Neg – Abolish Plea Bargaining Potent Speaking 1 of 20

Neg – Abolish Plea BargainingPotent Speaking

Strategy Notes..............................................................................2Rhetoric Sheet..............................................................................3

1NC..........................................................................................................................................32NC..........................................................................................................................................4

Cross-Examination.........................................................................6Openers........................................................................................7

1. Plea negotiations are as vital to the system as breathing and eating…..................................72. No incentive to not go to trial if you get the same sentence, resulting in clogged courts.......7

A/T Harms.....................................................................................8A/T Constitutionality/Founder’s intent.....................................................................................8

1. (Logic) Responses to constitutionality/founder’s intent...........................................................82. A/T Tim Lynch: believes system should change to accommodate lack of plea bargains.........83. History: Plea Bargaining emerged in response to increasing crime rates................................94. Founder’s idea of a fair trial is very different from ours..........................................................9

A/T Punishment for exercising rights.......................................................................................95. It’s not a punishment for exercising rights, it’s an offer of leniency if they plea guilty...........9

A/T Innocents pressured into confessing...............................................................................106. Turn: convicting innocents is likely easier in a no-bargaining world......................................107. Many judges try to avoid innocent guilty pleas with precautions..........................................10

Solvency – Practice goes underground..........................................11UK example...........................................................................................................................11

8. Plea bargaining supported in UK despite being illegal – happens under the table................11US Examples..........................................................................................................................11

9. El Paso: Despite plea bargaining ban, disparity in sentences remained................................1110. Alaska: 56-60% of convicted defendants plea bargained despite ban................................12

DA – Judicial system crashes........................................................1311. If those charged with crimes all went to trial, the system would crash...............................1312. Chief Justice Warren Berger: 10% reduction in plea deals = double the cases...................1313. American criminal trials are the most expensive and time consuming of the world............13

A/T plea bargaining abolishment experiments......................................................................1414. Efforts to simply ban most plea bargains have repeatedly failed........................................1415. Alaska’s “success” can’t transfer to metropolitan areas, Texas got flooded with trials.......1416. A/T Alaska: Alaska’s criminal justice system is atypical......................................................1517. The most popular examples of plea bargain bans weren’t very successful.........................1518. Many dire predictions of the Bronx New York ban became realities....................................1619. Effects of Bronx ban summarized........................................................................................1620. El Paso: Almost 41% of cases were dealt with by trial after ban.........................................17

DA – Prisons overloaded...............................................................1821. Link: Average sentence for plea bargain: 5 years compared to 16 years............................1822. Bronx: Example of crowding exacerbated by banning plea bargains..................................18

Logic DA’s...................................................................................1923. Anecdote: Plea bargain gave the US a witness against El Chapo (drug lord)......................19

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Neg – Abolish Plea Bargaining Potent Speaking 2 of 20

Strategy NotesThis case abolishes the practice of “plea bargaining”, which started as a fairly informal deal making practice. The Supreme Court ruled it constitutional, and from then on it became quite popular. In fact, 95%+ of cases are dealt with through a plea bargain, very few go to trial.

The general theme with this negative brief is that plea bargaining is insanely necessary in order for our system to function. The idea of abolishing it across the board is legitimately ludicrous. I know there is some evidence that it wouldn’t overload the courts, but anyone who makes that claim is making bogus claims based on flawed logic. Don’t ever waver on this fact: abolition of plea bargaining WOULD undoubtedly cause courts to be overburdened.

Pretty much all your arguments tie back to this theme. Even when refuting some common affirmative arguments, you’ll be tying back to it.

Constitutionality/Founder’s intent

The founders are great, but they had no way of knowing the system we’d have 200+ years later. Our version of trials is so completely different from the beginning that to compare them is extremely unrealistic. Also, whining that it’s unconstitutional doesn’t make sense—the supreme court decides what’s constitutional, not pundits. And they’ve decided plea bargaining is fine (and even necessary).

Punishment for exercising rights

The argument here is that we’re not punishing people for going to trial by giving them a higher sentence, we’re punishing them for committing the crime. Second, the plea bargain alternative is lenient in comparison to the sentence they deserve, it’s not the other way around. It’s an incentive, not a punishment. Dog treat vs. bark collar.

Innocents pressured into confession

I have a nice piece of evidence that turns this and shows how plea bargaining helps avoid it. Also, point out the reality that judges don’t just let people who seem innocent plead guilty without checking the facts themselves. Lastly, let’s think logically. The only reason someone would plead guilty is if they saw an overwhelming amount of evidence and prison time against them. That means they’d probably be convicted in a regular trial ANYWAY, which means their sentence would be higher without PB.

Practice goes underground

All three pieces of evidence are examples: from the UK, Alaska, and El Paso Texas. It shows how plea bargaining always comes back, regardless of whether it’s illegal. It comes back because of human nature: judges, attorneys, AND defendants like plea bargains. So it always reemerges.

Impact this argument to lack of transparency. At least right now plea bargains are checked over by judges and are out in the open. In this system, they’d be hush hush and more prone to abuse.

Judicial system crashes/prisons overloaded

This should be brought up a bit in the 1NC and absolutely hammered in the 2NC all speech long.

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Neg – Abolish Plea Bargaining Potent Speaking 3 of 20

Rhetoric Sheet

1NC

Intro: It’s easy to get caught up in an emotional storm of “plea bargaining hurting innocent people”, but let’s look at the big picture. What does plea bargaining do for the criminal justice system as a whole?

In 1992, Justice Roberts commented on a plan to abolish plea bargaining in Bronx, New York. [Card 1]

But why are plea bargains so vital to our system? Because they free up our court system to focus on more important cases.

The affirmative team said that earlier that 95% of cases are settled via plea bargaining. That’s as a direct result of the efficiency of plea bargaining in quickly dispersing with cases.

Dr. Casey Welch and Dr. John Fuller, both professors of sociology and criminology, said in 2013: [Card 2]

Both quotes I’ve read so far have underscored that plea bargaining is necessary and here to stay.

And that leads me to my first point:

1. Plea deals go underground

- Aff plan drives it underground

- UK example: plea bargaining is illegal but still occurs. [Card 8]

- Alaska example: banned plea bargaining, and it eventually came back [Card 10]

Impact: Problem unsolved, it will continue in the long run.

Impact: Decreased transparency. At least current plea bargains are written down and official.

2. Modern v. early America

- Founders lived in a different time. Public executions, etc.

- Their idea of a fair trial is different from ours. [Card 4]

- Crime and incarceration rates are way higher now.

Impact: Founder’s opinion largely irrelevant

Rhetoric: I know that downplaying the founding fathers in any way shape or form is a bit of a deadly sin to conservatives, but let’s be realistic. The Founding Fathers had fantastic principles for running a nation, but because we have strayed so far from their system, institutions like plea bargaining have emerged in order to make the system continue to function. In an ideal world, we could give everyone a speedy, fair trial. That ideal world is over 50 years gone.

If they argue constitutionality:

Pundits vs. SCOTUS. Founders designed the supreme court to decide matters of constitutionality, and they decided that this is constitutional. It doesn’t matter what some random “expert” has to say about it.

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Neg – Abolish Plea Bargaining Potent Speaking 4 of 20

3. Innocent better off with Plea Bargaining

- Courts will be more prone to errors. The main reason plea bargaining might accidentally send someone innocent to prison is because they’re quick. But courts will be rushed with this plan.

- Increased casual trials [Card 6]

- It’s not as if innocent people can easily plead guilty. Judges watch out for cases that seem like an innocent person being pressured into it.

- If they plea guilty, it’s only because the odds were stacked against them. So they’d lose in a regular court trial anyway. Furthermore, with the increase in casual trials, it will be even easier to convict innocent people with a decent amount of evidence.

Closing: The affirmative team will continually try to draw a bleak picture of plea bargaining, but realize that abuse of a system doesn’t mean the system is bad. The alternative to plea bargaining is unthinkable.

2NC

Intro: [Read Card 11]

Deliver with a slight laugh/smile: And with that happy note, I’d like to inform you that the entire speech will be doom and gloom, just like that quote.

Let’s talk about the biggest issue with removing plea bargaining:

1. Explosion of trials

Plea bargaining is considered by almost all serious academics as necessary, even those that opposite it.

[Card 13]

Takeaways from card:

- American trials are uniquely long and arduous

- Even critics want partial abolition, not complete.

Look at history:

- Alaska and Texas: [Card 15]

- Bronx, New York: [Card 18]

The best way to evaluate a policy is to see how it worked in the past.

Keep in mind, the disasters that were these experiments would be multiplied by more than 50 times if applied to the entire United States, especially places like California with unwieldy populations and crime rates.

2. Prisons overloaded

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Neg – Abolish Plea Bargaining Potent Speaking 5 of 20

- Plea bargains decrease sentences. [Card 21]

Without plea bargaining, sentences would increase dramatically, and prisons would be overloaded with prisoners.

Impact: Overincarceration

Impact: Taxpayer dollars

If you have time:

- Bronx example [Card 18]

3. Plea bargaining benefits discarded

There are many, many academically-supported benefits to plea bargaining, but this debate round is too short to go into all of them. So here are a two that I find particularly important.

- Witnesses. Plea bargains are often made in exchange for the defendant acting as a witness against another defendant. In fact, most drug kingpins are taken out through plea bargaining. Low-level drug traffickers are caught, and given a reduced sentence in exchange for information about higher-level drug traffickers. As they go up the ladder, they eventually run into the kingpin and apprehend him.

[Optional card 23]

- Longer time in pretrial detention. Studies have shown that people who spend more time in pretrial detention are more likely to commit a crime. The prison environment tends to bring out the bad in people, unfortunately. Long time in pretrial detention becomes basically another punishment. Which is extremely unfair especially for innocent defendants. Defendants will have to wait for a long time while the court system put-puts along, wishing for the days of plea bargaining to come back.

Plea bargaining is like the oil in America’s court system.

Despite the occasional story of an unfair or abusive plea bargain, the overall effect of plea bargaining is positive.

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Neg – Abolish Plea Bargaining Potent Speaking 6 of 20

Cross-Examination1. Currently, 95% of cases are disposed of due to plea bargains, correct?

- Do you think guilty pleas will decrease at all if plea bargaining is banned?

- Which cases are quicker: full trials or guilty pleas?

- Would you agree Plea Bargaining happens so much because it increases guilty pleas and thus speeds up cases? (Sets up clogging courts argument)

2. Plea Bargaining has only been banned in around 5 jurisdictions in the US, correct?

- And most of them reinstated it? (Could be a useful admission)

- Did plea bargaining continue covertly despite the ban in any of these experiments? (Useful admission for solvency)

3. Do you argue that plea bargains send innocent people to prison because they are too quick? (Sets up for argument that trials will be quicker and thus less accurate)

- If yes: So when cases are disposed of quickly, accuracy decreases?

- If no: So when cases are disposed of quickly, accuracy is the same?

4. Would you agree the main reason an innocent person would plead guilty is because the odds are stacked against them? (Sets up inevitability argument: innocents will still be convicted, they were going to be convicted anyway)

- If No: So innocent people plead guilty just because they want to?

5. Do you believe plea bargaining as a concept is wrong, or merely the abuse of it? (Helps defuse emotion)

6. Plea bargaining tends to result in shorter sentences, right? (Prison overcrowding set up)

7. Plea bargaining is often used to acquire witnesses against other suspects, correct? (Set up for drug ring bust DA)

If they argue plea bargaining will make trials quicker:

8. Can you explain to me, with just logic, how a guilty plea takes longer than an actual trial where both sides are represented carefully? (Probably hard for them to explain, since it makes no sense logically)

If they argue constitutionality:

9. You claimed that plea bargaining is unconstitutional, correct?

- The founding fathers let the Supreme Court interpret the constitution, correct?

- Would you agree that the Supreme Court upheld plea bargaining?

- So you’re saying that you and some “experts” believe it’s unconstitutional, correct?

- Did the Founding Fathers have a criminal justice system or court system that is even remotely similar to our modern day one?

o If yes: Do you think they dealt with the same volume of cases back then?

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Neg – Abolish Plea Bargaining Potent Speaking 7 of 20

Openers1. Plea negotiations are as vital to the system as breathing and eating…

Ian Fisher quoting Justice Roberts 1992 (Reporter for the New York Times quoting a Supreme Court Justice) “Bronx District Attorney Moves to Ban Plea Bargains in Felony Cases” http://www.nytimes.com/1992/11/25/nyregion/bronx-district-attorney-moves-to-ban-plea-bargains-in-felony-cases.html

"Plea negotiations are as vital to the system as breathing and eating and sleeping are for human survival," Justice Roberts said. "You have a limited number of tax dollars. You can't build a courthouse as big as the Triborough Bridge, manned by half the population of the Bronx to try the other half of the Bronx."

This is a supreme court justice humorously talking about how a ban of plea bargaining in Bronx would cause huge issues.

2. No incentive to not go to trial if you get the same sentence, resulting in clogged courts

Dr. Casey Welch (Professor of sociology/criminology at Flagler College) Dr. John Fuller (Professor Emeritus of Criminology at the University of West Georgia. Doctorate of Philosophy from Florida State University.) 2013 “American Criminal Courts: Legal Process and Social Context” https://books.google.com/books?id=6lJdCcav2v4C&printsec=frontcover#v=onepage&q&f=false

Without plea bargaining, defense attorneys would take more cases to trial. With an “all or nothing” philosophy, the defense attorney has an incentive to force the criminal justice system to prove the guilty of his or her client because the sentence imposed will be the same whether the defendant pleads guilty or is found guilty. There is really no incentive to not go to trial if one is charged with a mandatory sentence, so any such attempt to reform plea bargaining by the legislature would result in courts being clogged with cases that could have been negotiated by plea bargaining. The question then becomes not whether to have plea bargaining, but rather, how to structure plea bargaining so that justice is served.

Every experiment with banning plea bargaining so far has still had a fairly high guilty plea rate: and that’s because some form of plea bargaining or at least lower sentences for guilty pleas remained. If that were to be eliminated successfully (which is the affirmative goal), then guilty pleas would drop dramatically and our court system would be clogged.

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Neg – Abolish Plea Bargaining Potent Speaking 8 of 20

A/T Harms

A/T Constitutionality/Founder’s intent

1. (Logic) Responses to constitutionality/founder’s intent

1. The court decides what is constitutional or not constitutional. That’s also how the founders intended it to be. They didn’t intend for pundits to override the courts with their opinions. If the court decides to interpret the law the way they did, then that’s how it is, regardless of whether “experts” think the Founders meant something else.

2. We can’t always look back to the founders to figure out 21st century problems. Sure, human nature is the same. But the founders didn’t live in the insane world we do, where people are charged with crimes all the time.

3. Crime and its punishments were very different back then. They didn’t use prisons as punishment, they were just temporary houses to keep people before trial. They would frequently hang people in public. To compare the limited crime back then to the thousands upon thousands of cases awaiting trial now is naïve.

2. A/T Tim Lynch: believes system should change to accommodate lack of plea bargains

He wants the system to change, regardless of how impossible or inconvenient

Dr. Tim Lynch 2011 (Juris Doctorate from Marquette University. Researches overcriminalization, the drug war, the war on terrorism, and the militarization of police tactics. He leads the Project on Criminal Justice, a leading voice in support of the Bill of Rights.) “The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice” http://www.cato.org/publications/commentary/devils-bargain-how-plea-agreements-never-contemplated-framers-undermine-justice

It is remarkable how few people will openly defend the primary method by which our courts handle criminal cases. The most common apologia for plea bargaining is a pragmatic argument: Courthouses are so busy that they would grind to a halt if every case, or even a substantial share of them, went to trial. But there is nothing inevitable about those crushing caseloads. Politicians chose to expand the list of crimes, eventually turning millions of Americans into criminals. Ending the disastrous war on drugs would unclog our courts in short order.

Note: This evidence shows he has an extreme view, and furthermore the Aff can’t prove that this adjustment will happen with their case. In order to work, a case to abolish Plea Bargains needs to also fix the case load.

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Neg – Abolish Plea Bargaining Potent Speaking 9 of 20

3. History: Plea Bargaining emerged in response to increasing crime ratesIt arose due to a situation the Founders could not predict

Judge Jed Rakoff November 2014 (Senior District Judge for the Southern District of New York. Juris Doctorate from Harvard Law School. Leading authority on law.) “Why Innocent People Plead Guilty” http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/

After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials.

4. Founder’s idea of a fair trial is very different from ours

Dr. Timothy Sandefur 2003 (Principal attorney at the Pacific Legal Foundation, and heads the Foundation’s Economic Liberty Project, which protects entrepreneurs against intrusive government regulation. He’s written 3 books and over 50 scholarly articles. He is a scholar with the Cato Institute and a graduate of Chapman University School of Law and Hillsdale College.) “In Defense of Plea Bargaining” http://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/7/v26n3-8.pdf

One argument against plea bargaining is that the Sixth Amendment guarantees a right to a jury trial, not to a faster, more potentially error-prone procedure like plea bargaining. As Lynch has written, “The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights, but chose not to adopt them.” But that does not prove plea bargaining is unconstitutional. After all, at the time the Sixth Amendment was written, there were no Federal Rules of Evidence, no Miranda rights, no court-appointed attorneys, and no bench trials. The Framers’ notion of a “fair trial” differs greatly from ours. The Constitution’s limits on criminal procedure are certainly indispensable protections for individual liberty, a great advance over British rule, and a testament to the Founders’ greatness — but they only go so far.

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Neg – Abolish Plea Bargaining Potent Speaking 10 of 20

A/T Punishment for exercising rights

5. It’s not a punishment for exercising rights, it’s an offer of leniency if they plea guilty

Dr. Timothy Sandefur 2003 (Principal attorney at the Pacific Legal Foundation, and heads the Foundation’s Economic Liberty Project, which protects entrepreneurs against intrusive government regulation. He’s written 3 books and over 50 scholarly articles. He is a scholar with the Cato Institute and a graduate of Chapman University School of Law and Hillsdale College.) “In Defense of Plea Bargaining” http://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/7/v26n3-8.pdf

But both of the criminals in Judge Young’s example committed crimes for which they might be sent to jail for 20 years; neither has a right to demand a four-year sentence. A four-year sentence for one does not increase the punishment for the other; it simply fails to decrease the other’s sentence — something to which neither defendant is entitled to begin with. The disparity of their sentences does not represent greater punishment being visited on the party that refuses the bargain; rather, it represents a benefit conferred on the party that did bargain.

A/T Innocents pressured into confessing

A/T Emotional appeal: “totally innocent, confused defendants are pressured by mean prosecutors into confessing”. Keep in mind we’re talking about the federal system, where most cases (82.7%) are immigration, drugs, fraud, or firearms cases. These aren’t minor misdemeanors. These are federal crimes.

6. Turn: convicting innocents is likely easier in a no-bargaining worldTo compensate for increased trials, trials will become sloppy

Dr. Roland Acevedo 1995 (New York Lawyer, Juris Doctorate from Fordham University. Member of the Association of the Bar of the City of New York, Associate of Federal Defense Attorneys, and Hispanic National Bar Association. Was an associate editor of the Fordham University Law Review.) “Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx County, New York Case Study” http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3222&context=flr

Nonetheless, “convicting innocents [after a trial would] likely be easier in a no-bargaining world” because of deterioration in the trial process caused by the plea bargaining ban. To compensate for the additional requests for trials without a corresponding increase in resources, the trial process in the Bronx will become more “casual.” The relaxation of the trial process will result in higher error rates and in a greater number of innocent defendants being convicted. Thus, regardless of the means of obtaining a conviction—by guilty plea or trial—innocent defendants will have a greater chance of being convicted under the new ban.

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Neg – Abolish Plea Bargaining Potent Speaking 11 of 20

7. Many judges try to avoid innocent guilty pleas with precautions

Dr. Scott Howe 2005 (Associate Dean for Academic Affairs and professor of criminal law at Chapman University School of Law. JD from University of Michigan) “The Value of Plea Bargaining” http://adams.law.ou.edu/olr/articles/vol58/howe584.pdf

At the same time, many trial judges take precautions to try to prevent guilty pleas by innocent persons. At the guilty-plea proceeding, many judges require the defendant to assent to or even recount in his own words a story of guilt as a prerequisite to entering the plea, and they will rescind the plea before sentencing if the defendant proffers a claim of innocence.

It’s not as if innocent people are shuffling into court and just saying “I’m guilty” and everyone believes them. They have to actually give a credible guilty plea, and if they claim to be innocent despite their guilty plea, the judge will be wary of that.

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Neg – Abolish Plea Bargaining Potent Speaking 12 of 20

Solvency – Practice goes underground

UK example

8. Plea bargaining supported in UK despite being illegal – happens under the table

If plea bargains are made illegal, they’ll just happen in a more shadowy way

Clare Dyer 2000 (Guardian’s legal editor until 2009) “Making a pact with the devil” http://www.theguardian.com/world/2000/oct/30/law.claredyer

But will the guidance stop plea bargaining? The appeal court laid down similar guidelines in strong terms as long ago as 1970, in a case called R v Turner. The court told judges that they must not say they would impose one sentence in response to a guilty plea and a more severe sentence for a plea of not guilty, because that put the defendant under undue pressure to plead guilty. But it is clear from a string of cases since then that this shadowy practice still goes on.

This month at the bar conference, barristers were asked how many had in the past year gone to see judges in their rooms "for an indication on sentence". A sea of hands shot up. Around one in three barristers present had taken part in a plea bargain.

The practice persists because, whatever the court of appeal thinks, barristers and judges at the coal face like it. A crown court survey for the Royal Commission on Criminal Justice in 1993 found that nearly 90% of barristers and two out of three circuit judges favoured "full and realistic discussion between counsel and judge about plea and especially sentence".

Note: Even though it’s already illegal in the UK and they have a different system, it still happens under the table. A similar thing would happen here in the US.

Impact: If it’s under the table, it’s harder to control to make sure that it isn’t abused. At least currently it’s public.

US Examples

9. El Paso: Despite plea bargaining ban, disparity in sentences remained

Dr. Robert Weninger 1987 (Professor of Law, Texas Tech University. B.B.A. University of Wisconsin, L.L.B. University of Wisconsin, LL.M. University of Chicago) “The Abolition of Plea Bargaining: a Case Study of El Paso County, Texas” http://repository.law.ttu.edu/bitstream/handle/10601/179/weninger7.pdf?sequence=1

This Article shows that even though sentence negotiation and charge bargaining were virtually eliminated, the judges provided direct assurances of sentences to defendants if they plead guilty. It also shows that another implicit but important form of plea bargaining remained—a sentence differential between defendants who pleaded guilty and those who were convicted at trial. Multiple regression analysis reveals that guilty plea defendants received shorter prison terms than jury trial defendants.

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Neg – Abolish Plea Bargaining Potent Speaking 13 of 20

In Texas, plea bargaining was banned, but the disparity in sentences remained because judges still charged those who plead guilty lighter sentences.

10. Alaska: 56-60% of convicted defendants plea bargained despite ban

Teresa White Carns (Project Director of the Alaska Judicial Council. Heads up research projects and report writing as well as aspects of judicial selection and retention.) Dr. John Kruse (Research Consultant from the Institute for Social and Economic Research and the University of Alaska Anchorage). “Alaska’s Plea Bargaining Ban Re-evaluated” http://www.ajc.state.ak.us/reports/plea91Exec.pdf

Data from interviews with attorneys and judges were consistent with the statistical findings. Most attorneys in Alaska agreed that charge reductions and dismissals occurred more frequently in the late 1980s than in the 1970s shortly after the ban on plea bargaining. Many said that charge negotiations in the late 1980s were used to dispose of the great majority of their cases. The statistical data indicated that in fact over half (56% to 60%) of the convicted defendants in the 1984 to 1987 database had pled guilty (or nolo contendere) and had at least one charge reduced or one or more charges against them dismissed.

Pleading guilty in exchange for a charge being reduced or dropped is a form of plea bargaining. It didn’t emerge immediately, but it came back in a decade or so. Plea bargaining might go away at first, but it’ll come back, whether under the table or not.

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Neg – Abolish Plea Bargaining Potent Speaking 14 of 20

DA – Judicial system crashes11. If those charged with crimes all went to trial, the system would crash

Dr. Michelle Alexander 2012 (Graduate of Vanderbilt University and Stanford Law School. Served for years as director of the Racial Justice Project at the ACLU. Was a law clerk for Justice Harry Blackmun at the U.S. Supreme Court. Associate Professor of Law at Ohio State University.) “Go to Trial: Crash the Justice System” http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

12. Chief Justice Warren Berger: 10% reduction in plea deals = double the cases

Time Magazine 1978 “Law: Is Plea Bargaining a Cop-Out?” http://content.time.com/time/magazine/article/0%2C9171%2C916340%2C00.html

The strongest argument for deal making, however, is sheer necessity. Approved of by Congress and the President's Commission on Law Enforcement and Administration of Justice, plea bargaining has been condoned by the U.S. Supreme Court as "essential." It is widely accepted that without deals between the prosecutor and the accused, time-consuming trials would cause many courts to choke on overcrowded dockets. Chief Justice Warren Burger has said that even a 10% reduction in plea bargaining would double the number of trials.

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Neg – Abolish Plea Bargaining Potent Speaking 15 of 20

13. American criminal trials are the most expensive and time consuming of the world

Dr. Nancy Amoury Combs 2002 (Research Professor of Law at William & Mary Law School in Williamsburg, Virginia. PhD from Leiden University in the Netherlands. Juris Doctorate from the University of California-Berkeley.) “Copping a Plea to Genocide: The Plea Bargaining of International Crimes” http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3204&context=penn_law_review

The contemporary American trial provides a defendant with every means to vigorously contest the charges against him, but in doing so has become, in the words of one commentator, “the most expensive and time-consuming in the world.” Indeed, American criminal trials have become so expensive and time-consuming that they can only be provided to a small percentage of criminal defendants. As noted above, approximately 90% of all American criminal cases are disposed of by a guilty plea secured through plea bargaining. Stated differently, “[e]very two seconds during a typical workday, a criminal case is disposed of in an American courtroom by way of a guilty or nolo contendere plea.” Such high guilty plea rates are commonly believed necessary in order for the system to function. Indeed, even the harshest critics of plea bargaining have limited their abolition proposals to cases involving the more serious crimes and have acknowledged that reducing or eliminating plea bargaining will require the expenditure of additional resources and the simplification of procedures.

A/T plea bargaining abolishment experiments

14. Efforts to simply ban most plea bargains have repeatedly failed

Dr. Scott Howe 2005 (Associate Dean for Academic Affairs and professor of criminal law at Chapman University School of Law. JD from University of Michigan) “The Value of Plea Bargaining” http://adams.law.ou.edu/olr/articles/vol58/howe584.pdf

Efforts to simply ban most plea bargains have also repeatedly failed, surely in part because of the expensive trade-offs involved. Sometimes ban efforts have resulted from legislation or referenda, such as a statewide prohibition imposed in California in the early 1980s. More often, they have resulted from the order of the chief prosecutor, such as with the ban imposed by the Alaska Attorney General in 1975. Most have occurred in rural areas with a low volume of criminal prosecutions, although the prosecutor in El Paso, Texas, also attempted to impose such a ban in 1975. Almost all have been limited in major ways, such as to prosecutors alone or to certain stages of the adjudication process or to certain types of crimes. In each case, either the bargaining shifted to other stages in the adjudication process, the provision of bargains merely shifted from prosecutors to judges, or prosecutors increasingly ignored the ban or subverted it through subterfuges. In the modern era no large city in the United States has gone for a long period without some form of widely practiced plea bargaining. This history underscores the costliness of eliminating bargaining.

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Neg – Abolish Plea Bargaining Potent Speaking 16 of 20

15. Alaska’s “success” can’t transfer to metropolitan areas, Texas got flooded with trials

Josh Getlin 1987 (Times Staff Writer) “Plea Bargain Issue: The Jury's Still Out : County D.A.'s Crackdown on Practice Reassessed as Controversy Rages On” http://articles.latimes.com/1987-08-30/local/me-4836_1_plea-bargaining/2

In Alaska, the state attorney general announced the nation's first statewide crackdown on plea bargaining in 1975. That sparked a rise in the number of trials and a slight increase in the severity of sentences, particularly for lesser felonies.

Alaska's program has been viewed as a success, but critics say the state's relatively small number of felony cases--fewer than the number filed annually in some California counties--means that the system could not be transferred to the crowded courts of metropolitan areas.

El Paso, Texas, attempted to root out plea bargaining, but the experiment foundered when the courts were flooded with additional trials and could not cope with the added load. In New Orleans, plea bargaining in cases involving major felonies was banned several years ago, but only after the number of cases being filed was cut drastically.

16. A/T Alaska: Alaska’s criminal justice system is atypical

Dr. Jacqueline Cohen (PhD from School of Urban and Public Affairs in Pittsburgh. Studies Sociology and Mathematics. Research professor for H. John Heinz School of Public Policy and Management.) Dr. Michael Tonry (Presidential professor of criminal law and policy at the University of Minnesota. Previously a professor of law and public policy and director of the institute of criminology at Cambridge University. PhD from the Free University Amsterdam.) 1983 “Sentencing Reforms and their Impacts” [brackets added] http://njlaw.rutgers.edu/collections/gdoc/hearings/8/87600867b/87600867b_4.pdf

The Alaska experience is evidence that individual prosecutors who wish to abolish plea bargaining should, under opportune circumstances, be able to do so. This conclusion, readers will note, is hedged. There are many respects in which Alaska’s criminal justice system is atypical. First, public prosecution is centrally organized on a statewide basis under the attorney general; although each office has its own district attorney, each is institutionally subject to the policies and procedures of the attorney general. Second, Alaska is thinly populated, and the volume of felony prosecutions is small. Only 2,283 defendants were charged with felonies over a 2-year period in the three main cities studied. Fewer than 800 felony charges result in convictions each year.

[several paragraphs later]

In addition, Alaska is a leader in judicial technology, and all presentence hearings are recorded on videotape. The last is important because Alaska Criminal Procedure Rule 11 requires the judge to inquire about negotiated guilty pleas. The combined effect of these rules and the technology may have been to heighten the appearance of public accountability. For all these reasons, Alaska appears to have been a more congenial site for an attempt to abolish plea bargaining than many other jurisdictions would have been.

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17. The most popular examples of plea bargain bans weren’t very successfulThey were also all temporary bans. Plea bargaining came back.

Dr. Jon’a Meyer 2002 (Associate professor of sociology at Rutgers University. Her writings on crime have been featured in the Encyclopedia Britannica. Member of the American Sociological Association, the American Society of Criminology, and the Academy of Criminal Justice Science.) “Encyclopedia of Crime and Punishment” https://books.google.com/books?id=LJX3Ql7bu2YC&printsec=frontcover#v=onepage&q&f=false

Because of criticisms like these, some jurisdictions have banned the practice. The best known examples of this are Alaska and El Paso, Texas. Alaska’s ban on plea bargaining from 1975 to 1993 increased the number of trials within a few years, and only sentences imposed on those convicted of minor offenses or first-time offenders were harsher (sentences for violent offenders were already high before the ban). El Paso’s 1978 to 1984 ban doubled the trial rate and increased the backlog by 250 percent, forcing court reorganization to enable civil court judges to assist with the increases in criminal trials. There have been other temporary bans, including ones in Bronx County (New York) and Detroit (Michigan), and the state of California’s ban on bargaining with defendants charged with serious offenses.

18. Many dire predictions of the Bronx New York ban became realities

Dr. Roland Acevedo 1995 (New York Lawyer, Juris Doctorate from Fordham University. Member of the Association of the Bar of the City of New York, Associate of Federal Defense Attorneys, and Hispanic National Bar Association. Was an associate editor of the Fordham University Law Review.) “Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx County, New York Case Study” http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3222&context=flr

Not surprisingly, the imposition of the ban set off a furor among judges, defense attorneys, and other officials who feared a “catastrophic backlog of cases”, “unfair” treatment of defendants, “jail overcrowding”, and “violations of a federal court order” that could expose New York City to fines and force the release of prisoners. Three years have elapsed since the Bronx plea bargaining ban went into effect and many of the expressed fears are now realities. While there is little doubt that the Bronx plea bargaining ban is legal, its harsh impact upon the Bronx criminal justice system raises serious ethical concerns. This Note will examine and address some of these ethical concerns.

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Neg – Abolish Plea Bargaining Potent Speaking 18 of 20

19. Effects of Bronx ban summarized

Dr. Roland Acevedo 1995 (New York Lawyer, Juris Doctorate from Fordham University. Member of the Association of the Bar of the City of New York, Associate of Federal Defense Attorneys, and Hispanic National Bar Association. Was an associate editor of the Fordham University Law Review.) “Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx County, New York Case Study” http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3222&context=flr

The plea bargaining ban has not had its intended effect of reforming the sentencing practices of Bronx judges. Under the ban, Bronx judges have become more lenient and appear to be imposing shorter sentences on the highest counts of indictments. According to the Bronx District Attorney’s theory, this additional leniency should result in a further disincentive to plea bargain and an increase in the backlog of cases. Indeed, since the imposition of the ban, guilty pleas have decreased by eleven percent, and the backlog of pending cases in the Bronx has increased by twenty-four percent. As a direct result of the increase in the backlog of pending cases, the average time defendants remain in custody has also increased. Since the imposition of the ban, Bronx defendants average in excess of 160 days in custody, compared to the 120 day average for other New York City boroughs. There has also been a forty-seven percent increase in the number of Bronx defendants incarcerated for over one year. These additional days of incarceration cost New York City taxpayers three to four million dollars annually.

20. El Paso: Almost 41% of cases were dealt with by trial after ban

Dr. Robert Weninger 1987 (Professor of Law, Texas Tech University. B.B.A. University of Wisconsin, L.L.B. University of Wisconsin, LL.M. University of Chicago) “The Abolition of Plea Bargaining: a Case Study of El Paso County, Texas” http://repository.law.ttu.edu/bitstream/handle/10601/179/weninger7.pdf?sequence=1

When defendants could no longer negotiate their sentences, more of them turned to adjudication. Table 1 shows a virtual doubling both in the percentage of contested cases and in the proportion of convictions accounted for by trial. During the postperiod, almost 41% of all cases were disposed of by trial, and nearly 48% of all convictions were obtained at contested proceedings. These statistics signify that a system relying heavily on adversary procedure replaced one that rested principally on negotiated pleas.

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DA – Prisons overloaded21. Link: Average sentence for plea bargain: 5 years compared to 16 years

Specific to federal narcotics defendants

Judge Jed Rakoff November 2014 (Senior District Judge for the Southern District of New York. Juris Doctorate from Harvard Law School. Leading authority on law.) “Why Innocent People Plead Guilty” http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/

The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

22. Bronx: Example of crowding exacerbated by banning plea bargains

Ian Fisher quoting Catherine Abate 1992 (Reporter for the New York Times quoting Commissioner of the Department of Correction) “Bronx District Attorney Moves to Ban Plea Bargains in Felony Cases” http://www.nytimes.com/1992/11/25/nyregion/bronx-district-attorney-moves-to-ban-plea-bargains-in-felony-cases.html

Catherine M. Abate, Commissioner of the Department of Correction, said she hoped Mr. Johnson would reconsider his decision. She said that 65 percent of prisoners at Rikers Island are people waiting for trial or to plea bargain and that the number would certainly increase under Mr. Johnson's plan, meaning greater crowding.

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Neg – Abolish Plea Bargaining Potent Speaking 20 of 20

Logic DA’s1. Plea bargains provide witnesses and can increase the chances of putting bad guys in prison. Sometimes a prosecutor gives someone a light sentence if they are willing to be a witness against another criminal. This is, in fact, how drug rings are dealt with. Low level grunts are caught, and through plea bargaining they rat out a higher level guy. That person is caught and he rats someone higher out. Soon you’re at the kingpin, and it’s all because of plea bargaining.

2. Innocent people held in jail for long periods. Because there will be huge backlogs, people will have to sit in jail (or pay bail) for a long time while they wait for a trial. For innocent people, this is a big problem.

3. Potentially dangerous people could continue crime. Because of the increased jail time effect, that also means that guilty criminals who pay the bail could continue to commit crimes while they wait for the trial. Usually this isn’t much of an issue, but with the long waits that will result from this plan, this could be a problem.

23. Anecdote: Plea bargain gave the US a witness against El Chapo (drug lord)

Forbes Magazine writer Dolia Estevez 2014 “Upset About A Controversial Narco Deal, Mexico Reaffirms It Will Not Extradite Drug Kingpin El Chapo Guzmán To The U.S.” http://www.forbes.com/sites/doliaestevez/2014/04/17/upset-about-a-controversial-narco-deal-mexico-reaffirms-it-will-not-extradite-drug-kingpin-el-chapo-guzman-to-the-u-s/

In a surprising plea bargain, reached a year ago and unsealed by a U.S. District Court in Chicago on April 4, Vicentillo admitted that he coordinated shipments of tons of cocaine and heroin as a top associate of El Chapo and a “trusted lieutenant for his father.” Under the deal, which was signed by five defense attorneys, he faces at least 10 years behind bars, and a fine of up to $4 million. If he provides “full and truthful cooperation” against El Chapo and his father, the government will try to spare him from a life sentence.

[later, in the same article]

U.S. prosecutors consider Vicentillo their top witness against El Chapo if Mexico ever agrees to extradite him. There are unconfirmed reports that the U.S. government is strongly considering asking the Mexican government for the drug lord’s extradition now that they have Vicentillo on their side.

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