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

125 Pages·2017·0.64 MB·English

Resolved: Plea bargaining ought to be abolished in
the United States criminal justice system.
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January/February 2018 LD Brief
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Published by Victory Briefs, PO Box 803338 #40503, Chicago, IL 60680-3338. Edited by
Lawrence Zhou. Written by Oliver Sussman, Nina Potischman, Jack Wareham, and Sun-
Hee Simon. Evidence cut by Marshall Thompson. For customer support, please email
Contents
1 Topic Analysis by Oliver Sussman 5
1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Positions on the Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.3.1 Mass Incarceration Affirmative . . . . . . . . . . . . . . . . . . . . 8
1.3.2 Retributivism Affirmative . . . . . . . . . . . . . . . . . . . . . . . 10
1.3.3 Court Clog Disadvantage . . . . . . . . . . . . . . . . . . . . . . . 11
2 Topic Analysis by Jack Wareham 13
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Interpretational Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.3 Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3.1 Racism & Mass Incarceration . . . . . . . . . . . . . . . . . . . . . 15
2.3.2 Culpability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.3.3 Occupying the CJS . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3.4 Corruption & Coercion . . . . . . . . . . . . . . . . . . . . . . . . 17
2.4 Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.4.1 Court Clog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.4.2 Overcrowding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.4.3 Benefits to the Defendant . . . . . . . . . . . . . . . . . . . . . . . 19
2.4.4 Counterplans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3 Topic Analysis by Nina Potischman 22
3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.2 Aff Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2.1 Kant/Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2.2 Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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Contents
3.2.3 Virtue Aff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Neg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.3.1 Libertarianism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4 Topic Analysis by SunHee Simon 33
4.1 Aff Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.1.1 African Americans & Slavery . . . . . . . . . . . . . . . . . . . . . 33
4.1.2 Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.2 Neg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.2.1 Abolish US Criminal Justice System . . . . . . . . . . . . . . . . . 38
4.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5 Definitions 41
5.1 Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.2 Abolish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.3 Plans Good . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6 Aff 47
6.1 Adversarial Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.2 Burden Imposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.3 Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.4 Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.5 Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.6 Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.7 Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.8 Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.9 Elitism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.10 Fact Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.11 Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.12 Inconsistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.13 Innocence Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.14 Judicial Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.15 Objectionability of Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
6.16 Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
6.17 Racism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
6.18 Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.19 Underground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
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Contents
7 Aff Blocks 86
7.1 A2 Abolition Makes Things Worse . . . . . . . . . . . . . . . . . . . . . . 87
7.2 A2 Court Clog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
7.3 A2 Inevitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
7.4 A2 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
7.5 A2 Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
8 Neg 94
8.1 Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
8.2 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
8.3 Helps Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
8.4 Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
8.5 Opportunity Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8.6 Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
8.7 Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
8.8 Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
8.9 Rollback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
8.10 CPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
9 Neg Blocks 116
9.1 A2 Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
9.2 A2 Cognitive Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
9.3 A2 Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
9.4 A2 Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
9.5 A2 Ill-Informed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
9.6 A2 Inalienable Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
9.7 A2 Innocence Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
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1 Topic Analysis by Oliver Sussman
Oliver Sussman graduated from Cambridge Rindge and Latin School (MA)
in 2017, and worked at VBI this past summer. As a debater, he won Apple
Valley, the Apple Valley Round Robin, Lexington, and Yale tournaments.
He also reached finals of Harvard, the Harvard Round Robin, and the Glen-
brooks, and reached semifinals of the Tournament of Champions. He cur-
rently coaches the Harker School in San Jose, as well as his own high school.
Oliver is now a freshman at Harvard University.
1.1 Introduction
In this topic analysis, I will first discuss the definition and history of plea bargaining in
the United States. I will then discuss three positions in detail: the mass incarceration
affirmative, the retributivism affirmative, and the court clog disadvantage.
1.2 Background
Currently in the United States, over ninety percent of criminal cases are resolved
through plea bargain. It is extremely difficult to underestimate the extent to which this
resolution would alter the criminal justice system. Legal scholars are starkly divided
on this issue—on the one hand, plea bargaining no doubt helps many defendants dra-
matically shorten their sentences and prevents overburdened courts, but on the other,
it encourages millions of Americans to forgo their constitutional right to due process.
Consequently, this topic provides an opportunity for rich debates about criminal justice
from a variety of perspectives (there’s plenty of material for util debaters, philosophy
debaters, and critical debaters alike).
This topic is refreshingly unambiguous with regard to definitions. I don’t think there
will be many topicality debates compared to most topics, but let’s be clear about what
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1 Topic Analysis by Oliver Sussman
plea bargaining actually is. According to Albert Alschuler of University of Colorado
Law, plea bargaining is:
the exchange of official concessions for a defendant’s act of self-conviction.
These concessions may relate to the sentence imposed by the court or recom-
mended by the prosecutor, the offense charged, or a variety of other circum-
stances; they may be explicit or implicit; and they may proceed from any of
a number of officials… This definition excludes unilateral exercises of prose-
cutorial or judicial discretion, such as an unqualified dismissal or reduction
of charges. It also excludes the exchange of official concessions for actions
other than entry of a guilty plea, such as offering restitution to the victim of
a crime, giving information or testimony concerning other alleged offenders,
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or resigning from public office following allegations of misconduct.
There are a few important things to note here. First, recognize that plea bargaining
doesn’t just occur between a defendant and a judge. Often, defendants talk to prose-
cutors before trials and promise to plead guilty in exchange for a lower recommended
sentence or a different charged offense. This is still defined as plea bargaining; the affir-
mative gets rid of all of these sorts of practices. Second, plea bargaining can be “implicit”
in the sense that judges often treat defendants who plead guilty more leniently even if
there is no direct negotiation between the two parties. It is probably debatable whether
or not this really counts as plea bargaining, but if we accept Alschuler’s definition, the
world of the affirmative would have to somehow end this practice as well. That’s some-
what of an issue—it’s unclear how that could happen, given how hard it would be to
concretely prove that judges engaged in implicit bargaining. Whether or not this prac-
tice will continue with significant frequency in the affirmative world—thus mitigating
many of the aff’s advantages—is a debate that will likely be had.
But now that we know what plea bargaining is, how did we get here? Plea bargaining
is a fairly recent development in the grand scheme of Anglo-American legal tradition,
and yet its presence is now incredibly solidified. The first officially documented in-
stances of plea bargaining occurred following the Civil War, and were accompanied by
strong public disapproval. Many hoped the Supreme Court would abolish the practice.
Despite the outrage, courts continued to expand the use of plea bargaining in the late
19th century, and even more so in the early 20th century during Prohibition. Disap-
proval continued throughout the 20th century, but legal demand for the practice only
expanded as a result of Supreme Court decisions that increased the complexity and
1
AlbertAlschuler, “Plea Bargaining and itsHistory,” 1979, “http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2005&context=journal_articles.
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1 Topic Analysis by Oliver Sussman
length of criminal trials. Finally, any hope that the Supreme Court would abolish plea
bargainingwas eliminated in 1970when the Court declared in Brady v. United States that
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plea bargaining is “inherent in the criminal law and its administration.” (More gener-
ally, the court decided in Brady v. United States that threats of extremely long sentences
do not count as coercion, and in the process implied the legal permissibility of plea bar-
gaining.) Normal means for the aff’s abolition of plea bargaining would involve the
Supreme Court reversing its course and retracting its 1970 ruling. Finally, in the 1970s
and 1980s, plea bargaining became even more prominent following rising crime rates
and the beginning of the war on drugs, and approached the level of commonplace that
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it enjoys today.
There have been a few attempts to abolish plea bargaining on a regional/local level, but
they haven’t been super successful. The Economist explains:
And yet so entrenched are plea bargains in America that the occasional at-
tempts to do without them have failed. Between 1975 and 1990 they were
banned in Alaska. Even then, they happened informally. Judges made im-
plicit deals with defendants who pleaded guilty. One study found that sen-
tences after trials for violent crimeswere, on average, 445% longer than those
given after pleas. For fraud, they were 334% longer. The Texan city of El
Paso banned plea-bargaining in 1975. During the following two years the
trial rate doubled and the two judges assigned to criminal cases could not
cope. Ten more were assigned to help them, but even so prosecutors started
to strike secret bargains, with judges’ encouragement. The ban was eventu-
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ally rescinded.
Affirmatives will have to figure out how to cope with this rather unfortunate track
record. Hopefully, for example, a federal ban would include a stronger mechanism
for the prevention of implicit bargains.
2
Ibid.
3
Jed S. Rakoff, “Why Innocent People PleadGuilty,” 11/20/14, http://www.nybooks.com/articles/2014/11/20/why-
innocent-people-plead-guilty/.
4
The Economist, “The troubling spread of plea-bargaining from America to the world,” 11/9/17,
https://www.economist.com/news/international/21731159-tool-making-justice-swifter-too-often-
snares-innocent-troubling-spread.
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1.3 Positions on the Topic
1.3.1 Mass Incarceration Affirmative
The most common affirmative case on this topic will probably be about mass incarcer-
ation. This position would argue that the system of plea bargaining coerces innocent
defendants into accepting incarceration out of fear of a horrifically long sentence. Of
course, these defendants are often non-white and socioeconomically disadvantaged,
and their incarceration significantly contributes to racial and economic inequality.
There is clear evidence that innocent people often plead guilty. Data from the National
Registry of Exonerations indicates that approximately ten percent of exonerated individ-
uals (people who have been officially recognized as wrongfully convicted of a felony)
pleaded guilty. That may not seem like a large number, but it’s still hundreds of thou-
sands of people, and it also doesn’t include non-exonerated innocent convicts (whoprob-
ably account for the majority of false guilty pleas).
Often, the choice to falsely plead guilty is a totally rational one. Defendants frequently
have little access to effective defense counsel, and can only briefly meet with their attor-
neys while being detained in jail with high bail. As a result, prosecutors enjoy all the
power, and there is little chance defendants would receive positive results were they to
demand an actual trial. Jed Rakoff, Senior Judge of the Southern District of New York,
explains:
In this typical situation, the prosecutor has all the advantages. He knows
a lot about the case (and, as noted, probably feels more confident about it
than he should, since he has only heard from one side), whereas the defense
lawyer knows very little. Furthermore, the prosecutor controls the decision
to charge the defendant with a crime. Indeed, the law of every US jurisdic-
tion leaves this to the prosecutor’s unfettered discretion; and both the prose-
cutor and the defense lawyer know that the grand jury, which typically will
hear from one side only, is highly likely to approve any charge the prosecu-
tor recommends.
This is a bit of a problem for the affirmative, because it suggests that innocent defen-
dants would still be convicted—and sentenced significantly more harshly—absent plea
bargaining. But this is only one part of the story. Mounting evidence points to the
fact that false guilty pleas may often not be in a defendant’s best interest, and that plea
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1 Topic Analysis by Oliver Sussman
bargaining frequently only coerces individuals into accepting a suboptimal outcome.
Rakoff continues:
there is some evidence that the pressure of the situation may cause an in-
nocent defendant to make a less-than-rational appraisal of his chances for
acquittal and thus decide to plead guilty when he not only is actually in-
nocent but also could be proven so. Research indicates that young, unin-
telligent, or risk-averse defendants will often provide false confessions just
because they cannot “take the heat” of an interrogation. Although research
into false guilty pleas is far less developed, it may be hypothesized that sim-
ilar pressures, less immediate but more prolonged, may be in effect when a
defendant is told, often by his own lawyer, that there is a strong case against
him, that his likelihood of acquittal is low, and that he faces a mandatory
minimum of five or ten years in prison if convicted and a guidelines range
of considerably more—but that, if he acts swiftly, he can get a plea bargain
to a lesser offense that will reduce his prison time by many years.
In addition, some have hypothesized that while the existence of plea bargaining may
serve to shorten some individual sentences, it also provides an incentive for the criminal
justice system to maintain higher mandatory minimum sentences. Since legal officials
want plea bargains—it makes their job a lot easier—they have incentives to increase
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mandatoryminimum sentences so that defendants aremore likely to accept them. This
could be super important, since mandatory minimums are a huge reason why individ-
uals convicted of drug crimes often face appallingly brutal sentences.
This aff is strategic in that it is strongly rooted in the topic literature, and there is no
shortage of block material. The story of the affirmative is clear, and the impacts are
huge—mass incarceration is among the greatest injustices present in the United States.
However, I think this aff’s biggest strategic drawback is its susceptibility to negative
counterplans in more progressive circuits. There are lots of other ways we could com-
bat mass incarceration, many of which are realistically more effective than plea bargain
abolition. For example, we could decriminalize drugs, or eliminate mandatory mini-
mum sentences altogether. The aff needs a clear impact that these counterplans can’t
solve—for instance, non-drug related sentences in the case of the drug decriminaliza-
tion counterplan. They should also be prepared to provide proactive reasons why these
5
Richard A. Oppel Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” 9/25/11,
http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-
bargains.html.
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1 Topic Analysis by Oliver Sussman
counterplans are bad (i.e., read offense), given how likely it is that negatives will be able
to solve at least a large portion of the affirmative’s harms.
1.3.2 Retributivism Affirmative
There’s something about plea bargaining that feels incredibly arbitrary. Why should
something as morally trivial as forgoing a trial diminish one’s sentence so dramatically?
Consequently, plea bargaining provides an opportunity for deep philosophical debates
about the nature and purpose of punishment, criminal justice, and the legal system.
It seems likely that the existence of a guilty plea could only be a reason for a shorter
sentence if we care more about maximizing effective prosecution than proportionally
assigning punishments. The reason plea bargaining is so widespread is simply because
it helps ensure quick prosecution and therefore deterrence of crime. But does the crim-
inal justice system have its priorities in order in this regard?
Retributivists would say no. Punishment is acceptable not on the grounds of deterrence
but merely because it is the inherently proper response to violations of the law. Among
the retributivists of the world is who else but Immanuel Kant, who wrote that punish-
ment “must in all cases be imposed only because the individual on whom it is inflicted
has committed a Crime,” and that “justice would cease to be justice if it were bartered
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away for any consideration whatever.”
Kant thought that the principle of retribution was derivable from the categorical imper-
ative alone, and justified only because criminals simply deserve punishment reciprocal
to the advantage they have gained by breaking the law. Determining punishment by
looking to utilitarian considerations is morally wrong, because it treats individuals as
mere means—we restrict their freedom and inflict harm upon them only to achieve our
desired ends, like crime deterrence. To Kant, the only thing that can justifiably affect a
defendant’s assigned sentence is the crime itself.
One potential answer to this position is that plea bargaining is consistent with retribu-
tivism and can be justified without appealing to consequences. For example, negatives
could argue that someone who knows and publicly declares that they are guilty in fact
deserves less punishment than someone who denies their culpability, because they ex-
hibit better moral character. To Kant, though, it is criminal acts that render people deser-
vant of punishment, not criminal character. Criminals deserve disadvantages propor-
6
Mike C. Materni, “Criminal Punishment and the Pursuit of Justice,” 2013,
http://hls.harvard.edu/content/uploads/2011/09/michele-materni-criminal-punishment.pdf.
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