hate crime enhancements and plea bargaining

Reading this Village Voice article on a particular hate crime negotiation, I was struck by an aspect of the law that I should have seen earlier. Hate crime enhancements, in certain circumstances, greatly increase the bargaining power of the prosecution. Which brings us right back to the plea bargaining debate.

LDers arguing the hate crime resolution should check out the article, which not only illuminates this issue, but provides a concrete example of the difficulty of defining the law's protected classes.

virtue ethics and plea bargaining

Most of the cases I've seen for the current plea bargaining resolution use either a retributivist or utilitarian justification for punishment. Is there another way to think about the state's role in correcting criminal action?

In "A Virtuous State Would Not Assign Correctional Housing Based on Ability to Pay," Bradley W. Moore writes,

Virtue ethics, also referred to as Aretaic theory, offers a viable alternative to deterrence and retributivism that better accounts for both the practical and aspirational purposes of punishment. The essence of virtue ethics is that the moral value of an action depends neither on its conformity to categorical moral rules, as in deontological theory, nor on the overall happiness that the action causes, as in consequentialist theory. Rather, the morality of an action depends on both the action’s character and on the moral agent’s disposition while performing the action. The central purpose of virtue ethics is to answer the question, “How should I live?” instead of the question, “What is the right action?” Virtue ethics’ answer is that a person should live in a way that cultivates the virtues necessary for human flourishing. A moral agent exercises virtue through practical reasoning; knowing the proper action depends on wisdom, deliberation, and moral judgment. In other words, a virtuous agent acts not just rightly, but for the right reasons....

If criminal law’s function in society is to promote virtue, then punishment is justified only if it facilitates the development of practical reason: the tendency and motivation to do the right act because one values the proper reasons for acting rightly. When a criminal makes an unvirtuous choice, punishment plays an educative role. Punishment does not act, however, as a deterrent—a person should choose the right action out of a desire to do so, not out of fear of sanction. A criminal offense constitutes a failure of practical reason: the perpetrator acted through the wrong means or for the wrong ends. However, virtuous punishment habituates the offender to form a desire to act rightly for the right reasons.

Therefore, practical reason should guide the state in deciding what punishment to impose. Imposing either excessive or overly merciful punishment would not be virtuous if it inhibits rather than promotes the development of practical reason in the offender. The state should also impose punishment only for the right reasons—the cultivation of virtue and the promotion of human flourishing. The correctness of the punishment depends on the practical wisdom present in the justice system as a whole. Individual judges exercise practical wisdom when they determine fault and punishment. Likewise, the policies of the state should be evaluated based on the extent to which they reflect practical wisdom and instill virtue.

You might argue, on the Aff, that PBET, by turning justice into a song-and-dance between prosecutors and defendants, and by eliminating the judge's role, devalues the educative role of the justice system. Likewise, from the Neg, you might argue that PBET shows that the criminal is willing to help society as a start to the rehabilitative process.

Either way, a case based on virtue ethics might be a breath of fresh air in the stale second month, when everyone's already heard everything about plea bargaining in exchange for testimony.

plea bargaining arguments: good, bad, ugly

Here's a place to post arguments or case ideas on the plea bargaining resolution that you've encountered in rounds, whether effective, useless, or just plain awful. As appropriate, list the value/criterion combo. (I should also note, if you're looking for more, much more, in the way of analysis, click the link above.)

Good
Sadly, I've watched so few rounds that I've yet to see something truly noteworthy.



Bad
"PBET is good because it helps preserve the right to a speedy trial." (Obvious comeback: sure, for one person. But only at the expense of another.)

"Justice is the administration of law. More administration of law = more justice."



Ugly
"If a prosecutor isn't out to commit harm, then why are they prosecuting?"

How not to win a CX exchange:

"My value is justice, which is deeper than the law, and presupposes the law. My criterion is attaining a legitimate result."

"What does 'legitimate' mean?"

"In accordance with law."

Please: never describe self-contradiction as "debater hypocrisy."

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.

utilitarianism and the plea bargaining resolution

I like the definition of a utilitarian justification of punishment given in Kathleen Moore's Pardons: Justice, Mercy, and the Public Interest. (The book is a useful introduction to retributivist reasons for pardoning criminals, and has much relevant information regarding the current resolution.) Her definition:

1. The state has the duty to achieve a specified object.
2. Laws are the instruments by which the state is to reach its object.
3. Infractions of the law frustrate the achievement of the object.
4. The state has the right to punish infractions of the law so far as this is necessary to achieve its object and within the limits established by the nature of its object.

The primary goal of the utilitarian view, Moore argues, is deterrence. For this reason,

A penal system that hopes to deter crime cannot tolerate exceptions. Punishment deters crime not only in criminals themselves, by reforming or disabling them, but in others as well, by setting an example. The first sort of deterrence, specific deterrence, is important. But, because it affects the actions of so many more people, the second sort of deterrence is proportionally more important.

Now we're at an interesting juncture. Does a plea bargain in exchange for testimony conflict with the second kind of deterrence? If so, under utilitarianism, we vote Aff.

If not, because of other utilitarian considerations, we vote Neg.

important "substantial assistance" statistics

Under section 5K1 of the United States Sentencing Guidelines, a defendant can receive an unrestricted downward departure in exchange for useful, truthful, reliable, and timely testimony against another defendant.*

In "Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack-Cocaine and Powder-Cocaine Cases," in the September 2007 edition of Justice Quarterly, Richard Hartley, Sean Maddan, and Cassia Spohn provide essential statistics on prevalence of the "substantial assistance" plea, information highly relevant to the current resolution. They write:

Data provided by the United States Sentencing Commission reveal that approximately 20 percent of all offenders sentenced nationwide receive departures for substantial assistance; for fiscal year 2002, the departure rate was 17.4 percent (United States Sentencing Commission, 2004, p. 51). However, the districts vary widely in the percentage of cases receiving substantial assistance departures, from a high of 46.3 percent in the Middle District of Alabama to a low of 5.2 percent in the District of Rhode Island (United States Sentencing Commission, 2004: table 26). There also is considerable variation in the departure rates for different types of offenses: 27.4 percent of the offenders convicted of drug trafficking received a substantial assistance departure, compared to only 17.8 percent of the offenders convicted of fraud, 14.9 percent of the offenders convicted of robbery, and 12.2 percent of the offenders convicted of firearms offenses (United States Sentencing Commission, 2004: table 27). The mean percentage discount in the sentence as a result of a departure for substantial assistance also varied for these types of offenses. The mean discount was 46.7 percent for drug trafficking, 99.8 percent for fraud, 35.1 percent for robbery, and 48.9 percent for firearms offenses; the discount for all offenses was 50 percent (United States Sentencing Commission, 2004: table 30).

The fact that substantial assistance departures are common, coupled with the fact that offenders receive a significant sentence discount as a result of this type of departure, suggests that critics' concerns about the reappearance of disparity and discrimination under the federal sentencing guidelines are not unfounded. These highly discretionary and largely unreviewable decisions (Maxfield & Kramer, 1998), which shift the locus of decision-making from the judge to the prosecutor, may reflect the influence of legally irrelevant factors such as the offender's race/ethnicity, sex, or socioeconomic status. As Secunda (1997, p. 1269) notes, "the unsurprising effect of the accumulation of unguided discretion [in departures for substantial assistance] may be the defeat of the principal purpose of the Guidelines: increased fairness and uniform sentencing for similarly situated offenders."

There's much more in the article, which I'll analyze in due time. Suffice it to say that some hard-to-find statistics are now readily available to the interested LDer.



*There are other considerations, too. Read the guidelines here.

the morality of plea bargaining

Below are some potential angles of attack for an Aff in the plea bargaining resolution. Negs should read, too, and consider potential responses.

In "The Morality of Copping a Plea," from Maclean's*, July 9-16, 2007, reporter Steve Maich turns to John Langbein, "professor of law and legal history at Yale, and an outspoken critic of the system," for thoughts.

"Plea bargaining works by threat, and it goes like this: Oh, you want to exercise your constitutional right to a jury trial? Please be our guest. But understand that if you exercise that right we will punish you much more severely,'" [Langbein] says. "In effect, that means we are punishing you twice. Once for what you did and once for having the temerity to exercise your right to face a jury."

To Langbein and other critics, the gap in sentences handed to those who co-operate with prosecutors, versus those who maintain their innocence and go to trial, illustrates a form of coercion that underlies practically every serious prosecution in Canada and the U.S. Perhaps the most famous example unfolded in the late 1970s, in the case of Paul Lewis Hayes, a small-time American fraudster and petty criminal. Hayes already had two felony convictions on his record when he was caught forging a cheque for US $88.00. Prosecutors told Hayes he would get a five-year prison term if he pleaded guilty, but if he chose to go to trial, he would he indicted under Kentucky's Habitual Criminal Act, which carried a mandatory sentence of life in prison....

"The problem is, many of the laws these people are being prosecuted under are vague, and are not understood to be breaches of the law. Then the prosecutor comes along and says, I'm going to press charges and put you in the slammer--and in the United States, because of our sentencing savagery in such cases, that means forever and ever unless, that is, you agree to incriminate yourself and whoever it is I really want to nail--whether that's Ken Lay or Jeff Skilling or whoever." Both Canada and the United States are based on a legal tradition that envisions a jury of lay people as a check against potential abuses of power by the state. But plea bargaining concentrates all of that power into the hands of individuals who are, in the U.S., politicians, and in Canada, civil servants.

"What it does is defeat the age-old wisdom that led us to divide the charging and investigative function on one hand from our determinative and sentencing functions," Langbein says. "What's happened is the prosecutor has combined all those functions in one set of hands: he is the investigative officer, the prosecutorial officer, the determinative officer and the sentencing officer." Police, judge and jury in one incredibly powerful office.

When citing the article, be careful to distinguish Langbein's words from the reporter's commentary, which may carry less weight.



*Maclean's is a Canadian magazine, but since Canada's plea bargaining system is similar to the U.S.'s, and the article quotes an American legal scholar, the information is highly relevant to the debate over the current resolution.

conviction trends

For those interested in the current resolution, some interesting trends in felony convictions in state courts, from the Justice Department's statistics:

For every 100 persons arrested for a violent felony in 1994, an estimated 23 were convicted. In 2004, the rate was 31 persons convicted for every 100 persons arrested....

The average sentence length to State prison for a violent felony declined between 1994 and 2004(from 10 years to 71/2 years). However, felons sentenced for a violent felony in 2004 were more likely than those sentenced in 1994 to serve a larger proportion of their sentence before release.

However, only 69% of convictions in murder cases are secured through a plea bargain.

Also, according to the DOJ, 95% of federal convictions are secured through a plea bargain. (The percentage of those garnered through cooperation agreements is unknown to me; I'm searching through data, but haven't found anything good yet.)

"myths and illusions" of cooperation agreements

Here's an important and ground-level discussion of federal sentencing guidelines as they relate to cooperation agreements [pdf].

The authors lay out some interesting facts. Concerning "downward departure," or the reduction in sentence for cooperation, which is made independent of federal guidelines, as the law permits:

Approximately 35% of all federal criminal defendants receive a downward departure for providing substantial assistance and over 26% of those involved in drug trafficking offenses receive a downward departure for providing substantial assistance. Many more try to cut a deal, but the information they offered was either useless or already known to the government. Considering the fact that the average departure for substantial assistance in drug cases is 36 months from the applicable guideline range it is safe to assume that most drug trafficking defendants who received a §5K1 departure still ended up with a substantial prison sentence.

The decision to cooperate is often rushed:

Unfortunately the “window of opportunity” for truly ‘substantial” cooperation is often closed quickly and these decisions must be made rather quickly.

One form of cooperation agreement leads to a WITSEC, or Witness Security, program of imprisonment:

WITSEC involves long stays in Protective Custody meaning the SHU or Segregated Housing Unit, also known as the Hole. Being in PC is not a way to spend your time if it is at all possible. For the most part, you spend your time in the SHU and are treated as a high security risk with a disciplinary problem. You are locked down 23 hours a day and have very limited contact with anyone. In other words, regardless of the reason why you are in the SHU the corrections officers pretty much treat you all the same: As if you are a degenerate, violent criminal with a disciplinary problem. PC is no way to bid and in my experience “SHU time” was the toughest part of my sentence.

PC, or protective custody, can turn out to be a worse punishment than normal incarceration. Also, the plea bargain is a guarantee of nothing:

Regardless of the amount of time called for in the Sentencing Guidelines for a defendants’ particular crime, criminal history, adjustments etc, the court is free to grant as much or as a little a departure as it chooses. By law, the court must consider the factors enumerated in USSG §5K1 but once it does so it is free to grant a departure significantly below the purported mandatory minimums or required under the applicable guideline level.

Those considering the justice of plea bargaining in exchange for testimony are highly advised to read and understand the implications of the system, especially as outlined in Section 5K1 of the US Sentencing Guidelines--and consider how it affects defendants who have "come clean" and are willing to cooperate. Even they aren't always served fairly.

McJustice and plea bargaining

Robert M. Bohm, in "'McJustice': On the McDonaldization of Criminal Justice," found in Justice Quarterly, March 2006, describes and analyzes claims that the American justice system values efficiency, bureaucracy, control, and predictability over justice. Much like we want our food fast, and don't care about its nutrition, so we want our justice fast, never mind the losses.

How is plea bargaining implicated in the "McDonaldization" of justice?

Uncertainty is a characteristic of all criminal trials because neither the duration of the trial, which may be a matter of minutes or of months, nor the outcome of the trial can ever be predicted with any degree of accuracy. Plea bargaining eliminates those two areas of uncertainty by eliminating the need for a trial. Plea bargaining serves the interests of prosecutors by guaranteeing them high conviction rates, which is an indicator of job performance and a useful tool in the quest for higher political office. It serves the interests of judges by reducing their court caseloads, allowing more time to be spent on more difficult cases....

Plea bargaining serves the interests of criminal defense attorneys by allowing them to spend less time on each case. It also allows them to avoid trials. Trials are relatively expensive events. Because most criminal defendants are poor, they are usually unable to pay a large legal fee. Thus, when criminal defense attorneys go to trial, they are frequently unable to recoup all of their expenses. Plea bargaining provides many criminal defense attorneys with the more profitable option of charging smaller fees for lesser services and handling a larger volume of cases. Even most criminal defendants are served by plea bargaining. A guilty plea generally results in either no prison sentence or a lesser prison sentence than the defendant might receive if found guilty at trial. Plea bargaining also often allows defendants to escape conviction of socially stigmatizing crimes, such as child abuse. By "copping" a plea to assault rather than to statutory rape, for example, a defendant can avoid the embarrassing publicity of a trial and the wrath of fellow inmates or of society in general. In sum, there is no question that plea bargaining has many advantages, including making the administration of justice more efficient....

In general, then, process and product override principle. Smart affirmatives will look for ways in which the reasons for bargaining given above conflict with principles of justice.

The purported benefits aren't cost-free, either. Indigent defendants are pressured into decisions they mightnot have made, had better counsel been available, and habitual offenders, faced with teh threat of "three strikes" laws, have to plead to avoid mandatory life sentences, even for minor crimes. Most salient to the current resolution, though, are the other ill effects of plea bargaining:

Crime victims are another group whose interests are not always served by plea bargaining, and their plight illustrates further the process's irrationality. Long ignored in the adjudication of crimes committed against them, victims often feel "revictimized" by the deals that prosecutors offer offenders and believe they have been denied the full measure of justice they seek and deserve.

Another problem with plea bargaining is that it precludes the possibility of any further judicial examination of earlier stages of the process. In other words, with the acceptance of a guilty plea, there is no longer any chance that police or prosecutorial errors before trial will be detected.

That's a possibility I hadn't yet considered, and one the Neg should be forced to address.

the risks of plea bargaining in exchange for testimony

Want an Affirmative that will make the Neg's head spin? Argue that, according to the current resolution, plea bargaining in exchange for testimony is unjust--because it is unfair to the defendant who enters the plea.

In "Beyond the bright line: A contemporary right-to-counsel doctrine," in the Northwestern University Law Review, Summer 2003, Pamela Metzger describes a federal system that slants cooperation agreements against defendants, analyzing American practice under the 6th amendment.

Unlike other plea agreements, a cooperation agreement only requires the prosecution to make vague and largely unenforceable promises about sentence outcomes. The defendant promises to provide complete and truthful information. The defendant also agrees to disclose all past criminal activities. Further, the defendant agrees to testify in grand jury or trial proceedings and, when asked, to participate in monitored telephone conversations or engage in other surveillance-type activities, such as wearing a wire. The agreement also requires the defendant to agree to postpone his sentence until his cooperation is deemed complete.

In exchange, the government makes only one promise: if the defendant provides substantial assistance in the investigation and prosecution of another individual, the prosecution will make a motion to the sentencing judge for a reduction of the defendant's sentence. Several caveats, and even an explicit threat, accompany this promise. First and foremost, the government is to be the sole judge of whether the defendant has truthfully and completely cooperated. The decision as to whether the cooperation rises to the level of substantial assistance will be left to the sole discretion of the prosecutor's office. Often a cooperation agreement does not specify the extent of the departure the government will request. And, even if it did, that request would not be binding upon the sentencing court. Finally, if the defendant fails to perform under the terms of the agreement, the prosecutor's office retains the right to use the defendant's statements against him at a subsequent prosecution for false statements.

Ultimately, the cooperation agreement is a gamble, in which the defendant assumes the risk. The parties expect the defendant's sentence to be tempered by the court's eventual ruling. But, if the cooperation comes to naught, or if the government deems the defendant's cooperation insubstantial, a defendant has no right to withdraw his plea, and he suffers the full penalties prescribed by law. The prosecutor's exclusive determination of whether the defendant has provided substantial assistance is unassailable unless the defendant can show that the government withheld the promised motion for unconstitutional reasons.

These problems are magnified in the practice of "pre-charge bargaining."

Pre-charge bargaining in the federal system has an extra dimension that adds to its importance in determining outcomes: cooperation with law enforcement.... A defendant who cooperates with authorities after all of his coconspirators have already cooperated or pled guilty does not provide substantial assistance, regardless of his candor in confessing and naming names. As a result, many defense attorneys advise their clients to provide substantial assistance before formal adversary proceedings have begun so that they can win the race to the courthouse door.

An agreement to cooperate requires delicate negotiations. The process moves forward through a series of "auditions" that test the likelihood of the defendant's successful performance. Successful cooperation generally requires the defendant to "provide truthful, complete and accurate information" to the government. In exchange, the government agrees to file a motion asking the district court to reduce the defendant's sentence so long as the defendant provides substantial assistance....

Moreover, cooperation and full disclosure carry sentencing risks, risks that may be hidden from the unrepresented individual. For example, because guidelines sentences are based upon "relevant conduct," a candid admission by a cooperator may form the basis for a severe sentencing enhancement. In negotiated cooperation, many defense attorneys obtain for their clients a cooperation agreement that limits the ways in which the government can use information volunteered by the defendant as part of his cooperation. Absent such an agreement, sentence-enhancing information provided by a defendant can and will be used to calculate his guidelines range. With or without counsel, despite their strong motivation to reduce their sentences, cooperating defendants struggle to give candid responses to government questioning. The risks inherent in any cooperation debriefing are exacerbated when a defendant is unprepared for the proffer and lacks experienced counsel to assist him. The government's questions may confuse a cooperator who may be too nervous or too unsophisticated to understand what information the government is seeking. Intimidated by the interview process, a cooperator may not always focus on his best interests; after all, the uncounselled defendant knows only that the government, which arrested him (or has threatened to do so), is now asking him to answer incriminating questions. The cooperating defendant has a complex and confusing relationship with prosecutors and law enforcement. On the one hand, the government seems to be offering him a place, of sorts, on the government team. On the other hand, the defendant and the government have fundamentally adverse interests and, if negotiations break down, the government can withdraw its promised help and protection. In that event, litigation about those failed negotiations will pit the unrepresented defendant against the full weight of the government: it will be his word against the word of prosecutors and law enforcement.

Under the critical stage doctrine, the right to counsel attaches only "at or after the initiation of judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Therefore, by definition, pre-charge bargaining occurs prior to the time when the right to counsel attaches under the Kirby rule. However, the modern machinery of criminal prosecution is so finely developed that it is often "a mere formality" that the government has yet to indict a defendant. Pre-indictment negotiations are increasingly common; yet, the rigid critical stage doctrine means that there is a blanket rule that no right to counsel inheres in these proceedings no matter how concretely adversary they really are.

With a value of justice and a criterion including due process, an affirmative could show that the risks, especially under charge bargaining, mean that defendants who do "make good" and cooperate can still face full punishment, even though they deserve better treatment for their cooperation and admission of guilt. Basically, this pre-turns any Neg case claiming that plea bargaining is just because testifying defendants merit less punishment.

Your thoughts, as always, are welcome.

a Texas judge talks about plea bargaining

For an interesting real-world perspective on issues raised by the current resolution, check out PBS's interview with Judge Michael McSpadden. Some highlights:

What is your role in a plea bargain?
Oversee it, supervise, and make sure that it's within the bounds of our community, what our community expects that plea bargain to be.

I can either accept or reject any plea bargain. If the plea bargain is made, the court's responsibility during the admonishments or in the litany of warnings -- I make sure that that defendant who is pleading guilty or pleading no contest is doing so in an intelligent, voluntary manner, so that he knows exactly what he's doing....

But plea bargains are not transparent in terms of getting at the truth of what happened.
In the great majority of the cases, they want to plead. They know they're guilty. They know they've got the goods on them, so they're trying to make out the best deal they can possibly make. That's the great majority of cases we deal with.

You certainly have to understand that plea bargaining only works if you have experienced competent defense attorneys, experienced competent prosecutors, and a judge who will oversee, make sure this is done correctly. The human element will always [need] be there in order for the plea bargaining system to work properly....

What about times when innocent people plead guilty?
All I can do when I go out there is go through the admonishments. If I feel that anyone's qualifying in their response, [I say], "Are you pleading guilty because you are guilty?" There's a long hesitation, and they'll say, "No, Judge, I really just feel like I have to," I'm not going to take that plea; we're going to set up a trial. As simple as that. If at any time during the litany of admonishments that I give out there, if I in any way perceive this person pleading guilty because of other reasons than being guilty, I'm not going to take the plea. We're going to automatically set up a trial....

But the plea is the easier way for the defense attorney.
A lot of times, the retained attorney gets more for going to trial. They're paid more. So they're going to want a jury trial rather than a plea at times....

The whole thing is worth perusing.

defining justice in the plea bargaining resolution

The resolution states:

Resolved: In the United States, plea bargaining in exchange for testimony is unjust.

Thus, it's essential to define justice, which I've started elsewhere. Now, I'm going to start collecting professional, philosophically credible definitions. (Add your own, too, in the comments.)

Justice is equal legal liberty for all.
In "Retribution: The Central Aim of Punishment," in the Harvard Journal of Law and Public Policy Fall 2003, Gerard Bradley writes,

[J]ustice requires individuals to accept the pattern of liberty and restraint specified by political authorities. By accepting the established apparatus of political society and by observing its requirements, legal liberty for all is equalized.

Crime attacks justice for the entire community, Bradley writes:

The central wrong in crime, therefore, is not that a criminal causes harm to a specific individual, but that the criminal unfairly usurps liberty…. The criminal’s act of usurpation is equally unfair to everyone else, in that he has gained an undue advantage over those who remain inside the legally required pattern of restraint. Depriving the criminal of this ill-gotten advantage is therefore the central focus of punishment…. The goal of punishment, in short, is the undoing of the criminal’s bold and unjust assertion of his own will. Punishment assures society both that crime does not pay and that observing the law is important; by doing so, it restores fundamental fairness and equality.

When combined with Lippke's analysis, Bradley's definition of justice (as a value) and retribution (as a criterion) forms the framework for a powerful case.

plea bargaining sample case: due process Neg

Value: Justice
Inherent in the resolution. (Come up with your own explanation.)

Criterion: Due Process
Since the resolution concerns a formal legal procedure "in the United States," we must consider justice in an American legal framework. "Due process" is the right guaranteed under the 14th amendment to the Constitution, and is the way we best ensure justice has been done. It isn't perfect, but no human system can be. Due process is approaches closest to the asymptote of justice. (If you use that, you'd better quote me.)

C1. Plea bargaining is its own form of due process.
In "Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking," in Law & Society Review, Vol. 30, No. 2. (1996), Debra Emmelman writes,

Viewed as a component of recursive decisionmaking, plea
bargaining can be seen as including multiple episodes of negotiating behavior as well as a wide range of litigation proceedings. Perhaps most important, plea bargaining and trial can actually be seen to converge: not only are plea bargain negotiations "rehearsals of scenes that participants would be willing to portray before a jury" (Maynard 1984b:114), but pretrial and trial proceedings are oftentimes precursors for case settlement.

C2. Plea bargaining restores balance to a process that presumes innocence.
Emmelman again:

It is important to note here McConville's (1986) contention that trials do not guarantee that truth (or perhaps justice) will prevail. Insofar as adversarial procedures do not guarantee that the guilty will be convicted or the innocent set free, and because our judicial system holds that defendants should be given the benefit of doubt (i.e., presumed innocent until proven guilty), it seems this type of plea bargaining system can ensure justice as much or more than trials.

C3. Specifically, plea bargaining in exchange for testimony further expedites due process.
Not only does one defendant admit culpability and face sentencing, but promises to provide testimony to convict another, permitting either the facilitation of a trial or further incentive for the second defendant to enter a guilty plea.

This is a "trial balloon." Your comments and criticism are welcomed.

Update: In order to halt the spread of misinformation, I deleted a couple of my comments that repeated an incorrect statistic. It screws up the comment thread, but you can still get the gist.

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.

the Superman analysis of the plea bargaining resolution

Let's look at the resolution:

Resolved: In the United States, plea bargaining in exchange for testimony is unjust.

Essentially, this resolution pits Superman's values against each other. After all, Superman fights for "Truth, Justice, and the Serial Comma American Way."

Truth
Why do we encourage felons to rat on each other? Because we want to know the truth. The truth is our instrument to attain justice, in some cases, or to find closure, in others. Yet this resolution wants us to focus on...

Justice
For reasons expressed elsewhere, plea bargaining in exchange for testimony can advance or hinder the search for justice. It partly becomes a matter of perspective: victims will have quite different justice criteria than the state.

The American Way
The resolution gives us a uniquely American context. As Richard Lippke writes in "Retributivism and Plea Bargaining," in Criminal Justice Ethics, Summer 2006:

Prosecutors in the United States have considerably more discretion in reaching plea bargaining agreements than their counterparts in some European countries. In particular, United States prosecutors can levy or drop charges against defendants with relatively little scrutiny by the courts. This gives them enormous leverage in negotiating pleas, leverage that it seems clear some of them abuse in various ways. Though agreements reached by United States prosecutors might have to be approved by a judge, judicial scrutiny of plea agreements is often perfunctory.

The American context also includes unique legal rights and moral attitudes. If something is unjust "in the United States," it runs contrary to American ideals--but where are those found? In the Constitution alone? In the bulk of federal law? In competing state ordinances? In popular perception? Both sides have a burden to define "justice" so that Superman would find it worth fighting for.*



*(From the Neg's perspective, as long as he's willing to de-prioritize the fight for truth.)

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.)

In the United States, plea bargaining in exchange for testimony is unjust: the November-December Lincoln-Douglas resolution

At long last, the November-December resolution has arrived.

Resolved: In the United States, plea bargaining in exchange for testimony is unjust.

Analysis, links, observations, rants, discussions, and controversies. This is the first resolution we take into competition, so I'm pretty excited about it. LDers, watch this space--and be sure to join in the conversation. (Update 11/11: here's a place to post arguments you hear in rounds.)

Update 12/1: The January-February nuclear weapons resolution is now available.

Crucial Definitions
This resolution is surprisingly simple. On the aff, define "plea bargaining," explain how the resolution limits it to exchanges for testimony, and define justice, probably as your value. On the neg, I'd imagine most definitions of "plea bargaining" would be fairly non-contentious. "Justice" will be the major sticking point.

Useful Search Terms
plea bargaining
justice
due process
sentencing guidelines
speedy trial
Sixth Amendment
prosecutorial discretion
substantial assistance
downward departure

Potential Values
Aff: Justice. Criteria: due process, right to a fair trial, the rule of law

Neg: Justice. Criteria: retribution, due process, equal treatment under the law, the rule of law.... Hmm... what would Kant say?

Update: I go over some initial reasons plea bargaining in exchange for testimony can be considered unjust. I also point out some things to consider when copping a plea.

Update 10/2: I somehow connect the resolution and Superman. Also, e-note's intro to plea bargaining is a clear and useful explanation. When you're ready, check out the federal sentencing guidelines related to plea bargaining.

Update 10/3: A sample affirmative case--a retribution case--for your critique.

Update 10/4 Now, a sample Neg structure focused on due process.

Update 10/10: Defining justice the professional way.

Update 10/13: Blog neighbor Josh applies Foucault to the resolution. And, for free, a Foucault analysis by Nancy J. Holland in ""Truth as Force": Michel Foucault on Religion, State Power, and the Law," from the Journal of Law and Religion, Vol. 18, No. 1. (2002 - 2003):

In this age of plea bargaining, and the often public displays of remorse it sometimes involves, we can see an intriguing confluence of an earlier (and unfortunately often ritual) insistence on the congruence between human and divine law (to knowingly punish the innocent for any reason remains, in the political ideology of the United States, unthinkable), the incorporation of psychotherapeutic practices (e.g., the cathartic effect of taking responsibility for one's actions) into the legal process, and something very much like exomologesis, both in the role that those harmed by the defendant now play in sentencing procedures and in the almost ritual display of leg irons and chains in some jurisdiction.

In other words, plea bargaining is a form of ritualized confession. Ah, but is it good for the soul?

Update 10/15: A Texas judge offers an insider's perspective on plea bargaining.

Update 10/18: I show an affirmative argument that "pre-turns" an important Neg claim.

Update 10/19: Here's an older post on some issues related to using the criterion in Lincoln-Douglas debate.

Update 10/21: For beginners (or for anyone, really): a handy guide to moral theories [pdf].

Update 10/23: A look at the "McDonaldization" of justice, and the role of plea bargaining in the process, with implications for Aff and Neg.

Update 10/25: A closer look at federal sentencing guidelines, which play an important role in the putative justice or injustice of plea bargaining in the United States. (If you haven't studied up on USSG 5K1, this is a must-read.)

Update 10/28: I note some trends in state court felony conviction rates. I also provide some evidence regarding the morality of plea bargaining.

Update 11/2: Another must-read: crucial statistics on "substantial assistance" pleas, which cover many (if not most) PBET scenarios.

Update 11/6: I show how utilitarianism might work on the Aff.

Update 11/8: What role does discrimination play? I look at some statistics.

Update 11/26: After a holiday hiatus, I'm back with a new criterion for a case: virtue ethics.