Blake Invitational 1 Kamiak nb aff

28 Strake VL Neg

https://hsld.debatecoaches.org/Strake+Jesuit/Liu+Neg

CP Reforms

Counterplan Text: aff actor should

-require formal threshold charges for punishment

-extend pre-trial rights to those who accept plea bargaining

-release all exculpatory evidence

Solves the case and the root cause of aff impacts.

Rappaport 16 Jay Rappaport, Plea Bargaining: An Unfair Deal, from Roosevelt Review of the Roosevelt Institute at Columbia University, 2016, pg 24, https://issuu.com/columbiaroosevelt/docs/roosevelt_review_2016 SJ MC

An attainable way to solve many of the problems of plea bargaining would be to require a threshold charge before plea bargaining begins. With a threshold charge, barring the discovery of new evidence, prosecutors would be prohibited from charging the defendant with a more severe crime once plea bargaining has commenced. This system would nullify a big reason why people accept suboptimal or incorrect guilty pleas: the potential of receiving a harsher punishment should they refuse. Issuing a threshold charge would require the plea bargaining process have a formal start which it does not currently have. The extension of pretrial rights to plea bargaining also represents a feasible way to solve many of plea bargaining’s problems. Currently, when one accepts a guilty plea, one releases all pretrial rights, including the right to challenge an illegally obtained confession, because as written, such rights only apply when the defendant challenges the validity of a charge itself.9 Pretrial rights should be extended to defendants during plea bargaining to ensure that they are in the most beneficial bargaining position the law accords defendants generally. Finally, exculpatory evidence should be released during any plea bargain. In November 2015, the West Virginia Supreme Court ruled that prosecutors must release all exculpatory evidence—evidence that would benefit the defense— during a plea bargain. Such a mandate has applied to cases in court for over forty years.10 This decision should be enforced to allow for the defendant to achieve the most advantageous bargaining position. Criminal justice reform movements are plea bargaining reform’s biggest ally.

DA Circumvention

Plea bargaining will just recreate itself under another name and circumvent the system after a ban

Weninger 87 Weninger, Robert (Professor of Law, Texas Tech University) "The Abolition of Plea Bargaining: A Case Study of El Paso County, Texas." (1987).

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 pleaded 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. Although tacit judicial concessions are unsurprising wherever plea bargaining is practiced,1l9 they are of doubtful constitutionalityl20 and are out of place in a system which purports to have banned bargain justice. Sentence differentials encourage guilty pleas by making it costly for an accused to claim his constitutional right to adversarial procedure. When he is convicted following jury trial, the defendant, in effect, is punished twice-once for the crime and then again for "enjoying the right to ... trial ... by an impartialjury."121 Moreover, the allowance of a guilty 'plea discount likely dissuades other defendants from seeking an adjudication of guilt. It is probable that the persistence of guilty plea dispositions during the postperiod, as described above, is at least partly explained by the continuation of the practice of differential sentencing.

Circumvented plea bargaining gives the prosecutor more power and allows them to reneg on deals.

Prakash 11 Prakash, Priyanka (JD, Wash U, School of Law). "To plea or not to plea: the benefits of establishing an institutionalized plea bargaining system in Japan." Pac. Rim L. and Pol'y J. 20 (2011): 607.

The usefulness of tacit bargains for relieving burdens on Japan’s court system is diminished by the fact that such bargains are nonbinding and unenforceable if the prosecutor breaches the agreement. Japanese prosecutors may suspend prosecution on a particular charge, may recommend a lenient sentence, and may do something else that is the subject of an implicit bargain, but they need not do so.139 The tacit agreement does not appear on the record. 140 This leaves the defendant without a legal remedy if the prosecutor reneges on the implicit deal. 141 In contrast, a formal plea bargain is a written agreement signed by both parties and is enforceable as a contract once approved by the court.142 The written record of the plea agreement is useful if the prosecutor reneges on the deal, prompting the defendant to seek enforcement of the agreement. 143 American courts apply principles of contract law to the enforcement of plea agreements.144 For example, in an appropriate case, the defendant may be entitled to specific performance of the plea agreement.145 Conversely, prosecutors in Japan are keenly aware that they can change their minds about tacit bargains.146 While it is true that prosecutors normally abide by the terms of tacit agreements to encourage other defendants to confess in the future,147 the lack of a record and enforcement remedies leave the prosecutor with discretion as to whether to honor the agreement. This creates a scenario that is very different from formal plea bargaining: “defendants are not bargaining—instead, they are essentially throwing themselves at the mercy of the authorities, who ultimately decide whether to honor the ‘deal.’” 148 Even though prosecutors in the Japanese system usually honor informal deals because of the impact of repudiation on future cases, individual defendants may hesitate to confess and enter into implicit deals in the absence of formal enforcement mechanisms. This could lead to fewer tacit agreements, undermining the ultimate goal of bargaining, which is to reduce burdens on trial courts.

Unregulated plea bargaining is worse for defendants and leads to false confessions – Japan proves

Prakash 11 Prakash, Priyanka (JD, Wash U, School of Law). "To plea or not to plea: the benefits of establishing an institutionalized plea bargaining system in Japan." Pac. Rim L. and Pol'y J. 20 (2011): 607.

Despite Japan’s transition to a primarily adversarial legal system, the balance of power is still skewed in the prosecution’s favor, particularly during the pretrial stage. Prosecutors focus on obtaining confessions prior to trial, 78 and tacit bargaining relies on the defendant’s confession. Accordingly, the practice of tacit bargaining exploits the coercive conditions that exist at the pretrial stage due to the lack of procedural safeguards in the Japanese justice system. Confessions are considered to be the “‘king of evidence’” and form the basis for a conviction in over 90 of criminal cases in Japan, so the connection between tacit bargaining and coercive institutional structures raises concern in many cases. American-style institutionalized plea bargaining can help equalize the power of the defense and prosecution by affordsing defendants greater institutional safeguards when they decide whether to accept a plea agreement.

Formal plea bargaining is better

Prakash 11 Prakash, Priyanka (JD, Wash U, School of Law). "To plea or not to plea: the benefits of establishing an institutionalized plea bargaining system in Japan." Pac. Rim L. and Pol'y J. 20 (2011): 607.

While the American system is not immune from these kinds of abuses, the kind of institutionalized plea bargaining that is prevalent in America could reduce the coerciveness of Japan’s pretrial processes. Japanese authorities implicitly recognize this, citing the lack of a formal plea bargaining as a justification for their use of harsh interrogation methods.99 Because plea bargaining, unlike most forms of tacit bargaining, eliminates the trial stage, the main event of the criminal justice process in a plea bargaining system is the process of pretrial plea negotiations.100 Both parties bring all their bargaining chips to the plea discussions and must abide by the plea agreement that is reached; as discussed in greater detail below, the defendant can withdraw a guilty plea if the prosecutor reneges on the deal.101 The binding nature of the plea agreement gives the prosecutor incentive to engage defense counsel at each step of the negotiations and develop a mutually amicable agreement. This kind of negotiating environment facilitates “openness and candor” 102 between the parties during the bargaining process. It can permit more transparent negotiations and yield fairer deals that will withstand the test of time.

Theory ASPEC

Interpretation – the aff must clarify the actor enforcing their plan if asked in CX