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Resolved: Plea Bargaining Ought To Be Abolished in The United States Criminal Justice System
Resolved: Plea Bargaining Ought To Be Abolished in The United States Criminal Justice System
What one says about morality thus can make the already untenable position of the
revolutionary all the more untenable. Oppression stands in the way of moral action that would
create even a slightly better society, in which the freedom of all respected. It stands in the way
of developing an ethics, too, since its ideals and its principles all too easily can be used and co-
opted by systems of oppression to support the status quo. Upholders of the status quo and
thus of oppression will use the revolutionary’s ethics to condemn any opposing violence.
Conflating inaction with not at acting and thereby placing it beyond the purview of ethics,
they ignore individual responsibility for perpetuating through inaction the prior violence on
which the status quo is founded. They thus place much existing oppression, certainly that
which is institutionalized, beyond the purview of moral judgment. Other oppression may be
condemned because there are actual and identifiable oppressors engaging in concrete acts of
oppression: but even so, the oppression is protected from effective resistance by reminders that
violence resistance is unacceptable and by reiteration of the claim accepted even by the
revolutionaries themselves: two wrongs do not make a right.
To combat the conflation of inaction with not acting, we must make very clear that inaction
generally is tantamount to action, that to do none of the acts we could do to oppose
oppression is to act on the side of the oppressors, that is to collaborate in the oppression. Only
if our ethics makes this clear will it become apparent that inaction supporting the status quo—
and thereby tacitly endorsing the violence that underlies it—is subject to moral
condemnation. Only then can ethics acknowledge the impossibility in which some are placed—
that violence is sometimes an inevitable aspect of their choice, no matter which way they turn.
Burdens: the affirmative will confidently show that abolishing plea-bargaining
creates a critical discourse essential to addressing the systematic racism of the
USCJS. To win this debate, the negation must prove that plea bargaining
actually better allows the rejection of acquiescence.
C1: the USCJS is a institution built on racial discrimination
Subpoint A: The CJS is based on the systematic oppression of people of color.
Roberts ’07:
Roberts, Dorothy E. "Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist
Framework," Columbia Human Rights Law Review vol. 39, no. 1 (Fall 2007): p. 261-286.
The U.S. criminal justice system has always functioned, in coordination with other institutions
and social policy, to subordinate [people of color] black people and maintain the racial caste
system. Racial bias does not rest only or even primarily in the minds of those who implement
the system; racism is engrained in the very construction of the system and implicated in its
every aspect—how crimes are defined, now suspects are identified, how charging decisions
are made, how trials are conducted, and how punishments are imposed. It would be hard to
conjure up a mechanism that more effectively subjugates a group of people than state-
imposed mass incarceration, capital punishment, and police terror, which not only confines
and disenfranchises a staggering proportion of black people, but also devastates the
communities they come from.
I launched, predictably, into a lecture about what prosecutors would do to people if they
actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic
safeguards, including the right to be informed of charges against them, to an impartial, fair
and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.
But in this era of mass incarceration — when our nation’s prison population has quintupled in a
few decades partly as a result of the war on drugs and the “get tough” movement — these
rights are, for the overwhelming majority of people hauled into courtrooms across America,
theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people
charged with crimes forfeit their constitutional rights and plead guilty.
C2: protest against the system is an a priori obligation
On the phone, Susan said she knew exactly what was involved in asking people who have been
charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking
what we can do. Can we crash the system just by exercising our rights?”
The answer is yes. The system of mass incarceration depends almost entirely on the
cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his
constitutional rights, there would not be enough judges, lawyers or prison cells to deal with
the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an
impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial
rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”
Such chaos would force mass incarceration to the top of the agenda for politicians and policy
makers, leaving them only two viable options: sharply scale back the number of criminal cases
filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial
“emergency” fiat). Either action would create a crisis and the system would crash — it could no
longer function as it had before. Mass protest would force a public conversation that, to date,
we have been content to avoid.
Contention 3: court clog is a critical protest unearthing
acquiescent power dynamics
might topple a key pillar of support.28 She’s noted that the vast
The old view of power looks at this and sees people trapped in the
minimums. Yet Susan’s “crash the system” tactic could flip the script
and remove our collusion with the system: Instead of accepting [refusing] plea
the oppressed.
Imagine how this might play out: In a small city, 100 people refuse
to accept plea bargains. They collectively demand jury trials. The already
jury trials. Those who are unable (or who refuse) to pay their bond
are stuck in jails. (This tactic, as any to shift a system this huge,
would require suffering.) Others who are released tour the country to
rally support.
Hearing about this, a few thousand more join in this “crash the
They argue that the system has no intention of supporting their constitutional
system” tactic.
rights and that it was never designed to
do so. Unable to quickly process people, cities fill all their jail beds
and flail around to deal with the overwhelming numbers.
People are inspired. Soon tens of thousands across the nation (still
demanding immediate release of all those who are being (and were)
fundamental reforms.
Perhaps the negotiations break down, and the “union” calls for a
occupy beds and further destabilize the system, jurors add pressure
strike until all demands are met, taxpayers refuse to pay taxes,
ally guards walk off their jobs, governors are hounded until they
grant wide immunity, and so on. The system collapses, and the union
becomes the leader in a transitional system built on restorative
justice principles.
All this because people took big collective risks by removing their
small and of only the tiniest incremental changes. One activist said it
this way: “If I don’t believe I have the power to change something,
then I won’t think about it.” Through analyzing our own power us
ing the upside-down triangle, we can help our groups think bigger,
Subpoint B: Eliminating plea deals will clog the courts. Hessick and Saujani ’02:
02 F. Andrew III Hessick; Reshma M. Saujani. Andrew Hessick-A.B. 1998, Dartmouth College; J.D.
Candidate 2002, Yale Law School. Fall 2002, a clerk for Judge Raymond Randolph of the United
States Court of Appeals for the District of Columbia Circuit. Reshma Saujani-B.A. 1996, University
of Illinois, Urbana-Champaign; M.P.P. 1999, John F. Kennedy School of Government, Harvard
University; J.D. Candidate 2002, Yale Law School. Fall 2002, an associate at Davis Polk &
Wardwell. “Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the
Defense Counsel, and the Judge.” 16 BYU J. Pub. L. 189 (2002)
http://heinonline.org/HOL/Page?handle=hein.journals/byujpl16&div=13&g_sent=1&casa_token
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The rising caseload of each individual state and federal judge has created a disincentive for a
more exacting analysis by the judge. Since 1938, the federal courts have experienced an
increasingly large caseload. 235 This growth can be attributed to the increase in the population,
the creation of new rights and wrongs, the increase of lawyers, and the expansion of attorney
fee incentives to litigate.236 Beginning in the 1960s, social scientists and commentators began
to describe the judiciary's looming backlog as a "crisis in the courts" created by "lazy judges
devoting little time to their work., 237 It has been said that most trial judges look for guilty pleas
the way "a salesman looks for orders."2'38 The pressures for judges to be efficient and
effective have led many judges to embrace the plea bargaining process. While judges point to
their administrative need to process a large number of cases with limited resources as their
greatest reason for plea bargains, growing criticism of case backlog has undoubtedly pressured
widespread acceptance. 239 A judicial system that works at a maximum level of efficiency
generates social utility in an already overloaded judicial system. A mere reduction of ten
percent in the number of defendants plea bargaining would require more than twice the
amount of judicial manpower and resources.240 While a surge in new trials would generate
administrative complications for the judiciary [because], the utility of foregoing this cost is
contingent upon the assumption that citizens spend fewer resources for pleas than trials while
getting the same result. If scholars and commentators are correct in maintaining that plea
bargaining facilitates the incarceration of innocent defendants, then this perverse result would
reduce any social utility gained by cost savings from foregoing trial. Additionally, some
supporters of plea bargaining may argue that if caseloads were increased they would prevent
judges from making an exacting analysis of the facts. This obstacle would have devastating
effects for the plight of innocents because it would hinder the search for actual guilt or
innocence. Some commentators argue that trials would become less stringent and more casual,
thereby increasing the possibility that innocents will be found guilty. 241