Nov 8, 2007

discrimination and plea bargaining in exchange for testimony

Regarding the current resolution, the Aff might claim that racial, ethnic, gender, and even geographic differences in "downward departures" create an unjust disparity in the process of plea bargaining in exchange for testimony.

Studying the results of the US Sentencing Guidelines, particularly as they relate to "substantial assistance" pleas, Albert W Alschuler, in "Disparity: The Normative and Empirical Failure of the Federal Guidelines," in Stanford Law Review, Oct. 2005, writes,
The racial gap in federal sentences cannot entirely be explained by the 1-to-100 crack/powder ratio and other legally relevant variables... [P]rosecutors seek "substantial assistance" departures for blacks and Latinos less a often than for whites, and this disparity persists when researchers do their best to control for legally relevant variables. The disparity in substantial assistance departures may reflect the lesser ability of blacks and Latinos to provide information useful to prosecutors, the greater reluctance of blacks and Latinos to provide this information (because of their greater loyalty to co-offenders or their greater fear of reprisals), or the prosecutors' racial favoritism. When minority defendants do receive substantial assistance departures, the departures they receive are smaller than those received by whites....

A gender gap in federal sentences preceded the Guidelines. The time served by men in federal prisons before the Guidelines exceeded that served by women by about nine months or 50%. In the years since the Guidelines were implemented, the gender gap has grown. The time served by men increased 96% after the Guidelines while that served by women increased 75%. Men now serve 51 months on average and women 28.87 The previous nine-month gender gap has grown to 23 months.

Unlike the growing racial gap in federal sentences, the increasing gender gap cannot be largely explained by statutory innovations like the crack/powder disparity or other legally relevant variables. The Sentencing Commission reported that, after controlling for relevant variables, men were twice as likely to be imprisoned for drug crimes as women. Prison sentences in drug cases and other cases were twenty-five to thirty percent longer for men. Women received more substantial downward departures.
Furthermore, more generally, pleas vary across federal districts.
When a prosecutor seeks a substantial assistance departure, the bottom is the limit. No statute or guideline constrains the extent of the defendant's reward. Departures for substantial assistance occur in about 17% of all cases and other departures in about 18% more. Substantial assistance departures, however, are larger and account for twice as much variation in federal sentences (4.4% of all variation versus 2.2%).
The frequency of substantial assistance departures varies greatly from one district to the next. Jeffery T. Ulmer concurs. In "The Localized Uses of Federal Sentencing Guidelines in Four U.S. District Courts: Evidence of Processual Order," found in Symbolic Interaction, Vol. 28, Issue 2, 2005, he writes,
The size of substantial assistance departures varied between districts (as both the qualitative and quantitative data showed), and more interestingly, the definition of “substantial assistance to law enforcement” varied markedly between districts. Northland and Northeast Districts had relatively broad and liberal definitions of what constituted substantial assistance, and in both districts, the substantial assistance provision of the guidelines was used to both generate useful information for future prosecutions and ameliorate guideline sentences seen as too harsh. On the other hand, Western District had a much more restrictive definition of substantial assistance.
Are these differences unjust? That's for an Aff to argue--and for a Neg to rebut.


wstrinz said...

In all of the rounds I've come up against this in, Aff is unable to respond to the argument that discrimination is either 1.) simply a problem with the justice system, and not plea bargaining specifically, or 2.) the groups who are discriminated against either have less information just because they do, or because society itself is often racist and excludes them from having the information.

I'm sure there's a deeper argument to be reached here, but I've never seen it come to anything by the time 2AR rolls around.

Jim Anderson said...

1. Though discrimination is a problem in society and the justice system as a whole, it is uniquely amplified in the process of PBET for two reasons: prosecutors have too much power because of their ability to set the terms of the bargain, with little judicial oversight, and defendants, especially in pre-charge bargaining, are often under-represented, as I've pointed out elsewhere.

2. The lack of information may be a reason--but does not explain the geographic disparity. (I also added evidence above that I didn't have time to post last night.) This Aff argument might work especially well against an ends-based Neg.

Anonymous said...

Everyone will use a value of justice. Therefore, your criterion in agruementation should be abstract as follows:

aff against neg: the judicial system would completely collapse if plea bargaining did not exist (money spent in trial to pay lawyers, judges, jury and so forth...)but in reference to the resolution i agrue that it would not because through my criterion, in achievance of my value:justice, aff has to abolish plea bargaining only when it is exchanged for testimony

neg against aff: if neg can prove that statistics can uphold the arguement that the whole judicial system would collapse without plea bargaining then neg wins, neg has an advantage to aff1

Anonymous said...

wher do you get your evidence, my debate coach told me to find it online, but i could only find this website????!!!!


Jim Anderson said...

anonymous #2, you're going to have a tough time proving that the judicial system would collapse without PBET. PB in general, maybe, but PBET is a small subset--maybe 20% of plea bargains. There are stats here.

anonymous #2, does your school library have access to ProQuest? I find it extremely useful for statistics and such, using the key terms I provided on my main PBET site.