1 Dr. J’s LD Project
2018 January/February Topic
[Final Regular Season Topic for 2017-18]
plea bargaining ought 2b abolished
[updated 12/1, 12/2, 12/3, 12/5, 12/6, 12/15, 12/19]
12/19 Summary: This is probably a post-policy value proposition.
Resolved: Plea bargaining ought to be abolished in the United States criminal justice
system.
Expect to be engaged in debates about (1) prosecutor options / coercion, (2) defendant choice
(libertarianism) / constitutional safeguards, (3) “occupy the CJS” and (4) deterrence (certainty vs
severity vs. maximized punishment).
Having read the topic analyses in Victory Briefs, I can say that the handbook provides a
reasonable intuitive, yet progressive argument that might nest be organized around what
Pottischman’s “Rawls” affirmative (26). It can be easily supplemented with the “Mass
Incarceration” affirmatives described by Sussman (8), Wareham (15) and “prison industrial
complex” arguments.
Unfortunately, the ideas were much stronger than the evidence. Still, by re-cutting Victory Brief
evidence, a very serviceable affirmative can be constructed around the following ideas (page
numbers in Victory Briefs).
2 Dr. J’s LD Project
Justice V-C
Plea Bargaining is unjust on face (65)
Nullifies presumption of innocence (87)
Encourages Defense Counsel unaccountability (49-50)
Encourages Coercive Prosecution
(53)
Walsh 2017
Shondel Church was arrested in Kansas City, Missouri, last July, accused
of stealing a generator and a tool box from his stepmother. He sat in
Lafayette County Jail for six weeks before his first conversation with a
public defender, Matthew Gass. Gass was reportedly hopeful that he could
win the case at trial, but explained that the intensity of his workload meant
he would need six months to prepare—six months during which Church
would remain jailed. As a father of four and his family’s primary
breadwinner, Church felt he couldn’t wait that long and instead pled guilty
to a misdemeanor. He received two years of probation and a $2,600 bill
for his stay in pretrial detention [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan Walsh, May 2,
2017. This article is part of our project “The Presence of Justice,” which is supported by
a grant from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice
Challenge. Retrieved December 19, 2017 from
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/]
Race exacerbates (79)
False Guilty Pleas (71-72)
Youth exacerbates
Retaliatory Sentencing (51)
Violates Constitution
Self-incrimination (54)
Due Process (61)
Trial Walsh 2017
Though access to a public trial is enshrined in the Sixth Amendment,
taking a plea forecloses that possibility. “This constitutional right, for
most, is a myth,” U.S. District Judge John Kane wrote in 2014—one
voice among a chorus of jurists, advocates, and academics all calling for
reform. [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan
Walsh, May 2, 2017. This article is part of our project “The Presence of
Justice,” which is supported by a grant from the John D. and Catherine T.
MacArthur Foundation’s Safety and Justice Challenge. Retrieved December 19,
2017 from https://www.theatlantic.com/politics/archive/2017/05/plea-
bargaining-courts-prosecutors/524112/]
Undermines respect for the rule of law (73)
Mystifies the CJS / Occupies the CJS [crisis good]
3 Dr. J’s LD Project
[A quick note here. As “justice” is probably implicated on many topics, time invested in
researching ethic of justice (Hohlberg) vs ethic of care (Gilligan) may prove valuable. And
restorative justice.]
These may ultimately prove to be the most sustainable genres of affirmative argument on this
topic. Longer shot affirmatives are parametrics like “age based abolition” or systemics like
“defacto decriminalization” or “occupy the CJS” and some version of “Mueller” (though these
last two likely have more value as net benefits).
It looks like there are a lot of ways to win on the negative—including some sweeping abolition-
alternative strategies and supporting net benefits. Court Clog looks like the best generic value
objection. Read Sussman (11), Wareham (38). Unfortunately, there is no real evidence for it in
VB. Something better, perhaps. Unlike before, tte evidence here is way better than the analysis.
Plea bargaining ought NOT be abolished (Value Objections - offense)
Pleas produce a variety of social benefits (104-5)
Produce numerous efficiencies (96)
Maximize justice [probable case turns]
Procedural justice
Prevents false convictions (101)
Distributional justice (99)
Justice for the poor (97, 99)
Optimizes crime prevention [negative value]
Deterrence (103-4)
Rehabilitation (106)
Resource Tradeoff (102)
Crime investigation: turning witnesses
Case study: Mueller
Prevents collapse of the CJS [crisis bad]
Models systemic consent and collaboration [negative value] (100)
Models responsibility [negative value] (109)
Plea bargaining ought to be better regulated (Counter-Value - defense)
The nearest possible world to one in which pleas had been abolished, and the CJ which
ought to be, is one in which pleas survived but were
Diminished, e.g. through
) Expanded legal services
) Alternative dispute resolution
) Legalization of victimless crimes
Conditioned
) Tailored reforms (112)
) Specific proposals (113)
) Particular repairs
[Explain how changes in process could ameliorate the
specific causal linkages the affirmative gives]
) competency conditions
4 Dr. J’s LD Project
Resolved:
Plea bargaining
Standard arguments look like speedy trial, litigator resources, prison crowding. Please ask you
older teammates and coaches if plea bargaining has been debates lately (in LD or PF). If so, we
can get started harvesting the “backfiles” already prepared. Generally, there appears to be a lot
of accessible evidence. My quick search found:
http://criminal.findlaw.com/criminal-procedure/plea-bargain-pros-and-cons.html
https://www.criminaldefenselawyer.com/resources/criminal-defense/criminal-defense-case/plea-
bargaining-pros-cons.htm
https://thenextgalaxy.com/15-advantages-and-disadvantages-of-plea-bargaining/
Affirmative
https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=110931
https://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2559&context=facpubs
Negative
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/
http://adams.law.ou.edu/olr/articles/vol58/howe584.pdf
Plea bargaining, generally speaking, IS the criminal justice system in the United States.
Rebecca K. Helm and Valerie F. Reyna, Cornell University, 2017
“Plea bargaining—a process in which a person accused of a crime pleads guilty to a
lesser crime in order to receive a lesser punishment—is a widespread practice in the
American criminal justice system. In 2014, 97.1% of federal criminal cases that were
resolved were settled through pleas, with only 2.9% being adjudicated in bench or jury
trials (United States Sentencing Commission, 2014 Sourcebook of Federal Sentencing
Statistics, 2014).
[p. 367, Logical but Incompetent Plea Decisions: A New Approach to Plea Bargaining
Grounded in Cognitive Theory. Rebecca K. Helm and Valerie F. Reyna Cornell
University. Psychology, Public Policy, and Law © 2017 American Psychological
Association 2017, Vol. 23, No. 3, 367. December 2, 2017]
5 Dr. J’s LD Project
Walsh 2017
Ninety-seven percent of federal cases are settled the way Church’s was, by plea
bargain. State-level data suggest similar numbers nationwide. [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan Walsh, May 2, 2017. This article
is part of our project “The Presence of Justice,” which is supported by a grant from the John D. and
Catherine T. MacArthur Foundation’s Safety and Justice Challenge. Retrieved December 19, 2017 from
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/]
In her topic analysis, Plottischman confirmed that ” Plea bargaining is a huge part of the way that
the criminal justice system currently functions, as “90% of convictions come from negotiated
pleas, which means less than 10% of criminal cases end up in trials.” Little wonder Sussman
maintains that “it is extremely difficult to underestimate the extent to which this resolution would
alter the criminal justice system” -- I think he means that it is difficult to overestimate, too easy
to underestimate, but we take his point.
It must be noted, as Sussman does, that “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 attempts to do
without them have failed. Between 1975 and 1990 they were banned in Alaska. Even
then, they happened informally. Judges made implicit deals with defendants who pleaded
guilty. One study found that sentences after trials for violent crimes were, 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 eventually rescinded.
This might seem like a potent reality and it does seem to psychologically create a burden on the
affirmative. In implementation-focused debates (like those envisioned by the “policy making
paragdigm” the circumvention arguments might seem decisive. To another school of policy
debate, though, some of this would seem should/would. In true value debate, the difficulty of
abolition does not seem to negate the value (ought) of abolition.
It is not generally like me to go right for a specific example (I’m usually forest not trees, top
down, in my approach) but sometime a specific example is so compelling, or easy to research, or
valuable as a brink on a policy dis/advantage that I am, and advocate, researching this example
before the opportunity slips away. Mueller pleas: If you start researching them today, you might
be able to be the most prepared debater in the country on one of the best value/objections (based
on a pivotal example) in the country on this topic. If it is a policy-fiat-linked topic (see below),
then the brink evidence will be vital to what would then, more traditionally (policy) be termed a
"disadvantage" (“disad” or “DA”). Run, don't walk, to gather up the easy evidence as it is spilled
out in the next several days. Gather the low-hanging evidence available today, in the news
TODAY, December 1. I’ve added a skeleton example of what such an argument might look lie,
in the notes below.
6 Dr. J’s LD Project
The negative ought to be able to defend reciprocal policy alternatives like counter-planning out
(defending the counter-value of) repairs to the CJS which otherwise lead to pressures for too
many bad plea bargains (e.g., negative advocates more defense attorneys, prosecutors, courts,
jails).
ought to be abolished
While alternative definitions are always possible, I think it would be hard to avoid the conclusion
that this placement of “ought” means that we are debating more than fact.
However, I want to apologize for my earlier sloppy thinking in jumping to a policy proposition
conclusion. My apologies to the framers—this time. Rule One of NSDA Lincoln-Douglas is
that LD is value debate. I now think that nothing about this proposition need compete with that.
My mistake was in not highlighting the significance of the “be abolished” in interpreting
propositional type. Seen in that light, my liner analysis, privileging a present-ism of thought that
superimposed a transition from plea bargains - ought abolish - are abolishing - have abolished.
No such transition is propositionally focal.
The phrase “be abolish-ed” is hard to escape. We are asked to assess plea bargaining from the
point of it being a thing of the past. This is a post-policy value proposition. Simply, policies to
abolish, abolishing, abolition, all come before a post-policy propositional focus in which plea
bargaining is abolished. This construction seems to invoke a post-abolition perspective—post
should, post-policy, post-implementation, post-transition, post-abolishing, perspective on a CJS
in which it is a done deal—plea bargaining is abolish-ed—a thing of the past. I now think the
topic is inviting us to imagine a post-abolition world and to assess its value. Ought we value that
“criminal justice system” in which plea bargaining was already abolished more than one in
which plea bargaining survived?
Simply, how we get to such a world is not at issue (necessarily: see counterfactuals). Perhaps
alien time lords from the fifth dimension go back to 1791 and fiat the following change in the 5th
Amendment of the Bill of Rights. In the section “nor shall any person . . . be compelled in any
criminal case to be a witness against himself” the time lords add some clarifications like
“therefore the state will never bargain away a person’s innocence. People always have a right to
challenge the state’s case without jeopardizing life, liberty, or property.” The time lords add the
parenthetic (“Hey, this means the Fifth Amendment is abolishing plea bargaining”). In 2018,
with 225 years of experience with this Fifth Amendment, without plea bargaining, what do we
think? Ought plea bargaining be abolished? Or someone in every debate has the magical
power to fiat the specifics of abolishing plea bargaining and then to transport us all into the
future so that we could then ask: Ought plea bargaining be abolished? [Here, it seems to me
that Wareham is completely wrong in his warrantless claim that lack of an agent means that the
affirmative may (or worse must) specify the agent and means of abolishing]. Or we could skip
the fantastical scenarios and ask a traditionally historical question: Has any criminal justice
jurisdiction/venue already eliminated plea bargaining? If so, what does the empirical evidence
indicate: Ought plea bargaining be abolished in that jurisdiction in the United States? We are
debating about value in a post abolishing, plea-bargain-abolished world.
7 Dr. J’s LD Project
We can imagine a lot of ways to figuring out competing visions of scenarios of abolish-ing Or
we can simply answer the post abolishing question posed by the proposition: Ought plea
bargaining be abolish-ed? Everything else—anything that links back to specific scenarios of
transitioning from a pre-abolition world—is probably extra-topical. We are debating about value
in a post abolishing, plea-bargain-abolished world.
Alternatively, one might argue that the nearest possible world for the US CJS is the one already
demonstrated in that system. As Wareham argues: The Alaska ban might “be viewed as setting a
precedent for how the resolution would be implemented. After all, the resolution contains no
agent that would enact the abolition; it’s up to debaters to decide how this ban would be
instituted and enforced.” Though the issue of how abolishing was implemented seems beyond
the scope of the proposition, he is otherwise right
Perhaps a third reason to prefer a reading of this as a proposition of value lies in its poor policy
proposition analytics. This is my own tool derived from Burke’s pentad, but you can also see the
standard journalist’s questions here. When I am dealing with a genuine policy proposition, I
usually find this matrix helpful. You see how poorly the proposition answers important policy
questions.
Agent (who) [no or non-focal agents]
Purpose (why) ought to
Act (what) none, post-action
Agency (how) [no or non-focal means, post-means]
Scene (where/when) in the United States Criminal Justice System
A fourth reason to prefer a post-policy perspective is that even if this were a future-evaluating
policy proposition, it would not follow that anyone needs to unilaterally stipulate legislative
details—especially those which produce net-benefits for that legislation which are beyond the
scope of the propositional question. Debaters should be able to argue about what policies should
be implemented without thinking that either (or even both) side(s) have a power to fiat which
agents must act, when, and how). I gather PF debaters are able to do this all the time. Please see
note about proposition types below (largely the same as it was on the last topic).]
In the debates I observe, students seem determined to superimpose "the policy making paradigm"
from policy debate on policy topics onto value debate on non-policy topics. I don’t know of any
compelling reasons for adding such an appendage. Therefore, even though there are a great
many other things about “policy debate” that I wish were more a thing in other forms of debate,
policy premised on the assumption that the affirmative must (or the negative may) “fiat”
something other than the end state (abolished) seems wholly indefensible if challenged.
Nevertheless, in order to evaluate the world(s) in which plea bargaining was a thing of the past,
abolished—we must be able to imagine that world. What does that world look like? Without
warrants, Sussman maintains that “the world of the affirmative would include ten times as many
criminal trials, at least.” Maybe, I mean he is assuming something there. Based purely on the
status quo, it could be ninety times as many trials. This does invite the question, what else would
likely be different in a world without plea bargaining?
Abolishing PleaB implicates systemic change
8 Dr. J’s LD Project
Alexander 2015
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.”
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.
[February 11, 2015. Go to Trial: Crash the Justice System by Michelle Alexander.
Michelle Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age
of Colorblindness.” Retrieved 12/19/17
http://www.handsupunited.org/blog/2015/2/11/go-to-trial-crash-the-justice-system-by-
michelle-alexander ]
A crisis, chaos, at triple trials? Does the proposition situate us in a world where trials increase 9
times? 90 times? If so, what are the implications (e.g., court backlog, 6th Amendment). OR,
would criminal processes be shrunk. OR would more courts-judges-prosecutors be employed.
Wareham notes that debaters “could argue that if the plea bargain was abolished, the justice
system could just increase in size in order to meet the increased number of trials.” What would
be the implications of this for (1) defense attorneys (6th Amendment) and prison crowding (8th
Amendment)?
Are we now imaging a world in which the courts have not yet struck down the abolition or a
world in which plea bargaining truly was a thing of the past and had either originally (or
eventually) been abolished in the context of other major changes in our criminal justice system.
Is the nearest possible US CJS in which pleas were abolished one which would have needed to
avoid 6th and 8th Amendment challenges?
Perhaps the nearest possible CJS in which bargaining is a thing if the past is one that has also
decriminalized 90% of what are crimes in our pre-abolished system. In that world, plea
bargaining may be most easily imagined as a thing of the past. Unfortunately for the affirmative
it is just as easy to imagine a CJS that had decriminalized 90% of what are now crimes but has
not abolished plea bargaining. On the other hand, some definitions of abolish may include
topicality by effect (see, for example, the Meriam Webster definition below).
The nearest possible world (NPW) in which plea bargaining had been substantially reformed
would prioritizes the value of pursuing justice
9 Dr. J’s LD Project
Walsh 2017
There is no obvious recipe for fomenting this kind of reform. The drivers vary “greatly
from one jurisdiction to the next,” Turner said. But she did concede one common thread
that unites jurisdictions invested in changing the plea process: They must be
motivated by some overarching values besides efficiency, “like seeking justice,” she
said, “however that’s defined.” [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan Walsh, May 2, 2017. This article
is part of our project “The Presence of Justice,” which is supported by a grant from the John D. and
Catherine T. MacArthur Foundation’s Safety and Justice Challenge. Retrieved December 19, 2017 from
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/]
NPW utilize more bench trials
Walsh 2017 The alternative to improved pleas is more trials. A half-step in this direction has long been
practiced in Philadelphia, where bench trials—before a judge but no jury—are common.
By avoiding the jury-selection process, known as voir dire, bench trials dramatically shorten
the length of the proceedings while a defendant’s guilt must still be proven beyond a
reasonable doubt. In 2015, excluding cases that were dismissed, only 72 percent of criminal
defendants in Philadelphia pled guilty, as opposed to 97 percent federally; 15 percent pursued a
bench trial. “The solution in Philadelphia is a very good one given the alternatives,” said
Keir Bradford-Grey, the chief public defender for the city. “We firmly believe in putting
evidence to the test and litigating cases. This program allows for far more trials than we see
in other jurisdictions.”
Extension of concept: More non-plea bargaining
Walsh 2017 John Rappaport, a law professor at the University of Chicago, proposes a more radical
idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace
more than the basic exchange of guilt for leniency. Defendants should be able to bargain
across the trial process itself, offering simplicity in exchange for a lesser charge. What if a
defendant agreed to a trial before six or three jurors, instead of 12? Or what if the
standards of evidence were downgraded, from beyond a reasonable doubt to a
preponderance of the evidence? “It’s all fairly straightforward, and wouldn’t require any real
administrative framework, but it’s foreign,” Rappaport said. “ Rappaport said. “If a defense
lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12
jurors who walk in the room,’ the prosecutor would be taken aback.”
10 Dr. J’s LD Project
Additive Advantage / Net Benefit: CJS Audit
Walsh 2017 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. [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan Walsh, May 2, 2017. This article
is part of our project “The Presence of Justice,” which is supported by a grant from the John D. and
Catherine T. MacArthur Foundation’s Safety and Justice Challenge. Retrieved December 19, 2017 from
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/]
The argument for answering these questions by fiat is week. Like any argument, the links should
be debated. Here, those who study counter-factual propositions offer assistance. “Everything
else being equal” may not be a critical response here but we can argue for the “nearest possible
world” in our interpretations and argue that, as a result, ours is the better interpretation.
What is the “nearest possible world” in which plea bargain would be a thing of the past, be
abolished? The possibilities for substantive link debate and arguments on the value of that
criminal justice system are robust.
How much must something be reduced to be considered abolished. Apparently, absolutely in
common usage and legal context
Meriam Webster Dictionary
Abolish “to end the observance or effect of (something, such as a law): to completely do
away with (something): annul”
“abolish a law”
“abolish slavery”
[https://www.merriam-webster.com/dictionary/abolished December 3, 2017]
According to Oxford English Living Dictionary, abolish means to
“Formally put an end to (a system, practice, or institution)
‘ the tax was abolished in 1977’”
[https://en.oxforddictionaries.com/definition/abolish December 3, 2017]
Collins Dictionary of Law, “abolish
“to terminate the legal effect of some provision or doctrine.”
[Collins Dictionary of Law © W.J. Stewart, 2006. https://legal-
dictionary.thefreedictionary.com/abolished on 12/3. “Abolish” (redirected from
abolished)]
11 Dr. J’s LD Project
If the other side hasn’t given up on this in rebuttals, consider . . .
Burton's Legal Thesaurus, 4E. 2007, verb
abate, abolere, abrogate, annihilate, annul, cancel, declare null and void, delere, delete,
deprive of force, destroy, disannul, discontinue, disestablish, dispense with, dispose,
dissolve, eliminate, eradicate, extinguish, extirpate, invalidate, negate, nullify, override,
overrule, overturn, prohibit, quash, raze, render null and void, repeal, repudiate, rescind,
retract, revoke, set aside, squelch, subvertere, supersede, supplant, suppress, terminate,
undo, vacate, vitiate, void, withdraw
See also: abandon, abate, abrogate, adeem, annul, cancel, defeat, destroy, disaffirm,
discharge, discontinue, eliminate, eradicate, extinguish, extirpate, invalidate, kill, negate,
nullify, obliterate, overthrow, overturn, quash, recall, remove, renege, repeal, repudiate,
rescind, revoke, stop, supersede, supplant, terminate, vacate, vitiate, void, withdraw
[Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill
Companies, Inc. https://legal-dictionary.thefreedictionary.com/abolished on 12/3.
“Abolish” (redirected from abolished)]
On this word then, the traditional (and IMHO theoretically unwarranted) advantage normally
enjoyed by the affirmative is not just propositionally nullified, it is reversed. Here, the negative
may seemingly cite ANY contrary case, to negate completely doing away with plea bargaining
and putting an end to it. We needn’t throw the baby out with the bathwater.
To isolate one of the dozens of negative tactical positions seemingly available on this premise,
the Mueller Russia probe plea bargains, strike me as compelling convenient examples of
something the negative might want to defend—the affirmative must find a way of dealing with
this strategy. For this one, I’d suggest the affirmative arguing that it is a hasty generalization
based on the assumption of abolish-ing in a specific time frame. I’d also look to turn the internal
link-impact—why ought that investigation unfold in a more measured way.
Given the totality of abolition, it seems entirely cogent for the negative to say: We believe that
plea bargaining should be conditioned. reduced, limited, perhaps substantially, and in the cases
the affirmative cites the status quo should be modified BUT plea bargains ought not be
abolished, formally ended and completely done away with. We will defend the value of
curtailing plea bargaining with the exemption of the following: ______[e.g., juevinile
defendants, Mueller investigation] _______.
While the idea of “counterplan” operationalized by Sussman seems NOT, not counter, not
competitive not negating, alternative worlds will be abundant.
Slicing a very fine distinction will be a variety of negative counter-value positions that advocate
sustainable conditioning of plea bargains. Why not try regulation prior to outright abolition?
12 Dr. J’s LD Project
Rebecca K. Helm and Valerie F. Reyna, Cornell University, 2017
Despite the prevalence of plea bargaining, it remains a largely “unregulated
industry” in the sense that prosecutors have a wide latitude in setting the terms of
pleas, with little judicial regulation (Bibas, 2012; Blume & Helm, 2014) [p. 367, Logical but Incompetent Plea Decisions: A New Approach to Plea Bargaining Grounded in
Cognitive Theory. Rebecca K. Helm and Valerie F. Reyna Cornell University. Psychology, Public Policy,
and Law © 2017 American Psychological Association 2017, Vol. 23, No. 3, 367. December 2, 2017]
Walsh 2017
Some want tweaks to the regulation and oversight of pleas; others urge more ambitious
overhaul of the way trials are conducted, streamlining the process to make it accessible to
greater numbers of people. [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan Walsh, May 2, 2017. This article
is part of our project “The Presence of Justice,” which is supported by a grant from the John D. and
Catherine T. MacArthur Foundation’s Safety and Justice Challenge. Retrieved December 19, 2017 from
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/]
Regulate it locally (not abolish) [labs]
Walsh 2017
“Plea bargaining in the United States is less regulated than it is in other countries,”
said Jenia Turner, a law professor at Southern Methodist University who has written a
book comparing plea processes in several U.S. and international jurisdictions. As a
result, states are independently adopting measures to inject the process with more
transparency here, more fairness there. In Connecticut, for example, judges often
actively mediate plea negotiations, sometimes leaning in with personal opinion on an
offer’s merit. In Texas and North Carolina, along with a few other states, both sides
share evidence prior to a plea.
Turner suggests that replicating some of these practices across state lines, or standardizing the
plea process nationally, could go a long way to equalizing the power between defendants and
prosecutors. She also argues that agreements should be recorded in writing, and that
sentencing discounts for pleading guilty should be nonnegotiable. In the United Kingdom,
for instance, sentence reductions in exchange for a guilty plea follow strict schedules based
on when the plea is entered [Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, Dylan Walsh, May 2, 2017. This article is part
of our project “The Presence of Justice,” which is supported by a grant from the John D. and Catherine T.
MacArthur Foundation’s Safety and Justice Challenge. Retrieved December 19, 2017 from
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/]
13 Dr. J’s LD Project
Pottischman:
For example, age conditions for plea bargains.
Rebecca K. Helm and Valerie F. Reyna, Cornell University, 2017
“These results reveal a new threat to competent plea decisions—a logical reasoning
process that is arguably not fully competent—which has implications for the current
plea bargaining system.”
[p. 367]
Rebecca K. Helm and Valerie F. Reyna, Cornell University, 2017
“Importance for the Criminal Justice System
If confirmed by future research, the findings of this study could have important
implications for the criminal justice system, particularly as a disproportionate
amount of crime is committed by young adults, who may still be transitioning from
verbatim processing to gist processing (Bureau of Justice Statistics, 2016). Results
suggest that plea decisions are influenced by cognitive processing style; in particular,
reliance on gist or verbatim mental representations. This is important for the criminal
justice system because it suggests that plea decisions in certain groups may be
driven by a predisposition to rely on fine-grained quantitative distinctions, rather
than qualitative, categorical distinctions, and bottom-line meaning. This means that
certain individuals—specifically those with a strong disposition toward verbatim
processing and especially those who are also sensitive to reward amounts—may not be
driven by their values when making plea decisions. For such individuals, incentives
could become coercive. This is problematic regardless of age but also due to
developmental trends in cognitive processing styles (see Defoe, Dubas, Figner, & van
Aken, 2015).
14 Dr. J’s LD Project
This lack of connection between values and plea choices is a particular threat for
adolescents and young adults who are known to rely less on gist processing than
older adults, indicated by less frequent standard framing, but who are sometimes
asked to make plea decisions that will affect them for the rest of their lives.
Adolescents and young adults are making decisions at a stage in their development
that predisposes them to rely on verbatim detail rather than meaning-based
processing that takes into account qualitative dimensions and values. Importantly,
our results suggest that those relying on verbatim processing take into account
whether they are guilty or innocent less often when making plea decisions, even
when they state that this is important to them.
If confirmed by future research with criminal defendants, these findings
should influence criminal justice policy in three primary ways. First, the criminal
justice system should recognize that groups relying on verbatim processing
(including adolescents and young adults and individuals with high levels of autistic
traits) are not necessarily influenced by whether they are guilty or innocent when
making plea decisions. This has probative value for further actions in which it is
relevant whether the person really committed a crime; for example, if the person raises a
habeas corpus petition to attempt to withdraw their plea. Second, where judges have the
power to decide whether to accept or reject a plea agreement (as they do in federal
cases, see Blume & Helm, 2014), they should consider the risk that groups reliant on
verbatim processing may not be influenced by guilt or innocence, may make
decisions that are not driven by their values, and could be tempted by plea bargains
that differ in a superficial quantitative sense (but not in a meaningful sense) from
outcomes at trial.
Finally, this research should inform the standard that is used to determine
whether an individual is competent to plea bargain. Current standards rely on
traditional ideas about cognitive competence, relying on understanding (a basic
comprehension of the purpose and nature of the trial process), reasoning (the capacity to
provide relevant information to counsel and to process information), and appreciation
(the ability to apply information to one’s own situation in a manner that is neither
distorted nor irrational; Grisso et al., 2003; Hoge et al., 1997; Otto et al., 1998). This
research suggests that a more expansive view of competence should be considered,
building on these constructs but going beyond them. People relying on verbatim
processing are likely to “understand” the legal process in the sense that they can parrot
back instructions, be able reason in a traditional sense (balancing risks against rewards),
and recognize the explicit risks and rewards that apply to their situation. However, they
may not deeply appreciate the noncompensatory impact of a felony conviction or the
death penalty. Moreover, due to their cognitive processing they may not cue
principles that are important to them when making the decision (e.g., a desire to not
plead guilty to a crime they did not commit or a desire to avoid risking a felony).
15 Dr. J’s LD Project
This means that people with a greater level of reliance on verbatim processing may
be able to apply legal information and knowledge of risks and rewards to their
decisions, but may be less able to apply relevant values. Such a cognitive disposition
is temporary in many cases because of developmental immaturity. In any case, such
reasoners could be argued to be “logical, but incompetent,” in the sense that they
make decisions that do not adequately reflect their values, violating a fundamental
precept of informed decision making (Reyna, Nelson et al., 2015).
[p.377-278, Logical but Incompetent Plea Decisions: A New Approach to Plea
Bargaining Grounded in Cognitive Theory. Rebecca K. Helm and Valerie F. Reyna
Cornell University. Psychology, Public Policy, and Law © 2017 American
Psychological Association 2017, Vol. 23, No. 3, 367–380. December 2, 2017]
A strong argument for non-absolutism is the one anticipated by Wareham in a definition blessed
by authority in field context:
That of course is different from saying that the affirmative gets to specify those exceptions a
power which may exclusively belong to the negative.
On the other hand, missing quantification always confuses things in ways that Affirmative’s
often exploit. For example, can the affirmative affirm by proving that plea bargaining ought to
be abolished—done away with—in Federal Court terrorism cases or for young adults—without
assuming liability for other courts or cases? That would probably require a hasty generalization.
Could the affirmative argue that they have affirmed if plea bargaining ought to be abolished in
state courts (90% of the CJS). Profitably, I think. Of course, we can probably expect
affirmatives to argue extra-propositionally, paradigmatically, that they have some right to specify
the transitional policy. I think arguments for reciprocity in the right to specify in any debate are
far stronger than those for the misplaced model of the “policy-making paradigm”
On the other, other hand, the sheer scope of social changes brought about by abolishing 97% of
the Criminal Justice System make it hard to deny the centrality of broad critical themes (e.g.,
Prison Industrial Complex, Libertarianism-Anarchy).
16 Dr. J’s LD Project
in the United States criminal justice system.
Says where, but does not specify who ought to have done the abolishing in the pre-abolished
world. Examining transitional effects in the abolishing period between plea bargaining existing
and abolished seems problematic.
Specifying that plea-bargaining ought to be abolished in the South Korean or Spanish criminal
justice system is very likely extra-topical.
Specifying that the USFG should abolish may be extra-topical. Agent-specification seems
extra-topical given the post-policy frame of this topic. If anything, the states are the more
propositionally focal agents.
In “The United States Criminal Justice System: A Brief Overview” (1996) Paul Marcus of
William & Mary Law School reports that
Perhaps the key area of jurisdiction retained by the states is criminal justice. Yet, as
with other areas such as health care, highways, and taxation, there is overlapping or
concurrent jurisdiction. Both the federal government in Washington and the
individual state governments can oversee various aspects of the criminal justice
issue. [p. 1]
Marcus 2016
The vast majority of crimes are committed within the state, not the federal,
jurisdictions. So in major states such as California, Florida, New York, Illinois, or
Texas well over 90 percent of the violent crimes prosecuted fall to the state
prosecutors and not to federal officials.
[p. 1-2. College of William & Mary Law School William & Mary Law School
Scholarship Repository Faculty Publications Faculty and Deans 1996 The United States
Criminal Justice System: A Brief Overview Paul Marcus William & Mary Law School.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2231&context=facpubs
December 6, 2017]
It does not follow that there are no international implications to this topic. For example, Flynn-
Trump clearly does (see collapse of NATO, wounded bear strikes out). Further there is evidence
of “modelling” suggesting that our criminal procedures are emulated elsewhere. Maybe it is bad
in the US to eliminate plea bargaining but such a good idea elsewhere (that models us) that we
ought to do it (think “development assistance” for justice). And vice versa (modelling is bad).
17 Dr. J’s LD Project
End Notes (this section added December 2)
Is the evidence in this Mueller position weak? Yes. It is just a sample of what kind of evidence
is available as low hanging fruit in early December 2017.
Mueller, Mueller, Mueller . . .
A Plea Bargaining is Essential in Efficient Construction of Political Corruption Cases
Consider the case against President Donald Trump in which plea bargaining assists
construction and timely culmination of the drama
Brent Budowki, December 2017
“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.”
Brent Budowki, December 2017
“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.”
Plea bargains set off chain reaction of plea bargains, evidence and revelations
Brent Budowki, December 2017
“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.”
[Trump’s Russian winter grows colder with Flynn plea deal. BY BY BRENT
BUDOWSKY, OPINION CONTRIBUTOR — 12/01/17 10:40 AM EST
Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill
Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of
Representatives. He holds an LLM in international financial law from the London School
of Economics. http://thehill.com/opinion/white-house/362759-trumps-russian-winter-
grows-colder-with-flynn-plea-deal 12/2/17]
18 Dr. J’s LD Project
Witts, December 2017
The admission of guilt by Donald Trump’s former national security adviser, Michael
Flynn, as part of the federal Russia probe “is a shattering moment for the Trump
presidency”, Democratic Senator Richard Blumenthal has said.
[Michael Flynn’s guilty plea is a shattering moment . . . Alexandra Wilts, Washington
DC Independent. December 1, 2017
http://www.independent.co.uk/news/world/americas/us-politics/trump-flynn-guilty-latest-
reaction-shattering-moment-richard-blumenthal-comments-a8087961.html 12/2/17]
B Speedy Construction of Political Corruption Cases Ought to be Highly Valued
[negative]
Whether we ought, or ought not, indict the President, surely, we can agree that having a
mechanism to get answers to these questions and get these civil wars behind us with all
due haste, is more urgent than the concerns that animate the arguments of the other team
Additionally,
[here, you can pick your own scenario, implications and criteria-linkage]
[e.g.; he is guilty; he is dangerous, nukes, environment, national fabric,
democracy; gender politics, etc.]
Plea bargaining ought not be abolished.
-or-
B Quick Construction of Political Corruption Cases Ought to be De-Valued
[affirmative]
[here, you can pick your own scenario, implications and criteria-linkage]
[e.g., he is innocent, leave him alone; he is keeping us safe; he is keeping the
world out of a recession, he is dangerous don’t push him / shattering moment /
wounded bear strikes out; etc.]
Plea bargaining ought to be abolished.
19 Dr. J’s LD Project
C) We Object to their Value Construction
-or-
C) Our Value Framework Ought to be preferred
[Many scenarios on both sides lead here, for example]
Littman, December 2017
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.
[Michael Flynn’s Guilty Plea: 10 Key Takeaways By HARRY LITMAN. DEC. 1, 2017]
https://www.nytimes.com/2017/12/01/opinion/michael-flynn-guilty-plea-takeaways.html
12/2/17]
Rubin, December 2017
Trump can claim all he wants that the Russia investigation is a hoax, but if Flynn
provides direct evidence implicating Trump, the president’s days in office are
numbered.
[Flynn could deliver a knockout blow to Trump. Jennifer Rubin writes the Right Turn
blog for The Post, offering reported opinion from a conservative perspective.
https://www.washingtonpost.com/blogs/right-turn/wp/2017/12/01/flynn-could-deliver-a-
knockout-blow-to-trump/?tid=pm_pop&utm_term=.70add640d50d 12/2/17.]
The Editorial Board of the New York Times October 2016
While the United States has reduced its nuclear stockpile from the peak of 31,255
warheads in 1967, there are still far too many. Even more troubling, Mr. Trump can
unilaterally order a nuclear strike at any time. Senator Bob Corker, a Republican,
has called the president’s threats toward other countries reckless, saying they could
set the nation “on the path to World War III.” Every effort must be made to avoid
the use of nuclear weapons. Reducing the nuclear stockpile is one important step. But
legislators can go even further by requiring the president to seek a declaration of war
from Congress before launching a first nuclear strike, as Senator Ed Markey of
Massachusetts and Representative Ted Lieu of California, both Democrats, have
proposed.
[Trump’s Nuclear Arsenal. By THE EDITORIAL BOARD OCT. 26, 2017
https://www.nytimes.com/interactive/2017/10/26/opinion/trump-nuclear-
arsenal.html?smid=fb-nytopinion&smtyp=cur 12/2/2017]
20 Dr. J’s LD Project
End Notes (this section added December 1)
P Since Aristotle, historians of argumentation theory have insisted that there are three kinds
claims: propositions of fact, value, and policy. Academic debaters long argued propositions of
policy but when diversity of proposition type emerged in academic debate in the last part of the
20th century, debate scholars re-embraced the three-fold fact/value/policy distinction. Challenges
to this categorical system have gained little traction and the trinity of types is repeated in nearly
every account of persuasion purposes appearing in communication studies textbooks.
A claim of fact asserts what is, was, or will be true. The actual (or even rhetorical) facticity of a
claim is not definitive. Both 2+2=4 and 2+2=5 are equally propositions of fact (though I know
which side I’d pick). But it is not always so easy—Humans did not eat meat until 7000 years
ago, There are substantially more Democrats than Republicans in the US, We will have a colony
on the Moon before the end of the 21st century—as these propositions of fact illustrate.
Obviously, in cases like these, criteria are crucial. Note too that affirming or negating such
claims is not achieved by claims of value or policy. Colonization of the moon would be immoral
(value negation) – could be, but will it happen in the 21st century? The USFG should skip the
moon and colonize Mars (policy affirmation) – probably, but will we colonize the moon by 2099
anyway? Notice that neither these value/policy claims, nor their opposites, have much to do
with affirming/negating the prediction of 21st century lunar colonization.
The test is this: you may be dealing with a proposition of fact if is it possible to take the claim
and turn it into compound bi-directional value statements without contradicting the first half.
(21st century moon colonization is inevitable and advantageous. 21st century moon colonization
is inevitable and disadvantageous.) For this reason, propositions of fact cannot be “impact-
turned” in the traditional sense.
A claim of value asserts what is good/bad, right/wrong. ethical/unethical. The actual (or even
rhetorical) value of a claim is not definitive. Both violence is morally justifiable and violence is
inherently unethical are equally propositions of value. Obviously, criteria are important. Note
too that affirming or negating such claims is not achieved by claims fact or policy. Violence is
not inevitable (fact negation) – ok but is it moral? The USFG should ban semi-automatic
weapons (policy affirmation) – could be, but is violence ethically excusable?
Notice that neither these value/policy claims, nor their opposites, have much to do with
affirming/negating the value assessment. For this reason, the way things are, were or will be is
not terribly relevant. The test is this: you may be dealing with a proposition of value if is it
possible to insert bi-directional factual assumptions without contradicting the other half of the
compound. (Violence is inevitable and morally justified. Violence is inevitable but never
justifiable.) For this reason, propositions of value cannot be affirmed/negated exclusively by
claims of fact—they require a normative premise.
21 Dr. J’s LD Project
The critical distinction between fact and value propositions (or claims), at least, is warranted in
both argumentation theory and logic (see, for example, the “is/ought fallacy”). But what
happens when the NSDA offers conflicting directives on what we are debating about?
Nevertheless, Rule #1 for “Lincoln Douglas Debate” specified in the NSDA High School Event
Rules Manual states: “The resolution will be one requiring a value judgment.” Obviously not.
No value judgment is required by the wording. So . . . what’s up?
A claim of policy asserts that an agent (actor) should take an action (e.g., enact legislation). The
USFG should increase development assistance. The USFG should abolish plea bargaining.
When I am dealing with a genuine policy proposition, I usually find this matrix helpful.
Agent (who)
Agency (how)
Purpose (why)
Scene (where)
Act (what)
Categories can be useful but they also enable lazy thinking. Established categories imply a rigor
which is often lacking in reality. In particular, three mental mistakes (3 Es) are often invited by
categorical rhetoric: equivalence, exclusiveness, exhaustiveness. Equivalence implies that
categories are equal. Exclusiveness implies that if something is included in one category that it is
excluded from being in another. Exhaustiveness implies that everything fits into one of the
existing categories.
Consider the trinity of types for propositions. Equivalence: Are fact/value/policy of equal
importance? I don’t think so. Exhaustiveness: Are there no other types of proposition? I’m not
sure. Quasi-policy? Exclusivity: Do claims never fall into more than one category? Well,
aren’t policy claims (claims about what actors should do) also always values claims? Isn’t a
policy proposition just a specific type of value claim?