Blake Invitational 1 Kamiak nb aff

CP Withhold Racial Demographics

CP: Prosecutorial offices ought to collect and withhold data regarding racial demographics until after a charge or plea decision is made, then incorporate the data into a comprehensive decision review and improvement process.

This allows for a check on prosecutorial discretion and decreases implicit racial bias

Smith and Levinson 12 summarizing Bibas: Robert J. Smith and Justin D. Levinson, 2012. “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion”. https://www.law.hawaii.edu/sites/www.law.hawaii.edu/files/content/levinson.pdf. RW

But there are some promising shorter-term remedial avenues. Stephanos Bibas suggests that prosecution offices might collect and store comprehensive information on racial demographics at each stage of the charging process. The collected data would be made available internally and to a variety of external stakeholders, which would both allow for the review of “systemic patterns” and “create feedback loops and new metrics for prosecutorial success.” Prosecutors’ offices might also provide live or video trainings on implicit bias to attorneys and paralegals and could also include thoughtful discussions and explanations of implicit racial bias in training manuals that address each of the decision points where implicit racial bias is likely to infect the process. Although there is no guarantee that live or written trainings would necessarily reduce bias, those who are egalitarian-minded could use these explicit reminders to self-monitor. Category-masking, the process of hiding racial demographic data until after the relevant decision is made, also holds some potential as a structural change that could reduce the effects of implicit bias. This process has previously been proposed as a possible remedy for race-based jury selection In the jury selection context, litigants would exercise a first round of peremptory strikes based on answers to juror questionnaires that were scrubbed for demographic data. A similar effort undergirds the decision to proceed under the federal death penalty statute—when the prosecutor receives the case file they are (theoretically) unaware of the race of either the victim or the defendant. Broadening this type of remedial effort beyond the situations of jury questionnaires and capital cases, one could imagine a process inside a district attorney’s office whereby a case intake coordinator masks all demographic information on a computerized case file (including the de- fendant’s name and mug shot) until after the assistant district attorney handling the case has made a nonbinding charging decision (and prelimi- nary plea bargain eligibility assessment).123 In addition, when office-wide data show significant disparities in charging or plea bargains in relation to a particular offense, any charging or bargaining decisions in those types of cases could be reviewed by a more senior prosecutor or a committee of prosecutors (with demographic data masked) regardless of the races involved. This process could continue until the office-wide data demonstrate that the disparity has been eliminated (or proven to be ac- counted for by legitimate nonracial variables). Finally, we believe the hiring and promotion of a more diverse pool of assistant district attorneys might curb the operation of implicit racial bias and might even improve the quality of decision-making on an office-wide level. Research in the jury context, for example, has shown that diverse group decision-making is better than homogenous group decision-making. Furthermore, research in other areas, such as the educa- tion arena, has found that students exposed to counter-stereotypical role models—for example, women engineering professors—actually harbored reduced implicit bias.125 Based on these studies and others, we would expect that a diverse prosecutor’s office might not only facilitate an at- mosphere with less implicit bias but could perhaps also lead to even more thoughtful and efficient decision-making. A related proposal that is both more aggressive and also more targeted to prosecutorial discretion would be to help assistant district attorneys better understand the minori- ty group population that they serve (both the victims and the defendants) by encouraging these lawyers (perhaps with housing or tax incentives) to live in neighborhoods disproportionately impacted by the charging deci- sions made by the district attorney’s office.126 Each of the potential remedies we discuss above would benefit from empirical testing, yet we do not believe, considering the likely on- going harms, that waiting for a perfect scientific answer to the debiasing question is the best response. It is true that there are no easy answers for remedying the influence of implicit racial bias on prosecutorial discre- tion. Yet, justice should not wait, and the search for fairness in the crimi- nal justice system must continue with both a moral compass and a thirst for emerging social-scientific knowledge.

CP Plea Juries

1NC-CP

CP: The United States federal government ought to establish “plea juries” for the evaluation of plea bargains.

Using juries to either pass or reject proposals for plea bargains allows for better representation, more agonistic deliberation, and checks prosecutorial abuse

Neyfakh 15: Leon Neyfakh, April 7th, 2015. Slate Publishing. “No Deal: Should Prosecutors be forced to have their plea bargains approved by juries?”. http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2017/11/a_dispatch_from_oral_arguments_in_carpenter_v_united_states.html#lf_comment=291863040. RW

There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise. But critics see it as a coercive end run around the rights of the accused—especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them—as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done. One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process—by convening a “plea jury.” Members of the plea jury would consider the terms of each plea deal brought before the court and then decide whether it’s fair. They would be selected from the jury rolls just like regular jurors and would serve for periods of at least two weeks at a time, returning to the same courtroom day after day. As Appleman imagines it, members of the plea jury would hear the underlying facts of each case, along with the charges that were brought against the defendant by the district attorney’s office, before deciding whether the punishment being proposed as part of the plea deal fits the crime and whether the defendant is agreeing to it knowingly and voluntarily. In this way, Appleman told me, the plea jury would give the public a voice in a process that usually takes place out of sight and would allow the community to provide a check on prosecutors who might otherwise bring egregiously inflated charges as a way of pressuring defendants to plead guilty. “The problem with the plea bargaining process is that all the power is with the prosecutors,” said Appleman. “We’ve gone from an adversarial system to what I’d call an inquisitorial system, meaning there’s one person—i.e., the prosecutor—putting defendants through their paces.” And while in principle, Appleman said, it’s the job of defense attorneys to make sure their clients aren’t taken advantage of, the fact is that most people accused of crimes can’t afford lawyers and have to rely on public defenders who are no less motivated than the prosecutor or the presiding judge—who also has a burdensome docket to get through—to resolve each case as fast as they can. The introduction of a jury with the power to reject plea deals—or at least recommend that the judge do so—would subject the plea bargaining process to the scrutiny of people who have no interest in maximizing efficiency at the expense of justice. Plea juries might also give prosecutors an incentive to be more restrained in their charging decisions, according to Appleman, by harnessing their desire to get through cases quickly. “Practically, if you’re a line prosecutor, and you’re constantly getting sent back by the plea jury, that’s going to make you less efficient,” she said. “If you’re always the person whose deals get rejected, your superiors are going to notice. So just knowing that there’s this all-seeing eye that’s going to reject your overcharging would maybe motivate you as a prosecutor to be more fair.”