Resolved: In the US, plea bargaining ought to be abolished
The debate is finished. The distribution of the voting points and the winner are presented below.
After 6 votes and with 14 points ahead, the winner is...
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Round Structure. I will cede the first round so that Pro can go first.
I will offer my constructive, and then we will alternate between Pro and Con until the final round, in which Pro is required to waive.
Other than that, standard rules apply.
In other words, don't post new args in the final round. Don't be a di**.
That's about it.
Plea Bargaining - an arrangement between a prosecutor and a defendant whereby the defendant pleads guilty to a lesser charge in the expectation of leniency.
Ought - used to indicate duty or correctness, typically when criticizing someone's actions.
Abolished - formally put an end to (a system, practice, or institution).
Major policy debates such as this should be evaluated on the framework of consequentialism, the framework where we judge the an actions of a proposed rule by evaluating the impacts they have on the people.
Value Premise: Justice
What is justice? The Merriam-Webster dictionary defines justice as “the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.” In order for there to be true justice, several things must be true: (1) the defendant was his full constitutional and legal rights; and (2) the punishment must be in direct proportion to the crime that was committed. If a person committed mass murder, I’m sure my opponent would agree that a 1 year prison sentence would not be just. I’m sure that my opponent would also agree then a 50 year sentence for petty shoplifting would be disproportionate (assuming that this was the accused’s first offense). With that in mind, let’s get to my plan.
Plea bargaining will be banned and prosecutors will no longer have the ability to coerce a defendant to plea guilty by enticing them with a more lenient sentence. However, the accused party will still have the right to plea guilty, but will no longer have any incentive to do so.
C1: Plea bargaining prevents justice
One of the criteria that I established in evaluating justice is the doctrine of proportionality, that the sentence should be in direct proportion to the crime that the party committed. When a defendant encouraged by the state to plea guilty and get a reward, two things happen, (1) the doctrine of proportionality is compromised; and (2) miscarriage of justice is often inevitable. Let’s begin by going more in-depth.
A. The innocent
Defendants are in a very vulnerable situation and will often plea guilty even though they are completely innocent. Those who cannot afford bail and do not want to wait 6 months for the trial will almost certainly plea guilty just to get it over with. According to the innocent project at least 31 people plead guilty to serious crimes like rape and murder to avoid long sentences and to avoid trial. These innocent people served a combined total of 150 years in prison . In the case of Robby Ray Dixon they pled guilty to a 1979 Mississippi rape and murder they didn’t commit. After the two men were threatened with the death penalty, they testified against a third innocent defendant (ibid).
The innocent project further breaks down some alarming statistics: 95% of felon convections are convicted through plea bargaining, 18% of those exonerated plead guilty, and 83% of DNA tests pointed to a different perpetrator (2).
If innocent people are forced to plea guilty to serious crimes they didn't commit, how many more are convicted on petty crimes and misdemeanors? That number really cant be known, but it's quite a scary probability.
B. The Guilty
For those who truly are guilty, bargaining is to their benefit by avoiding trial and getting a super lenient sentences or some serious charges simply dropped. The Human Rights Watch founded the following statistics :
- Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty (215 versus 82.5 months).
- Among first-time drug defendants facing mandatory minimum sentences who had the same offense level and no weapon involved in their offense, those who went to trial had almost twice the sentence length of those who pled guilty (117.6 months versus 59.5 months).
- Among defendants who were eligible for a sentencing enhancement because of prior convictions, those who went to trial were 8.4 times more likely to have the enhancement applied than those who plead guilty.
- Among drug defendants with a weapon involved in their offense, those who went to trial were 2.5 times more likely to receive consecutive sentences for §924(c) charges than those who pled guilty.
Thus in summary, plea bargains significantly undermine the integrity of the justice system, as Dr. Kaiser noted :
Plea bargaining undermines the integrity of the criminal justice system. Instead of establishing a defendant’s guilt and sentence though an impartial process with a complete investigation and an opportunity for the defence to present its case, prosecutors take on the role of judge and jury, making all determinations based on the probability of whether they will win or lose at trial. The end result is a decision that has little to do with the primary objectives of the criminal justice system.
C2: Plea bargains are unnecessary
Among those who argue that abolishing plea bargains would clog up the courts, research has found the exact opposite. According to my plan, guilty pleas would still be permitted. When Alaska abolished plea bargaining, the National Institute of Justice found that “guilty pleas continued to flow in at nearly undiminished rates. Most defendants pled guilty even when the state offered them nothing in exchange for their cooperations.” 
Plea bargaining is an unnecessary perversion of justice. By encouraging innocent people to plea guilty and letting guilty people off the hook, plea bargains pervert justice. Therefore, plea bargains ought to be abolished.
Re C1/C3: Increased reliance on public defense / Court Clog
Both of these arguments are interrelated and my rebuttals are interrelated so I will address them both at the same time. First, Con makes a significant error in assuming that all cases will go to trial. Recall that my plan allows for guilty pleas but would abolish the bargaining process in which a defended is coerced in pleading guilty. Second, we need to look at the cause of a huge work load and court clog. Plea bargains enable the mass incarceration and the massive workload on the court system. By abolishing plea bargaining, we would actually force the government to make much needed reforms. Danny Weil notes :
As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.
The plea bargain regime is at odds with traditional notions of fairness, justice, and truth.24 Unlike trials which are public, involve legal community outsiders, and have expansive constitutional substantive and procedural protections-plea-bargaining "take[s] place in the shadow of the law, largely immune to judicial review, with minimal and under-enforced oversight. 25 Prosecutors have virtually unlimited discretion in determining when to dismiss a case, offer a plea, or proceed to trial. 26 When a plea deal is obtained, it rarely is the result of a meaningful two-sided negotiation. "Prosecutors have the clear and undeniable upper hand...they can overcharge, leverage overbroad laws, exploit the information imbalance, wear down the defendant with (often extended) pre-trial incarceration...", and threaten to abuse draconian sentencing guidelines. 28 The reasonableness of a plea offer is contingent on a number of factors, but ultimately, two similarly situated defendants may face vastly different penalties depending on how sympathetic or antagonistic a particular prosecutor is to a given defendant or victim.29 Thus, broad and unmonitored discretion both allows for, and inhibits detection of, the discriminatory application of criminal laws.30 In its current form, the plea bargain regime grants prosecutors the unshackled authority to perpetuate systematic inequality. 31 These injustices are further compounded when a defendant is poor ("80 percent of defendants are indigent and thus unable to hire a lawyer").32 Public defenders are commonly denied access to essential resources along with being burdened by excessive caseloads.33 As a result, many defendants are pressured into accepting a plea deal after speaking with their attorney for only a few minutes-a practice disparagingly known as "meet em' and plead em’".
The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities. It can operate no other way, because the volume of cases is far larger than the court system can actually handle. So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial. As this suggests, there are real benefits to the plea-bargaining system, even for the defendants. But there is a drawback as well. In 1979, law professor Malcolm Freeley published “The Process Is the Punishment,” a book in which he used the lens of the New Haven, Connecticut, court system to show the ways in which the trial itself -- as separate from any sentence imposed -- can function to punish people. This can be a problem even if the defendant turns out to be guilty, but at least we have the option of compensating for this extra-judicial punishment by reducing the formal sentence. But when the system gets out of control, it produces Kafkaesque results even for guilty defendants: How many of us think that three years behind bars is the right sentence for the theft of a backpack? And of course, when the defendant is innocent, this jail term is not merely excessive, but something close to a crime itself. This is not what the machine was designed to produce. The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial. We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties. Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” 1 These factors aggravate the flaws of the plea-bargaining system. Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence. Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great. And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice. Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system.
Once again we need to look at the cause of the overcrowding and worsening prison conditions. Hint: It’s related to the above response. If drugs and victimless “crimes” were decriminalized, our jails and prisons would be less overcrowded and prosecutors and judges would be able to solve real crimes that have real impacts in the community. We ought to abolish pre-trial detention for low risk defendants who have not gone to trial and significantly reform the bail system. The Penal Reform International institute notes :
Pre-trial detention undermines the chance of a fair trial and the rule of law in a number of ways. The majority of people who come into contact with criminal law know little about their rights. Many countries do not have an adequate legal aid system, and many people cannot afford to pay for a lawyer. Even when they can, it is much harder to prepare well for a trial in a prison cell.
The pre-trial stage (from arrest to trial) of the criminal justice process is also particularly prone to corruption. Unhindered by scrutiny or accountability, police, prosecutors, and judges may arrest, detain, and release individuals based on their ability to pay bribes.
Pre-trial detention has a hugely damaging impact on defendants, their families and communities. Even if a person is acquitted and released, they may still have lost their home and job. They face the stigma of having been in prison when they return to the community.
Because of its severe and often irreversible negative effects, international law states that pre-trial detention should be the exception rather than the rule and that if there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied. A range of non-custodial measures are available, including bail, confiscation of travel documents, reporting to police or other authorities, and submitting to electronic monitoring or curfews.
Applying the framework of consequentialism, my case got a lot stronger. Con highlighted some significant flaws within the justice system. If we abolish plea bargaining, the government would be forced to make significant reforms that would fix the issues that Con brought up and would restore our constitutional rights.
Please vote pro. Thank you.
Both my opponent and I have agreed to the consequentialist framework. If abolishing plea bargaining has better consequences for the justice system, then you must vote pro. With that, let’s go to some voting issues
My opponent fails to challenge my value and criteria. Recall that my two criteria are that the defendant must be given his full constitutional and legal rights; and that the punishment must be in proportion to the crime. Therefore, we must look at justice through the lenses of these two criteria.
Defense C1: Perversion of Justice
I have given several real life cases of innocent people who plead guilty to serious crimes to avoid the death penalty and more serious punishment, my opponent fails to even acknowledge this or respond to this; moreover, I have given several real life cases and statistics where there is a significant difference in sentencing between those who plea guilty and the ones who go to trial. Therefore we must conclude that one of those sentences is grossly disproportionate to the crime. Thus we conclude that plea bargaining perverts the criteria of justice. This point alone is enough to vote for the affirmative.
Defense C2: Bargaining is unnecessary
My opponent asks why a hypothetical defendant would plea guilty if they have no incentive to do so. The answer is obviously to get the trial over with. The evidence and examples I provided shows that defendants plea guilty even when there is no incentive to do so.
Conclusion of the debate
I strongly urge a vote for the affirmative. The evidence I have provided shows that plea bargaining perverts justice (unchallenged) and that it directly feeds the mass incarceration problem that we have.
P.S. Who the heck reported this debate?