Blake Invitational 1 Kamiak nb aff

Aff Plan Fact Bargaining

Advantage

Fact bargaining allows prosecutors to withhold crucial evidence from the defense, resulting in guilty convictions despite clear evidence of innocence.

Turner 17, Jenia Iontcheva, Plea Bargaining (March 9, 2017). Academy For Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming; SMU Dedman School of Law Legal Studies Research Paper No. 348. Available at SSRN: https:ssrn.com/abstract=2930521 SJ DT Southern Methodist University - Dedman School of Law Professor of Law SMU, SCHOLARLY PAPERS 23 DOWNLOADS 5,122 CITATIONS 13

The Court held that the threat of a significantly more severe penalty (even the death penalty) upon conviction is not so coercive as to invalidate a guilty plea.20 Indeed, few governmental actions short of physical coercion would render a guilty plea involuntary.21 For example, neither threats to bring more serious charges against the defendant nor threats to charge family members have been held to constitute impermissible coercion, as long as the prosecutor has probable cause to support the charges.22 The requirement that a guilty plea be informed is also not particularly demanding. Judges must confirm that the defendant understands the essential elements of the crime to which he is pleading guilty.23 In most jurisdictions, rules of procedure and statutes further require judges to inform defendants of the direct consequences of a guilty plea 24 and of rights waived by pleading guilty.25 However, a guilty plea may be informed even when the prosecution fails to disclose evidence favorable to the defense.26 Likewise, judges need only give minimal notice of the meaning of the right to counsel before defendants waive that right at a plea hearing.27 And while federal and state criminal procedure rules generally require guilty pleas to be based on facts, the factual-basis standard remains quite vague.28 As a result, judges rarely go beyond reviewing the indictment and then confirming that the facts alleged comport with the defendant’s brief statement at the plea colloquy.29 Given this rather perfunctory factual inquiry, parties remain free to engage in fact bargaining and frequently do so.30 The Court has also allowed judges to accept guilty pleas even when defendants profess their innocence, as long as sufficient factual basis independently supports the conviction.

This uses judge’s lack of jurisdiction to intervene in negotiations, setting outcomes of trails before they are even brought before a judge – it gives prosecutors total power over the system.

Turner 17, Jenia Iontcheva, Plea Bargaining (March 9, 2017). Academy For Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming; SMU Dedman School of Law Legal Studies Research Paper No. 348. Available at SSRN: https:ssrn.com/abstract=2930521 SJ DT Southern Methodist University - Dedman School of Law Professor of Law SMU, SCHOLARLY PAPERS 23 DOWNLOADS 5,122 CITATIONS 13

In theory, judges could provide a neutral check on the parties and ensure that bargaining decisions are consistent with the facts of the case. But in reality, the law provides judges few tools to do so, and judges rarely make use of the powers they do have to check plea bargains. As discussed earlier, the factual basis inquiry remains rather perfunctory, and fact bargaining is common.71 Furthermore, in many jurisdictions, judges are prohibited from participating in or commenting on the plea negotiations.72 Yet it is precisely during the negotiations that judges are likely to have the greatest impact on the fairness and accuracy of the outcome. Once the parties have arrived at a deal, they have little incentive to reveal anything that might disturb the agreement. The judge’s inquiry into the facts at the plea hearing is therefore unlikely to unearth discrepancies that place the deal in jeopardy. As a result, plea bargains often fail to fully reflect the facts of the case.

This re-inforces the authoritarian power of the state over individuals.

Cantor 15, David Michael. "5 Things That You Should Know About Plea Bargains." Cantor Criminal Lawyers in Phoenix, AZ. N.p., 08 Jan. 2015. Web. 06 Dec. 2017. https://cantorcriminallawyers.com/5-things-know-plea-bargains. SJ DT

A plea bargain is made in the best interest of the state – not the defendant The justice system has an extremely high amount of cases that they must handle and plea bargains are a great way for the prosecution to quickly push a case through the courts. To get convictions, some prosecutors will pressure defendants into plea agreements, even when the case their case may be strong enough to hold up in court. It’s important to remember that the prosecution represents the state and they have no obligation to provide an offer that is in the defendant’s best interest. The duty of a prosecutor requires that they act on what is best for the state.

The current legal system encourages prosecutors and defense attorneys to get as many convictions as possible via fact bargaining, perpetuating further racist policy reform.

Roger Koppl and Meghan Sacks (2013) The Criminal Justice System Creates Incentives for False Convictions, Criminal Justice Ethics, 32:2, 126-162, DOI: 10.1080/0731129X.2013.817070: SJ DT

C. Incentives of Prosecutors It is relatively difficult to observe whether a prosecutor’s work produced a false conviction. Thus, onesided incentives to convict would create a multitask problem in the prosecution of crimes. Unfortunately, prosecutors have strong incentives to produce convictions. Police incentives are clear in that they are held to performance measures of efficiency. (As discussed earlier, police incentives include crime rates, number of arrests, response time, and crime clearance rates.) The police are also held accountable to the prosecutors who must build their cases based on the evidence provided by the police. Prosecutors face even stronger incentives when it comes to clearing cases. The prosecutor should act as the ‘‘minister of justice,’’ ensuring that justice is ultimately served. As the American Bar Association (ABA) notes, ‘‘A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.’’128 The prosecutor has a constitutional duty to act as ‘‘neutral and detached magistrate.’’129 Much like the police, however, prosecutor performance is often measured by conviction rates.130 The strong value placed on convictions and the pressures faced by prosecutors to secure confessions is linked to a concept known as ‘‘conviction psychology,’’ whereby the goal of obtaining convictions outweighs the goal of seeing that justice is served.131 Tunnel vision also plays an important part in this process. Tunnel vision is evident in the various stages of a police investigation but it also extends to the prosecution of a case. Prosecutors receive evidence from police supporting a suspect’s guilt but they don’t always see all of the evidence, at times missing refuting evidence or information about other suspects. Convinced of a suspect’s guilt, the prosecutor uses this evidence to secure a conviction against the presumably guilty defendant, whether via a guilty plea or, in rare cases, trial. To the prosecutor, therefore, the conviction typically represents justice.132 Addressing this issue in a larger context, retired Supreme Court Justice John Paul Stevens has discussed the skewed incentive structure of the prosecutor’s office. In his 2 May 2011 speech to the Equal Justice Initiative, an organization that provides representation for indigent offenders who have been treated unjustly by the criminal justice system, Justice Stevens criticized the Court for its decision to overturn a jury’s $14 million award to a man who spent 14 years on death row because prosecutors repeatedly failed to turn over evidence that would have exonerated him (Connick v. Thompson, No. 09-571 March 29, 2011). Stevens stated that the problem is inherent in a criminal justice system where judges and prosecutors are elected on tough on-crime platforms. The pressure to obtain convictions becomes paramount in the crime control platform strongly advocated by Richard Nixon and ‘‘creates a problem of imbalanced incentives that ought to be addressed on the state and national level.’’133 Indeed, researchers on this topic have come to similar conclusions. According to Jane Moriarity, ‘‘protecting the innocent from conviction does not stand on equal footing with convicting the guilty*it is doubtful that any elected prosecutor campaigned on the notion of cases he did not prosecute.’’134 In addition to these political pressures, financial incentives exacerbate the problem. The general incentive to convict may create a specific incentive to overcharge. Earlier, we quoted Barkow saying, ‘‘Prosecutors have an interest in making the consequences of convictions harsh because that gives them greater bargaining leverage to obtain pleas.’’ It seems reasonable to suggest that overcharging may be a tool to help prosecutors secure convictions through plea bargains. Research has described the importance of convictions in determining promotions for prosecutors.135 Indeed, according to Daniel Medwed, although prosecutors do not receive money per conviction, ‘‘inducements are implicit in a system where promotions are contingent on one’s ability to garner convictions.’’136 However, it isn’t completely true that prosecutors aren’t rewarded financially per conviction. In 2010, one district attorney in Colorado decided to award bonuses to prosecutors based on their number of convictions. More specifically, District Attorney Carol Chambers implemented a system of financial rewards whereby prosecutors who take at least five cases per year to trial and secure a 70 felony conviction rate are rewarded with monetary bonuses.137 A financial-based incentive structure such as this one provides an even stronger impetus for prosecutors to win cases. D. Incentives of Defense Counsel The resources and incentives of public defenders do not provide sufficient counterweight to the pro-conviction incentives of police, forensic scientists, and prosecutors. There is a sharp asymmetry between the duties of prosecutors in criminal cases and those of defense counsel. As we have noted, a prosecutor has a constitutional duty to act as ‘‘neutral and detached magistrate.’’ The Supreme Court has said: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.138 The constitutional duty of defense counsel, by contrast, is entirely onesided. Defense counsel has a constitutional duty of ‘‘vigorous and effective advocacy’’ for its client.139 Thus, any public defender has a duty to mount a vigorous defense for each of his or her clients. Far from supporting this goal, however, the incentives of public defenders tend to encourage plea bargaining and a less than vigorous defense. The indigent defendant has a constitutional right to free representation in criminal proceedings.140 However, methods of providing this fundamental representation to indigent clients vary by jurisdiction. Three systems are currently used: public defender programs, contract defense programs, and assigned counsel programs. Lacking in all three systems is an incentive to provide the best defense possible for the indigent defendant and present in all three is a strong incentive to plea bargain. However, the remaining incentives vary. We will examine the incentive structure of all three systems. Public defender programs provide free lawyers to defendants in their jurisdictions who cannot afford representation in criminal proceedings. We assume that most criminal defendants want to be exonerated or, at best, to be faced with the least punitive criminal sanction. We also believe, as Steven Schulhofer and David Friedman posit, that most defenders are concerned with protecting the rights of indigent criminal defendants.141 However, there are conflicts between individual and institutional incentives for public defenders. To place this argument in the proper context, we should first consider where public defender resources come from. Most public defender organizations are funded by their adversary*the state. Therefore, Chief Defenders must often prioritize their resources to accommodate the concerns of the court and the government, which provide the funding to run public defender organizations. Perhaps this clarifies the tension between individual and institutional incentives. For example, as Schulhofer and Friedman point out, the public defender who wishes to distinguish herself by building a strong reputation, possibly to pave the way to another career, is often met with systematic resistance to spending time and resources on cases.142 Institutional concerns create an incentive to move cases through the system expeditiously and conserve resources*not an incentive to serve justice. Indeed, the effects of high caseloads coupled with budgetary considerations were documented long ago in a notable study of the Legal Aid Society of New York. Michael McConville and Chester Mirsky found that the increasing workloads of the 1970s and reduced staff led to a strong emphasis on moving cases through the system quickly through guilty pleas.143 Schulhofer and Friedman point out those public defenders that exercise their adversarial role and put forth full efforts are even met at times with punishment, as was the case with an Atlanta public defender who was demoted because she filed a motion requesting the court to assign her no more than six cases daily.144 Skewed incentives are also problematic within a contract defense program. Contract defense programs, less commonly used, comprise lawyers and law firms who handle indigent criminal cases in exchange for a fee. To further clarify, these attorneys are paid either a global fee, which is an annual payment for handling all cases of a specific class, or an individual fee, which is a fee per each case. In this system, lawyers and law firms have a seemingly strong incentive to avoid a defense that requires anything beyond the minimum service. As Schulhofer and Friedman state, the system of global and individual fees creates a ‘‘powerful disincentive to invest time and resources in his indigent cases.’’145 This is a for-profit business, meaning that any money saved by cutting corners is money in the pockets of the attorneys. In his analysis of legal disparities in capital punishment in Texas, Scott Phillips also describes the conflict caused by a flat fee payment system. Citing the American Bar Association (1992), Phillips notes that ‘‘the possible effect of such rates is to discourage lawyers from doing more than what is minimally necessary to qualify for the flat payment.’’146 Furthermore, monetary incentives are problematic in assigned counsel programs. In an assigned counsel program, the judge presiding over a criminal case appoints a lawyer to handle an indigent client’s defense on a case-by-case basis. Almost all members admitted to the State’s Bar are required to participate in the assigned counsel system, though some jurisdictions require members to have a certain number of years and experience in criminal courts. Hence, the problem*many attorneys don’t want to serve as assigned counsel in indigent cases. They are paid flat fees, which usually have very low caps on fee maximums, or hourly wages, which are often quite low and historically have not been enough to cover basic overhead costs, such as rent, secretarial needs, and other operational costs.147 The financial incentive produced by this system is therefore twofold: low rates and fee caps disincentivize maximum case efforts by attorneys assigned to these cases and, less commonly, higher hourly rates and jurisdictions with no fee caps will incentivize just the opposite*maximum efforts to lengthen litigation.148 Phillips directs attention to an additional financial conflict inherent to the appointed counsel system. According to Phillips, the defense has to balance the goal of providing a vigorous defense with their concerns of future income.149 He is referring to defense counsel’s relationship with judges, who make the ultimate decisions on whom to appoint to a criminal case. Concerned about insuring steady work, defense attorneys in this system have to stay in the good graces of criminal court judges. As one defense attorney explained, ‘‘An attorney who files a lot of motions and asks a lot of questions creates a problem for the judges. You tick off the judge and don’t get any more appointments.’’150 The present system of indigent defense provides few incentives for defense attorneys to fully advocate for the best interests of their clients. In their discussion of the benefits of a free-market approach to defense lawyering for indigent criminal defendants, Schulhofer and Friedman suggest that better incentives are needed to align the interests of the indigent defendant and his client.151 In the wider context, it appears that flawed incentives exist systemically in our existing criminal justice system so that the goal of justice has somehow gotten lost. Unfortunately, the incentives of public defenders do not always encourage them to mount a vigorous defense. Weak incentives often combine with thin resources to make it even less likely that good lawyering can compensate for flaws elsewhere in the system.

Plan Text: Fact bargaining ought to be abolished in the United States criminal justice system

Ashcroft 17, John. "Memo Regarding Policy On Charging Of Criminal Defendants." DOJ. Department of Justice, 22 Sept. 2003. Web. 04 Dec. 2017. https://www.justice.gov/archive/opa/pr/2003/September/03_ag_516.htm. SJ DT

As set forth in my July 28, 2003 Memorandum on “Department Policies and Procedures Concerning Sentencing Recommendations and Sentencing Appeals,” Department of Justice policy requires honesty in sentencing, both with respect to the facts and the law: Any sentencing recommendation made by the United States in a particular case must honestly reflect the totality and seriousness of the defendant’s conduct and must be fully consistent with the Guidelines and applicable statutes and with the readily provable facts about the defendant’s history and conduct. This policy applies fully to sentencing recommendations that are contained in plea agreements. The July 28 Memorandum further explains that this basic policy has several important implications. In particular, if readily provable facts are relevant to calculations under the Sentencing Guidelines, the prosecutor must disclose them to the court, including the Probation Office. Likewise, federal prosecutors may not “fact bargain,” or be party to any plea agreement that results in the sentencing court having less than a full understanding of all readily provable facts relevant to sentencing.

That’s T, there are 3 federally recognized forms of Plea Bargaining: Criminal Law 17

http://criminal.findlaw.com/criminal-procedure/plea-bargains-in-depth.html

What Types of Plea Bargains Are There?

There are generally three types of plea bargains recognized:

Charge Bargaining: the most common form of plea bargaining, the defendant agrees to plead guilty to a lesser charge provided that greater charges will be dismissed. A typical example would be to plead to manslaughter rather than murder. Sentence Bargaining: far less common and more tightly controlled that charge bargaining, sentence bargaining is when a defendant agrees to plead guilty to the stated charge in return for a lighter sentence. Typically, this must be reviewed by a judge, and many jurisdictions simply don't allow it. Fact Bargaining: this is the least common form of plea bargaining, and it occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence. Many courts don't allow it, and in general, most attorneys do not favor using fact bargains.

Framing

Debate should deal with the real-world consequences of oppression – not a debate over overarching theories like afropess or marx.

Curry 14, Tommy, The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century, Victory Briefs, 2014, *brackets in original text

Despite the pronouncement of debate as an activity and intellectual exercise pointing to the real world consequences of dialogue, thinking, and (personal) politics when addressing issues of racism, sexism, economic disparity, global conflicts, and death, many of the discussions concerning these ongoing challenges to humanity are fixed to a paradigm which sees the adjudication of material disparities and sociological realities as the conquest of one ideal theory “Ideal Theory as Ideology,” Charles Mills outlines the problem contemporary theoretical-performance styles in policy debate and value-weighing in Lincoln-Douglass are confronted with in their attempts to get at the concrete problems in our societies. At the outset, Mills concedes that “ideal theory applies to moral theory as a whole (at least to normative ethics as against metaethics); since ethics deals by definitiocan with normative/prescriptive/evaluative issues, against factual/descriptive issues.” At the most general level, the conceptual chasm between what emerges as actual problems in the world (e.g.: racism, sexism, poverty, disease, etc.) and how we frame such problems theoretically—the assumptions and shared ideologies we depend upon for our problems to be heard and accepted as a worthy “problem” by an audience—is the most obvious call for an anti-ethical paradigm, since such a paradigm insists on the actual as the basis of what can be considered normatively. Mills, however, describes this chasm as a problem of an ideal-as-descriptive model which argues that for any actual-empirical-observable social phenomenon (P), an ideal of (P) is necessarily a representation of that phenomenon. In the idealization of a social phenomenon (P), one “necessarily has to abstract away from certain features” of (P) that is observed before abstraction occurs. ¶ This gap between what is actual (in the world), and what is represented by theories and politics of debaters proposed in rounds threatens any real discussions about the concrete nature of oppression and the racist economic structures which necessitate tangible policies and reorienting changes in our value orientations. As Mills states: “What distinguishes ideal theory is the reliance on idealization to the exclusion, or at least marginalization, of the actual,” so what we are seeking to resolve on the basis of “thought” is in fact incomplete, incorrect, or ultimately irrelevant to the actual problems which our “theories” seek to address. Our attempts to situate social disparity cannot simply appeal to the ontologization of social phenomenon—meaning we cannot suggest that the various complexities of social problems (which are constantly emerging and undisclosed beyond the effects we observe) are totalizable by any one set of theories within an ideological frame be it our most cherished notions of Afro-pessimism, feminism, Marxism, or the like. At best, theoretical endorsements make us aware of sets of actions to address ever developing problems in our empirical world, but even this awareness does not command us to only do X, but rather do X and the other ideas which compliment the material conditions addressed by the action X. As a whole, debate (policy and LD) neglects the need to do X in order to remedy our cast-away-ness among our ideological tendencies and politics. How then do we pull ourselves from this seeming ir-recoverability of thought in general and in our endorsement of socially actualizable values like that of the living wage? It is my position that Dr. Martin Luther King Jr.’s thinking about the need for a living wage was a unique, and remains an underappreciated, resource in our attempts to impose value reorientation (be it through critique or normative gestures) upon the actual world. In other words, King aims to we must reformulate the values which deny the legitimacy of the living wage, and those values predicated on the flawed views of the oppressed worker, Blacks, and the colonized (dignity, justice, fairness, rights, etc.) used to currently justify the living wages in under our contemporary moral parameters.

The standard is minimizing oppression – to clarify, this is a consequentialist standard.