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?