Oct 3, 2007

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.

25 comments:

Anonymous said...

oh mr anderson you and your smart debate stuff haha this was amazing by the way.

Anonymous said...

OK here goes nothing

First i am going to start out with an arg i have been toying with:
When the resolution states Plea Bargining in return for a testimony we can assume that plea bargining by itself is just. If it was the intent to be on just plea bargining then there would be no IN RETURN FOR. this means if justice is based on retribution then plea bargining would be a proportional punishment and since IN RETURN FOR does not change the proportionality there is no way to affirm on this ground

Now less theory:
In the USA our laws are based on the constitution. This puts this AFF case in a double bind for one of two reasons:
1.If the constitution is not based on retribution then we can have no govermental legitamacy by affirming thus there is no effective agent to uphold Justice in the US
2.If the constitution is based on retribution the supreme court has already ruled in favor of Plea Bargining in Bordenkircher v. Hayes and we have to respect the supreme courts decision because if we dont the constitution can not be changed depending on current events and all amendments would be invalidated thus making the US GOVT have no Legitamacy which is a prerequisite to upholding justice in any country where the Justice system is controled by the govt.

That is the OVERVIEW more in a bit

Anonymous said...

o im the second guy and if u want to know who i am im STJ NG

im going to these tournies
MinneApple
Glenbrooks
Harvard
Woodward (Thats right im a 2nd year debater)

A bunch of in state tournaments (Alabama)

TOC (I wish)
NATIONALS (I hope)

I SPEED DO U SPEED WE ALL SPEED

Jim Anderson said...

anonymous,

Some interesting ideas. I see one problem: "In exchange for" (not "RETURN FOR") definitely limits the resolution. However, why/how would it mean that "plea bargaining by itself" is just? The aff doesn't have to defend plea bargaining per se, and can even attack plea bargaining in all forms, as long as the arguments are equally applicable to PBET. If they aren't, then the debater who offers them is simply nontopical.

Anonymous said...

"Retributivism apparently speaks only to the criminal law's design, and not to its implementation. Retributive theory seems to say nothing about how to make the tradeoffs and compromises necessary to "do" criminal justice in the real world, whose inevitable resource constraints and other limitations prevent the system from imposing the full deserved punishment on every offender."
So wouldn't imposing retributiveness hinder the law-implementing process rather than help it? how would that be just?

...i might be completely wrong, i haven't finished reading the contentions

Jim Anderson said...

anonymous,

Nice quote--from Cahill, I see.

Without going into detail, I'd respond by declaring a difference between justification and application. Whether retributivist schemes are difficult to implement in the "real world" is a side concern. Whether we are justified in pursuing retributive aims is the primary question.

A second problem: what potential theory of justice wouldn't also suffer from similar real-world application problems?

Jim Anderson said...

I should also point out that Cahill advocates "Consequentialist-Retributivism," which he thinks largely overcomes the practical disadvantages of classical retributivism. If I saw someone stop with the quote cited, as a judge, I'd dock them for cherry-picking.

Anonymous said...

please help me. can you give me some tips on how to debate, get my recources etc. this is my first year in debate. Im doing an AFF and a Neg. i ust dont get it at all please help.

Anonymous said...

i was wondering where you would find the full-text of the Richard Lippke article that you quoted in the contentions, thanks.

Jim Anderson said...

It's on ProQuest, if your school has access. (If it doesn't, a local university or public library probably does.)

Anonymous said...

Whether we are justified in pursuing retributive aims is the primary question.

if the implementation isnt just (or as just as humanly possible)then why determine if im justified in pursuing it?
like: lets assume that justice is giving everyone a piece of candy (obviously not), but if many gets cavities, that has a negative impact, therefore, can we still deem that as just? seeing that im trying to pursue justice?

Jim Anderson said...

anonymous, You'd first have to demonstrate that retribution is in fact harmful in implementation. Then you'd have to show why that harm was either unnecessary or undeserved--making it unjust, and not just unfortunate.

Also, you have to show why whatever alternate scheme you might proffer avoids a similar fate--in other words, why retribution would be uniquely harmful.

*RED* said...

Wow, i actually used that case (before i read this blog), but instead of using the word reribution I used the proportionality, same thing so w/e. I'm also going to the Harvard tounry. Someone brought up the fact of that PB would already be just. Then really we are debating a utopian society, but thats obviously not right. Well w/e. For my aff, im using Constitutional Rights.

*RED* said...

lol, typo, that should say for my Neg(at the bottom of my post)

Cya all

Anonymous said...

hey all.......well i was working on my aff case, and i am using the value retributive justice..my opponent might say, retributism is same as vengeance. how can i argue against that....is it good to use retributive justice for my aff?.and the criterion is proportionality.....
thankyou...

Jim Anderson said...

My immediate thought: well, what's wrong with vengeance?

However, if you want to distinguish between retributivism and vengeance, it's simple: retribution is carried out by the state, through due process, because, as Lippke explains above, crime is an offense against morality.

Vengeance is individual, and involves no due process. Any attempt to equate the two, you could argue, is sophistry.

Anonymous said...

so retributivism is based on morality.....should i give definiton of morality for my case...its my value, is it necessary? ....
thankyou...

Jim Anderson said...

"Morality," after most dictionary definitions, would be something like "principles of right conduct." As our society goes, our most widely shared moral rules are expressed in the law, thus linking retributivism and justice.

Anonymous said...

can u give me a site where i can find about proportionality and plea bargaining?

Juan Tomas said...

It would also be nice to show a little more of your reasoning in your contentions instead of that of lipke

just a thought to show a judge that you are more knowledgable with the subject

Jim Anderson said...

juan tomas, I would certainly hope so. That's why it's a shell--for idea purposes only. Thanks for stopping by!

Anonymous said...

What is moral censure?

Jim Anderson said...

anonymous, it's a very public condemnation of an activity. The state, via the court, says to the criminal, "What you have done is wrong." It is the communicative purpose of retribution, respecting the criminal's agency and moral standing.

Anonymous said...

Jim...

First off, thanks for all the help you provide all of us

My question is how, as a neg, you would attack the whole retributivism and the punishment must equal the crime arguement... i know im going to say something along the lines of how its not not just to value the punishment of the individual over the greater societal welfare but i was wondering if you could help me expand upon it?

Jim Anderson said...

anonymous, good question. There are several ways to attack retributivism.

One is to argue that, like you say, societal welfare outweighs individual outcomes.

Another is to say that some other value--such as rehabilitation, deterrence, restoration, rights of the accused, etc.--outweighs it. (How this would work would depend on your criterion.)

A third way is to attack the concept: at some point proportionality breaks down. If our ultimate sentence, say, is the death penalty, then someone who murders 10 people gets the same punishment as someone who murders 1. (This would lead into #2 above.) Or maybe, as some argue, retribution leads to a society based on vengeance.

A fourth way is to show that retributivism isn't incompatible with PBET. By helping a police investigation or prosecution, the defendant shows they have learned and appreciate the moral seriousness of their crime, which is the purpose of retribution. Furthermore, they have attempted to redress the rights they have taken from society (and sophisticated retributivism, like Lippke's, takes that tack) by giving something back to society. That'd go right along with your case.