I affirm that plea bargaining ought to be abolished in the U.S. criminal justice system. The aff will accept neg preferences on specificity and implementation in cross-x. This is theoretically legitimate because a. it doesn’t justify infinite abuse as it’s limited to the two areas where the neg and aff commonly disagree on interps, rather than abusive versions that allow the aff to kick skep triggers and b. the neg knows the aff will accept their interps in the AC, before they start prepping, so there’s no skew. The role of the ballot is to endorse opposition to oppressive systems. The aff burden is to show that the system of plea bargaining is oriented toward oppression. Warrants: 1) Oppression frustrates all ethics because it excludes its targets from ethical consideration. It
must be challenged through discourse. Winter and Leighton: “Finally, to recognize the operation of structural violence forces us to ask questions about how and why we tolerate it, questions which often have [can be] painful answers for the privileged elite who unconsciously support it. A final question of this section is how and why we allow ourselves to be so oblivious to structural violence. Susan Opotow offers an intriguing set of answers, in her article Social Injustice. She argues that our normal perceptual/cognitive processes divide people into in-groups and out-groups. Those outside our group [which] lie outside our scope of justice. Injustice that would be instantaneously confronted if it occurred to someone we love or know is barely noticed if it occurs to strangers or those who are invisible or irrelevant. We do not seem to be able to open our minds and our hearts to everyone, so we draw conceptual lines between those who are in and out of our moral circle. Those who fall outside are morally excluded, and become either invisible, or demeaned in some way so that we do not have to acknowledge the[ir] injustice they suffer. Moral exclusion is a human failing, but Opotow argues convincingly that it is an outcome of everyday social cognition. To reduce its nefarious effects, we must be vigilant in notic[e]ing and listening to [the] oppressed, invisible, outsiders. Inclusionary thinking can be fostered by relationships, communication, and appreciation of diversity.” Winter, Deborah, & Leighton, Dana. “Structural violence.” In D. J. Christie, R. V. Wagner, & D. D. Winter (Eds.), Peace, conflict, and violence: Peace psychology in the 21st century. New York: Prentice-Hall, 2001.
2) Moral systems require a conception of free agency. Wallace: “To hold someone morally responsible is to view the person as the potential target of a special kind of moral appraisal. People who are morally responsible are not seen merely as acting in ways that happen to be good or bad; they are not just causally responsible for certain welcome or unwelcome happenings, the way a clogged drain [is] might be said to be responsible for the unfortunate overflowing of a basin. Rather, the actions of morally responsible people are thought to reflect specially on them as agents, opening them to a kind of moral appraisal that does more than record a causal connection between them and the consequences of their actions. As Susan Wolf has suggested, assessing people as morally responsible [moral responsibility] has a quality of ‘depth,' going beyond mere description of the moral character of what they do, or of their causal role in bringing their actions about. An account of what it is to hold people responsible should start by characterizing this quality of depth, so as to locate more precisely the distinctive aspect of the phenomenon that is to be explained.” Wallace, Jay. [Prof of Phil, UC Berkeley] Responsibility and the Moral Sentiments, 1994, p. 52.
Oppression dominates the identities of those who suffer from it, excluding them from agency. Gonick 1: “According to our definition of psychological oppression, the main feature of this state is the internalization of negative conceptions of the self. The intrapersonal level refers to dynamics operating within the single individual. Beginning at this level, we identify a number
of psychological processes contributeing to this situation. Among them, learned helplessness, surplus powerlessness, obedience to authority, and internalization of images of inferiority. These are well-documented mechanisms that psychologically affect the individual experiencing domination. In effect, these are the product of the oppressing forces of other people, social groups, and state agencies. Following exposure to innumerable devaluing encounters, people internalize the negative images projected onto them by dominating forces. Members of discriminated groups testify to that effect (Adam, 1978; Bulhan, 1985; Memmi, 1967, 1968; Miller & Mothner, 1981; Pheterson, 1986; Pilar Quintero, 1993; Woolley, 1993). As a deaf author confirmed, "we are oppressed from without by a society which does not value us and therefore does not give priority to our needs, and we are oppressed from within because we have internalised those same attitudes towards ourselves" (Woolley, 1993, p. 81). The feelings of guilt, shame, and worthlessness internalized by victims of child sexual abuse are painful reminders of the susceptibility of vulnerable groups to negative judgments imposed on them by perpetrators. These negative messages, incorporated into the child's self-image,
.”
have multiple and enduring ill effects for the mental health of victims (Bagley & King, 1990; Browne & Finkelhor, 1986)
Gonick, Lev and Isaac Prilleltensky. “Polities change, oppression remains: on the psychology and politics of oppression.” Political Psychology, vol. 17, no. 1, March 1996, pp. 127-148.
3) Thus resisting oppression is a logical prerequisite to any moral project; any system that fails to
structurally resist oppression fails any moral test because it excludes some from its rules. Gonick 2: “ oppression entails a state of asymmetric power relations characterized by domination, and subordination, where the dominating persons or groups exercise their power by restricting access to material resources Our own definition tries to integrate the elements of state and process, with the psychological and political dimensions of oppression. For us, then,
and resistance,
and by
implanting in the subordinated persons or groups fear or self-deprecating views about themselves. It is only when the latter can attain a certain degree of conscientization that resistance can begin. Oppression, then, is a series of asymmetric power relations between individuals, genders,
Such asymmetric power relations lead to conditions of misery, inequality, exploitation, marginalization, and social injustices.” classes, communities, nations, and states.
Gonick, Lev and Isaac Prilleltensky. “Polities change, oppression remains: on the psychology and politics of oppression.” Political Psychology, vol. 17, no. 1, March 1996, pp. 127-148.
Thus, resisting oppression comes before any ends-based standards because a moral system that fails to resist oppression excludes some from consideration of both rights and happiness. And, rejecting oppression comes before normative ethics because disregarding lived experience in favor of ethical abstraction is itself a form of oppression. Halewood: “Where we are positioned in society, and how we think of and live in our bodies, are questions we do not usually connect to the (both everyday and scholarly) claims we make about social and legal problems. ‘The body’ and ‘knowledge’ have traditionally been understood as unrelated categories. However, recent interdisciplinary work in philosophy and law emphasizes ‘positionality,’ and calls into question the abstract, disembodied quality of conventional western theories of knowledge (epistemologies) which ground the Western conception of law. Western epistemology has artificially bracketed off the material particulars of experience and identity, including the spatial particularity of one’s bodily experience, in determining what counts in making and defending claims about society and about law’s role in maintaining or changing social order. Abstraction, unversality, and reason, rather than embodied experience, govern the validity of truth claims. In turn, much contemporary critical legal theory calls into question the liberal jurisprudence which derives from conventional Western epistemology and ethics. Critics say that law’s objectivity and principled determinacy have been defined so as to deny the range of experience and self-understanding of the oppressed. For example, the range of criteria defining a valid rights-claim under liberal jurisprudence - rule governance, rationality, universalizability - are values associated (with the Western tradition) with masculinity.” Halewood, Peter. “White men can’t jump: critical epistemologies, embodiment, and the praxis of legal scholarship.” Yale Journal of Law and Feminism, vol. 7, No. 1, 1995.
Consequentialist considerations should be rejected because A) aggregate actions of systems over time have a greater impact than any circumstantial consequence; B) speculative threat construction is a tool used by oppressors. Since consequentialist justifications are based on speculation about the future, any one at any time can assert that some overriding potential harm
justifies oppressive treatment. Thus rejection of oppression must function as a side-constraint on consequentialist reasoning, because the moment we accept the premise that potential consequences justify oppression, our actual ability to reject oppression disappears. Finally C) threat predictions are uncertain while the injustice of oppressive systems is ongoing and real life concerns take precedence over imagined fears. I contend that abolishing plea bargaining is a rejection of oppression. I defend the resolution as a general principle- I will concede to reasonable interps in CX if you want me to. First, the U.S. criminal justice system is primarily a tool of oppression against minority populations. Punishment is generally oppressive because it allows a dominating state to take away rights. State policies grounded in ideal ethical theories of social contract and retributive justice seek to legitimate criminal justice but the on-the-ground reality is that the system is actively hostile to subordinated groups. Borchetta: “A new study from Carlos Berdejo of Loyola Law School demonstrates for the first time that there are significant racial disparities in the plea deals white and black people receive on misdemeanor charges - with black people facing more severe punishments. Berdejo analyzed 30,807 misdemeanor cases in Wisconsin over a seven year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people with no criminal history. This suggests, as Berdejo concludes in his report, that prosecutors use race to judge whether a person is likely to recidivate when deciding what plea to offer.” Borchetta, Jenn and Alice Fontier. “When race tips the scales in plea bargaining.” Slate, October 23, 2017.
The oppressive nature of the criminal industrial system is not an anomaly caused by bad actors, but rather is a necessary part of the system’s design. Borg: “Racism is built into our criminal justice system; it is not the result of a few individuals deliberately acting in racist ways. It's a staggering claim, but one that is supported by the recent Racial and Ethnic Disparities Report (RED Report) completed by the county. This study of the journey individuals make through Multnomah
black people will experience significantly more punitive treatment than whites. Blacks are more than four times as likely as whites to be arrested and referred for prosecution. They are more likely to be given prison sentences and less likely to receive conditional discharges or fines. Research elsewhere shows this disparity is highly unlikely to be explained simply by County's justice system demonstrates that
greater criminality among the black population. Multnomah County is not an anomaly in showing these disparities. Countless other jurisdictions around the country have similar problems. This discriminatory treatment is fueling
a[n] U.S. Department of Justice investigation into the police department in Ferguson, Missouri, that found officers violated the Constitution and engaged in racially biased practices as a matter of course. I find it impossible to conclude anything other than that blacks in America are effectively subject to a separate and grossly unequal criminal justice system. As -- for the most part -- each of the institutions that make up our justice system is following the law, what do we have other than a legal system that enforces discrimination? I have worked as a criminal defense lawyer for most of my 32 years as a member of the Oregon State Bar. Of all the responses I could feel, such as anger or frustration or outrage, the one I do righteous anger, channeled into national movements such as #BlackLivesMatter. It has been exposed by
feel is shame when I look at the numbers and the outcomes this new study reveals. I could try to excuse my own role with the disclaimer that I'm one of the good guys; my job is to help defendants. But that would be a cop-out. In one way, laws and practices from the Jim Crow era were easier to change. Explicit discrimination, plainly encoded into the law could not be denied by anyone. Today we are perpetuating separation between races through
.”
facially neutral laws enforced by people who consciously reject racism. But the RED Report shows us that every one of us who makes a living within the justice system is creating, perpetuating or exacerbating disparities
Borg, Lane. “Racism is built into our criminal justice system.” Oregon Live, February 22, 2016.
The promise of reform is only a ruse designed to lull subjects of oppression into passivity. Since the nation’s inception the law has been built on the principle of maximizing resource aggregation for the dominant caste through a process of systemic oppression of people of color. Working within the system can’t solve because the system itself is, by its nature, a tool of racism. Brewer:
“The call for social justice is “an implicit call for solutions, a call for remedies, a call for action” (Coates, 2004, p. 850). As we have seen, the call for social justice cannot rely on civil justice or macro-level remedies alone; law has been the hand-maiden of what hooks (1992) has termed “the white supremacist capitalist patriarchy” in the ever-evolving political and economic exploitation of persons of color. To paraphrase Bell (1992), the 14th Amendment cannot save us. The call for social justice requires more. As the latest project in racialization, criminal justice and the prison industrial complex have fundamentally racist and classist roots that must be exposed and abolished. Reform is insufficient; “there can be no compromise with capitalism. . . . There can be no compromise with racism, patriarchy, homophobia and imperialism” (Marable, 2002, p. 59). The work of justice must begin at the micro level; it must emerge from the grass roots. Drawing links between the movements to abolish slavery and segregation, Davis (2003) asked us to imagine the abolition of prisons and the creation of alternatives to mass incarceration with all its racist and classist corollaries.” Brewer, Rose and Nancy Heitzeg. “Crime and punishment: criminal justice, color-blind racism, and the political economy of the prison industrial complex.” American Behavioral Scientist, vol. 51, no. 5, January 2008.
Abolition of plea bargaining is willful destruction of the criminal justice system as a whole because plea bargaining is the core building block of the system. The trial-based criminal justice system grounded in procedural protections is a myth; for every 100 cases, 98 are resolved through plea bargaining. Trials are not a feature of the CJS but rather an anomaly. Scott: “The criminal process that law students study and television shows celebrate is formal, elaborate, and expensive. It involves detailed examination of witnesses and physical evidence, tough adversarial argument from attorneys for the government and defense, and fair-minded decisionmaking from an impartial judge and jury. For the vast majority of cases in the real world, the
Trials occur only occasionally-in some jurisdictions, they amount to only one-fiftieth of total dispositions. Most cases are disposed of by means that seem scandalously casual: a quick conversation in a prosecutor's office or a courthouse hallway between attorneys familiar with only the basics of the case, with no witnesses present, leading to a proposed resolution that is then ‘sold’ to both the defendant and the judge. To a large extent, this kind of horse trading determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” criminal process includes none of these things.
Scott, Robert and William Stuntz. “Plea bargaining as contract.” The Yale Law Journal, vol. 101, no. 8, Symposium: Punishment, June 1992, pp. 1909-1968.
And the structure of incentives built into the system makes it systemically antiblack in a way that is tied politically to antiblackness in the culture. Elected prosecutors will by definition be responsive to antiblack pressures coming from their constituents; in this context, maintaining a criminal justice system with the power to incarcerate black bodies is inherently violent. Savitsky: “Plea bargaining has become ubiquitous as the primary method of criminal case disposition in the United States. Indeed, the vast majority of criminal convictions are obtained through a plea bargain. Plea bargaining lowers the transaction cost of criminal prosecutions which combines with political policies favoring large scale incarceration to drive up prison populations. Further, plea bargaining indirectly pits defendants against each other in a multiplayer Prisoner’s Dilemma that induces defendants to take worse bargains than they otherwise might. Moreover, the decrease in transaction costs is generally larger for cases against poor defendants which correlates to a decrease in transaction costs
prosecutors are interested in maximizing successful prosecutions and minimizing costs, they are encouraged to prosecute a disproportionate number of Black defendants.” for prosecuting Black defendants. Since
Savitsky, Douglas. The Problem With Plea Bargaining: Differential Subjective Decision Making As An Engine Of Racial Disparity In The United States Prison System. Cornell University, Proquest Dissertations Publishing, 2009.
This indicates that the structural intention behind acts of plea bargaining is to implicate marginalized groups into systems of oppression. This is true because A) plea bargaining is the central mechanism of the system; B) the system rewards its creators for increased convictions; and C) the system punishes agents who elevate concern for the well-being of subordinated groups or for abstract conceptions of “rights.”
UNDERVIEW: First, theory is ground to drop the neg debater but not the aff because a) time skew –if the neg runs abusive arguments, I have to be able to go all on in theory against those arguments in the 3 minute 2AR which I can’t do if it’s only drop the argument, but the neg has a 6 minute 2NR, so they don’t need to be able to collapse. Time skew is key to fairness because you need sufficient time to be able to develop arguments. Further, this is also a reason to grant the aff an rvi but not the neg because the aff doesn’t have time to win only generating defense while the neg can generate defense on theory and easily win substance in a 6 minute speech. Second, Presume aff because there is an 11% side bias1 towards the neg and if I overcome this skew to tie I was the better debater. Theoretical reasons to presume preclude substantive reasons because theoretical reasons determine what legitimate substantive reasons even are. Third, AFF gets RVIs – A. AFF Flex – neg has the ability to collapse to either layer so aff needs the same ability for the 2AR – this outweighs. First, 2NR collapse – time skew becomes 6-1 since I cover multiple layers, which makes it impossible to win Second, 1AR is too short to read theory compared to the neg so AFF needs each layer to be reciprocal rather than adding more irreciprocal avenues B. Only neg can read T because only aff has a T burden so since aff can’t reciprocally respond they need the RVI to compensate for neg’s unique avenue to the ballot.
Fourth, the ROTB is to evaluate the truth or falsity of the resolution: Debating a fixed resolution is an essential constitutive feature of debate, i.e. it’s impossible to have a debate unless there’s something we’re debating. Thus, if the role of the judge or ballot is not to evaluate the truth of some proposition, there’s no longer a debate. And, this precludes all other role of the ballot claims since “the ballot” is an instrument that exists internal to the activity of debate; a piece of paper only becomes a ballot in the context of a debate round, so violating constitutive features of debate nullifies any role of the ballot claim. Fifth, The neg running T is not a reason to vote my strat down. A) There are infinite interpretations of the resolution and I have already proved mine. Winning T may also prove another interpretation of the resolution true but that doesn’t mean that my interpretation is bad. B) I read the AC in the dark, the neg gets to adapt their strat to mine so give the reciprocal right to the aff AC to adapt to any NC T C) It is too early in the topic for me to predict communal norms, don’t drop me for a marginally better topical interp and kill any form of topical clash
1
Henson, Clifford and Paul Dorasil. “Judging bias in competitive academic debate: the effects of region, side, and sex.” Contemporary Economic Policy, July 4, 2013.
