JF18 Victory Brief

Resolved: Plea bargaining ought to be abolished in
the United States criminal justice system.
January/February 2018 LD Brief*
*
Published by Victory Briefs, PO Box 803338 #40503, Chicago, IL 60680-3338. Edited by
Lawrence Zhou. Written by Oliver Sussman, Nina Potischman, Jack Wareham, and Sun-
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Contents
1 Topic Analysis by Oliver Sussman 5

1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Positions on the Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.3.1 Mass Incarceration Affirmative . . . . . . . . . . . . . . . . . . . . 8
1.3.2 Retributivism Affirmative . . . . . . . . . . . . . . . . . . . . . . . 10
1.3.3 Court Clog Disadvantage . . . . . . . . . . . . . . . . . . . . . . . 11
2 Topic Analysis by Jack Wareham 13

2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Interpretational Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.3 Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3.1 Racism & Mass Incarceration . . . . . . . . . . . . . . . . . . . . . 15
2.3.2 Culpability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.3.3 Occupying the CJS . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3.4 Corruption & Coercion . . . . . . . . . . . . . . . . . . . . . . . . 17
2.4 Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.4.1 Court Clog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.4.2 Overcrowding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.4.3 Benefits to the Defendant . . . . . . . . . . . . . . . . . . . . . . . 19
2.4.4 Counterplans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3 Topic Analysis by Nina Potischman 22

3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.2 Aff Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2.1 Kant/Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2.2 Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Contents
3.2.3 Virtue Aff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3.3 Neg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.3.1 Libertarianism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4 Topic Analysis by SunHee Simon 33

4.1 Aff Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.1.1 African Americans & Slavery . . . . . . . . . . . . . . . . . . . . . 33
4.1.2 Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.2 Neg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.2.1 Abolish US Criminal Justice System . . . . . . . . . . . . . . . . . 38
4.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5 Definitions 41
5.1 Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.2 Abolish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.3 Plans Good . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6 Aff 47
6.1 Adversarial Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.2 Burden Imposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.3 Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.4 Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.5 Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.6 Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.7 Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.8 Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.9 Elitism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.10 Fact Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.11 Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.12 Inconsistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.13 Innocence Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.14 Judicial Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.15 Objectionability of Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
6.16 Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
6.17 Racism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
6.18 Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.19 Underground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Contents
7 Aff Blocks 86
7.1 A2 Abolition Makes Things Worse . . . . . . . . . . . . . . . . . . . . . . 87
7.2 A2 Court Clog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
7.3 A2 Inevitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
7.4 A2 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
7.5 A2 Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
8 Neg 94
8.1 Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
8.2 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
8.3 Helps Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
8.4 Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
8.5 Opportunity Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8.6 Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
8.7 Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
8.8 Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
8.9 Rollback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
8.10 CPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
9 Neg Blocks 116

9.1 A2 Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
9.2 A2 Cognitive Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
9.3 A2 Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
9.4 A2 Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
9.5 A2 Ill-Informed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
9.6 A2 Inalienable Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
9.7 A2 Innocence Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
1 Topic Analysis by Oliver Sussman
Oliver Sussman graduated from Cambridge Rindge and Latin School (MA)
in 2017, and worked at VBI this past summer. As a debater, he won Apple
Valley, the Apple Valley Round Robin, Lexington, and Yale tournaments.
He also reached finals of Harvard, the Harvard Round Robin, and the Glen-
brooks, and reached semifinals of the Tournament of Champions. He cur-
rently coaches the Harker School in San Jose, as well as his own high school.
Oliver is now a freshman at Harvard University.
1.1 Introduction
In this topic analysis, I will first discuss the definition and history of plea bargaining in
the United States. I will then discuss three positions in detail: the mass incarceration
affirmative, the retributivism affirmative, and the court clog disadvantage.
1.2 Background
Currently in the United States, over ninety percent of criminal cases are resolved
through plea bargain. It is extremely difficult to underestimate the extent to which this
resolution would alter the criminal justice system. Legal scholars are starkly divided
on this issue—on the one hand, plea bargaining no doubt helps many defendants dra-
matically shorten their sentences and prevents overburdened courts, but on the other,
it encourages millions of Americans to forgo their constitutional right to due process.
Consequently, this topic provides an opportunity for rich debates about criminal justice
from a variety of perspectives (there’s plenty of material for util debaters, philosophy
debaters, and critical debaters alike).
This topic is refreshingly unambiguous with regard to definitions. I don’t think there
will be many topicality debates compared to most topics, but let’s be clear about what
plea bargaining actually is. According to Albert Alschuler of University of Colorado

Law, plea bargaining is:
the exchange of official concessions for a defendant’s act of self-conviction.

These concessions may relate to the sentence imposed by the court or recom-
mended by the prosecutor, the offense charged, or a variety of other circum-
stances; they may be explicit or implicit; and they may proceed from any of
a number of officials… This definition excludes unilateral exercises of prose-
cutorial or judicial discretion, such as an unqualified dismissal or reduction
of charges. It also excludes the exchange of official concessions for actions
other than entry of a guilty plea, such as offering restitution to the victim of
a crime, giving information or testimony concerning other alleged offenders,
or resigning from public office following allegations of misconduct.1
There are a few important things to note here. First, recognize that plea bargaining
doesn’t just occur between a defendant and a judge. Often, defendants talk to prose-
cutors before trials and promise to plead guilty in exchange for a lower recommended
sentence or a different charged offense. This is still defined as plea bargaining; the affir-
mative gets rid of all of these sorts of practices. Second, plea bargaining can be “implicit”
in the sense that judges often treat defendants who plead guilty more leniently even if
there is no direct negotiation between the two parties. It is probably debatable whether
or not this really counts as plea bargaining, but if we accept Alschuler’s definition, the
world of the affirmative would have to somehow end this practice as well. That’s some-
what of an issue—it’s unclear how that could happen, given how hard it would be to
concretely prove that judges engaged in implicit bargaining. Whether or not this prac-
tice will continue with significant frequency in the affirmative world—thus mitigating
many of the aff’s advantages—is a debate that will likely be had.
But now that we know what plea bargaining is, how did we get here? Plea bargaining
is a fairly recent development in the grand scheme of Anglo-American legal tradition,
and yet its presence is now incredibly solidified. The first officially documented in-
stances of plea bargaining occurred following the Civil War, and were accompanied by
strong public disapproval. Many hoped the Supreme Court would abolish the practice.
Despite the outrage, courts continued to expand the use of plea bargaining in the late
19th century, and even more so in the early 20th century during Prohibition. Disap-
proval continued throughout the 20th century, but legal demand for the practice only
expanded as a result of Supreme Court decisions that increased the complexity and
1
Albert Alschuler, “Plea Bargaining and its History,” 1979, “http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=
length of criminal trials. Finally, any hope that the Supreme Court would abolish plea
bargaining was eliminated in 1970 when the Court declared in Brady v. United States that
plea bargaining is “inherent in the criminal law and its administration.”2 (More gener-
ally, the court decided in Brady v. United States that threats of extremely long sentences
do not count as coercion, and in the process implied the legal permissibility of plea bar-
gaining.) Normal means for the aff’s abolition of plea bargaining would involve the
Supreme Court reversing its course and retracting its 1970 ruling. Finally, in the 1970s
and 1980s, plea bargaining became even more prominent following rising crime rates
and the beginning of the war on drugs, and approached the level of commonplace that
it enjoys today.3
There have been a few attempts to abolish plea bargaining on a regional/local level, but
they haven’t been super successful. The Economist explains:
And yet so entrenched are plea bargains in America that the occasional at-
tempts to do without them have failed. Between 1975 and 1990 they were
banned in Alaska. Even then, they happened informally. Judges made im-
plicit deals with defendants who pleaded guilty. One study found that sen-
tences after trials for violent crimes were, on average, 445% longer than those
given after pleas. For fraud, they were 334% longer. The Texan city of El
Paso banned plea-bargaining in 1975. During the following two years the
trial rate doubled and the two judges assigned to criminal cases could not
cope. Ten more were assigned to help them, but even so prosecutors started
to strike secret bargains, with judges’ encouragement. The ban was eventu-
ally rescinded.4
Affirmatives will have to figure out how to cope with this rather unfortunate track
record. Hopefully, for example, a federal ban would include a stronger mechanism
for the prevention of implicit bargains.
2
Ibid.
3
Jed S. Rakoff, “Why Innocent People Plead Guilty,” 11/20/14, http://www.nybooks.com/articles/2014/11/20/why-
innocent-people-plead-guilty/.
4
The Economist, “The troubling spread of plea-bargaining from America to the world,” 11/9/17,
https://www.economist.com/news/international/21731159-tool-making-justice-swifter-too-often-
snares-innocent-troubling-spread.
1.3 Positions on the Topic
1.3.1 Mass Incarceration Affirmative
The most common affirmative case on this topic will probably be about mass incarcer-
ation. This position would argue that the system of plea bargaining coerces innocent
defendants into accepting incarceration out of fear of a horrifically long sentence. Of
course, these defendants are often non-white and socioeconomically disadvantaged,
and their incarceration significantly contributes to racial and economic inequality.
There is clear evidence that innocent people often plead guilty. Data from the National
Registry of Exonerations indicates that approximately ten percent of exonerated individ-
uals (people who have been officially recognized as wrongfully convicted of a felony)
pleaded guilty. That may not seem like a large number, but it’s still hundreds of thou-
sands of people, and it also doesn’t include non-exonerated innocent convicts (who prob-
ably account for the majority of false guilty pleas).
Often, the choice to falsely plead guilty is a totally rational one. Defendants frequently
have little access to effective defense counsel, and can only briefly meet with their attor-
neys while being detained in jail with high bail. As a result, prosecutors enjoy all the
power, and there is little chance defendants would receive positive results were they to
demand an actual trial. Jed Rakoff, Senior Judge of the Southern District of New York,
explains:
In this typical situation, the prosecutor has all the advantages. He knows
a lot about the case (and, as noted, probably feels more confident about it
than he should, since he has only heard from one side), whereas the defense
lawyer knows very little. Furthermore, the prosecutor controls the decision
to charge the defendant with a crime. Indeed, the law of every US jurisdic-
tion leaves this to the prosecutor’s unfettered discretion; and both the prose-
cutor and the defense lawyer know that the grand jury, which typically will
hear from one side only, is highly likely to approve any charge the prosecu-
tor recommends.
This is a bit of a problem for the affirmative, because it suggests that innocent defen-
dants would still be convicted—and sentenced significantly more harshly—absent plea
bargaining. But this is only one part of the story. Mounting evidence points to the
fact that false guilty pleas may often not be in a defendant’s best interest, and that plea
bargaining frequently only coerces individuals into accepting a suboptimal outcome.

Rakoff continues:
there is some evidence that the pressure of the situation may cause an in-
nocent defendant to make a less-than-rational appraisal of his chances for
acquittal and thus decide to plead guilty when he not only is actually in-
nocent but also could be proven so. Research indicates that young, unin-
telligent, or risk-averse defendants will often provide false confessions just
because they cannot “take the heat” of an interrogation. Although research
into false guilty pleas is far less developed, it may be hypothesized that sim-
ilar pressures, less immediate but more prolonged, may be in effect when a
defendant is told, often by his own lawyer, that there is a strong case against
him, that his likelihood of acquittal is low, and that he faces a mandatory
minimum of five or ten years in prison if convicted and a guidelines range
of considerably more—but that, if he acts swiftly, he can get a plea bargain
to a lesser offense that will reduce his prison time by many years.
In addition, some have hypothesized that while the existence of plea bargaining may
serve to shorten some individual sentences, it also provides an incentive for the criminal
justice system to maintain higher mandatory minimum sentences. Since legal officials
want plea bargains—it makes their job a lot easier—they have incentives to increase
mandatory minimum sentences so that defendants are more likely to accept them.5 This
could be super important, since mandatory minimums are a huge reason why individ-
uals convicted of drug crimes often face appallingly brutal sentences.
This aff is strategic in that it is strongly rooted in the topic literature, and there is no
shortage of block material. The story of the affirmative is clear, and the impacts are
huge—mass incarceration is among the greatest injustices present in the United States.
However, I think this aff’s biggest strategic drawback is its susceptibility to negative
counterplans in more progressive circuits. There are lots of other ways we could com-
bat mass incarceration, many of which are realistically more effective than plea bargain
abolition. For example, we could decriminalize drugs, or eliminate mandatory mini-
mum sentences altogether. The aff needs a clear impact that these counterplans can’t
solve—for instance, non-drug related sentences in the case of the drug decriminaliza-
tion counterplan. They should also be prepared to provide proactive reasons why these
5
Richard A. Oppel Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” 9/25/11,
http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-
bargains.html.
counterplans are bad (i.e., read offense), given how likely it is that negatives will be able
to solve at least a large portion of the affirmative’s harms.
1.3.2 Retributivism Affirmative
There’s something about plea bargaining that feels incredibly arbitrary. Why should
something as morally trivial as forgoing a trial diminish one’s sentence so dramatically?
Consequently, plea bargaining provides an opportunity for deep philosophical debates
about the nature and purpose of punishment, criminal justice, and the legal system.
It seems likely that the existence of a guilty plea could only be a reason for a shorter
sentence if we care more about maximizing effective prosecution than proportionally
assigning punishments. The reason plea bargaining is so widespread is simply because
it helps ensure quick prosecution and therefore deterrence of crime. But does the crim-
inal justice system have its priorities in order in this regard?
Retributivists would say no. Punishment is acceptable not on the grounds of deterrence
but merely because it is the inherently proper response to violations of the law. Among
the retributivists of the world is who else but Immanuel Kant, who wrote that punish-
ment “must in all cases be imposed only because the individual on whom it is inflicted
has committed a Crime,” and that “justice would cease to be justice if it were bartered
away for any consideration whatever.”6
Kant thought that the principle of retribution was derivable from the categorical imper-
ative alone, and justified only because criminals simply deserve punishment reciprocal
to the advantage they have gained by breaking the law. Determining punishment by
looking to utilitarian considerations is morally wrong, because it treats individuals as
mere means—we restrict their freedom and inflict harm upon them only to achieve our
desired ends, like crime deterrence. To Kant, the only thing that can justifiably affect a
defendant’s assigned sentence is the crime itself.
One potential answer to this position is that plea bargaining is consistent with retribu-
tivism and can be justified without appealing to consequences. For example, negatives
could argue that someone who knows and publicly declares that they are guilty in fact
deserves less punishment than someone who denies their culpability, because they ex-
hibit better moral character. To Kant, though, it is criminal acts that render people deser-
vant of punishment, not criminal character. Criminals deserve disadvantages propor-
6
Mike C. Materni, “Criminal Punishment and the Pursuit of Justice,” 2013,
http://hls.harvard.edu/content/uploads/2011/09/michele-materni-criminal-punishment.pdf.
10
tional to the arbitrary advantages they have accrued by breaking the law, irrespective
of their level of internal virtue. We don’t punish them because they are bad people,
we punish them because they committed bad actions. Moreover, it is clear that people
don’t usually plead guilty just because they feel really bad about their crimes. Most plea
bargainers do not bargain out of repentance, but out of fear. Also, recall that many of
them are not even guilty in the first place.
1.3.3 Court Clog Disadvantage
If the criminal justice system should in fact concern itself with utilitarian ends, the neg-
ative has some pretty good ground. Usually court clog disadvantages are considered
to be a bit trollish and far-fetched, but on this topic I think they’re quite reasonable.
The world of the affirmative would include ten times as many criminal trials, at least.
That’s nothing to sneeze at. In fact, legal officials argue that plea bargaining should be
maintained out of sheer necessity. Time Magazine writes:
The strongest argument for deal making, however, is sheer necessity. Ap-
proved of by Congress and the President’s Commission on Law Enforce-
ment and Administration of Justice, plea bargaining has been condoned by
the U.S. Supreme Court as ”essential.” It is widely accepted that without
deals between the prosecutor and the accused, time-consuming trials would
cause many courts to choke on overcrowded dockets. Chief Justice Warren
Burger has said that even a 10% reduction in plea bargaining would double
the number of trials.7
On progressive circuits, many negative debaters will likely pair this link with hyper-
bolic claims about the catastrophic collapse of the judiciary. If the courts literally col-
lapse, that would probably be pretty bad—there would be rampant crime, a disrupted
economy, an unchecked executive branch, etc. But what’s more likely to happen is that
while the courts will fall short of collapsing, they will only serve to further marginalize
the most vulnerable if they are overburdened.
For example, overworked judges and lawyers will drive legal fees higher, making it
even harder for the socioeconomically disadvantaged to access justice. Defendants will
also have to wait much longer for their trials, meaning they could spend months in jail.
7
Time Magazine, “Law: Is Plea Bargaining a Cop-Out?,” 8/28/78,
http://content.time.com/time/magazine/article/0%2C9171%2C916340%2C00.html
11
Finally, judges would be forced to hastily speed through trials, making it even more
likely that they decide on racial biases rather than legitimate legal evidence.
Some affirmative debaters will likely impact turn the court clog disadvantage by argu-
ing that it is proactively good to crash a racist, corrupt, and unethical judicial system as
a sort of revolt. Michelle Alexander, author of The New Jim Crow, makes this claim in a
New York Times article called “Go to Trial: Crash the Justice System”:
The system of mass incarceration depends almost entirely on the coopera-

tion of those it seeks to control. If everyone charged with crimes suddenly ex-
ercised his constitutional rights, there would not be enough judges, lawyers
or prison cells to deal with the ensuing tsunami of litigation. Not every-
one 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.”8
Negative debaters need to perform some clear impact calculus in response to this sort
of argument. They should argue that the system of mass incarceration is resilient, and
that it is far too optimistic to believe that it will completely collapse in the event of
overburdened courts; rather, those already most harmed by the system will indirectly
bear the brunt of the damage. Moreover, negative debaters must make it clear that
tangible harms against marginalized individuals are our most important concern—that
even if we must in some sense endorse the stability of an evil criminal justice system,
doing so is worth it in order to prevent further harm.
I think this disadvantage is especially strategic when paired with an advantage coun-
terplan that serves to combat mass incarceration without increasing legal burdens. For
example, a counterplan that decriminalizes many drug-related offenses could substan-
tially decrease incarceration while decreasing the size of court dockets by bringing less
people into the criminal justice system to begin with.
8
Michelle Alexander, “Go to Trial: Crash the Justice System,” 3/10/12,
http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html.
12
2 Topic Analysis by Jack Wareham
Jack Wareham is a student at the University of California, Berkeley in the College of

Letters & Science. He currently coaches Oakwood, the high school he debated at for
four years. As a debater, he was top speaker at the Tournament of Champions and won
the New York City Invitational.
2.1 Introduction
To those who insist that this year’s January/February resolution is too narrow in scope
to allow for interesting debates, the following paragraph written by Judge Jed Rakoff is
required reading:
The drama inherent in these guarantees is regularly portrayed in movies and

television programs as an open battle played out in public before a judge
and jury. But this is all a mirage. In actuality, our criminal justice system
is almost exclusively a system of plea bargaining, negotiated behind closed
doors and with no judicial oversight. The outcome is very largely deter-
mined by the prosecutor alone. In 2013, while 8 percent of all federal crimi-
nal charges were dismissed (either because of a mistake in fact or law or be-
cause the defendant had decided to cooperate), more than 97 percent of the
remainder were resolved through plea bargains, and fewer than 3 percent
went to trial. The plea bargains largely determined the sentences imposed.1
Plea bargaining is not some minor legal loophole. It’s the dominant strategy used by the
justice system to address crimes. Although this resolution doesn’t have the international
scope of the development assistance topic, there is still a wealth of available literature to
extract evidence from. The topic’s straightforward wording and specific policy area will
inevitably lead to well-researched, in-depth debates, both political and philosophical.
1
Rakoff, Jed S. ”Why Innocent People Plead Guilty.” The New York Review of Books, November 20, 2014.
Accessed December 9, 2017. http://www.nybooks.com/articles/2014/11/20/why-innocent-people-
plead-guilty/?insrc=whc.
13
2.2 Interpretational Questions
As defined by Merriam Webster, plea bargaining is the “negotiation of an agreement

between a prosecutor and a defendant whereby the defendant is permitted to plead
guilty to a reduced charge.”2 Only one state, Alaska, has abolished plea bargaining.3
Because this is the clearest empirical example of the resolution actually happening, de-
baters would be well-advised to prepare research about the positive and negative effects
of the ban in Alaska so they can cite empirical evidence for their arguments.
The Alaska ban, which was announced by the state’s Attorney General, might also be
viewed as setting a precedent for how the resolution would be implemented.4 After
all, the resolution contains no agent that would enact the abolition; it’s up to debaters
to decide how this ban would be instituted and enforced. Affirmatives could defend
the ban being announced by Attorney General Jeff Sessions, or maybe a congruence
of every state Attorney General. Or perhaps the affirmative could be defended as a
Supreme Court decision declaring plea bargaining unconstitutional, which would re-
verse elements of the Brady v. United States decision of 1970.5
If the negative is inclined, they could read a theory argument against affirmatives that
refuse to specify what type of implementation they defend. This theory argument
would claim that the affirmative’s lack of specification leads to vaguer and less edu-
cational debates in which there is no potential for argumentation about the means of
enforcement that the aff would employ.
Another area of the topic that might involve further specification is the word “abolish.”
According to one writer for the American Bar Association Journal, any ban on plea bar-
gaining would still allow it to happen in extenuating circumstances.
Any system that eliminates plea bargaining still allows for exceptions when
the above facts exist or other conditions of justice require it. In other words,
the abolition of plea bargaining is not an inflexible rule that applies in all
cases regardless of the requirements of justice.6
2
”Plea bargaining.” Merriam-Webster. Accessed December 9, 2017. https://www.merriam-
webster.com/dictionary/plea%20bargaining.
3
Burke, Jill. ”Will Alaska’s plea bargain plan serve justice, or cause it to grind to a halt?” Anchorage Daily
News, August 13, 2013. Accessed December 9, 2017. https://www.adn.com/alaska-news/article/will-
alaskas-plea-bargain-plan-serve-justice-or-cause-it-grind-halt/2013/08/14/.
4
Ibid.
5
Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747, 1970 U.S. LEXIS 45 (U.S. May 4,
1970)
6
Berger, Moise. ”The case against Plea Bargaining.” American Bar Association Journal 62, no. 5 (May 1976):
14
Depending on how stringent of an abolition the affirmative defends, the negative might
be able to read a plan-inclusive-counterplan that defends abolishing the plea bargain ex-
cept in instances where “a critical witness has died or is unavailable” or “the defendant
has been used by the police as an informer.”7
2.3 Affirmative Arguments
2.3.1 Racism & Mass Incarceration
In the United States, black people are “incarcerated at more than 5 times the rate of
whites.”8 One of the most common affirmative arguments on this topic will be that this
racial discrimination is, in large part, due to plea bargaining. One study from Loyola
Law School has shown that there are “significant racial disparities in the plea deals white
and black people receive on misdemeanor charges.”9 The study showed the astonishing
result that white people with misdemeanor charges were “more than 74 percent more
likely than black people to have all charges carrying potential prison time dropped,
dismissed, or reduced.”10
A large number of studies have been devoted to revealing this racial bias. One particu-
larly in-depth analysis was conducted by Douglas Savitsky, who argues that “the struc-
ture in the plea bargaining process, though race neutral on its face, leads to exaggerated
prison populations, as well as to racial disparity within those prison populations.”11
Savitsky even cites studies that found that “under Alaska’s plea bargaining ban, racial
disparity in the administration of justice ‘disappeared,’ and then reappeared once the
state lifted the ban.”12
In response, the negative should have evidence prepared that plea bargaining bans
don’t have a meaningful impact on convictions. One review of a plea bargaining ban in
621-24. Accessed December 9, 2017. http://www.jstor.org/stable/25727640.
7
Ibid.
8
”CRIMINAL JUSTICE FACT SHEET.” NAACP. Accessed December 10, 2017.
http://www.naacp.org/criminal-justice-fact-sheet/.
9
Borchetta, Jenn Rolnick, and Alice Fontier. ”When Race Tips the Scales in
Plea Bargaining.” Slate. October 23, 2017. Accessed December 9, 2017.
http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/new_research_finds_that_prosecutors_give_wh
10
Ibid.
11
Savitsky, Douglas. ”The Problem With Plea Bargaining.” A Dissertation Presented to the
Faculty of the Graduate School of Cornell University in Partial Fulfillment of the Require-
ments for the Degree of Doctor of Philosophy, August 2009. Accessed December 10, 2017.
https://ecommons.cornell.edu/bitstream/handle/1813/13836/Savitsky,%20Douglas.pdf;jsessionid=08302DA01D7F73E14A
12
Ibid.
15
the Coast Guard military justice system found that the abolition “did not make much
of a difference.”13 Savitsky also cites many studies that reach similar conclusions.
2.3.2 Culpability
One central objection to the process of plea bargaining is that it prevents the justice
system from running its course. If someone accepts a plea bargain, “no one will ever
know if he pleaded because he was guilty or because he was afraid of getting the death
sentence if he went to trial.”14 Plea bargaining could lead to the wrongful incrimination
of someone who is afraid of going to trial, or a small punishment for someone who
deserves more severe punitive measures. The former wastes large amounts of money
in the prison system and the latter would lead to a decreased deterrent effect and might
lead to an increase in crime.
Circuit Court Judge Ralph Fine points out that the “very essence of deterrence is cred-
ibility” of law, and that in order to prevent crime, punishment must be severe enough
to discourage an individual from committing the act.15 He goes on to argue that, by
weakening the punishment of the law, plea bargaining “reduces the deterrent impact
of the law.”16 Similarly, one author has argued that “plea bargaining causes a loss of
public confidence in our system of government.”17
In response, the negative might argue that the trial system isn’t perfect at determining
guilt. There may be many cases in which “it may be impossible for the prosecutor to
convict even the guiltiest defendant at trial” because key evidence is inadmissible. In
these situations, plea bargaining would increase the chance that a guilty person would
go to prison.18
13
Call, Jack, David England, and Susette Talarico. ”Abolition of Plea Bargaining in the
Coast Guard.” Journal of Criminal Justice 11 (1983): 351-58. Accessed December 10, 2017.
http://www.sciencedirect.com/science/article/pii/0047235283900740.
14
15
Fine, Ralph Adam. ”Plea Bargaining: An Unnecessary Evil.” Marquette Law Review 70, no. 605 (1987).
Accessed December 10, 2017. http://scholarship.law.marquette.edu/mulr/vol70/iss4/2/.
16
Ibid.
17
18
McDonough, Nancy. ”Plea Bargaining: A Necessary Evil?” UALR
Law Journal 2, no. 2 (1979): 381-400. Accessed December 9, 2017.
https://lawrepository.ualr.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1398&conte
16
2.3.3 Occupying the CJS
One viable option for affirmatives seeking to find a more critical edge for their case is an
advantage about deliberately jamming the criminal justice system as a form of protest.
Michelle Alexander, author of “The New Jim Crow: Mass Incarceration in the Age of
Colorblindness,” summarizes this position in an excellent New York Times op-ed:
The system of mass incarceration depends almost entirely on the coopera-

tion of those it seeks to control. If everyone charged with crimes suddenly ex-
ercised his constitutional rights, there would not be enough judges, lawyers
or prison cells to deal with the ensuing tsunami of litigation. Not every-
one 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 politi-
cians 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). Ei-
ther 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 conver-
sation that, to date, we have been content to avoid.19
Because occupying the courts could lead to Criminal Justice System reform and the re-
duction of the war on drugs, affirmatives could claim offense from reducing the racial
bias that many argue is inherent to the justice system’s current operations. This advan-
tage would also serve as an impact turn to the court clog disadvantage, since it proves
that deliberately jamming the courts would be net advantageous.
2.3.4 Corruption & Coercion
It has also been argued that “plea bargaining makes it easier to have corruption within
a prosecutor’s office.”20 Because it is difficult to maintain a system that can retain com-
plete oversight over prosecutors, many plea bargain deals occur behind closed doors,
19
Alexander, Michelle. ”Go to Trial: Crash the Justice System.” The New York Times, March 10, 2012. Ac-
cessed December 9, 2017. http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-
the-justice-system.html.
20
Ibid.
17
heightening the possibility that organized crime could infiltrate an office and meddle
with the affairs of justice.21
Finally, many have argued that the process of plea bargaining is often coercive. Law
Professor Donald Dripps has even equated the process to torture, arguing that defen-
dants are given little choice but to accept the plea and waive their right to trial.22
2.4 Negative Arguments
2.4.1 Court Clog
One of the most common negative arguments will be that plea bargains help skip trials
that would consume an enormous amount of time and energy. Law Professor Sara
Berman has argued that “plea bargains lighten the staff’s caseload” by avoiding trial.23
After New Haven imposed a plea bargain ban in 1979, the number of cases “rose from
181 to 310.”24 This significant increase in trials could slow down the justice system and
significantly increase inefficiency and use of public funds.
In response to the court clog argument, affirmatives could argue that if the plea bargain
was abolished, the justice system could just increase in size in order to meet the increased
number of trials. They should also have evidence prepared that a lack of plea bargaining
wouldn’t cause significant backlog. One author has pointed out that “few prosecutors
in the United States have bothered to test” the court clog thesis.25 He also notes that it
is “usually discovered” that “elimination of plea bargaining creates less of an increase
in the number of trials than many believe.”26 Court Judge Ralph Fine has cited studies
that after the plea bargaining ban in Alaska, “contrary to all expectations, the cases were
21
Ibid.
22
Dripps, Donald. ”Guilt, Innocence, and Due Process of Plea Bargaining.” William
& Mary Law Review, 8th ser., 57, no. 4 (2016). Accessed December 10, 2017. h
p://scholarship.law.wm.edu/wmlr/vol57/iss4/8.
23
Berman, Sara. ”Why Judges and Prosecutors Engage in Plea Bargaining.” NOLO. Accessed De-
cember 10, 2017. https://www.nolo.com/legal-encyclopedia/why-judges-prosecutors-engage-plea-
bargaining.html.
24
Henry, Diane. ”Plea�Bargaining Ban Is Clogging Courts in New Haven, State
Says.” The New York Times, September 5, 1979. Accessed December 10, 2017.
http://www.nytimes.com/1979/09/05/archives/pleabargaining-ban-is-clogging-courts-in-new-
haven-state-says-plea.html?_r=1.
25
26
Ibid.
18
processed more quickly without plea bargaining than they were before its abolition.”27
2.4.2 Overcrowding
Another popular negative position will be the prison overcrowding disadvantage. Sara
Berman points out that “judges often reason that the quicker those offenders who are
not likely to do much jail time anyway are ‘processed’ out of jail (by plea bargains), the
fewer problems with overcrowding.”28
The debate over overcrowding is entirely empirical. The negative should cite instances
in which plea bargaining bans have led to longer sentences, while the affirmative should
read evidence that increasing the number of trials through a ban will cause more acquit-
tals and a decline in prosecution. Which direction the link flows depends on whether
the longer sentences of a world with no plea bargains would lead to more net prison
time than the increased convictions of a world with plea bargaining.
Because affirmatives will be prepared to link turn this disadvantage, it might be more
strategic to read this as a case turn to affirmatives about mass incarceration rather than
a separate negative position.
2.4.3 Benefits to the Defendant
Plea bargains offer an enormous number of benefits to defendants. Although each of

these benefits might seem small on their own, combined they could make a compelling
disadvantage about the reduction of suffering that plea bargains can lead to.
UCLA Law School Professor Paul Bergman outlines many of these issues in his article
“The Benefits of a Plea Bargain.” He argues that pleading guilty to a smaller offense can
help the defendant get the matter over with quickly to reduce their stress.29 It could
also help them have “less serious offenses” on their record and avoid the social stigma-
tization of conviction for a serious crime.30 Some defendants might also want to avoid
27
Fine, Ralph Adam. ”Plea Bargaining: An Unnecessary Evil.” Marquette Law Review 70, no. 605 (1987).
Accessed December 10, 2017. http://scholarship.law.marquette.edu/mulr/vol70/iss4/2/.
28
Berman, Sara. ”Why Judges and Prosecutors Engage in Plea Bargaining.” NOLO. Accessed De-
cember 10, 2017. https://www.nolo.com/legal-encyclopedia/why-judges-prosecutors-engage-plea-
bargaining.html.
29
Bergman, Paul. ”The Benefits of a Plea Bargain.” NOLO. Accessed December 10, 2017.
https://www.nolo.com/legal-encyclopedia/the-benefits-plea-bargain.html.
30
Ibid.
19
the lengthy hassle and public embarrassment of participating in a drawn-out trial.31 Fi-
nally, pleading guilty to a lesser offense could help a noncitizen avoid the deportation
that might occur as a result of a conviction to a worse charge.32
2.4.4 Counterplans
One counterplan option for the negative is the plea jury counterplan, which would cre-
ate juries of regular people to decide whether the plea deal is fair. The inclusion of the
public into this process would “provide a check on prosecutors who might otherwise
bring egregiously inflated charges as a way of pressuring defendants to plead guilty.”33
This could have the benefit of encouraging prosecutors to be fairer and stop “overcharg-
ing” defendants.34
Because racial discrimination is not necessarily inherent to the process of plea bargain-
ing, counterplans will be particularly strategic against affirmatives that include an ad-
vantage about reducing racial disparities in the criminal justice system.
An author for Slate has argued that “prosecutors should state the reasons for plea offers
on the record to create transparency and be required to collect and share data about
their offers” in order to “combat implicit and overt bias.”35
Law Professors Robert Smith and Justin Levinson have argued in favor of a number of
methods of redressing the racism of prosecutors. They believe that prosecution offices
should “store comprehensive information on racial demographics” to allow the patterns
of bias to tracked, as well as provide “video trainings on implicit bias” to lawyers.36
They also propose the masking of “all demographic information on a computerized
case file” before it reaches the prosecutors so that they can’t use race as information
in the plea bargain.37 In addition, they point out that hiring a “more diverse pool of
31
Ibid.
32
Ibid.
33
Neyfakh, Leon. ”No Deal: Should prosecutors be forced to have their plea bar-
gains approved by juries?” Slate. April 7, 2015. Accessed December 10, 2017.
http://www.slate.com/articles/news_and_politics/crime/2015/04/plea_bargains_should_prosecutors_be_forced_to_have
34
Ibid.
35
Borchetta, Jenn Rolnick, and Alice Fontier. ”When Race Tips the Scales in
Plea Bargaining.” Slate. October 23, 2017. Accessed December 9, 2017.
http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/new_research_finds_that_prosecutors_give_wh
36
Smith, Robert J., and Justin D. Levinson. ”The Impact of Implicit Racial Bias on the Exercise of Prosecuto-
rial Discretion.” Seattle University Law Review 35, no. 795 (April 24, 2012): 795-826. Accessed December
9, 2017. https://www.law.hawaii.edu/sites/www.law.hawaii.edu/files/content/levinson.pdf.
37
Ibid.
20
assistant district attorneys” and encouraging lawyers to “live in neighborhoods dispro-

portionately impacted by the charging decisions.”38
The negative could also read advantage counterplans that that reform the CJS by decrim-
inalizing drugs or abolishing mandatory minimum sentences. Legalizing marijuana
could help end the war of drugs, which is often acknowledged as one of the primary
reasons for mass incarceration in America.39 Similarly, many have argued that manda-
tory minimum policies, which require that offenders serve a set amount of time for
offenses, are “one of the drivers of mass incarceration.”40
If you want a more extreme counterplan, some authors have gone so far as to advocate
for the abolition of the prison system, arguing that prisons have negligible impact on
deterring crime and can even increase recidivism.41 This advocacy could be combined
with a kritik that argues that prisons are an outgrowth of slavery and necessarily involve
discrimination towards minorities.42
2.5 Conclusion
The list of arguments compiled in this analysis is by no means exhaustive; treat the
arguments I’ve discussed as jumping-off points for your research.
This topic is much broader and richer than the legal topics of the previous few years.
Because of its somewhat limited scope and straightforward wording, there isn’t as much
room for zany plan texts and squirrely positions; debaters will need to be prepared to
have high-quality evidence for both sides of all of the resolution’s key issues.
38
Ibid.
39
Harris, Larry, Jr. ”Legalize Pot To Help End The War On Drugs.” HuffPost. November 2, 2016.
Accessed December 10, 2017. https://www.huffingtonpost.com/entry/legalize-pot-to-help-end-the-
war-on-drugs_us_581a7cf4e4b0570d6d6f0b77.
40
Eisen, L.B. ”Mandatory Minimum Sentences — Time to End Counterproduc-
tive Policy.” Brennan Center for Justice. June 9, 2015. Accessed December 10,
2017. https://www.brennancenter.org/blog/mandatory-minimum-sentences-time-end-
counterproductive-policy.
41
Lopez, German. ”The case for abolishing prisons.” Vox. June 19, 2017. Accessed December 10, 2017.
https://www.vox.com/policy-and-politics/2017/6/19/15764176/prisons-abolition-alternatives.
42
Rodriguez, Dylan. ”The Disorientation of the Teaching Act: Abolition as Pedagogical Po-
sition.” The Radical Teacher, no. 88 (Summer 2010): 7-19. Accessed December 10, 2017.
http://www.jstor.org/stable/10.5406/radicalteacher.1.88.0007.
21
3 Topic Analysis by Nina Potischman
Nina Potischman debated for Hunter College High School, earning 11 TOC
bids throughout her career. Her senior year, she reached finals of the TOC,
where she was the top seed and top speaker. She won the Yale Invitational,
the Mid-America Cup Round Robin, the Harrison Round Robin, the Lex-
ington Invitational, the Penn Round Robin, the Harvard Invitational, and
was a two-time champion of the Mid-America Cup. She was a finalist of the
Big Apple Round Robin, a semifinalist of the Princeton invitational, and the
top speaker of the Lexington Invitational and Harrison Round Robin. She is
currently a freshman at Pomona College.
3.1 Introduction
The issue of plea bargaining is a fascinating ethical issue that deals with the way the
criminal justice system ought to be structured, the ideal function of trials and sentences,
and the rights that ought to be granted to individuals tried within he criminal justice
system. As argued by Dr Sarah Armstrong Glasgow, a Senior Research Fellow from
Glasgow University:
In proposing an ethical system of plea bargaining, and working through the

normative challenges to this, two bigger questions become visible. These
are: what are the implications of developing, in essence, an ethics of effi-
ciency, and, how should the criminal justice system be held to account for
the inequalities (and iniquities) that exist before and outside it?1
These questions are ones that you will have to grapple with as you begin to prepare
positions for this topic, and deal with the conflicts between the rights due to individuals
1
Armstrong, Sarah, Capacity as Philosophy: A Review of Richard Lippke’s, The Ethics of
Plea Bargaining (June 4, 2013). Available at SSRN: https://ssrn.com/abstract=2274362 or
http://dx.doi.org/10.2139/ssrn.2274362
22
in criminal trials and the practical limitations of the criminal justice system. In this
topic analysis, I will begin by clarifying resolutional terms, and giving some background
as to why plea-bargaining is currently a practice carried out within the United States
criminal justice system. I will then move on to discuss what I find the most compelling
Aff and Neg positions, and outline some of the arguments that will be used to justify
these positions.
3.1.1 Background
So what is plea bargaining? Most definitions are similar to this one by Law Professor
Sarah J. Berman:
A plea bargain is an agreement between a defendant and a prosecutor, in

which the defendant agrees to plead guilty or no contest (nolo contendere) in
exchange for an agreement by the prosecutor to drop one or more charges,
reduce a charge to a less serious offense, or recommend to the judge a specific
sentence acceptable to the defense.2
Plea bargaining occurs when an individual decides to plead guilty or no contest, causing
the trial to be decided on a plea rather than a decision by a jury. A “no contest” is when
an individual pleads that they do not contest the charges against them, which still results
in a criminal conviction, but can not be used as evidence of guilt against the defendant
in future civil suits. Plea bargaining can additionally take place at a number of stages
within the process:
Plea deals can be struck shortly after a defendant is arrested and before the
prosecutor files criminal charges. Plea negotiations may culminate in a deal
as a jury returns to a courtroom to announce its verdict. If a trial results in a
hung jury, in which the jurors are split and cannot make the unanimous deci-
sion required, the prosecution and defense can (and frequently do) negotiate
a plea rather than go through another trial. And plea deals are sometimes
reached after a defendant is convicted while a case is on appeal. 3
Plea-bargaining is thus not a process that occurs in one part of the criminal justice pro-
cess, as the possibility for a case to be resolved with a plea is possible until the court
2
Berman, Sara J. ”The Basics of a Plea Bargain” https://www.nolo.com/legal-encyclopedia/the-basics-
plea-bargain.html
3
plea-bargain.html
23
Plea bargaining is a huge part of the way that the criminal justice system currently func-
tions, as “90% of convictions come from negotiated pleas, which means less than 10%
of criminal cases end up in trials.”4 So why is plea-bargaining used so frequently? In
a Supreme Court case in 1971, the Supreme Court explained the importance of plea-
bargaining to the criminal justice system:
It leads to prompt and largely final disposition of most criminal cases, it

avoids much of the corrosive impact of a defendant’s enforced idleness dur-
ing pretrial confinement, it protects the public from the chance that a defen-
dant would commit new crimes while on pretrial release, and, by shorten-
ing the time between charge and disposition, it enhances the rehabilitative
prospects of guilty defendants.5
However, others believe that plea-bargaining occurs largely because the criminal justice
system is overwrought, and does not have the resources to take every defendant to
trial. According to criminologist Matthew B. Robinson, plea bargaining occurs because:
“first, the police make too many arrests; second, the courts receive only about 20% of
all resources devoted to criminal justice, meaning they do not have enough resources
to justify having a trial for every one accused of even serious crimes.”6 Plea-bargaining
has thus become a central part of the efficiency of court systems, as courts do not have
sufficient resources for every case to go to trial. Plea-bargaining is also used to obtain
information in criminal trials, as many pleas are negotiated such that sentences can be
reduced in exchange for information.
3.2 Aff Arguments
3.2.1 Kant/Freedom
One core affirmative position will discuss the rights that individuals have within the
criminal justice system to a fair trial and hearing that are deserved on the basis of their
status as a human being. The process of plea-bargaining, these affirmatives will argue,
4
plea-bargain.html
5
Carl Takei, Terrorizing Justice: An Argument that Plea Bargains Struck Under the Threat of
”Enemy Combatant” Detention Violate the Right to Due Process, 47 B.C.L. Rev. 581 (2006),
http://lawdigitalcommons.bc.edu/bclr/vol47/iss3/4
6
Robinson, Matthew B., (2010). Assessing Criminal Justice Practice Using Social Justice Theory.
Social Justice Research. 23: 77-97. [Mar. 20, 2010] (ISSN: 0885-7466) Springer
24
reduce individuals to mere means by coercing individuals to give up their right to fair
trial in order to produce ends such as minimized costs, or increased efficiency. Professor
Albert W. Alschuler makes this argument in his article, “The Changing Plea Bargaining
Debate”:
In a proceeding whose potential consequences are so grave, to discourage

the accused from presenting his defense is morally objectionable.73 … To
subject its merits to constant reassessment on a case-by-case basis is to di-
minish its value and, indeed, to call into question our basic humanity in the
treatment of the people we accuse of crime. In short, utilitarian defenses of
plea bargaining place a price in dollars, and a very low one at that, on things
that we should be reluctant to sell: human liberty, the legitimate objectives
of the criminal sanction, and the right to a hearing.7
The potentially coercive aspects of plea-bargaining can bolster this position, as individ-
ual vulnerabilities are often exploited to push them into pleading guilty. For example,
many “are ‘railroaded’ into accepting deals forced on them through coercion, deceit,
psychological pressure and taking advantage of their vulnerable position, especially
when they belong to the lower socio-economic levels, to ethnic or racial minorities, for
reasons of age, disability, gender, language or immigration status.”8
This position could be coupled with a Kantian framework that discusses the importance
of respecting the innate humanity in individuals, and warns against reducing individu-
als to mere means. For example, in The Metaphyiscs of Morals, Kant claims that:
To annihilate the subject of morality in one’s own person is to root out the
existence of morality itself from the world, as far as one can, even though
morality is an end in itself. Consequently, disposing of oneself as a mere
means to some discretionary end is debasing humanity in one’s person.9
This framework would thus criticize plea-bargaining as dehumanizing and coercive.
7
Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 Cal. L. Rev. 652 (1981). Available at:
http://scholarship.law.berkeley.edu/californialawreview/vol69/iss3/2
8
Viano, Emilio C. ”Plea Bargaining in the United States: A Perversion Of Justice” 2012/1 Vol 83. Re-
vue internationale de droit pénal. https://www.cairn.info/revue-internationale-de-droit-penal-2012-
1-page-109.htm
9
[Kant] Immanuel “The Metaphysics of Morals” Cambridge Texts in the History of Philosophy, 2nd Edi-
tion Mary J. Gregor, Roger J. Sullivan, Cambridge University Press 1996, 1797
25
3.2.2 Rawls
An additional aff discusses the issue of fairness and due process in plea bargaining,
framed in terms of the imbalance of power present in negotiations for pleas. Albert W.
Alschuler discusses the argument against plea bargaining from a position of fairness:
Although the concepts of reward and penalty need not derive their meaning
only from each other, the fact that some defendants are ”penalized” simply
in relation to other defendants ought to be considered in assessing the fair-
ness of plea-bargaining. Even when a defendant who is convicted at trial
receives only the sentence that he ”deserves,” he surely will recognize that
other, equally culpable defendants have received less severe sentences fol-
lowing their pleas of guilty. This inequality leads to a sense of injustice, and
it would be entirely appropriate for a defendant sentenced only to what he
”deserves” to conclude that, in one very clear sense, he has indeed been pe-
nalized. The defenders of a dividing line between reward and penalty seem
to assume that they can properly consider abstract issues of justice to the ex-
clusion of issues of equality, but equal treatment is itself an important prin-
ciple of fairness.10
A central issue with plea-bargaining is then the arbitrary penalization of defendants

who decide to go to trial rather than plea, as they receive different sentences from others
who have committed the same crime. As Alschuler argues:
“an offender should not be subjected to ”undeserved” or ”gratuitous” suf-

fering because he has exercised the right to trial; but a reward to the offender
who pleads guilty, although desirable from his perspective, may be equally
inappropriate. It inevitably seems to require the imposition of a sentence
that will fail to accomplish the legitimate purposes of the criminal law. 711
The legitimate function of the law is to give individuals sentences that they deserve,
problematizing a system that can punish individuals and increase sentencing due to
their attempt to exercise their rights.
The idea of fairness also relates to plea bargaining’s disparate impact on different com-
munities. Douglas Savitsky makes the argument here that plea-bargaining has a dis-
10
11
26
parate impact on communities of color, and fuels a system of mass incarceration:
The plea bargaining system is, in part, responsible for both the large Amer-
ican prison population as well as the disproportionately large number of
minorities who make up that population. It is based on the premise that
self-serving decisions made by self-interested actors can aggregate in ways
detrimental to those same decision makers … Pleading out has becomes a
norm that is enforced not only through learned behavior and shared experi-
ence, but also through more general observation of how Black’s have fared
in American society in general. There is little doubt that the American prison
system has spiraled out of control. … it is the institution of plea bargaining
that has fueled the growth in both population as well as demographic dis-
parity12
While plea-bargaining is partly problematic because it punishes individuals arbitrarily

who decide to plead guilty, the influence of social position on causing certain individ-
uals to determine to give up their right to trial makes this argument very strong. If
individuals who are already disadvantaged in society plead guilty due to lack of re-
sources or an expectation that they will not experience a fair trial, that would implicate
a huge degree of unfairness in a system that allows plea bargaining.
This position could be framed using a Rawls framework that understands justice to
include a consideration of the importance of fairness. For Rawls, the basic structure of
institutions ought not arbitrarily privilege the needs of certain individuals over others,
as social institutions ought to be concerned with promoting fairness:
In this way the institutions of society favor certain starting places over others.
These are especially deep inequalities. Not only are they pervasive, but they
affect men’s initial chances in life; yet they cannot possibly be justified by an
appeal to the notions of merit or desert. It is these inequalities, presumably
inevitable in the basic structure of any society, to which the principles of
social justice must in the first instance apply … The justice of a social scheme
depends essentially on how fundamental rights and duties are assigned.13
12
Savitsky, Douglas. August 2009. THE PROBLEM WITH PLEA BAR-
GAINING: DIFFERENTIAL SUBJECTIVE DECISION MAKING AS AN EN-
GINE OF RACIAL DISPARITY IN THE UNITED STATES PRISON SYSTEM.
https://ecommons.cornell.edu/bitstream/handle/1813/13836/Savitsky,%20Douglas.pdf?sequence=1
13
John Rawls Harvard Philosophy Professor Justice as Fairness: Political not Metaphysical, Philosophy
and Public Affairs, Vol. 14, No. 3. 1985. 176-77.
27
Matthew B. Robinson outlines the link between Rawls and plea-bargaining here in his
article “Assessing Criminal Justice Practice Using Social Justice Theory:
The very practice of plea bargaining is not consistent with due process
(Fisher, 2003), and thus is not compatible with Rawls’ “equal liberties” prin-
ciples. In essence, the right to a criminal trial is more myth than fact. Plea
bargaining is also inconsistent with Miller’s “equality principle” since plea
bargaining is much more likely to occur with poor clients who are not well
represented by quality defense attorneys (Padfield, 2009). Plea bargaining
also tends not to assign punishments that achieve proper “desert” of guilty
criminals. Further, plea bargaining leads to too much punishment for those
who are innocent but plead guilty anyway (Siegel, 2005).14
3.2.3 Virtue Aff
Another potential aff would deal with the issue of virtue – i.e. the sorts of dispositions
promoted or discouraged as a result of the existence of plea-bargaining. This philoso-
phy argues that we should be consider how we are as people, rather than just isolated
moments of action. Philosopher Robert Adams summarizes the idea of virtue ethics
here:15
The subject of ethics is how we ought to live; and that is not reducible to
what we ought to do or try to do, and what we ought to cause or produce.
It includes just as fundamentally what we should be for and against in our
hearts, what and how we ought to love and hate. It matters morally what
we are for and what we are against, even if we do not have the power to do
much for it or against it, and even if it was not by trying that we came to be
for it or against it.
Under this framework, if plea-bargaining were to reward or incentive problematic be-

haviors, there would be reason to find the practice problematic.
One argument for this claim would be that plea-bargaining rewards individuals for
being more deeply involved in criminal enterprises, as they can receive lesser sentences
14
Robinson, Matthew B., (2010). Assessing Criminal Justice Practice Using Social Justice Theory.
Social Justice Research. 23: 77-97. [Mar. 20, 2010] (ISSN: 0885-7466) Springer
15
Robert Adams: [Philosopher of metaphysics, ethics and religion, has taught at top schools like Yale,
Rutgers, Chapel Hill] “Involuntary Sins.” The Philosophical Review, 1985.
28
in exchange for the betrayal of information. Robert Cassidy summarizes the argument
here:
Finally, pegging punishment to cooperation may also lead to situations

where codefendants who are more deeply involved in the criminal enter-
prise (and therefore likely to have greater access to crucial information)
are treated more favorably than lower-level accomplices, notwithstanding
that the mid-level-player-tumed-witness is more morally blameworthy.
140 If we accept the premise that bargained-for outcomes in criminal cases
should at least bear some relationship to the defendant’s level of culpability,
cooperation deals at times can lead to morally skewed results. 1 4116
Moreover, rewarding individuals who provide information on their criminal accom-

plices can be considered a means of rewarding and incentivizing dishonesty:
Turning state’s evidence against an accomplice thus can be a violation of

trust. At least where someone has accepted the trust reposed in her, such a
breach of faith is usually thought to be immoral … Intuitively, this violation
of trust is unethical or, at least, a prima facie wrong.8 When the people in-
volved are criminals, the breach of faith itself remains equally immoral. For
the sake of neat conceptualization, violations of trust can also be conceptual-
ized as a violation of an implied promise and thus subsumed to the familiar
principle in favor of promise keeping.17
Plea-bargaining thus incentivizes dishonest action, and rewards individuals for selfish-
ness, promoting vice.
This aff would likely require specification in order to be viable, as otherwise the negative
could simply read a PIC out of plea bargaining in which sentences are reduced to acquire
information. The topicality of this aff, however, is ambiguous, as the abolition of plea-
bargaining seems to apply to the process of plea bargaining writ large, rather than in a
particular instance. Disallowing a small instance of plea-bargaining would merely be a
regulation on a general practice, rather than an abolition of plea-bargaining.
16
R. M. Cassidy, Character and Context: What Virtue Theory Can Teach Us about a Pros-
ecutor’s Ethical Duty to Seek Justice, 82 Notre Dame L. Rev. 635 (2013). Available at:
http://scholarship.law.nd.edu/ndlr/vol82/iss2/3
17
Ingram*, Andrew. ”A (Moral) Prisoner’s Dilemma: Character Ethics and Plea Bargaining.” Ohio Journal
of Criminal Law. 2013. moritzlaw.osu.edu/students/groups/osjcl/files/2013/12/8.-Ingram.pdf
29
3.3 Neg
3.3.1 Libertarianism
One important negative argument on this topic will be the libertarianism NC. Libertari-
ans view plea bargaining as an expression of freedom, as it allows individuals to reach
compromises, and decide to avoid the costs of a criminal trial. Libertarianism supports
minimal government interference, as it believes that individuals are best able to reach
agreements with others that promote their own interests. Government interference is
seen as a violation of individual freedom.
Libertarians believe that there is a natural harmony of interests among peace-

ful, productive people in a just society. One person’s individual plans—
which may involve getting a job, starting a business, buying a house, and so
on—may conflict with the plans of others, so the market makes many of us
change our plans. But we all prosper from the operation of the free market,
and there are no necessary conflicts between farmers and merchants, manu-
facturers and importers.18
Libertarians would support policies that leave open opportunities for individuals to
negotiate with others in ways that promote mutual interest.
The libertarian NC on this topic would argue that plea-bargaining is just an example
of how individuals can negotiate to reach a compromise that promotes mutual interest.
Frank H. Easterbrook provides an explanation of the argument here:
Plea bargains are preferable to mandatory litigation-not because the analogy

to contract is overpowering, but because compromise is better than conflict.
Settlements of civil cases make both sides better off; settlements of criminal
cases do so too. Defendants have many procedural and substantive rights.
By pleading guilty, they sell these rights to the prosecutor, receiving conces-
sions they esteem more highly than the rights surrendered. Rights that may
be sold are more valuable than rights that must be consumed, just as money
(which may be used to buy housing, clothing, or food) is more valuable to
a poor person than an opportunity to live in public housing. Defendants
can use or exchange their rights, whichever makes them better off. So plea
18
David Boaz, 1-1-1999, ”Key Concepts of Libertarianism,” Cato Institute,
https://www.cato.org/publications/commentary/key-concepts-libertarianism, accessed 12-10-2017
30
bargaining helps defendants. Forcing them to use their rights at trial means
compelling them to take the risk of conviction or acquittal; risk-averse per-
sons prefer a certain but small punishment to a chancy but large one. 19
Under this view, plea bargaining becomes a means to settle criminal disputes in a way
that neither privileges the interest of the prosecutor or the defendant, while avoiding
government imposition on individual freedom.
The largest issue with this NC is the objection that plea bargaining does not actually pro-
mote a resolution that coheres with all parties interests, as the defendant often does not
have bargaining power equivalent to that of the prosecutor. Consequently, the process
is defined by coercion, rather than existing as an opportunity for individuals to fairly
negotiate mutual interests. This objection could then be coupled with a claim that lib-
ertarianism fails to account for structural inequalities, as it presumes that actors have
equal starting points when they engage in negotiations.
Another potential problem with this position is that it seems to presume that the only
relevant parties with significant interests to be accounted for are the prosecutors and
the defendants.
A libertarian critique of plea bargaining, then, might view the prosecutor as

impermissibly trading in other people’s rights without their consent. ”The
entire structure of the criminal justice system presupposes that the relevant
entitlements belong, in the meaningful sense of that term, to the defendant
and prosecutor,” an assumption that may not be sustainable if the foregoing
is correct, at least without an alteration in the supposedly ”bedrock rules”
of plea bargaining … the overlap between the goals of criminal attorneys
and those whose rights are at issue is not inevitable, nor is the meaningful
involvement of the rights-bearing principals. In many cases, victims can be
marginalized or wholly ignored.20
If plea bargaining promotes resolutions contrary to the victims of crime, the system
would produce results that do not represent an effective compromise of interests.
The best solution that I see to this problem is for the negative to read a counterplan
that reforms aspects of the plea bargaining process that would decrease the defendant’s
19
Frank H. Easterbrook, ”Plea Bargaining as Compromise,” 101 Yale Law Journal 1969 (1992).
20
Erik Luna, Traces of a Libertarian Theory of Punishment, 91 M[arq]{.smallcaps}. L. R[ev]{.smallcaps}. 263
(2007).
Available at: http://scholarship.law.marquette.edu/mulr/vol91/iss1/12
31
bargaining power, and produce decisions contrary to the interests of victims of crime.
One example of this could be a regulation that includes victims of crime in the process of
plea bargaining. For example: “some states even require this by statute or constitutional
provision, with precedents holding that ”the rights provided to crime victims ... cannot
be plea bargained away without the crime victim’s actual approval.”74
Another potential reform would attempt to increase bargaining power of the defendant
by making trial outcomes dependent on the strength of evidence for or against the de-
fendant. For example, Thomas W. Church argues that:
negotiated settlements of criminal cases need not involve either violations

of due process or unjustifiable leniency ... The bargaining positions of the
parties should thus be based upon strengths or weaknesses in the case itself
and not on unequal access to information or unequal ability to hold out for
a trial in the event that a mutually satisfactory settlement cannot be reached.
21
Church argues for a set of four regulations in order to improve the operation of the sys-
tem of plea bargaining: first, the supervision of plea negotiations, and the prevention of
prosecutors from suggesting sentences to judges that allow them to coerce defendants
with the threat of long sentences as a result of trials. Second, granting defendants ac-
cess to counsel during the process of discussion and negotiation to equalize bargaining
power. Third, all trial negotiation should be made available during plea negotiations.
Pleas should be carried out with sufficient evidence to determine guilt of the defendant,
and ensure that actual guilt plays a significant role in the course of negotiations. Fourth,
actions should be taken to ensure that “each side possesses sufficient resources to take
the case to trial if it believes that the settlement offered does not adequately reflect the
likely trial result.” 22 While these reforms are by no means an exhaustive account of the
kind of negative counterplan that could be run with this NC, they should give you an
example of the ways to equalize the playing field to enable plea bargaining to exist as
an extension of the defendants freedom, rather than a coercive limitation of freedom.
21
Thomas W. Jr. Church, In Defense of Bargain Justice, 13 Law & Soc’y Rev. 509 . 13 Law & Society, Winter
1979
22
Thomas W. Jr. Church, In Defense of Bargain Justice, 13 Law & Soc’y Rev. 509 . 13 Law & Society, Winter
1979
32
4 Topic Analysis by SunHee Simon
4.1 Aff Argument
4.1.1 African Americans & Slavery
If you’ve done any surface level research on this topic, you’ll find that racial disenfran-
chisement is at the center of the plea bargain debate. Overwhelmingly, a majority of plea
bargains are taken by African Americans, typically convicted of drug crimes. However,
these racial disparities are not uncalled for given the racist history of the criminal justice
system used to uphold white supremacy within the United States. After Emancipation,
many rich and poor whites wondered what black freedom would mean for the social
chain they had created for themselves. Without slavery, rich whites lost easy profit and
free labor while poor whites feared they would be just as bad as Negroes given that they
were not slaves but simply just poor. Fueled by the notion of white superiority and black
inferiority, whites across all classes believed that black subordination was a necessity—
for society and the well-being of Negroes themselves. As a result, they created vagrancy
laws that arbitrarily targeted blacks for looking mischievous or dangerous and they of-
ten legally contracted out prison labor to private bidders. In fact, these rules set the
foundation for the Jim Crow Era and made it likely that a black person could be locked
up for almost anything and essentially sold back into a new form of slavery. Prison la-
bor was practically free because prisoners would not get paid for their work. All of this
was additionally made possible because of the wording of the 13th amendment, whose
text said it abolished slavery except “as a punishment for crime”.
When understanding this history and the way powerful white men in this country
framed the law to disproportionately target African Americans, it is difficult to be
surprised by the data present on plea bargaining and race. Michelle Alexander1
eloquently writes about the criminal justice system as well as the dilemma presented
1
Alexander, Michelle. The new Jim Crow: Mass incarceration in the age of colorblindness. The New Press,
2012.
33
by plea bargaining:
The pressure to plea-bargain and thereby “convict yourself” in exchange

for some kind of leniency is not an accidental by-product of the mandatory
sentencing regime…describing severe mandatory sentences as a bargaining
chip is a major understatement, given its potential for extracting guilty pleas
from people who are innocent of any crime…if only 1 percent of America’s
prisoners are actually innocent of the crimes for which they have been con-
victed, that would mean tens of thousands of innocent people are currently
languishing behind bars in the United States. The real point here, however,
is not that innocent people are locked up. …The critical point is that thou-
sands of people are swept into the criminal justice system every year pur-
suant to the drug war without much regard for their guilt or innocence.
As articulated by Alexander, plea bargaining has created a system by which the innocent
are forced to see themselves as guilty. They are given subpar lawyers to defend them
and, knowing that the odds are seldom in the favor of the black man on trial, they are
forced to choose the lesser of two evils. The criminal justice system used plea bargaining
as a means of disregarding the actual innocence or guilt of the people whose lives are on
the line. It also creates a system of divide and conquer where those who are locked up
take a plea bargain that requires them to tell law enforcement about crimes committed
by others in an attempt to shorten their own prison time. Roundups are more likely
based on this coerced information and repeats the cycle of “guilty until proven innocent”
many African Americans face when swept into the Criminal Justice System.
Given this information, there are two ways to create an argument surrounding race and
the criminal justice system. The first is more material in its approach. You could use a
structural violence framework, or any general framework that argues that oppression is
bad. This will be strategic because it allows for you to already justify why the disenfran-
chisement of a specific group of people is bad within the context of morality or whatever
value you choose for the round. The burden for the affirmative then becomes a matter
of simply proving that plea bargaining replicates structural violence or inequality or
oppression of any kind. The contention level can explain how this disenfranchisement
takes place, either through the use of the history of the criminal justice system or by
simply mentioning studies that show these disparities, to argue that plea bargaining
has been a leading force in mass incarceration. This would not be too difficult to assert
given that right now 95% of cases are settled through a plea bargain rather than going
through trial. Additionally, the contention level should also include the tangible effects
34
that come from mass incarceration. Inability to find work, the disruption of income for
many families, and the loss of the ability to vote are only a few of the consequences
of jail time and are very likely to influence recidivism rates and maintain community
instability as cycles of poverty are left untouched.
4.1.2 Immigration
Another point of interest one could focus on is plea bargaining as a method of protect-
ing U.S. nationalism. While we are constantly seeing the threat of deportation on the
news, when looking at the numbers, deportation from the United States is at an all-time
low. However, what has begun to rise is the arrest and detainment of immigrants in the
United States. Detention centers across the country are being used and are expanding
to make room for more undocumented immigrants who are caught without documen-
tation. For many immigrants, whether they are undocumented, have a visa, or a green
card, being arrested is their worst fear. This is because an arrest can result in immedi-
ate deportation. In fact, administrations have preyed on this fear for decades and the
blurred lines between the criminal justice system and immigration agencies in the cases
of immigrants have made it almost impossible for immigrants to not take a plea deal.
Jason Cade2 explains:
The misdemeanor prosecution system is problematic for many defendants,

but especially so for those who are not United States citizens. For many
immigrants, a conviction for a minor offense, despite resulting in minimal
punitive consequences under state law, leads to detention, deportation, and
bars to reentry. Turnstile jumping, petty shoplifting, and misdemeanor mar-
ijuana possession, among many other low-level offenses, can trigger depor-
tation, sometimes with almost no possibility of discretionary relief. Thus,
defense counsel (if provided at all) must ascertain whether the plea offered
by the prosecutor raises deportation or other negative immigration conse-
quences, and if so, attempt to negotiate a better bargain. But heavy misde-
meanor dockets make thorough investigation of the client’s circumstances
difficult in general, and impossible at arraignment. Even where the immigra-
tion consequences for a particular defendant are clear, the structural norms
endemic to the prosecution of petty offenses often foreclose effective nego-
2
Cade, Jason A. ”The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court.” Cardozo L. Rev. 34
(2012): 1751.
35
tiation of immigration-neutral dispositions, especially at the first court ap-

pearance.
This partnership between the criminal justice system and agencies like ICE have made
navigating the criminal justice system difficult for immigrants. Not only is it possible for
them to be placed in the worst of situations for the most arbitrary crimes—shoplifting or
marijuana possession—but more often than not their status within the country make it
impossible for them to receive the same rights. Similar to the arguments made up in the
“New Jim Crow” sections, the illusion of choice is a dangerous one because it forces these
people to choose plea bargains because they know they probably won’t stand a chance
in court. Additionally, as discretion is being used less and less to analyze the gravity of
particular crimes being committed—a murder versus a theft—every immigrant is made
vulnerable and held equally accountable in ways that far exceed the gravity of the crime
in most cases.
Additionally, detainment and ICE detection make noncitizens more likely to accept plea
deals out of fear of remaining in prisons too long and being caught by ICE officials.
Cade3 continues:
The integration of immigration enforcement programs also influences the

plea-bargain incentives of noncitizens not yet subject to immigration detain-
ers who cannot make bail. Because prosecutors often make plea offers at the
defendant’s first appearance in low-level cases, noncitizens willing to take
the deal may be able to exit the system without ICE detection. The risk that
deportation will ensue if a conviction is fought or delayed puts tremendous
pressure on potentially removable noncitizens to take almost any plea offer
that avoids contact with ICE, regardless of the future immigration problems
that may be triggered by the conviction, the strength of the prosecutor’s case,
or even their own culpability. Even lawfully present noncitizens face this
dilemma where the misdemeanor case might end with a deportable convic-
tion, at which point ICE will take custody and initiate removal proceedings.
This is made possible because while noncitizens are held while waiting for trial, ICE is
permitted to screen criminal facilities. If they find immigrants who may be deportable
for civil immigration violations or a prior criminal history that has not been scrutinized
yet, it warrants taking them into custody during their criminal proceedings. Therefore,
3
Cade, Jason A. ”The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court.” Cardozo L. Rev. 34
(2012): 1751.
36
many noncitizens do not try to contest minor charges, even if they are innocent, be-
cause they are worried about being held for too long, caught, and then put into custody.
This therefore makes them even more vulnerable because even if they are able to avoid
prison, they now have a criminal history which may be grounds for future deportation
later down the line.
Unfortunately, plea bargains are not always used in the same ways. While Jason Cade
reveals the ways plea bargaining creates a crisis for noncitizens in misdemeanor court, a
new trend of waving rights under Jeff Sessions is pushing attorneys to use plea bargains
as a means of increasing deportation. Prosecutors can offer a plea bargain where the
defendant can choose deportation or go to trial and risk a lengthy sentence in prison.
Brooke Williams and Shawn Musgrave4 report:
Three months later, in his regular bulletin to U.S. attorneys, Sessions invited
attorneys from Immigration and Customs Enforcement to share tips on what
they called a “game-changer”: Make deportation part of plea agreements
offered to noncitizens charged with crimes. This “seldom used” strategy
would “offer a powerful and efficient tool for prosecuting criminal aliens —
one that provides enormous value to the Department of Homeland Security
(DHS) and furthers new Department of Justice policy,” the how-to memo
stated. It went on to list benefits, including using the waivers “as a bargain-
ing chip to negotiate a plea with a defendant who is less interested in fighting
removal than in litigating the prison sentence.” …Donna Lee Elm, who is in
charge of federal public defenders in the Middle District of Florida and an
expert on plea bargain waivers, said the Justice Department’s new tactics are
affecting many people who “actually should be entitled to be heard in im-
migration court.” “They’re using the hammer of threat of prosecution and a
long prison sentence to give up the rights in an immigration case,” she said.
This is especially troubling for a few reasons. For many immigrants, this isn’t really
much of a choice. Knowing that they do not have the best defense and that the current
administration is biased against immigrants, they will either be locked up for a very
long time or deported. Secondly, given the information presented by Cade about ICE
screenings, going to trial can still result in deportation or detainment. Once again the
false illusion of choice is used to destroy the lives of immigrants and remove any sense
of true justice in the criminal justice system.
4
Williams, B. and Shawn Musgrave. “Federal Prosecutors Are Using Plea Bargains As A Secret Weapon
For Deportations”. The Intercept. November 15, 2017.
37
4.2 Neg
In all honesty, the critical neg ground on this topic is not the best compared to other
topics. What I mean by that is, even though you may have access to generic Ks that indict
the state or larger institutions, you will have a harder time finding negative arguments
that are explicitly discussing plea bargains and their relationship to the power dynamics
your criticism speaks of while still negating. Nevertheless, below is an idea you can
use in your repertoire of negative strategies and perhaps they can lead you to more
information that can be useful.
4.2.1 Abolish US Criminal Justice System
Given the history lesson about the criminal justice system in the affirmative section, you
could argue that there is nothing redeemable about the criminal justice system. This
position wouldn’t be anything new. Many academics, activists, and politicians have
argued that prison abolition is a necessity. Prison is not a system for creating account-
ability and rehabilitation. Rather, it is a capitalist scheme used to disenfranchise poor
minorities and silence dissenters. Angela Davis5 writes:
There was a relationship, as George Jackson had insisted, between the rising
numbers of political prisoners and the imprisonment of increasing numbers
of poor people of color. If prison was the state-sanctioned destination for
activists such as myself, it was also used as a surrogate solution to social
problems associated with poverty and racism. Although imprisonment was
equated with rehabilitation in the dominant discourse at that time, it was
obvious to us that its primary purpose was repression.
In this quote, Davis brings up another important point—the purpose of imprisonment.

If prison was truly a place for rehabilitation and reintegration back into society, perhaps
abolition would not have such strong footing. However, prison has always been primar-
ily concerned with retribution over rehabilitation. Punishment is used as a repressive
tool to maintain domination over certain people in society. Furthermore, the prison in-
dustrial complex has created a world where industry heavily relies on the existence of
prisons. Since corporations use prison labor for cheap production and private compa-
nies benefit from the products they sell to prisons—clothing, food, etc.—the existence
5
Davis, Angela Y., and Dylan Rodriguez. ”The challenge of prison abolition: A conversation.” Social
Justice 27.3 (81 (2000): 212-218
38
of prisons is coupled with an active effort to keep people in them. The more people in
prison, the more money private companies make. And these practices are not new but
are definitely rooted in the policies that have existed in the United States for centuries.
This position must be read strategically because the position isn’t necessarily mutually
exclusive—meaning the affirmative and the negative could happen at the same time. In
order to avoid the affirmative going for the perm, it is necessary that you do a couple
of things. First, you should find out the stance of the affirmative. Are they defending
getting rid of plea bargaining but defending other benefits of the system? Do their cards
only talk about innocent people being incarcerated? This can be done either in cross ex-
amination or, which I recommend more, by paying attention to their cards. Second, you
need to include arguments about reform being a hindrance to abolition. The abolition
of plea bargaining must be characterized as a way to make the criminal justice system
better as opposed to a method of deconstructing it. You can have this argument be a link
to the criticism. This would allow for you to use the link debate as a disadvantage to the
permutation. What this means is, you can say the affirmative’s reliance on reforming
the criminal justice system makes abolition impossible because it makes people hesitant
to take radical action. There are many authors who talk about the problem with reform,
such as Frank Wilderson or Anthony Farley, and Angela Davis mentions the problem
with reform in her interview with Dylan Rodriguez as well.
In terms of arguing the alternative, you can be creative with it based on what solvency
advocate you would want to use and defend when you say the words “prison abolition”.
Depending on who you read, the iterations could be very different. As a starting point
however, Angela Davis argues that prison abolition is:
“…is a long-range goal and the handbook argues that an abolitionist ap-
proach requires an analysis of ”crime” that links it with social structures,
as opposed to individual pathology, a…there are many versions of prison
abolitionism including those that propose to abolish punishment altogether
and replace it with reconciliatory responses to criminal acts. In my opinion,
…Prison needs to be abolished as the dominant mode of addressing social
problems that are better solved by other institutions and other means. The
call for prison abolition urges us to imagine and strive for a very different
social landscape.”
39
4.3 Conclusion
While this topic analysis focused on three arguments keep in mind that the possibili-
ties are limitless and often times a lot of the criticisms flow into other areas of thought.
Always remember that a good critical case requires 3 things: 1) a challenge to the funda-
mental assumptions rooted in the resolution or your opponent’s strategies, 2) specificity,
and 3) reading.
Feel free to email sunhee@victorybriefs.com if you have any questions concerning the
topics mentioned here, cannot find the articles mentioned and need them, or if you are
interested in another branch of critical literature and need some help finding authors to
start with.
Good luck!
40
5 Definitions
41
5 Definitions
5.1 Plea Bargaining
Plea bargaining should be defined broadly, most definitions are too narrow to
capture the complexity of the current practice and debate.
[Guidorizzi 98], Douglas D. [J.D., Emory University School of Law] ”Should we Really
Ban Plea Bargaining: The Core Concerns of Plea Bargaining Critics.” Emory Lj 47 (1998):
753.
No standard definition of plea bargaining exists among practitioners. The definition

of ”plea bargaining” varies depending on the jurisdiction and on the context of its use.
n9 However, to identify the core problems of plea bargaining, we must first settle on a
definition that encompasses the broad range of practices that may be considered plea
bargaining. Black’s Law Dictionary provides a general definition that serves as a useful
starting point to highlight the common misunderstandings of what constitutes plea bar-
gaining. Black’s defines plea bargaining as: “the process whereby the accused and the
prosecutor in a criminal case work out a mutually satisfactory disposition of the case
subject to court approval. It usually involves the defendant’s pleading guilty to a lesser
offense or to only one or some of the counts of a multi-count indictment in return for
a lighter sentence than that possible for the graver charge.” n10 The first part of the
definition suggests that plea bargains are ”mutually satisfactory dispositions.” While it
is true that the bargain struck must be agreed upon by both sides and the guilty plea
must be made intelligently and voluntarily, n11 this does not guarantee a mutually sat-
isfactory result. The prosecutor may be forced to present a highly favorable offer to a
defendant as a result of errors in procedure that may cause evidentiary problems at trial.
n12 On the other hand, the strength of the prosecutor’s bargaining power may present
the defendant with almost equally unfavorable choices. n13 For example, the prosecu-
tor’s offer may involve merely not taking advantage of broad powers granted by the
legislature such as not overcharging the defendant, not charging him as a multiple of-
fender, or grouping several convictions for the same incident into a single sentence. In
either scenario, the description ”mutually satisfactory disposition” belies the true na-
ture of the situation. [*756] Also, the phrase ”subject to court approval” suggests some
sort of judicial review of the plea bargaining agreement prior to acceptance by the judge.
However, the true nature of plea bargaining includes situations where judicial review
is nonexistent. Implicit plea bargaining, by definition, is never officially subject to court
approval. Implicit plea bargaining involves situations where defendants do not nego-
tiate for certain conces-sions but instead are presented with the fact that if they go to
42
5 Definitions
trial they will be punished more severely. n14 Despite the lack of formal agreement for
this bargain, this type of plea bargaining is often made quite explicit to the defendant
but not subject to court approval. Additionally, prosecutors can independently drop
charges against the defendant in exchange for a guilty plea. Moreover, judges seldom
reject plea bargaining agreements involving sentencing recommendations by the pros-
ecutor. n15 Therefore, the phrase ”subject to court approval” obscures the reality of
plea bargaining and inappropriately limits the definition of plea bargaining. Finally,
the suggestion that plea bargaining ”usually involves the defendant’s pleading guilty
to a lesser offense in return for a lighter sentence” also distorts the reality of plea bar-
gaining by ignoring the vast array of concessions that may be offered to a defendant
in exchange for his guilty plea. The variety of concessions the state offers defendants
extends to the limits of the prosecutor’s or judge’s imagination. These concessions gen-
erally can be divided into two categories: charge bargaining concessions and sentence
bargaining concessions. n16 Charge bargaining involves offering a reduction of the
charges or the dismissal of one or more of the charges in exchange for the guilty plea.
Sentence bargaining, on the other hand, includes a wide range of offers that extends
beyond merely an offer for a lighter sentence in return for a guilty plea. n17 Therefore,
Black’s characterization of the ex-change involved in plea [*757] bargaining understates
the diversity of concessions offered by the state in ex-change for the defendant’s guilty
plea. To really consider the core concerns of plea bargaining critics, the definition of
plea bargaining must encompass the broad range of practices that constitute plea bar-
gaining today. A comprehensive definition defines plea bargaining as ”the defendant’s
agreement to plead guilty to a criminal charge with the reasonable expectation of receiv-
ing some consideration from the state.” n18 This definition encompasses both explicit
plea bargaining and implicit plea bargaining. Although some practitioners refuse to
acknowledge implicit bargaining as part of the practice, n19 its use as a method of nego-
tiating a guilty plea qualifies it as part of the process of plea bargaining. In considering
whether jurisdictions should ban or severely restrict plea bargaining, the comprehen-
sive definition should be used to avoid confusion.
Plea bargaining is distinct from when a judge discounts a sentence given a guilty
plea.
[Harper 94], J. Ross [co-founder of one of Scotland’s biggest law firms, president of the
International Bar Association and professor at Strathclyde University] ”Plea Bargaining
and Sentence Discounting.” Int’l Legal Prac. 19 (1994): 72.
43
5 Definitions
[There is a distinction between plea bargaining] or plea adjustment [and sentence

discounting.] [The former is a process whereby the prosecution and defence will
discuss aspects of a case with a view to negotiating a partial or modified plea.] These
discussions may take place at any time prior to the initial appearance right down to the
date of the trial. [Sentence discounting, on the other hand, is the practice whereby the
Judge allows, where there is a plea of guilty, a discount from what could otherwise
be an appropriate sentence from the charge.]
44
5 Definitions
5.2 Abolish
Abolishing plea bargaining does not necessarily mean you eliminate concessions
for guilty pleas.
[Schulhofer 92], S. [professor of Law at University of Pennsylvania] (1992). Plea Bar-

gaining as Disaster. The Yale Law Journal, 101(8), 1979-2009. doi:10.2307/796954
Abolition of plea bargaining can be understood in two senses. It is often equated with
the elimination of all incentives to waive trial. I refer to such a program as abolition of
concessions. An alternative approach would eliminate only bargaining; it would retain
concessions for pleas, but the concessions would be nonnegotiable incentives fixed by
statute or rules of court.
45
5 Definitions
5.3 Plans Good
It seems increasingly unproductive to attempt to criticize all plea bargaining in the

abstract given how much it can differ from context to context.
[Casper 79], Jonathan D. ”Reformers v. Abolitionists: Some Notes for Further Research
on Plea Bargaining.” Law & Society Review 13.2 (1979): 567-572.
On the other hand, several of the essays in this volume (e.g., Church, Brunk), a num-
ber of other recent works (e.g., Rosett and Cressey, 1976; Heumann, 1978; Utz, 1978),
and many of the conference participants appeared to find much to commend plea bar-
gaining, at least in some modified form. Several developments may have contributed
to this changing perspective. Recent research both in the United States and in Europe
has indicated that: (1) the practice may be widespread (Baldwin and McConville, 1977
and supra; Goldstein and Marcus, 1977; but see Langbein and Weinreb, 1978); (2) it may
have characterized courts for long periods of time rather than being a response to con-
temporary caseload pressures (Heumann, 1975; Friedman, supra); and (3) it may vary
greatly from one jurisdiction to another. Denunciation of plea bargaining as an undif-
ferentiated and unmitigated evil becomes a less useful position, especially in view of
increasing pessimism about the possibility of eliminating it, and gives way to a search
for ways to accommodate and modify it. Other factors have probably contributed to the
reevaluation of plea bargaining. The Supreme Court has rejected several constitutional
challenges to the practice and endorsed it as an appropriate and legitimate means of
handllng criminal cases (Brady v. United States, 397 U.S. 642, 1970; North Carolina v.
Alford, 400 U.S. 25, 1970; Santobello v. New York, 414 U.S. 257, 1971; Bordenkircher
v. Hayes, 54 L. Ed.2d 604, 1978). These decisions, in turn, have affected the way in
which plea bargaining is conducted in many jurisdictions, elevating it from hushed con-
versations in corridors and chambers-the ”cop-out” ceremonies described by Blumberg
(1967) and Casper (1972)-to the formal, quasicontractual arrangements on the public
record that are now used in many courts. Plea bargaining has come out of the closet,
complete with a stamp of approval from the Supreme Court.
46
6 Aff
47
6 Aff
6.1 Adversarial Justice
The rational incentives that defense councils have to accept pleas diverge from the
interests of the defendant, creating perverse incentive structures that undermine
adversarial justice.

Counsel appointed for the indigent serve under a variety of systems. Some are con-
scripted from the list of those admitted to the bar and are required to serve without
any compensation whatsoever.33 Conscription may even extend to lawyers who lack
any experience or expertise in criminal law. Although involuntary conscription with-
out pay once seemed on the way to extinction, recent crises in municipal financing have
resurrected this approach in many jurisdictions. Understanding the impact of such sys-
tems on the attorney’s incentives to settle does not require a Ph.D. in economics. In
some jurisdictions, conscription is coupled with some provision for attorney’s fees. But
services are compensated at rates that are invariably far below their market value, as is
obvious from the fact that defense attorneys are not willing to serve voluntarily. Again,
incentive effects hardly need to be spelled out. Appointed attorneys in many jurisdic-
tions volunteer for criminal defense work and are paid for their services. But in nearly
all cases, compensation takes the form of either a flat fee per case, or a low hourly rate
coupled with a ceiling on total compensation payable. A 1986 survey revealed that com-
pensation caps as low as $500 or $1000 were common for felony cases, and some states
enforced caps of $1000 even in capital cases.35 These compensation limits are almost
invariably identical for guilty plea cases and those that go to trial. And most states have
little or no flexibility to waive compensation caps for unusually complex cases or those
that elicit exceptional attorney effort. Thus, the attorney who counsels his client against
accepting a plea must do so knowing that his time spent preparing and trying the case
will be provided entirely free of charge. Occasionally, a foolish (or idealistic) attorney
does take a case to trial under these conditions, earning compensation that may aver-
age one or two dollars per hour.36 More often, the results are in accord with economic
theory. Attorneys either accept appointment with the expectation (and under the fi-
nancial imperative) of convincing the client to plead guilty, or they refuse appointment
altogether. Conflict of interest problems are less dramatic for public defenders because
they have no immediate financial incentive to avoid trial. But defender organizations,
which are typically run as agencies of state or county government,37 have their own in-
48
6 Aff
stitutional needs, and they tend to develop a strong priority for moving their caseloads.
The resulting organizational pressures for nontrial disposition, together with the attor-
neys’ personal incentives, again lead to a sharp divergence between the trial-versus-plea
preferences of the attorney and those of his client.
Eliminating plea bargaining will increase the degree of accountability that defense
attorneys are held to.

But the shift from plea disposition to trial disposition also has a powerful effect on at-
torney incentives to devote time and effort to the case. Scott and Stuntz assume that
this shift only creates greater opportunities for ineffective performance. ”[T]he more
extended the relationship, the greater the magnitude of [the] problems.”78 This kind of
axiomatic reasoning is helpful only if we know enough about context to be sure that all
other relevant factors remain equal. In this instance, the shift from plea negotiation to
trial brings profound changes in the attorney’s function and in prospects for monitor-
ing. Indeed, since the problem here is to assess the distorting effect of agency problems
and prospects for effective control, it seems incomplete to suggest that the only differ-
ence between the low-visibility plea process and trials in open court is that the latter
last longer. In plea bargaining, the attorney’s role is virtually immune from scrutiny
or control. The quality of attorney performance is difficult for both clients and peers to
assess; the formal obligations of effective assistance do not, even in theory, require inves-
tigation of factual or legal defenses; and retrospective control by suits for malpractice or
ineffective assistance are precluded by nearly insuperable doctrinal hurdles.79 The shift
from plea bargaining to trial renders the attorney’s performance highly visible to peers
in the courtroom. This shift also enlarges both the attorney’s formal legal obligations of
effective assistance and the practical likelihood that they will be taken seriously.81 The
institutional environment of the trial process thus limits the consequences of the agency
problem in ways that are precluded when disposition occurs in a low-visibility plea.
The visibility of trial also tends to generate pressure to alleviate the worst inadequacies
of indigent defense funding.82 Indigents are far more likely to receive conscientious rep-
resentation when cases are tried in open court than when the attorneys are permitted
to settle on the basis of an uninformed guess about the likelihood of conviction. Thus,
even if deeply flawed systems for indigent defense remain common, abolishing bar-
gaining and conducting more trials would not hurt poor defendants. Indeed, the more
49
6 Aff
that indigents face acute problems of involuntary representation, inadequate funding,

and pervasive conflicts of interest, the more that abolition remains necessary to permit
better monitoring of the attorneyclient relationship. The mission of the criminal justice
system is to ascertain guilt and appropriate punishment. Structural flaws only increase
the importance of resolving these issues in the sunlight of open, adversarial proceedings
before a neutral decisionmaker, rather than permitting them to be settled behind closed
doors by agents who have few incentives to act in the interests of their principals.
50
6 Aff
6.2 Burden Imposition
Contemporary practice has the result of imposing a substantial burden on those

who choose to exercise their constitutional right to a trial by jury.
[Chief Judge Young 01] William G. Young. Berthoff v. United States, 140
F. Supp. 2d 50 (D. Mass. 2001) https://law.justia.com/cases/federal/district-
courts/FSupp2/140/50/2390196/
”The law is clear beyond peradventure that a sentence based on retaliation for exercising
the constitutional right to stand trial is invalid.” United States v. Mazzaferro, 865 F.2d
450, 460 (1st Cir.1989) (Bownes, J.). Well, not really. At least not today in the First Circuit.
Evidence of sentencing disparity visited on those who exercise their Sixth Amendment
right to trial by jury is today stark, brutal, and incontrovertible. True, there has always
been a sentencing discount for those who plead guilty and turn state’s evidence. In this
District, that discount used to range from 33% to 45%.[32] Today, under the Sentencing
Guidelines regime with its vast *68 shift of power to the Executive, that disparity has
widened to an incredible 500%.[33] As a practical matter this means, as between two
similarly situated defendants, that if the one who pleads and cooperates gets a four-
year sentence, then the guideline sentence for the one who exercises his right to trial by
jury and is convicted will be twenty years. Not surprisingly, such a disparity imposes
an extraordinary burden on the free exercise of the right to an adjudication of guilt by
one’s peers. Criminal trial rates in the United States and in this District *69 are plum-
meting[34] due to the simple fact that today we punish people punish them severely
simply for going to trial.[35] It is the sheerest sophistry to pretend otherwise. This is
nothing new, of course. Sugarcoat it as we may with terms like *70 ”acceptance of re-
sponsibility” for those who cooperate, we have always punished those who demand
that the government carry its constitutionally-mandated burden of persuasion beyond
a reasonable doubt before an American jury. What is new and unprecedented is the
severity of the punishment we are meting out to those whose only differentiating factor
is that they ask for the chance to have an independent jury evaluate the evidence.
51
6 Aff
6.3 Coercion
Careful moral reasoning indicates that plea bargaining remains coercive, even if the
threat is something that the prosecutor was under no legal obligation not to
threaten.
[Kipnis 78], Kenneth [Starting 1979 was a Professor of Philosophy as University of

Hawaii]. (1978). Plea Bargaining: A Critic’s Rejoinder. Law & Soc’y Rev., 13, 555.
I shall conclude with what I believe to be a hard case for Brunk’s account of coercion, a
case that may throw light upon the propriety of plea bargaining and the voluntariness
of guilty pleas under it. A victim is drowning and a bystander is in a position where he
alone can save the victim’s life. Let us say he can do this practically costlessly, simply
by moving his arm. The bystander offers to save the victim’s life if the victim will agree
to do whatever the bystander subsequently asks of him. The victim agrees and is saved
but challenges the agreement in court. Should the terms of the agreement be honored
by the legal system? Note that under current law, the bystander has no legal duty to
intervene on behalf of the victim. Note also that both parties are better off as a result
of the agreement: the victim is still alive and the bystander has an unlimited right to
the victim’s services and property. Nonetheless, at least two separate arguments can
be marshalled in support of the contention that the agreement should not be legally en-
forceable. Moreover, each directs us to similar concerns about the legitimacy of plea
bargaining. The first argument begins with the dire predicament of the victim. Persons
who are precariously situated or otherwise hard-pressed by circumstance have a strong
claim to special consideration by social institutions. We typically continue to pay peo-
ple their salaries although they are too ill to work. We apply special traffic regulations
to persons who are driving to funerals. We allow people to declare bankruptcy when
they have made a mess of their financial affairs. We are beginning to consider that vi-
tal medical care may not be just another consumer good in the marketplace, that the
desperately ill have a claim to social resources. In short, it may be reasonable to decide
that those who find themselves in the fire deserve more than the offer of a frying pan.
Although we may still in our social institutions are based on a theory of rugged indi-
vidualism, we have always endeavored to provide reasonable accommodation for the
specially vulnerable and dependent. When one is arrested and taken into custody the
presumption of liberty that prevails in our legal system is abruptly reversed. Ordinarily
one is permitted to do anything provided that there is no sound reason for prohibiting
it. Once under arrest, however, one is prohibited from doing anything unless there is a
52
6 Aff
sound reason for permitting it. We say that the accused has lost his freedom. The threat
of prolonged imprisonment is supposed to be something that reasonable people will
fear. Like the drowning victim, the defendant facing a criminal charge is in jeopardy:
vulnerable and dependent. Even if the desperate defendant believes that it is reason-
able to trade away the procedural rights guaranteed by the Constitution in exchange
for a shorter sentence, we might well decide that the defendant deserves more and that
the agreement should not stand. The second argument, instead of concentrating on the
predicament of the victim, focuses rather on the terms of the agreement. What is it,
exactly, that the bystander is demanding of the victim? Is it something the victim is
entitled to give up? Or is it something to which he has an inalienable right? The law
does not honor agreements in which one party consents to become the slave of another,
even when it is clear that the former consented and both prefer the agreement. We
may reasonably choose a legal system in which a person cannot alienate his freedom.4
But are inalienable rights given up under plea bargaining? I believe so. A strong case
can be made for a principle of parsimony in sentencing decisions (Morris, 1974:60 if.).
The state endangers its authority when it regularly punishes convicted criminals more
severely than they deserve. Excessive punishment is cruelty and a state that is cruel
in administering punishment is less worthy of respect. Aside from those unnecessary
costs, the state may well be committing an injustice against the criminal. I can think of
no reason why convicted criminals should be permitted to opt for punishment that is in
excess of the lowest reasonable sentence. There is therefore some ground for supposing
that the right to the lowest reasonable sentence should be inalienable, one that cannot
be waived.
53
6 Aff
6.4 Constitutionality
Plea bargaining violates the fifth amendment by compelling self-incrimination.

Another relevant term is ”compelled,” used in the Fifth Amendment: ”No person shall
be compelled in any criminal case to be a witness against himself.” Being compelled is
very different from being coerced. Having a toothache I am compelled-not coerced-to
pay a visit to the dentist. Earlier I referred to our criminal justice system as an institu-
tionalization of two principles. The second of these is that certain basic liberties shall
not be violated in bringing the guilty to justice. In liberal-democratic societies certain
restraints are observed in the effort to bring the guilty to justice. The second principle
underlies the constellation of constitutional checks on the activities of virtually every
person who plays a part in the system. It might well be that Star Chamber proceedings,
torture, hostages, bills of attainder, dragnet arrests, unchecked searches, ex post facto
laws, unlimited invasions of privacy, and an arsenal of other measures would bring
more of the guilty to justice. But these steps bring us to a dystopia where our most terri-
fying nightmares can come true. Much of the United States Constitution, especially the
Bill of Rights, is directed at checking the state itself in the interest of basic liberty. Al-
though this is not the place to set them out, there are very powerful arguments in favor
of securing the constitutional right to be free from compelled self-incrimination as such
a basic liberty. Now clearly a guilty plea is selfincrimination. When it is bargained for
is it ”compelled”? Arguably it is. After all, we assume that reasonable persons seek to
minimize punishment. That a particular course of action would subject one to a risk of
punishment is supposed to be a compelling reason for not embarking upon it. Under
plea bargaining and its system of discounted sentences, the accused runs the risk of in-
creased punishment if he refuses to incriminate himself by pleading guilty. If plea bar-
gaining does confront defendants with compelling reasons to incriminate themselves
(and if I am right in assuming that persons who are given compelling reasons to act are
thereby compelled to act) then plea bargaining violates a constitutional right secured
by the plain language of the Fifth Amendment.
54
6 Aff
The plea process can be used to functionally bypass constitutional rules of evidence.
[Carp et al.] [Con Law Prof as University of Houston], Robert A., Ronald Stidham, and
Kenneth L. Manning. Judicial process in America. Sage, 2013.
Finally, the system has the potential to circumvent key procedural and constitutional
rules of evidence. Because the prosecutor need not present any evidence or witnesses in
court, a bluff may result in a conviction, even though the case might not be able to pass
muster with the Due Process Clause. The defense may be at a disadvantage because the
rules of discovery (the laws that allow the defense to know in detail the evidence the
prosecution will present) in some states limit the defense counsel’s case preparation to
the period after the plea bargain has occurred. Thus the plea bargain may deprive the
accused of basic constitutional rights.
Bureaucratic concerns cannot nullify core constitutional protections.
[Harvard Law Review Unsigned Note 70]. ”The Unconstitutionality of Plea Bargain-
ing,” Harvard Law Review vol. 83, no. 6 (April 1970): p. 1387-1411.
Allowing bureaucratic values of efficiency to override constitutional guarantees is con-

trary to the essential purpose of the Bill of Rights. These fundamental protections of
the individual are conditions imposed on all state action; they would be nullified if the
state could sacrifice them simply to facilitate more economical implementation of its
goals. Many criminal cases embody this principle. For instance, in requiring the state
to provide a lawyer for a first appeal of right, the Supreme Court rejected state argu-
ments for limiting expenditures to defendants with ”meritorious” claims. 4 Similarly,
in requiring the presence of a lawyer at various ”critical stages” of a criminal proceeding,
the Court did not treat the necessary expenditures as an offsetting factor.” The Miranda
Court recognized the criminal system’s need for confessions, but nevertheless created
an irrebutable presumption that a confession was involuntary if prescribed warnings
were not given. 7 When Fay v. Noia 77 and Townsend v. Sain 78 expanded federal
habeas corpus review, finality was sacrificed to preserve individual rights.79 Bruton v.
United States 80 held that codefendants cannot be tried together if one has confessed
but cannot be cross-examined because he refuses to take the stand. In discussing the
resulting burden on the courts, the Court recognized that ”[j]oint trials do conserve
state funds, diminish inconvenience to witnesses and public authorities, and avoid de-
lays in bringing those accused of crime to trial. But to ”secure greater speed, economy
55
6 Aff
and convenience in the administration of the law at the price of fundamental principles
of constitutional liberty” was to pay too high a price.”’ State fiscal integrity cannot be
protected at the expense of crucial individual rights in the criminal process.83 There is a
fundamental contradiction in a criminal justice system which is bound by a constitution-
ally established procedure, but which functions by inducing the majority of defendants
to waive their right to the safeguards of that procedure. The administrative needs of
the system must not be allowed to nullify the existing constitutional procedure in this
way. The burdens which plea bargaining imposes on the exercise of constitutional trial
rights render the practice unconstitutional.
56
6 Aff
6.5 Democracy
Maintain the centrality of the jury to the American criminal process is essential to
the maintenance of political legitimacy and democratic accountability.
[District Judge Young 89.] In re Acushnet River & New Bedford Harbor: Proceedings
re Alleged PCB Pollution, 712 F. Supp. 994, 1005-06 (D.Mass. 1989).
All of our rules of law purport to be [19 ELR 21204] based on the collective values of the
community. Indeed, many of them explicitly refer to the behavior of the ”reasonable
person” as the determinative factor. Yet how would courts know these values or assess
the conduct of reasonable people without the aid of the jury? The jury is the essential
crucible inextricably melding the judicial system and the community it serves. Jurors
bring their good sense and practical knowledge into our courts. REciprocally, judicial
standards and a respect for justice flow out to the community. See Higginbotham, Con-
tinuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tx.L.Rev. 47,
59 (1977). The acceptability and moral authority of the justice provided in these courts
rests in large part on the presence of the jury. The jury ”tends to make the law intelligi-
ble by keeping it in touch with the common facts of life.” Haines, The Disappearance of
Civil Juries in England, Canada, and Australia, 4 Def.L.J. 118, 125 (1958). It is through
this process, where rules formulated in light of common experience are applied by the
jury itself to the facts of each case, that we deliver the very best justice we as a society
know how to provide. The jury system proves the wisdom of the Founders in their
utilization of direct democracy to temper the potential excesses of the only unelected
branch of government. ”[T]he jury achieves symbolically what cannot be achieved prac-
tically — the presence of the entire populace at every trial.” P. DiPerna, Juries on Trial 21
(1984). Through the jury we place the decisions of justice where they rightly belong in a
democratic society: in the hands of the governed. One could scarcely imagine that the
Founders would have created a system of courts with appointed judges were it not for
the assurance that the jury system would remain.19 In a government ”of the people” the
justice of the many cannot be left to the judgment of the few. Nothing is more inimical
to the essence of democracy than the notion that government can be left to elected politi-
cians and appointed judges. As Tocqueville so elegantly put it, ”[t]he jury system . . .
[is] as direct and as extreme a consequence of the sovereignty of the people as universal
suffrage.” Tocqueville, supra at 294. Like all government institutions, our courts draw
their authority from the will of the people to be governed. The law that emerges from
these courts provides the threads from which all our freedoms are woven. It is through
57
6 Aff
the rule of law that liberty flourishes. Yet, ”there can be no universal respect for law
unless all Americans feel that it is their law.” Kaufman, A Fair Jury — The Essence of
Justice, 51 Judicature 88, 91 (1967) (emphasis in original). Through the jury, the citizenry
takes part in the execution of the nation’s laws, and in that way each can rightly claim
that the law belongs partly to her. Only because juries may decide most cases is it toler-
able that judges decide some. However highly we view the integrity and quality of our
judges, it is the judges’ colleague in the administration of justice — the jury — which is
the true source of the courts’ glory and influence. The involvement of ordinary citizens
in a majority of a court’s tasks provides legitimacy to all that is decreed. When judges de-
cide cases alone they ”are still surrounded by the recollection of the jury.” Tocqueville,
supra at 297. Their voices, although not directly those of the community itself, echo the
values and the judgments learned from observing juries at work. In reality, ours is not
a system where the judges cede some of their sovereignty to juries, but rather where the
judges borrow their fact-finding authority from the jury of the people.
Juries play an important role in the maintance of democracy, as such we should

want more trial by jury.

Now whether something is a cost or a benefit depends upon which values are choicewor-
thy. We should at least remind ourselves of the value of the jury trial before we endorse
a system that largely dispenses with it. Basically, jury trials remove the disposition of
criminal cases from the control of bureaucrats and professionals. This appropriation of
responsibility by citizens has important consequences. (1) Stability: it immunizes the
state against much of the responsibility it would otherwise bear for the miscarriages
of justice that inevitably occur in any system. (2) Security: it incorporates staunch pro-
tection against official abuse of the criminal justice system. The most cursory look at
history shows that tyranny typically expresses itself through subversion of the crimi-
nal law. The jury trial helps t prevent this. (3) Openness: by opening up the criminal
process through citizen involvement, the jury trial reduces the cynicism and contempt
bred by less visible proceedings. (4) Democracy: by informing judges and prosecutors
of the degree to which the legislative mandate can and should be carried out, the jury
trial builds in a kind of check against dated law and overzealous officials. (5) Partici-
pation: finally, the jury trial offers an opportunity for persons to assume an important
responsibility as citizens in a democracy. These occasions serve to remind us of the laws
58
6 Aff
our representatives have passed, of the measures taken to identify and apprehend those
who are believed to have broken them, of the rights that properly pertain to the accused,
and of the gravity of the judgment of guilty. It may be that no more efficient procedure
than the jury trial has ever been developed for alerting citizens to the full dimensions
of their civic duty. Ordinary citizens, as jurors, speak for all of us in much the same
way that statespersons sometimes do. Were we all well attuned to the political dimen-
sions of our lives, these experiences as jurors might well be superfluous. But since the
opposite obviously seems to be the case, we might well ask how we could have more
jury trials rather than fewer. (One answer might be by abolishing plea bargaining.) The
suggestion that jury trials are costly affairs most of which could be eliminated without
loss should be viewed with grave skepticism.
59
6 Aff
6.6 Deterrence
Plea bargaining harms the credibility of sentencing in a way that decrease the
deterrent effect of punishment.
[Fine 86], Ralph Adam [Judge, Circuit Court of Milwaukee County, Wisconsin; Author,
Escape of the Guilty]. ”Plea Bargaining: An Unnecessary Evil.” Marq. L. Rev. 70 (1986):
615.
The very essence of deterrence is credibility. As I point out in Escape of the Guilty,
we keep our hands out of a flame because it hurt the very first time (not the second,
fifth, or tenth time) we touched fire. If deterrence is to work, we must, in the words of
noted Norwegian law professor and criminologist, Johannes Andenaes, make ”the risk
of discovery and punishment” outweigh ”the temptation to commit crime.” 10 Yet, plea
bargaining destroys this needed credibility. A good example is what happened in two
states with strict gun laws. Massachusetts and Michigan have both tried to control the
unlawful use of guns. Starting in April of 1975, someone carrying a handgun without
a license in Massachusetts faced a mandatory one year in jail. Michigan’s anti-gun law
went into effect in 1977 and required that an additional two years be tacked on to any
felony sentence if the defendant was carrying a gun at the time of the crime. Prosecu-
tors and judges in Massachusetts took the law seriously and it worked. However, the
Michigan story, as Harvard Professor James Q. Wilson relates, was different: “Many
judges would reduce the sentence given for the original felony (say, assault or robbery)
in order to compensate for the add-on. In other cases, the judge would dismiss the gun
count. Given this evasion, it is not surprising that the law had little effect in the rate
at which gun-related crimes were committed.” As a 1973 report of the U.S. National
Advisory Commission on Criminal Justice Standards and Goals concluded: “Since the
prosecutor must give up something in return for the defendant’s agreement to plead
guilty, the frequent result of plea bargaining is that defendants are not dealt with as
severely as might otherwise be the case. Thus plea bargaining results in leniency that
reduces the deterrent impact of the law.” Deterrence is, of course, further weakened as
the criminal brags about his deal and spreads word throughout the community that the
law has no teeth. Dean Roscoe Pound of the Harvard Law School, who studied plea
bargaining in the 1920’s, called it a ”license to violate the law”’ and, over a hundred
years ago, the Wisconsin Supreme Court derisively condemned it as ”a direct sale of
justice.”
60
6 Aff
6.7 Due Process
The very idea that the state might proactively encourage the waiving of
constitutional due-process is at odds with the maintenance of such due-process as a
check on the state.
[Nardulli et al 88], Peter F., James Eisenstein, and Roy B. Flemming. The tenor of justice:
Criminal courts and the guilty plea process. University of Illinois Press, 1988.
The indiscriminate manipulation of the powers entrusted to public officials to coerce de-
fendants into yielding important constitutional rights is anathema to those who claim
that ”steadfast adherence to strict procedural safeguards is our main assurance that
there will be equal justice under law.” The very possibility of such manipulations breeds
contempt and resentment—instead of remorse and resolve—on the part of the defen-
dant and undermines the justice system’s credibility and legitimacy in the eyes of the
public.
61
6 Aff
6.8 Efficiency
Far from speeding up the system, plea bargaining often contributes to greater
inefficiency in the system, slowing down the pursuit of justice.
[Halberstam 82] , Malvina [University of Michigan Law School]. ”Towards neutral prin-
ciples in the administration of criminal justice: A critique of supreme court decisions
sanctioning the plea bargaining process.” J. Crim. L. & Criminology 73 (1982):
Furthermore, even if a greater number of defendants would demand a trial, it does

not follow that significantly greater resources would be needed as a result. While a
trial takes more time than the entry of a guilty plea, considerable court and attorney
time is lost by motions for adjournment and other pretrial maneuvers related to plea
bargaining. My own impressions as an Assistant District Attorney in New York County
accord with Alschuler’s conclusion, based on interviews with prosecutors and defense
counsel in a number of major urban jurisdictions that ”[t]he guilty plea system far from
conserving judicial and prosecutorial resources, has exactly the opposite effect.”’ 20 6
Even those who would retain plea bargaining concede that ”time and delay are used as
tactics by both the prosecutor and the defense counsel” and that ”[j]ustice in these cases
is by no means speedy. ’20 7
62
6 Aff
6.9 Elitism
The movement from jury trials to plea bargaining is a movement towards

undemocratic legal elitism.
[Chief Judge Young 2000]. Ciulla v. Rigny, 89 F. Supp. 2d 97, 102 n. 7 (D.Mass.2000)
(quoting In re Acushnet River, 712 F. Supp. at 1006 & n. 23).
Without juries, the pursuit of justice becomes increasingly archaic, with elite profession-
als talking to others, equally elite, in jargon the elegance of which is in direct proportion
to its unreality. Juries are the great leveling and democratizing element in the law. They
give it its authority and generalized acceptance in ways that imposing buildings and
sonorous openings cannot hope to match. Every step away from juries is a step which
ultimately weakens the judiciary as the third branch of government. See Edward F.
Hennessey, Henry Clay & T. Marvell, Complex and Protracted Cases in State Courts
(National Center for State Courts 1981). Indeed it may be argued that the moral force of
judicial decisions—and the inherent strength of the third branch of government itself—
depends in no small measure on the shared perception that democratically selected ju-
ries have the final say over actual fact finding. In re Acushnet River, 712 F.Supp. at 1006
& n. 23. It is not too much to say that the greatest threat to America’s vaunted judicial
independence comes—not from any external force—but internally, from the judiciary’s
willingness to allow our jury system to melt away. See Trial as Error
63
6 Aff
6.10 Fact Bargaining
There is something deeply objectionable about coming to agreements about the

‘facts’ of a case based upon the pragmatic considerations that enter into plea deals.
The result is to render even the practice of legal judgment opaque.
[Chief Judge Young 01] William G. Young. Berthoff v. United States, 140
F. Supp. 2d 50 (D. Mass. 2001) https://law.justia.com/cases/federal/district-
courts/FSupp2/140/50/2390196/
Third, and most telling, the First Circuit’s characterization of the government as
”charg[ing]” the pleading defendants with only the drugs they personally handled
hides the presence of fact bargaining by blurring the distinction between fact bargaining
and charge bargaining. Drug quantity is not subject to charge bargaining. Subject to
the restrictions of Apprendi, the Sentencing Guidelines make clear that drug quantity
is a factual question to be determined by the judge. U.S.S.G. §§ 1B1.3, 2D1.1, 6A1.3
cmt. The government’s choice to limit the drugs attributed to each defendant who pled
guilty usurped the judicial role in determining drug quantity. This is fact bargaining.
The First Circuit’s silence as to the presence of fact bargaining and ultimate reliance
on factual anomalies unfortunately and substantially undercuts Rodriguez’ reasoning
and holding. Nevertheless, although severely criticized,[26]Rodriguez is the law in
the First Circuit and I respect and follow it. So do others. Although the evidence is
anecdotal, it would appear that fact bargaining has increased exponentially in this
District since the Rodriguez decision. I do, however, confess that, for me, Rodriguez
represents a sad epiphany. If fact bargaining is acceptable, then the entire moral and
intellectual basis for the Sentencing Guidelines is rendered essentially meaningless.
If ”facts” don’t really matter, neither does ”judging” contribute anything to a just
sentence. Kate Stith & José A Cabranes, Fear of Judging: Sentencing Guidelines in the
Federal Courts 82 (1998) (”By replacing the case-by-case exercise of human judgment
with a mechanical calculus, we do not judge better or more objectively, nor do we judge
worse. Instead, we cease to judge at all.”); Judith Resnik, Trial as Error, Jurisdiction
as Injury: Transforming the Meaning of Article III, 113 Harv. L.Rev. *67 924, 1003
(2000) (”Federal judges act as if they believe that stories dissolve in endless variations
.… Judges have, through their practices and doctrine, ... so deconstructed judging that
it is at risk of being undermined as a politically or legally viable concept.”).
64
6 Aff
6.11 Fairness
There is good prima fascia reason to think that plea bargaining is unfair.
[Alschuler 81], Albert W [Professor at University of Chicago Law School]. ”The chang-
ing plea bargaining debate.” California Law Review 69.3 (1981): 652-730.
Defending plea negotiation as a sentencing policy might seem difficult, however. One
mark of a just legal system is that it minimizes the effect of tactical choices upon the out-
come of its processes. In criminal cases, the extent of an offender’s punishment ought to
turn primarily upon what he did and, perhaps, upon his personal characteristics rather
than upon a postcrime, postarrest decision to exercise or not to exercise some proce-
dural option. As an initial matter, it seems unjust that when two virtually identical
defendants have committed virtually identic crimes, one should receive a more severe
sentence than the other only because he has exercised his right to trial. Quite apart from
the threat that plea bargaining may pose to constitutional values, the danger that it may
present of convicting innocent defendants, and a variety of other objections to it, plea
negotiation may be inherently unfair as a matter of sentencing policy.
The result of plea bargaining is that trial decisions get made in ways disconnected
from the facts.
[Bubany and Skillern 75.] , Charles P., and Frank F. Skillern [both professors of law at
Texas Tech University]. ”Taming the Dragon: An Administrative Law for Prosecutorial
Decision Making.” Am. Crim. L. Rev. 13 (1975): 473.
Because the ultimate objectives of the prosecutor are to win cases (or at least not to lose
them) and to dispose of them quickly, the reliance of prosecutors on plea-bargaining to
short-circuit the formal criminal process is not surprising. The bargain, not the formal
proceedings, has in many offices become an end in itself. As a result, the prosecutor
often may not exercise any discretion whatever at the charging stage nor investigate the
facts fully before charging. He may decide only what charges are possible and await the
inevitable plea negotiations for hammering out the ultimate charges and recommended
disposition. Herein lies the anomaly of prosecutorial discretion. Justified in the name
of individualized treatment, in practice the bargained-for settlement of cases often is
determined by factors unrelated to the objective of tailoring a disposition related to the
needs of the defendant, the interests of society, and the unique facts of the case.
65
6 Aff
6.12 Inconsistency
The norms surrounding plea bargains are inconsistent. There is no clear legal
solution when the crime someone pleads to is later overturned, the result is unjust
and unequal treatment.
[Palmer 98], Jeff [executive editor of American Journal of Criminal Law]. ”Abolishing
Plea Bargaining: An End to the Same Old Song and Dance.” Am. J. Crim. L. 26 (1998):
505.
The best justification for abolishing plea bargaining is the inconsistent treatment of plea
agreements by the courts. ”Courts treat the plea agreement as a contract and the bar-
gaining that induces it as simply another type of contractual transaction.”’ The problem
arises when a defen-dant’s conviction must be vacated under the retroactive application
of either a new law or a new interpretation of the law, which no longer makes the charge
pled to illegal.127 The courts have wrestled with the question of whether or not charges
dropped pursuant to a plea agreement may be reinstated once the initial conviction is
vacated. The decision in Bailey v. United States’28 and its effect on the criminal justice
system illustrate the problem and dilemma with plea bargaining.
The legal approval of plea bargaining exhibits objectionable end motivated

reasoning which is inconsistent with broader principles of justice.
While the desirability of plea bargaining is open to question on a number of grounds,’

3 the focus of this article is not on the evils of plea bargaining (though some are dis-
cussed), but on the Supreme Court decisions rejecting challenges to the plea bargaining
process. [The Court’s decisions in this area contravene fundamental principles of con-
stitutional law and are inconsistent with its decisions in cases that do not involve the
viability of the plea bargaining process.] Thus, [the Court has ruled that an admis-
sion of guilt induced by threats] and promises [is involuntary and may not be used to
convict a defendant at trial] 14 [but has ruled that an admission of guilt induced by
threats] 5 and promises’ 6 [is voluntary and may be used to convict a defendant with-
out trial; that waiver of a right to appeal,] [induced by fear of the death penalty, is not a
66
6 Aff
”knowing and intelligent” waiver], 17 [but waiver of the right to trial, induced by fear
of the death penalty, is a ”knowing and intelligent” waiver];18 [that imposition of a
harsher sentence following an appeal violates due process], 19 [since it may be moti-
vated by a desire to discourage lawful appeals, but imposition of a harsher sentence
following a trial does not violate due process] even if it is clear beyond peradventure
that it is motivated by a desire to discourage lawful trials;20 that a trial conviction based
in part on incriminating admissions induced by a prior illegal confession is invalid,2 ’
but a conviction following a guilty plea induced by a prior illegal confession is valid;22
[and that racial discrimination in the selection of the grand jury which issued the in-
dictment requires reversal of a conviction following a trial],23 [but does not require
reversal of a conviction based on a guilty plea.] 24
67
6 Aff
6.13 Innocence Problem
Studies confirm that plea bargaining conditions create perverse incentives on the
innocent to plead guilty.
[Dervan], Lucian E., [and Edkins 13], Vanessa A. [Dervan, association professor of Law
at Belmont; Edkins, associate professor at Florida Institute of Technology]. ”The inno-
cent defendant’s dilemma: An innovative empirical study of plea bargaining’s inno-
cence problem.” The Journal of Criminal Law and Criminology (2013): 1-48.
[Study Methodology]
Participants in the study were all college students at a small technical university in the
southeastern United States.163 The study participants had each signed up for what they
believed was a psychological inquiry into individual versus group problem-solving per-
formance. When a study participant arrived for the problem-solving experiment, he
or she was met by another student pretending to be participating in the exercise also.
Unbeknownst to the study participant, however, the second student was actually a con-
federate working with the authors.164 At this point, a research assistant, also working
with the authors, led the two students into a private room and explained the testing
procedures.165 The research assistant informed the students that they would be par-
ticipating in an experiment about performance on logic problems. According to the
research assistant, the two students would be left alone to complete three logic prob-
lems together as a team.166 The research assistant then informed them that after the
first problems were completed, the students would receive three additional logic prob-
lems that must be completed individually. When these problems were distributed, the
research assistant’s script required the following statement, “Now I will hand out the
individual problems, remember that you are to work alone. I will give you 15 min-
utes to complete these.” While the study participant and the confederate were solving
the individual logic problems, one of two conditions would occur. In half of the cases,
the confederate asked the study participant for assistance in answering the questions,
a clear violation of the research assistant’s explicit instructions. First, the confederate
asked the study participant, “What did you get for number 2?” If the study partici-
pant did not respond with the answer, the confederate followed up by saying, “I think
it is ‘D’ because [some scripted reasoning based on the specifics of the problem].” Fi-
nally, if necessary, the confederate would ask, “Did you get ‘E’ for # 3?”167 It is worth
noting that all but two study participants asked by the confederate to offer assistance
violated the requirement that each student work alone.168 Those study participants of-
68
6 Aff
fering assistance were placed in the “guilty condition,” because they had “cheated” by
violating the research assistant’s instructions. In the other half of the cases, the con-
federate sat quietly and did not ask the study participant for assistance.169 The study
participants in this scenario were placed in the “innocent condition,” because they had
not “cheated” by violating the research assistant’s instructions. After completing the
second set of logic problems, the research assistant, who did not know whether cheat-
ing had occurred, collected the logic problems and asked that the students remain in the
room for a few minutes while the problems were graded.170 Approximately five min-
utes later, the research assistant reentered the room and said, “We have a problem. I’m
going to need to speak with each of you individually.” The research assistant looked
at the sign-in sheet and read off the confederate’s name and the two then left the room
together. Five minutes later, the research assistant reentered the room, sat down near
the student, and made the following statement. You and the other student had the same
wrong answer on the second and third individual questions. The chances of you both
getting the exact same wrong answer are really small—in fact they are like less than
4%—because of this, when this occurs, we are required to report it to the professor in
charge and she may consider this a form of academic dishonesty.171 In early trials of
the study design, it was determined that study participants did not understand how
getting the same wrong answer on questions two and three indicated they may have
cheated. As a result, there was a perception that no actual evidence of guilt existed. Be-
cause actual criminal trials involve evidence of guilt, even trials where the individual
is actually innocent, it was determined that the study would more accurately capture
the criminal process if one piece of evidence leading to the accusation was explained.
Therefore, as described above, the subject was informed that statistically, given that
there were five available choices for each question, there was only a 4% chance that the
students provided the same incorrect answers by coincidence. This explanation of the
logic behind the research assistant’s accusation certainly did not mean the subject was
guilty. To the contrary, the research assistant actually noted that there was a 4% chance
there was no cheating. As with all studies of this nature, difficult decisions must be
made in an effort to create as realistic an environment as possible. While some might
argue that mentioning the statistical evidence leading to the accusation might lead to
a perception of an overly strong case against the study participant, it was decided that
the benefits of explaining the reasoning for the charge outweighed any potential influ-
ence this data might have on the study results.172 To ensure the study participant was
unable to argue that he had answered questions two and three correctly, the second set
of logic questions were designed to have no correct answer. The research assistant then
69
6 Aff
informed the student that this had occurred before and she had been given authority to
offer two alternatives.173 The first alternative the research assistant offered was a “plea”
in which the study participant would be required to admit he or she cheated and, as pun-
ishment, would lose all compensation promised for participating in the experiment.174
This particular offer was made to all study participants and was constructed to be akin
to an offer of probation or time served in the actual criminal justice system.175 The re-
search assistant then offered each study participant one of two alternative options if the
plea offer was rejected. In roughly half of the cases (referred to as the “harsh sentenc-
ing condition”), the research assistant informed the student that if the “deal” was not
accepted, the professor leading the experiment would bring the matter before the Aca-
demic Review Board (ARB). The research assistant explained that the ARB was a group
of ten to twelve faculty and staff members that ruled on such matters. To make the ARB
sound similar to a jury in an actual criminal trial, the research assistant described it as
being a forum in which the student had the option of telling his or her version of events,
presenting evidence, and arguing for his or her position. Again, to better reflect the
actual mechanics of the criminal justice system, the research assistant also informed the
student that “the majority of students, like 80–90%, are usually found guilty” before the
ARB. This percentage was selected and communicated because it is consistent with the
actual current conviction rate of defendants proceeding to trial in the United States.176
While it is impossible to predict how common it is for defense counsel to relate such
statistics to their clients, we believed that this information would, at a minimum, be
considered by counsel during their own assessment of the case and in preparing to ad-
vise their clients of the risks and rewards of each option. As such, we felt it important
to offer this information to the participants in this study to utilize during their personal
assessment processes. The research assistant then informed the student that if he or she
were “convicted” by the ARB, she would lose her study compensation, her faculty advi-
sor would be notified, and she would have to enroll in an ethics course that met for three
hours each week during the semester. The course was described as a pass/fail class that
would be offered free of charge, but it would require mandatory weekly attendance and
the completion of a paper and a final examination. In roughly the other half of the cases
(referred to as the “lenient sentencing condition”), the research assistant provided the
same information to the student regarding the ARB process, but informed the student
that if he was “convicted” by the ARB, he would lose his study compensation, his faculty
advisor would be notified, and he would undergo nine hours of ethics training in the
form of three three-hour seminars. The seminars were described as free of charge but
requiring mandatory attendance and the completion of a final examination. Half the
70
6 Aff
students were offered the harsh sentencing condition and the other half were offered
the lenient sentencing condition to test the impact of “sentencing differentials” on the
rate of innocent and guilty students accepting the plea offer rather than proceeding to
trial before the ARB. Once the study participants were presented with their options of
pleading guilty or proceeding to the ARB, the research assistant presented them each
with a piece of paper. The paper outlined their options and asked that they circle their
selection.177 To ensure study participants did not become distraught under the pres-
sure of the scenario, the research assistant was instructed to terminate the experiment
and debrief the student regarding the true nature of the study if he or she took too long
to select an option, seemed overly stressed, or tried to leave the room.178
[Study Result]
As had been anticipated, both guilty and innocent students accepted the plea bargain
and confessed to the alleged conduct.180 In total, almost nine out of ten guilty study
participants accepted the deal, while slightly fewer than six out of ten innocent study
participants took the same path.18 Two important conclusions stem from these results.
First, as had been predicted by others, guilty defendants are more likely to plead guilty
than innocent defendants. In our study, guilty defendants were 6.39 times more likely to
accept a plea than innocent defendants given the same sentencing options. In his recent
article entitled Mass Exoneration Data and the Causes of Wrongful Convictions, Profes-
sor Covey examined two mass-exoneration cases and predicted, based on the choices
of defendants in those cases, that innocence mattered. While Professor Covey concedes
that his examination of case studies only permits “some tentative comparisons,” it is fas-
cinating to observe that the actions of the defendants in these two massexoneration cases
mirror the actions of our study participants. innocence problem affected more than just
an isolated few. The second and, perhaps, more important conclusion stemming from
the study is that well over half of the innocent study participants, regardless of whether
the lenient or harsh sentencing condition was employed, were willing to falsely admit
guilt in return for a reduced punishment. Previous research has argued that plea bar-
gaining’s innocence problem is minimal because defendants are risk prone and willing
to defend themselves before a tribunal. Our research, however, demonstrates that when
study participants are placed in real, rather than hypothetical, bargaining situations and
are presented with accurate information regarding their statistical probability of success,
just as they might be so informed by their attorneys or the government during criminal
plea negotiations, innocent individuals are actually highly risk averse. Based on exam-
ination of the detailed notes compiled during the debriefing of each study participant,
71
6 Aff
two common concerns drove the participants’ risk-averse behavior. First, study partici-
pants sought to avoid the ARB process and move directly to punishment. Second, study
participants sought a punishment that would not require the deprivation of direct fu-
ture liberty interests. Further research is necessary in this area to fully understand these
motivations, but one key trend is worth noting at this juncture. The study participants’
actions appear to be directly mimicking a phenomenon that has drawn much debate
and concern in recent years: the students appear to have been selecting “probation”
and immediate release rather than risking further “incarceration” through forced par-
ticipation in a trial and, if found guilty, “confinement” in an ethics course or seminar. In
essence, the study participants simply wanted to go home. This study suggests, there-
fore, that one needs to be concerned not only that significant sentencing differentials
might lead felony defendants to falsely condemn themselves through plea bargaining,
but also that misdemeanor defendants might be pleading guilty based on factors wholly
distinct from their actual factual guilt.
72
6 Aff
6.14 Judicial Integrity
Plea bargaining destroys judicial integrity.
615.
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 ”joyrid-
ing,” 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 misde-
meanor 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 rigor-
ous 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 overreaching”’ 19 and that their conduct in con-
nection 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 beyond 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, obvi-
ously, 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 in-
stance, 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
73
6 Aff
ones they actually committed. 27 One of the biggest fictions connected with plea bar-
gaining is the practice of permitting a defendant to plead ”guilty” while simultaneously
proclaiming his or her innocence. Although authorized by North Carolina v. Alford2 8 -
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.
The status-quo approach to plea bargaining perverts the principles of justice.

Absent reform plea bargaining is intolerable.
[Lippke 06], Richard L [Professor of Criminal Justice at Indiana University]. ”Retribu-

tivism and plea bargaining.” Criminal Justice Ethics 25.2 (2006): 3-16.
Plea bargaining also seems contrary to the Principle of Censure. Given that the vast
majority of criminal cases are disposed of through it, it is hard to avoid the conclusion
that the overwhelming message thereby conveyed by the criminal justice system is that
crime has a price that is subject to considerable negotiation. What charges will be pur-
sued against defendants and what sentences will be assigned to them are all matters
to be worked out. If one can get a knowledgeable, experienced, or well-connected de-
fense lawyer, one can probably get a better deal. The same is true if one is less averse
to risk and thus more willing to refuse initial prosecution offers. 21 The legal conse-
quences of crime become a complex game of threats, offers, counteroffers, bluffing, and
one-upmanship. In such a process, defendants have an interest in admitting as little
guilt as possible. Add to this the fact that many socially deprived defendants will al-
ready have an external perspective on the criminal law.12 They will balk at regarding
it as providing legitimate norms for their conduct, viewing it instead as merely present-
ing obstacles or threats to the satisfaction of their desires. Plea bargaining would seem
to reinforce the perception that punishment is simply a price that the law exacts for
prohibited conduct-and one subject to negotiation-rather than a justified expression of
the community’s moral disapproval of such conduct. When such defendants do finally
plead guilty before a judge after a deal has been reached with prosecutors, it will seem
that they are simply playing their parts in a complicated charade that is encouraged and
abetted by the criminal justice system. It is no use responding to the preceding concern
by arguing that some defendants negotiate pleas because they feel remorse for their
crimes and wish to get on with their punishments. First, this will probably be true for
only a subset of them. And for those of whom it is true, the obvious thing for them to do
is to confess to all of their crimes and throw themselves on the mercy of the court, not
74
6 Aff
negotiate over which ones they will be charged with or what sentences they will receive.
A willingness to negotiate, or worse, an insistence that the prosecution negotiate, belies
genuine remorse and a desire to embrace one’s punishment as deserved.
75
6 Aff
6.15 Objectionability of Trade
The haggling away of due process protections is a deeply inappropriate mode of

criminal due process.
[Lynch 04], Timothy. ”The case against plea bargaining.” Regulation 26 (2004): 24.
SSRN.
Sandefur’s defense of plea bargaining repeatedly returns to the idea that criminal de-
fendants have the “right to make a contract,” as in other free-trade situations. But plea
bargaining is not free trade. It is a forced association. Once a person has been charged
with a crime, he does not have the option of walking away from the state. Sandefur
argues that because individuals can waive many of their constitutional rights, they can
also “sell” their rights. Even if that argument had merit, it is not the law. But, more im-
por tantly, one suspects that it is not the law because the argument lacks merit. Imagine
four people who are charged with auto theft. One defendant pleads guilty to the offense
and receives three years of jail time. The second defendant insists upon a trial, but sells
his right to call his own witnesses. After conviction, he receives four years. The third
defendant insists on a trial, but sells his right to be represented by his famous attorney-
uncle, F. Lee Bailey. Instead, he hires a local attorney and, in addition, sells his right to
a speedy trial. After conviction, he receives five years. The fourth insists upon a trial,
presents a rigorous but unsuccessful defense and, after conviction, receives a prison
sentence of 10 years. Are the disparate punishments for the same offense sensible? The
courtroom just does not seem to be the proper place for an auction and haggling.
76
6 Aff
6.16 Public Interest
The rational incentives that prosecutors have to accept pleas diverge from public
interests, creating perverse incentive structures that harm the public.

Consider first the prosecutor. Both the chief prosecutor (the District Attorney) and her
assistants have numerous incentives to pursue goals that diverge from the public’s in-
terest in optimal deterrence. The District Attorney is usually an elected official, and
whether elected or appointed, her goal is to enhance her reputation and her political
standing.28 An effective crime control strategy could contribute to that goal, but deter-
rence effects at the margin (whether positive or negative) are likely to be imperceptible
to the general public, especially over the short run.29 Several other factors (such as a
high conviction rate, a good relationship with influential private attorneys, and an ab-
sence of high-profile trial losses) contribute more directly and more effectively to the
District Attorney’s political standing. The chief prosecutor will occasionally want to
try a case that could be resolved more efficiently by settlement. More often, perhaps,
she will want to ensure settlement, even if this requires overly generous plea offers. In
either event, the chief prosecutor has powerful reasons for accepting plea agreements
different from those that public interest considerations alone would generate. Front-line
prosecutors who actually negotiate plea agreements may or may not share the District
Attorney’s desire to enhance the office’s political stature. Hence, there is an additional
layer of agency problems in the relationship between the chief prosecutor and her assis-
tants. If the assistants can elude monitoring by their superior, and if they are committed
to crime control, they can seek optimal sentences even at the expense of their chief’s re-
election chances. But the assistant’s immediate goal is not necessarily to find the optimal
strategy for controlling crime or even for reelecting his superior. Rather, his goal (in an
economic model) is to maximize his own welfare, which is defined by some combina-
tion of career advancement, job satisfaction, and leisure. Pursuing an optimal crime
control strategy may help advance the prosecutor’s career, but other factors are likely
to do so more effectively. The front-line prosecutor may gain by trying a case that the
public interest would require to be settled. Conversely, the front-line prosecutor will
often have powerful personal and professional reasons to avoid trying cases that would
be inconvenient or potentially risky for his career.30 In sum, the prosecutor’s position
as an agent means that guilty plea settlements negotiated case by case tend to diverge
77
6 Aff
from those that would most efficiently serve the public interest in optimal deterrence.
This divergence usually takes the form of unduly lenient sentence offers.
78
6 Aff
6.17 Racism
Statistics confirm that plea bargains are utilized in racist ways which
disproportionality harm black defendants.
[Berdejó] [17] Carlos [Professor of Law at Loyola Law School in LA]. ”Criminalizing
Race: Racial Disparities in Plea Bargaining.” (2017).
One way to measure disparities in the process leading to the sentencing stage is to com-
pare the rates at which different defendants pled guilty to the initial principal charge,
or conversely, the rates at which different defendants ended up pleading guilty to a re-
duced charge.146 Such charge reduction is one of the most important outcomes in plea
bargaining as sentence length is often determined by the severity of the crime of which
the defendant is ultimately convicted.147 The analyses in this section will focus on those
cases in which a defendant was initially charged with a crime that carries a potential jail
or prison sentence (regardless of whether the defendant was convicted of the crime or
eventually received a jail or prison sentence). To better capture the effect of plea bargain-
ing, the analyses in this part also exclude cases which were adjudicated in a trial, cases
in which all charges were dismissed before the defendant’s initial appearance, and cases
in which the highest charge was dismissed by the court by the defendant’s motion or
on its own. 148 Generally, white defendants see their top charge dropped or amended
to a lesser charge in 45.40% of the cases, while the charge reduction rate for black de-
fendants is considerably lower, 35.98%.149 The difference between these two groups of
defendants, 9.42 percentage points, is not only statistically significant,150 but is also of
considerable magnitude white defendants are over 25% more likely see their top charge
dropped or amended to a lesser one than black defendants. 151 In the analyses that fol-
low, racial disparities in charge reduction are explored separately for different crimes
based on their severity.152
There is significant moral concern with the racial disparity in how plea-bargaining
effects misdemeanor charges.
The racial disparities in charge reduction rates identified above are mainly driven by
cases in which a misdemeanor crime was the top charge. In this set of cases, white de-
fendants are 45.10% more likely than black defendants to see their top charge dropped
79
6 Aff
or amended to a lesser one.153 Such charge reductions at the misdemeanor level can be
especially valuable to a defendant to the extent that these may eliminate the possibility
of a misdemeanor conviction (thus precluding the possibility of incarceration) either by
the dismissal of all charges or their reduction to a lesser offense that does not carry a
prison sentence (such as a forfeiture). 154 To analyze differences in this particular out-
come, we can construct a variable that measures whether the charges that carry a poten-
tial prison or jail sentence are dismissed, dropped or amended to a charge that does not
carry a potential prison or jail sentence. Using this outcome variable reveals a slightly
greater disparity – white defendants are 74.72% more likely than black defendants to
see all misdemeanor charges carrying a potential imprisonment sentence dropped, dis-
missed or amended to lesser charges.155 The impact of a misdemeanor conviction on a
defendant’s life should not be understated. Although certainly less serious and severe
than felony convictions, misdemeanor convictions can carry major consequences for in-
dividuals. For one, a defendant can be incarcerated, even if it is not for a long period
of time.156 Recall that not only are black defendants originally charged with misde-
meanors more likely to be convicted of a misdemeanor than white defendants, 157 but
conditional on a misdemeanor conviction these black defendants are more likely to be
punished by incarceration than white defendants.158 Even defendants receiving a fine
or probation as punishment for their misdemeanor convictions are likely to end impris-
oned if they are unable to pay their fines or violate a condition of their probation. 159 A
misdemeanor conviction can also affect a person’s future interaction with the criminal
justice system and other public institutions. For example, a misdemeanor conviction
becomes part of the defendant’s criminal history and can be considered by a judge in a
future case whem determining bail and sentencing.160 Moreover, there can also be col-
lateral consequences for a defendant convicted of a misdemeanor offense, such as loss
of eligibility for student loan assistance or public housing.161 Even if the penalties (and
the associated disparities) are small in magnitude on a case by case basis, in the aggre-
gate they can be quite substantial. Misdemeanors comprise the vast majority of criminal
cases and for most individuals represent the first point of contact with the criminal jus-
tice system. 162 Despite (and perhaps due to) their sheer volume, misdemeanor cases
provide defendants fewer structural and procedural protections than felony cases.163
This creates a system with lower evidentiary standards, prone to higher rates of wrong-
ful convictions and where appellate review and scrutiny is limited. 164 According to
scholars, it is in these misdemeanor cases where black individuals begin to be labeled
as criminals.165
80
6 Aff
There is significant moral concern with the racial disparity in how plea-bargaining
effects felony charges.
Let us now switch our focus to those cases in which the defendant was initially charged
with at least one felony offense. In this set of cases, white defendants receive charge
reductions 5.99% more often than black defendants, a difference which is relative small,
though still statistically significant.166 Charge reductions at the felony level can be valu-
able to defendants not just because of the corresponding reduction in the maximum pos-
sible sentence they may receive later in the process, but also because of the possibility of
having felony charges reduced to misdemeanor charges. 167 To capture differences in
this specific outcome, we can calculate the rate at which defendants see all their felony
charges dropped, dismissed or amended to a misdemeanor charge. 168 Examining this
outcome variable yields similar results, though the disparities are a bit greater – white
defendants see their felony charges dropped or amended into a misdemeanor charge
14.56 % more often than black defendants.169 Felony crimes as a class includes a very
diverse group of offenses. Some felonies are associated with penalties of just over a year
in prison, while others carry potential sentences of up to 60 years or even life imprison-
ment. One wonders whether racial disparities in charge reductions in felony cases may
differ depending on the severity of the crime. The fact that racial disparities in over-
all reduction rates are lower than racial disparities in the rate at which defendants see
their felony charges reduced to misdemeanor charges suggests that there might be such
difference in charge reduction rates within classes of felonies – i.e., that white defen-
dants are more likely to be treated more favorably than black defendants in cases that
involve low-level felonies, those “nearer” to the misdemeanor level. To explore these
differences more closely, we can divide felony cases into two groups according to the
severity of the crime involved – whether the maximum statutory sentence correspond-
ing to the principal charge is (i) greater than 5 years or (ii) 5 years or lower. This thresh-
old is based on the maximum statutory sentence for Class H felonies, the lowest felony
class. 170 In cases where defendants were initially charged with a less severe felony
offense, white defendants received a charge reduction 49.83% of the time while black
defendants received a charge reduction 39.87% of the time. 171 The difference is charge
reduction rates between white and black defendants, 9.96 percentage points, represents
24.98% of the charge reduction for black defendants.172 On the other hand, there are
no differences in charge reduction rates between white and black defendants in cases
81
6 Aff
involving more serious initial felony charges. In this subset of cases, white defendants
received a charge reduction 45.35% of the time, while black defendants did so 44.99%
of the time, a negligible and statistically insignificant difference. 173 Figure 1 presents a
graphical illustration of the relationship between racial disparities in charge reduction
rates and the severity of the top initial charge. The role of the severity of the offense in
mediating plea-bargaining disparities is examined later in the article. 174
82
6 Aff
6.18 Retribution
Plea bargaining, whether the person is innocent or guilty, invariably results in an

unjust and irretributive punishment.

In my earlier article (1976:102 ff.) I argued that our system can best be understood as an
institutionalization of two principles. The first is that those (and only those) individuals
who are clearly guilty of serious specified wrongdoing deserve an officially adminis-
tered punishment proportional to their wrongdoing. Justice in punishment is realized
when the guilty person receives neither more nor less punishment than is deserved. Un-
der the reforms advocated by Church and Brunk, those accused tried by juries would
be guaranteed ”theoretically correct” sentences, the sentences deserved by persons who
have done that with which they are charged.2 Those taking advantage of plea bargains
would have these sentences discounted in some way. Obviously, either those pleading
guilty have committed their crimes or they have not. If they have, they receive less
than the punishment they deserve-an injustice. If they have not, they receive more than
the punishment they deserve-another injustice. Under plea bargaining, it will never
be reasonable to believe that those convicted receive the punishment they deserve. This
systematic misapplication of punishment, this structural injustice, is what discredits the
legitimacy of plea bargaining. Consider another familiar context in which allocations
are supposed to be made in accordance with desert: grading in an academic context. A
student has turned in a term paper. The instructor, glancing at it, says that it probably
deserves a C but if the student were to waive his right to a careful reading and a con-
scientious critique, the instructor would agree to give the student a B. The grade-point
average being more important to the student than either education or ”justice in grad-
ing,” the student accepts the B and the instructor gets a reduced workload. The same
considerations that establish the illegitimacy of the ”grade bargain” in the educational
system confirm the impropriety of the plea bargain in the criminal justice system. Bar-
gains are out of place in contexts where persons are to receive what they deserve. Our
courtrooms, like our classrooms, should be such contexts. It is this objection to plea
bargaining that must be central: not that it cannot be justified by any of the rationales
of punishment (although I believe it cannot), but that it flies in the face of the very rai-
son d’etre of the criminal justice system itself. That objection is not met in Church’s
discussion.
83
6 Aff
A lack of oversight in the US means plea bargaining raisesgrave retributivist

concerns.
[Lippke 06], Richard L [Professor of Criminal Justice at Indiana University]. ”Retribu-

tivism and plea bargaining.” Criminal Justice Ethics 25.2 (2006): 3-16.
Before proceeding, two preliminary points are worth making. First, retributivism
would appear to require that a prosecutor’s primary concern should be with ensuring
that justice is done. Considerations of politics, career advancement, and even efficient
handling of their case loads should all be less important. This brings us to the second
point. Prosecutors in the United States have considerably more discretion in reaching
plea bargaining agreements than their counterparts in some European countries. In
particular, United States prosecutors can levy or drop charges against defendants
with relatively little scrutiny by the courts. This gives them enormous leverage in
negotiating pleas, leverage that it seems clear some of them abuse in various ways.
Though agreements reached by United States prosecutors might have to be approved
by a judge, judicial scrutiny of plea agreements is often perfunctory. In some European
countries, by contrast, the courts more actively and rigorously oversee the compar-
atively limited negotiations that take place between prosecutors and defendants (or
their attorneys) in order to ensure that the outcomes comport with justice.16 Moreover,
some European countries have more exacting standards designed to ensure that there
is a factual basis for guilty pleas--even to the point of requiring trials in cases where
a sentence reduction agreement has been reached. Retributive considerations might
well support scrutiny of the factual basis for guilty pleas, especially where the charges
pleaded to are serious and the sanctions severe, since mistakes in such cases will
constitute more grave miscarriages of justice.
84
6 Aff
6.19 Underground
Prohibiting plea bargaining would simply drive the practice underground in a way
that could no longer be subject to legal oversight.
[Mr. Justice Stewart] [US supreme court] Bordenkircher v. Hayes, 434 U.S. 357 (1978)
It is not disputed here that Hayes was properly chargeable under the recidivist statute,
since he had, in fact, been convicted of two previous felonies. In our system, so long
as the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file or
bring before a grand jury, generally rests entirely in his discretion. [Footnote 8] Within
the limits set by the legislature’s constitutionally valid definition of chargeable offenses,
”the conscious exercise of some selectivity in enforcement is not, in itself, a federal con-
stitutional violation” so long as ”the selection was [not] deliberately based upon an un-
justifiable standard such as race, religion, or other arbitrary classification.” To hold that
the prosecutor’s desire to induce a guilty plea is an ”unjustifiable standard,” which, like
race or religion, may play no part in his charging decision, would contradict the very
premises that underlie the concept of plea bargaining itself. Moreover, a rigid consti-
tutional rule that would prohibit a prosecutor from acting forthrightly in his dealings
with the defense could only invite unhealthy subterfuge that would drive the practice
of plea bargaining back into the shadows from which it has so recently emerged. See
Blackledge v. Allison, 431 U.S. at 431 U. S. 76.
85
7 Aff Blocks
86
7 Aff Blocks
7.1 A2 Abolition Makes Things Worse
Abolition of Plea Bargaining will not make things worse for the victim, and even if
it did social interests still justify it.

Scott and Stuntz believe that abolition of bargaining will only aggravate the predica-
ment of innocent defendants72 because by hypothesis these defendants prefer certain
conviction with a low penalty to the risk of a severe penalty after conviction at trial.3
This claim is incorrect as well as beside the point It is incorrect because abolition of bar-
gaining cannot leave unaffected the background sentence that an innocent will face in
the event of conviction at trial’ It is beside the point because an innocent’s preference for
bargain cannot be decisive when his conviction would impose serious costs on others.
The social interest in not punishing defendants who are factually innocent justifies a bar
on compromise, low-sentence settlements, even if individual defendants would prefer
to have that option.75
87
7 Aff Blocks
7.2 A2 Court Clog
There is no compelling empirical evidence that supports the court clog worry.
There has been no empirical study to determine what percentage of persons charged
would go to trial if the use of threats and promises to induce pleas were abolished. While
it is true that a defendant would have little to lose by going to trial, the typical criminal
defendant would also have little to gain by proceeding to trial where the state’s evidence
is clearly sufficient to establish guilt beyond a reasonable doubt. Thus, in many cases
defendants would have no reason to demand a trial.
The available empirical evidence suggests that the worried about impacts of court
clog don’t manifest.
The experience of the few jurisdictions that have attempted to ban or limit plea bar-
gaining does not support the conclusion that prohibiting the use of a sentence differen-
tial to induce guilty pleas would result in a greatly increased demand for trials, over-
whelming the courts and requiring substantially greater resources to deal with crimi-
nal cases; quite the contrary. A study of plea bargaining in the United States, which
included several jurisdictions that have attempted to limit or abolish plea bargaining,
found that none of the jurisdictions experienced the dire consequences predicted. Not-
ing that ”[s]ome jurisdictions within a state try 100%-300% more cases than another ju-
risdiction,” [sic], the authors wonder ”whether these fluctuations may be accounted for
by factors other than administrative necessity and case backlog. They state, ”[w]e draw
no conclusions from the statistics presented in this chapter. But we do ask whether ju-
risdictions with double or triple the trial rate of other jurisdictions have a corresponding
increase in costs. We question whether ’unique’ jurisdictional problems alone explain
the wide variances which exist.” In Alaska plea bargaining has been prohibited since
1975. The Attorney General issued memoranda banning both sentence and charge re-
duction in return for a plea of guilty. An evaluation of the effects of this new policy
88
7 Aff Blocks
by the Alaska Judicial Council, based on a four year survey of the practice in Alaska’s
three largest cities, concludes that ”the institution of plea bargaining was effectively
curtailed, ’ that it was not ”replaced by implicit or covert forms of the same practice,
and that ”court processes did not bog down; they accelerated. The authors of the re-
port comment, ”[s]upporters and detractors of plea bargaining have both shared the
assumption that, regardless of the merits of the practice, it is probably necessary to the
efficient administration of justice. The findings of this study suggest that, at least in
Alaska, both sides were wrong. Although there was some decline in guilty pleas and
an increase in trials, the overall increase in trials was less than three percent. ”[M]ost
defendants continued to plead guilty because, whether or not they were afforded the
certainty of binding prosecutorial commitments, the alternative of going to trial seemed
a fruitless act.”Moreover, notwithstanding the increase in trials, there was a substantial
decrease in disposition time.”[C]ontrary to all expectations, the curtailment of plea bar-
gaining did not in any way tend to impede court efficiency .… -While the experience
of Alaska and the other jurisdictions that have limited plea bargaining does not conclu-
sively refute the argument that if plea bargaining were abolished the system would be
overwhelmed, it does cast serious doubt on the underlying assumptions. It is arguable,
at least, that even if use of a sentencing differential to induce guilty pleas were not per-
mitted, existing judicial and prosecutorial resources would be sufficient to dispose of
the criminal docket--either because most defendants would still plead guilty or because
elimination of delaying tactics related to plea bargaining would free a greater part of
these resources for trial, or both. However, even if prohibiting the use of a sentencing
differential to induce guilty pleas meant that greater resources would be necessary to
deal with the criminal docket, resort to methods that would not be condoned to induce
waiver of other constitutional rights to induce defendants to waive the right to trial is
not justified. There are a number of alternatives.
Empirical evidence suggests that abolishing plea bargaining makes the courts less
clogged .
615.
In 1980, the National Institute of Justice sponsored a study of the Alaskan experiment.
It concluded that, despite all the dire predictions by the naysayers, the plea bargaining
ban was successful and ”guilty pleas continued to flow in at nearly undiminshed rates.
89
7 Aff Blocks
Most defendants pled guilty even when the state offered them nothing in exchange
for their cooperation.”54 Additionally, contrary to all expectations, the cases were pro-
cessed more quickly without plea bargaining than they were before its abolition. The
National Institute of Justice report puts it this way: ”Supporters and detractors of plea
bargaining have both shared the assumption that, regardless of the merits of the prac-
tice, it is probably necessary to the efficient administration of justice. The findings of this
study suggest that, at least in Alaska, both sides were wrong.”55 Indeed, the disposi-
tion times for felonies in Anchorage fell from 192 days to just under ninety. In Fairbanks,
the drop was from 164 days to 120, and in Juneau, the disposition time fell from 105 days
to eighty-five. Avrum Gross is no longer Alaska’s Attorney General. Yet, his reforma-
tion of that state’s criminal justice system survives. It survives because those working
in the system realize things are better now. An Alaskan prosecutor probably said it best:
”Much less time is spent haggling with defense attorneys.… I was spending probably
one-third of my time arguing with defense attorneys. Now we have a smarter use of
our time. I’m a trial attorney, and that’s what I’m supposed to do.”’5 6 Another attorney
was even more upbeat: ”My job is fun now, and I can sleep nights.” 57 Three other juris-
dictions have also ended their reliance on plea bargaining: Ventura County, California,
a community of 700,000 just north of Los Angeles; Oakland County (Pontiac) Michigan,
a community not unlike Milwaukee County; and New Orleans, Louisiana. There too,
the bans have worked. Indeed, in what I have earlier called a ”petri dish example” of
how those with resolve can end the plea bargaining habit, Municipal Judge Edward Em-
mett O’Farrell of New Philadelphia, Ohio, has successfully abolished the practice in his
jurisdiction for drunk driving cases. Although the defense bar tried to overwork him
with cases during his first year, he stood firm.58 In 1986, only ten persons accused of
drunk driving took their cases to a jury: 322 pled guilty even though Judge O’Farrell
imposes fifteen days in jail for a first offense, ninety days in jail for a second offense, and
a year in jail for a third offense. Alcohol related traffic fatalities in his community fell
from twenty-one in 1982, to three in 1984, two in 1985, and four in 1986, showing that a
staunch policy of non-bargained justice does deter crime.
90
7 Aff Blocks
7.3 A2 Inevitability
Careful empirical analysis of Philadelphia suggests that plea bargaining is not

inevitable. We can successfully eliminate it.
[Schulhofer 84], Stephen J [professor of Law at University of Pennsylvania]. ”Is plea

bargaining inevitable?.” Harvard Law Review (1984): 1037-1107.
Although Philadelphia has not abolished plea bargaining completely, its experience sup-
ports in several ways the potential feasibility of total abolition. First, the data indicate
that bargaining by trial prosecutors is not inevitable. The Philadelphia prosecutors com-
plied with office policy that prevented bargaining in nearly all cases.183 Our observa-
tions strongly suggest, moreover, that office policy could have effectively foreclosed
the few areas remaining for negotiation. Second, tacit judicial sentencing concessions
in exchange for guilty pleas are likewise not inevitable. The Philadelphia judges gener-
ally did not extend such concessions, and the criminal defense bar was fully aware of
this.184 Third, failures of adversariness are not inevitable on the defense side. In the
absence of incentives to cooperate, Philadelphia defense counsel made the bench trial a
genuinely contested proceeding. 185 Finally, contested trials will not inevitably create
unmanageable case pressure; the study showed that large numbers of contested cases
did not overwhelm the trial capacity of the system. 186 Thus, although Philadelphia
itself does not provide a direct model for total abolition, its experience indicates that
the conditions necessary for the successful abolition of plea bargaining are achievable.
Bargaining by trial prosecutors and defenders can be stopped, tacit judicial concessions
need not emerge to take its place, and contested trials can be provided within available
resource constraints.
91
7 Aff Blocks
7.4 A2 Reform
Reform, even if it solves some problems, will still be a deeply inefficient system
with high costs associated with the punishment of the innocent.

A system of voluntary contractual relationships between attorney and client, if it

avoided prohibitive financial penalties for lawyers who take cases to trial,70 would
go a long way toward eliminating some of the most glaring problems associated with
plea bargaining. But even such an ambitious step would leave two major problems
unaddressed: agency costs on the prosecution side and negative externalities resulting
from conviction of the innocent The first problem cannot be remedied because contrac-
tual or market-like mechanisms to control prosecutors are simply not feasible.7’ On
the defense side, effective representation would enable innocent defendants to strike
better bargains, but it would not avoid the dilemma in which the innocent defendant,
facing a small possibility of conviction on a serious charge, considers it in his interest
to accept conviction and a small penalty. The defendant’s choice to plead guilty can be
rational from his private perspective, but it imposes costs on society by undermining
public confidence that criminal convictions reflect guilt beyond a reasonable doubt.
An ”efficient” system of voluntary contracting for pleas would convict large numbers
of defendants who had a high probability of acquittal at trial; indeed, to the extent that
innocent defendants are likely to be more risk averse than guilty ones, the former are
likely to be overrepresented in the pool of ”acquittable” defendants who are attracted
by prosecutorial offers to plead guilty. To deal seriously with these problems we must
consider complete abolition of plea bargaining.
92
7 Aff Blocks
7.5 A2 Rehabilitation
The contemporary practice of plea bargaining does not suggest any rehabilitation
that would support a lighter sentence.
Alschuler, Albert W [Professor at University of Chicago Law School]. ”The changing

plea bargaining debate.” California Law Review 69.3 (1981): 652-730.
The principal rationale for leniency to guilty-plea defendants, however--a rationale

specifically endorsed by both the ABA and the Supreme Court--merits greater attention.
It is that a guilty plea is likely to evidence ”repentance,” bility for one’s conduct,”26
or a willingness ”to enter the correctional system in a frame of mind that affords hope
for success in rehabilitation over a shorter period of time than might otherwise be
necessary.”27 Certainly no evidence of which I am aware supports the view that a
guilty plea is a step on the road to rehabilitation. To the contrary, the available evidence
indicates that guilty-plea defendants repeat their crimes at approximately the same rate
as defendants convicted at trial and sometimes, in fact, at a higher rate.28 Moreover,
the argument that a guilty plea evidences remorse tends to move in a circle. One can
imagine, if one likes, that a defendant once pleaded guilty out of remorse and therefore
received a relatively lenient sentence. A second defendant, however, after noting the
sentence that the first defendant received, may have pleaded guilty, not because he was
remorseful, but because he hoped to obtain the same favorable treatment. From the
day of this first strategic guilty plea until the present, no one has been able to tell simply
by examining a defendant’s plea whether or not he was remorseful.29 As Professor
Arthur Rosett has observed, ”In many courts, the guilty plea process looks more like
the purchase of a rug in a Lebanese bazaar than like the confrontation between a man
and his soul.”
93
8 Neg
94
8 Neg
8.1 Efficiency
Plea bargaining provides tangible benefits to just about everyone in the system.
753.
Plea bargaining provides district attorneys with greater flexibility in disposing of the
criminal caseload. n84 District attorneys often operate with limited resources and plea
bargaining provides a quick, efficient method of handling a large caseload. For exam-
ple, in response to a surge in the criminal caseload, the district attorney may increase
the attractiveness of plea offers to more efficiently allocate prosecutorial resources. The
district attorney also will be able to concentrate the prosecution’s efforts on the more
serious and high profile cases that will be of greater concern to the public. In addi-
tion, individual assistant district attorneys benefit from plea bargaining by being able
to quickly dispose of their cases, lighten their caseload and eliminate the pressures in-
volved in going to trial. Plea bargaining may also satisfy what some scholars argue is
”an irrepressible tendency toward cooperation among members of the courtroom work
group.” n85 It allows this ”courtroom work group” to satisfy their ”mutual interest in
avoiding conflict, reducing uncertainty and maintaining group cohesion.” Defense at-
torneys benefit similarly from plea bargaining. n87 Public defender offices have the
same problem as district attorneys in allocating scarce resources. The quick disposi-
tion of cases allows public defenders to give more [*766] time and effort to the cases
they consider more trial-worthy. n88 Attorneys who are not associated with a public
defender office but are representing indigent clients may also find it in their direct finan-
cial interests to dispose of cases quickly. n89 Many states impose caps on the amount of
money allocated to the representation of indigent clients; these amounts do not provide
adequate compensation for the time and expense of bringing a case to trial. n90 Plea
bargaining provides an easy compromise for an attorney to adequately represent her
client and still make a living. n91 In addition, some states assign counsel to represent
indigent clients pro bono. n92 Plea bargaining provides an attractive, accepted method
for these attorneys to fulfill their obligation while minimizing their costs. In any case,
plea bargaining provides a much easier and less time consuming way to dispose of these
cases. Defendants benefit from plea bargaining in the most obvious way. In exchange
for pleading guilty and avoiding trial, defendants can receive sentence-related conces-
sions from the prosecutor or the dismissal of some of the charges in their indictment.
95
8 Neg
n93 Although they lose the chance of an acquittal, defendants escape the maximum
penalties provided by statute while at the same time ”avoiding the anxieties and uncer-
tainties of a trial.” n94 [*767] The judiciary also gains from plea bargaining. The quick
disposition of cases through plea bar-gaining may conserve judicial resources n95 inas-
much as the amount of time for a guilty plea is less than a trial. n96 A large number of
plea bargains alleviate congested caseloads and reduce the expense of providing jury
trials. Finally, victims may also benefit from the plea bargaining process. Plea bargains
allow the victim to gain an immediate sense of closure along with the knowledge that
the defendant will not go unpunished for the crime. Ad-ditionally, the victim may wish
to avoid the rigors of testifying at trial and the possibility of the prosecution not getting
a conviction. n97
96
8 Neg
8.2 Equality
Forcing trial simply further exasperates the inequalities in legal resource allocation.
[Scott and Stuntz 92,] Robert E., and William J. Stuntz. [Law professors at University
of Virginia] ”Plea bargaining as contract.” Yale Law Journal (1992): 1909-1968.
There is, to be sure, a form of poor judgment claim that has substantial appeal in this
context Poor and uneducated defendants are those who most need good legal advice,
yet they probably have the worst lawyers. The defendant’s limited understanding and
his lawyer’s incompetence may produce an awful synergy, which in turn may lead to a
bad deal. But-and this is the second problem-abolishing plea bargaining only worsens
this situation. Poor people are indeed disadvantaged in the criminal process relative
to rich people, but the relative disadvantage increases when trials are required. Trials
require greater levels of attorney skill, preparation, and time than plea negotiations.
Wealthy defendants can buy more of these commodities than their poorer counterparts.
That is why legitimate concerns about the quality of counsel poor defendants receive
in our system do not justify eliminating plea bargaining. Agency problems no doubt
exist in this context, particularly in cases of appointed counsel for poor defendants. But
the more extended the relationship, the greater the magnitude of those problems. In a
world of constant resources, the level of justice for the poor and unsophisticated, relative
to the level of justice the rich receive, would decline if plea bargaining were abolished.
Forcing jury trial means an increasing in distributional inequality.
The comparison obviously involves a generous dose of speculation. But one can safely
make four basic assumptions about the effects of abolishing plea bargaining. First, the
number of trials would increase sharply.7 Something in the neighborhood of ninety
percent of cases now lead to pleas; if even onethird of those are the result of bargaining,
prohibiting plea bargaining would quadruple the number of criminal trials. Second,
the error rate of trials would rise. This follows from the first assumption. Trials are
elaborate and costly affairs. Any reform that involves a several hundred percent in-
crease in their number must necessarily involve economizing on the process, at least
as long as one assumes a constant level of expenditures on the system. Reducing the
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process, in turn, logically implies increasing the rate of error.88 Third, the total number
of convictions would fall, probably substantially.89 Abolition of plea bargaining would
raise the average cost of prosecution because it would increase the percentage of cases
that go to trial (and even slimmed-down, cheaper trials will be more expensive than
bargained pleas).90 Given constant resources, this would mean a drop in the number
of convictions.9” Fourth, the average sentence would be both higher than the current
average bargained-for sentence and lower than the current average post-trial sentence.
This last proposition follows from the fact that the number of convictions would decline.
If one assumes a constant total level of punishment (meaning no increase in the num-
ber of person-years of incarceration) in order to isolate the effects of plea bargaining,
spreading a given amount of punishment over a smaller number of defendants means
an overall increase in average sentence. At the same time, without bargaining, there is
no need for a ”premium” sentence to be awarded to defendants who go to trial. Thus,
no one (or almost no one) would receive sentences at current post-trial levels.9 Given
these effects, there are three factors that suggest abolition might be distributionally less
fair than the current regime. First, the defendants who pay the heaviest penalties under
the current regime-defendants who refuse to bargain, go to trial, and are convicted-at
least have the option, ex ante, of taking a different course of action. The relative losers in
a no-bargaining world have no control over their fate; other forces-prosecutorial charg-
ing decisions, trial error rates-determine whether they fare well or poorly. To the ex-
tent autonomy matters, this should be counted as a cost of abolition. The second factor
concerns the interaction between trial error rates and prosecutorial charging decisions.
Prosecutors do not charge in a vacuum; they do so against the backdrop of trial. Be-
cause defendants always have the option of forcing a trial, prosecutors have a strong
incentive not to press charges in cases that cannot be won. Because error rates at trial
would be higher, convicting innocents would likely be easier in a no-bargaining world
(just as convicting guilty defendants would be harder). Thus, the incentives to sepa-
rate the innocent from the guilty at the charging stage would be reduced, meaning that
proportionately more innocents would be charged. The reduced cost of trials in a no-
bargaining regime would exacerbate this effect: if going to trial were less expensive,
the risk of losing at trial would be less costly (because of the reduced opportunity cost),
and prosecutors would therefore take fewer precautions against it.93 In the next part,
we discuss the problems that plea bargaining poses for innocent defendants. But it is
worth noting that prohibiting plea bargaining would impose additional costs of its own
on innocents. Third, in a world without plea bargaining the average defendant would
depend more heavily on his lawyer’s expertise: the percentage of trials would sharply
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increase, and lawyers’ skill surely matters more in a trial than in a plea bargaining ses-
sion, particularly since the latter is likely to be constrained, to some extent, by customary
”market” prices. This effect would be particularly pronounced in a trial system with a
higher error rate than the current one, and with quicker, more slapdash preparation by
the attorneys-a necessary consequence of vastly increasing the number of trials. The
increased impact of skill differences among attorneys would adversely affect poor de-
fendants, since they tend to have the worst lawyers. Thus, there is some ground for
believing that a world without plea bargaining would disproportionately harm both
the innocent and the poor, hardly a recipe for a more distributionally just system.
Eliminating plea bargaining exasperates distributional inequality between innocent

defendants.
[Scott and Stuntz 91], Robert E., and William J. Stuntz. [Law professors at University
of Virginia] ”A Reply: Imperfect bargains, imperfect trials, and innocent defendants.”
Yale LJ 101 (1991): 2011.
Of course, any system that pushes innocent defendants to trial will thereby minimize the
number of innocents who are convicted. But it will do so only at the cost of maximizing
the amount of punishment each of those unfortunates receives. This result stands every
known theory of distributional justice on its head. We would think it common ground
that losses, especially unjust losses, are better spread than concentrated, all else being
equal. Schulhofer, like most critics of plea bargaining, seems to prefer a few innocent
defendants serving long prison terms to a larger number serving a few years apiece.”
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8.3 Helps Defendants
The possibility of plea bargaining improves the overall lot of defendants.
[Easterbrook], Frank H [U.S. Circuit Judge]. ”Plea bargaining as compromise.” Yale Lj

101 (1991): 1969
Black markets are better than no markets. Plea bargains are preferable to mandatory
litigation-not because the analogy to contract is overpowering, but because compromise
is better than conflict. Settlements of civil cases make both sides better off; settlements
of criminal cases do so too. Defendants have many procedural and substantive rights.
By pleading guilty, they sell these rights to the prosecutor, receiving concessions they
esteem more highly than the rights surrendered. Rights that may be sold are more
valuable than rights that must be consumed, just as money (which may be used to buy
housing, clothing, or food) is more valuable to a poor person than an opportunity to
live in public housing. Defendants can use or exchange their rights, whichever makes
them better off. So plea bargaining helps defendants. Forcing them to use their rights
at trial means compelling them to take the risk of conviction or acquittal; risk-averse
persons prefer a certain but small punishment to a chancy but large one. Defendants
also get the process over sooner, and solvent ones save the expense of trial. Compromise
also benefits prosecutors and society at large. In purchasing procedural entitlements
with lower sentences, prosecutors buy that most valuable commodity, time. With time
they can prosecute more criminals. When eight percent of defendants plead guilty, a
given prosecutorial staff obtains five times the number of convictions it could achieve
if all went to trial. Even so, prosecutors must throw back the small fish. The ratio of
prosecutions (and convictions) to crimes would be extremely low if compromises were
forbidden. Sentences could not be raised high enough to maintain deterrence, especially
not when both economics and principles of desert call for proportionality between crime
and punishment.
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8.4 Innocence
Eliminating plea bargaining would make the situation worse for innocent
defendants.
Unfortunately, abolition would likely only worsen innocent defendants’ plight. In or-
der to accommodate the dramatic increase in trials, the trial process itself would have
to be truncated, as Stephen Schulhofer’s famous discussion of the Philadelphia process
shows. The mini-trials that took the place of bargaining in Philadelphia were brief af-
fairs, most lasting no more than an hour, the pretrial preparation on both sides was
minimal.”36 Altering the trial process in this way necessarily increases the error rate
(unless our current trial system is nonsensical), meaning that it raises the rate at which
innocent defendants are convicted. That, in turn, alters prosecutors’ incentives when
making decisions about which cases to take to trial. Indeed, it may alter police incen-
tives when making arrests. Police officers and prosecutors alike can afford to be less
careful in screening their cases if the trial ”backstop” becomes more casual. In short,
prohibiting plea bargaining would likely raise the proportion of innocents who are con-
victed of crimes. The problem of defendants’ inability to use their private information
in bargaining would disappear since bargaining would disappear. But if the trial pro-
cess itself led to a substantially higher rate of conviction of innocent defendants, the ex
ante position of those defendants would not improve.
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8.5 Opportunity Cost
We would be better off spending the money it would take to eliminate plea
bargaining on crime prevention and other key social goods.
[Wright 83,] Douglass B [Judge of the Connecticut Superior Court-State Referee;

Lecturer, University of Connecticut School of Law and College of Insurance]. ”Plea
Bargaining--a necessary tool.” Conn. L. Rev. 16 (1983): 1015.
Of course, if we quadrupled the number of courthouses, prisons, judges, sheriffs and

other court personnel, prosecutors, public defenders, and jury panels, we could perhaps
bring all offenders to trial. This would add a tremendous expense to judicial adminis-
tration. But would it truly help the situation? It is suggested that the money could
better be spent in endeavoring to stamp out the causes of crime-poverty, urban blight,
deficiencies in education, and the problems in connection with children from broken
homes.
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8.6 Public Interest
Plea Bargaining serves the public interest in ensuring punishment for crimes. It’s a
rational response to limited resources.
[Howe 05], Scott W [Professor of Law at Chapman University]. ”The Value of Plea
Bargaining.” Okla. L. Rev. 58 (2005): 599.
Prosecutors and judges willingly trade some deserved punishment in individual cases
to maximize the punishments they can secure. They must make this trade-off because
they have limited resources.’ The trade-off works because convictions by jury trial re-
quire far more of their resources than bargained guilty pleas and because both parties
in a criminal case have incentives to avoid the uncertainties of litigation.32 Prosecu-
tors and judges could try always to seek the maximum deserved punishment, but most
defendants would demand a jury trial, and, assuming no changes in the governing con-
straints, the system would quickly become inadequate. Courts would necessarily dis-
miss cases in which legitimate charges had been filed due to the inability to prosecute
them. Furthermore, prosecutors would decline to bring charges in many legitimate
cases. Given these circumstances, prosecutors and judges maximize punishment by
extending some leniency for guilty pleas. They obtain a certain conviction with some
punishment in the case at hand and a large time savings that can be used to prosecute
other cases.33 Plea bargains bring about an enormous punishment-maximizing effect.
Suppose that we are in a jurisdiction in which the prosecutor bargains not only over
charges and sentencing recommendations but actual sentences, with the judge merely
holding veto power.m Assume that a prosecutor has six armed robbery cases to pros-
ecute, among many others. She has spoken to the six defense lawyers and concluded
that each case carries a ten percent chance of acquittal. but that the deserved and proba-
ble sentence for each defendant after a jury-trial conviction is fifteen years of imprison-
ment. The maximum possible sentence is twenty years, and no mandatory-minimum
sentencing requirement applies. She concludes that each case will require six hours
of court time for a jury trial and one hour of court time for a guilty-plea hearing.’ In
a six-hour period, she could try one case and, hopefully, secure a conviction, which
would probably result in a fifteen-year sentence. The other five defendants would not
be prosecuted. Alternatively, in that same period, she could proceed with six guilty
plea hearings and obtain certain convictions. Suppose that the prosecutor knows that
each defendant would accept a plea bargain if it carried only five years of imprisonment.
Which option better serves the public interest in punishing crime? Obviously, six pleas
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at five years apiece is better than a ninety percent possibility of a single fifteen-year
sentence. The goal of maximizing punishments compellingly favors bargaining.’ The
punishment-maximizing effect of bargained pleas over trials is much greater in reality
than even this hypothetical reveals. The average jury trial requires substantially more
than six hours and also involves several pre-trial hearings and much preparation time
by the prosecutor. Likewise, the average guilty plea hearing requires well under an
hour and minimal preparation. With the very conservative assumptions in the hypo-
thetical, plea bargains still produced twice as much total punishment as any possible
punishment that would be produced by the trial. The punishment differential would
increase exponentially if we used more realistic assumptions. This hypothetical also
shows that bargaining will usually maximize punishment vis-à-vis jury trials even if
the prosecutor does not pursue the highest possible sentence she could have obtained
without scuttling the plea. All of the defendants in the hypothetical might easily have
accepted ten-year or even twelve-year bargains, and the prosecutor would likely have
had incentives to seek those higher sentences.37 However, the punishment-maximizing
power of plea bargaining is so great that even unnecessary and fairly extreme leniency
by the prosecutor will not subvert the punishment-maximizing effect of deals. Bargain-
ing will still produce more punishment than trials. Variances among defendants in the
distribution of leniency will also not affect the conclusion that pleas produce more pun-
ishment than trials. Suppose that, instead of offering each defendant a five-year deal,
the prosecutor offered two of them nine years, two others five years, and the final two
only one year, and each accepted. This distribution of leniency appears irrational un-
der the posited circumstances. However, the results of the plea option still seem more
rational than the results of the trial option, where all of the punishment would fall on
a single defendant. Moreover, the better choice for purposes of maximizing deserved
punishment remains the plea bargains.
The plea bargain should be encouraged as it serves a laundry list of social goods.
[Chief Justice Burger 71] C.J. Santobello v. New York, 404 U.S. 257 (1971).
This record represents another example of an unfortunate lapse in orderly prosecutorial

procedures, in part, no doubt, because of the enormous increase in the workload of the
often understaffed prosecutor’s offices. The heavy workload may well explain these
episodes, but it does not excuse them. The disposition of criminal charges by agreement
between the prosecutor and the accused, sometimes loosely called ”plea bargaining,” is
an essential component of the administration of justice. Properly administered, it is to
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be encouraged. If every criminal charge were subjected to a full-scale trial, the States
and the Federal Government would need to multiply by many times the number of
judges and court facilities. Disposition of charges after plea discussions is not only an
essential part of the process but is a highly desirable part for many reasons. It leads
to prompt and largely final disposition of most criminal cases; it avoids much of the
corrosive impact of enforced idleness during pre-trial confinement for those who are
denied release pending trial; it protects the public from those accused persons who are
prone to continue criminal conduct even while on pretrial release; and, by shortening
the time between charge and disposition, it enhances whatever may be the rehabilitative
prospects of the guilty when they are ultimately imprisoned.
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8.7 Rehabilitation
Encouraging confession, even when confession merely occurs for pragmatic reasons,
can have an important rehabilitative effect.
[Bibas 02], Stephanos. [Law Prof at University of Pennsylvania] ”Harmonizing

Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and
Nolo Contendere Pleas.” Cornell L. Rev. 88 (2002): 1361.
Some defendants are willing to confess and plead guilty. As Alschuler rightly notes,
most guilty pleas are not the fruit of genuine repentance. Instead, defendants feign re-
pentance to earn sentence reductions. But even feigned or induced repentance m ay
teach lessons to some offenders. The very act of confessing and pleading guilty in open
court heightens the defendant’s awareness of the victim ’s injury, the norm violated, and
the community’s condemnation. Indeed, the ordeal of feigning repentance, even if ini-
tially done for the wrong reasons, can sometimes lead to genuine repentance. For many,
confessing is difficult because it requires admitting shameful deeds, putting aside ex-
cuses, and taking responsibility for one’s actions. As my interviews indicated, defense
lawyers often have to work with defendants before they admit guilt. The hard work of
admitting guilt and repenting may impress upon the defendant the wrongfulness and
gravity of the crime. By admitting guilt, however insincerely, defendants let down their
denial mechanisms, begin the process of reform, and bring closure to the community.
Admitting guilt plays an important role in rehabilitation.
[Bibas 02], Stephanos. [Law Prof at University of Pennsylvania] ”Harmonizing

Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and
Nolo Contendere Pleas.” Cornell L. Rev. 88 (2002): 1361.
These cognitive distortions and denials impede treatment, Admitting one ’s wrongdo-
ing is the first step toward moving beyond it. In twelve-step programs such as Alco-
holics Anonymous, for example, admitting that one has a problem is an essential step
to recovery. Confessed offenders can no longer rest complacent in the illusions that
they are good people. In addition, confessing forces offenders to reveal details of their
offenses, which is essential to framing a therapeutic response. His Denial prevents ther-
apists from examining cognitive distortions, detecting warning signs, and nurturing em-
pathy for victims. Thus, most treatment programs refuse to admit sex offenders who
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deny any sexual conduct. Denial, in short, obstructs treatment, which in turn greatly
increases the risk of recidivism.
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8.8 Retribution
Those who plead guilty deserve some leniency given their greater willingness to
accept punishment for their crimes.
[Arkin 68,] Stanley [New York Defense Attorney] Interview with Alschuler, Albert
recorded in ”The changing plea bargaining debate.” Footnote 31.
Few of the defendants who plead guilty are repentant in the sense that they would be
willing to plead guilty spontaneously without being caught or without being offered
a deal. But most of these defendants take the attitude, ”All right, I’m caught. And
because I’m caught, I’m willing to make amends.” These defendants deserve more fa-
vorable treatment than defendants who adamantly and defiantly refuse to yield even
when they’ve plainly been nailed.
Those who plead guilty are serving the public good in a way that does discount
their responsibility

In plea negotiations, it should be recognized that the first step in rehabilitation of a crim-
inal occurs when he recognizes his guilt and pleads guilty. Then, not only is he on the
way to possible salvation, but he has saved the state the expense of a trial.9 Thus, it
has often been said that a repentant defendant deserves a ”discount.”’ 0 This is particu-
larly true in the case of sex offenders, where a truculent defendant may cause additional
agony by forcing the rape victim or child victim to go through a protracted trial and re-
live the agonizing experience, in addition to being subjected to the punishing ordeal of
cross examination.
Plea bargaining provides a valuable flexibility that allows the government to more
accurately track guilt.

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Opponents of plea discussions often cite inequities in sentences received by certain of-
fenders, as opposed to sentences received by other defendants in a similar position.21
It is often claimed that unless we have mandatory sentencing, minimum sentences will
be evaded by plea bargaining or by the complete dropping of charges. 22 While manda-
tory sentencing might well have a deterrent effect, it should be recognized that there
are several degrees of homicide, burglary, robbery, larceny, sexual offenses, and many
other crimes. In addition, most American jurisdictions have laws pertaining to dimin-
ished responsibility resulting from mental deficiencies.23 Accordingly, only trained ju-
rists, lawyers, and penologists are qualified to make the distinction among the various
gradations of the offense.
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8.9 Rollback
Attempts to ban plea bargaining fail, they are at best illusory and at worst
detrimental.
[Howe 05], Scott W [Professor of Law at Chapman University]. ”The Value of Plea
Bargaining.” Okla. L. Rev. 58 (2005): 599.
Other efforts at abolition have turned out to be both illusory and costly. One study
pointed to the results of a system implemented in New Orleans by then head prosecu-
tor, Harry Connick.” This study showed that Connick had greatly reduced the number
of plea bargains offered by his office through a plan of intensive screening at the charg-
ing stage.’ The New Orleans District Attorney’s office rejected many charges that pros-
ecutors would have filed in most other cities. The office also routinely declined to offer
bargains, leaving the defendant to decide whether to go to trial or to plead guilty to the
original charge.” Doubtless, a tough screening policy by the prosecutor can somewhat
reduce the need to dismiss questionable charges later. Due to the difficulty of accu-
rately assessing cases, however, attempts at tough screening may allow a large percent-
age of questionable cases to go forward while also foreclosing many other legitimate
charges.58 This approach may also have little influence on bargaining. The New Or-
leans District Attorney’s office ”reject[ed} for prosecution . . . 52% of all cases and 63%
of all charges.”” Nonetheless, the approach did not come close to eliminating bargaining.
First, the authors were careful to note that charge bargaining by prosecutors may have
occurred in up to twenty-two percent of the cases,6° and some additional bargaining
seemed to occur in the form of failures by the prosecution to pursue enhanced penalties
under habitual felon statutes.’ Much more significantly. overt sentence bargaining con-
tinued in almost all cases between judges and defense lawyers,’ a practice historically
deemed problematic even by proponents of plea bargaining.63 In the end, the study
failed to show that plea bargaining is eradicable through tough screening practices.64
Instead, it raised the question whether tough screening forecloses too many valid prose-
cutions and suggested that a void in plea bargaining by prosecutors will tend to be filled
with plea bargaining by judges. Efforts to simply ban most plea bargains have also re-
peatedly failed, surely in part because of the expensive trade-offs involved.’ Sometimes
ban efforts have resulted from legislation or referenda, such as a statewide prohibition
imposed in California in the early 1980s.66 More often, they have resulted from the order
of the chief prosecutor, such as with the ban imposed by the Alaska Attorney General in
1975.67 Most have occurred in rural areas with a low volume of criminal prosecutions,
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although the prosecutor in El Paso, Texas, also attempted to impose such a ban in 1975.”
Almost all have been limited in major ways, such as to prosecutors alone or to certain
stages of the adjudication process or to certain types of crimes.69 In each case, either the
bargaining shifted to other stages in the adjudication process,7° the provision of bar-
gains merely shifted from prosecutors to judges,’ or prosecutors increasingly ignored
the ban” or subverted it through subterfuges.’ In the modern era no large city in the
United States has gone for a long period without some form of widely practiced plea
bargaining. This history underscores the costliness of eliminating bargaining.74
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8.10 CPs
Tailored reforms will better avoid the negative externalities associated with plea
bargaining.
753.
Accepting plea bargaining as a natural feature of the adversarial system allows the con-
cerns of its critics to be addressed with tailored reforms. The concerns of plea bargain-
ing critics the corruption of institutional values, the decreased effectiveness of criminal
sanctions, and the increased chance of improper convictions can be reme-died through
regulation of the plea bargaining process. In order to meet the constitutional require-
ments of due process, a defendant must be represented by counsel during the plea pro-
ceeding and the judge must make a finding that the defendant plead guilty knowingly
and voluntarily. n187 However, these minimum requirements of due process do not
address the negative externalities generated by plea bargaining. Jurisdictions should
regulate plea bargaining by establishing predetermined sentencing discounts for guilty
pleas and jury waivers, screen cases more effectively to eliminate charge bargaining,
and increase the use of jury waivers. Despite the fact that a significant majority of felony
cases are plea bargained, n188 plea bargaining maintains an image of an irregular pro-
cess of selling justice. n189 The corruption of institutional values resulting from this
image can be avoided by eliminating the bargaining element of plea bargaining. The
establishment of a set of written sentencing discounts that limits the concessions the
prosecutor can offer for a guilty plea will eliminate the perception of prosecutors wheel-
ing and dealing for guilty pleas. n190 The concessions offered will be predeter-mined
and may vary according to the circumstances of the individual case. n191 Of course,
allowance for excep-tions in extraordinary cases will be required, n192 but the written
guidelines will provide all parties with limits to negotiation and will reduce the length
of the negotiations themselves. Moreover, fidelity to the guidelines will fur-ther equal-
ize treatment of defendants and yield more rational sentencing patterns. Additionally,
a strict adherence to written guidelines by prosecutors will strengthen the deterrent ef-
fect of criminal sanctions. The sentencing discount should be limited to a range of ten
to twenty percent of the trial sen-tence to obtain the requisite number of desired pleas.
n193 The limited sentencing differential will increase the le-gitimacy of criminal sanc-
tions and eliminate the perception that the defendant can ”work” the system. If the
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sen-tencing discount takes the form of sentencing recommendations by the prosecutor,

then corresponding judicial sentencing guidelines will be necessary to prevent judges
from engaging in implicit plea bargaining by disregard-ing the prosecutor’s [*783] rec-
ommendation. However, the sentencing discount may be achieved through the prede-
termined charging concessions offered solely by the prosecutor for guilty pleas. n194
The concern of improper convictions can be addressed by either an increased use of
jury waiver bargaining or strengthening the screening process to prevent weak cases
from entering the system. Although jury waiver bar-gaining may result in some ”slow
pleas of guilty,” the prosecution still must make a presentation of the evidence on the
record. Appellate review of the record benefits not only the individual defendant, but
the community as well. n195 The opportunity for an acquittal from a bench trial and
appellate review of the record decreases the chance of improper conviction. Addition-
ally, a tighter screening process will prevent the overcharging that creates significant
leverage for the prosecution in negotiations. Alaska’s experience demonstrates the im-
pact charging poli-cies have on the existence of plea bargaining. n196 The elimination
of this potential coercive power of the prose-cutor will decrease the chance of improper
convictions of innocent defendants. These tailored reforms provide more sensible alter-
natives to perhaps futile attempts at banning plea bargain-ing. Moreover, these reforms
do not require a complete overhaul of existing systems but instead accept the existing
system as legitimate. Most importantly, however, is to move the debate away from the
polar extremes of complete abolition of plea bargaining and the encouragement of plea
bargaining-based efficiency. Scholars and policy-makers should recognize the benefits
of alternative methods of reform and attempt to work within the system to change it.
The problems of plea bargaining are not so great that major reforms are necessary. Tai-
lored reforms to address the specific problems can achieve the same result.
Four key reforms are needed to ensure a just system.
[Church 79] Jr, Thomas W. ”In Defense of” Bargain Justice”.” Law and Society Review
(1979): 509-525.
Four theoretical assumptions concerning the operation of bargaining processes underlie

the defense set forth above. These requirements, their rationale, and some suggestions
for implementing them must now be discussed. First, those cases that go to trial must
be decided on the merits, without penalizing the defendant for not pleading guilty. In
other words, trial sentences must be objectively deserved according to whatever sen-
tencing philosophy is embodied in the penal code. Plea bargaining should therefore
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result in sentences less than this theoretically correct sentence. Posttrial sentences that
include a surcharge for refusal to plead guilty would very probably constitute the un-
constitutional burden on the right to trial that, critics charge, inheres in all plea bar-
gaining. In the real world of criminal court operation most trial judges are virtually
unfettered in their sentencing decisions, with few statutory guidelines aside from maxi-
mum (and occasional minimum) sentences. It is thus virtually impossible to determine
whether any individual sentence includes a penalty for demanding a trial. Changes
in the sentencing system designed to confine and structure judicial discretion, such as
current proposals for ”flat time” sentences, would significantly limit opportunities to
subvert this standard.5 In addition, the motivation for imposing a sentence surcharge
on those defendants convicted after trial could be reduced substantially if the judges
presiding over criminal trials had no professional stake in the success or failure of prior
plea negotiations. Creation of two separate benches-one for supervising plea negoti-
ations and one for conducting trials-might be a step toward such a goal, particularly
if the trial bench possessed staff adequate to handle all trials in timely fashion. Elimi-
nating prosecutorial sentence recommendations to trial judges would also further the
goal of insulating the trial process from recriminations by official participants in the
previous plea negotiations. Second, every defendant should be represented by counsel
throughout the negotiations. If these focus on the likely outcome at trial, it is obviously
crucial that a defendant be represented by an attorney with the competence to assess
the factual and legal elements of the prosecution’s case and to advise him on the rela-
tive merits of trial and negotiated settlement. I am not unaware of the growing body
of literature that posits an inherent conflict of interest between defendant and defense
attorney, which may limit the effectiveness of this requirement (see Blumberg, 1967;
Casper, 1972; Skolnick, 1967). A court system in which prosecutor, judge, and defense
counsel interact on a continuing basis motivates all participants to cooperate rather than
maintain strictly adversarial roles. And this cooperation-of which plea bargaining is
the most visible symbol-may result in injustice to the interests of individual defendants
and of society at large. Obviously no system of ”enlightened plea bargaining” can ad-
dress this problem. But the institution of plea bargaining is not the cause, nor would
its abolition be a cure, for this possible disharmony between the interests of defendants
and their attorneys. The incentive to reduce conflict among regular system participants
exists equally at trial-as ”slow pleas of guilty” and the like well illustrate (see Mather,
1974). Third, if plea negotiations are to focus on predicted trial outcome, all information
and evidence bearing on that outcome should be available equally to prosecution and
defense. Procedures for pretrial discovery of relevant evidence held by an adversary
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are not as fully developed in criminal cases as they are in civil cases, and need improve-
ment. The accuracy and rationality of negotiated pleas could also be enhanced if more
complete personal information about the defendant were available at the time of plea
negotiations. Information of this sort is generally compiled only after conviction, in a
presentence report by the probation department. The final requirement for a defensible
plea bargaining system may be the most difficult to achieve. Participation in a trial is
always costly. The problem for plea bargaining is not that the alternative of a trial may
cost the parties something but that one party may be unable to absorb these costs. Such
circumstances can give the adversary an unfair advantage and any settlement reached
may not reflect predicted trial outcome. The fourth requirement, then, is that each side
possess sufficient resources to take the case to trial if it believes that the settlement of-
fered does not adequately reflect the likely trial result.
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9.1 A2 Coercion
The fact that the alternatives to a plea are unpalatable does not imply objectionable
coercion.
There are several responses to this claim. First, the argument about the size of the sen-
tencing differential reduces to the claim that the choice to plead guilty is too generous to
the defendant, an odd claim to make alongside the general claim that the system treats
the defendant unfairly.30 To be sure, the plea favors the defendant only because the
post-trial sentence is so high. But this is a complaint about background sentences, not
plea bargaining. The problem of background sentences only implicates plea bargaining
(as distinct from sentencing policy) to the extent that it suggests strategic manipulation
by prosecutors. As we argue below, there is a serious problem with strategic incentives
in plea bargaining, but it would be better solved by specific rules for combating the
prosecutor’s strategic behavior than by abolishing plea bargaining. 37 Moreover, the
argument misunderstands the doctrine of economic duress. As the preceding discus-
sion suggests, coercion in the sense of few and unpalatable choices does not necessarily
negate voluntary choice. So long as the posttrial sentences have not been manipulated
by the prosecutor, the coercive elements of the plea bargaining environment do not cor-
rupt the voluntariness of the plea agreement.3 A large sentencing differential does not
imply coercion a priori. Rather, it is entirely consistent with the assumption that the
right to take the case to trial is a valuable entitlement. The prosecutor gains something
very valuable when she avoids trial. It is hardly surprising that she will pay handsomely
for it.
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9.2 A2 Cognitive Bias
Just because people may systematically make bad decisions does not give us reason
to not allow them to make the decision for themselves.
[Easterbrook], Frank H [U.S. Circuit Judge]. ”Plea bargaining as compromise.” Yale Lj

101 (1991): 1969
Scott and Stuntz yield meekly to the lure of regulation. Why should we interfere with
compromises of litigation? If the accused is entitled to a trial at which all his rights are
honored and the sentence is appropriate to the crime, yet prefers compromise, who are
we to disagree? Scott and Stuntz reply: ”Liberty is too important to be allocated by un-
regulated bargaining. The potential for irrationality and mistake to work irrevocable,
life-destroying injustice is too high not to police the bargain.”17 Schulhofer endorses
the principle but thinks the Scott and Stuntz proposals wimpy. I find it strange to speak
of a bargain between a defendant and the state, approved and enforced by a court, as
”unregulated.” But let that pass. Why is liberty too important to be left to the defendant
whose life is at stake? Should we not say instead that liberty is too important to deny
effect to the defendant’s choice? Every day people choose where (if at all) to obtain an
education, what occupation to pursue, whom to marry, whether to bear children, and
how to raise them. Often they choose in iguorance-not simply because they do not know
whether Yale offers a better education than the University of Southern Mississippi, but
also because they do not know what the future holds. Technological changes or fluc-
tuations in trade with foreign nations will make some educations obsolete and raise
the value of others. People may, without the approval of regulators, climb mountains,
plummet down slopes at eighty miles per hour on waxed boards, fail to exercise, eat
fatty foods, smoke cigarettes, skip physical checkups, anesthetize their minds by watch-
ing television rather than reading books, and destroy their hearing by listening to rock
music at high volumes. Sometimes courts say that the Constitution protects the right
to make these choices, precisely because they are so important.8 Consider the following
line of argument: life versus death is too important to allow individual choice to pre-
vail, and therefore a mentally sound but terminally ill person in agonizing pain cannot
be allowed to decide whether to forego heroic medical efforts. 9 The interests of third
parties (friends, relatives, suppliers of medical care, and so on) require social control
of private choice. Moreover, suppliers of information are imperfect agents. Physicians
who fear that they will not be paid for expensive care may counsel discontinuation, and
other affected parties likewise may serve their own interests first. A decision made as
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a result of these recommendations must be ineffective, the argument would conclude.

Choice of one’s religion has even greater long-term consequences, but priests, rabbis,
and imams are not neutral sources of information. Schulhofer certainly, and perhaps
Scott and Stuntz too, would reply that personal choice must be honored in such cases,
despite (or because of) the gravity of the interests at stake and the bias in the informa-
tion provided by others. I am not concerned here with whether the Constitution permits
states to regulate grave decisions, but with selectivity in asserting that ”issue X is too im-
portant to be left to private choice.” Courts give effect not only to life-and-death choices
actually made but also to elections by inaction. When a defendant’s lawyer fails to make
an important motion or omits an essential line of argument, we treat the omission as a
forfeiture.” How bizarre for a legal system that routinely puts persons in jail for twenty
years following their agents’ oversight to deny them the right to compromise the same
dispute, advertently, for half as much loss of liberty!
Concerns of cognitive bias are neither so robust, nor so significant that it would
justify abolition rather than progressive reform, reforms that are already developing
in the status quo.
There are three responses to this argument. First, the anchoring phenomenon, like other
familiar decisionmaking biases incorporated into the legal literature, is the subject of se-
rious dispute among psychologists.’ It would make little sense to base wide-ranging
legal policy judgments on psychological research that is questionable within its own
discipline. Second, decisionmaking biases are traditionally used to explain seemingly
irrational behavior-conduct that appears to cut against self-interest in some important
way. Thus, for example, some scholars have argued that cognitive biases should influ-
ence the legal treatment of product safety risks, because consumers appear to underes-
timate those risks in their purchasing decisions.66 But in the plea bargaining context,
there is no superficial irrationality to explain. Defendants plead guilty in return for im-
portant sentencing concessions. Prosecutors make concessions in return for substantial
savings in time and energy and the elimination of the risk of acquittal. The bargain ap-
pears entirely rational. If the law assumes cognitive error despite apparently rational
behavior by contracting parties (represented by lawyers no less), the legitimacy of all
contracts is called into question. The cognitive bias argument against plea bargaining
thus proves too much. Finally, even if the biasing effects of framing are important, there
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are other means of correcting for them that do not involve prohibition. Enhanced dis-
closure and cooling-off periods are the obvious (and familiar) examples from the law
of consumer transactions.67 Indeed, plea bargaining doctrine already these devices to
some extent. Judges are typically required to engage defendants in detailed ”plea col-
loquies” in order to ensure that defendants understand what they are getting and what
they are giving up.68 And as a general matter, defendants are permitted to rescind bar-
gains up to the time they enter their pleas, as long as they have not induced substantial
detrimental reliance by the government.69 Most importantly, of course, defendants are
given lawyers.70 These rules should perhaps be modified or extended, but the point re-
mains: cognitive biases are not only speculative, but also remediable by measures that
fall far short of abolition.
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9.3 A2 Constitutionality
Sufficient constitutional allowance follows merely from the standard authority

possessed by the judicial system.
[Justice White 70]. Brady v. United States, 397 U.S. 742 (1970)
The issue we deal with is inherent in the criminal law and its administration, because
guilty pleas are not constitutionally forbidden, because the criminal law characteristi-
cally extends to judge or jury a range of choice in setting the sentence in individual
cases, and because both the State and the defendant often find it advantageous to pre-
clude the possibility of the maximum penalty authorized by law. For a defendant who
sees slight possibility of acquittal, the advantages of pleading guilty and limiting the
probable penalty are obvious -his exposure is reduced, the correctional processes can
begin immediately, and the practical burdens of a trial are eliminated. For the State,
there are also advantages -the more promptly imposed punishment after an admission
of guilt may more effectively attain the objectives of punishment, and, with the avoid-
ance of trial, scarce judicial and prosecutorial resources are conserved for those cases in
which there is a substantial issue of the defendant’s guilt or in which there is substantial
doubt that the State can sustain its burden of proof. [Footnote 9] It is this mutuality of
advantage that perhaps explains the fact that, at present, well over three-fourths of the
criminal convictions in this country rest on pleas of guilty, [Footnote 10] a great many
of them no doubt motivated at least in part by the hope or assurance of a lesser penalty
than might be imposed if there were a guilty verdict after a trial to judge or jury. Of
course, that the prevalence of guilty pleas is explainable does not necessarily validate
those pleas or the system which produces them. But we cannot hold that it is unconstitu-
tional for the State to extend a benefit to a defendant who, in turn, extends a substantial
benefit to the State and who demonstrates by his plea that he is ready and willing to ad-
mit his crime and to enter the correctional system in a frame of mind that affords hope
for success in rehabilitation over a shorter period of time than might otherwise be nec-
essary. A contrary holding would require the States and Federal Government to forbid
guilty pleas altogether, to provide a single invariable penalty for each crime defined by
the statutes, or to place the sentencing function in a separate authority having no knowl-
edge of the manner in which the conviction in each case was obtained. In any event, it
would be necessary to forbid prosecutors and judges to accept guilty pleas to selected
counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does
not reach so far.
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9.4 A2 Due Process
Due process concerns are overblown, the process protections of trial project back
into the bargaining phase.
753.
Although this criticism has a certain degree of merit to it, the degree to which the plea
bargaining subverts the values of the criminal justice system may be exaggerated. The
”rigorous standards of due process and proof im-posed during trials” do not become ir-
relevant with plea bargaining but, in fact, influence the nature of the bargain reached. In
calculating the plea offer, the prosecutor considers the chance of conviction, including
his ability to win pre-trial hearings that may exclude certain evidence. n109 Further-
more, the chance of success at trial is not the only consideration involved in calculating
the plea offer. The primary factors influencing the prosecutor’s offer in most plea bar-
gains are ”the circumstances of the offense and the characteristics of the offender.” n110
Additionally, the prosecutor’s duty exceeds that of the role of an adversary and includes
operating in the interests of justice as well. n111 An administrative determination of the
defendant’s guilt does not conflict with the prosecutor’s role.
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9.5 A2 Ill-Informed
There is no reason to think of defendants as in a poor informational asymmetry

when they plea.
The information-based argument seems largely inapplicable to the standard plea

bargain. Plea bargains are not standard form adhesion contracts filled with hard-to-
understand terms and conditions. On the contrary, the typical plea bargain is strikingly
similar to the simple dickered bargain-my car for $500that is the staple example of
enforceable exchange in contract law. Moreover, the criminal defendant, unlike the
consumer surprised by fine print disclaimers, has legal counsel. The fact that plea
bargaining takes place between lawyers substantially mitigates any concern with the
concealment of relevant information. This is true even in a world in which defendants
receive substandard lawyers (at substandard pay).46 Once again, the terms of plea
bargains are not usually complex, so sophisticated analysis is not called for, and its
absence is not usually much of a problem. Moreover, low-quality legal representation
would be more problematic, not less, in a world without plea bargaining, since the
same substandard lawyers would have greater opportunity for error when conducting
criminal trials than when negotiating pleas.47 Nor is there anything unconscionable
about a slapdash bargaining process. It is true that bargains are often reached after
only a short conversation between the prosecutor and defense counsel.48 But it does
not follow that such bargains are ill-considered or that defendants (or their lawyers) are
inadequately informed. Both bargaining agents are typically repeat players who deal
with each other and with the system regularly.49 This means that the bargaining range
is likely to be both small and familiar to the parties, as both prosecutors and defense
attorneys have a great deal of information about customary practices.” Each side, in
other words, is likely to have a good sense of the ”market price” for any particular
case.51
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9.6 A2 Inalienable Rights
The right to jury trial is the wrong sort of right to satisfy conditions of inalienability.
This argument fails, however, because the right to trial differs in important ways from
those rights that are ordinarily thought to be inalienable. When an individual sells his
vote, the social costs of the transaction are borne by the rest of the electorate. The same
principle applies to sales of the right to criticize government officials. There are obvious
reasons not to permit sales of entitlements where the costs are imposed on third parties.
Such is not the case with the right to trial; the defendant’s entitlement is to a process
of dispute resolution, and the parties to the bargain are the parties to the dispute. It
follows that the parties do internalize the great majority of the costs and benefits of the
bargain.2 Just as there is no inherent conflict between a tort plaintiff’s right to a day in
court and his ability to trade that right in settlement negotiations, there is no inherent
conflict between the right to a criminal trial and the ability to sell that right for sentencing
concessions.
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9.7 A2 Innocence Problem
In a world where the innocent are sometimes convicted at court, plea bargaining can
be a valuable option even for the innocent.
[Church 79] Jr, Thomas W. ”In Defense of” Bargain Justice”.” Law and Society Review
(1979): 509-525.
The problem with the case against plea bargaining from the perspective of the factually
innocent defendant is that the critics seem to assume that such blameless defendants are
necessarily exonerated at trial. It is a sobering fact that this is not always the case. Tri-
als do involve a risk that the factually innocent defendant may be found legally guilty.
Legal innocence is merely an attorney’s prediction prior to a trial. And the most compe-
tent attorney can err in predicting success on the basis of procedural defenses such as
exclusion of incriminating evidence, or entrapment, alibi witnesses, and the like. If most
defendants did not face a very real chance of conviction at trial, all incentive to bargain
would be eliminated, and with it this criticism of plea bargaining. It is therefore some-
what disingenuous to argue that the innocent defendant suffers from being offered an
alternative to the high stakes of a trial. So long as the choice of trial or plea rests with the
defendant, competently advised by informed counsel, the alternative posed by the state
of a certain but less severe sentence need not improperly encourage or coerce a guilty
plea from ”innocent” defendants any more than it does from ”guilty” ones. Benjamin
Davis, counsel for the defendant in the rape case cited above, puts the problem into
perspective. According to Alschuler: “Davis reports that he is uncomfortable when he
permits innocent clients to plead guilty; but in this case it would have been playing God
to stand in the defendant’s way. The attorney’s assessment of the outcome at trial can
always be wrong, and it is hard to tell a defendant that ’professional ethics’ require a
course that may ruin his life.” [1968:61] Indeed. It is equally difficult to argue that con-
cern for the individual defendant dictates a system in which there can be no alternative
to that potentially ruinous course of action. Whether the substantive goals of the penal
law require an end to the practice of offering sentences discounted for the uncertainty
of the trial result will be examined in the following section. It cannot be maintained that
posing such an alternative is inherently unfair to the defendant.
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Resolved: Plea bargaining ought to be abolished in

the United States criminal justice system.

January/February 2018 LD Brief*

1 Topic Analysis by Oliver Sussman 5

2 Topic Analysis by Jack Wareham 13

3 Topic Analysis by Nina Potischman 22

3.2.3 Virtue Aff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

4 Topic Analysis by SunHee Simon 33

9 Neg Blocks 116

plea bargaining actually is. According to Albert Alschuler of University of Colorado

the exchange of official concessions for a defendant’s act of self-conviction.

1.3 Positions on the Topic

1.3.1 Mass Incarceration Affirmative

bargaining frequently only coerces individuals into accepting a suboptimal outcome.

1.3.2 Retributivism Affirmative

1.3.3 Court Clog Disadvantage

The system of mass incarceration depends almost entirely on the coopera-

Jack Wareham is a student at the University of California, Berkeley in the College of

The drama inherent in these guarantees is regularly portrayed in movies and

2.2 Interpretational Questions

As defined by Merriam Webster, plea bargaining is the “negotiation of an agreement

2.3 Affirmative Arguments

2.3.1 Racism & Mass Incarceration

2.3.3 Occupying the CJS

The system of mass incarceration depends almost entirely on the coopera-

2.3.4 Corruption & Coercion

2.4 Negative Arguments

2.4.1 Court Clog

2.4.3 Benefits to the Defendant

Plea bargains offer an enormous number of benefits to defendants. Although each of

assistant district attorneys” and encouraging lawyers to “live in neighborhoods dispro-

In proposing an ethical system of plea bargaining, and working through the

A plea bargain is an agreement between a defendant and a prosecutor, in

It leads to prompt and largely final disposition of most criminal cases, it

3.2 Aff Arguments

In a proceeding whose potential consequences are so grave, to discourage

This framework would thus criticize plea-bargaining as dehumanizing and coercive.

A central issue with plea-bargaining is then the arbitrary penalization of defendants

“an offender should not be subjected to ”undeserved” or ”gratuitous” suf-

parate impact on communities of color, and fuels a system of mass incarceration:

While plea-bargaining is partly problematic because it punishes individuals arbitrarily

3.2.3 Virtue Aff

Under this framework, if plea-bargaining were to reward or incentive problematic be-

Finally, pegging punishment to cooperation may also lead to situations

Moreover, rewarding individuals who provide information on their criminal accom-

Turning state’s evidence against an accomplice thus can be a violation of

Libertarians believe that there is a natural harmony of interests among peace-

Plea bargains are preferable to mandatory litigation-not because the analogy

A libertarian critique of plea bargaining, then, might view the prosecutor as

negotiated settlements of criminal cases need not involve either violations

4.1 Aff Argument

4.1.1 African Americans & Slavery

The pressure to plea-bargain and thereby “convict yourself” in exchange

The misdemeanor prosecution system is problematic for many defendants,

tiation of immigration-neutral dispositions, especially at the first court ap-

The integration of immigration enforcement programs also influences the

4.2.1 Abolish US Criminal Justice System

In this quote, Davis brings up another important point—the purpose of imprisonment.

5.1 Plea Bargaining

No standard definition of plea bargaining exists among practitioners. The definition

[There is a distinction between plea bargaining] or plea adjustment [and sentence

[Schulhofer 92], S. [professor of Law at University of Pennsylvania] (1992). Plea Bar-

5.3 Plans Good

It seems increasingly unproductive to attempt to criticize all plea bargaining in the