plea bargaining sample case: retribution Aff

A sample affirmative shell for the current plea bargaining resolution.

Value Retributive Justice

As Dr. Tom O'Connor writes,

Retribution is a rationale for the existence and limits of law... [It] answers the question "why punish" by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law. Retributivism as a theory of punishment requires retribution as a rationale for law. A retributionist assumes that the law exists for a reason -- a moral reason. All crime, even victimless crime, involves a social harm -- a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land.

Criteria: Retribution must provide proportional punishment and appropriate moral censure.

As Richard Lippke writes in "Retributivism and Plea Bargaining," Criminal Justice Ethics,, New York: Summer 2006,

[L]egal punishment is to be understood as an institutionalized form of censure for conduct that is morally blameworthy. Criminal offenders, on this account, have not simply acted in ways that are socially disapproved of or contrary to their own interests, but have acted in ways that are morally unjustified. Either they have invaded the moral rights of others or have threatened or attempted to do so, or they have violated legal rules the enforcement of which usefully coordinate complex interactions among citizens or allocate access to scarce resources in ways that are fair. Legal punishment censures offenders' conduct by imposing losses or deprivations on them proportional to the seriousness of their offenses.

Contention One: Plea bargaining conflicts with proportionality. Again, from Lippke:

[T]he sentence ranges that retributivism supports are premised on the notion that a given type of crime may produce a range of harms, some of which are considerably worse than others, or exhibit different degrees of offender culpability. Yet negotiated pleas seem unlikely to yield sentences that are related in any very systematic way to such factors. Rather, they are more likely to reflect such things as the defense attorney's skill or experience, whether defendants are free on bail or not, or prosecutors' perceptions of the strength of the case against defendants or the political importance of securing their conviction. However, none of these factors, should, if we are concerned with the harm and culpability of offenses, determine the sentences that convicted offenders receive.

Contention Two: Plea bargaining conflicts with moral censure.

a. Haggling over sentences diminishing the meaning of censure. Lippke:

If one can get a knowledgeable, experienced, or well-connected defense lawyer, one can probably get a better deal.... The legal consequences of crime become a complex game of threats, offers, counteroffers, bluffing, and one-upmanship. In such a process, defendants have an interest in admitting as little guilt as possible. Add to this the fact that many socially deprived defendants will already have an external perspective on the criminal law. They will balk at regarding it as providing legitimate norms for their conduct, viewing it instead as merely presenting obstacles or threats to the satisfaction of their desires.... When such defendants do finally plead guilty before a judge after a deal has been reached with prosecutors, it will seem that they are simply playing their parts in a complicated charade that is encouraged and abetted by the criminal justice system.

b. Defendants should cooperate and take full responsibility, rather than negotiating a lesser charge.

It is no use responding to the preceding concern by arguing that some defendants negotiate pleas because they feel remorse for their crimes and wish to get on with their punishments. First, this will probably be true for only a subset of them. And for those of whom it is true, the obvious thing for them to do is to confess to all of their crimes and throw themselves on the mercy of the court, not negotiate over which ones they will be charged with or what sentences they will receive. A willingness to negotiate, or worse, an insistence that the prosecution negotiate, belies genuine remorse and a desire to embrace one's punishment as deserved.

There's much more that could be said, but this gets the gist across. Proceed to tear it apart, y'all.