Oct 1, 2007

injustice and plea bargaining: some potential issues

Essential update: I erred and misrepresented an important statistic in an early comment below. 95% of federal convictions result from a guilty plea. The most recent available statistics come from the Justice Department, and are summarized here.

Regarding the current resolution, what are some ways plea bargaining in exchange for testimony [PBET] could be considered unjust? It depends, of course, on who's defining justice.

1. From a victim's perspective, PBET sets up inequality among victims.
A victim of one crime--theft, for example--is denied justice so that another victim can enjoy satisfaction. Why should my right to justice be denied so that another's may advance?

Neg response: Inequality among victims is inherent, since victims feel differently or are harmed differently by similar crimes. One person cries out for the life of the murderer; the next offers forgiveness. The state cannot let victims' subjective feelings tip the scales of justice.

2. Prosecutors use plea bargains coercively.
By dangling PBET in front of disadvantaged defendants matched with public defenders, prosecutors become the new adjudicators. Around 95% of federal cases end in a plea bargain. To keep the wheels of justice turning, the state values efficacy over justice, speed over due process.

Neg response: Plea bargaining in general may increase aggressive prosecutorial tactics, but PBET is different. Only defendants "in the know" can take this route--and if they're "in the know," chances are, they're guilty of something.

3. PBET rewards "guilty knowledge."
A criminal acting in concert has an extra "out" that a criminal acting alone can't employ, thus creating inequality in punishment. Testimony pleas in the U.S. lead to greater sentence reduction than mere plea bargains.

4. And now for a little dubious math.
On the Neg side, a plea bargain might lead to a utilitarian maximization of justice. With no plea, Defendant A (theft) has a 90% chance of conviction, or .9 Justice Points. With no plea, Defendant B (murder) has a 30% chance of conviction, or .3 Justice Points. Total Justice Points: 1.2

With a plea, though, Defendant A accepts a 30% reduction in sentencing (.7 JP) to inform on B, who now has a 90% chance of conviction. Total Justice Points: 1.6

Justice is easy. You just need the right calculator.

5. Other purported benefits of plea bargaining (in general). From a paper by the Passaic County Prosecutor [Word file]:
The plea provides a means by which the defendant may acknowledge guilt and manifest a willingness to assume responsibility for his or her conduct. Pleas to lesser offenses make possible alternative correctional measures better adapted to achieving the purposes of correctional treatment and often prevent undue harm to the defendant from the form of conviction. Also, pleas make it possible to grant concessions to a defendant who has given or offered cooperation in the prosecution of other offenders.
(The last sentence, of course, merely restates what we already know.)

56 comments:

okiedebater said...

One of the things that worries me with the Neg argument of how important plea bargains are in general to the justice system is the possible Aff sidestep that the resolution does not deal with what is practical, or even feasible, but only what is just. Any ideas for preventing this?

Jim Anderson said...

If "justice" is defined in the mathematical / utilitarian framework, as (a little facetiously) above, then yes, perhaps overall justice can outweigh minor injustices or less-than-justices.

95% (or so) of defendants cop a plea. Amazing, isn't it?

amanda d. said...

hey, found your blog, while researching, and it's very helpful.
i just lost the person i bounce debate idea off of to other extra cirrculars.
so thanks.

anyway, to the neg argument that plea bargaining is necessary to not block up the court system, theres the example of Alaska, who made plea bargains illeagal for a time, and had no drastic effects to their court system.
www.enotes.com/everyday-law-encyclopedia/plea-bargaining

thanks again for the awesome blog

Jim Anderson said...

amanda.d, welcome aboard, and thanks for the kind words. The Alaska example is interesting--but note that it's a relatively small sample.

We have to be careful about empirical examples--many predictions about plea bargaining's relationship to various Supreme Court rulings, that pleas would increase or decrease, haven't come true, simply because lawyers adjust their tactics in the face of new or revised legislation.

Anonymous said...

I found your blog researching too, and I'm finding it pretty helpful. I'm a novice from Nebraska, and so I'm having fun throwing my ideas around with people I'll never have to debate.
So, if you look at the resolution from a utilitarian framework, can't it go both ways? sure, plea bargaining "maximizes" justice in the sense that some punishment is guaranteed. however, maximum societal protection would be found when and only when the appropriate punishment is given. the longer a dangerous person is out of society, the greater the benefits. the greatest number is obviously society, and reducing risks to it is the greatest good. so therefore, a lack of plea bargaining can also achieve the "greatest good for the greatest number." How can you make utilitarianism unique to one side of the resolution?

Jim Anderson said...

anonymous, thanks for stopping by, and great questions.

1. You've forgotten the "in exchange for testimony" portion. The less-than-maximum benefit vis a vis one defendant is outweighed by the maximum benefit for the second, and worse, offender. Part of the equation not included in my rough-and-ready formula is that prosecutors only cut testimony deals when they are assured that the testimony will secure landing a big fish.

Without the plea bargain in exchange, the chance of hooking the big fish decreases precipitously, thus making the utilitarian benefit unique to the Neg.

LD Novice said...

How can the negative set up framework? Isn't that an affermative action?

Anonymous said...

Can't you argue that the outcome of plea bargaining is flawed because it is based mostly on the skills of the defense lawyer? The wealthy can aford to get better lawyers than the poor, making the whole system unequal?

Jim Anderson said...

Good question, anonymous. But this isn't plea bargaining in general--it's plea bargaining in exchange for testimony. The value of the defendant's cooperation is what most affects the judge's view of reducing the sentence. (Although "charge bargaining" may have different results than "sentence bargaining," so we have to be careful here.)

Anonymous said...

well in the aff. view as soon as the possibility of a plea bargain in exchange for testomony is presented, it is no longer a justice system decision. I believe it becomes a business decision between the prosecution and defense. Therefore plea bargaining is unjust because it flaws the justice system for a certain party based on their knowledge, when others may not have the same opportunity due to the fact that they don't have the same knowledge. So how can our great country give others preferential treatment when we are a country of equality and justice for all?

cheeze said...

what do you guys think about this;

for my neg, I'm planning on saying that some othercountry's pbet is more unjust than the US. I plan to link this in with saying that "Unjust" is an extreme, just like "Just" is, like Justice is the absolute perfect ideal situation, where equality, fairness, and all of those standards are valued exactly. but because that will never be able to be achieved, one must look to how close either the aff or neg gets to it.

as that applies in the "Unjust" thing, Im gonna say that the resolution says pbet in the US is unjust, but because Unjust is an extreme, pbet in the US cannot be unjust, but can only be close to it. therefore, the resolution is asking for what is use of pbet that is closest to "Unjust." then, Im gonna have all this crap saying that for instance, china's use of pebt is worse, or closer to the definition of "Unjust" than the US's. what do you think?

Jim Anderson said...

cheeze,

An interesting strategy, and thanks for sharing. I'm a little afraid, though, that it's not going to work for you. Let me give an analogy, which will hopefully show why.

Let's say I argue that "tall" is an extreme. I show you a picture of Shaq, and say, "See? Shaq's 7'1. He's tall."

You then say, "Well, yeah, but Yao Ming is 7'6", and that's closer to the extreme, so Shaq isn't tall, now, is he?"

I'll simply respond, "Shaq and Yao are both tall. Doesn't matter if Yao's a little taller--Shaq's still taller than 99% of the population. That's still 'extreme.'"

So, all told, trying to use a relative definition of justice probably won't be convincing to many judges. They'll see your definition of "extreme" as unreasonable, or the Aff will simply say, "Well, just because China is worse doesn't mean that the U.S. isn't also close enough to count as 'extreme.'"

cheeze said...

I see your point, but I think I'm still gonna use it, because I would just counter the shaq analogy with saying that it basically supports what I'm saying, that you can infinitely be taller than another person, just as another person can be taller than you, etc., but this means that you can infinitely be more unjust, meaning that there must be a weighing form of advocacy, one where you must show what is worse, because what is the worst is unattainable. also, even if the US. would still be an extreme it is outweighed by China surpassing it, thats my whole reason for the "weighing" of injustices. here is the actual observation I'm gonna use, maybe that will generate more attacks;

Observation; The use of the word “Unjust” in the resolution creates a weighing frame of advocacy. To elucidate, Justice is an extreme perfection where everything is in accordance with the set standards creating the absolute positive, thus it is impossible to achieve. Likewise, “Unjust” things are also an extreme, impossible to create as well, equitable to pure evil, or the absolute negative. These two sides of the spectrum create two aisles of resolutionality: one, to show what is the closest to justice, either affirming or negating, and two, to show which country’s plea bargaining in exchange for testimony is the closest to the concept of “unjust,” the U.S. or another country.

cheeze said...

I think the problem was with me saying"absolute." it made people think that I was trying to run a kritik on the resolution, saying that because unjust is an unattainable extreme the US's pbet cannot be unjust. no, IM saying that yes we should debate over it, but in order to do so, we must weight the injustices/justices

Anonymous said...

hey
i was reasearching about the topic, and i found this site. its really useful.
how can i use equality as a criterion for my aff case?
thank you

Jim Anderson said...

Equality has to be clearly defined. Does it mean equal treatment--due process for all? That might mean that PBET disrupts due process for the person who skirts a trial.

Equal punishments for equivalent crimes? For the aff, the latter might mean that PBET is unjust because it provides an unequal punishment for someone who has knowledge of criminal activity.

I'm sure others can think of other reasons.

cheeze said...

um, thats not a good idea to use equality as a criterion. you wanna be more specific, because equality has many, many forms, each with there own flaws. for equality just in general though, that my nieghbor has a big screen tv and I dont is unqual, but should the gov't give me a big screen tv? no.

I think I know where you are going though, with the equality criterion. Are you wanting to say that if someone murders someone, then they should be murdered, etc.?

you should look up Hagel's theory of retribution, it is exactly what you are wanting, I'm almost sure.

then for your criterion use something like "proportionality," but not anything as inspecific as equality.

cheeze said...

Jim,
I don't really understand your #4, with the justice points, could you elaborate?

Jim Anderson said...

Certainly, cheeze.

If a Neg is going to argue that PBET is just in a utilitarian sense--because by accepting defendant A's reduced sentence we have a much greater chance that B will be convicted--we have to figure out what those convictions are "worth" so we can be sure we're maximizing utility.

Since no trial outcome is certain, we have to use probabilities, or what I'd call "justice points." (Hence the warning: this isn't a scientific process, but a hypothetical example.)

A defendant who has a 90% chance of being convicted at trial has .9 justice points. The State wants to maximize justice, so it will accept a slight reduction for A in order to secure more justice points for B, who has only a 30% chance of conviction (.3 justice points) if A doesn't testify.

Defendant A, upon PBET, now has a 100% chance of conviction on a 70% charge--or .7 justice points, while B has a 90% conviction on a 100% charge, or .9 justice points. The total justice obtained--1.6 points--now outweighs the justice obtained without testimony--1.3 points.

What's missing from the equation: the relative harms of the crimes committed, which could make the math even more palatable for the Neg. Prosecutors are more willing to bargain down lesser offenses--they're not going to severely reduce a first degree murder charge, for example--so we'd have to include some sort of multiplier for the seriousness of the charges.

Does that make more sense?

cheeze said...

ok, thanks, yeah it makes more sense now. but doesn't that assume that the defendant is guilty? I mean, in order for it to be "justice points," as you said, wouldn't it actually have to be just in order to count the conviction, meaning convict guilty parties only?

Jim Anderson said...

cheeze, yes, the argument assumes that a defendant who pleads guilty (or one who's found guilty) is actually guilty.

However, I think it's a fair assumption, for two reasons:

1. It's probably empirically sound--according to all parties in the justice system, the vast majority of defendants either pleading or found guilty are actually guilty.

2. The problem of innocents being found guilty is probably not unique to either side of the resolution. It's going to happen in any human system of justice, simply because no system is perfect.

3. The PBET means, in all likelihood, that defendant B is actually guilty, since A's testimony has to be found useful for the bargain to stand.

Thanks for your comments--you're helping advance the discussion.

Anonymous said...

Where did you find that 95% of federal cases end in a plea bargain? (in case the percentage is argued)

Anonymous said...

Do you know of philosophers we could quote on the subject of plea bargaining, testimony, or criminals being held accountable?

Jim Anderson said...

Anonymous 1: The 95% statistic comes from federal reports, for example: Durose, M. R., & Langan, P. A. (2003). Felony sentences in state courts, 2000. Bureau of Justice Statistics Bulletin. US Department of Justice. Washington, DC: GPO.

Anonymous 2: Kant is a hard-line retributivist. HLA Hart is one of the leading philosophers of jurisprudence and criminal law in the 20th century. There are others out there--go here and start clicking links.

Anonymous said...

I'm new to ld and i need some help. My value for aff is equality and i need a third contention any one got any ideas?

Anonymous said...

I have a few comments to make.
~It sounds better and makes more sense to 160 justice points instead of 1.6.
~Equality is a bad value, proportionality as a criterion works much nicer. Also I love to run variations of this Objectivist argument against equal "something-or-rather."
Promotes Egalitarianism - The belief that value should be split evenly between everyone. This is a bad principle because it causes unnecessary sacrifice. Those who have achieved more must sacrifice to those who have not. It is a mask for incompetence and hatred of justice. The rich must be made poor, the strong must be made weak, and the good must be made evil; this is communism an unjust form of government because those who worked herd to achieve such values are required to lose them. -- is just a branch of egalitarianism which promotes incompetence and communism, therefore -- is an unjust principle.
~ someone mentioned supreme court rulings here, if you ever go up a contention that the supreme court supports plea bargaining; first, it is guilty plea bargaining not testimonial, second, was the supreme court ruling on Dred Scott v. Stanford just?

Anonymous said...

Just wondering..of the 5% of federal cases that do NOT end in plea bargains..what percentage of those end in a conviction?

Jim Anderson said...

Anonymous, good question. (For the latest numbers, from 2004, go here; the 95% stat for pleas is unchanged.)

I need to retract and clarify: 95% of federal convictions are the result of a guilty plea. The number I cited above was from memory, and completely misrepresents the situation. I'll add a note about the retraction, and add important information about trends in conviction, in the original post.

le radical galoisien said...

Communism isn't unjust/incompetent if you use the left libertarian social contract form (anarchist communism), etc.

But I shan't go into that.

"One of the things that worries me with the Neg argument of how important plea bargains are in general to the justice system is the possible Aff sidestep that the resolution does not deal with what is practical, or even feasible, but only what is just."

But the idea is that justice's purpose is to achieve societal benefit, is it not? You are trying achieve societal good without undermining the integrity and effectiveness of deterrence (which benefits society). Justice is supposed to help society: a dogmatic eye-for-an-eye retributive view cannot be just if it ends up harming society in the long run.

Anonymous said...

can i use justice points for one of my contentions....is it a good choice....?so by using justice points we are saying that.....defendant is actually guilty and there is only a less chance for the innocent of being found guilty?....
thankyou

Jim Anderson said...

Yes, anonymous, the justice points analysis leaves out the possibility that the defendant is in fact innocent. (However, that's a problem for both sides of the resolution--the PBET, I'd argue, isn't uniquely problematic when it comes to the potential for an accidental punishment of an innocent party.)

Rabbit87 said...

I found your blog while desperatly searching for information for my aff case and I have to admit I am absolutely thrilled. I ran around reading quotes to my step dad (who judges) and my mom (who has no clue what I'm talking about.

So anyway, to the point, I was wondering if you have any good ideas for a way I can incorporate social justice into my aff case? I like it as a vc but I painfully realized I hadn't connected it in there anywhere. Any advice is much appretiated.

Thanks!

Jim Anderson said...

Social justice, warranted by the fact that it's a broader conception than mere individualism, could be connected to several facets of the process:

1. If PBET is discriminatory for geographic, ethnic, or class reasons, it violates social justice.

2. If PBET leads to societal ills (for whatever reason), it violates social justice.

3. If PBET upsets the balance between societal and individual rights, it violates social justice.

Those are just a few reasons, thought up on the fly. I'm sure there are other better connections, too.

Anonymous said...

do you know of any good quotes that support either of the sides? I'm a new debator and i cant find many good quotes

Thanks a ton!

Jim Anderson said...

anonymous, the links I've collected here point to many different sources for both sides.

Also, if your school has access to ProQuest or Ebscohost, you can search for academic fulltext articles on the topic, all freely available.

Anonymous said...

here is what i would do to sidestep the neg. i was watching a debate and the aff brought in a really good point. "If plea-bargains are so essential to the court system and so clearly unjust, the court system needs to be changed, instead of allowing injustices to continue." or, what i do is my affirmative value is truth, with a criterion of plato's allegory of the cave, and if your opponent says that justice is relative to truth, you can say that "it doesn't matter if you have justice if you don't have truth since they are relative to each making the justice received perverted and not true justice."

Anonymous said...

yo this was helpful
im planning on using my VC as maximizing saftey, u guys got any pro or con args to help me with that

Jim Anderson said...

anonymous, only two questions: what's your value, and how does "maximizing safety" link to the resolution?

Anonymous said...

my value is justice, and it best links to the resolution because maximizing saftey is the primary goal for all just societys, while remaining just, it best links to the resolution becuase it needs to be achieved 1st b4 any other resolutions can, because max saftey is the most important

maddie_willow said...

I have some good contentions.. but my value criterion analysis is not so hot. I'm running proportionality. Does anyone know of any cards/analytics for why proportionality leads to justice?

Thanks a lot!

le radical galoisien said...

A philosophical argument I have come up with (but one that's too long to explain fully even in a constructive) is that proportionality is part of utility (whether to the individual or to society).

For example, ten-year-old boy steals candy from a store. There needs to be punishment, which have the utility of deterrence. But you don't want to throw him in prison, because you will end up doing more harm than good (having an even more corrupting influence, disrupting education, etc.).

The "proportional punishment" then, is a careful balance between deterrence (as well as rehab) and making sure the punishment does not do more harm than good.

This can work for both aff and neg.

For example, one can contest the idea that it is unfair (that in the case of having two people who committed the same crime) to reduce one person's sentence but not the other for the exact same crime. The actions post-fact can be just as important, even excluding the whole "reward for crime" thing -- a great deal of the penalty is to compensate for the effort of the law in having to search for you.

For example, part of the reason you may pay a 750,000 dollar fine for evading 250,000 dollars in taxes is to compensate for the fact that some people get away with it. If the penalty were only giving the money back, then doing the crime would work probability wise -- definitely a chance for profit. If you save the court's effort by not resisting the charges, then some of the compensation for resisting and getting away with it is un-needed. [There are two stages of "getting away": one is getting caught by the police, then getting caught by the courts. You must pay compensation for the first stage after confessing, but not the second.)
Of course Aff can offer two rejoinders: you get the problem of coercion (where there is an incentive to plead guilty even if you are innocent), and that this is really a case of leniency -- for true remorse, not people being offered a plea bargain.

Proportionality is also part of rule of law, an expected standard that helps keep society together. You would for example, be less inclined to be part of a society that treated you as a second-class citizen (such as giving your race double the punishment of another race), so you would contribute to it less, or even emigrate (at the expense of societal utility). If society does not pay you what you (or your class, race, etc.) deserves -- in this case, universal application of justice and rule of law -- then you, your class, race, etc. will be less inclined to pay society back. [This is sort of a social contract thing.]

So how does this tie in to PBET? Well, basically by failing to respect proportionality, you undermine the incentives and disincentives that proportional justice sets up: you undermine its utility. This works for both Aff and Neg: if a criminal knows he can get away with it by simply having information on the thugs in his hood, then the disincentive against crime decreases: society suffers.

However, there is also utility in having a criminal risk his life to testify -- in this case as Neg, you would want to make the case that the suspect who cops out to a plea *deserves* a lesser sentence. You can argue that proportional punishment is not equivalent to retributive justice: part of the proportionality is balancing the benefits and harms.

Of course, this is really long-winded to frame for a debate, but usually I only have to go in-depth as I need to. I rarely do, because my opponents have yet to go that far, so I give a quick summary (give every man his due, so that each will give society its due), and elaborate if questioned.

Jim Anderson said...

I would also add to the previous analysis that proportionality is not unique to a utilitarian view, but can also fit well in a retributivist framework. In that sense, proportionality is about communicating the moral seriousness of the crime--its censure function--and exacting rights deprivation equivalent to the rights violated by the criminal. (I cite some Lippke analysis along those lines here.)

Anonymous said...

could someone please coment ono my VC for neg
i said my vc is maximizzing saftey. please can you "rip it apart" so i can like make blocks for it or something because i feel that there are alot of weeknesses with that VC
also some pointers on how to counter the args would be nice 2

le radical galoisien said...

Mmm yes: is there any good evidence that PBET undermines global/general deterrence? (or, to the contrary?) Most of the arguments I have encountered for that so far are painfully theoretical.

Jim Anderson said...

anonymous,

You said earlier that the goal of a just society is to maximize safety. I could easily counter that the goal of a just society is to maximize justice.

In fact, if safety is the goal, why even include justice considerations?

If justice is your value, your criterion needs to link more strongly to justice. Use retribution or utilitarianism or proportionality or due process or anything other than maximizing safety. MS is just too easily defeated.

Jim Anderson said...

le radical,

I've scoured for stats on PBET's effects, but almost all the evidence out there is about PB in general. I'm afraid that theoretical is the best we can get--but since deterrence theory is based on 1. enough severity of punishment and 2. enough risk of punishment, any process that reduces either (or both, in the case of PBET?) knocks down deterrence theory.

Besides, I'd be curious to see what sort of empirics the other side would have, proving that deterrence works.

Anonymous said...

what could you say to defeat MS, cus i can link back to it by saying we bring dow the ladder and stuff, but yes i do feel that it is rather week
but you guys still havnt told me whats bad about it only that its bad,
could you also tell me ways to back up my VC if i keep it
cus i dont like retribution

Jim Anderson said...

anonymous, you had claimed that "maximum safety" must be met before any other value. This is counterintuitive. More likely, a minimum threshold of safety must be met. "Maximum safety" as a primary goal leads to totalitarianism.

Also, you offer "while remaining just" as a side constraint--but this would be easily taken down by saying, "So if safety is limited by justice, then doesn't justice take precedence?" The other side then shows how their criterion more directly links to justice considerations, and your VC is hosed.

Overall, maximizing safety might be an important goal of government--but, especially in the United States, is it the ultimate goal? Probably not. We accept a moderate level of risk because we believe in a form of justice based on protecting individual rights. We're not Singapore.

le radical galoisien said...

Oy. I'm a Singaporean citizen leh. I consider myself a Singaporean before an American, and I think your comparison is rather unfair.

We don't value safety over liberty -- more like our government prefers to be paternalistic because even though the amount of people with tertiary education are higher per capita than that of the US the government still thinks that most of us are not mature enough to make decisions like managing our retirement.

If you want to know what our society values, it's not so much as safety as the stifling neo-Confucianist pragmatism and the constant pathetic excuses of realpolitik self-interest that the government uses in order to continue to be all cozy-cozy with the Myanmar military junta and its blood money -- it's why ASEAN has refused to impose sanctions on Myanmar. But I can use a contract idea here too -- if the Singapoean government claims self-interest in order to eschew what is right for others, then one day when it is in trouble no one will lift a finger to help it. That is why Indonesia has banned the export of its sand into Singapore for the purpose of construction and land reclamation -- it's our own kiasu attitude coming back to haunt us.

The core values listed on the textbooks and the primary school foolscap go something like this:

*nation before community and society before self
*family as the basic unit of society
*regard and community support for the individual (whatever that means)
*consensus instead of contention *racial and religious harmony

So while some are these are rather iffy, "safety" isn't part of them ... pragmatism and "Asian values" (whatever that means too) are. The reason why the electorate has been reluctant to elect a new government is that after 40 years of PAP rule they've been successfully goaded into thinking that any other newbie government might be incompetent, even though many of the skilled positions -- e.g. the guys at urban planning -- would be the same. [We hope to change this at GE 2011.]


Where do you Westerners come up with comparisons like these anyway? Just the other day (well, more like a month ago with the DP resolution), I had to deal with a guy who tried to use Singapore as evidence for his debate, not knowing that I as his opponent was a Singaporean citizen. (I can actually make a good argument both ways, but the guy attempted to say that the DP worked in Singapore by general deterrence of setting an "example", whereas the deterrence effect was more of a cultural one -- e,g. as a primary schoolboy seeing on the school posters that the penalty of trafficking more than 250g of marijuana was death, thus getting the impression that marijuana was a very "dangerous" drug, not that I feared death itself. For Aff I can say that our low crime rate was never due to the DP per se.)

But *anyway*, if you take the social contract view, you can analyse it in a way other than a liberty versus safety dichotomy. After all, when individual liberty is threatened, is not safety threatened too? The government has the power to do anything it wishes to you. It is how you define "safety". You can in fact argue that liberty and safety go hand in hand.

I like how you Americans view yourself chauvinistically as some sort of bulwark of individual rights, as though we Singaporeans don't appreciate them. Please, take a look at the forum letters of our national newspaper sometime. Where do you get this myth that we trade our liberty for prosperity and safety? It's not like the government even has a valid social contract (from a Rousseauian point of view).


Anyanyway, the idea is whether taking shortcuts to justice or whether being principled to the rule of law ultimately achieves maximum safety -- you can use this as a value I think, if you restructure the concept. You can ultimately argue it all goes to societal welfare, but because societal welfare is vague, "my value fits the resolution better". This is what I did for value due process when facing an opponent arguing societal welfare -- I asserted my case ultimately achieves societal welfare better than my opponent's case did, because it's easier to evaluate whether due process has been upheld
than whether the vague idea of "societal welfare" has been upheld.

If you think about it, what's wrong with totalitarianism as a means of achieving safety? I mean, the more safety we have, the more we can pursue life, liberty, the pursuit of happiness and whatever. Safety somewhat implies [albeit indirectly] "the freedom to do things as long as they do not harm others", in a libertarian sort of way. Totalitarianism opposes this, because principles have been discarded. Take for example, totalitarian democracy -- it almost always degenerates into something that is not democracy, because in the way it utterly dispenses with principle and minority rights. If the majority can purge the minority, then a new smaller majority forms from this majority, purging the minority, and then a new [even smaller] majority forms, so on and so forth until in the end only a small minority benefit. Lack of minority rights in the end hurts the majority. [We see this with the factionalism of The Terror.]


If you take too many shortcuts in the attempt to pursue justice, societal welfare, safety or whatever, you may compromise the very values you set out to achieve. If by pursuing PBET you encourage recedivism, undermine general deterrence or "McDonalise" justice where the court system no longer pursues justice, but a conviction rate, then you have undermined the very values that PBET set out to accomplish. [This is obviously an Aff case.] Principle and due process, in part ensures that punishment is not dealt to the wrong people, and that it does not miss the right people -- which would of course hurt the very good it set out to achieve.

Neg can argue that PBET does not undermine principles too much, or that it does not undermine principles at all [PBET is its own form of due process, etc.] Does PBET have a negative effect on deterrence? [This is why I asked for evidence -- I can theoretically argue both ways, and I want to see which side the statistical evidence might land.] The main part of deterrence, is of course, consistency. Would people expect their sentences to be lower when contemplating whether to commit a crime because they can PBET their way out? How many people would think, "well, if I get caught robbing the bank I can always cop out on my friend..." (this is somewhat reminiscent of the DP deterrence argument). Neg can argue that the damage to principle and deterrence is small enough to be negligible compared to the payoff, or that the deterrence affect achieved by having the big criminals in greater fear of having caught than the small criminals means perhaps that deterrence benefits. [People hear of how the godfather got convicted at trial when it hits headline news, but less about Vinny copping out.)

Jim Anderson said...

le radical,
I appreciate your patient and thought-out explanation of Singaporean values. Lest you think I'm just another ignorant American ass, I'd like to clarify that the "Singapore" reference was meant to contrast a real and tangible difference between purported American individualist beliefs with the current Singaporean regime--not its values, which you lay out in detail.

I could see how you'd think of that as "chauvinistic," though, because of my hasty oversimplification in my choice of words. Here's the fuller view:

About 13 years ago, when I was a high school sophomore, many Americans were shocked by the harsh punishment about to be exacted on true American ass--pardon the pun--named (and owned by one) Michael Fay. The US government, when made aware of the charges, called for clemency or deportation, anything but the caning the law required.

Singapore's response, and justifiably so, was to point out that the rule of law had to be followed for "Singaporean and foreigner alike." Describing their reaction, in an NPR interview, former solicitor general Francis Seow made the same connection I did between the communitarian view of punishment and the practical outcome: "Well, you see, the proof of the pudding lies in the eating. See, this is exactly what Lee Kuan Yew would say. I mean, you look at what--look at Singapore today. You can walk the streets quite happily without fear of being mugged, assaulted, raped, or robbed, and look what's going on in America." (For those who don't know, Seow is a prominent critic of the current regime.)

And that's the problem the resolution poses, as you point out. An individualistic perspective on justice creates a higher level of risk, for better or worse. Every society makes the tradeoff. Americans hope (or pretend) that promoting individualism is worth the cost.

Since this resolution
says "In the United States," I'd argue that we have to look to solutions Americans can live with. Thus, a defense of totalitarianism might win over a judge who's open to new ideas, but will face an uphill battle in most cases, due to that inherently American chauvinistic beer-and-liberty attitude.

Hope that clarifies. For my otherwise inexcusable ignorance of specific Singporean cultural values, I stand duly chastised, and educated.

Anonymous said...

hello,
i am redoing my case... i am using equality as my criterion for my aff case. can u provide any websites that i can find out about inequality and plea bargaining in exchange for testimony...
thankyou

Anonymous said...

hai
i would like to get some sites where i can find out about inequality and pleabargaining in exchange for testimony....please help me....

Jim Anderson said...

Here's a piece on discrimination and plea bargaining. I'm sure there's a lot more out there.

le radical galoisien said...

"And that's the problem the resolution poses, as you point out. An individualistic perspective on justice creates a higher level of risk, for better or worse. Every society makes the tradeoff. Americans hope (or pretend) that promoting individualism is worth the cost.

Since this resolution
says "In the United States," I'd argue that we have to look to solutions Americans can live with. Thus, a defense of totalitarianism might win over a judge who's open to new ideas, but will face an uphill battle in most cases, due to that inherently American chauvinistic beer-and-liberty attitude."

Haha, but we never attempted Prohibition. ;-)


Anyway, Singapore is very efficient at segregating. It is an urban planner's dream. The government can keep a lot of "Not in my backyard" items as long as you ensure the general population doesn't see it with some convenient tricks. The students in the best schools never see the situation in the neighbourhood schools, dominated by gangs (though not drugs -- it was not until I returned to the US that I realised that weed wasn't supposed to be that hard to get); the tourists never see the foreign workers' squatter camps (such as those working on our public transport system) neatly tucked in between a freight rail line and the Ministry of Education, nicely concealed in the blind spot of the wall between the camps and the residential flats. What efficient land use! Man, if Singapore's urban planners were drug runners instead, they could probably sew the drugs into the lining of their genes. Each social faction unaware of each other's plight, the government, being the shrewd Machiavellian power broker it is, successfully plays them off of each other, preventing them from uniting together against PAP rule.

Anyway, I am doubtful that the current regime *believes* that it is achieving additional safety by sacrificing individual rights. After all, what it purportedly declares is different from what these Putains Au Pouvoir think.

For example, the racial harmony laws that prevent us from publishing incendiary material supposedly are to protect the protect the public peace, ensure the Singaporean equivalent of "domestic tranquility", prevent ethnic conflict, or conflict in general. *supposedly*, more safety / more harmony / less conflict => a well-oiled society. But of course, "racial harmony" has become a blanket carte blanche to suppress any unpleasant idea -- for those that make it to the national consciousness of course -- the government wisely chooses sees that it is infeasible to suppress everyday speech on the internet.

Our present (low?) crime rate comes not from our strict laws, or at least I would assert that the strict laws are only responsible for a minimal amount in crime reduction. Again, I would hardly think my peers would calculate, when contemplating whether to spray graffiti in the void deck, "gee, I could get *caned* for this." We at most, fear caning from our mothers.
It could be due to other forms of government intervention -- like compulsory didactic instruction on "moral education" in schools for example (where they teach -- can you guess? -- neo-Confucianist dogma once again).

Perhaps it may also be no surprise to you if I attribute it to urban planning; unlike in the traditional layout of a city, where gangs can beat up people in an alley behind a bar, the coffeeshop, the hawker centres, the market, etc. all are either lay in, or face the centre of an HDB estate. The average population density of Singapore -- including all its still unused land and natural preserves, and recently reclaimed land -- is 6,000 people per sq. km; in some places like Punggol it reaches 60,000. Chances are, if you start the equivalent of a bar fight in my housing estate, 5,000 people will see it from their residential windows.

In most public places you feel you are being constantly watched -- not because of the government -- and even you can't see anyone -- because you know someone cooking curry may be looking out their 10th storey kitchen window just in time to see you spray graffiti on the wall of the neighbouring building, along with the lady hanging out her clothes. There's a sense of chumminess I get in an HDB estate which I cannot feel when I walk past the projects of a US city.

You can thus achieve communal safety without sacrificing too much (if any at all) individualism (because should you really expect privacy in public anyway?) The government was only involved in the urban planning. And what liberty is threatened by being watched by a community of your peers?

ANYWAY, I know I'm being horribly off topic, but I want to clarify that what I meant was maximum safety != totalitarianism (and that Singapore is still a poor example of a society that believes maximum safety can be achieved by sacrificing individualism).

Maximum safety can rather be like an optimum curve. With appropriate definitions, you can include liberty as part of safety. Is not the social contract after all, a mutual agreement to abridge certain liberties to affirm others, in order to gain a greater maximum liberty? (You can't enjoy any liberty while dead.) Safety is in part, an insurance of liberty, but it also requires an investment.

At a certain point, having too much government control actually threatens safety -- like when I start fearing the secret police rather than the common murderer. You can't enjoy liberty while dead, but if you aren't afforded any liberty in the first place you might as well be dead.

After a point, the marginal cost of the liberty given up is way too exorbitant compared to the petty return on the liberty gained. This corresponds to the idea of proportional punishment too: you don't execute petty thieves because the specific loss in liberty [loss of a potentially productive life] would be more costly than the return of the punishment -- that is not counting the general loss in liberty due to compromise of principle.

Of course, "maximum safety" would probably be inferior as a definition to "maximum liberty" -- safety could be worked out as a criterion, because safety insures liberty.

All of this is probably unnecessarily elaborate for a 6 minute construction -- but why should the judge be necessarily hostile to the idea of maximum liberty?

le radical galoisien said...

On the other hand, an issue I've been trying to explore, but was never really a solid point in my contentions, was that laws could have a cultural effect beyond general deterrence. (This is not so much as particular to this resolution as particular to any resolution dealing with punishment, including the DP one.)

For example, the death penalty assigned to marijuana had a certain deterrence effect on me, even though I didn't fear the penalty itself, but rather, "oh, marijuana must be dangerous, people who traffick it must be dangerous ..."; mafia godfathers might smuggle heroin, bribe judges, put a hit out on Vinny, or perform other feats of quasi-mass-murder, but they might be loathe to rape their mothers, even if offered a substantial amount of money, even if they hated their mothers. They arguably don't have morals, yet too have been affected by the cultural idea that raping one's mother is repugnant.

Even if it doesn't deter a potential criminal culturally, it can stir others to actions that lead to a further discouragement indirectly. If you give the same punishment to a pot dealer as a rapist, then perhaps I might come to believe that pot dealers are as heinous as rapists -- as well as perhaps countless other people -- who will not associate with them (preventing the growth of pot-dealing) as well as providing an indirect deterrent to the criminal (ostracism sucks, ya know).

Ultimately, Faye, living a sheltered life in an international school, segregated from the rest of the population, may have not received the same cultural ideas as the rest of the population had. Like for example, at least in Singapore, the only time you vandalise someone's car is when you have a personal grudge with them, or you are a loanshark seeking collection of a debt.

The media frenzy over Faye reminded me of that Star Trek episode where Captain Picard tries to appeal to some planet's authorities who are sentencing Wesley to death for trespassing some boundary (if you know this episode) ... in the same light Singapore was portrayed as some exotic society with outlandish forms of justice. But this could be the same symptom of a very American trait of justice you know: a lot of the laws that hit national attention aren't enforced vigourously, but are used conveniently when a suspect cannot be convicted on other laws. Flip on a Law and Order episode. "We can't convict him on this, but to prevent him from walking free, let's try him on this...!" (You know that part where they threaten to invoke the three strikes rule on a rather minor felony [compared to murder] to induce a plea bargain.)

The vandalism law that prescribed caning was after all enacted mainly to deter communist graffiti -- not so much as the act of vandalism as a way to target communists (hence the harshness). Previous vandals were often convicted under something lighter -- but gee, if you're responsible for fifty acts of high-profile vandalism that have made the national news and have forced countless people to pay countless visits to countless body shops, maybe prosecutors want to pull a trick -- like a rarely-invoked law. (Because there was no law on online hate speech, the authorities prosecuted two racist bloggers using a Cold War era law on sedition instead.) In the end, isn't that so much like McDonalised American justice -- where who cares about the means, as long as I get my convictions, and get re-elected?

Jim Anderson said...

Indeed. There's a current case along similar lines, le radical, where a California man faces a murder charge because his fellow thieves were shot to death in a home invasion. Coming into play is an obscure law that's rarely enforced, the Provocative Act doctrine.

The political aspect, from what I have seen, is an underdeveloped area of this resolution, or any involving justice American-style. Prosecutors and judges in many jurisdictions are elected, as are attorneys-general. Certainly that has to affect the legitimacy of the process, especially when prosecutors are under pressure to "get tough."