Blake Invitational 1 Kamiak nb aff

Aff Kant Ripstein

Any moral valuation presupposes the unconditional worth of humanity—that means treating others as ends in themselves.

Korsgaard 83 bracketed for gendered language (Christine M., “Two Distinctions in Goodness,” The Philosophical Review Vol. 92, No. 2 (Apr., 1983), pp. 169-195, JSTOR)

The argument shows how Kant's idea of justification works. It can be read as a kind of regress upon the conditions, starting from an important assumption. The assumption is that when a rational being makes a choice or undertakes an action, they he or she supposes the object to be good, and its pursuit to be justified. At least, if there is a categorical imperative there must be objectively good ends, for then there are necessary actions and so necessary ends (G 45-46/427-428 and Doctrine of Virtue 43-44/384-385). In order for there to be any objectively good ends, however, there must be something that is unconditionally good and so can serve as a sufficient condition of their goodness. Kant considers what this might be: it cannot be an object of inclination, for those have only a conditional worth, "for if the inclinations and the needs founded on them did not exist, their object would be without worth" (G 46/428). It cannot be the inclinations themselves because a rational being would rather be free from them. Nor can it be external things, which serve only as means. So, Kant asserts, the unconditionally valuable thing must be "humanity" or "rational nature," which he defines as "the power set to an end" (G 56/437 and DV 51/392). Kant explains that regarding your existence as a rational being as an end in itself is a "subjective principle of human action." By this I understand him to mean that we must regard ourselves as capable of conferring value upon the objects of our choice, the ends that we set, because we must regard our ends as good. But since "every other rational being thinks of his existence by the same rational ground which holds also for myself' (G 47/429), we must regard others as capable of conferring value by reason of their rational choices and so also as ends in themselves. Treating another as an end in itself thus involves making that person's ends as far as possible your own (G 49/430). The ends that are chosen by any rational being, possessed of the humanity or rational nature that is fully realized in a good will, take on the status of objective goods. They are not intrinsically valuable, but they are objectively valuable in the sense that every rational being has a reason to promote or realize them. For this reason it is our duty to promote the happiness of others-the ends that they choose-and, in general, to make the highest good our end.

This outweighs:

A analytic

B analytic

C Constrains action—a non-universal norm justifies someone’s ability to impede on your ends, which also means universalizability acts as a side constraint on ends-based frameworks.

Siyar 99 Jamsheed Aiam Siyar: Kant’s Conception of Practical Reason. Tufts University, 1999:

. Now, when I represent my end as to be done, I represent it as binding me to certain courses of action, precluding other actions, etc. Thus, my ends function as constraints for me in that they determine what I can or must do (at least if I am to be consistent). I may of course give up an end such as that of eating ice cream at a future point; yet while I have the end, I must see myself as bound to do what is necessary to realize it.35 Thus, I must represent my ends as constraints that I have adopted, constraints that structure the possible space of choice and action for me. Further, given that my end is rationally determined, I take it to be generally recognizable that my end functions as a rationally determined constraint. That is, I take it that other subjects can also recognize my end as an objective constraint, for I take it that they as well as myself can cognize its determining grounds—the source of its objective worth—through the exercise of reason. Indeed, in representing an end, I in effect demand recognition for it from other subjects: since the end functions as an objective though self-imposed constraint for me, I must demand that this constraint be recognized as such. The thought here is simply that if I am committed to some end, e.g. my ice cream eating policy, I must act in certain ways to realize it. In this context, I cannot be indifferent to the attitudes and actions of others, for these may either help or hinder my pursuit of my end. Hence, if I am in fact committed to realizing my end, i.e. if I represent an end at all, I must demand that the worth of my end, its status as to be done, be recognized by others.

However, rightful valuation of ends cannot take place in the state of nature – this leaves us vulnerable to constant external violations of freedom. Thus, we need an omnilateral will.

Varden 10 “A Kantian Conception of Free Speech” by Helga Varden Chapter from: “Freedom of Expression in a Diverse World” edited by Deirdre Golash 2010

“The first important distinction betwenen Kant and much contemporary liberal thought issues from Kant’s argument that it is not in principle possible for individuals to realize right in the state of nature. Kant explicitly rejects the common assumption in liberal theories of his time as well as today that virtuous private individuals can interact in ways reconcilable both with one another’s right to freedom and their corresponding innate and acquired private rights. All the details of this argument are beyond the scope of this paper. It suffices to say that ideal problems of assurance and indeterminacy regarding the specification, application and enforcement of the principles of private right to actual interactions lead Kant to conclude that rightful interaction is in principle impossible in the state of nature.5 Kant argues that only a public authority can solve these problems in a way reconcilable with everyone’s right to freedom. This is why we find Kant starting his discussion of public right with this claim: however well disposed and right-loving men might be, it still lies a priori in the rational idea of such a condition (one that is not rightful) that before a public lawful condition is established individual human beings... can never be secure against violence from one another, since each has her own right to do what seems right and good to her and not be dependent upon another’s opinion about this (6: 312).6 There are no rightful obligations in the state of nature, since in this condition might (‘violence’, or arbitrary judgments and ‘opinion’ about ‘what seems right and good’) rather than right (freedom under law) ultimately governs interactions. According to Kant, therefore, only the establishment of a public authority can enable interaction in ways reconcilable with each person’s innate right to freedom. Moreover, only a public authority can ensure interaction consistent with what Kant argues are our innate rights (to bodily integrity and honor) and our acquired rights (to private prop- erty, contract and status relations). The reason is that only the public authority can solve the problems of assurance and indeterminacy without violating anyone’s right to freedom. The public authority can solve these problems because it represents the will of all and yet the will of no one in particular. Because the public authority is representative in this way – by being “united a priori ” or by being an “omnilateral” will (6: 263) – it can regulate on behalf of everyone rather than on behalf of anyone in particular. For these reasons, civil society is seen as the only means through which our interactions can become subject to universal laws that restrict everyone’s freedom reciprocally rather than as subject to anyone’s arbitrary choices.” (46-47)

Thus, the standard is consistency with the omnilateral will. Prefer –

1 Deeper exploration of Kant’s political philosophy is key to understanding individual subjectivity – that’s the best starting point for fighting oppression.

Varden 13 Helga Varden, University of Illinois at Urbana-Champaign “Review of: Kantianism, Liberalism, and Feminism: Resisting Oppression by Carol Hay” Notre Dame Philosophy Review, 2013

Second, in my view, oppression is not "just" an ethical issue, but also an issue of justice (what Kant calls "right"). So, as a matter of Kant interpretation, I believe that the more complete analysis of sexual harassment and sexual oppression (and the duty to resist) will incorporate an account of Kant's "Doctrine of Right" as well as an analysis of how this account fits with his account of ethics, including his distinction between perfect and imperfect duties. In the current version of Hay's theory, there is little attention paid to the "Doctrine of Right" (and the related secondary literature) or to how her current account of self-respect fits with it. Moreover, her current account places much emphasis on viewing self-respect as an imperfect duty. This revised account of self-respect is the main "comprehensive" move Hay suggests (against Rawls) that a Kantian theory of justice needs in order to analyze the problem of sexual oppression. Since this move is so important to her project, showing the compatibility between it and Kant's "Doctrine of Right" appears central. Moreover, if we try to do this on Hay's behalf (since she does not do it), there arises the problem that Kant, in the "Doctrine of Right", insists (for good reasons) that imperfect duties necessarily fall outside the scope of right. In the very least, it seems necessary to maintain that such an imperfect duty cannot be understood as enforceable, that is, it does not track punishable culpability. But then it cannot also be what explains any legal (coercive) measures to protect everyone's right not to be oppressed. Hence, it's hard for me to see how seeing self-respect as an imperfect duty can perform such a core function in a Kantian theory of justice, or alternatively as part of a fuller account of oppression that includes both ethics and justice. Alternatively, Hay's current account leaves me wondering what role a duty of self-respect can play in a liberal theory of justice that is fundamentally committed to the idea that individuals have a right to set and pursue ends of their own, including imprudent ends, as well as a right to consent to be harmed in many ways? And since there is latitude involved in the corresponding duty to resist, who should decide when one is culpable and when one is not? Finally, it seems to me that Hay's current analysis of oppression doesn't utilize what some so-called republican interpreters regard as one of the core insights in the "Doctrine of Right". According to these interpretations, the analysis of the legal rights individuals hold against one another (private right), and so the wrongs they can do against one another, is not coextensive with the analysis of the legal rights citizens hold against their public institutions (and so the wrongs that are inherently systemic in nature). My suggestion is that such a distinction between different kinds of rights (and corresponding wrongdoings) is exactly what we Kantians need in order to analyze the distinction between particular instances of sexual harassment (a case covered under private right) and the systemic wrongs involved in sexual oppression (a case covered under public right). Let me turn to a quick reflection on Hay's third assumption, her understanding that the "ought implies can" principle restricts the Kantian framework. Briefly, my suggestion is that another piece of Kant's "Doctrine of Right", his understanding of "doing wrong in the highest degree," may be helpful to Hay. Kant introduces this idea at the end of the "Doctrine of Private Right", where he argues that it is possible, sometimes, not to wrong anyone in particular, but still to do wrong in general. How to understand Kant here is highly controversial, but it seems to me that looking to some of these interpretations may give Hay what she needs to make sense of how sexual harassment and oppression often involves situations in which there is no morally good or unproblematic way out for individuals subjected to it. In cases of sexual harassment where the victims are powerless, we do not wrong ourselves (since we're not the ones doing the harassing), and yet we experience it as coming at a moral cost to do the only thing we can do, which is to take it. Moreover, when we live in sexist societies, we cannot do what we think is morally required, namely to end it right now (since we currently lack the power to change it). Yet even though it is not our fault and we do what we can, we also experience our inaction as coming at a moral cost or with a special kind of moral regret. In both cases, because we can't do the right thing, we can't be obliged to do it (there is no "ought" in the normal sense). Yet, doing nothing also seems wrong; it offends one's moral conscience and makes it hard to live with. This idea, I believe, is fruitful to explore as Hay continues to develop her Kantian accounts of sexual harassment and oppression.

2 Only the AC framework avoids infinite regress – otherwise we can constantly question commitment to the ends of others.

Velleman 06 David, “Self To Self”, Cambridge University Press, 2006, pg 18-19

As we have seen, requirements that depend for their force on some external source of authority turn out to be escapable because the authority behind them can be questioned. We can ask, “Why should I act on this desire?” or “Why should I obey the U.S. Government?” or even “Why should I obey God?” And as we observed in the case of the desire to punch someone in the nose, this question demands a reason for acting. The authority we are questioning would be vindicated, in each case, by the production of a sufficient reason. What this observation suggests is that any purported source of practical authority depends on reasons for obeying it—and hence on the authority of reasons. Suppose, then, that we attempted to question the authority of reasons themselves, as we earlier questioned other authorities. Where we previously asked “Why should I act on my desire?” let us now ask “Why should I act for reasons?” Shouldn’t this question open up a route of escape from all requirements? As soon as we ask why we should act for reasons, however, we can hear something odd in our question. To ask “Why should I?” is to demand a reason; and so to ask “Why should I act for reasons?” is to demand a reason for acting for reasons. This demand implicitly concedes the very authority that it purports to question—namely, the authority of reasons. Why would we demand a reason if we didn’t envision acting for it? If we really didn’t feel required to act for reasons, then a reason for doing so certainly wouldn’t help. So there is something self-defeating about asking for a reason to act for reasons.

Advocacy

I defend the resolution as an omission – specification and PICs are irrelevant to the aff, as they don’t disprove my general thesis, but I will defend normal means for all questions of implementation for the sake of neg DA links – solves abuse on spec since you can just cut ev for whatever normal means is on a DA link.

Contention 1 – Retributivism

Crimes constitute unilateral exemption from the omnilateral will, which requires punishment as a coercive response.

Ripstein 1 brackets for gendered language Arthur Ripstein, Force and Freedom” Harvard University Press, 2009

Kant’s engagement with questions of crime and punishment must be understood as an answer to a different, individual challenge to the supremacy of public law. The criminal is punished because they he has committed a crime. A crime, in turn, is a “transgression of public law that makes someone who commits it unfit to be a citizen.”20 In a footnote to his discussion of revolution, Kant explains that “any transgression of the law can and must be explained only as arising from the maxim of the criminal (to make such a crime his rule); for if it were to derive from a sensible impulse, he would not be committing it as a free being and it could not be imputed to him.”21 The criminal’s maxim is the rule on which he acts, and, like any maxim, must have the form “use these means in order to achieve this end.” The wrongfulness focuses on the means the criminal has used, because external wrongdoing always consists in using prohibited means: private wrongs against person and property involve either using means that belong to another or acting in ways that deprive another person of means to which he or she is en ti tled. Kant’s use of the vocabulary of maxims to make this point might suggest that something more than means is at issue. But Kant’s elucidation of the concept of right in the Introduction to the Doctrine of Right makes it clear that “no account at all is taken of the matter of choice, that is, the end each has in mind with the object he wants.”22 Thus a crime is ob jec tionable from the standpoint of right purely on the basis of the means that are used, regardless of the end pursued. Kant’s examples of crime all turn on the use of wrongful means: theft, murder, burglary, rape, and counterfeiting;23 in each case, the wrongfulness of the crime is iden ti fied through the means used rather than the end pursued. In each case, the criminal uses means that he knows to be prohibited. The criminal’s ends are ordinary, and might be pursued in other contexts through acceptable means. The use of those prohibited means (with the exception of some instances of counterfeiting)24 also typically wrongs someone in particular, and the victims would also have a private right of action against the criminal. But the distinctively criminal aspect of the wrong is the use of publicly prohibited means. The criminal uses means that are inconsistent with a system of equal freedom, and that inconsistency provides the grounds for prohibiting those crimes: theft, murder, and counterfeiting are inconsistent with a system of equal freedom under universal law, and so they must be prohibited under public law. Kant writes that “counterfeiting money or bills of exchange, theft and robbery, and the like are public crimes, because they endanger the commonwealth and not just an individual person.”25 The emphasis on the danger to the commonwealth recurs in his discussion of theft, when he writes, “Whoever steals makes the property of ev ery one else insecure.”26 These claims all go to the grounds for prohibiting theft, counterfeiting, and the like: they are inconsistent with the possibility of property; since part of the state’s role is to make property claims conclusive, it must prohibit crimes against property. None of these enters Kant’s account as an empirical claim about the inevitable or even probable effects of crime. Instead, they enter as claims about the normative structure of property. As we saw in Chapter 4, a property right is a right to an object that can be physically separate from its owner but still subject to the owner’s choice. Theft violates the basic norm of property: the thief seeks to remove an object from the owner’s choice merely by physically separating it from the owner. If you were en ti tled to do that, there could be no property. That is why theft is a wrong against the owner whose property is stolen. The ground for punishing theft, however, is not the fact that the thief chooses to violate the basic norm of property. Instead, the grounds for punishment re flect the fact that his choosing to do so must be understood as choosing to exempt himself from the authority of the law. Kant writes that “any transgression of the law can and must be explained only as arising from a maxim of the criminal (to make such a crime his rule).” His rule may be one of exemption, “without formally renouncing obedience to the law.” Such self- exemption need not expressly repudiate the law in the way that Kant supposes that a revolutionary or regicide does—it is not, as Kant says “diametrically opposed to the law.”27 The criminal’s choice of means is inconsistent with the rule of law and so with a civil condition, because she unilaterally determines which means are available to her, rather than accepting the omnilateral judgment of public law. She thereby asserts a claim to what Kant elsewhere calls “wild, lawless freedom.” The inconsistency parallels the inconsistency between theft and property, but does not merely replicate it. The structure of a civil condition is that omnilateral public law replaces unilateral private judgment. Through their representatives, the citizens as a collective body give themselves laws, together. No private person is en ti tled to make, apply, or enforce laws. Only of fi cials acting in their of fi cial capacities are enti tled do so. Much of the matter of these laws is dictated by innate right or private right: public law “contains no further or other duties of human beings among themselves than can be conceived” in a state of nature; “the laws of the condition of public right accordingly have to do only with the rightful form of their association.”28 In making crime her rule, the criminal violates not only the “duties of human beings among themselves” that make up the matter of most familiar crimes, but also the rightful form of public law, because the criminal’s “rule” is one of unilateral exemption from omnilateral law. If unilateral choice could cancel omnilateral law, there could be no omnilateral law.29 Crime is a public wrong because of its inconsistency with the claim of public law to protect those rights. In the concluding note to Private Right, Kant introduces a distinction between what is formally wrong and what is materially wrong.30 His immediate concern is with acts that are formally but not materially wrong, such as remaining outside a rightful condition. His analysis of crime shows that some acts can be both formally and materially wrong.31 Formal wrongs “take away any validity from the concept of right itself and hand ev ery thing over to savage violence, as if by law, and so subvert the right of human beings as such.”32 The right of human beings as such is the right to freedom with others under universal law; the repudiation of the possibility of reciprocal limits on freedom in favor of “wild, lawless freedom” is contrary to it. The criminal “hands ev ery thing over to savage violence” in the same way that the thief “makes the property of ev ery one else insecure.” Both the criminal wrongfulness of his act and the ground for punishment rest on formal aspects of his rule of action: the incompatibility of theft with property grounds criminalizing theft as a matter of public law; its incompatibility with publicly given law grounds its punishment. A crime is a violation of the very possibility of a system of equal freedom, because the criminal be comes a law unto himself. His principle of action permits him to exempt himself from the public legal regulation of conduct and resolution of disputes. As such, he is like the person who chooses to remain in a state of nature: he asserts his own “wild, lawless freedom” against the claims of the state, even if he does so “by way of default only.”33 So a crime is wrongful both against its victim and against the public: it is inconsistent with the rights that private persons have against each other; and it is inconsistent with the right of the citizens, considered as a collective body, to uphold their respective freedom by giving themselves laws together. Every crime will, by its nature, “endanger the commonwealth,”34 because the commonwealth itself is nothing more than the possibility of the citizens giving themselves laws together. That is why the criminal is discussed together with the revolutionary, the entailed estate, the church, the hereditary nobility, and even the people, considered culturally rather than juridically. Each claims a priority over public law, and so a wild, lawless freedom within a spe cific domain, because each supposes that the principles of social order should be something in de pen dent of principles of the rule of law.

However, punishment cannot be arbitrary – it must be universally proportional to the crime.

Ripstein 2 brackets for gendered language Arthur Ripstein, Force and Freedom” Harvard University Press, 2009

Kant gives little guidance as to how this might be done, but the formal nature of criminal wrongdoing generates the perspective from which this issue can be addressed. Because ev ery crime is formally a self- exemption from public law, exclusion from the system of freedom must be the appropriate punishment. The seemingly self- contained nature of property is not only unrepresentative but misleading in this respect. The underlying retributive principle requires excluding the wrongdoer from par tic ipa tion in the civil society constituted by public law insofar as he has sought to exempt himself from some aspect of public law. Every form of punishment will thus be a form of exclusion from full par tic i pa tion in civil society. The “spirit” of lex talionis is thus the requirement that self- exemption be hindered by exclusion. Indeed, as Kant’s own discussion of theft makes clear, the only way to exclude someone from the system of property is to physically con fine them him. The most obvious way to exclude someone from a system of freedom is also through physical con finement.40 The appropriate quantum of con finement—the length of the prison term—must be proportional to the gravity of the wrong. In assessing the gravity of the wrong, the particular public law the criminal violated provides an appropriate mea sure, for the material wrong is the precise manner in which the criminal has committed the formal wrong. Thus the principle of lex talionis must always be honored in its spirit.41 The particularity of the criminal’s choice of means is only significant in as much as it is the material way in which the criminal sought to exempt themself himself from public law. Excluding him from par tic i pa tion in the system of freedom created by a rightful condition addresses the public aspect of the wrongfulness; the particularity of the matter can only be speci fied in light of it. Kant’s preferred example of property illustrates this point: the thief is excluded from property by excluding him from freedom under law.

That affirms:

A Plea bargaining definitionally violates – it allows punishment to be applied disproportionate to the crime based on contigent court circumstances.

Slobogin 16 Christoher, Milton Underwood Professor of Law“Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism” Vanderbilt University Law School Public Law and Legal Theory, 3-15-16

Unfortunately for this point of view, plea bargaining regularly results in disproportionate punishments. Plea bargaining creates a fundamental problem for retributivism because, for bargaining to work, there must be a significant divergence between the sentence that results from a plea and the sentence that results from trial.7 Perhaps the sentence proffered by the bargaining prosecutor is retributively appropriate. Perhaps the sentence that can be imposed at trial is. Perhaps neither is. But, at the least, it is clear that both cannot be. While most retributivists are willing to contemplate a sentencing range for a given crime, those variations are meant to recognize that different offenders charged with the same crime might warrant different punishments, not that the same offender can receive divergent sentences.8 Perhaps, to facilitate bargaining, some retributivists would be willing to countenance a small differential between the plea and trial sentence. But in practice that option is rarely available, apparently because a greater differential is needed to encourage guilty pleas. 9 It is well documented that the trial penalty can be three to four times the plea bargain deal (in Lafler, for instance, the plea offer-trial differential was more than 35010), and it rarely falls below a 15 increase.11 Even in a regime, such as the federal sentencing guidelines, that requires prosecutors to adhere to a narrow retributive range for a particular crime, the formal discount for a guilty plea is substantial (25- 35), and presumably well beyond what even a flexible retributivist would permit. 12 As a result, bargaining practices routinely make a joke out of the conceit that our system is founded on desert. Take the most famous case in this regard, Bordenkircher v. Hayes. 13 There the prosecution told Paul Hayes, charged with his third offense (a forgery), that if he did not plead guilty and accept a five year sentence he faced trial under a three-strikes statute that required life in prison upon conviction; Hayes refused the deal, was convicted and was sentenced to life.14 Most would agree that the life sentence was disproportionate to Hayes’ crimes; indeed, one can make a plausible argument that even the five-year sentence offered by the prosecution was disproportionate, especially if the focus is solely on the forgery. But the important point is not that the legislature may have ignored retributive ideals in authorizing these sentences. It is that, rather than pursue the just disposition, whatever it may be, the institution of plea bargaining requires prosecutors to be willing to seek two entirely different sentences, at least one of which will be disproportionate to the defendant’s culpability. Usually, of course, defendants like Hayes take the deal, sometimes because it provides more certainty, but most often because it is simply too good to turn down. As federal district court judge Jed Rakoff recently noted, “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.”15 Significant differentials also occur in “substantial assistance” cases. For instance, Gordon Shuster was a big-time drug manufacturer and dealer, charged with multiple drug offenses. But his cooperation with the authorities in helping to nab other, lesser players in his drug empire allowed him to avoid incarceration completely.16 From a purely retributive perspective, the practice of reducing a sentence or charge in exchange for a guilty plea or information is unjustifiable. The mere fact that the defendant is willing to plead guilty has little or no bearing on an offender’s desert. Even if one were to accept the disputed notion that remorse is relevant to desert and the even more questionable assumption that a guilty plea signals genuine remorse,17 the mitigating impact of the agreement to plead guilty cannot account for such a huge windfall.18 When, as in Shuster’s case, the discount results from providing the government “substantial assistance” in solving other crimes or fingering other criminals, the insult to retributivism is even more flagrant. Willingness to rat on one’s colleagues in crime often has nothing to do with an individual’s culpability for his or her current charge, and, as in Schuster’s case, may even be inversely related. 19 Yet a significant number of plea deals are based on cooperation.20 One might try to salvage the situation by positing that the reduced charges or sentences that occur in most plea bargained cases reflect true desert, while the initial charge is merely a negotiating ploy.21 But if that were true, in the 5 or so of the cases where defendants reject the plea and are convicted the resulting sentence would, by definition, be disproportionate. Furthermore, if the prosecutor’s offer reflected true desert, defendants would have a good argument that they should receive an even better deal. After all, by pleading guilty and obviating trial they are giving the prosecutor something of value; in return, they should receive punishment that is more lenient than they deserve. In practice, plea bargaining often works in that fashion. A negotiated sentence will be significantly lower than desert would dictate, or at least lower than the public think offenders deserve,22 simply because efficiency becomes the preeminent concern (which helps explain deals like Shuster’s and the hundreds of thousands of non-prosecutions on low-level charges). 23 However, it should also be recognized that the negotiated sentence or charge could also be much higher than desert dictates (as might be the case with the five-year sentence offered in Hayes and many of the drug cases noted by Judge Rakoff). As William Stuntz has argued, prosecutors often push legislators to enact extremely harsh sentences and easier-to-prove crimes to provide leverage during bargaining. 24 That means that even bargained-for punishment can be well above the optimum desert threshold. The best attempt to reconcile retributivism with plea bargaining comes from Michael Cahill.25 Cahill recognizes that under an “absolutist” retributive model in which every offender must receive his or her just desert, plea bargaining, witness immunity, downward departures for substantial assistance, and any other failure to impose deserved punishment would be “categorically” banned.26 However, Cahill claims that under what he calls “consequentialist retributivism,” prosecutors could “forgo punishment (or accept reduced punishment) for some offenders, if doing so would enhance the total measure of desert-based punishment” among all offenders.27 For example, prosecutors could reduce sentences below the proper deserved disposition if that reduction freed up resources for prosecuting offenders who would otherwise not be prosecuted, or if it provided evidence (as in substantial assistance cases) that allowed conviction of an otherwise unconvictable offender.

B Plea bargaining is a conceptual contradiction – It allows law to be opted-out of in specific instances, violating universal law.

Fine 87 Ralph, 1987 “Plea Bargaining: An Unnecessary Evil”, Marquette Law Review, Volume 70, Issue 4, Summer 1987 SJ MC

B. Plea Bargaining Weakens Respect For the Law An essential component of rehabilitation is a respect for society and its laws. However, plea bargaining teaches the criminal that judges and lawyers can ignore the law when it is expedient to do so. Significantly, many plea bargains result in charges that cannot be sustained by the facts. One common plea bargain in Wisconsin is to reduce a charge of "operating a vehicle without the owner's consent," a two-year felony,15 to "joyriding," a nine-month misdemeanor,16 even though the car may have been damaged and return of the vehicle undamaged within twenty-four hours is an element of the misdemeanor charge."7 Prosecutors, of course, should issue only those charges for which the evidence would support a conviction at trial. 8 Milwaukee County District Attorney E. Michael McCann, apparently goes a step further and advocates an even more rigorous screening, at least under some circumstances. Thus, several years ago, although he publicly stated that two Green Bay Packers players accused of sexual assault were guilty of "indecent and immoral sexual over- reaching"'19 and that their conduct in connection with the incident was "reprehensible, shameful and depraved, '2° he declined to prosecute them because he "determined that the state would be unable to prove the guilt of the two men be- yond a reasonable doubt."'21 This, as Wisconsin Supreme Court Justices Donald W. Steinmetz and Roland B. Day have noted,22 is an even stricter standard than that recommended by the American Bar Association 3 and would, obviously, preclude many plea bargain arrangements. Nevertheless, plea bargaining often involves fiddling with the facts.24 As a prosecutor told two researchers working under a National Institute of Mental Health grant: "A lot of fictions are entered into. For instance, with the elements. In order to get within a lesser included offense, people kind of fudge the facts a bit. I've seen some people plead guilty.., to attempted possession of narcotics, and I think that is pretty hard to do!"25 What is the "spree" criminal to think when it is "bargain day" at the courthouse: four armed robberies for the price of one? What is an impressionable young man to think when, after smashing up a stolen car, he is allowed to plead guilty to the reduced charge of "joy riding?" 26 As one commentator has recently written, plea bargaining "often destroys the integrity of the criminal justice system by allowing defendants to appear to be convicted of crimes different from the ones they actually committed. 27 One of the biggest fictions connected with plea bargaining is the practice of permitting a defendant to plead "guilty" while simultaneously proclaiming his or her innocence. Although authorized by North Carolina which was, significantly, a death penalty case - it is an Alice in Wonderland expediency that vitiates public confidence in the criminal justice system. Simply put, if we want defendants to respect the law, we must enforce it with justice and honesty.

Contention 2 – Truth-Seeking

The intrinsic purpose of the criminal justice system is to prove standards of truth – thus, plea bargaining violates the standard.

Fisher 07 Journal of Criminal Law and Criminology Volume 97 Issue 4 Summer Article 1 Summer 2007, The Boundaries of Plea Bargaining: Negotiating the Standard of Proof Talia Fisher SJ MC

According to the Kantian paradigm, the defendant is a subject in the criminal process and does not serve as its object. 100 Accordingly, the only question to be determined in the criminal trial is that of the defendant's guilt-a question that must be answered with the highest possible degree of certainty. Any lowering of the evidentiary standard that might deliberately and systematically lead to the conviction of an innocent person damages the moral legitimacy of the criminal proceeding.'' The central objective of criminal procedures and rules of evidence is to protect the innocent from wrongful conviction. 0 2 Here lies the deontological basis for mandating that proof of culpability in criminal proceedings be set "beyond a reasonable doubt." In light of the above, the deontological criticism that may be leveled against the proposed model becomes clear: any deviation from the original allocation of risk in the criminal procedure has the effect of deliberately exposing the defendant to wrongful conviction and harms the procedure's legitimacy by turning the defendant into an object, rather than subject, of the procedure. 0 3 The fact that the lowering of the standard of evidence under the proposed model results from the consent of the defendant and serves his own benefit is immaterial. One cannot use criminal punishment to further external social ends, including the welfare of the defendant.10 4 It is true that the existing model of criminal proceedings is not immune to the possibility of wrongful convictions. However, according to the deontological paradigm, the moral legitimacy of the process is determined by the steps taken to prevent such wrongful convictions and not by the end result. In this sense, the two following scenarios are not tantamount under deontological reasoning: (1) a defendant wrongfully convicted under the existing "beyond a reasonable doubt" standard who faces a ten-year sentence; and (2) a parallel situation under the proposed model, in which ten innocent people are wrongfully convicted under a standard of proof based on the "preponderance of the evidence" and sentenced to one year of imprisonment each. 105 Under the deontological approach, the difference between the two scenarios is apparent even if we assume that the two end results are substantively identical (assuming, for instance, that each defendant incurs zero costs for the stigma of a criminal conviction, ignoring costs of trial for each defendant, and assuming a fixed marginal cost per each year of imprisonment).10 6 The material difference between a situation where a defendant is wrongfully convicted according to the maximum evidentiary standard of "beyond a reasonable doubt" (and for which he receives a lengthy sentence) and one in which several innocent people are convicted according to a lower standard of proof (and for which they each receive a more lenient punishment) lies in the fact that the first conviction is not a systematic part of the criminal proceedings, but rather is a regrettable mistake, whereas the latter convictions are built into the process'0 7 and are the product of deliberate action. 108 In conclusion, in the spirit of the deontological approach, the criminal process is distinguished from the model of civil litigation. The aim of the criminal process is not to efficiently settle a dispute between the prosecution and the defense. Rather, it is intended to determine the right of the state to label defendants as criminals, to deprive them of their freedom, and to impose suitable criminal sanctions upon them.'0 9 The basic purpose of the criminal process is to legitimize criminal punishment, not to promote the welfare of the defendant or further social aims. Enhancing the defendant's exposure to risk of wrongful conviction, and placing the procedure in the hands of the prosecution and defense for their own benefit, negates the moral legitimacy of the criminal process and its concomitant punishments. It converts the criminal process and its related sanctions into tools for achieving extraneous goals and, in so doing, harms the human dignity of the defendant.

Consequences don’t link to the standard – a Kantian conception of law requires strict adherence to the intrinsic purpose of finding guilt.

Fisher 07 Journal of Criminal Law and Criminology Volume 97 Issue 4 Summer Article 1 Summer 2007, The Boundaries of Plea Bargaining: Negotiating the Standard of Proof Talia Fisher SJ MC

As previously explained, it is not possible to resolve a negotiable standard of proof model with the Kantian approach to the criminal process. According to Kant, judicial decisions must stem from a process that is aimed at ascertaining guilt with the maximal certitude rather than at realizing extrinsic ends. 166 Under the proposed model, attributes of the criminal process become trading cards in the hands of the defense and prosecution. They become instruments for realizing external objectives such as decreasing risk or lowering enforcement costs, and they deviate from questions of the defendant's guilt or appropriate punishment. However, the problem with applying the Kantian doctrine to the proposed model is that it equally applies to current plea bargaining practices. Accordingly, it is not possible to employ the Kantian criticism to reject the proposed model without simultaneously rejecting current plea bargains. Instead, one can justify both the classic plea bargain and the proposed model using an alternative vision of autonomy, which deviates from the Kantian paradigm and views the alienability of procedural rights in the criminal trial as a variable that supports autonomy and reflects the recognition of the defendant's human dignity.

UV Theory

1 1AR theory is legit and dd

analytic

2 Affirming is harder so all theory arguments have an implicit aff flex standard A) Strat skew b/c the neg can adapt a strategy based off the advocacy of the 1ac B) 7-4-6-3 structural time skew C) the most recent empirics of late elim rounds show huge neg side bias. ADLER 15:

Are Judges Just Guessing? A Statistical Analysis of LD Elimination Round Panels by Steven Adler http://nsdupdate.com/2015/03/30/are-judges-just-guessing-a-statistical-analysis-of-ld-elimination-round-panels-by-steven-adler/

Yet a plausible objection here might be that maybe the elimination round data need to be further segmented. For instance, perhaps the data do not meet this randomization because judges can easily distinguish between winners and losers in early elimination rounds, which typically contain more-lopsided matchups, but that in late elimination rounds the decision is much murkier. In fact, I find some support for this hypothesis, though it may be an artifact of a smaller sample-size for this segment.To evaluate this hypothesis, I replicated the above analysis, but pared down to the 36 coded rounds that took place in quarterfinals or later. In these rounds, the Neg side-bias was even more pronounced, with Neg winning 61 of elimination rounds, so the ‘expected’ randomization rate on ballots to achieve such an overall win-rate would be 57 for the Neg and 43 for the Aff. This creates the following expected distribution, compared to the actual observed distribution for these late elimination rounds:

Empirics over analytics on the side bias debate: a analytics are more likely to be biased and twisted by debater perceptions, whereas good empirics can tell a whole story

3 No paradigm issues in the 2NR: that means things like reject 1AR theory, err neg on theory, meta-theory bad, substance before theory must all be in the 1NC. Prefer: a time skew – gives you a 6-3 time advantage to just read a bunch of paradigm issue to spread out the 2AR, which is awful since they all function as NIBs that constrain my ability to win the theory debate b norming – debaters only read shitty paradigm dumps bc they know it makes the 2AR on theory hard, not to actually determine what issues set the most fair/educational theory debates – forcing the debate to start earlier in the 1N forces the neg to pick their best arguments, otherwise they waste their time.

4 Vote aff if I win a counter-interp:

analtic

UV Util

Consequentialism is incoherent:

Problem of induction – takes out the AC Framework.

Vickers 14, John Vickers, 2014, The Problem of Induction, https://plato.stanford.edu/entries/induction-problem/

The original problem of induction can be simply put. It concerns the support or justification of inductive methods; methods that predict or infer, in Hume's words, that “instances of which we have had no experience resemble those of which we have had experience” (THN, 89). Such methods are clearly essential in scientific reasoning as well as in the conduct of our everyday affairs. The problem is how to support or justify them and it leads to a dilemma: the principle cannot be proved deductively, for it is contingent, and only necessary truths can be proved deductively. Nor can it be supported inductively—by arguing that it has always or usually been reliable in the past—for that would beg the question by assuming just what is to be proved.

2. analytic