mass incarceration along racial lines. But beyond Feagin and Elias’s
denunciation of the ferocious white racism that is operating here, deeper political implications
are worth considering. As Alexander (2012), Mauer (2006), Manza and Uggen (2008) and
movement groups like Critical Resistance and the Ella Baker Center argue, the upsurge over
recent decades in incarceration rates for black (and brown) men expresses the fear-based, law-
and-order appeals that have shaped US racial politics since the rise of Nixonland (Perlstein
2008) and the ‘Southern strategy’. Perhaps even more central, racial repression aims at
restricting the increasing impact of voters of colour in a demographically shifting electorate.
There is a lot more to say about this, but for the present two key points stand out: first, it is not
an area where Feagin and Elias and we have any sharp disagreement, and second, for all the
horrors and injustices that the ‘new Jim Crow’ represents, incarceration, profiling and similar
practices remain political issues. These practices and policies are not ineluctable and
unalterable dimensions of the US racial regime. There have been previous waves of reform in
these areas. They can be transformed again by mass mobilization, electoral shifts and so on. In
other words, resistance is not futile. Speaking of electoral shifts and the formal political arena,
how should President Barack Obama be politically situated in this discussion? How do Feagin
and Elias explain Obama? Quite amazingly, his name does not appear in their essay. Is he a
mere token, an ‘oreo’, a shill for Wall Street? Or does Obama represent a new development in
US politics, a black leader of a mass, multiracial party that for sheer demographic reasons alone
might eventually triumph over the white people’s party, the Republicans? If the President is
neither the white man’s token nor Neo, the One,5 then once again we are in the world of
politics: neither the near-total white despotism depicted by Feagin and Elias, nor a racially
inclusive democracy. President Obama continues to enjoy widespread black support, although
it is clear that he has not protected blacks against their greatest cumulative loss of wealth in

Champion Briefs 296


A/2: State Bad NC Jan/Feb 2018

history. He has not explicitly criticized the glaring racial bias in the US carceral system. He has
not intervened in conflicts over workers’ rights – particularly in the public sector where many
blacks and other people of colour are concentrated. He has not intervened to halt or slow
foreclosures, except in ways that were largely symbolic. Workers and lower-middle-class people
were the hardest hit by the great recession and the subprime home mortgage crisis, with black
families faring worst, and Latinos close behind (Rugh and Massey 2010); Obama has not
defended them. Many writers have explained Obama’s centrism and unwillingness to raise the
issue of race as functions of white racism (Sugrue 2010). The black community – and other
communities of colour as well – remains politically divided. While black folk have taken the
hardest blows from the reactionary and racist regime that has mostly dominated US politics
since Reagan (if not since Nixon), no united black movement has succeeded the deaths of
Malcolm and Martin. Although there is always important political activity underway, a relatively
large and fairly conservative black middle class, a ‘black bourgeoisie’ in Frazier’s (1957) terms,
has generally maintained its position since the end of the civil rights era. Largely based in the
public sector, and including a generally centrist business class as well, this stratum has
continued to play the role that Frazier – and before him, Charles S. Johnson. William Lloyd
Warner, Alison Davis and other scholars – identified: vacillation between the white elite and the
black masses. Roughly similar patterns operate in Latino communities as well, where the
‘working towards whiteness’ framework coexists with a substantial amount of exclusion and
super-exploitation. Alongside class issues in communities of colour, there are significant gender
issues. The disappearance of blue-collar work, combined with the assault by the criminal justice
system – chiefly profiling by the police (‘stop and frisk’) and imprisonment, have both unduly
targeted and victimized black and brown men, especially youth. Women of colour are also
targeted, especially by violence, discrimination and assaults on their reproductive rights (Harris-
Perry 2011); profiling is everywhere (Glover 2009). Here again we are in the realm of racial
politics. Debate proceeds in the black community on Obama’s credibilty, with Cornel West and
Tavis Smiley leading the critics. But it seems safe to say that in North Philly, Inglewood or
Atlanta’s Lakewood section, the president remains highly popular. Latino support for Obama
remains high as well. Feagin and Elias need to clarify their views on black and brown political

Champion Briefs 297


A/2: State Bad NC Jan/Feb 2018

judgement. Is it attuned to political realities or has it been captured by the white racial frame?
Is Obama’s election of no importance? *** In conclusion, do Feagin and Elias really believe that
white power is so complete, so extensive, so ‘sutured’ (as Laclau and Mouffe might say) as they
suggest here? Do they mean to suggest, in Borg-fashion, that ‘resistance is futile?’ This seems
to be the underlying political logic of the ‘systemic racism’ approach, perhaps unintentionally
so. Is white racism so ubiquitous that no meaningful political challenge can be mounted against
it? Are black and brown folk (yellow and red people, and also others unclassifiable under the
always- absurd colour categories) utterly supine, duped, abject, unable to exert any political
pressure? Is such a view of race and racism even recognizable in the USA of 2012? And is that a
responsible political position to be advocating? Is this what we want to teach our students of
colour? Or our white students for that matter? We suspect that if pressed, Feagin and Elias
would concur with our judgement that racial conflict, both within (and against) the state and in
everyday life, is a fundamentally political process. We think that they would also accept our
claim that the ongoing political realities of race provide extensive evidence that people of
colour in the USA are not so powerless, and that whites are not so omnipotent, as Feagin and
Elias’s analysis suggests them to be. Racial formation theory allows us to see that there are
contradictions in racial oppression. The racial formation approach reveals that white racism is
unstable and constantly challenged, from the national and indeed global level down to the
personal and intra-psychic conflicts that we all experience, no matter what our racial identity
might be. While racism – largely white – continues to flourish, it is not monolithic. Yes, there
have been enormous increases in racial inequality in recent years. But movement-based anti-
racist opposition continues, and sometimes scores victories. Challenges to white racism
continue both within the state and in civil society. Although largely and properly led by people
of colour, anti-racist movements also incorporate whites such as Feagin and Elias themselves.
Movements may experience setbacks, the reforms for which they fought may be revealed as
inadequate, and indeed their leaders may be co-opted or even eliminated, but racial
subjectivity and self-awareness, unresolved and conflictual both within the individual psyche
and the body politic, abides. Resistance is not futile.

Champion Briefs 298


A/2: State Bad NC Jan/Feb 2018

Utilizing bad institutions like the CJS is inevitable so we need to


engage it for effective movements..

Makani, Themba-Nixon. “Changing The Rules: What Public Policy Means For Organizing.”
Colorlines. July 31, 2001. Web. December 10, 2017.
<https://www.highbeam.com/doc/1P3-494735091.html>.

The flourish and passion with which she made the distinction said everything. Policy is for
wonks, sell-out politicians, and ivory-tower eggheads. Organizing is what real, grassroots people
do. Common as it may be, this distinction doesn’t bear out in the real world. Policy is more than
law. It is any written agreement (formal or informal) that specifies how an institution[s],
governing body, or community will address shared problems or attain shared goals. It spells out
the terms and the consequences of these agreements and is the codification of the body’s
values-as represented by those present in the policymaking process. Given who’s usually
present, most policies reflect the political agenda of powerful elites. Yet, policy can be a force
for change-especially when we bring our base and community organizing into the process. In
essence, policies are the codification of power relationships and resource allocation. Policies
are the rules of the world we live in. Changing the world means changing the rules. So, if
organizing is about changing the rules and building power, how can organizing be separated
from policies? Can we really speak truth to power, fight the right, stop corporate abuses, or win
racial justice without contesting the rules and the rulers, the policies and the policymakers? The
answer is no-and double no for people of color. Today, racism subtly dominates nearly every
aspect of policymaking. From ballot propositions to city funding priorities, policy is increasingly
about the control, de-funding, and disfranchisement of communities of color. What Do We
Stand For? Take the public conversation about welfare reform, for example. Most of us know it
isn’t really about putting people to work. The right’s message was framed around racial
stereotypes of lazy, cheating “welfare queens” whose poverty was “cultural.” But the new
welfare policy was about moving billions of dollars in individual cash payments and direct
services from welfare recipients to other, more powerful, social actors. Many of us were too

Champion Briefs 299


A/2: State Bad NC Jan/Feb 2018

busy to tune into the welfare policy drama in Washington, only to find it washed up right on our
doorsteps. Our members are suffering from workfare policies, new regulations, and cutoffs.
Families who were barely getting by under the old rules are being pushed over the edge by the
new policies. Policy doesn’t get more relevant than this. And so we got involved in policy-as
defense. Yet we have to do more than block their punches. We have to start the fight w`ith
initiatives of our own. Those who do are finding offense a bit more fun than defense alone.
Living wage ordinances, youth development initiatives, even gun control and alcohol and
tobacco policies are finding their way onto the public agenda, thanks to focused community
organizing that leverages power for community-driven initiatives. - Over 600 local policies have
been passed to regulate the tobacco industry. Local coalitions have taken the lead by writing
ordinances that address local problems and organizing broad support for them. - Nearly 100
gun control and violence prevention policies have been enacted since 1991. - Milwaukee,
Boston, and Oakland are among the cities that have passed living wage ordinances: local laws
that guarantee higher than minimum wages for workers, usually set as the minimum needed to
keep a family of four above poverty. These are just a few of the examples that demonstrate
how organizing for local policy advocacy has made inroads in areas where positive national
policy had been stalled by conservatives. Increasingly, the local policy arena is where the action
is and where activists are finding success. Of course, corporate interests-which are usually the
target of these policies-are gearing up in defense. Tactics include front groups, economic
pressure, and the tried and true: cold, hard cash. Despite these barriers, grassroots organizing
can be very effective at the smaller scale of local politics. At the local level, we have greater
access to elected officials and officials have a greater reliance on their constituents for
reelection. For example, getting 400 people to show up at city hall in just about any city in the
U.S. is quite impressive. On the other hand, 400 people at the state house or the Congress
would have a less significant impact. Add to that the fact that all 400 people at city hall are
usually constituents, and the impact is even greater. Recent trends in government underscore
the importance of local policy. Congress has enacted a series of measures devolving significant
power to state and local government. Welfare, health care, and the regulation of food and
drinking water safety are among the areas where states and localities now have greater rule.

Champion Briefs 300


A/2: State Bad NC Jan/Feb 2018

Devolution has some negative consequences to be sure. History has taught us that, for social
services and civil rights in particular, the lack of clear federal standards and mechanisms for
accountability lead to uneven enforcement and even discriminatory implementation of policies.
Still, there are real opportunities for advancing progressive initiatives in this more localized
environment. Greater local control can mean greater community power to shape and
implement important social policies that were heretofore out of reach. To do so will require
careful attention to the mechanics of local policymaking and a clear blueprint of what we stand
for. Getting It in Writing Much of the work of framing what we stand for takes place in the
shaping of demands. By getting into the policy arena in a proactive manner, we can take our
demands to the next level. Our demands can become law, with real consequences if the
agreement is broken. After all the organizing, press work, and effort, a group should leave a
decisionmaker with more than a handshake and his or her word. Of course, this work requires a
certain amount of interaction with “the suits,” as well as struggles with the bureaucracy, the
technical language, and the all-too-common resistance by decisionmakers. Still, if it’s worth
demanding, it’s worth having in writing-whether as law, regulation, or internal policy. From
ballot initiatives on rent control to laws requiring worker protections, organizers are leveraging
their power into written policies that are mak[es]ing a real difference[s] in their communities.
Of course, policy work is just one tool in our organizing arsenal, but it is a tool we simply can’t
afford to ignore. Making policy work [is] an integral part of organizing will require a certain
amount of retrofitting. We will need to develop the capacity to translate our information, data,
and experience into stories that are designed to affect the public conversation. Perhaps most
important, we will need to move beyond fighting problems and on to framing solutions that
bring us closer to our vision of how things should be. And then we must be committed to
making it so.

Champion Briefs 301


A/2: State Bad NC Jan/Feb 2018

Good policies are possible if we work together as a community.

Solomon, Danyelle. “Time To Fix Our Failing Criminal Justice System.” Real Clear Policy. October
20, 2016. Web. December 10, 2017.
<http://www.realclearpolicy.com/articles/2016/10/20/time_to_reform_our_failing_cri
minal-justice_system.html>.

Reforming our nation’s criminal-justice system will take political will, and it will require a
collaborative effort between policymakers, advocates, and law enforcement. Luckily, a
bipartisan group of U.S. Senators has been working towards this goal for years, and President
Obama and U.S. Attorneys General Eric Holder and Loretta Lynch have laid the groundwork to
ensure federal prosecutors use common sense when filing charges. The American public
overwhelmingly believes — by a two-to-one margin — that reducing prison populations will
make communities safer. But good policy reforms can easily fall victim to politics and fear. Let
us not fall victim to fear, but instead make good policy decisions based on data, research, and
what we know is best for our communities.

Champion Briefs 302


A/2: State Bad NC Jan/Feb 2018

Reform of the criminal justice system is vital.

Hoban, Brennan. “The Need For Criminal Justice System Reform.” Brookings Institute. August
30, 2016. Web. December 10, 2017. <https://www.brookings.edu/blog/brookings-
now/2017/08/30/the-need-for-criminal-justice-reform/>.

After recognizing Virginia’s troubled history on race relations, Governor McAuliffe highlighted
the criminal justice system as plagued with racial inequality and announced his belief that
Virginia should serve as an example to other states looking to take on criminal justice reform.
Following his remarks, political activist DeRay Mckesson, Georgetown Law Professor Shon
Hopwood, Teach for America’s Brittany Packnett, and Clint Smith, author of Counting Descent,
discussed the need for criminal justice reform in America. The U.S. criminal justice system
“sends people to prison as a first response instead of a last resort” Shon Hopwood argued that
the need for criminal justice reform in the United States is vital. He takes issue with a system
that “sends people to prison as a first response instead of a last resort.” He also highlighted the
fact that the longer people stay in the prison system, the less likely they are to not commit new
crimes when they do get out. Hopwood argues that this system hurts both criminals and
taxpayers.



Champion Briefs 303
NEG: Ableism K Jan/Feb 2018

NEG: Ableism K
The Ableism Kritik on this topic is along the lines of plea-bargaining being good for
disabled bodies since it is more likely they can receive and ensure treatment. Most of the
literature on the topic about the disabled body is specific to mentally ill, meaning that if
someone is accused of a crime (and if they are guilty), they can plead guilty to that crime but
plead mentally ill so they receive rehabilitation as opposed to incarceration. While each case
varies and some may still be incarcerated, plea-bargaining is viewed as a better deal for the
disabled body in the United States Criminal Justice System.

Champion Briefs 304


NEG: Ableism K Jan/Feb 2018

Plea bargaining for a defendant with a mental illness can ensure


treatment.

Dombrowski, Amy. “A Guide To Mental Illness And The Criminal Justice System - NAMI La
Crosse County - NAMI La Crosse C.” NAMI La Crosse County. 2008. Web. December 10,
2017. <https://namilacrossecounty.org/criminal-justice-2/a-guide-to-mental-illness-and-
the-criminal-justice-system/>.

A vast majority of criminal cases are resolved by a defendant deciding to change his or her plea
to guilty or no contest. A guilty plea and a no contest plea have the same effect in criminal
court – either way the defendant gives up all the same rights and, if the court accepts the plea,
the defendant is convicted. A change in plea usually is accompanied by an agreement between
the State and defendant as to the recommendation the State will make to the judge about the
sentence the judge should impose. Plea bargaining with prosecutors can occur at any point in a
criminal case, even before charges have been filed. Many criminal cases are disposed of
through a plea bargain rather than through a trial. By promising to plead guilty, a defendant
binds the State to make the sentencing recommendation it has promised. However, a judge is
not bound or required to follow any particular recommendation. A judge may refuse to accept
the plea bargain. For the defendant with a mental illness, a plea bargain can achieve the goals
of avoiding incarceration and assuring treatment. A plea bargain may include specific elements,
such as recommended sentence and place of confinement.

Champion Briefs 305


NEG: Ableism K Jan/Feb 2018

Prisons have been viewed as the easy alternative to mental hospitals


and treatment facilities and disabled bodies are overrepresented in
prison.

Vallas, Rebecca. “Disabled Behind Bars.” American Progress. July 18, 2016. Web. December 10,
2017. <https://www.americanprogress.org/issues/criminal-
justice/reports/2016/07/18/141447/disabled-behind-bars/>.

The crushing impact of the criminal justice system’s failure is felt acutely in communities across
the United States. Significant and growing research shows how certain populations—including
communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and
transgender, or LGBT, individuals—have been particularly hard hit. But rarely discussed is the
impact of the criminal justice system on Americans with disabilities. The past six decades have
seen widespread closure of state mental hospitals and other institutional facilities that serve
people with disabilities—a shift often referred to as deinstitutionalization. The number of
Americans residing in such institutions dropped sharply from nearly 560,000 in 1955 to only
about 70,000 in 1994. While widely regarded as a positive development, deinstitutionalization
was not accompanied by the public investment necessary to ensure that community-based
alternatives were made available. As a result, while people with disabilities—and particularly
those with mental health conditions—were no longer living in large numbers in institutions,
many began to be swept up into the criminal justice system, often due to minor infractions such
as sleeping on the sidewalk. Indeed, federal and state jails and prisons are now home to three
times as many people with mental health conditions as state mental hospitals. People with
disabilities are thus dramatically overrepresented in the nation’s prisons and jails today.
According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are
nearly three times as likely to report having a disability as the nonincarcerated population,
while those in jails are more than four times as likely. Cognitive disabilities—such as Down
syndrome, autism, dementia, intellectual disabilities, and learning disorders—are among the
most commonly reported: Prison inmates are four times as likely and jail inmates more than six

Champion Briefs 306


NEG: Ableism K Jan/Feb 2018

times as likely to report a cognitive disability than the general population. People with mental
health conditions comprise a large proportion of those behind bars, as well. The Bureau of
Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness.

Champion Briefs 307


NEG: Ableism K Jan/Feb 2018

Mass incarceration of disabled individuals is unjust.

Vallas, Rebecca. “Disabled Behind Bars.” American Progress. July 18, 2016. Web. December 10,
2017. <https://www.americanprogress.org/issues/criminal-
justice/reports/2016/07/18/141447/disabled-behind-bars/>.

Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-
wise and pound-foolish, as community-based treatment and prevention services cost far less
than housing an individual behind bars. According to a 2014 study of Los Angeles County, the
average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By
comparison, the price tag for providing Assertive Community Treatment, or ACT, and
supportive housing—one of the most intensive, comprehensive, and successful intervention
models in use today—amounts to less than $20,500 annually, just two-fifths the cost of jail.

Champion Briefs 308


NEG: Ableism K Jan/Feb 2018

Disabled individuals are more likely to be subject to police violence


and be incarcerated.

Vallas, Rebecca. “Disabled Behind Bars.” American Progress. July 18, 2016. Web. December 10,
2017. <https://www.americanprogress.org/issues/criminal-
justice/reports/2016/07/18/141447/disabled-behind-bars/>.

In addition to facing disproportionate rates of incarceration, people with disabilities are also
especially likely to be the victims of police violence. Freddie Gray, Eric Garner, Kristiana
Coignard, and Robert Ethan Saylor were all individuals with disabilities whose tragic stories of
being killed at the hands of police officers garnered significant recent national media attention.
They are but four high-profile examples of a widespread, commonplace occurrence. While data
on police-involved killings are extremely limited, one study by the Ruderman Family Foundation
estimates that people with disabilities comprise a staggering one-third to one-half of all
individuals killed by law enforcement. According to an investigation by The Washington Post,
one-quarter of the individuals shot to death by police officers in 2015 were people with mental
health conditions. Countless more have suffered brutality and violent treatment at the hands of
police, often stemming from misunderstandings related to mental health conditions and other
disabilities. Furthermore, the number of individuals who have acquired disabilities while in
police custody is unknown.

Champion Briefs 309


NEG: Ableism K Jan/Feb 2018

While in prison, disabled individuals are less likely to receive the care
they need.

Vallas, Rebecca. “Disabled Behind Bars.” American Progress. July 18, 2016. Web. December 10,
2017. <https://www.americanprogress.org/issues/criminal-
justice/reports/2016/07/18/141447/disabled-behind-bars/>.

While behind bars, people with disabilities are often deprived of necessary medical care, as well
as needed supports, services, and accommodations. This is despite long-standing federal
disability rights laws that mandate equal access to programs, services, and activities for all
people with disabilities in custody. Poor conditions in jails and prisons and inadequate access to
health care and mental health treatment can not only exacerbate existing conditions, but also
lead to further physical and mental health problems that individuals did not have prior to
incarceration. Many inmates with disabilities are held in solitary confinement—reportedly, in
many cases, for their own protection, due to a lack of appropriate alternative accommodations.
A growing array of research reveals that even short stays in solitary confinement can have
severe and long-lasting consequences for people with disabilities, and particularly those with
mental health conditions. Furthermore, many individuals who had not previously lived with
mental health conditions experience significant psychological distress following solitary
confinement. The tragic but all-too-common case of Kalief Browder brought this to light last
year. Browder died by suicide after nearly two years in solitary confinement in Rikers Island on
charges, later dismissed, that he had stolen a backpack. Moreover, while many people with
disabilities already face barriers to employment, stable housing, and other necessary elements
of economic security, adding a criminal record into the mix can pose additional obstacles that
make living with a disability an even greater challenge. Meanwhile, reentry programs for
formerly incarcerated individuals often lack necessary accommodations and connections to
community services, making them incapable of meeting the needs of participants with
disabilities.

Champion Briefs 310


NEG: Ableism K Jan/Feb 2018

Supreme Court Case proves we cannot segregate those with


disabilities.

Vallas, Rebecca. “Disabled Behind Bars.” American Progress. July 18, 2016. Web. December 10,
2017. <https://www.americanprogress.org/issues/criminal-
justice/reports/2016/07/18/141447/disabled-behind-bars/>.

This year marks the 17th anniversary of the landmark Supreme Court decision in Olmstead v.
L.C., which held that unjustified segregation of people with disabilities in institutional settings
constituted unlawful discrimination in violation of the Americans with Disabilities Act, or ADA.
Ending the mass incarceration of people with disabilities will require meaningful investment in
the nation’s social service and mental health treatment infrastructure to ensure availability and
funding for community-based alternatives, so that jails and prisons are no longer forced to
serve as social service providers of last resort. But bringing about this change will also require
including disability as a key part of the bipartisan conversation on criminal justice reform taking
place in Congress, as well as in states and cities across the United States. This report highlights
steps policymakers can take to combat inappropriate and unjust incarceration and
criminalization of people with disabilities, as well as steps to ensure appropriate and humane
treatment of people with disabilities throughout the justice system, from police practices to
courts, conditions in jails and prisons, and reentry.

Champion Briefs 311


NEG: Ableism K Jan/Feb 2018

Plea bargaining is not the issue, the issue is a lack of understanding of


mentally disabled in the criminal justice system.

O’Hara, Mary. “Why Is Our Justice System Failing Vulnerable People?.” The Guardian.
September 09, 2015. Web. December 10, 2017.
<https://www.theguardian.com/society/2015/sep/09/prison-system-failing-vulnerable-
people>.

At one point I practically lived in police stations,” says Melissa Cunningham, whose youngest
child, Pete, began stealing electronic equipment at 18 and was repeatedly arrested. “We kept
saying [to justice professionals] that he’s got problems and that he doesn’t understand what
they are saying. He was vulnerable.” It wasn’t until Pete, who has a learning disability and a
personality disorder, was in his 20s that “a judge realised something was wrong”, says
Cunningham, and he was diverted to the treatment he needed. Her experiences are echoed by
other relatives of people with mental health or learning difficulties who come into contact with
the police, courts and prisons. They are interviewed in a study by the Prison Reform Trust (PRT)
and Partners of Prisoners and Families Support Group. Relative Justice outlines how family
members like Cunningham try, sometimes for years, to get effective treatment for their
relatives. Among the issues raised by families is a lack of basic information to help them
navigate the process in police stations or the courts. Another concern is that police and justice
professionals did not always have the necessary skills, training or resources to adequately
support vulnerable people, some of whom have difficulty communicating. Many reported that
the experience of the system could be shocking, stressful and overwhelming. It’s time we gave
our most vulnerable people proper protection in custody. “Too often, vulnerable people with
mental health needs or a learning disability get in trouble with the law and find themselves
faced with trying to understand and navigate our arcane criminal justice system,” says Juliet
Lyon, the PRT’s director. This is despite the launch in 2013 of a “liaison and diversion” service
aimed at identifying and supporting vulnerable adults and children throughout the justice
system, which includes referring them to appropriate services. Liaison and diversion services

Champion Briefs 312


NEG: Ableism K Jan/Feb 2018

cover just over half of England, and the government is committed to rolling them out across the
country. However, there are fears that renewed pressure on departmental budgets (liaison and
diversion funding sits with the Department of Health) means that can’t be taken for granted.

Champion Briefs 313


NEG: Ableism K Jan/Feb 2018

Plea bargaining is not the answer, mental health courts are.

Gilbert, Beth. “ The Use And Effectiveness Of Mental Health Courts.” Psychiatry Advisor. March
30, 2015. Web. December 10, 2017. <http://www.psychiatryadvisor.com/practice-
management/the-use-and-effectiveness-of-mental-health-courts/article/406221/>.

Mental health courts (MHCs) have been created in jurisdictions across the United States
because an increasing number of defendants have serious mental health conditions that are
not being addressed effectively within the criminal justice system.1 According to Roger
Boothroyd, PhD, of the Department of Mental Health Law and Policy of the University of South
Florida in Tampa, MHCs have specific characteristics that differentiate them from traditional
courts. MHCs are exclusive to individuals with serious and persistent diagnosable mental health
illness. These courts are intended to divert individuals with mental health illness from the
criminal justice system and into a treatment system, with the goal of reducing future offenses
and recidivism. In addition, these courts provide mandated community health treatment (often
instead of jail) and ongoing judicial status review hearings. They operate using voluntary
enrollments that are reliant upon both administrative referrals and participant consent.
According to the Adult Mental Health Treatment Courts Database 2013, there are currently 343
different adult mental health courts operating in 43 states, Boothroyd said.2 However, MHCs
are operated by counties, rather than states. “One of the features of these courts is that they
are highly variable within states and across states. The federal government does not fund
mental health courts, so there is no standard protocol for setting them up or running them,”
said Henry Steadman, PhD, president of Policy Research Associates, which provides training and
technical assistance workshops to improve mental health delivery.

Champion Briefs 314


NEG: Ableism K Jan/Feb 2018

Mental health courts mandate treatment as opposed to promoting


punishing.

Gilbert, Beth. “ The Use And Effectiveness Of Mental Health Courts.” Psychiatry Advisor. March
30, 2015. Web. December 10, 2017. <http://www.psychiatryadvisor.com/practice-
management/the-use-and-effectiveness-of-mental-health-courts/article/406221/>.

In addition, these courts provide mandated community health treatment (often instead of jail)
and ongoing judicial status review hearings. They operate using voluntary enrollments that are
reliant upon both administrative referrals and participant consent. According to the Adult
Mental Health Treatment Courts Database 2013, there are currently 343 different adult mental
health courts operating in 43 states, Boothroyd said.2 However, MHCs are operated by
counties, rather than states. “One of the features of these courts is that they are highly variable
within states and across states. The federal government does not fund mental health courts, so
there is no standard protocol for setting them up or running them,” said Henry Steadman, PhD,
president of Policy Research Associates, which provides training and technical assistance
workshops to improve mental health delivery. Steadman, who has conducted much research on
mental health and the criminal justice system, also spent 17 years directing a research bureau
at the New York State Office of Mental Health.

Champion Briefs 315


NEG: Ableism K Jan/Feb 2018

Mental health courts focus on a wide variety of cases.

Gilbert, Beth. “ The Use And Effectiveness Of Mental Health Courts.” Psychiatry Advisor. March
30, 2015. Web. December 10, 2017. <http://www.psychiatryadvisor.com/practice-
management/the-use-and-effectiveness-of-mental-health-courts/article/406221/>.

“Regardless of diagnostic category, the most common feature of mental illnesses seen in
mental health courts is co-occurring substance abuse disorder. However, all courts do not take
all disorders. It depends on the court and access to treatment within the community,”
Steadman said. The types of crimes addressed in these courts also vary depending on services
available within the community. “The crimes handled in mental health courts vary widely. The
majority focus on misdemeanors and low-level crimes and a lot of drug charges, as most
patients have co-occurring substance abuse disorders combined with their mental illness,”
Steadman added. “However, other courts focus only on felonies, including assault cases as well
as higher-level drug charges. Overall, crimes against person are less frequent.”

Champion Briefs 316


NEG: Ableism K Jan/Feb 2018

Study on mental health courts prove that they are the future for law
and mental illness.

Gilbert, Beth. “ The Use And Effectiveness Of Mental Health Courts.” Psychiatry Advisor. March
30, 2015. Web. December 10, 2017. <http://www.psychiatryadvisor.com/practice-
management/the-use-and-effectiveness-of-mental-health-courts/article/406221/>.

In one study, Steadman and colleagues evaluated individuals diagnosed with a mental health
illness prior to being referred to an MHC, and then followed these patients for 18 months after
being seen in one of four MHCs in various locations around the country. The investigators found
both fewer arrests and jail days among those involved with an MHC.4 “MHCs tend to be
successful. By and large, if you look at the time that the person was under court supervision and
then after supervision — one or two years — they tend to have fewer arrests and fewer jail
days than prior to being supervised by the court. Their symptoms somewhat reduce and
functioning increases,” Steadman said. However, Boothroyd and colleagues found no significant
difference in a defendants’ clinical status between those with mental health illness addressed in
MHC versus those seen in traditional court system, but explains that this study offers only
preliminary data. Boothroyd also noted that although MHCs increase patient access to mental
health services, the courts have no control over the type and quality of care patients receive.
He added that the lack of symptom improvement may have more to do with the chronic nature
of the patients; mental health disorder and the adequacy of the public mental health system,
rather than the effectiveness of the MHC in meeting the court’s articulated goals.5

Champion Briefs 317


NEG: Ableism K Jan/Feb 2018

Results of meta-analysis prove effectiveness of mental health court


reducing recidivism amongst disabled individuals.

McNeil, Dale. “Effectiveness Of A Mental Health Court In Reducing Criminal Recidivism And
Violence.” Am J Psychiatry. 2007. Web. December 10, 2017.
<https://www.courtinnovation.org/sites/default/files/EffectivenessMentalHealthCourt.
pdf>.

These results support the effectiveness of a mental health court in reducing the involvement of
persons with mental disorders in the criminal justice system. Based on an intent-to-treat
sample (i.e., all of those who enrolled in mental health court, regardless of whether they
successfully completed the program), mental health court participants showed a longer time
without any new charges or new charges for violent crimes compared with similar individuals
who did not participate in the program. Survival analysis showed that the reductions in the
likelihood of new charges were more substantial with follow-up of more than 1 year after
enrollment in mental health court; for example, at 18 months, the likelihood of mental health
court participants being charged with any new crimes was about 26% lower than that of
comparable individuals who received treatment as usual, and the likelihood of mental health
court participants being charged with new violent crimes was 55% lower than that of
individuals who received treatment as usual. Additional analyses showed that persons who
graduated from the mental health court program maintained reduced recidivism after they
were no longer under supervision of the court, in contrast to comparable persons who received
treatment as usual. By 18 months, the risk of mental health court graduates being charged with
any new offense was about 34 out of 100, compared with about 56 out of 100 for comparable
persons who received treatment as usual, and the risk of mental health court graduates being
charged with a new violent crime was about half that of the treatment as usual group (6 out of
100 compared with 13 out of 100). These findings provide evidence of the potential for mental
health courts to achieve their goal of reducing recidivism among people with mental disorders
who are in the criminal justice system. Moreover, since the mental health court participants in

Champion Briefs 318


NEG: Ableism K Jan/Feb 2018

this study included a substantial proportion of individuals who had been charged with felonies
or violent offenses, it appears possible to expand the mental health court model beyond its
original clientele of persons charged with nonviolent misdemeanors in a way that public safety
is enhanced rather than compromised. One of the limitations of this study was nonrandom
assignment to mental health court. Although propensity weighting helps control for nonrandom
assignment, it can only adjust for observed covariates, and it may not have adequately adjusted
for unobserved variables that may have influenced selection into mental health court (e.g., as
participants who entered mental health court voluntarily agreed to have their cases handled in
mental health court rather than traditional court, it is possible that they differed in unobserved
variables such as treatment motivation). Although the effectiveness of our propensity score
analysis in predicting selection to mental health court reduces this risk, the design does not
preclude the possibility that selection bias affected the results. Another limitation is that our
arrest data included arrests only in San Francisco and was not sensitive to possible arrests of
the study and comparison subjects in other jurisdictions. However, since the mental health
court participants were under the supervision of the court and therefore located in San
Francisco for much of the study period, any bias toward underdetection of recidivism because
of out-ofcounty arrests would be unlikely to have favored the mental health court group.
Finally, because the structure of mental health courts varies across jurisdictions, the
generalizability of the findings of this study may be affected by the extent to which a given
mental health court is similar to the San Francisco mental health court; future multisite studies
may help clarify this issue.



Champion Briefs 319


A/2: Ableism K Jan/Feb 2018

Cases involving mental illnesses only exacerbate how corrupt plea


deals are.

Yoffe, Emily. “Innocence Is Irrelevant.” The Atlantic. September, 2017. Web. December 10,
2017. <https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-
irrelevant/534171/>.

Because of plea bargains, the system can quickly handle the criminal cases of millions of
Americans each year, involving everything from petty violations to violent crimes. But plea
bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t
present a danger to society, or whose “crime” may primarily be a matter of suffering from
poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of
course, especially in our era of mass incarceration. As prosecutors have accumulated power in
recent decades, judges and public defenders have lost it. To induce defendants to plead,
prosecutors often threaten “the trial penalty”: They make it known that defendants will face
more-serious charges and harsher sentences if they take their case to court and are convicted.
About 80 percent of defendants are eligible for court-appointed attorneys, including
overworked public defenders who don’t have the time or resources to even consider bringing
more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public
defender complained a decade ago, is a style of defense that is nothing more than “meet ‘em
and greet ‘em and plead ‘em.”

Champion Briefs 320


A/2: Ableism K Jan/Feb 2018

Cases involving mentally ill victims fail to punish the guilty offender.

Baeder, Ben. “Advocacy Group Blasts Plea Bargain In Rape Case Of Mentally Disabled Women In
El Monte.” Redlands Daily Facts. February 16, 2011. Web. December 10, 2017.
<http://www.redlandsdailyfacts.com/2011/02/16/advocacy-group-blasts-plea-bargain-
in-rape-case-of-mentally-disabled-women-in-el-monte/>.

An advocacy group is calling for a judge to overturn a plea bargain of eight years in prison for a
man accused of raping three mentally retarded women at an El Monte adult day care facility.
Juan Fernando Flores, 43, is scheduled to be sentenced today in Pomona Superior Court for one
count of rape and two counts of penetration with a foreign object. The hearing is scheduled in
the courtroom of Judge Mike Camacho. Flores confessed to sexually abusing three women ages
24 to 54 while he worked as a cook and bus driver at the Healthy Start adult day care center, El
Monte Police Detective Ralph Batres said. The assaults took place over the course of a little
more than a year, Batres said. Flores was arrested May 7. His attorney, Pete Navarro, did not
return a call for comment. And the director at Healthy Start, which is now named New Day, did
not return a call for comment. A lawyer with an advocacy group for people with disabilities
blasted the plea bargain. “This sends the message that if you abuse disabled people, it won’t be
that bad for you,” said Thomas F. Coleman, an attorney with Arc of California. “The message
should be that you get double the punishment.” If convicted of raping all three women, Flores
could have faced up to 27 years in prison. With time served in county jail, Flores would likely be
released in about six years. Arc filed a brief asking the judge to send the case to trial. A
spokeswoman for the District Attorney’s Office said prosecutors sought to avoid forcing the
women to take the stand, which would have opened them to cross examination. “We did not
want to put these victims through more trauma,” said D.A. spokeswoman Jane Robison. Batres
said he understood the reasons for the plea bargain, especially if the women were unable to
testify. Batres said a parent of one of the mentally retarded women originally reported a sexual
assault to the police. Flores then admitted to the rapes, according to Batres. “All we have is the
confession, that’s it,” he said. “If he recants, that introduces some doubt.” While Coleman has

Champion Briefs 321


A/2: Ableism K Jan/Feb 2018

never met the women or their families, he wondered if prosecutors ever entertained the idea
of having one of them testify. “I think the prosecution botched the case,” he said. Batres said he
is willing to live with the plea bargain. “It’s not what I’d like, that’s my own opinion, but, you
know that’s just how this kind of thing happens,” he said. Flores will likely have a horrible time
during his incarceration, Batres said. “Being a sex offender in jail, you’re basically a target,”
Batres said. “He’s going to be watching his back everyday.”

Champion Briefs 322


A/2: Ableism K Jan/Feb 2018

Mental health courts are only modestly effective at reducing


recidivism.

Andrews, Michelle. “Mental Health Courts Are Popular But Are They Effective?.” NPR.
December 16, 2016. Web. December 10, 2017. <https://www.npr.org/sections/health-
shots/2015/12/16/459823010/mental-health-courts-are-popular-but-are-they-
effective>.

A report by the Urban Institute that summarized research on mental health courts concluded
that they seemed to be modestly effective at reducing recidivism, but it was unclear whether
they had a positive effect on participants’ mental health. These courts handle only a tiny
fraction of cases dealing with mentally ill offenders, by some estimates 5 percent or less. Given
their limited resources, it’s critical that mental health courts target the right people, generally
those who are at highest risk for committing a new crime and who have serious mental illness,
say experts. From that perspective, the shift toward including people who are charged with
more serious crimes and may be facing a sentence of several years makes sense. “That’s when
you start to see real cost benefits [to the system] in that you’re averting real jail time,” says Dr.
Fred Osher, director of health systems and services policy at the Council of State Governments
Justice Center, a nonprofit that consults on public safety issues.



Champion Briefs 323


NEG: Court Clog DA Jan/Feb 2018

NEG: Court Clog DA


The court clog DA is a staple of any topic related to the criminal justice system. This
argument is usually a good generic case that applies to every affirmative. It can also be as short
or as nuanced as you want. The premise is the change in the criminal justice system (in this case
plea bargaining abolition) causes the criminal justice system to become less efficient and back
up ultimately causing some bad impact. In context of this resolution the logic is sound. Plea
bargaining expedites the criminal justice system by avoiding court/jury time. If it was eliminated
every defendant would have to go in front of a jury, this would cause a serious slow down
especially given the judge shortage (evidence included) and the proportion of cases that are
settled using pleas (evidence included). The impacts around this DA are usually either turns to
the efficiency/impact of the affirmative or economic. There is a substantial evidence base that
suggests court clog also harms the economy.
Answering court clog is as easy as winning the impact debate. If the judge votes for
court clog they are basically endorsing the efficiency of the criminal justice system over the
impacts of the AC. Because most ACs this topic will have impacts that surround structural
violence or inequality this should be an easy impact debate. Additionally, given the judge
shortage and heavy caseloads judges are already seeing there has been to economic downturn
or triggering of the impact scenario as the status quo so the bright line for the court clog DA will
be hard to win.

Champion Briefs 324


NEG: Court Clog DA Jan/Feb 2018

Over 1/5 a million people on prison every day and 70% are in for
pretrial proceedings.

Yoffe, Emily. “Innocence Is Irrelevant.” The Atlantic. September, 2017. Web. December 06,
2017. <https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-
irrelevant/534171/>.

According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and
443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing
minor charges that would not mandate further incarceration, but they lack the resources to
make bail and secure their freedom. Some therefore feel compelled to take whatever deal the
prosecutor offers, even if they are innocent.

Champion Briefs 325


NEG: Court Clog DA Jan/Feb 2018

Decentralized bargaining has spread responsibilities of the court out


preventing inefficiencies.

Luskin, Mary Lee. “Why So Fast, Why So Slow?: Explaining Case Processing Time.” Journal of
Criminal Law and Criminology. 1986. Web. December 06, 2017.
<https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://
www.google.com/&httpsredir=1&article=6512&context=jclc>.

Decentralized Plea Bargaining. The delay reduction project also transferred plea bargaining
from the central prosecutor’s office to individual “docket prosecutors,” one for each of five
groups of same-floor courtrooms. The rationale was mostly facilitative. Prox- imity would breed
familiarity, which would increase efficiency. But the effect may also have been due to
incentives. Centralized plea- bargaining was the province of specialists. Processing time and
backlog were not their concern. Decentralization, however, made docket prosecutors
responsible for the dockets within their domain, and thus gave them reason to keep “their”
processing times and dockets within bounds. Finally, decentralization was accompanied by a
small increase in the number of prosecutors and may have de- creased processing times by that
route as well.

Champion Briefs 326


NEG: Court Clog DA Jan/Feb 2018

Empirically bans on plea bargains have clogged dockets.

Henry, Diane. “Plea-Bargaining Ban Is Clogging Courts In New Haven, State Says.” New York
Times. September 05, 1979. Web. December 06, 2017.
<http://www.nytimes.com/1979/09/05/archives/pleabargaining-ban-is-clogging-courts-
in-new-haven-state-says-plea.html>.

An eightmonth moratorium on plea bargaining in criminal cases in the State Judicial District
headquartered in New Haven has produced the largest backlog of cases a year or more old in
any judicial district in the state, according to the state’s chief court administrator. The number
of such cases in the New Haven district rose from 181 to 310 between the imposition of the ban
and Aug. 1, according to John A. Speziale, the chief administrator of the state’s court system
and a justice of the State Supreme Court. However, Arnold Markle, the State’s Attorney.for the
district, who instituted the ban, and Frank J. Kinney Jr., the district’s presiding judge, say that
those figures do not reflect the successes of the program. The New Haven district, which covers
the City of New Haven and 13 neighboring towns, is the only one of the state’s 11 districts with
such a moratorium, although similar bans have been imposed in other areas of the country. Mr.
Markle said he imposed the ban because of charges from the public that criminals were not
being treated severely enough. Plea bargaining is used in most courts in the United States to
expedite cases. Usually the defendant agrees to plead guilty to reduced charges in exchange for
a recommendation from the prosecutor for a relatively lenient sentence.

Champion Briefs 327


NEG: Court Clog DA Jan/Feb 2018

Judges are already overworked- small cases are filling up the court.

Bannon, Alicia. “Testimony: More Judges Needed In Federal Courts.” Brennan Center for
Justice. September 10, 2013. Web. December 06, 2017.
<http://www.brennancenter.org/analysis/testimony-federal-courts-need-more-judges>.

The growing workload in district courts around the country negatively impacts judges’ ability to
effectively dispense justice, particularly in complex and resource-intensive civil cases, where
litigants do not enjoy the same “speedy trial” rights as criminal defendants. For example, the
median time for civil cases to go from filing to trial has increased by more than 70 percent since
1992, from 15 months to more than two years (25.7 months). Older cases are also increasingly
clogging district court dockets. Since 2000, cases that are more than three years old have made
up an average of 12 percent of the district court civil docket, compared to an average of 7
percent from 1992-1999. For a small company in a contract dispute or a family targeted by
consumer fraud, these kind of delays often mean financial uncertainty and unfilled plans,
putting lives on hold as cases wind through the court system. All too often, justice delayed in
these circumstances can mean justice denied. These patterns of delay are starkly reflected in
the districts for which additional judgeships are recommended, many of which lag behind the
national average in key metrics. In the Eastern District of California, for example, the median
time for civil cases to go from filing to trial is almost four years (46.4 months). This district
would receive six additional permanent judgeships and one additional temporary judgeship
under the Act. In the Middle District of Florida, over 23 percent of the civil docket is more than
three years old. This district would receive five additional permanent judgeships and one
additional temporary judgeship under the Act. The federal courts are a linchpin of our
democracy, protecting individual rights from government overreach, providing a forum for
resolving individual and commercial disputes, and supervising the fair enforcement of criminal
laws. In order for judges to perform their jobs effectively, however, they must have
manageable workloads. The Brennan Center urges Congress to promptly pass the Federal
Judgeship Act of 2013, so as to ensure the continued vitality of our federal courts.

Champion Briefs 328


NEG: Court Clog DA Jan/Feb 2018

Court backlogs and lack of judges constrains the efficiency of courts-


harms economy because business matters can’t be adjudicated.

Leahy, Patrick. “Statement Of Senator Patrick Leahy On The Nominations Of Mary Elizabeth
Phillips To The Western Dist.” US Senator. March 06, 2012. Web. December 06, 2017.
<https://www.leahy.senate.gov/press/statement-of-senator-patrick-leahy-on-the-
nominations-of-mary-elizabeth-phillips-to-the-western-district-of-missouri-and-thomas-
owen-rice-to-the-eastern-district-of-washington>.

While consensus judicial nominations are stalled without a final vote by the Senate, millions of
Americans across the country are being harmed by delays. The American people and our
Federal courts cannot afford these unnecessary and damaging delays. As the ABA president
noted last week: “Backlogs mean justice delayed in cases involving protection of individual
rights, advancement of business interests, compensation of injured victims and enforcement of
federal laws. Longstanding vacancies on courts with staggering caseloads impede access to the
courts. They create strains that, if not eased, threaten to reduce the quality of our justice
system. They erode confidence in the courts’ ability to uphold constitutional rights and render
fair and timely decisions. Delay at the federal courts puts people’s lives on hold while they wait
for their cases to be resolved. Businesses face uncertainty and costly holdups, preventing them
from investing and creating jobs. In sum, judicial vacancies kill jobs. Justice delayed, as the
famous maxim goes, is justice denied. It’s bad for business, it’s unfair to individuals, and it
slows government enforcement actions, which ultimately costs taxpayers money.”

Champion Briefs 329


NEG: Court Clog DA Jan/Feb 2018

Pleas exist now, and the system is already overworked.

Eschweiler, John. “Justice Is Swift As Petty Crimes Clog Courts.” Wall Street Journal. November
30, 2014. Web. December 06, 2017. <http://www.wsj.com/articles/justice-is-swift-as-
petty-crimes-clog-courts-1417404782>.

For the millions of Americans charged each year with misdemeanor crimes, justice can be
blindingly swift. In Florida, misdemeanor courts routinely disposed of cases in three minutes or
less, usually with a guilty plea, according to a 2011 National Association of Criminal Defense
Lawyers study. In Detroit, court statistics show, a district judge on an average day has over 100
misdemeanor cases on his or her docket—or one every four minutes. In Miami, public
defenders often hardly have time to introduce themselves to their misdemeanor clients before
the cases are over. Years of aggressive policing tactics and tough-on-crime legislation have
flooded the American court system with misdemeanor cases—relatively small-time crimes such
as public drunkenness, loitering or petty theft. The state courts that handle such charges often
resemble assembly lines where time is in short supply, according to judges and lawyers who
work in the courts. Many poor defendants, despite their right to court-appointed legal counsel,
don’t get lawyers, and those who do often receive scant help in the rush to resolve cases.

Champion Briefs 330


NEG: Court Clog DA Jan/Feb 2018

Misdemeanors are the most common cases to go trial- these trials


often don’t have lawyers and hearings often finish in less than 3
minutes.

Emshwiller, John. “Justice Is Swift As Petty Crimes Clog Courts.” Wall Street Journal. November
30, 2014. Web. December 06, 2017. <http://www.wsj.com/articles/justice-is-swift-as-
petty-crimes-clog-courts-1417404782>.

Misdemeanor charges, which typically carry fines or jail terms of less than a year, account for
about 70% to 80% of criminal cases annually, according to data from the National Center for
State Courts, a Williamsburg, Va., clearinghouse for court-related information. Felonies such as
murder, rape and armed robbery, and miscellaneous criminal traffic and appellate cases, make
up the rest. A 1972 Supreme Court decision established that a misdemeanor defendant facing a
potential jail sentence has the right to a lawyer. If the defendant can’t afford one, the
government must provide one. Subsequent Supreme Court decisions have further defined and
expanded that right to counsel. What that means for the nation’s crowded courts is a topic of
debate among judges around the country. Jean Hoefer Toal, chief justice of the South Carolina
Supreme Court, said courts “simply don’t have the funding” to supply lawyers in every
misdemeanor case envisioned by the U.S. Supreme Court. She acknowledged her state can’t
always do so, and that chief justices from other states have told her the same. Some jurists say
many misdemeanor defendants simply want to get the matter over with. “If counsel were
appointed on every rinky-dink misdemeanor case,” said Judge Jeffrey Middleton of St. Joseph
County, Mich., the public’s cost for indigent defense would soar and “it would slow courts to a
halt.” Government and academic researchers estimate that about one in every four
misdemeanor defendants facing jail time isn’t represented by a lawyer. The Texas Indigent
Defense Commission, a state body, estimated that 27% of the nearly 560,000 misdemeanor
defendants in that state in fiscal-year 2013 didn’t have a lawyer. Commission research indicates
that in many of the state’s 254 counties, the percentage exceeds 50%. Sharon Keller, presiding
judge of the Texas Court of Criminal Appeals, said the state has made “a lot of progress” in

Champion Briefs 331


NEG: Court Clog DA Jan/Feb 2018

assuring that indigent misdemeanor defendants have access to counsel, but “there is still plenty
to do.” The 2011 study by the National Association of Criminal Defense Lawyers of about 1,600
misdemeanor cases in Florida found over one-third of defendants didn’t have a lawyer at their
court arraignment. Of those, 80% pleaded guilty or no contest at that time—two pleas that are
effectively identical—compared with 64% of those with court-appointed counsel and 61% of
those who hired lawyers. The hearings took less than three minutes to complete, on average,
with more than one-third finished within one minute, the study found.

Champion Briefs 332


NEG: Court Clog DA Jan/Feb 2018

Guilty pleas lead to 30 seconds of court interaction- small violations


are not prosecuted adequately already.

Emshwiller, John. “Justice Is Swift As Petty Crimes Clog Courts.” Wall Street Journal. November
30, 2014. Web. December 06, 2017. <http://www.wsj.com/articles/justice-is-swift-as-
petty-crimes-clog-courts-1417404782>.

High-volume misdemeanor courts can be chaotic places. In a Houston courtroom one day
recently, defendants—sometimes individually, sometimes in groups of up to nine—approached
Judge Michael Fields. Many had lawyers; some didn’t. Some defendants pleaded guilty,
received their sentences and got a “good luck” from the judge in less than 30 seconds. Judge
Fields had an average of 68 cases a day on his docket in 2013, according to court records, below
the average of 79 for the county’s misdemeanor courts. As the judge handled cases, court
employees talked with defendants off to one side. In the public gallery, defendants conferred
with their lawyers. In one conversation overheard by a reporter, lawyer John Dixon, who was
doing court-appointed defense work, discussed a plea to a theft charge with 19-year-old Aaron
Brown. Mr. Dixon told the young man he represented his co-defendant, who had agreed to
plead guilty, and he couldn’t ethically represent both men if they had different pleas. “Are you
going to accept responsibility, be a man?” Mr. Dixon asked. When the teenager hesitated, Mr.
Dixon walked away. He soon returned, only to walk away again when he didn’t get an answer.
Finally, on a third visit, Mr. Brown agreed to plead guilty. He subsequently received probation
from Judge Fields. In a later interview, Mr. Brown said he had planned to plead guilty and
initially hesitated because he didn’t understand what Mr. Dixon was saying. Mr. Dixon said he
wasn’t trying to pressure Mr. Brown. “I was just trying to explain to him his choices and their
consequences,” he said. Celeste Carrion, another defendant in Judge Fields’s court, said in an
interview she applied for a court-appointed lawyer when she was brought in on a driving-while-
intoxicated charge in May. She recalled being told she didn’t qualify. At the time, the 31-year-
old was working at a bar and restaurant, and her husband had a $9-an-hour job at a shipping-
and-receiving dock. She didn’t hire a lawyer herself and pleaded “no contest,” thinking it meant

Champion Briefs 333


NEG: Court Clog DA Jan/Feb 2018

she wasn’t ready to enter a plea, she said. Carmen Roe, a defense lawyer and president of the
Harris County Criminal Lawyers Association, happened to be in court that day. Ms. Roe recalled
thinking that Ms. Carrion looked confused and that Judge Fields was negotiating a sentence
without giving sufficient warnings that she was effectively entering a guilty plea. Ms. Roe
intervened and Ms. Carrion’s case was continued. The case is pending and a lawyer has agreed
to represent Ms. Carrion pro bono. Judge Fields ordered her to wear a device around her ankle
that can detect alcohol consumption. Ms. Carrion, now working part time on a relative’s food
truck, said she had been paying $360 a month to the monitoring company but recently got
permission to switch to an $80-per-month device. To save money, Ms. Carrion, her husband
and their 2-year-old daughter moved into a trailer behind her in-laws’ house. Judge Fields didn’t
respond to questions about Ms. Carrion’s case. In an earlier interview, he said he always tries to
ensure defendants are aware of their rights, verbally and in writing, as well as the potential
consequences of a guilty plea. He said defendants whose cases he disposes of in seconds have
lawyers who are supposed to inform each client of these rights and risks. “We trust our
lawyers” to do that, he said. U.S. Attorney General Eric Holder said in a recent interview that
the “crushing caseloads” in misdemeanor courts have created “almost like an assembly-line
mentality” for moving defendants quickly through the system. Individuals can too easily be
denied their constitutional rights, particularly the right to counsel, he said, and “end up
unnecessarily imprisoned.” In Providence, R.I., municipal court, where certain misdemeanor
cases are handled, indigent defendants weren’t getting court-appointed counsel in instances
where a jail sentence was possible, said city solicitor Jeffrey Padwa, whose office prosecutes
municipal-court cases. After receiving complaints from the state’s chief public defender and
others, the city stopped seeking jail terms for indigent misdemeanor defendants until
arrangements could be made to provide counsel, said Mr. Padwa. A lawyer to handle such
assignments started work in November. ENLARGE Someone facing jail time “absolutely should
be able to get representation,” Mr. Padwa said. In Washington state, the American Civil
Liberties Union and others sued the cities of Mount Vernon and Burlington in 2011 for their
treatment of indigent misdemeanor defendants. Like many municipalities, the cities contract
with private lawyers. The federal judge handling the case said evidence showed individual

Champion Briefs 334


NEG: Court Clog DA Jan/Feb 2018

lawyer caseloads in those towns ran as high as 1,000 annually—more than twice the maximum
recommended by the American Bar Association and others. In a declaration filed in the case,
Angela Montague, an Afghanistan war veteran and one of the named plaintiffs, said the lawyers
she was provided, Richard Sybrandy and Morgan Witt, didn’t respond to her efforts to discuss
the various misdemeanor charges against her, including driving under the influence. “It wasn’t
until I became a plaintiff in this class-action lawsuit that Mr. Witt finally contacted me,” Ms.
Montague said in her declaration. Messrs. Sybrandy and Witt, through their own lawyer,
declined to comment. In court filings, they disputed the plaintiffs’ claims about them. Mr.
Sybrandy said in one filing he did what was “necessary to obtain a just and acceptable result for
the defendant” and used “every opportunity to speak with” his clients. Last December, federal
judge Robert Lasnik ruled against the two towns. His decision said misdemeanor defendants
had been “systematically deprived” of their rights because the cities hired too few lawyers. The
defense services “amounted to little more than a ‘meet and plead’ system” where “actual
innocence could conceivably go unnoticed and unchampioned,” he wrote. The lawsuit, coupled
with a new state standard limiting the number of cases a lawyer doing indigent-defense work
can handle, hit Burlington and Mount Vernon, which didn’t appeal the judge’s decision. The
cities’ mayors said their indigent defense budgets have roughly tripled. W. Scott Snyder, a
Seattle lawyer representing those cities and others, said towns around the state are facing
similar cost increases. Heavy caseloads are an issue for public defenders handling misdemeanor
cases in the Miami-Dade County court system in Florida. At the initial-hearing stage, typically
there are one or two public defenders to handle as many as 50 new clients during a day, said
chief assistant public defender Teresa Enriquez in an affidavit filed in a Miami state court. In the
case of guilty pleas, which are common at that time, “there is no time for the assistant public
defender(s) to interact with each and every defendant,” she wrote. Ms. Enriquez made the
filing on behalf of Earl Sampson, a 29-year-old former client of her office, as part of his court
motion to vacate multiple trespassing convictions at a convenience store in the town of Miami
Gardens. Because of time constraints, Ms. Enriquez wrote, her office was “not able to
adequately represent Mr. Sampson”—failing, among other things, to learn that he had the
store owner’s permission to be on the premises. The store owner confirmed that in an

Champion Briefs 335


NEG: Court Clog DA Jan/Feb 2018

interview. Mr. Sampson, whose frequent trespassing arrests drew local media coverage, claims
in his motion that he had ineffective counsel. In an interview, he said he didn’t feel he
trespassed but pleaded guilty because he couldn’t afford bail and feared having to stay in jail
while awaiting trial. A guilty plea generally allowed him to go home, he said. The state
attorney’s office in Miami, which prosecuted the trespassing cases and opposes Mr. Sampson’s
motion, said in a court filing the pleas were “voluntarily and knowingly entered into,” and by
pleading guilty he prevented his lawyer from investigating further. Some jurisdictions are
coming up with novel solutions to reduce the crush of misdemeanor cases. Spokane, Wash., has
taken out of criminal courts many misdemeanor cases relating to driving with a suspended
license. Under the program, people can get back their licenses while paying off tickets over
time, said city prosecutor Justin Bingham. Philadelphia and New York City moved recently to
end arrests for possession of small amounts of marijuana, opting instead for fines as low as $25
and $100, respectively. About 4,000 people are arrested each year in Philadelphia for small-
time marijuana possession, while New York has made about 24,000 such arrests this year,
through early November. Officials in both cities said the moves would free up law-enforcement
resources and help minority communities hard hit by the arrests. For people with criminal
records, said Councilman James Kenney, who sponsored the

Champion Briefs 336


NEG: Court Clog DA Jan/Feb 2018

Plea bargaining is a response to rise in crime- our courts weren’t built


to address the current work load.

Walsh, Dylan. “Why U.S. Criminal Courts Are So Dependent On Plea Bargaining.” The Atlantic.
May 02, 2017. Web. December 06, 2017.
<https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/>.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of
displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate
courts start documenting exchanges that resemble the modern practice. The plea became a
release valve for mounting caseloads. Appellate courts “all condemned it as shocking and
terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea
bargains for five decades. The courts raised a range of objections to these early encounters,
from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas,
wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle
from a direct sale of justice.”

Champion Briefs 337


NEG: Court Clog DA Jan/Feb 2018

The expansion of the justice system necessary if pleas were


eliminated is not feasible.

, Anonymous. “ALTERNATIVES TO PLEA BARGAINING.” University of Pennsylvania Law Review.


1984. Web. December 06, 2017.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627&context=penn_la
w_review>.

On the third level of the least restrictive alternative test, the Court has not actively looked for
alternatives to plea bargaining. In Santobello, the Court seemed to compare plea bargaining
only with full-scale jury trials in considering efficiency. 19 Deciding that the replacement of
guilty pleas with “full-scale trials” would force the government “to multiply” present criminal
justice system resources “by many times,” the Court concluded that plea bargaining was “an
essential component of the administration of justice. 1 2 ° The use of the term “essential”
suggests that the Court either saw no other alternatives or that it concluded without comment
that any other alternative would not secure for governments the same magnitude of savings
that plea bargaining had.

Champion Briefs 338


NEG: Court Clog DA Jan/Feb 2018

Pleas reduce appeals meaning the courts have even less of a work
load.

Reimelt, Alexandra W.. “An Unjust Bargain: Plea Bargains And Waiver Of The Right To Appeal.”
Boston College Law Review. May 01, 2010. Web. December 06, 2017.
<http://lawdigitalcommons.bc.edu/bclr/vol51/iss3/7/>.

Plea bargains are the predominant means of resolving criminal cases, and their prevalence
leads commentators to conclude that this process “is not some adjunct to the criminal justice
system; it is the criminal justice system.”22 The U.S. Supreme Court has estimated that at least
ninety percent of criminal convictions are based on guilty pleas.23 Increasingly, many criminal
defendants are required to waive their right to appeal as a condition of the plea bargain.24
Appeal waivers of pretrial motions to suppress evidence, like the one in Ventura, are especially
significant because decisions on these motions determine whether certain evidence, often
essential to the government’s case, is admissible or must be excluded from trial.25 Because of
the important role suppression motions play in final case outcomes, and the coercive manner in
which suppression motion appeal waivers are often extracted, these waivers should be
unenforceable.26

Champion Briefs 339


NEG: Court Clog DA Jan/Feb 2018

Please serve a public service and save judicial resources and time.

Reimelt, Alexandra W.. “An Unjust Bargain: Plea Bargains And Waiver Of The Right To Appeal.”
Boston College Law Review. May 01, 2010. Web. December 06, 2017.
<http://lawdigitalcommons.bc.edu/bclr/vol51/iss3/7/>.

In 1970, the U.S. Supreme Court explained in Brady v. United States that guilty pleas serve a
number of public policies and that the State may justifiably extend a benefit to a defendant
who has extended a benefit to the State.40 By pleading guilty, a defendant who sees a small
chance for acquittal can obtain concessions in his probable penalty, begin the correctional
process promptly, and free himself from the burdens of a trial.41 For the State, avoiding a trial
preserves scarce prosecutorial and judicial resources for those cases in which there is a
substantial question about the defendant’s guilt or the State’s capacity to meet its burden of
proof.42 Additionally, the defendant’s agreement to plead guilty satisfies the public’s interest in
prosecution of crime and increases the chance for successful rehabilitation through prompt
punishment.43 For these reasons, the Supreme Court has encouraged fair plea bargaining.44

Champion Briefs 340


NEG: Court Clog DA Jan/Feb 2018

A transformation of societal values in necessary to fixing the justice


system.

Quigley, Bill. “Fourteen Examples Of Racism In The Justice System.” Harvard Journal of Law and
Public Policy. July, 2010. Web. December 06, 2017.
<http://www.huffingtonpost.com/bill-quigley/fourteen-examples-of-
raci_b_658947.html>.

Martin Luther King Jr., said we as a nation must undergo a radical revolution of values. A radical
approach to the US criminal justice system means we must go to the root of the problem. Not
reform. Not better beds in better prisons. We are not called to only trim the leaves or prune the
branches, but rip up this unjust system by its roots. We are all entitled to safety. That is a
human right everyone has a right to expect. But do we really think that continuing with a deeply
racist system leading the world in incarcerating our children is making us safer? It is time for
every person interested in justice and safety to join in and dismantle this racist system. Should
the US decriminalize drugs like marijuana? Should prisons be abolished? Should we expand the
use of restorative justice? Can we create fair educational, medical and employment systems?
All these questions and many more have to be seriously explored. Join a group like INCITE,
Critical Resistance, the Center for Community Alternatives, Thousand Kites, or the California
Prison Moratorium and work on it. As Professor Alexander says “Nothing short of a major social
movement can dismantle this new caste system.”

Champion Briefs 341


NEG: Court Clog DA Jan/Feb 2018

The failure of the CJS system for black Americans continues to today.

Jones, Chenelle. “The System Isn’t Broken, It Was Designed That Way: A Critical Analysis Of
Historical Racial Disadvantage.” The Hampton Institute. July 25, 2013. Web. December
06, 2017. <http://www.hamptoninstitution.org/systemisntbroken.html#.WiZP6bQ-eRs>.

Most recently, the verdict in the case of Trayvon Martin reaffirmed the devalued status of
African American life. The unarmed, 17-year old boy was racially profiled, shot and killed by an
overzealous neighborhood watchman named George Zimmerman who claimed self-defense.
The offender’s acquittal of all charges, by a predominately White jury, speaks to the historical
denigration of African American life in both American society and the criminal justice system. It
also reveals the implicit institutionalized racism, birthed from the racialized ideologies of the
Antebellum period, which continue to manifest itself within the criminal justice system. The
posthumous vilification of Trayvon Martin during the trial and the subsequent verdict parallels
a historical trend of injustice afforded to African Americans within the criminal justice system.
Furthermore, the verdict contradicts the notion that the system is broken, conversely, it affirms
the system is operating the way it was designed to function, which is to suppress, subdue, and
socially control African Americans. The system is not broken, it was never right in the first place,
and until a substantive systematic change occurs, the criminal justice system will continue to be
used by privileged Whites as a means to marginalize African Americans.

Champion Briefs 342


NEG: Court Clog DA Jan/Feb 2018

Deportations are down now- court backlog is out for years.

Becker, Andrew. “Nearly 600,000 Immigration Cases Clog Courts, Study Finds.” Center for
Investigative Reporting. June 04, 2017. Web. December 06, 2017.
<https://www.revealnews.org/blog/nearly-600000-immigration-cases-clog-courts-
study-finds/>.

But the good news for immigrants is that judges are ordering deportation for a smaller
percentage of immigrants, down to 52 percent in 2015 compared to 77 percent in 2006. Judges
are also more frequently ending cases, or ruling in an immigrant’s favor. Overall, judges now
decide fewer cases based on the actual merits of arguments than they did a decade ago.
Despite smaller individual caseloads for judges, immigration hearings are being scheduled years
into the future, including five years out in at least one court, according to the report. Such
delays also put a strain on immigrants’ legal rights by making it more difficult to produce
witnesses or documents in their defense, potentially jeopardizing their legitimate claims to
avoid deportation. Sometimes people who may have had a good claim against deportation lost
their eligibility over time because their circumstances changed, the report states. In other
instances, immigrants who don’t have a solid argument to stay in the country avoid deportation
longer because their hearings are delayed.



Champion Briefs 343
A/2: Court Clog DA Jan/Feb 2018

An increase in litigation can be increased with only a small increase in


judicial resources.

Schulhofer, Stephen J. “Plea Bargaining As Disaster.” The Yale Law Journal. June, 1992. Web.
December 05, 2017.
<https://www.jstor.org/stable/796954?seq=1#page_scan_tab_contents>.

This more ambitious reform would generate a large increase in the trial rate and a significant
increase in litigation costs. Though one must be quite tentative about offering actual numbers,
my study of the Philadelphia courts suggests that elimination of all sentencing concessions for
pleas might raise the trial rate from 10-15% to roughly 75% of all felony cases.89 But with
reliance on a system of adversarial trials before a judge sitting without a jury, such a reform
would require an increase of only about 20% in the judicial resources devoted to the
adjudication stage; stated as a percentage of total judicial resources, the required increase
would be even smaller.’ Readers unfamiliar with prior empirical research may wonder how a
650% increase in the trial rate (from 10% to 75%) could possibly be accomplished with only a
20% increase in adjudication resources. The answer has several parts. First, nontrial
adjudication is itself a lengthy process, requiring a detailed guilty plea colloquy, time to read
into the record the factual basis for the plea, and the waiting time necessary to get in-custody
defendants to the courtroom. Second, adjudication by bench trial requires relatively little
additional time, because the most time-consuming features of the criminal trial-jury selection,
introductory and closing statements, jury instructions, recesses, and side bar conferences-are
largely a result of the jury system, not of the adversary trial process itself. Finally, the few cases
tried before a jury require so much court-room time that a small percentage increase in
available resources can generate a large percentage increase in the court’s capacity to
adjudicate by bench trial. Based on observed times actually consumed by the alternative case
disposition methods, ninety guilty pleas would require an average of 4950 minutes of court
time (55 minutes each), five bench trials would require 400 minutes (80 minutes each), and five
jury trials would require 3600 minutes (two days each), a total of 8950 minutes of courtroom
time for the 100 cases. With seventy bench trials, five jury trials, and only twenty-five guilty
plea dispositions, the total courtroom time required would rise to 10,575 minutes, an increase
of only 18%.

Champion Briefs 344


A/2: Court Clog DA Jan/Feb 2018

Even if the system gets overloaded more innocent people would be


convicted under the plea bargaining system.

Schulhofer, Stephen J. “Plea Bargaining As Disaster.” The Yale Law Journal. June, 1992. Web.
December 06, 2017.
<https://www.jstor.org/stable/796954?seq=1#page_scan_tab_contents>.

If the resources available for trial did not grow or did not grow enough, and if the quality of
bench trials therefore declined, abolition still would not hurt the innocent. Scott and Stuntz
assume that “[b]ecause error rates at trial would be higher, convicting innocents would likely
be easier in a no-bargaining world.” This is a non sequitur. The flaw in their analysis results from
comparing apples with oranges--the error rate of the entire adjudicatory system of a no-
bargaining world with the error rate in just the fanciest part of a system with bargaining. A no-
bargaining world with high rates of trial error might convict innocents who would have been
acquitted in a jury trial. But a bargaining world would not afford these defendants a jury trial: it
would induce them to accept plea contract in which conviction was a virtual certainty. When
the entirety of each system;s conviction modes is included convicting the innocent is
unequivocally easier in a world that permits plea bargaining.

Champion Briefs 345


A/2: Court Clog DA Jan/Feb 2018

Abolition of plea bargaining does not trade off with the efficiency of
the system.

Schulhofer, Stephen J. “Plea Bargaining As Disaster.” The Yale Law Journal. June, 1992. Web.
December 06, 2017.
<https://www.jstor.org/stable/796954?seq=1#page_scan_tab_contents>.

In rejecting the abolition approach, Scott and Stuntz assume that abolition would produce an
increase in the trial rate, a decrease in the quality of trials, and a consequent increase in the risk
of convicting the innocent.83 Their argu-ment, though thought-provoking, proceeds from three
erroneous premises. First, they assume that abolition requires eliminating concessions entirely.
But so long as fixed concessions are retained to preserve the guilty plea rate, abolition of
bargaining entails none of the difficulties raised by Scott and Stuntz. Second, abolition of all
concessions need not decrease the quality of trials. Third, even if abolition did decrease the
quality of trials, it would not increase the overall risk of convicting the innocent in the combined
processes of adjudication by plea and by trial. Abolition of bargaining is an attractive, low-cost
solution the manifold difficulties of plea bargaining. Abolition of all concessions is also a viable,
though somewhat more costly strategy.”

Champion Briefs 346


A/2: Court Clog DA Jan/Feb 2018

The prison population is so large because of a variety of faults in the


justice system not just pleas.

Alexander, Michelle. “Go To Trial: Crash The Justice System.” New York Times. March 10, 2012.
Web. December 06, 2017. <http://www.nytimes.com/2012/03/11/opinion/sunday/go-
to-trial-crash-the-justice-system.html>.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a
few decades partly as a result of the war on drugs and the “get tough” movement — these
rights are, for the overwhelming majority of people hauled into courtrooms across America,
theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people
charged with crimes forfeit their constitutional rights and plead guilty. “The truth is that
government officials have deliberately engineered the system to assure that the jury trial
system established by the Constitution is seldom used,” said Timothy Lynch, director of the
criminal justice project at the libertarian Cato Institute. In other words: the system is rigged. In
the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including
harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power
shift, from judges to prosecutors.

Champion Briefs 347


A/2: Court Clog DA Jan/Feb 2018

Efficiency needs to be maximized in the CJS to make it more effective.

Love Kourlis, Rebecca. “5 Steps For Fixing The Civil Justice System.” The Atlantic. June 11, 2012.
Web. December 06, 2017. <https://www.theatlantic.com/national/archive/2012/06/5-
steps-for-fixing-the-civil-justice-system/258295/>.

4. We must revise the rules of civil procedure -- both at the state and federal levels -- to
streamline the process, limit discovery, limit motions filing, and limit experts. The process must
be proportional, tailored to the size and nature of the dispute, and provide what that dispute
requires -- no more. 5. We should remove the majority of divorce cases from the adversary
court system and create an alternative that gives families access to needed services, counseling,
and financial planning advice in an environment that encourages them to resolve their own
disputes. Our democracy, our economy, and our freedom are all dependent upon having
accessible and fair courts. We have the basic framework of a system well worth preserving --
but we must act now to improve how it works in practice.


Champion Briefs 348


NEG: Critical Legal Studies K Jan/Feb 2018

NEG: Critical Legal Studies K


Another staple of the legal system the critique of the legal system states that the legal
system is defunct and there is nothing that can fix it; thus, we should scrap the system
altogether. Most of the arguments framed in critique of the legal system (CLS) state that the
legal system is not functional for black Americans though I have also seen versions that indict
women or Asian Americans (the cards in this brief mostly focus on black Americans). As far as
critiques go this is one of the most realistic ones. Some of the more creative cards inhere
indicate connections between plea bargaining and/or the criminal justice system and their
complacency within capitalist market economics so debaters can get creative in incorporating
CLS and the cap K this topic.
Answering CLS it is likely best to spend most time on the alternative. The criminal justice
system is likely broken and can’t be fixed however, not fixing it also won’t solve anything. Reject
alternatives leave us in the status quo and don’t fix anything. Additionally, CLS adopts a
pessimistic view of problem solving while most of the answers to it say we might as well risk the
AC because despite how much the justice system is corrupt the affirmative case is at least a
step in the right direction.


Champion Briefs 349


NEG: Critical Legal Studies K Jan/Feb 2018

Under the current paradigm of the CJS small fixes won’t work- it’s
about a larger social view of crime.

Yoffe, Emily. “Innocence Is Irrelevant.” The Atlantic. September, 2017. Web. December 06,
2017. <https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-
irrelevant/534171/>.

No amount of tinkering, however, will matter much unless Americans stop trying to use the
criminal-justice system as a tool for managing social ills. “Why are these cases being pumped
into the system in the first place?,” Bibas said to me. He’s not alone in asking. Across the
country, in red states and blue states, reformist state and district attorneys have recently been
elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana
laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last
year, for example, the New York City Council passed legislation that made offenses such as
public drinking and urination civil rather than criminal violations, and thus subject largely to
tickets and fines. Paring back our criminal code and eliminating many mandatory minimum
sentences will be crucial to reform. In the long-running War on Drugs, the government has
regularly prosecuted people for possessing small amounts of illegal substances, or for merely
possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s
assertion, officials have charged and prosecuted defendants for the more serious crime of
“intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol
were federal crimes, Americans were not arrested by the millions and incarcerated for drinking.
And they certainly didn’t plead guilty to possessing martini glasses and other drinking
paraphernalia.

Champion Briefs 350


NEG: Critical Legal Studies K Jan/Feb 2018

The best way to fix the justice system is to allow judges to engage in
the moral calculus and to not focus on efficiency.

Singer, Joseph. “The Player And The Cards: Nihilism And Legal Theory.” Yale Law Journal. 1984.
Web. December 06, 2017.
<https://www.jstor.org/stable/796315?seq=1#page_scan_tab_contents>.

When judges decide cases, they should do what we all do when we face a moral decision. We
identify a limited set of alternatives; we predict the most likely consequences of following
different courses of action; we articulate the values that are important in the context of the
decision and the ways in which they conflict with each other; we see what relevant people
(judges, scholars) have said about similar issues; we talk with our friends; we drink enormous
amounts of coffee; we choose what to do. There is nothing mysterious about any of this. The
only thing that makes it appear mysterious is the myth that judges have an advantage that
ordinary citizens do not have that allows them to adjudicate value conflicts rationally: legal
reasoning. But there is really nothing about legal reasoning that gives judges an edge on
difficult political and moral questions. All it does is articulate in a more systematic fashion the
conflicting arguments that are generally considered relevant to political and moral questions.
[*66] Judges have no better knowledge than anyone else of how to answer those questions.
Their power is legitimate only to the extent we view their decisions as good and to the extent
we view the current methods of choosing judges and allowing them to adjudicate disputes as a
valid alternative to other sorts of dispute resolution and lawmaking.

Champion Briefs 351


NEG: Critical Legal Studies K Jan/Feb 2018

The CJS is completely corrupted with racism-needs a complete


overhaul.

Quigley, Bill. “Fourteen Examples Of Racism In The Justice System.” Harvard Journal of Law and
Public Policy. July, 2010. Web. December 06, 2017.
<http://www.huffingtonpost.com/bill-quigley/fourteen-examples-of-
raci_b_658947.html>.

So, what conclusions do these facts lead to? The criminal justice system, from start to finish, is
seriously racist. Professor Michelle Alexander concludes that it is no coincidence that the
criminal justice system ramped up its processing of African Americans just as the Jim Crow laws
enforced since the age of slavery ended. Her book, The New Jim Crow: Mass Incarceration in
the Age of Colorblindness sees these facts as evidence of the new way the US has decided to
control African Americans - a racialized system of social control. The stigma of criminality
functions in much the same way as Jim Crow - creating legal boundaries between them and us,
allowing legal discrimination against them, removing the right to vote from millions, and
essentially warehousing a disposable population of unwanted people. She calls it a new caste
system. Poor whites and people of other ethnicity are also subjected to this system of social
control. Because if poor whites or others get out of line, they will be given the worst possible
treatment, they will be treated just like poor blacks. Other critics like Professor Dylan Rodriguez
see the criminal justice system as a key part of what he calls the domestic war on the
marginalized. Because of globalization, he argues in his book Forced Passages, there is an
excess of people in the US and elsewhere. “These people”, whether they are in Guantanamo or
Abu Ghraib or US jails and prisons, are not productive, are not needed, are not wanted and are
not really entitled to the same human rights as the productive ones. They must be controlled
and dominated for the safety of the productive. They must be intimidated into accepting their
inferiority or they must be removed from the society of the productive. This domestic war relies
on the same technology that the US uses internationally. More and more we see the
militarization of this country’s police. Likewise, the goals of the US justice system are the same
as the US war on terror - domination and control by capture, immobilization, punishment and
liquidation.

Champion Briefs 352


NEG: Critical Legal Studies K Jan/Feb 2018

The legal system is endowed with commodification and market like


tendencies.

McConville, Mike. “Plea Bargaining: Ethics And Politics.” Journal of Law and Society. 1998. Web.
December 06, 2017.
<https://www.jstor.org/stable/1410639?seq=1#page_scan_tab_contents>.

Under the process of commodification, the unique identity and of cases is denied so that each
case can be placed into a generic that denominates its worth in the legal market-place.9 The
anism in this market is cost-effectiveness and system benefit. entered on ‘lists’, the efficient
disposal of which is the task of actors. The earlier the guilty plea and the higher the guilty-more
‘efficient’ the system becomes.70 ‘Cost’, ‘expense’, and ‘benefit’ variables dependent upon the
speedy throughput of cases rather values linked to contested trials in court.71 In this new
rhetoric, costs and savings are given both economic and human value. On the economic side, a
defendant may ‘save’ the system financial resources by indicating at an early stage that there
will be a guilty plea. The adversarial ideal is not compromised because no one is punished for
going to trial even though those who elect to plead guilty get a reduced sentence for saving the
system resources. By comparison, those who defer the decision until the last moment ‘waste’
scarce resources which could otherwise be spent on ‘deserving’ cases.72 On the human side,
pressurizing defendants to plead guilty is justified on the basis that last-minute guilty pleas
cause ‘unnecessary anxiety for victims whose evidence has up to that point been disputed’73
and allow other (triable) cases to be heard more quickly.

Champion Briefs 353


NEG: Critical Legal Studies K Jan/Feb 2018

The supreme court defends plea bargaining on the basis of efficiency


which is wholly market based and treats people like commodities.

Langbein, John. “On The Myth If Written Constitutions: The Disappearance Of Criminal Jury
Trial.” Harvard Journal of Law and Public Policy. 1992. Web. December 06, 2017.
<https://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html>.

The Supreme Court’s justification for plea bargaining, though wholly unprincipled, possesses
the virtue of candor. In Santobello v. New York17, Chief Justice Burger explained that plea
bargaining is to be encouraged because “[i]f every criminal charge were subjected to a full-scale
trial, the States and the Federal Government would need to multiply by many times the
number of judges and court facilities.”18 Translation: We cannot afford the Constitution and
the Bill of Rights. Sheer expediency is rationale enough for disregarding the constitutional texts.
The most prominent academic effort to justify plea bargaining is Frank Easterbrook’s chilling
paper, “Criminal Procedure as a Market System.”19 Easterbrook correctly observes that the
behavior of actors in the plea bargaining system is market-like. Under the constraints of the
system, they behave rationally, maximize their utiles, allocate their resources, and so forth.20 It
is indeed quite a glorious Turkish rug market that we have created in lieu of what the Framers
designed. Easterbrook’s paper assumes away the vital question, which is what purpose the
Framers ascribed to jury trial. Did they mean for this entitlement to be sold at the Turkish
market with the other rugs? I think not. They had public purposes in mind when envisioning
that “all” serious criminal cases would go to jury trial. To say that we have constructed a market
in criminal procedural rights is a condemnation, not a justification.

Champion Briefs 354


NEG: Critical Legal Studies K Jan/Feb 2018

If people start demanding trials it can crash the justice system by


overloading it-breaking the violent system.

Alexander, Michelle. “Go To Trial: Crash The Justice System.” New York Times. March 10, 2012.
Web. December 06, 2017. <http://www.nytimes.com/2012/03/11/opinion/sunday/go-
to-trial-crash-the-justice-system.html>.

The answer is yes. The system of mass incarceration depends almost entirely on the
cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his
constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the
ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact;
as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights
suddenly doubled or tripled in some jurisdictions, it would create chaos.” Such chaos would
force mass incarceration to the top of the agenda for politicians and policy makers, leaving
them only two viable options: sharply scale back the number of criminal cases filed (for drug
possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency”
fiat). Either action would create a crisis and the system would crash — it could no longer
function as it had before. Mass protest would force a public conversation that, to date, we have
been content to avoid.

Champion Briefs 355


NEG: Critical Legal Studies K Jan/Feb 2018

The war on African Americans is part of a capitalist drive of the


criminal justice system.

Fellner, Jaimie. “Plea Bargains – The Unfair Difference Between 10 Years And Life.” Human
Rights Watch. December 14, 2013. Web. December 06, 2017.
<https://www.hrw.org/news/2013/12/04/plea-bargains-unfair-difference-between-10-
years-and-life>.

Drugs are capitalism at its purest – if there’s a demand, there will be supply. Over the last 40
years, drug law enforcement has done little to curb drug use, but it has yielded widespread
abuses ranging from violence to egregiously harsh sentencing laws and a disproportionate
number of African Americans behind bars for drug offenses. Another thread that has run
through my work is the abuse of power. Dictators during the dirty wars and in Latin America
abused their power in certain ways. In the US, most of the direct and clear abuse of power
occurs in the criminal justice system, because that’s where the federal government wields its
weightiest weapons – it can deprive you of your liberty and of your life. I’ve researched death
sentences handed down to mentally disabled people, the US’s refusal to release old and dying
prisoners, the lack of treatment for mentally ill prisoners, and the overuse of solitary
confinement. I’ve also investigated pretrial detention for people too poor to afford bail and the
use of dogs to force prisoners from their cells. These all exemplify the misuse and abuse of
government power. I believe the US criminal justice system has been warped since the 1980s,
when there was tension around civil rights, drug use was rising, and violence in predominantly
African American communities was growing. Combine this with partisan politics in which each
party vied to be “tough on crime” and the political manipulation of concerns about drugs and
race, and you get a system in which “too many Americans go to too many prisons for far too
long,” as Attorney General Eric Holder said in August. Now there’s a growing momentum for
sentencing reform, in part because the US has realized it simply can’t afford to lock up so many
people. Still, it is hard to make people care about the excesses of the criminal justice system.
Unless you have a family member in the system, you don’t think about it and you don’t care

Champion Briefs 356


NEG: Critical Legal Studies K Jan/Feb 2018

about it. The human rights movement that took off in the l970s focused on middle class
intellectuals and political dissidents in the former Soviet Union, who were subject to human
rights violations because they wanted more political freedom. Then in the 1980s, there were
the dirty wars in Latin America, with both violent and nonviolent opponents of military
dictatorship tortured, executed and disappeared. If they were lucky, they were exiled. There is
a lot of public sympathy for people who are oppressed by governments. But protecting the
human rights of people accused of committing ordinary crimes is different. I have found that
some people have a hard time accepting that people who break the law – or who are accused
of breaking the law – have rights that should be protected the same as theirs. It’s one thing to
be concerned about a political dissident. It’s another to show concern for a murderer or a drug
dealer. But just because someone is convicted of a crime doesn’t give the government license
to impose punishment that is cruel and unjust. To me, that’s the real human rights challenge –
protecting unpopular people whatever their circumstances, whatever they’ve done, wherever
they live. Version:1.0 Sandra Avery falls into this category. I don’t know the right sentence for
someone in her situation, but I don’t believe – and I suspect many would not believe – its life
without parole. Especially a life sentence imposed not so much for her crime as for her refusal
to plead guilty. That is simply a misuse of power. A crack seller deserves fair and just treatment
at the hands of the government, the same as a political dissident. Human rights aren’t only for
the righteous. They protect the dignity of all, regardless of which side of the law someone is on.

Champion Briefs 357


NEG: Critical Legal Studies K Jan/Feb 2018

The justice system can’t be broken because it was never together- it


was designed to be racialized.

Jones, Chenelle. “The System Isn’t Broken, It Was Designed That Way: A Critical Analysis Of
Historical Racial Disadvantage.” The Hampton Institute. July 25, 2013. Web. December
06, 2017. <http://www.hamptoninstitution.org/systemisntbroken.html#.WiZP6bQ-eRs>.

Contemporary ideologies concerning the structure of the criminal justice system often purports
that the system is somehow broken and in dire need of repair from the institutionalized racism
that continues to permeate the system. However, to make this assertion of “brokenness” is to
also make the assumption that the system was void of any racialized erroneous features at its
genesis. This resounding fallacy concerning the structural makeup of the criminal justice system
is exasperating because historical trends in justice administration have shown that the criminal
justice system is not broken, it was designed that way. The criminal justice system was created
in such a way to disadvantage, subdue, and control certain minority groups, namely African
Americans. Trends in every facet of criminal justice research concerning police, courts and
corrections, provide evidence that the criminal justice system is doing exactly what it was
designed to do - marginalize and control minority populations. Although African Americans
comprise 13% of the U.S. population, they account for 29% of arrests, 38% of prisoners in state
and federal facilities, 42% of death penalty cases, and 37% of executions (Snell, 2011). Research
continues to highlight the racial disparities that infiltrate the criminal justice system. While
often the recipient of differential treatment, subjective laws, and more punitive sentences,
African Americans experience the wrath of the criminal justice system when they are the
offenders of crimes. However, when African Americans are victimized by crimes, their
victimization is often disregarded and/or addressed with futile effort. Higginbotham (1996)
noted these racialized differences in the administration of justice after an extensive review of
punishment for crimes committed by both White Americans and African Americans from 1630
to 1865. He found that White Americans tend to ascribe little justice to African Americans while
White Americans were indifferent to their own criminality (Higginbotham, 1996). Hawkins
(1996) used the phrase “black life is cheap” to describe the devaluation of African American life
and their inability to be afforded justice when victimized.

Champion Briefs 358


NEG: Critical Legal Studies K Jan/Feb 2018

Racism in the criminal justice system predates plea bargaining-a total


system overhaul is needed.

Jones, Chenelle. “The System Isn’t Broken, It Was Designed That Way: A Critical Analysis Of
Historical Racial Disadvantage.” The Hampton Institute. July 25, 2013. Web. December
06, 2017. <http://www.hamptoninstitution.org/systemisntbroken.html#.WiZP6bQ-eRs>.

The devalued status of African Americans and their disparate treatment concerning offending
and victimization as identified by both Higginbotham and Hawkins, predates the Antebellum
period. Even the U.S. Constitution once considered African Americans only 3/5th of a person.
So, the notion that the disparities in the criminal justice system are the result of a “broken”
system is to overlook and disregard the historical context from which the system was designed.
The criminal justice system has been used as a means to perpetuate racial inequalities since its
inception. It is a social institution that is vulnerable to numerous external influences and
therefore the belief that it is “broken” and somehow in need of repair, is to display a misguided
understanding of the macro and micro level contextual factors that affect the criminal justice
system and its historical role in race relations. The system is operationally and structurally
unsound. There is a need to reconsider the very essence and mechanisms of the criminal justice
system. There is a need to reconsider the external influences such as racism, classism, and
sexism that influence the system. There is also a need to reconsider the economic and political
institutions that control the system. The system is not just “broken” and in need of repair, the
system was never right from its establishment.

Champion Briefs 359


NEG: Critical Legal Studies K Jan/Feb 2018

The CJS has continually supported the subjugation of black Americans-


it was never broken its always been that way.

Jones, Chenelle. “The System Isn’t Broken, It Was Designed That Way: A Critical Analysis Of
Historical Racial Disadvantage.” The Hampton Institute. July 25, 2013. Web. December
06, 2017. <http://www.hamptoninstitution.org/systemisntbroken.html#.WiZP6bQ-eRs>.

The injustices experienced by African Americans within the criminal justice system not only
existed in slave codes, black codes, and lynchings, Jim Crow laws further criminalized the
mundane behavior of African Americans and subjected them to disparate treatment within the
criminal justice system. Jim Crow laws were legal statutes that perpetuated segregation and
prevented African Americans from schools, parks, restaurants, theatres, buses, trains, etc. that
were designated for White Americans. Violation of these discriminatory laws, which were
enforced by law enforcement officials working for their respective criminal justice agencies,
carried severe penalties for African Americans. This often led to the increased criminalization of
African Americans. Sutherland (1947) noted that African Americans were arrested, convicted,
and committed to prisons at a rate of almost three times that of White Americans. Sutherland’s
findings reveal that even years after its origin, the criminal justice system continued to be used
as a means of social control to maintain the social hierarchy of White superiority and black
inferiority. This supports the assertion that the system was never broken, it was designed to
marginalize African Americans and in doing that, it was very successful.

Champion Briefs 360


NEG: Critical Legal Studies K Jan/Feb 2018

The CJS is corrupt its built to prop up power and ensure tyranny.

Whitehead, John W. “The American Nightmare: The Tyranny Of The Criminal Justice System.”
Huffington Post. July 22, 2015. Web. December 06, 2017.
<https://www.huffingtonpost.com/john-w-whitehead/the-american-nightmare-
th_b_7843872.html>.

Every American is now in jeopardy of being targeted and punished for a crime he did not
commit thanks to an overabundance of arcane laws. Making matters worse, by allowing
government agents to operate above the law, immune from wrongdoing, we have created a
situation in which the law is one-sided and top-down, used as a hammer to oppress the
populace, while useless in protecting us against government abuse. Add to the mix a profit-
driven system of incarceration in which state and federal governments agree to keep the jails
full in exchange for having private corporations run the prisons, and you will find the only word
to describe such a state of abject corruption is “evil.” How else do you explain a system that
allows police officers to shoot first and ask questions later, without any real consequences for
their misdeeds? Close to 400 people were shot and killed by police nationwide in the first half
of 2015, almost two shootings a day. Of those killed, almost 1 in 6 were either unarmed or
carried a toy gun. For those who survive an encounter with the police only to end up on the
inside of a jail cell, waiting for a “fair and speedy trial,” it’s often a long wait. Consider that 60
percent of the people in the nation’s jails have yet to be convicted of a crime. There are 2.3
million people in jails or prisons in America. Those who can’t afford bail, “some of them
innocent, most of them nonviolent and a vast majority of them impoverished,” will spend about
four months in jail before they even get a trial. Not even that promised “day in court” is a
guarantee that justice will be served. As Judge Alex Kozinski of the Ninth Circuit Court of
Appeals points out, there are an endless number of factors that can render an innocent man or
woman a criminal and caged for life: unreliable eyewitnesses, fallible forensic evidence, flawed
memories, coerced confessions, harsh interrogation tactics, uninformed jurors, prosecutorial
misconduct, falsified evidence, and overly harsh sentences, to name just a few. Still, it wasn’t

Champion Briefs 361


NEG: Critical Legal Studies K Jan/Feb 2018

always this way. As Judge Jed S. Rakoff recounts, the Founding Fathers envisioned a criminal
justice system in which the critical element “was the jury trial, which served not only as a truth-
seeking mechanism and a means of achieving fairness, but also as a shield against tyranny.”
That shield against tyranny has long since been shattered, leaving Americans vulnerable to the
cruelties, vanities, errors, ambitions and greed of the government and its partners in crime.

Champion Briefs 362


NEG: Critical Legal Studies K Jan/Feb 2018

The justice system doesn’t operate under innocence but rather


control.

Whitehead, John W. “The American Nightmare: The Tyranny Of The Criminal Justice System.”
Huffington Post. July 22, 2015. Web. December 06, 2017.
<https://www.huffingtonpost.com/john-w-whitehead/the-american-nightmare-
th_b_7843872.html>.

Consequently, America no longer operates under a system of justice characterized by due


process, an assumption of innocence, probable cause, and clear prohibitions on government
overreach and police abuse. Instead, our courts of justice have been transformed into courts of
order, advocating for the government’s interests, rather than championing the rights of the
citizenry, as enshrined in the Constitution. Without courts willing to uphold the Constitution’s
provisions when government officials disregard them, and a citizenry knowledgeable enough to
be outraged when those provisions are undermined, the Constitution provides little protection
against the police state. In other words, in this age of hollow justice, courts of order, and
government-sanctioned tyranny, the Constitution is no safeguard against government
wrongdoing such as SWAT team raids, domestic surveillance, police shootings of unarmed
citizens, indefinite detentions, asset forfeitures, prosecutorial misconduct and the like.



Champion Briefs 363
A/2: Critical Legal Studies K Jan/Feb 2018

It’s not the courts its criminal law that is the problem- this regulates
all action and acceptability in the courts.

Robinson, Matthew. “The Myth Of A Fair Criminal Justice System.” Justice Policy Journal. 2009.
Web. December 06, 2017.
<http://www.cjcj.org/uploads/cjcj/documents/the_myth.pdf>.

The criminal justice system is the term used to describe the interdependent components of the
police, courts, and correctional facilities within the federal government, as well as the agencies
of criminal justice of each of the fifty states. The criminal justice system is a whole, made up of
these three interdependent components. Some would add law-making as a fourth component
of criminal justice, for all legitimate criminal justice system activity emanates from the law
(Samaha 2007). This is important to understand because if criminal justice process is unfair,
some of it would stem from the criminal law (Robinson 2001). The substantive aspect of the law
reflects the “ what” of the law, in that laws are created to define certain behaviors as crimes
and to provide punishments for violations of those laws (Dressler 2006). One example of
unfairness in the substantive criminal law is the disparate punishments for crack vs. powder
cocaine found in the federal sentencing guidelines (Blumstein 2003). In the mid-1980s, the
emergence of crack led to an increase in violence surrounding the crack market, especially
among juveniles. As a result, Congress responded with sanctions that provided that 500 grams
of powder cocaine and only 5 grams of crack cocaine will net a mandatory sentence of five
years in federal prison (Sentencing Project 2008b). Since African-Americans are
disproportionately more likely to be involved in the crack cocaine market, the law invariably
discriminates against these offenders, who made up more than 80 percent of defendants in
federal courts charged with crack cocaine offenses (U.S. Sentencing Commission 2007). This is
evidence of a serious inequity in criminal justice practice.

Champion Briefs 364


A/2: Critical Legal Studies K Jan/Feb 2018

Now is the perfect time for CJS reform-public pressures are rising.

Vanden Heuvel, Katrina. “Fixing A Broken Justice System.” Washington Post. December 16,
2014. Web. December 06, 2017. <https://www.washingtonpost.com/opinions/katrina-
vanden-heuvel-fixing-a-broken-justice-system/2014/12/16/76239b2e-8496-11e4-b9b7-
b8632ae73d25_story.html?utm_term=.a3be1b803502>.

At a time when there is political momentum to address mass incarceration and the war on
drugs, it is crucial that our efforts to fix the broken criminal justice system include police
reform. And while removing local district attorneys from the process of investigating police
officers is a start, more can be done to repair relations between police and communities of
color and protect people from bad policing, such as requiring officers to wear body cameras,
defunding police departments that use excessive force or racial profiling, and ending the
“broken windows” enforcement strategy that encourages aggressive interactions with low-level
offenders. As Dani McClain has written in the Nation, “This moment has the potential to
catapult change.” The recent tragedies have brought public attention to the pain and suffering
that our criminal justice system has inflicted on black communities for decades. Now, with the
protest movement growing, the cries for justice are getting louder every day. This moment, if
met, could be the beginning of a renewed civil rights movement, one whose time has surely
come.

Champion Briefs 365


A/2: Critical Legal Studies K Jan/Feb 2018

Funding and proper staffing are the keys to fixing the justice system.

Love Kourlis, Rebecca. “5 Steps For Fixing The Civil Justice System.” The Atlantic. June 11, 2012.
Web. December 06, 2017. <https://www.theatlantic.com/national/archive/2012/06/5-
steps-for-fixing-the-civil-justice-system/258295/>.

1. We must assure that the courts are appropriately funded. Anyone who is following the
closure of 56 Los Angeles courtrooms -- and the consequent impact on citizens who need
protective orders, divorce decrees, finality in civil cases, or a determination of where their
children should live -- cannot dispute the importance of viable courts. Similar stories abound in
courts across the country. 2. We must choose and train the right people to be judges: people
who come to the bench in a process that protects impartiality. We must train them well, in
areas of core competency. In some jurisdictions we must reduce judicial caseloads, and in
almost every jurisdiction we must pay judges more equitably so that the bench attracts and
keeps dedicated people. Public service should never be a way of getting rich, but it should also
not be punitive. 3. We must demand that judges manage cases more effectively, including
providing more oversight and triaging cases and issues. Judges need to become involved early
in cases and stay involved until the end. They need to resolve motions speedily and minimize
continuances -- where clients pay double costs for their lawyers and witnesses to prepare once,
and then again a second time. We must develop and apply court and judicial performance
standards that measure and encourage fairness, good judicial management, and efficiency.



Champion Briefs 366
NEG: Drug Reform CP Jan/Feb 2018

NEG: Drug Reform CP


Like the sentencing reform CP, the purpose of this position is to get at the root of the
aff’s offense. If a lot of their evidence is describing the injustices of the War on Drugs, and
making a connection to plea bargaining, the neg can read this advantage counterplan which
simply ends the drug war. That way, there is no intrinsic reason to vote aff because the
abolition of plea bargaining is not necessary to solve their impacts.
The aff shouldn’t emphasize the War on Drugs unless you have some unique angle to
your contentions which can solidly answer this counterplan. For example, your argument may
not be that the drug war itself is bad, just that illicit drug users shouldn’t be forced into plea
deals. You would claim the aff is the ‘middle ground’, where drugs would still be treated as a
criminal justice issue but that the process of punishment is more just. I don’t think any aff on
the topic could sensibly claim they end the War on Drugs, and if they did, this counterplan
would be an easy win for the neg.

Champion Briefs 367


NEG: Drug Reform CP Jan/Feb 2018

Accounting for the “stock” and “flow” of prisons means that reducing
the population of drug offenders in prisons is essential.

Lopez, German. “Why You Can’t Blame Mass Incarceration On The War On Drugs.” Vox. May 30,
2017. Web. December 09, 2017. <https://www.vox.com/policy-and-
politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in>.

One caveat to this part of Pfaff’s argument is the churn of the prison population. While the
majority of people in state prison at a single point in time are in for violent crimes, many more
people are admitted to prison for drug and property offenses than for violent ones. But the
lower-level offenders end up serving much shorter sentences, so they don’t add as much to the
total prison population at any given point in time as violent offenders do. This was
demonstrated in a 2015 analysis by Jonathan Rothwell for Brookings, where he charted the
“stock” and “flow” of prisons and how they differ based on offense: So while reducing the
number of violent offenders in prison is needed to undo mass incarceration (as measured by
the total prison population), cutting back on drug and property offenders would still do a lot to
lower the total amount of people exposed to the criminal justice system.

Champion Briefs 368


NEG: Drug Reform CP Jan/Feb 2018

Drug laws are the primary driver of mass incarceration, and it’s
racially disproportionate.

Alliance, Drug Policy. “The Drug War, Mass Incarceration And Race.” February, 2016. Web.
December 09, 2017.
<https://www.drugpolicy.org/sites/default/files/DPA%20Fact%20Sheet_Drug%20War%
20Mass%20Incarceration%20and%20Race_%28Feb.%202016%29_0.pdf>.

The Drug War Drives Mass Incarceration and Racial Disparities in U.S. Judicial Systems There
were more than 1.5 million drug arrests in the U.S. in 2014. The vast majority – more than 80
percent – were for possession only. 4 At year-end 2013, 16 percent of all people in state prison
were incarcerated for a drug law violation – of whom nearly 50,000 were incarcerated for
possession alone. 5 More than 50 percent of people in federal prisons are incarcerated for drug
law violations. Almost 500,000 people are behind bars for a drug law violation on any given
night in the United States6 – ten times the total in 1980.7 Drug law violations have been the
main driver of new admissions to prison for decades. An analysis by Brookings Institution found
that there were more than 3 million admissions to prison for drug offenses between 1993 and
2009 in the United States. In each year during that period, more people were admitted to
prisons for drug law violations than violent crimes. During that same timeframe, there were
more than 30 million drug arrests. 9 People of color experience discrimination at every stage of
the judicial system and are more likely to be stopped, searched, arrested, convicted, harshly
sentenced and saddled with a lifelong criminal record. This is particularly the case for drug law
violations.

Champion Briefs 369


NEG: Drug Reform CP Jan/Feb 2018

Black people and Latino people are disproportionately arrested and


incarcerated for drug crimes.

Alliance, Drug Policy. “The Drug War, Mass Incarceration And Race.” February, 2016. Web.
December 09, 2017.
<https://www.drugpolicy.org/sites/default/files/DPA%20Fact%20Sheet_Drug%20War%
20Mass%20Incarceration%20and%20Race_%28Feb.%202016%29_0.pdf>.

Black people comprise 13 percent of the U.S. population,10 and are consistently documented
by the U.S. government to use drugs at similar rates to people of other races.11 But black
people comprise 31 percent of those arrested for drug law violations,12 and nearly 40 percent
of those incarcerated in state or federal prison for drug law violations.13 Similarly, Latinos make
up 17 percent of the U.S. population, but comprise 20 percent of people in state prisons for
drug offenses and 37 percent of people incarcerated in federal prisons for drug offenses.14 In
2013, Latinos comprised almost half (47 percent) of all cases in federal courts for drug
offenses.15 National level data on arrests of people of Latino ethnicity are incomplete. Yet
among drug arrest incidents in 2014 in which ethnicity was reported, more than 22 percent of
those arrested were Latino.16 State and local level data show that Latinos are
disproportionately arrested and incarcerated for drug possession violations.17

Champion Briefs 370


NEG: Drug Reform CP Jan/Feb 2018

Policy recommendations from the Drug Policy Alliance.

Alliance, Drug Policy. “The Drug War, Mass Incarceration And Race.” February, 2016. Web.
December 09, 2017.
<https://www.drugpolicy.org/sites/default/files/DPA%20Fact%20Sheet_Drug%20War%
20Mass%20Incarceration%20and%20Race_%28Feb.%202016%29_0.pdf>.

Policy Recommendations 1. Decriminalize drug possession, removing a major cause of arrest


and incarceration of primarily people of color, helping more people receive drug treatment and
redirecting law enforcement resources to prevent serious and violent crime. 2. Eliminate
policies that result in disproportionate arrest and incarceration rates by changing police
practices, rolling back harsh mandatory minimum sentences, and repealing sentencing
disparities. 3. End policies that exclude people with a record of arrest or conviction from key
rights and opportunities. These include barriers to voting, employment, public housing and
other public assistance, loans, financial aid and child custody.



Champion Briefs 371


A/2: Drug Reform CP Jan/Feb 2018

The War on Drugs is not the primary cause of mass incarceration--new


analysis proves.

Lopez, German. “Why You Can’t Blame Mass Incarceration On The War On Drugs.” Vox. May 30,
2017. Web. December 09, 2017. <https://www.vox.com/policy-and-
politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in>.

There’s a “Standard Story” that many Americans, particularly on the left, believe about mass
incarceration: During the 1970s and ‘80s, the federal government dramatically escalated its war
on drugs. This alone led to millions of people getting locked up for fairly low-level drug
offenses, causing the US prison population to spike. This new prison population is
predominantly black, leading to massive racial disparities in the criminal justice system. And all
of this happened, not coincidentally, right after the civil rights movement — showing the rise in
incarceration was a ploy to oppress black Americans just after they made huge gains. But in a
new book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform,
Fordham University criminal justice expert John Pfaff offers a trove of evidence that this
narrative is by and large wrong or, at the very least, misses much of the real story. The
“Standard Story” of mass incarceration, as Pfaff calls it, was largely popularized by a 2010 book,
The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander.
Pfaff goes through many facts and statistics to show that this Standard Story gets a lot wrong
about the causes and realities of mass incarceration, from the types of crime that people are
locked up for (in reality, largely violent offenses) to the areas in which reform is truly needed
(with a focus on state and local, not federal, reform).

Champion Briefs 372


A/2: Drug Reform CP Jan/Feb 2018

The goal of real decarceration requires a broader focus beyond the


drug war.

Lopez, German. “Why You Can’t Blame Mass Incarceration On The War On Drugs.” Vox. May 30,
2017. Web. December 09, 2017. <https://www.vox.com/policy-and-
politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in>.

The book dampens much of the excitement around the progress we’ve seen in the past few
years. Starting in 2010, the incarceration rate began to fall in the US for the first time in
decades. But the drop has been slight, driven mostly by changes to sentencing laws for low-
level drug and property crimes. And based on Pfaff’s work, this drop won’t continue — at least
in a dramatic fashion — as long as reformers and the public remain focused on a Standard Story
that’s almost entirely about the federal war on drugs. “Simply stopping the rise in incarceration
has been a huge accomplishment,” Pfaff notes. “If the goal is real decarceration, however, it is
time to shift focus to the much broader, much more confounding issues that keep us locked in
to our current predicament.”

Champion Briefs 373


A/2: Drug Reform CP Jan/Feb 2018

Most state prisoners are serving time for violent crimes, not drugs.

Lopez, German. “Why You Can’t Blame Mass Incarceration On The War On Drugs.” Vox. May 30,
2017. Web. December 09, 2017. <https://www.vox.com/policy-and-
politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in>.

Pfaff demonstrates that this central claim of the Standard Story is wrong. “In reality, only about
16 percent of state prisoners are serving time on drug charges — and very few of them,
perhaps only around 5 or 6 percent of that group, are both low level and nonviolent,” he writes.
“At the same time, more than half of all people in state prisons have been convicted of a violent
crime.” By the numbers, Pfaff is correct: The latest data by the US Bureau of Justice Statistics
shows that in state prisons, where about 87 percent of US inmates are held, nearly 53 percent
are in for violent offenses (such as murder, manslaughter, robbery, assault, and rape), while
only about 16 percent, as Pfaff said, are in for drug offenses.

Champion Briefs 374


A/2: Drug Reform CP Jan/Feb 2018

Meaningful reform requires changing how we approach violent crimes


as well as the war on drugs.

Lopez, German. “Why You Can’t Blame Mass Incarceration On The War On Drugs.” Vox. May 30,
2017. Web. December 09, 2017. <https://www.vox.com/policy-and-
politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in>.

That doesn’t rule out the role of racism. One reason that policymakers overreacted to the crime
wave, Pfaff acknowledges, is likely prejudice, given that “our durable history of racism may
make rising crime seem more frightening to white voters than it is to Europeans [who didn’t
react to their own crime waves with similar bouts of incarceration], or at least it may ensure
greater rewards (or fewer risks) for politicians who crack down on poor minority communities.”
Still, the statistics indicate that violent crime played a huge role in mass incarceration. It wasn’t
just — or even mostly — the war on drugs. “Until we accept that meaningful prison reform
means changing how we punish violent crimes, true reform will not be possible,” Pfaff writes.


Champion Briefs 375


NEG: Federalism DA Jan/Feb 2018

NEG: Federalism DA
This disad is arguing for “states’ rights.” Your argument would be that criminal justice,
particularly the regulation of plea deals, is especially reserved to states and localities. For the
federal government to abolish plea bargaining nationwide, it would require them to assume a
lot of authority over criminal proceedings that they’ve traditionally reserved to the states. The
impact would involve some precedent (or “spillover”) for other policy areas, like climate
change, education, or some other law enforcement issue (ex. terrorism), for which it would be
best to give states more room to experiment with different policies.
The best affirmative responses would question the steps which comprise the “link
chain” of this disad. For example, how would federal ‘overreach’ on plea bargaining possibly
affect states’ decisions on climate change or education? If the negative’s cards aren’t very good
on that precedent-setting (especially when their scenario gets into something wacky like US
federalism being modeled by another country), you can point out that the DA has zero plausible
impact. The aff should also argue that the federal government has intervened on criminal
justice to a large extent (ex. Clinton’s crime bill in the 90s, or President Obama commuting
sentences), so the link uniqueness is shot, even if federalism is generally high now. That’s why
the negative should make their uniqueness story, and internal link to their large impact, as
specific as the cards can allow.

Champion Briefs 376


NEG: Federalism DA Jan/Feb 2018

Plea bargaining takes place within the context of a federalist criminal


justice system.

Viano, Emilio. “Plea Bargaining In The United States: A Perversion Of Justice.” Revue
Internationale De Droit Penal. 2012. Web. December 08, 2017. <http://www.cairn-
int.info/article-E_RIDP_831_0109--plea-bargaining-in-the-united-states-a.htm>.

[1] 3 Unfortunately, this depiction of the American justice system does not reflect what really
happens in courtrooms around the country. Actually, very few criminal cases go to trial. About
97 percent of the criminal cases are resolved by plea bargains. In a plea bargain, the prosecutor
normally offers a reduced prison sentence if the defendant agrees to forego his right to a jury
trial and admit guilt in a summary proceeding before a judge. 4 The data are unmistakable. In
fiscal year 2010, the prevalent mode of conviction in U.S. District Courts of all crimes was by
plea of guilty (96.8% of all cases). [2] Sourcebook of Criminal Justice Statistics Online 2010;…[2]
The percentage ranges from a relative low of 68.2% for murder to a high of 100% for cases of
burglary, breaking and entering. With the exception of sex abuse (87.5%), arson (86.7%), civil
rights (83.6%) and murder (68.2%), for all other crimes the rate of convictions by plea of guilty
is well over 90%. In the recent U.S. Supreme Court decision, Missouri v. Frye [3] No. 10-444,
2012 WL 932020 (U.S. Mar. 21, 2012 )[3], Justice Kennedy, writing the majority opinion, pointed
out the statistics that 97% of federal convictions and 94% of state convictions are the result of
guilty pleas. Given the federalist nature of the United States, states and localities have their
own substantive and procedural laws and regulations. Consequently, data on convictions by
pleas of guilty vary from state to state but they are all substantial.

*Ellipsis from source

Champion Briefs 377


NEG: Federalism DA Jan/Feb 2018

States should be laboratories of experimentation in criminal justice.

Luna, Erik. “Mandatory Minimum Sentencing Provisions Under Federal Law.” CATO Institute.
May 27, 2010. Web. December 08, 2017.
<https://www.cato.org/publications/congressional-testimony/mandatory-minimum-
sentencing-provisions-under-federal-law>.

Federal mandatory minimums also impinge on another core benefit of federalism, namely,
pluralistic decision-making and local choice.45 In a diverse society like ours, citizens in different
jurisdictions are likely to have distinct views on the substance and process of criminal justice.
State and local decision-makers tend to be more attuned to such preferences, given their
closeness to constituents and the greater opportunity of citizens to be involved in state and
local government. Unencumbered by national dictates, states may even become laboratories of
experimentation in criminal justice. In the oft-repeated words of Justice Brandeis, “It is one of
the happy incidents of the federal system that a single courageous state may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without risk to
the rest of the country.”46 Should individuals find unbearable the local or state approach to
crime and punishment, federalism allows them to vote with their feet, so to speak, by moving
to another county or state. Federal mandatory minimums can overwhelm such decision-making
on issues of criminal justice, effectively and powerfully nullifying state and local judgments. For
example, the federal government may effectively override a state’s decision that certain drug-
related conduct should not be a crime in the first place or should be subject to far more lenient
punishment.47

Champion Briefs 378


NEG: Federalism DA Jan/Feb 2018

The imposition of federal uniformity in sentencing undermines


flexibility and pragmatism.

O’Hear, Michael. “Thoughts On The Holder Address: Two Cheers For The New Paradigm.” Life
Sentences Blog. October 20, 2013. Web. December 08, 2017.
<http://www.lifesentencesblog.com/?p=6742>.

Following decades in which the U.S. Department of Justice has consistently advocated for a
rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract
principles of national uniformity, has willfully disregarded the devastating impact of its
charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney
General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal
criminal justice system, in which prosecutorial charging priorities are more specifically tailored
to meet local needs, in which sentencing is more individualized to the offender and prosecutors
sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney
Offices experiment with new diversion programs as an alternative to conventional case-
processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can
achieve better public-safety results at a lesser cost than a system in which preserving the
integrity of the federal sentencing guidelines is the overriding value.



Champion Briefs 379
A/2: Federalism DA Jan/Feb 2018

Federal laws in criminal justice have increased exponentially.

Barlow, Rachel. “Federalism And Criminal Law: What The Feds Can Learn From The States.”
Michigan Law Review. 2011. Web. December 08, 2017.
<https://repository.law.umich.edu/cgi/viewcontent.cgi?referer=https://www.google.co
m/&httpsredir=1&article=1165&context=mlr>.

Over the last several decades, federal criminal law has mushroomed beyond recognition. The
number of federal criminal laws now hovers somewhere over 4,000, with roughly 40% of the
laws passed after the Civil War coming in the 25-year period between 1970 and 1998.0 Many of
these laws are written in sweepingly broad terms,” overlap with one another,12 and cover
ground already addressed by state law, including violent crimes. Often, new federal laws are
passed or existing laws are expanded in the wake of a highly publicized crime, with little
analysis of whether there is an actual need for federal involvement.14 The result is a federal
prison population that is now larger than the prison population of any single jurisdiction” and a
federal docket of almost 70,000 criminal cases annually, roughly double the figure from 25
years earlier. The number of drug cases in particular has exploded, rising approximately 300% in
the stretch from 1980 to 1990” and another 45% from 1990 to 2000.” An additional, roughly
contemporaneous trend has been the centralization of prosecutorial power within the federal
government.,9 Increasingly, the Department of Justice in Washington, D.C. (“Main Justice”) has
sought to control the charging and plea decisions of federal prosecutors. Main Justice has
issued a series of directives establishing charging practices in federal criminal cases against
individuals and corporations, 20 and the United States Attorneys’Manual covers more specific
policies. Federal prosecutors have also been ordered to seek approval from or provide notice to
Main Justice with respect to two hundred types of decisions,2 ‘ including whether to bring cases
under a variety of criminal statutes (such as the Racketeer Influenced and Corrupt
Organizations Act),22 deciding whether or not to seek the death penalty in death-eligible
cases,23 and obtaining a wiretap.24 Main Justice has also spent more time keeping track of
local statistics on which cases are brought, with an eye toward controlling the mix. 25 The firing

Champion Briefs 380


A/2: Federalism DA Jan/Feb 2018

of U.S. attorneys in 2006 may have been, in the words of the Main Justice’s inspector general
and Office of Professional Responsibility, “fundamentally flawed” and “severely damag[ing]” to
the Department’s credibility,26 but it was nevertheless consistent with these other attempts to
shift power over criminal law enforcement to Main Justice.” Main Justice has also grown
increasingly vocal about the need to check regional variations among judges in their sentencing
practices, another sign of its desire to have a central, uniform approach to federal criminal
law.2 Like the expansion of the federal criminal code, these efforts to give Main Justice more
centralized authority come at the expense of local control over criminal enforcement. U.S.
attorneys may be federal appointees, but they are more responsive to local interests than Main
Justice.2 9 They are typically drawn from the district in which they serve, and they necessarily
pay attention to the local values and practices in their district.30 U.S. attorneys and federal
judges in a district are also more likely than Main Justice to take into account the attitudes and
values of local juries in making their decisions. Thus, to the extent Main Justice takes on a
decision-making role for itself or orders a particular standard that disregards local jury
preferences,’ that too has the effect of stripping local communities of some of their law 32
enforcement power. The increasing use of federal criminal law to address local crime has hardly
gone unnoticed. The federal judiciary was one of the first institutions to offer critical
commentary. The Federal Courts Study Committee cautioned in 1990 that the federal
judiciary’s “most pressing problems.. stem from unprecedented numbers of federal narcotics
prosecutions.” In numerous year-end reports, Chief Justice Rehnquist warned of the increased
burden on the federal courts because of federal criminal law’s growth. These warnings fell on
deaf ears in Congress. Far from scaling back federal criminal law, Congress continued to expand
it in the years following the judiciary’s reports.”

Champion Briefs 381


A/2: Federalism DA Jan/Feb 2018

The right to trial by jury is binding on the states.

Holland, Randy. “State Jury Trials And Federalism: Constitutionalizing Common Law Concepts.”
Valparaiso University Law Review. 2004. Web. December 08, 2017.
<http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1373&context=vulr>.

The right to trial by jury in the Delaware Constitution demonstrates two separate principles of
federalism that were established in the dual sovereignty framework of the United States
Constitution. The first principle relates to the Supremacy Clause. Congressional enactments
pursuant to an enumerated power are made binding upon the states by the Supremacy Clause.
Although the Sixth Amendment right to trial by jury in a criminal proceeding has been made
binding upon the states by virtue of the Fourteenth Amendment,1 the United States Supreme
Court has thus far declined to hold that the Seventh Amendment right to trial by jury in a civil
proceeding is binding upon the states.12 The second principle of American federalism is that
any state may afford its citizens greater protections under that state’s own constitution than
are otherwise guaranteed by the United States Constitution.13


Champion Briefs 382


NEG: Sentencing Reform CP Jan/Feb 2018

NEG: Sentencing Reform CP


This counterplan would be different from the one to reform plea bargaining. More
indirectly, it would reform criminal sentences so that they’re not as strict for non-violent drug
crimes, or so that mandatory minimums and “three strikes” laws are off the books. Your
solvency wouldn’t be that these reforms are good in themselves, but rather that they set a
precedent against unfair plea deals. Since harsher sentences are a bargaining chip used to
pressure people into accepting plea deals, the counterplan creates an atmosphere where
people would feel they have more freedom to go to trial, without losing the option to plead
guilty if that’s in their interest. You answer the obvious “permutation, do both” by arguing that
the perm, because it abolishes plea bargaining, would link to all the negative offense.
The best affirmative answers to this counterplan (besides perm, do both) are about the
specific framework and contentions of your aff. Whenever you write an aff, you should always
think about what makes your offense so special or particular that it can’t be solved by an
advantage counterplan like this.

Champion Briefs 383


NEG: Sentencing Reform CP Jan/Feb 2018

Revising how crimes are defined can reduce mass incarceration.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

A. Revise How Crimes Are Defined If a crime is a felony, or potentially a felony, the
consequences of conviction are more severe. This can mean more time in jail or prison, and the
collateral consequences are significantly more serious for felony convictions. Prosecutorial
discretion determines which charges will be filed, as so many acts can be punished as both
felonies and misdemeanors. The threats of re-filing as a felony or reducing to a misdemeanor
are both powerful threats. To avoid a felony conviction, a defendant may agree to plead guilty
to a misdemeanor, even if they are innocent or otherwise have a strong defense.62 One way to
help prevent this type of pressure from prosecutors is to redefine crimes both by reducing the
number that can be charged as both felonies and misdemeanors and by reducing some felonies
to misdemeanors.

Champion Briefs 384


NEG: Sentencing Reform CP Jan/Feb 2018

The distinctions between felonies and misdemeanors should serve


legitimate policy objectives.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

1. Reducing the Number of Acts that Can Be Charged as Either Felonies or Misdemeanors Theft
offenses and assaults are two common types of crimes that can be charged as both
misdemeanors and felonies, depending on the seriousness of the offense. For example, an
assault that includes serious bodily injury is more likely to be a felony.63 Likewise, a theft that
involves property that is worth over a certain amount of money (for example, $2,500.00) is
often a felony.64 Prior offenses can also be a factor. For example, petty theft with a prior
conviction can be charged as a felony or a misdemeanor in California, regardless of the value of
the stolen property.65 Some of these distinctions make sense and shouldn’t be eliminated. For
example, a spousal battery where there is serious bodily injury is clearly a more serious crime
than a simple punch or single slap. But some of these distinctions simply allow prosecutors to
exert pressure during the plea bargaining process to encourage defendants to take the plea
deal.66 In addition, if a prosecutor has more options and can file the same case as either a
felony or a misdemeanor, it may mean that they are more likely to file the case, thereby
contributing to the increase in the percentage of case filings from arrests. 67 Legislatures
should review the full list of criminal charges that can be filed as both misdemeanors or felonies
and make sure the distinctions support a real public policy objective and are not simply there to
add to the arsenal of charges that prosecutors can file. One simple proposal is to eliminate
petty theft with a prior as a felony charge. If the amount stolen is a small amount and not
enough to rise to the level of a felony, it should stay a misdemeanor, regardless of the record of
the defendant.

Champion Briefs 385


NEG: Sentencing Reform CP Jan/Feb 2018

Most mandatory minimum sentences should be eliminated.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

B. Eliminate Most Mandatory Sentences Both state and federal criminal codes include a large
number of mandatory minimum sentences both for the underlying criminal charge and for
added enhancements.72 If a defendant is convicted at trial of a crime or an enhancement that
includes a mandatory minimum sentence, the judge usually has no choice but to impose the
sentence.73 The practical effect of mandatory minimums is to give prosecutors more power as
the threat of adding an enhancement with a mandatory minimum or proceeding on a charge
with a mandatory minimum can mean that the defendant will get significantly more time if they
are convicted and do not accept the plea deal.74 In all but the most serious of crimes,
legislatures should remove mandatory minimums from criminal codes both for the underlying
offense and for enhancements.

Champion Briefs 386


NEG: Sentencing Reform CP Jan/Feb 2018

Eliminating mandatory minimums in enhancements is necessary.

Alkon, Cynthia. “An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To
Reduce Prosecutorial Power I.” University of Maryland Law Journal of Race, Religion,
Gender and Class. 2015. Web. December 09, 2017.
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1247&context=
rrgc>.

2. Eliminating Mandatory Minimum Sentences in Enhancements Prosecutors routinely threaten


to add enhancements, such as the use of a gun, that include mandatory minimum sentences in
order to put pressure on defendants to plead guilty. Although at first glance many
enhancements support clear policy goals, such as discouraging the use of a gun during the
commission of a felony, the mandatory sentences often exceed the stated reason for the
enhancement. For example, the use of a gun regularly carries mandatory minimums of a
decade or more in prison.82 There are questions about what is added, from a public policy
point of view, by these enhancements. For example, if a gun is used and causes serious bodily
injury, the underlying offense—assault with serious bodily injury—would include increased
punishment for the injury. In that example, the gun use enhancement simply acts to put
additional pressure on a defendant to take a deal, as the penalty can be so much more severe.
Most codes allow for a great variety of enhancements based on where the crime was
committed (i.e. was the defendant in a school zone?);83 what was used (a gun or other deadly
weapon?);84 and whether the defendant has prior convictions.85 Legislative reform needs to
include a full overhaul of which enhancements are allowed, eliminate mandatory sentences,
and reduce the time for enhancements. Mandatory minimums in enhancements give
prosecutors tremendous power to pressure defendants to plead guilty in exchange for an offer
to strike the enhancement or not add it in the first place.

Champion Briefs 387


NEG: Sentencing Reform CP Jan/Feb 2018

Reforming the plea system would shine light on abusive prosecutorial


behavior--it would become a system-wide audit.

Walsh, Dylan. “Why U.S. Criminal Courts Are So Dependent On Plea Bargaining.” The Atlantic.
May 02, 2017. Web. December 09, 2017.
<https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/>.

He suggests that reforming the plea system to incorporate more trials would expose other
problem areas. “Trials are an important window into how the system is functioning—they’re a
form of audit,” Rappaport said. “They shine light on investigatory and prosecutorial behavior
and air them publicly.” If the police behave badly, this remains buried when defendants take a
plea. In this regard, even a heavily pruned trial is favorable to no trial at all. And such a
bargaining process would not exist without limits. “The outcome of the trial still has to stem
from the application of general legal principles to facts of individual cases,” he said. A
defendant could not agree to a coin flip, for example, as the determinant of guilt.


Champion Briefs 388


A/2: Sentencing Reform CP Jan/Feb 2018

Even if mandatory minimums are ended, judges will strategically give


severe sentences to induce a guilty plea. Abolishing plea bargaining is
necessary.

Dervan, Lucian. “The Injustice Of The Plea-Bargain System.” The Wall Street Journal. December
03, 2015. Web. December 09, 2017. <https://www.wsj.com/articles/the-injustice-of-
the-plea-bargain-system-1449188034?mg=prod/accounts-wsj>.

The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform
America’s criminal-justice system. With incarceration rates in the U.S. five to 10 times higher
than in Western Europe and other democracies, the bills aim to provide sensible reforms such
as rewriting mandatory-sentencing statutes. Yet none directly addresses plea bargaining, a
practice that induces too many defendants to plead guilty to avoid what has come to be known
as the trial penalty. Consider the case of Orville Lee Wollard. The 60-year-old Floridian is serving
a 20-year prison sentence for using his legally owned weapon in his own home to fire a warning
shot into the wall next to his daughter’s boyfriend. The warning shot came at the end of a day
in 2008 during which the boyfriend allegedly attacked Mr. Wollard, assaulted his daughter, and
refused to leave Mr. Wollard’s home. No one was injured. Believing his actions justifiable self-
defense, Mr. Wollard rejected a plea bargain of five years probation, choosing instead to
exercise his constitutional right to a trial and present his case to a jury. Unfortunately, the court
didn’t permit him to admit extensive evidence regarding the boyfriend’s alleged abuse. After
hearing the limited evidence, the jury convicted Mr. Wollard of aggravated assault with a
firearm, resulting in a mandatory minimum sentence of 20 years. In September, Florida Gov.
Rick Scott denied Mr. Wollard’s request for clemency and release after serving seven years in
prison. Even in cases without mandatory sentences, it is common for sentences handed down
after trial to be far more severe than those offered to induce guilty pleas. This “trial penalty” is
weighed by thousands of defendants each day when considering whether to accept a plea
offer.

Champion Briefs 389


Politics DA Links Jan/Feb 2018

AFF/NEG: Politics DA Links


It is hard to say what the politics DA will entail on this topic given the fast evolving
political and criminal justice situations. Plea bargaining has traditionally not been a politically
divisive issue and there is not much topic literature that frames it in that context. Thus, this
brief has focused on the use of plea bargaining and their potential political implications. The
first use we have highlighted is the Trump-Russia investigation. Michael Flynn recently accepted
a plea bargain opening the flood gates for future arrests and possibly even more plea bargains.
This could spell bad news for the Trump administration; there are a variety of reasons why this
could be highly beneficial or catastrophic for the stability of the political system that could be
indicated in the DA.
The second focus on this DA is immigration. Immigration courts have recently been
using plea bargaining to expedite deportation processes. Cards from this section could
potentially be used in an anti-deportation affirmative or a politics DA arguing that abolishing
plea bargaining will upset the GOP because plea bargaining is necessary for deportations.
Several cards in here indicate Jeff Session support of plea bargaining for this issue as well.
Answering the politics DA will be heavily dependent on how the political climate evolves
in the coming month and if anything, more comes out of the Mueller investigation. Additionally,
with talks of increasing tensions between Sessions and Trump the immigration politics DA may
or may not be relevant at the start of this topic. Either way the fast-evolving political climate
will provide new links as time goes on and provide for a fast evolving debates on this issue.

Champion Briefs 390


Politics DA Links Jan/Feb 2018

Plea bargains are tool to get corrupt politicians to resign.

, Office Of United States Attorneys. “624. Plea Negotiations With Public Officials—United States
V. Richmond.” US Department of Justice. Web. December 06, 2017.
<https://www.justice.gov/usam/criminal-resource-manual-624-plea-negotiations-
public-officials-us-v-richmond>.

In United States v. Richmond, 550 F. Supp. 144 (E.D.N.Y. 1982), the court questioned the
propriety of using the plea bargaining process to negotiate the resignation from office of a
Congressman. The Criminal Division believes that this decision is incorrect on the merits. United
States Attorney personnel are therefore encouraged to continue to consider voluntary offers of
resignation from office as a desirable feature in plea agreements with elected and appointed
public officials at all levels of government. The Richmond case involved a former Congressman
from New York who, during 1982, became the subject of a federal criminal investigation. In an
effort to dispose of his criminal liability, Congressman Richmond voluntarily agreed to resign his
seat in the Congress and to plead guilty to federal tax, narcotics, and conflict of interest
offenses. Thereafter, Richmond resigned his seat, took appropriate measures to withdraw his
candidacy in the 1982 Congressional election, and entered guilty pleas to the aforementioned
charges. At his sentencing a month later, the judge announced that, in his judgment, the
resignation and withdrawal conditions of the plea agreement violated the separation of powers
doctrine, and infringed upon the constitutional right of the public to select Congressmen of
their choosing as articulated in Powell v. McCormick, 395 U.S. 486 (1969). Although the Criminal
Division considers the Richmond decision to have been incorrectly decided on its merits, the
unusual procedural and factual setting of the case foreclosed judicial review in the Second
Circuit. In this regard, the district judge’s comments concerning the plea bargaining issue were
made after the plea agreement terms dealing with resignation and withdrawal from candidacy
had been fully performed by Congressman Richmond, and without the issue having been
otherwise raised by the defendant. Since the plea agreement was in all other respects
enforced, and since the Court’s refusal to “accept” the resignation and non-candidacy terms did

Champion Briefs 391


Politics DA Links Jan/Feb 2018

not demonstrably impact on the sentence imposed, the issue was moot and not easily
amenable to appellate review. The Richmond case is particularly troublesome from the
standpoint of the orderly and efficient discharge of the Justice Department’s responsibilities to
protect the public from criminal abuse of the public trust by high federal officials. It purports to
limit, without adequate legal justification, the latitude of federal prosecutors to reach voluntary
settlements with defendants in significant corruption cases which equitably address and
protect the important public interests that such prosecutions normally entail.

Champion Briefs 392


Politics DA Links Jan/Feb 2018

Plea bargaining is being used as a political tool to depart


undocumented peoples.

Williams, Brooke. “FEDERAL PROSECUTORS ARE USING PLEA BARGAINS AS A SECRET WEAPON
FOR DEPORTATIONS.” The Intercept. November 15, 2017. Web. December 06, 2017.
<https://theintercept.com/2017/11/15/deportations-plea-bargains-immigration/>.

Devin O’Malley, a spokesperson for the Justice Department, said these types of plea
agreements can “increase the efficiency of the immigration court system, save Americans’ tax
dollars, and promote good government.” “This common-sense commitment to the rule of law
will help reduce pressure on the immigration court pending caseload that has more than
doubled since 2011,” O’Malley said in an email. While district offices declined to discuss plea
waiver language, materials from a Senate Judiciary Committee hearing in 2008 pointed to how
some prosecutors might be “hesitant to use it as a general practice.” The same report noted the
rarity with which plea agreements had been used to order the deportation of immigrant
defendants: 160 times between fiscal year 2002 and fiscal year 2008. In the same time period,
ICE removed more than 1 million people, according to data analyzed by the Transactional
Records Access Clearinghouse, run by Syracuse University. Donna Lee Elm, who is in charge of
federal public defenders in the Middle District of Florida and an expert on plea bargain waivers,
said the Justice Department’s new tactics are affecting many people who “actually should be
entitled to be heard in immigration court.” “They’re using the hammer of threat of prosecution
and a long prison sentence to give up the rights in an immigration case,” she said. Waiving a
hearing in immigration court is not trivial. In the past five years, about 30 percent of noncitizens
charged with crimes have succeeded in convincing an immigration judge to let them stay in the
country, according to TRAC data. Elm said some of the plea agreements likely are violating
decades-old international treaties, in which the federal government vowed to enable people to
seek asylum in this country. “You can’t waive that — it’s not like waiving the right to trial,” she
said. “They just didn’t think these through.” In the July 2017 bulletin, one federal prosecutor
from Louisiana, Dominic Rossetti, described how the immigration hearing process can be
ineffective and wondered “if there might be a better way to effect these removals.” In one
section of the memo — “The Elephant in the Room” — Rossetti shared his frustration trying to

Champion Briefs 393


Politics DA Links Jan/Feb 2018

prosecute a convicted criminal for “failure to depart.” He wrote that the defendant’s
experiences were “truly terrifying” to the point that a jury might sympathize with the horror
the defendant might face upon return. Rossetti described how he prosecuted Innocent Safari
Nzamubereka, a man who fled Rwanda as a teenager during the genocide in the mid-1990s
after witnessing the rape of his mother. Nzamubereka testified his father was decapitated, and
he saw “a lot of kids getting their head[s] chopped off.” He was granted asylum and had
children in the U.S. But in 2008, he was convicted of aggravated assault, for which he served
three years of a six-year prison sentence. According to testimony, Nzamubereka fired a gun at
the mother of two of his children and her sister. He maintained his innocence. Nzamubereka’s
felony conviction prompted immigration officials to serve him with a notice to “terminate his
asylum status” and “appear for removal proceedings.” When an immigration judge terminated
his asylum status in 2012, Nzamubereka refused to return to Rwanda. In the memo, Rossetti
explained how he was concerned that “if the jury heard about these emotional and prejudicial
facts” of what happened to him in Rwanda, “they would return a verdict inconsistent with the
law.” During the trial, over Rossetti’s objections, Nzamubereka briefly spoke about why he fled.
“The only thing that saved me is I covered myself up with a whole bunch of dead kids,” he told
the jury. “That’s why I’m alive today, and that’s why I’m not going back over there.” Rossetti
pointed to how Nzamubereka did not seek protection under the international torture treaty or
avail himself of the other avenues by which he might have challenged his deportation. The jury
found him guilty, and an appeals court affirmed his conviction for failure to depart last year.
“Nzamubereka is scheduled to be released in August of 2018, which begs the question —what
next?” Rossetti asked in the memo. There will be a “valid order of removal against him,” and he
will “be transferred into immigration custody,” Rossetti wrote, but then “it seems very likely
that the whole process will begin again.” “HSI [Homeland Security Investigations] will attempt
to remove him, and in all likelihood, he will hamper the process again,” he wrote. “This makes a
person wonder if there might be a better way to effect these removals, but that is another topic
for another day.” While Nzamubereka never signed away his rights to seek asylum in a plea
agreement, Rossetti’s advice provides another window into the discussions among federal
prosecutors about implementing deportations.

Champion Briefs 394


Politics DA Links Jan/Feb 2018

Plea bargaining is being used for force undocumented people to sign


away due process right.

Williams, Brooke. “FEDERAL PROSECUTORS ARE USING PLEA BARGAINS AS A SECRET WEAPON
FOR DEPORTATIONS.” The Intercept. November 15, 2017. Web. December 06, 2017.
<https://theintercept.com/2017/11/15/deportations-plea-bargains-immigration/>.

Susan Church, an attorney who was one of the first to sue the government over President
Donald Trump’s executive orders, said the leverage prosecutors hold at the plea-bargaining
table heightens the risk of abuse. “Obviously I have seriously grave concerns about eliminating
the small level of due process that’s afforded to immigrants in immigration court,” she said.
“They absolutely should not be proposed as part of a plea agreement.” An examination of court
records, memos from the Department of Justice, and other documents, as well as interviews
with lawyers, suggest federal prosecutors are increasingly likely to demand plea bargains in
which noncitizens sign away these due process rights. In one recent case in Massachusetts, the
prosecutor said the provisions were “non-negotiable,” according to the defendant’s attorney. In
a memo in April, Sessions directed all federal prosecutors to place higher priority on certain
immigration offenses, including improper entry, illegal re-entry, and unlawful transportation of
undocumented immigrants. He further instructed prosecutors, when possible, to seek “judicial
orders of removal” that enable federal judges to order deportation without any hearing in
immigration court. “I know many of you are already seeking these measures from District
Courts,” Sessions wrote. “I ask that you continue this effort to achieve the results consistent
with this guidance.” Three months later, in his regular bulletin to U.S. attorneys, Sessions
invited attorneys from Immigration and Customs Enforcement to share tips on what they called
a “game-changer”: Make deportation part of plea agreements offered to noncitizens charged
with crimes. This “seldom used” strategy would “offer a powerful and efficient tool for
prosecuting criminal aliens — one that provides enormous value to the Department of
Homeland Security (DHS) and furthers new Department of Justice policy,” the how-to memo
stated. It went on to list benefits, including using the waivers “as a bargaining chip to negotiate

Champion Briefs 395


Politics DA Links Jan/Feb 2018

a plea with a defendant who is less interested in fighting removal than in litigating the prison
sentence.” Michael Cohen, a former federal prosecutor who is now a criminal defense attorney
in Florida and New York, said he had heard about the Justice Department’s new strategy but
has yet to see it in action. He said he would be extremely hesitant to advise a client to sign such
a waiver. However, Cohen said, an individual prosecutor might not have the same discretion in
light of the administration’s directives. “You’re duty-bound to follow your office’s policies,” he
said. “I understand that.”

Champion Briefs 396


Politics DA Links Jan/Feb 2018

Jeff sessions is pushing courts to bypass trial via plea bargaining.

Williams, Brooke. “FEDERAL PROSECUTORS ARE USING PLEA BARGAINS AS A SECRET WEAPON
FOR DEPORTATIONS.” The Intercept. November 15, 2017. Web. December 06, 2017.
<https://theintercept.com/2017/11/15/deportations-plea-bargains-immigration/>.

ATTORNEY GENERAL JEFF Sessions is pushing federal prosecutors to bypass immigration courts
as part of the Trump administration’s hard-line strategy on deportation. Behind closed doors,
prosecutors are pressing noncitizens to sign away their rights to make a case for remaining in
the country. In the most dramatic cases, immigrants charged with crimes are signing plea
agreements in which they promise they have “no present fear of torture” on returning to their
home country. The pleas can block them from seeking asylum or protection from persecution.
While plea agreements such as these are not entirely new — and are difficult to track — some
defense attorneys who specialize in immigration fear they will become commonplace under
Sessions. They’re also concerned prosecutors will push them for minor crimes that previously
might not have led an immigration judge to order deportation. Immigration experts question
the fairness of such provisions in plea agreements and even their overall constitutionality.
Some say they might violate international treaties.

Champion Briefs 397


Politics DA Links Jan/Feb 2018

Plea bargaining allows White House defectors to help speak out


without more fear- Flynn shows.

Sabur, Rozina. “Michael Flynn ‘prepared To Testify Against Donald Trump’ Over Russia Links.”
The Telegraph. December 02, 2017. Web. December 06, 2017.
<http://www.telegraph.co.uk/news/2017/12/01/michael-flynn-shares-information-
senior-trump-official-fbi-pleading/>.

Michael Flynn, who on Friday admitted lying to the FBI, has agreed to work with investigators
looking into Russian election meddling as part of a plea bargain. He is prepared to say that
Donald Trump “directed him to make contact with the Russians”, according to a bombshell
report by ABC News. The claim sent the US stock market tumbling and brought the Russian
election scandal a step closer to the Oval Office in a dramatic day in Washington. Jared
Kushner, Mr Trump’s son-in-law, was also named in US media reports as another figure who
asked Flynn to reach out to officials from Russia, among other countries. The White House
fought back on Friday night, labelling Mr Flynn a “former Obama administration official” who
spent just 25 days in the Trump administration. The row overshadowed news that Mr Trump
has enough Senate votes to pass major tax cuts in what would be his biggest legislative victory.
Allegations that Mr Trump’s campaign colluded with the Russian government - blamed for
hacking Democratic Party emails during the campaign - to win the election have dogged his first
year in office. Flynn is the first White House official to be charged as part of an investigation
into Russian election meddling led by special counsel Robert Mueller. Three other Trump
campaign figures – Paul Manafort, Richard Gates and George Papadopoulos – were charged in
October. Flynn, a former general and senior intelligence official, played a prominent role in Mr
Trump’s campaign and became US national security adviser after the election victory, before
resigning a month later over his conversations with the Russian ambassador to the US. On
Friday he pleaded guilty to lying to the FBI on January 24 – just four days after Mr Trump’s
inauguration – about conversations he had with the Russian ambassador Sergey Kislyak. Flynn
admitted to urging Mr Kislyak not to hit back at new American sanctions on Russia during a
meeting in December 2016, after Mr Trump won the election.

Champion Briefs 398


Politics DA Links Jan/Feb 2018

Supreme court decides and continues to decide plea bargaining on


party lines- Gorsuch will tip the court.

Saltzman, Veronica. “Plea Bargaining And The Supreme Court.” Harvard Civil Rights Civil Law
Review. 2017. Web. December 06, 2017. <http://harvardcrcl.org/plea-bargaining-and-
the-supreme-court/>.

The prevalence of plea-bargaining,[7] as well as Lee and Class on the docket, bring up questions
about reforming rights in the criminal justice system to fit the practical needs of most modern
defendants. In 2012, the Supreme Court expanded the rights of the accused in plea-bargaining
in Lafler v. Cooper. In Lafler, Justice Kennedy wrote the majority opinion, holding that the two-
prong standard of ineffective assistance of counsel applied to defendants during the plea
bargaining process.[8] One year later, however, the Court in Burt v. Titlow upheld the doubly
deferential standard, which requires that in cases involving a claim of ineffective assistance of
counsel during plea-bargaining, the appeals court must give both the state court and the
defense attorney the benefit of the doubt.[9] With two new plea bargaining cases on their way
to the Supreme Court, I wondered how the new Court would react. Neil Gorsuch may not be on
the Court in time to review Lee and Class. However, continued challenges to the plea-
bargaining regime will likely make their may up to the Court in the future. When I read the
rumors that Neil Gorsuch was involved in the Harvard Prison Legal Assistance Project and
Harvard Defenders Program,[10] I wondered how he might treat defendants’ rights in the
context of plea-bargaining, if and when he is confirmed. Neil Gorsuch is an originalist.[11] As
such, he is likely persuaded by arguments that, (1) the Constitution does not bar a defendant
from making the decision to plead guilty rather than risk a far higher sentence at trial[12] and
(2) since the Constitution does not include a right to a plea bargain, the usual constitutional
rights do not automatically attach.[13] In fact, in his dissenting opinion in Williams v. Jones, a
case involving a defendant whose lawyer threatened to leave if he took a plea deal, Gorsuch
stated: No principle of justice rooted in our constitutional order entitles a defendant to receive,
accept, or enforce a plea offer. Very much to the contrary, the Supreme Court has explained

Champion Briefs 399


Politics DA Links Jan/Feb 2018

(repeatedly) that a plea offer is a matter of executive grace—not constitutional right or even
contract—and so affords the defendant no enforceable rights unless and until the plea is
embodied in the judgment of a court. Absent a new and more originalist characterization of
defendants’ rights during and after the plea-bargaining stage, Gorsuch seems unlikely to part
from Scalia’s staunch views.[15] After Lafler, advocates of defendants’ rights can hopefully rely
on Kennedy to join the four liberal justices in expanding rights of the accused. Yet like many
other progressive causes, the immediate future for plea-bargaining reform is uncertain. Reform
may occur via a more general effort to cabin prosecutorial discretion. Measures such as
lowering sentences overall or setting caps on plea to trial sentencing differentials could help
advance the rights of the accused during the plea-bargaining process. The current political
climate likely makes this a project for state governments. Then again, mass incarceration is an
enormous problem on the state level anyway.[16] In the absence of support on the federal
level, states should take steps to reform the plea-bargaining process with the knowledge that
they will most likely be the key innovators in the criminal justice system over the foreseeable
future.

Champion Briefs 400


Politics DA Links Jan/Feb 2018

Flynn sets a trend for more arrests on Russia scandal- plea bargains
are going to be key to new information.

Budowsky, Brent. “Trump’s Russian Winter Grows Colder With Flynn Plea Deal.” The Hill.
December 01, 2017. Web. December 06, 2017. <http://thehill.com/opinion/white-
house/362759-trumps-russian-winter-grows-colder-with-flynn-plea-deal>.

As former national security adviser Michael Flynn takes center stage in the Russia investigation
with his plea bargain agreement with Robert Mueller and his special counsel team, the plot
thickens and the noose tightens. With Flynn pleading guilty to lying to FBI investigators, a
relatively modest offense, the odds are high that he has provided, or will soon provide,
powerful evidence against others. President Trump is facing a cold Russian winter with more
revelations, more indictments and more plea bargains involving additional suspects,
perpetrators and witnesses in the Russia investigations. With the plea deal reached with Flynn,
Trump’s cold Russian winter will now grow colder. Attention will now turn to other suspects
and alleged crimes, especially obstruction of justice. Now we learn that President Trump, who
once told the Russian foreign minister that he lowered the pressure he was facing in the Russia
investigation by firing former FBI Director James Comey, had conducted a high-pressure
campaign with key Senate Republicans to end the Russia investigations being conducted by
several committees. The most striking fact in The New York Times story about presidential
pressure to derail Senate investigations of Russia was that Sen. Richard Burr (R-N.C.), an
honorable man and chairman of the Senate Intelligence Committee, was so troubled by
Trump’s pressure that he decided to speak publicly about it. While Trump’s pressure on Senate
Republicans probably does not itself constitute an obstruction of justice, it will constitute
additional powerful evidence if special counsel Robert Mueller ultimately persuades a grand
jury to indict Trump or any of his associates on wider counts of obstruction of justice. There are
multiple publicly known facts that could support an obstruction of justice charge. These facts
have strong evidentiary value that would be presented in court, with a galaxy of prominent
witnesses to these facts who would be called to testify at trial if and when obstruction charges

Champion Briefs 401


Politics DA Links Jan/Feb 2018

are brought. The chairman of the Senate Intelligence Committee, and other Senate Republicans
Trump contacted in his pressure campaign to derail the congressional investigation, could well
be called as witnesses for the prosecution at any potential obstruction of justice trial. If this
occurs, the prosecution could cite this pressure on Senate Republicans as evidence of intent,
motive and action to obstruct justice by seeking to derailing multiple investigations of the
Russian attack against America that continues today. Many nationally respected legal analysts
believe that Mueller and his special counsel team are actively investigating whether or not the
president or his associates engaged in obstruction of justice. Mueller’s final judgment on this
matter, and whether he will ultimately decide to press charges for this, remains unknown at
this time. The president has a major obstruction of justice problem that will not be solved by
attacks against his political opponents or any of the daily diversions the president provides on
his Twitter account, some of which may make his legal situation even more precarious. The
potential culpability of the president and others involving obstruction of justice will be decided
by evidence, facts and law as viewed by the special counsel and the grand jury considering the
matter. It was wrong, and has evidentiary value, for the president to fire former New York U.S.
Attorney Preet Bharara while he was investigating the Russia scandal. It was wrong, and has
evidentiary value, for the president to fire former acting Attorney General Sally Yates when she
warned the White House that Russians could have material to blackmail former national
security adviser, Michael Flynn. It was wrong, and has evidentiary value, for the president to
fire former FBI Director James Comey while he was investigating the Russia scandal after asking
Comey to drop the investigation of Flynn. It was a terrible mistake by Trump, and has
evidentiary value, for Trump to admit the reason he fired Comey was to lower pressure on
himself brought by the investigation that Comey was then leading. It was wrong, and has
evidentiary value, for the president to humiliate and threaten Attorney General Jeff Sessions
through intense public criticism and letting it be known he might fire Sessions. It was wrong,
and has evidentiary value, for Sessions to refuse to tell the House Intelligence Committee
whether Trump has pressured him to end or limit the Russia investigation, which he will be
asked about by the special counsel and may have to testify about in court. It was wrong, and
has evidentiary value, for Sessions to recuse himself from the Russia investigation and then take

Champion Briefs 402


Politics DA Links Jan/Feb 2018

actions that impeded the Russia investigation he had recused himself from, such as supporting
the firing of Comey. In this context it was wrong, and has evidentiary value, for Trump to
pressure Senate Republicans to cut short their investigations of the Russia scandal. It is wrong,
and has evidentiary value, that Trump stands virtually alone among high-level officials in
refusing to unequivocally state that the Russians have attacked our country and continue to
attack our country, which intelligence and law enforcement agencies warn about today. Stay
tuned for the next blockbuster event in the Russian scandal, which is probably imminent after
the Flynn plea bargain. Sealed indictments or other plea bargains may have already been
reached but not yet disclosed. If not, they will probably happen soon. There are multiple issues
involving multiple Trump associates now under investigation, including failure to disclose
foreign contacts as required by law. The potential for an obstruction of justice charge is real and
growing. The Flynn plea will set off a chain reaction with more evidence, revelations,
indictments and plea bargains that will continue to make Trump’s cold Russian winter colder by
the day, until the investigation is concluded and the fate of the Trump presidency is decided
one way or the other, once and for all.

Champion Briefs 403


Politics DA Links Jan/Feb 2018

Congress is bipartisan on juvenile justice reform.

Coons, Chris. “America’s Criminal Justice System Is Broken.” CNN. January 09, 2017. Web.
December 06, 2017. <http://www.cnn.com/2017/01/09/opinions/america-needs-
criminal-justice-reform-coons-tillis/index.html>.

Despite political disagreements in Congress on a broader criminal justice reform package --


disagreements we hope to move past next year -- Democrats and Republicans surely can agree
that children shouldn’t be locked in a solitary confinement cell for 23 hours a day, or housed
with other prisoners twice their age and size, or unnecessarily restrained and shackled for
minor infractions, or harshly punished for low-level, nonviolent offenses. Surely we can agree
that juveniles’ interactions with the judicial system shouldn’t be just about punishment, but
instead must also focus on understanding the impacts of what they have done and why it was
wrong. A system that focuses on rehabilitation, not punishment, doesn’t excuse bad behavior.
Rather, it helps all parties heal and move forward, and it keeps all of us safer by breaking cycles
of recidivism. We both recognize that this system is in desperate need of reform. We share a
frustration that some politicians in both parties have been too willing to put politics before
policy. We also share a belief that our home states offer a road map forward.

Champion Briefs 404


Politics DA Links Jan/Feb 2018

Perceptions of the criminal justice system is divided on race lines.

Anderson, Monica. “Vast Majority Of Blacks View The Criminal Justice System As Unfair.” Pew
Research Center. August 12, 2014. Web. December 06, 2017.
<http://www.pewresearch.org/fact-tank/2014/08/12/vast-majority-of-blacks-view-the-
criminal-justice-system-as-unfair/>.

Blacks are much more likely than whites to say that blacks faced unfair treatment in dealing
with police or in the courts, according to a 2013 Pew Research Center survey. And blacks
perceived racial biases to be greater in the criminal justice system than in other institutions.
Seven-in-ten blacks said that blacks in their community were treated less fairly than whites in
dealings with the police. In comparison, 37% of whites and 51% of Hispanics held that view.
Also, 68% of blacks said that the court system was unfair to blacks, far more than whites (27%)
or Hispanics (40%). While half or more blacks said that blacks were treated less fairly than
whites at work (54%) or at school (51%), those are still smaller percentages when compared
with perceptions of unfair treatment by police or in the court system. Additionally, younger
black men are more likely to report unjust treatment by the police. Nearly one-quarter of black
males ages 18-34 said they had been treated unfairly by the police in the last 30 days, according
to a Gallup poll conducted June to July 2013. This represents a similar percentage with those
35-54 (22%), but double the rate cited for those 55 and older (11%).

Champion Briefs 405


Politics DA Links Jan/Feb 2018

Because prosecutors are tied to political affiliations plea bargaining


can be political..

, Anonymous. “Plea Bargaining - Plea Bargaining: A Shortcut To Justice, Further Readings Read
More: Plea Bargaini.” Law Library. Web. December 06, 2017.
<http://law.jrank.org/pages/9229/Plea-Bargaining.html>.

Prosecutors, likewise, are not obliged to plea bargain. When the alleged crime is particularly
heinous or the case is highly publicized or politically charged, a prosecutor may be reluctant to
offer any deals to the defendant in deference to victims or public sentiment. For example, a
prosecutor may not offer a bargain to a person accused of a brutal rape and murder because
such acts are widely considered to deserve the maximum allowable punishment. The political
influence on plea bargaining is more nebulous. Because prosecutors are hired by federal, state,
and local governments, they often have political ties. If a case involves a prominent member of
a political party, a prosecutor may refuse to offer a plea bargain to avoid the appearance of
favoritism. When a court accepts a plea agreement, the guilty plea operates as a conviction,
and the defendant cannot be retried on the same offense. However, if the defendant breaches
a plea agreement, the prosecution may reprose-cute the defendant. For example, assume that
Defendant A, as part of the plea agreement, must testify against Defendant B. If Defendant A
pleads guilty pursuant to this agreement but later refuses to testify against Defendant B, the
prosecutor may seek a revocation of the plea agreement and guilty plea. If the government
breaches a plea agreement, the defendant may seek to withdraw the guilty plea, ask the court
to enforce the agreement, or ask the court for a favorable modification in the sentence. The
government breaches a plea agreement when it fails to deliver its part of the plea agreement.
For example, if a prosecutor agrees to dismiss a certain charge but later reneges on this
promise, the defendant may withdraw her guilty plea. An unenthusiastic sentence
recommendation by a prosecutor is not a breach of a plea agreement (United States v.
Benchimol, 471 U.S. 453, 105 S. Ct. 2013, 85 L. Ed. 2d 462 [1985]).

Champion Briefs 406


Politics DA Links Jan/Feb 2018

Immigrations courts are backlogged now- over 1/2 million cases for 58
courts.

Becker, Andrew. “Nearly 600,000 Immigration Cases Clog Courts, Study Finds.” Center for
Investigative Reporting. June 04, 2017. Web. December 06, 2017.
<https://www.revealnews.org/blog/nearly-600000-immigration-cases-clog-courts-
study-finds/>.

Racked with a backlog approaching 600,000 cases, the nation’s 58 immigration courts over the
last decade have taken longer to rule on deportations, asylum claims and other matters despite
hiring more judges and more than doubling their annual budget, according to a new
Government Accountability Office report. Government auditors said that the Justice
Department’s Executive Office for Immigration Review, which oversees the immigration court
system, has been plagued by inefficiencies, its own foot-dragging in hiring new judges and an
increasingly complex and changing legal landscape spurred by recent U.S. Supreme Court
decisions and lawsuits brought by immigrants facing deportation. Between 2006 and 2015 the
court system’s caseload more than doubled, growing steadily each year under the Obama
administration, while judges completed nearly one-third fewer cases, the report states. The
study was conducted at the request of congressional Republicans and Democrats.

Champion Briefs 407


Politics DA Links Jan/Feb 2018

Deportation hearing waits are up 700%.

Becker, Andrew. “Nearly 600,000 Immigration Cases Clog Courts, Study Finds.” Center for
Investigative Reporting. June 04, 2017. Web. December 06, 2017.
<https://www.revealnews.org/blog/nearly-600000-immigration-cases-clog-courts-
study-finds/>.

“The effects of the case backlog are significant and wide-ranging, from some respondents
waiting years to have their cases heard to immigration judges being able to spend less time
considering cases,” the report concludes, adding that technology could help the court tackle the
backlog. A surge of unaccompanied children arriving at the border starting in 2014 has also
exacerbated the challenges faced by immigration judges. Those cases, which usually take longer
because of different legal options, are given priority over matters that may be resolved faster.
The median number of days to complete a deportation case, accounting for nearly all of the
court system’s caseload between 2006 and 2015, grew 700 percent from 42 days to 336 days.
Auditors concluded that those delays are also due to judges delaying decisions more by
continuing cases. Continuances are grouped into about 70 different categories, including more
time needed because of illness of an immigrant, their witness or attorney, delays in background
investigations or security checks, and insufficient time to complete a hearing.

Champion Briefs 408


Politics DA Links Jan/Feb 2018

Trump is hiring judges to speed up deportations.

Becker, Andrew. “Nearly 600,000 Immigration Cases Clog Courts, Study Finds.” Center for
Investigative Reporting. June 04, 2017. Web. December 06, 2017.
<https://www.revealnews.org/blog/nearly-600000-immigration-cases-clog-courts-
study-finds/>.

Although the Trump administration has called for hiring dozens of additional judges, the
mounting caseload could be further intensified by a wave of judges retiring. Almost 40 percent
of immigration judges are now eligible for retirement. The office’s budget is about $440 million
for the fiscal year ending Sept. 30, up from $199 million in 2005. The study also explored the
question of whether an independent immigration court could better handle deportation cases,
appeals, immigration-related discrimination complaints and other matters than the current
system run by the Justice Department. The association that represents immigration judges for
years has advocated for such independence, but has not persuaded a federal judicial panel to
make the change. Attorney General Jeff Sessions, who earlier this year directed prosecutors to
prioritize immigration offenses for prosecution, announced recently the appointment of an
acting director to take over the 1,000-person immigration office. James McHenry, who had
served as deputy associate attorney general with a focus on immigration litigation, replaces
Juan Osuna, who ran the office for much of the Obama administration.

Champion Briefs 409


Politics DA Links Jan/Feb 2018

Trumps actions on those found guility in the Russia scandal could spell
impeachment.

Budowsky, Brent. “Brent Budowsky: Mueller Could Indict Putin.” The Hill. November 08, 2017.
Web. December 06, 2017. <http://thehill.com/opinion/international/359502-brent-
budowsky-mueller-could-indict-putin>.

For these reasons Congress should make it clear that any effort by President Trump to fire
Mueller or grant pardons to those who are found guilty or suspected of crimes involving this
Russian attack against America would constitute an impeachable offense. The president’s
supporters in Congress state that this will not happen. Hopefully they are right, but the fact that
these actions would bring the most severe legal and constitutional consequences should be
made crystal clear to the president and his advisers today.

Champion Briefs 410


Politics DA Links Jan/Feb 2018

More pleas are coming in the Trump-Russia scandal, this could spell
trouble for US-Russia international relations.

Budowsky, Brent. “Brent Budowsky: Mueller Could Indict Putin.” The Hill. November 08, 2017.
Web. December 06, 2017. <http://thehill.com/opinion/international/359502-brent-
budowsky-mueller-could-indict-putin>.

Some who travel in Trump circles are facing a cold Russian winter in the American justice
system. There have already been two indictments and one major plea bargain. Almost certainly
there will be more of both in the coming weeks and months. There is no need to list the well-
known names who have been the subject of speculation, and there is a need to reiterate that
no guilt or innocence has yet been determined about anyone. However, it is self-destructive
and damaging to America for the president to constantly attack, criticize, berate or undermine
the work of legal or congressional authorities investigating the Russian crimes against
democracy. It would be an abuse of power for the president to pressure the Justice Department
or FBI to initiate a wrongful attack against a political opponent such as Hillary Clinton. Readers
should revisit the articles of impeachment against Richard Nixon, passed by the House Judiciary
Committee in 1974, to understand the grave implications of this presidential conduct. The fact
is: Putin hated Clinton. The truth is: Putin worked to elect Trump. Any lie to the contrary does
no service to the political or legal interests of the president. Nor do partisan Republican actions
in Congress that misuse taxpayer money to continue legislative vendettas against Clinton,
which will not succeed in diverting the crucial investigations of the Russian attacks against
America and do not provide any defense for those under suspicion in them. Robert Mueller and
his special counsel team are the vital bulwarks of American democracy under attack from
Russian aggression. The innocent should be cleared. The guilty should be convicted. The truth
should be revealed. The Russian attacks must end.

Champion Briefs 411


Politics DA Links Jan/Feb 2018

Flynn’s plea sets a precedent for testifying against other government


corruption and obstruction of justice.

Litman, Harry. “Michael Flynn’s Guilty Plea: 10 Key Takeaways.” The New York Times. December
01, 2017. Web. December 06, 2017.
<https://www.nytimes.com/2017/12/01/opinion/michael-flynn-guilty-plea-
takeaways.html>.

Mr. Flynn’s plea raises the likelihood that he will give testimony in support of a potential
obstruction of justice charge against Mr. Trump. The basis for the possible obstruction charge
against the president has been his efforts to get the F.B.I. director, James Comey, to shut down
the Flynn investigation during a Feb. 14 meeting in the Oval Office, coupled with his multiple
lies on the subject. Obstruction is plainly an impeachable offense: It’s the offense for which
Richard Nixon was threatened with impeachment. For months, it has seemed the possible
culminating charge of the Mueller investigation, a straightforward and readily understandable
high crime or misdemeanor. Such a charge, per Department of Justice policy, would not be
brought in the criminal courts but would rather form the basis of a report to Congress
potentially recommending impeachment. If Mr. Mueller brings that charge, it will be on the
strength of Mr. Flynn’s testimony.

Champion Briefs 412

You might also like