College Prep Invitational - Premier Debate



College Prep Invitational1 Brentwood JD Aff RacePlea bargaining is the criminal justice system and the criminal justice system is the modern plantation. Plea bargaining undergirds the transformation of chattel slavery and black codes to sentencing regimes manifesting as mandatory minimums and the prison industrial complex Heiner 16 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIn his autobiographical texts, … and racially oppressed. Best and most recent statistics prove plea bargaining is unquestionably discriminatory - it controls black incarceration and criminalizationBerejo 17 Berdejó, Carlos (Before joining the faculty at Loyola Law School, Carlos was a graduate student at Harvard University, where he obtained his PhD in Economics. As a doctoral student, he devoted much of his scholarship to the interaction of law and economics, and in particular to understanding the impact of judicial institutions on judges' behavior. Prior to beginning his graduate studies, he practiced as a corporate attorney in New York, representing Latin American clients in various types of financings and in related securities law matters. His current research employs economic tools to further our understanding of the regulation of securities and other investments and of how legal regimes influence corporations' financing decisions.), Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39. Available at SSRN: BWSWJThe racial disparities … later in the article. 174Plea bargaining is the procedural entrapment that sustains mass incarceration - the unreviewable power of the prosecutor strips bodies of rights and sediments racial dominationHeiner 2 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJThe systematic practice of … people of color.82The intricate mechanics of the misdemeanor process racialize crime and mark black folks as criminals absent the presumption of innocence. Prioritizing efficiency over truth creates the stereotype of the black offender and causes mass incarceration.Natapoff 12 Natapoff, Alexandra (Professor of Law UC Irvine Law School; Expertise: Criminal law and procedure, misdemeanors, informants, public defense, law and inequality Background: Professor Natapoff's scholarship has won numerous awards, including a 2016 Guggenheim Fellowship, the 2013 Law and Society Association Article Prize, and two Outstanding Scholarship Awards from the AALS Criminal Justice Section. Her original work on criminal informants has made her a nationally-recognized expert: her book Snitching won the 2010 ABA Silver Gavel Award Honorable Mention for Books. Professor Natapoff's current work-including her new book-focuses on misdemeanors and their powerful influence over the criminal system as a whole. She has presented her misdemeanor work at numerous institutions including Harvard, the University of Chicago, the ABA, and the National Science Foundation. Professor Natapoff is a member of the American Law Institute; in 2015 she was appointed as an Adviser to the ALI Policing Project. She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets. Prior to joining the academy, Professor Natapoff served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. She clerked for the Honorable David S. Tatel, U.S. Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, U.S. District Court, Washington, D.C.), Misdemeanors (February 24, 2012). 85 Southern California Law Review 101 (2012); Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: BWSWJThe misdemeanor process … the penal system.PlanPlan Text: The Supreme Court of the United States, in the next available test case, ought to rule the practice of plea bargaining unconstitutional on the basis that it violates the equal protection analysis established in State v. Russell.Kruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJSimilarly, courts could … arbitrary or illegitimate. 27 "Crash the system and let its ruthless efficiency collapse under its own weight. The aff causes a wide scale restructuring of the CJS.Alexander 12 MICHELLE ALEXANDER (Michelle Alexander is a highly acclaimed civil rights lawyer, advocate, and legal scholar. In recent years, she has taught at a number of universities, including Stanford Law School, where she was an associate professor of law and directed the Civil Rights Clinics. In 2005, she won a Soros Justice Fellowship, which supported the writing of The New Jim Crow, and that same year she accepted a joint appointment at the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University. Since its first publication,The New Jim Crow has received rave reviews and has been featured in national radio and television media outlets, including MSNBC, NPR, Bill Moyers Journal, Tavis Smiley, C-SPAN, and Washington Journal, among others. In March, the book won the 2011 NAACP Image Award for best nonfiction.); ; MARCH 10, 2012; NYTIMES; BWSWJAFTER years as a … to risk our lives."Absent plea bargaining, the politics of carcerality become unsustainable - the aff opens up space for decriminalization and exposing the contradiction of the lawHeiner 3 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIt would be difficult … leased convict laborers.139Davis precedent allows judicial racism to go unchecked - Russell analysis opens the floodgates to challenge discriminatory policiesKruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJIn State v. Russell, 2 … of many criminal procedures.FramingThis round should be centered on mass incarceration - Ethics in the age of the prison industrial complex require a stance against its specific violence Roberts 4 Roberts, Dorothy E. (Dorothy Roberts, an acclaimed scholar of race, gender and the law, joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science and Society in the Center for Africana Studies. Her pathbreaking work in law and public policy focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans. Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.), "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. 583.; BWSWJThus, the unprecedented … ' sense of justice.Reject neg args - We're subconsciously primed towards a continuation of plea bargaining Gocha 16 Alan J. Gocha (Alan's practice is primarily focused on complex intellectual property litigation in electrical, mechanical and software matters. He has experience in both defending against and asserting copyright, trademark, and patent rights. Alan has served as lead counsel in a number of cases, both in state and federal court. He also has experience in appellate advocacy and arbitration. His experience touches a broad range of practice areas, including employment, civil rights, corporations, nonprofit, and bankruptcy law. As an attorney, Alan has provided hundreds of hours of pro bono legal services. Alan has a Bachelor of Arts in Philosophy from the University of Michigan and received his Juris Doctor from Georgetown University Law Center in 2016 where he was an editor for the Georgetown Journal of Legal Ethics. He also received a full tuition scholarship to study Communications at Wayne State University, where he ranked nationally on the university policy debate team. While in law school, he was named an Exceptional Pro Bono Pledge Honoree and winner of the first annual Justin Hansford Student Essay Contest, hosted by the Georgetown Journal on Law and Modern Critical Race Perspectives, for his essay titled The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice.), The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 Geo. J. L. and Mod. Critical Race Persp. (2016) Hein BWSWJAt a cursory glance, the … for state-sponsored oppression. 9Prioritize slow violence---obsession with short timeframe impacts obscures structural factors. Rob Nixon 10. Rachel Carson Professor of English, University of Wisconsin-Madison. "Slow Violence and the Environmentalism of the Poor." Pages 1-14. 2010.When Lawrence Summers, then president of the World Bank, advocated that the bank develop a scheme to export rich nation garbage, toxic waste, and heavily polluting industries to Africa, he did so in the calm voice of global managerial reasoning.' Such a scheme. Summers elaborated, would help correct an inefficient global imbalance in toxicity. Underlying his plan is an overlooked but crucial subsidiary benefit that he outlined: offloading rich-nation toxins onto the world's poorest continent would help ease the growing pressure from rich-nation environmentalists who were campaigning against garbage dumps and industrial effluent thai they condemned as health threats and found aesthetically offensive. Summers thus rationalized his poison-redistribution ethic as offering a double gain: it would benefit the United States and Europe economically, while helping appease the rising discontent of rich-nation environmentalists. Summers' arguments assumed a direct link between aesthetically unsightly waste and Africa as an out-of-sighl continent, a place remote from green activists' terrain of concern. In Summers' win win scenario for the global North, the African recipients ot his plan were triply discounted: discounted as political agents, discounted as long-term casualties of what 1 call in this book "slow violence," and discounted as cultures possessing environmental practices and concerns … ongoing, belated casualties.No counterplans - negatives must defend the squoPlants 89 COUNTERPLANS RE-VISITED: THE LAST SACRED COW? J. Daniel Plants, Baylor University 1989 - Punishment Paradigms : Pros and Cons; BWSWJThe notion of "as compared … object to such strategies.Theory Condo BadA. Interpretation – the neg must defend one unconditional advocacy.B. Violation – C. StandardsStrat skew vote on fairness Reject the argument Use Competing interpsNo need for internal links on theoryTheory DisclosureInterpretation: Debaters who have attended at least 1 bid tournament must disclose all positions read in previous rounds that tournament year (including AC, NCs, CPs, DAs, Ks) on the NDCA LD 2017-2018 wiki under their name, school, and side it was read on. Disclosed positions must minimally include the tags, full citations, and first three and last three words of all evidence read.Research – disclosure increases research and gets rid of anti-educational arguments because debaters are forced to prepare cases knowing that people will have answers AND people get the opportunity to research answers to disclosed cases.Nails ‘13 - (Jacob I am a policy debater at Georgia State University. I debated LD for 4 years for Starr's Mill High School (GA) and graduated in 2012. "A Defense of Disclosure (Including Third-Party Disclosure)" ) GHSI fall squarely...incentivize better debating.2. Clash3. Argument Quality4. Evidence EthicsD. FairnessDrop the debaterCompeting InterpretationsNo RVITheory A Prioris BadInterpretation: Debaters must link all offense relevant to the affirmation or negation of the resolution back to a standard.B. Violation C. StandardsClashFairnessdrop debater no rvisCITheory PICs BadA. Interpretation – Counter plans must be entirely exclusive of the aff, textually and functionally. To clarify, the neg may not read PICs. B. ViolationC. StandardsTime and strat skew 2. Ground 3. Predictability4. Limits5. Ground.6. Textuality7. Clash vote on fairness Reject the argument Use Competing interpsNo need for internal links on theoryTheory Prefiat Ks BadA. Interpretation: if the neg reads a kritik, the text of the K alt must include a post-fiat advocacy taken by the same agent as the AC.B. ViolationsC. StandardsStrat skew- a) harder to refute the kritik absent a specified action it would lead to- even if I get link of omission type arguments those are worse quality of ground than your direct links to my case. b) unreciprocal fiat power - you get to shift an entire mindset while the AC endorses a single policy action - supercharged since you don’t specify an agent so you fiat that the mindset disappears amongst all of us while at best I shift the priorities of specific countries. Kills fairness since you have greater ability to solve harmsAnd, my shell turns the method of the K- they claim the judge is an educator, if you are one you should reject the K in the same way that you would if I was uneducational. Also functions as a gateway issue since it's your advocacy- I coopt your offense since you can read the K, just not the way you did:Irresponsible, don't advocate for real change. Just as fiat is illusory, so is the movement, especially in a switch-side format. 2. Less clash on these issues. If I don't know what the alt actually would get enacted, I can't compare it against the post-fiat advocacy.FairnessDrop debaterCompeting InterpretationsNo RVIsTheory CP Solvency AdvocatesA. Interp – All negative’s CP’s must have a solvency advocate, defined as a card that explicitly advocates for the implementation of the CP in the text read during the round. To clarify its insufficient to read evidence that the CP is good, your author needs to say that it should be implemented.B. ViolationC. StandardsPredictability – There are hundreds of solutions to poverty and no way for the aff to predict a solution not advocated by authors in the lit. My interp solves by creating strict guidelines for Cp’s that give me a chance to leverage my prep against. Predictability is key to fairness because it provides ground and creation of pre round strategy.FairnessDrop the debaterNo RVIsCompeting interps1 Brentwood JD Neg ReformCP Text: The United States criminal justice system should reform plea bargaining to require written plea agreements, prohibit waivers of critical rights, provide broad pre-plea discovery, strengthen judicial oversight, adopt limits on Plea Discounts Courts, and limit sentencing concessions offered by prosecutors. Turner is the solvency advocateTurner 3/17 - Jenia Iontcheva Turner is a professor of law at Southern Methodist University (Dedman School of Law). "Plea Bargaining," March 13, 2017 Written Plea ... to consider them.CP War on DrugsCounter Plan Text: The United States Federal Government should end the “War on Drugs” including the abolition of the DEA, eliminating all federal enforcement of illicit drug laws and stopping all federal assistance of drug law enforcement by state and local governments, except for the enforcement of illicit prescription drugs.Drug laws are the primary driver of mass incarceration, and it’s racially disproportionate.Drug Policy Alliance 16 Alliance, Drug Policy. “The Drug War, Mass Incarceration And Race.” February, 2016. Web. December 09, 2017. 20Mass20Incarceration20and20Race_28Feb.20201629_0.pdf.The Drug War…drug law violations.DA Court ClogUQ - Court ClogCourts not overwhelmed now - reforms like plea bargaining mean judges can handle caseloadPryor 11/29 William Pryor (William H. Pryor Jr. is a judge on the United States Court of Appeals for the 11th Circuit and acting chairman of the United States Sentencing Commission.); NOV. 29, 2017; ; "Conservatives Should Oppose Expanding the Federal Courts"; NYT Op-Ed; BWSWJBIRMINGHAM, Ala. - A prominent ... judgeships should be opposed.UQ - EconEcon goldilocks now - smooth growth prevents inflation - only risk is policy changeCushman and Wakefield 9/27, leading global real estate services firm, 45,000 employees in more than 70 countries, 9/27/2017 (Strong Consumer Confidence, Job Growth and Global Economic Resilience Create "Goldilocks" Economy, article/443721/strong-consumer-confidence-job-growth-and-global-economic-resilience-create-goldilocks-economy)The U.S. economy has ... the post WWII era."Plea bargaining would create a massive jam in the court systemWalsh 17 Dylan Walsh; May 2, 2017; ; Why U.S. Criminal Courts Are So Dependent on Plea Bargaining; BWSWJShondel Church was ... system "less awful."I'll insert this graph into the debateBureau of Prison 10/28 ; Bureau of Prisons; Offenses Statistics based on prior month's data -- -- Last Updated: Saturday, 28 October 2017; BWSWJImpact - Econ LegitimacyCourt clog kills court legitimacy - they can't functionLeahy 12 (Sen. Patrick Leahy, "Statement Of Senator Patrick Leahy On The Nominations Of Mary Elizabeth Phillips To The Western District Of Missouri And Thomas Owen Rice To The Eastern District Of Washington." 3/6/12 )While consensus judicial ... costs taxpayers money."Court legitimacy is key to every aspect of the economy.Dove 15 (John A. Dove, Manuel H. Johnson Center for Political Economy, Troy University, 2015, "The effect of judicial independence on entrepreneurship in the US states," Econ. Syst.)There have also ... on entrepreneurial activity.Economic collapse causes nuclear war T?nnesson 15 - (Stein T?nnesson, Leader of programme on East Asian peace @ Uppsala University, "Deterrence, interdependence and Sino-US peace," International Area Studies Review, 18:3, p.297-311, , accessed 7-13-2017, SagePub, JSO)Several recent works ... Beijing to interveneDA ImpeachmentTrump’s impeachment odds are at an all time high – betting markets proveJason Le Miere, 12-1-2017, "Trump impeachments odds skyrocket after Michael Flynn agrees to cooperate with Mueller investigation," Newsweek, BWSEKLThe odds of…first four-year term.Prediction markets are exceptionally accurate - Pavel Atanasov, et al 10/8/2015. ‘Distilling the Wisdom of Crowds: Prediction Markets vs. Prediction Polls’ ResearchGate. BWSEKLSince the work…against each other.”Mueller’s investigation is fueled by plea bargains – first Papadopolous, now Flynn. Each plea brings the investigation closer to Trump, where more leverage will be needed to get testimony -Brent Budowsky, 12-1-2017 Former aide to Sen. Lloyd Bentsen and Rep. Bill Alexander; LLM in international financial law from LSE, "Trump’s Russian winter grows colder with Flynn plea deal," As former national…and for all.We are on the brink of nuclear war with North KoreaMark Seddon, 12-7-2017 formerly a speechwriter for Ban Ki-moon; a visiting professor of IR at Columbia, "Have we just three months to avert a US attack on North Korea?," GulfNews, BWSEKLThe drumbeat for…towards North Korea.Trump’s delusions and recklessness will compel him to start a nuclear war with North Korea – multiple psychiatrists agreeJason Le Miere, 11-29-2017, "Trump’s conspiracy theory delusions will likely lead to nuclear war with North Korea, psychiatrists warn," Newsweek, BWSEKLPresident Donald Trump’s…millions of lives.”DA No Test CaseRuling without a case and controversy wrecks court legitimacyEpstein, 98 - professor of political science and professor of law at Washington University (Lee, The Choices Justices Make, p. 160-161)This story suggests ... of the adversarial system.Turns case - the requirement of a test case is the internal link to court legitimacy, enforcement of decisions, and non-partisanshipKing, 2000 (Brian, 10 Kansas Journal of Law and Public Policy 215, ) There must also ... them less political.Wrecks judicial independence and is modeled globallyNickels, 98 (John, Justice, Illinois Supreme Court, "The Need for an Independent Judiciary", 12/11, )A truly independent ... fair and impartial.Court legitimacy is key to every aspect of the economy.Dove 15 (John A. Dove, Manuel H. Johnson Center for Political Economy, Troy University, 2015, "The effect of judicial independence on entrepreneurship in the US states," Econ. Syst.)There have also ... on entrepreneurial activity.Economic collapse causes nuclear war T?nnesson 15 - (Stein T?nnesson, Leader of programme on East Asian peace @ Uppsala University, "Deterrence, interdependence and Sino-US peace," International Area Studies Review, 18:3, p.297-311, , accessed 7-13-2017, SagePub, JSO)Several recent works ... Beijing to interveneIndependent judiciaries are vital to prevent diseaseGreco, 5 (Michael, president of the American Bar Association, Miami Daily Business Review, 12/5, lexis)What makes the ... of such prisoners.ExtinctionDaswani, 96 (Kavita, South China Morning Post, 1/4, lexis)Despite the importance ... race," he said.DA TerrorismThe intersection between organized crime and terrorism makes access to biological weapons easier than ever. However it ALSO makes terrorist cells easier to detect and prosecute - Josh Rollins, Liana Sun Wyler, and Seth Rosen, January 5, 2010 Congressional Researchers - Specialist in Terrorism and National Security; Analyst in International Crime and Narcotics; Research Associate 'International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress' Congressional Research Service Report for Congress. BWSEKLPotential links between…most terrorist financing.Plea bargaining is critical to get cooperation from terrorist informants – informants are key to stopping attacksAdam Goldman and Benjamin Weiser, 1-27-2017, "How Civilian Prosecution Gave the U.S. a Key Informant," New York Times, BWSEKLCurrent and former…that chance meeting.”Bioterror is possible and an existential riskVon Hippel 17 – Frank Von Hippel, Professor of Public and International Affairs at the Woodrow Wilson School of Public and International Affairs, former assistant director for national security in the White House Office of Science and Technology, Ph.D. in Physics from Oxford University (“Bioweapons Then and Now,” Nuclear Futures Lab @ Princeton University, February 19th, ) Thanks to Harvard MS Opencaselist Wiki“Bioterrorism could kill…seriously considered yet.K BiopowerWestern legal institutions foster colonialism and violenceMattei 9, Ugo Mattei is a professor at Hastings College of the Law and University of Turin, nearest date given is 2009, “GLOBAL LAW and PLUNDER: THE DARK SIDE OF THE RULE OF LAW,” this framework…governed by it. This results in global biopolitical violence.Gulli 13 (Bruno Gulli, professor of history, philosophy, and political science @ Kingsborough College, “For the critique of sovereignty and violence,” , pg1 – pg5)We live in…and police brutality.The alternative is to endorse bio political resistance. Questioning biopolitics is necessary to formulate a resistance culture capable of toppling the current biopolitical system. Lilja 14Mona Lilja and Stellan Vinthagen (2014) Sovereign power, disciplinary power and biopower: resisting what power with what resistance?, Journal of Political Power, 7:1, 107-126, DOI: 10.1080/2158379X.2014.889403As stated above…(or international) movementThe roll of the ballot is to minimize government intervention and reduce bio-political power. By seeping into all aspects of life bio-power slowing grants the entity in charge total control over all aspects of life. Perron and Flue ‘04Ame ?lie Perron (BScN RN; PhD Student, School of Nursing, University of Ottawa, Ontario, Canada), Carol Fluet (BScN RN Masters Student, Faculte des Sciences Infirmie`res Universite ? de Montre ?al, Montre ?al, Quebec, Canada), and Dave Holmes (PhD RN Associate Professor, School of Nursing, University of Ottawa, Ontario, Canada); “Nursing Theory And Concept Development Or Analysis:? Agents Of Care And Agents Of The State: Bio-Power And Nursing Practice;” School of Nursing, University of Ottawa; Journal of Advanced Nursing; pg. 536-544; Blackwell Publishing Ltd.; July 22, 2004; to Foucault…most intricate forms.K LegalismTheir legalistic discourse—valorizing legal rights and procedures—creates an idealized fantasy of order and consensus. It legitimizes domination and represses alternative visions of social life, both as it is and might be.Gordon 87 - Robert W. Gordon, Professor of Law at Stanford University, 1987 “Unfreezing Legal Reality: Critical Approaches To Law,” Florida State University Law Review (15 Fla. St. U.L. Rev. 195), Summer, Available Online to Subscribing Institutions via Lexis-Nexis LADINow a central…solidarity and self-sacrifice. Using defense as redress obfuscates the drivers of incarceration and legitimizes criminal injusticeButler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) SJDI Indigent persons are…not the cause.Rights talk atomizes society and impedes progressive change Butler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) SJDI Robin West has…welfare of groups.61CX is a crystal clear link – aff thinks laws are good in and of themselves without interrogating any underlying structure behind it – he can’t explain the Alaska system – proves that link that legal rhetroic is passed down a stream of voices while one ne understands it’s interworking or questions it’s oppressive systems – aff mindset is fundamentally opposed to the K and proves the impacts become inevitable – CX prove no chance for the permUnderstanding criminal procedure as bureaucratic control is a prerequisite to justice.Tushnet and Jaff 86 – Mark Tushnet Professor of Law, Georgetown University Law Center. and Jennifer Jaff, Instructor in Law, University of Miami Law School. (“Critical Legal Studies and Criminal Procedure,” 35 Cath. U. L. Rev. 361 (1986). ) SJDIThe problem of…to administer justice.The supreme court defends plea bargaining on the basis of efficiency which is wholly market based and treats people like commodities. Langbein, John 92. “On The Myth If Written Constitutions: The Disappearance Of Criminal Jury Trial.” Harvard Journal of Law and Public Policy. 1992. Web. December 06, 2017. . BWSJDThe Supreme Court…not a justification. The alternative is a non-essential legal pluralism. Only a rejection of the aff’s fixed notions can liberate law from its self-referential ordering, allowing us to better analyze, describe, and utilize law’s sociology to line up with empirical realities.Walby ‘7 (Kevin Walby, Associate Professor and Chancellor’s Research Chair in the Department of Criminal Justice at University of Winnipeg, “Contributions to a Post-Sovereigntist Understanding of Law: Foucault, Law as Governance, and Legal Pluralism,” SOIAL and LEGAL STUDIES SAGE Publications, Vol. 16(4), 551–571, 12/1/7, ) -DSMy purpose is…in the everyday.NC ExtinctionThe standard is minimizing existential risk – Only moral hedging resolves moral uncertainty – means we weigh the probability of a theory being true:Boey 13: Grace Boey “Is applied ethics applicable enough? Acting and hedging under moral uncertainty” 3 Quarks Daily December 16th 2013 JW - Recut from Lex RW wiki, EKLA runaway train…with analysis paralysis.Extinction matters under the aff framework and outweighs –.Pummer 15 Theron, Junior Research Fellow in Philosophy at St. Anne's College, University of Oxford. “Moral Agreement on Saving the World” Practical Ethics, University of Oxford. May 18, 2015 ATThere appears to…On What Matters)NC UtilThe standard is maximizing expected wellbeing.Phenomenal introspection is reliable and proves that util is true.Sinhababu Neil (National University of Singapore) “The epistemic argument for hedonism” accessed 2-4-16 JWThe Odyssey's treatment…not egoistic hedonism.Theory A Prioris BadInterpretation: Debaters must link all offense relevant to the affirmation or negation of the resolution back to a standard.B. Violation C. StandardsClashFairnessdrop debater no rvisCITheory DisclosureInterpretation: Debaters who have attended at least 1 bid tournament must disclose all positions read in previous rounds that tournament year (including AC, NCs, CPs, DAs, Ks) on the NDCA LD 2017-2018 wiki under their name, school, and side it was read on. Disclosed positions must minimally include the tags, full citations, and first three and last three words of all evidence read.Research – disclosure increases research and gets rid of anti-educational arguments because debaters are forced to prepare cases knowing that people will have answers AND people get the opportunity to research answers to disclosed cases.Nails ‘13 - (Jacob I am a policy debater at Georgia State University. I debated LD for 4 years for Starr's Mill High School (GA) and graduated in 2012. "A Defense of Disclosure (Including Third-Party Disclosure)" ) GHSI fall squarely...incentivize better debating.2. Clash3. Argument Quality4. Evidence EthicsD. FairnessDrop the debaterCompeting InterpretationsNo RVIT TopicInterpretation - the aff must defend and can only garner offense from the desirability of the hypothetical enactment of a topical policy enacted by the resolution’s actors.‘Resolved’ denotes a proposal to be enacted by law. Words and Phrases 64 (Permanent Edition)Definition of the word…establish by law”. LimitsThey destroy limits by allowing any possible aff – Galloway 7—Samford Comm prof (Ryan, Contemporary Argumentation and Debate, Vol. 28, 2007)Debate as a…of topical advocacy.Dialogism Debate is not real life Morson 4 Professor, Prof. Morson's work ranges over a variety of areas: literary theory (especially narrative); the history of ideas, both Russian and European; a variety of literary genres (especially satire, utopia, and the novel); and his favorite writers -- Chekhov, Gogol, and, above all, Dostoevsky and Tolstoy. He is especially interested in the relation of literature to philosophy.A belief in…the conversation going.Decision-makingDebate teaches skills key to collective decision-making – that’s key to address every global problemLundberg 10: Christian O. Lundberg, Associate Professor, Communication, University of North Carolina, Chapel Hill, “Tradition of Debate in North Carolina,” NAVIGATING OPPORTUNITY: POLICY DEBATE IN THE 21ST CENTURY ed. A.D.Louden, 2010, p. 311+.The second major….increasingly complex world. Critical thinkingDebate inevitably involves exclusions – making sure that those exclusions occur along reciprocal lines is necessary to foster democratic habits and critical thinking – this process of intellectual exchange outweighs the content of the aff and doesn’t link to any of their offense. Anderson 6: Amanda Anderson 6, prof of English at Johns Hopkins The Way We Argue Now, 25-825 Whether such a…institutions and practices.Fights RacismProvisional rules like T are key to a praxis of self-reflexive thought necessary to address racismInoue 5 Asao Inoue, submitted in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY, THE EPISTEMOLOGY OF RACISM AND COMMUNITY-BASED ASSESSMENT PRACTICE, antilogic and…address power relationships.Fairness firstGalloway 7: (Ryan Galloway, Samford Debate Coach, Professor of Communication Studies at Samford, Contemporary Argumentation and Debate, Vol. 28, 2007Debate as a…of topical advocacy.T Version of the AffCreative ways of working within the law create space for new ideas and liberatory action. NoubeSe Philip and Saunders ‘8 M. NoubeSe Philip in an interview done with Patricia Saunders. Prof. Saunders is an associate professor of English at the University of Miami. Her research and scholarship focus largely on the relationship between sexual identity and national identity in Caribbean literature and popular culture. NoubeSe Philip studied law and economics before becoming a Canadian poet, novelist, and essayist. Defending the Dead, Confronting ? the Archive: A Conversation with ? M. NourbeSe Philip. small axe 26 ? June 2008 ? p 63–79NP: I think we’ve…these questions before.2 North Hollywood JS Aff Sexual Assault PlanFrameworkStatus quo structural inequalities are ignored because individuals distance themselves from non-directly causal effects of their actions that contribute to cycles of oppression.Young 03: Young, Iris Marion. ~Professor of Political Science, University of Chicago~ "Political Responsibility and Structural Injustice." University of Kansas, May 5, 2003. CHThis, then, is what it means to me to say that structures are?ANDthan injustices, circumstances we must live with rather than try to change.Systemic exclusion of particular groups arbitrarily denies due.Winter and Leighton 01. ?Winter, Deborah DuNann ~Professor of Psychology, Whitman College~, and Dana C. Leighton, Ph.D. ~Assistant Professor of Psychology, Southern Arkansas University~. "Peace, Conflict, and Violence: Peace Psychology in the 21st Century." New York: Prentice Hall, 2001. JSFinally, to recognize the operation of structural violence forces us to ask questions about?ANDlocal cultures, will be our most surefooted path to building lasting peace.Ideal theory fails – oversimplifying ethics to one theory threatens any real discussion.Curry 14, Tommy J. ?Ph.D., Associate Professor of Philosophy, Texas AandM University. December 2014. ?"The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century," ?Academia.edu. JSDespite the pronouncement of debate as an activity and intellectual exercise pointing to the real?ANDused to currently justify the living wages in under our contemporary moral parameters.Thus, the standard is minimizing structural violence.HarmsPlea bargains allow for rapists to be convicted of a less serious offense, which adds insult to injury for victims.Williams 10?~Rachel Williams, freelance writer, 3-20-2010, "Fewer rape convictions because plea bargains prevail, report suggests," Guardian,? of convictions gained in rape cases are actually for lesser offences, official figures?ANDby others as a result of this charge and the subsequent pathetic sentence."The impact is injustice for victims – plea bargains enable the defendant to avoid punishment for rape and they send a message that rape isn't a serious offense.Martin 14?~Tim Martin, columnist for the Times Standard, 8-2-2014, "No more plea deals for sex offenders," Times Standard,? typical plea deal requires that the defendant plead guilty to a lesser charge in?ANDa person is about as close as you can come to killing them.Even a "win" for the prosecutor via a plea deal is insufficient for the victim, which answers Neg turns – it's a question of admittance of guilt.Center for Research on Violence Against Women 11?~"What percentage of rape cases gets prosecuted? What are the rates of conviction?" UK Center for Research on Violence Against Women, December 2011~ JSParticipation in prosecution, plea negotiations, and testifying in sentencing phases are difficult and?ANDis never required to actually admit or acknowledge that he raped the survivor.SolvencyResolved: the United States Federal Government should abolish plea bargaining in court cases involving sexual offenses.Abolishing plea bargaining boost the legal system's credibility, which increases deterrence that can be used to disincentivize future sexual assaults.Fine 87?(Ralph Adam Fine, American judge, author, and television personality who served on the Wisconsin Court of Appeals from 1988-2014, "Plea Bargaining: An Unnecessary Evil", Marquette Law Review, Volume 70, Issue 4, Summer 1987) JSThe very essence of deterrence is credibility. As I point out in Escape of?ANDSupreme Court derisively condemned it as "a direct sale of justice."14Plea bargains let offenders get off with minimal punishment, which increases the likelihood that they'll become repeat offenders.Martin 12?~Kyle Martin, Staff Writer, 2-11-2012, "Many break law again after first offender sex crime plea," Augusta Chronicle,? the 84 people given first offender status for sex crimes in the past 11?ANDwas terminated early in 2007, and he is not on the registry.Allowing pleas that let offenders avoid admitting their guilt is detrimental to the healing processes of victims.Molesworth 08?~Claire L. Molesworth, OPTIO Solutions, LLC, Miller Nash Graham and Dunn LLP, Seattle Arts and Lectures, "Knowledge Versus Acknowledgment: Rethinking the Alford Plea in Sexual Assault Cases," SEATTLE JOURNAL FOR SOCIAL JUSTICE ? VOLUME 6 ? ISSUE 2 ? 2008~ JSAdditionally, Hayner delineates the difference between trials and truth commissions based on the involvement?ANDhearing the defendant admit the truth publicly and acknowledge the suffering he caused.Theory DisclosureDebaters may only read positions that are disclosed before the debate on their NDCA wiki page under the correct side, their own name with full citations, tags, and first three/last three words.Debaters must disclose all possible disclosure theory interps on the wiki at least 30 minutes before the round.Neg cannot run a T interp that wasn’t checked with the Affirmative debater before the round.Theory All (includes prior topics)Neg may not defend conditional advocacies.If Neg critiques the Aff’s framing, they can’t turn the aff or make offensive arguments under the mindset they criticize.Neg cannot run a T interp that wasn’t checked with the Affirmative debater before the round.Debaters may not insert brackets containing their own language into evidence.Neg cannot read 3 or more T shells in the 1NC with competing interps and drop the debater.Debaters may not read cards from their opponent’s wiki unless they give their opponent credit for cutting them in the speech when the card is read.Debaters may not directly card Immanuel Kant.Negative debaters must disclose round reports on the NDCA wiki for what their past 2NRs were or tell their opponent what past 2NRs went for upon request.Debaters should read substantively justified frameworks grounded in a normative starting point to combat and understand pre-fiat oppression. Consistency with the best liberation strategy for the oppressed requires a debate where we explain what this oppression is, how we react to it, where our obligation to resist it comes from, and why it’s the most relevant impact. To clarify, my argument is not oppression is ok or saying oppression good is OK but that debating the justifications is inescapable from solving oppression.Neg must concede that Aff gets access to 1AR theory.Neg must read a unique framework.Neg must not read multiple theory shells, both with drop the debater and competing interpretations.Counterplans can’t do all or part of the aff action. To clarify, no PICs.Neg may not defend more than 1 conditional advocacy.If Neg fiats a shift from the status quo, they must fiat action by the same actor as the Aff.Neg may not read more than 3 off cases.Debaters must make all font in their speech docs size 8 or larger. To clarify, they cannot shrink the font of parts of cards that they’re not reading to be below size 8.2 North Hollywood JS Neg GodGod exists – five warrants.Aquinas ~St. Thomas Aquinas, Reprinted from Thomas Aquinas, "Summa Theologica," trans. Laurence Shapcote (London: O. P. Benziger Brothers, 1911)~ JSBrothers, 1911The First Way: The Argument From Change The existence of God can ANDnatural things are directed to their goal; and this we call God.God determines morality – anything else fails to resolve skeptical objections and means that morality doesn't exist.Craig ~William L. Craig, PhD in philosophy at University of Birmingham and Research Professor at Biola University, "The Indispensability of Theological Meta-ethical Foundations for Morality" Presented to the Christian Theological Research Fellowship Meeting at the AAR, November 1996~ JSConsider, then, the hypothesis that God exists. First, if God existsANDaid to survival and reproduction, …and any deeper meaning is illusory…God negates and supports plea bargaining – He offers plea deals that pardon individuals who accept.God's Courtroom ~No Date, "Plea Agreement," God's Courtroom, JSThe wonderful truth of the Bible is that God is offering a pardon from the ANDto receive a full and absolute pardon from the penalty of your sin.NC ParticularismSyllogismUniversal rules fail. Any application of rules can never be verified because rules are indeterminate, as they require prior knowledge to understand them, which can never be the basis for truth.Kripke "Wittgenstein on Rules and Private Language" by Saul A. Kripke Harvard University Press Cambridge, Massachusetts 1982"Normally, when we consider a mathematical rule such as addition, we think ANDTower, or a chair found there?. ." (17-20)If ethics cannot be based on rules, the ethical project must begin with practices. Unlike rules, practices are followed based on socially accepted procedures, as opposed to an indefinite number of rules.Mouffe "The Democratic Paradox" by Chantal Mouffe 2000 "This reveals that procedures only exist as complex ensembles of practices. Those practices ANDnot supported by a specific form of ethos." (68-69) An ethic based in a practice instead of rules require particularism. The virtuous character does not follow a rule that precedes and guides every context. In a particular context, the virtuous character acts for the right reasons, with the right motives, and at the right time. We agree on the goodness of virtues, and the particular context determines the conditions for virtuous decision making.Leibowitz PARTICULARISM IN ARISTOTLE'S NICOMACHEAN ETHICS * Uri D. Leibowitz University of Nottingham (Forthcoming in The Journal of Moral Philosophy)"Following Burnyeat (1980), I understand Aristotle here as engaged in a dialectical ANDmilitary option was available to resolve the conflict." (7-14)Thus, the standard is appealing to virtuous character clarified by the moral complexities of specific situations.FW HijacksParticularism is key to combatting oppression – root cause claims fail to understand specific instances of oppression and cannot guide action.Gregory Fernando Pappas ~Texas AandM University~ "The Pragmatists' Approach to Injustice", The Pluralist Volume 11, Number 1, Spring 2016. The pragmatists' approach should be distinguished from nonideal theories whose starting point seems to ANDin making us see aspects of injustices we would not otherwise appreciate.15Contention1. An absolute abolition is a violation of particularist thinking. The 1AC says plea bargaining should be universally abolished, which assumes a sufficient reason for the claim, but no single reason can account for the legitimacy of preventing every instance of bargaining, as per the framework. All advocacies must be made in relationship to particular instances.2. Plea bargaining is uniquely consistent with particularism because it acknowledges that there is no one-size-fits-all policy, so different bargains to change and re-apply the rule are a necessary check on generalist policies of the law – absolute applications cannot work.NC UtilThe standard is maximizing expected well-being. Prefer:1~ THEORY: ethical frameworks must be theoretically legitimate. Any standard is an interpretation of the word ought-thus framework is functionally a topicality argument about how to define the terms of the resolution. That also means theoretical reasons to prefer a framework come first because they set the terms for whether you can evaluate substance in the first place: we should probably exclude a trivialism skep aff for example. My framework interprets ought as maximizing happiness. Prefer this definition:A~ Ground: Both debaters are guaranteed access to ground to engage under util – ie Aff gets plans and advantages, while Neg gets disads and counterplans. Additionally, anything can function as a util impact as long as an external benefit is articulated, so all your offense applies. Other frameworks deny 1 side the ability to engage the other on both the impact level and the link level. Under util, both sides have access to defense and turn ground, so it's the most fair.B~ Topic Education – Util forces debates about what actually happens in the real world because we have to use empirics and analyze the consequences of the plan versus neg advocacy. This increases topic education because it forces research on the effects of the resolution and thus learn more about the topic. Topic education is key to education because we use it in the real-world to talk about current topics. Outweighs phi led on reversibility: we can learn about Kant on other topics or at camp but topical debate only happens now.2~ Actor specificity:A~ Governments must aggregate since every policy benefits some and harms others, which also means side constraints freeze action.B~ States lack wills or intentions since policies are collective actions.C~ No act-omission distinction—governments are responsible for everything in the public sphere so inaction is implicit authorization of action: they have to yes/no bills, which means everything collapse to aggregation.Actor-specificity comes first since different agents have different ethical standings. Takes out util calc indicts since they're empirically denied and link turns them because the alt would be no action.3~ Util is a lexical pre-requisite to any other framework:A~ Threats to bodily security and life preclude the ability for moral actors to effectively utilize and act upon other moral theories since they are in a constant state of crisis that inhibit the ideal moral conditions which other theories presuppose – so, util comes first and my offense outweighs theirs under their own framework.B~ The only way that we know an action is good or bad is through its results. A violation of a constraint might be bad because it results in treating someone as a means. Talking about how we can only know intent does nothing for you: consequentialists concede this, and speculate about end states based on the aims of the actions.4~ Use epistemic modesty for evaluating the framework debate: that means compare the probability of the framework times the magnitude of the impact under a framework. Prefer:A~ Substantively true since it maximizes the probability of achieving net most moral value—beating a framework acts as mitigation to their impacts but the strength of that mitigation is contingent.B~ Clash—disincentives debaters from going all in for framework which means we get the ideal balance between topic ed and phil ed—it's important to talk about contention-level offenseC~ Real world: in real life people constantly change their minds about credence between frameworks and compare and weigh those harms.CP 50 StatesCounterplan Text: The 50 states of the United States of America ought to abolish explicit and implicit plea bargaining in its criminal justice system.DA Cartels (Econ Impact)The drug market is booming and cartels are gaining influence – high demand.Davis 12/14 (Kristina, "Potency, purity of drugs reaching even higher levels" nAK)Methamphetamine When U.S. laws restricted the sale of precursor chemicals needed to ANDU.S. due to marijuana still being illegal under federal law.Plea deals are necessary to weaken cartels.O'Brien 8 ~Ann O'Brien, Senior Counsel to the Deputy Assistant Attorney General For Criminal Enforcement, 6-6-2008, "Cartel Settlements In The U.S. And EU: Similarities, Differences and Remaining Questions," Enforcement Antitrust Division, U.S. Department of Justice~ JSIn the U.S., early cooperators not only provide valuable evidence that the ANDbenefit to the Division that has no counterpart under the Commission's settlement procedure.Plea bargains are effective because they create momentum against the cartel in exchange for protections for those who agree to the deal.Hammond 06 ~Scott D. Hammond, Deputy Assistant Attorney General for Criminal Enforcement Antitrust Division, 10-17-06, "The U.S. System of Negotiated Plea Agreements: A Good Deal With Benefits for All," U.S. Department of Justice, JSAs discussed throughout this paper, the primary benefit that the prosecuting agency and the ANDincreasingly important cartel-detection and case-generation tool for the rmants are critical to stop cartels – they've taken down numerous cartels and they're the only check available in the squo.Thompson 11. Ginger Thompson, 10-24-2011, "U.S. Infiltrating Criminal Groups Across Mexico," New York Times, RSWASHINGTON — American law enforcement agencies have significantly built up networks of Mexican informants that ANDNothing provides that microscopic view more than a host that opens the door."Turns case – drug use in the US kills tens of thousands annually, which make it a form of systemic, structural violence – the number of deaths is only increasing as the opioid epidemic spreads to the East Coast.Katz 17 ~John Katz (graphics editor for The New York Times, where he covers politics, sports and culture for The Upshot, he studied political science and philosophy at Drew University and earned his master's degree in statistics from N.C. State University) 6-5-2017, "Drug Deaths in America Are Rising Faster Than Ever," New York Times, JSDrug overdose deaths in 2016 most likely exceeded 59,000, the largest annual AND, we estimate overdose deaths increased by more than 25 percent in 2016.The drug trade kills economic growth and stability.Chalk, 11 (Peter, Senior Political Scientist at RAND Corporation, Ph.D. in political science, University of British Columbia, M.A. in political studies and international relations, University of Aberdeen, "The Latin American Drug Trade Scope, Dimensions, Impact, and Response," RAND Project Air Force, , Tashma)The narcotics trade has also significantly impeded fiscal growth and stability by diverting scarce resources ANDall of society, either directly or indirectly through higher tax dollars.35Turns case – strong correlation between a weak economy and poverty – empirics prove.OECD GROWTH BUILDING JOBS AND PROSPERITY IN DEVELOPING COUNTRIES Research that compares the experiences of a wide range of developing countries finds consistently strong evidence that rapid and sustained growth is the single most important way to reduce poverty. A typical estimate from these cross-country studies is that a 10 per cent increase in a country's average income will reduce the poverty rate by between 20 and 30 per cent.1 The central role of growth in driving the speed at which poverty declines is confirmed by research on individual countries and groups of countries. For example, a flagship study of 14 countries in the 1990s found that over the course of the decade, poverty fell in the 11 countries that experienced significant growth and rose in the three countries with low or stagnant growth. Economic instability leads to nuclear war.Tonnesson 15 ~Stein Tonnesson, Research Professor, Peace Research Institute Oslo; Leader of East Asia Peace program, Uppsala University, 2015, "Deterrence, interdependence and Sino–US peace," International Area Studies Review, Vol. 18, No. 3, p. 297-311~Several recent works on China and Sino–US relations have made substantial contributions to ANDeach other, with a view to obliging Washington or Beijing to intervene.PIC CartelsCounterplan Text: The United States federal government should abolish all plea bargaining except for plea deals in cartel mon objections to plea bargaining don't apply to cartel cases – a few warrants.OECD 08 ~ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT , "Plea Bargaining and Settlement of Cartel Cases," September 2008, OECD~ JSAn extensive literature has criticized the use of plea bargaining in criminal cases, on ANDto disclose the most valuable information and may benefit from the greatest reward.PIC Child AbuseCounterplan Text: Plea bargaining ought to be abolished in the US criminal justice system except for in the case of alleged child abuse. Trials cause psychological violence, often end in acquittal, and create a cycle of abuse. And no solvency deficits—if victims want the case to go trial they still can. Wendel 99:Peter T. Wendel, ~Visiting Professor of Law, University of California at Los Angeles School of Law. B.A., 1979, University of Chicago; M.A., 1980, St. Louis University; J.D., 1983, University of Chicago. ~ "Case against Plea Bargaining Child Sexual Abuse Charges: Déjà Vu All over Again, The" Missouri Law Review Vol. 64, Issue 2 1999 REYet as a society, don't we have a duty to mitigate the harm to ANDmakes no sense to agree to a plea under such circumstances.u 3DA Court LegitimacySCOTUS ruled that plea bargaining is a right – there's no dispute.Brian Mcneill 12 ~Brown: Supreme Court Recognizes Key Role of Plea Bargaining in Criminal Justice System, 3-26-2012, University of Virginia School of Law, EDTwo close decisions in the U.S. Supreme Court last week could shake ANDby prosecutors and judges but still very much in their self-interest."Overruling previous decisions kills court legitimacy and causes backlash – the plan abolishes plea bargainingHubbart 5 – Adjunct professor of law in Miami (Phillip, "Making Sense of Search and Seizure law: A Fourth Amendment Handbook", 2005, pg. 106) Still, the framework of past Fourth Amendment decisions on a specific issue limits AND, as a practical matter, restrict the Court's decision-making process.Courts are key to check Trump – lack of legitimacy wrecks thatBeinart, Poli Sci Prof @ CUNY, 16 (Peter, Trump Takes Aim at the Independent Judiciary, ) Were Trump president, he'd have other methods of intimidation at his disposal. Instead ANDless public legitimacy they enjoy, the less they can check Trump's power.Great power war – only the courts can restrain nuclear escalation from Trump.Kinzer, Senior fellow at the Watson Institute for International and Public Affairs at Brown University, 8/18/2017Stephen, "It's far too easy for Donald Trump to start a nuclear warANDthat power would honor their memory while increasing the odds for humanity's survival.Loss of legitimacy undermines court authority.Tyler and Mitchell 14 ~Tom R. Tyler (Professor of Psychology, University of California at Berkeley) and Gregory Mitchell (Clerk to Judge Thomas A. Wiseman, Jr., Middle District of Tennessee. S.D., 1993, School of Law), University of California at Berkeley; M.A., 1990, Psychology, University of California at Berkeley) "LEGITIMACY AND THE EMPOWERMENT OF DISCRETIONARY LEGAL AUTHORITY: THE UNITED STATES SUPREME COURT AND ABORTION RIGHTS," DUKE LAW JOURNAL Vol. 43:703, February 1994~Discussions of judicial authority typically state that the first precondition for the effective functioning of ANDof officials, can legitimately undertake such a course of action. ' '46Precludes solvency – everybody will just ignore the court's ruling.Trump's transgender military ban was blocked by courts – loss of authority lets the ban go through.Stern 11/21 ~writer for Slate who Mark Joseph Stern, covers the law and LGBTQ issues, 11-21-2017, "Federal Judge Blocks Trump's Trans Troops Ban, Rules It "Shocks the Conscience"," Slate Magazine, JSAnother federal judge has concluded that President Donald Trump's ban on transgender military service is ANDthat's a very high standard, Garbis asserted that Trump's ban surpassed it.DA Crime (SoPo impact)Organized crime in the US is not going down anytime soon and pose threats, but it is manageable for the meantime.Kristin M. Finklea 10 (Analyst in Domestic Security). "Organized Crime in the United States: Trends and Issues for Congress". Congressional Research Service. Dec. 22, 2015. As mentioned, organized crime in the United States has taken on an increasingly transnational ANDindustries that have been and may continue to be threatened by organized crime.Plea bargaining is key to deterring crime – it allows proper allocation of resources and produces key testimony.Turner 17 ~Jenia I. Turner, Plea Bargaining, Academy For Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming, SMU Dedman School of Law Legal Studies Research Paper No. 348~As the Supreme Court recently acknowledged, in the U.S., "criminal ANDto accept responsibility and by leading to the swifter imposition of punishment.9This turns case – increasing crime rates kills CJS reformWillick 15 "Violent Crime Wave Could Swamp Prison Reform", American Interest 2015, aren't criminologists at Via Meadia, so we won't wade into the fierce debate ANDboom may be. Posted: Sep 2, 2015 9:11 AMCrime tanks US soft power.Falk 12 Richard (United Nations Special Rapporteur on Palestinian human rights) "When soft power is hard" Al Jazeera July 28th 2012 unabashed avowal of imperial goals is the main thesis of the article, perhaps ANDappear that the adage, "disease unknown, cure unknown", applies.Soft power is key to solve extinction.Lagon 11 Mark P. (International Relations and Security Chair at Georgetown University's Master of Science in Foreign Service Program and adjunct senior fellow at the Council on Foreign Relations. He is the former US Ambassador-at-Large to Combat Trafficking in Persons at the US Department of State) "The Value of Values: Soft Power Under Obama" 2011. Despite large economic challenges, two protracted military expeditions, and the rise of ChinaANDand soft power better than the United States, something is seriously amiss.DA GitmoLong-distance plea bargains are the only way to close GuantanamoDenniston '16 (Lyle, "Constitution Check: Is plea bargaining a step toward closing Guantanamo?", May 19, 2016, )The Guantanamo population, though, has come down in recent years, as a ANDany of the sentence they got – which is what Congress apparently wants.Trump's approach wrecks counterterrorism cooperation—Guantanamo is THE symbol of the war on terror—signaling a commitment to close Guantanamo is keyGeltzer 17, senior director for counterterrorism at the National Security Council from 2015 to 2017(JOSHUA A., JUL 19, 2017, "Is Closing Guantanamo Still Conceivable?", )Trump's Guantanamo policy is a microcosm of his approach to so much, particularly in ANDwhatever his rhetoric professes, leave the country less safe—not more.International cooperation key to defeat terrorismZhen 17, associate professor of international studies at the Shanghai Academy of Social Sciences (SASS), currently director of the Security Studies Program at the SASS Institute of China Studies(Dr. Wang, "China-US Counter-terrorism Cooperation", 27/02/2017, )Because the international War on Terror has obviously "depression effects", a lack of ANDof a "global village" means we are all in this together.Middle East extremism threatens the world order—escalates to great power warKagan et al. 16, Christopher DeMuth Chair and director of the Critical Threats Project at AEI(1/1/2016, Frederick, "AL QAEDA AND ISIS: EXISTENTIAL THREATS TO THE U.S. AND EUROPE", )CONCLUSIONDescriptions of the danger confronting the United States and our European allies may ANDconducive to our safety, security, values, and way of life.PIC GitmoCounterplan Text: The United States federal government ought to engage in negotiation over proposed plea bargains with Guantanamo detainees through videoconferencing. The United States federal government ought to transfer such detainees, if they plead guilty, to other countries to serve resulting sentences. The United States federal government ought to abolish all other plea bargaining in the United States criminal justice system.K Util BadThe appeal to util makes debate unsafe, since the logic of "the end justifies the means" can justify any reprehensible action.Anderson: Anderson, Kerby. ~National Director of Probe Ministries International~ "Utilitarianism: The Greatest Good for the Greatest Number." Probe, 2004. RPOne problem with utilitarianism is that its leads to an 'end justifies the means' ANDthe mechanism used to judge the action itself. Inviolability is intrinsically valuable.Debate shouldn't center on util, since it inherently excludes minority debaters – the empirical application in rounds has harmed minorities.Vincent '13: Vincent, Christopher. ~Debate Coach~ "Re-Conceptualizing Our Performances: Accountability In Lincoln Douglas Debate" Victory Briefs, 2013. RPCharles? Mills argues that 'the moral concerns of African Americans have centered on ANDreflect the beliefs that we hold when we go back to our communities. That's a voting issue – discourse in round matters – educators must take a stance against oppression in the activity – we can't divorce the flow from our performance. You don't get to weigh your framing at all.Vincent 2:– (Christopher ~Debate Coach, former college NDT debater~ "Re-Conceptualizing Our Performances: Accountability In Lincoln Douglas Debate" Charles Mills argues that "the moral concerns of African Americans have centered on the ANDcolor, and in turn destroy the transformative potential this community could have.K Tuck & YangThe aff tries to solve indigenous harms within academia, using the debate space to portray suffering of specific individuals.Their call for exploration of indigenous suffering is tainted by the academia in which it takes placeTuck and Yang: Tuck, Eve and Wayne, K. Yang Assistant Professor of Educational Foundations, SUNY New Paltz and Assistant Professor of Ethnic Studies at UC San Diego "R-Words: Refusing Research" Humanizing Research. 2014. RP Research is a dirty word among many Native communities (Tuhiwai Smith, 1999), ANDof justice and truth. (Simpson, 2007, p. 74) The 1AC is methodological ventrilioquism – academic spaces speak for the indigenous and decide what's in their interestTuck and Yang: Tuck, Eve and Wayne, K. Yang Assistant Professor of Educational Foundations, SUNY New Paltz and Assistant Professor of Ethnic Studies at UC San Diego "R-Words: Refusing Research" Humanizing Research. 2014. RP One major colonial task of social science research that has emerged is to pose as AND2010, p. 8) takes the shape of a pain narrative. Research forces the indigenous to present themselves as weak to get white sympathy, denying agency.Tuck and Yang: Tuck, Eve and Wayne, K. Yang Assistant Professor of Educational Foundations, SUNY New Paltz and Assistant Professor of Ethnic Studies at UC San Diego "R-Words: Refusing Research" Humanizing Research. 2014. RP Elsewhere, Eve (Tuck, 2009, 2010) has argued that educational research ANDcommunities are left with a narrative that tells them that they are broken. The alternative – refuse the call to research indigenous scholarship in academic spaces – that's a rejection of damage-centered research in favor of desire-based onesTuck and Yang: Tuck, Eve and Wayne, K. Yang Assistant Professor of Educational Foundations, SUNY New Paltz and Assistant Professor of Ethnic Studies at UC San Diego "R-Words: Refusing Research" Humanizing Research. 2014. RP Alongside analyses of pain and damage-centered research, Eve (Tuck 2009, AND. 14). Desire interrupts this metanarrative of damaged communities and White progress.T TopicThe word "resolved" in the res means that Aff must defend the implementation a policy that abolishes plea bargaining in the US.Parcher ~Jeff Parcher. Former Debate Coach – Georgetown. February 2001. JS(1) Pardon me if I turn to a source besides Bill. American ANDor 'no' – which, of course, are answers to a question.Theory DisclosureDebaters may only read positions that are disclosed before the debate on their NDCA wiki page under the correct side, their own name with full citations, tags, and first three/last three words.Debaters must disclose all possible disclosure theory interps on the wiki at least 30 minutes before the round.Theory All (incl. prior topics)If the Aff defends national service through “other related community service agencies,” they must state in their 1AC what the agencies are.Aff must include an advocacy in their 1AC that states what they advocate for.Debaters may not read Deleuzian and/or Guattarian arguments.Debaters may not insert brackets containing their own language into evidence unless it is to remove gendered language.Debaters may not insert brackets containing their own language into evidence.On the 2017 November December Lincoln Douglas resolution, debaters must choose a specific nation or group of nations to provide development assistance.If debaters read a plan with a solvency advocate, the plan text must defend the advocacy that their solvency advocate defends. To clarify, you don’t have to defend the exact same wording as your solvency advocate, but every plank of the advocacy must be warranted by the advocate, and everything that the advocate warrants must be included in the plan text.Aff must clarify what types of cases plea bargaining is abolished in in a delineated text in the 1AC.3 Dougherty KK Aff StockContention 1 is Innocent People:Plea bargains and overcriminalization feed upon each other – efficiency of plea bargains incentivizes more prosecutions. The system allows prosecutors to coerce defendants, including innocents, into pleading guilty.Dervan 11 (Lucian E., Assistant Professor of Law, Southern Illinois University School of Law, and former member of the King and Spalding LLP Special Matters and Government Investigations Team. Special thanks to the Professors Ellen Podgor and Jeffrey Parker, the Journal of Law, Economics and Policy, the Law and Economics Center at George Mason University, the National Association of Criminal Defense Lawyers, and the Foundation for Criminal Justice), “OVERCRIMINALIZATION 2.0: THE SYMBIOTIC RELATIONSHIP BETWEEN PLEA BARGAINING AND OVERCRIMINALIZATION”, accessed from , 8-24-2011 AS- possible framing argument against the CP – the very existence of plea bargaining protects overcriminalization from scrutiny – the cp’s defense of plea bargaining takes away scrutiny to system as a whole, which is plea bargaining itself- example of the Computer Associates company is where the criminal justice system creates new interpretations of laws to criminalize people for the sake of criminalizing them- stats prove – over half the amount of people jailed in 1912 were jailed by reasons that didn’t exist just 25 year before. Along with this was the use of plea bargain increase from 50- 90 percent In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.”1 If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95 of defendants in the federal criminal justice system succumb to the power of bargained justice.2 As such, while Professor Ribstein pays tribute to plea bargaining, this piece provides a more detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence. To illustrate the co-dependent nature of plea bargaining and overcriminalization, consider what it would mean if there were no plea bargaining. Novel legal theories and overly-broad statutes would no longer be tools merely for posturing during charge and sentence bargaining, but would have to be defended and affirmed both morally and legally at trial. Further, the significant costs of prosecuting individuals with creative, tenuous, and technical charges would not be an abstract possibility used in determining how great of an incentive to offer a defendant in return for pleading guilty. Instead, these costs would be a real consideration in determining whether justice is being served by bringing a prosecution at all. Similarly, consider the significant ramifications that would follow should there no longer be overcriminalization. The law would be refined and clear regarding conduct for which criminal liability may attach. Individual benefits, political pressure, and notoriety would not incentivize the invention of novel legal theories upon which to base liability where none otherwise exists, despite the already expansive size of the United States criminal code. Further, novel legal theories and overly-broad statutes would not be used to create staggering sentencing differentials that coerce defendants, even innocent ones, to falsely confess in return for leniency. As these hypothetical considerations demonstrate, plea bargaining and overcriminalization perpetuate each other, as plea bargaining shields overcriminalization from scrutiny and overcriminalization creates the incentives that make plea bargaining so pervasive. For example, take the novel trend toward deputizing corporate America as agents of the government, as illustrated in the case of Computer Associates.3 In 2002, the Department of Justice and the Securities and Exchange Commission began a joint investigation regarding the accounting practices of Computer Associates, an Islandia, New York-based manufacturer of computer software.4 Almost immediately, the government requested that Computer Associates perform an internal investigation.5 As has been noted by numerous commentators, such internal investigations provide invaluable assistance to the government, in part because corporate counsel can more easily acquire confidential materials and gain unfettered access to employees.6 Complying with the government’s request, Computer Associates hired an outside law firm.7 What happened next was both typical and atypical: Shortly after being retained in February 2002, the Company’s Law Firm met with the defendant Sanjay Kumar former CEO and chairman of the board and other Computer Associates executives including Stephen Richards, former head of sales, in order to inquire into their knowledge of the practices that were the subject of the government investigations. During these meetings, Kumar and others did not disclose, falsely denied and otherwise concealed the existence of the 35-day month accounting practice. Moreover, Kumar and others concocted and presented to the company’s law firm an assortment of false justifications, the pur-pose of which was to support their false denials of the 35-day month practice. Kumar and others knew, and in fact intended, that the company’s law firm would present these false justifications to the United States Attorney’s Office, the SEC and the FBI so as to obstruct and impeded (sic) the government investigations. For example, during a meeting with attorneys from the company’s law firm, the defendant Sanjay Kumar and Ira Zar discussed the fact that former Computer Associates salespeople had accused Computer Associates of engaging in the 35-day month practice. Kumar falsely denied that Computer Associates had engaged in such a practice and suggested to the attorneys from the company’s law firm that because quarterly commissions paid to Computer Associates salespeople regularly included commissions on license agreements not finalized until after end of quarter, the salespeople might assume, incorrectly, that revenue associated with those agreements was recognized by Computer Associates within the quarter. Kumar knew that this explanation was false and intended that the company’s law firm would present this false explanation to the United States Attorney’s Office, the SEC and the FBI as part of an effort to persuade those entities that the accusations of the former salespeople were unfounded and that the 35-day month practice never existed.8 The interviewing of employees by private counsel as part of an internal investigation is common practice and few would be surprised to learn that employees occasionally lie during these meetings. Further, information gathered during internal investigations is often passed along to the government in an effort to cooperate.9 What was uncommon in the Computer Associates situation, however, was the government’s response to the employees’ actions. Along with the traditional host of criminal charges related to the accounting practices under investigation, the government indicted Kumar and others with obstruction of justice for lying to Computer Associates’ private outside counsel.10 According to the government, the defendants “did knowingly, intentionally and corruptly obstruct, influence and impede official proceedings, to wit: the Government Investigations,” in violation of 18 U.S.C. § 1512(c)(2).11 This novel and creative use of the obstruction of justice laws, which had recently been amended after the collapse of Enron and the passage of Sarbanes–Oxley, was ill-received by many members of the legal establishment.12 Echoing the unease expressed by the bar, Kumar and his codefen-dants challenged the validity of the government’s creative charging decision and filed a motion to dismiss.13 The district court responded by denying the defendants’ motion without specifically addressing their concerns about the government’s interference with the attorney–client privilege.14 The stage was thus set for this important issue to make its way to the U.S. Court of Appeals for the Second Circuit (and, perhaps, eventually the U.S. Supreme Court) for guidance on the limits of prosecutorial power to manipulate the relationships among a corporation, its employees, and its private counsel. Unfortunately, despite the grave concerns expressed from various corners of the legal establishment about the obstruction of justice charges in the Computer Associates case, the appellate courts never had the opportunity to scrutinize the validity of this novel and heavily criticized expansion of criminal law. The government’s new legal theory went untested in the Computer Associates case due to the symbiotic relationship between plea bargaining and overcriminalization. Three of the five defendants in the Computer Associates case pleaded guilty immediately, while Kumar and Stephens gave in to the pressures of plea bargaining two months after filing their unsuccessful motion to dismiss before the district court.15 As might be expected in today’s enforcement environment, not even the corporation challenged the government in the matter. Computer Associates entered into a deferred prosecution agreement that brought the government’s investigation to an end. 16 Once again, overcriminalization created a situation where the defendants could be charged with obstruction of justice and presented with significant incentives to plead guilty, while plea bargaining ensured these novel legal theories would go untested. Given the symbiotic existence of plea bargaining and overcriminalization, perhaps the answer to overcriminalization does not lie solely in changing imperfect prosecutorial incentives or changing the nature of corporate liability—it may also lie in changing the game itself.17 Perhaps the time has come to reexamine the role of plea bargaining in our criminal justice system. While the right to plead guilty dates back to English common law, the evolution of plea bargaining into a force that consumes over 95 of defendants in the American criminal justice system mainly took place in the nineteenth and twentieth centuries.18 In particular, appellate courts after the Civil War witnessed an influx of appeals involving “bargains” between defendants and prosecutors. 19 While courts uniformly rejected these early attempts at bargained justice, deals escaping judicial review continued to be struck by defendants and prosecutors.20 By the turn of the twentieth century, plea bargaining was on the rise as overcriminalization flourished and courts became weighed down with evergrowing dockets.21 According to one observer, over half of the defendants in at least one major urban criminal justice system in 1912 were charged with crimes that had not existed a quarter century before.22 The challenges presented by the growing number of prosecutions in the early twentieth century accelerated with the passage of the Eighteenth Amendment and the beginning of the Prohibition Era.23 To cope with the strain on the courts, the symbiotic relationship between overcriminalization and plea bargaining was born: Federal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total of all pending federal prosecutions in 1914. In a number of urban districts the enforcement agencies maintain that the only practicable way of meeting this situation with the existing machinery of federal courts . . . is for the United States Attorneys to make bargains with defendants or their counsel whereby defendants plead guilty to minor offenses and escape with light penalties.24 In return for agreeing not to challenge the government’s legal assertions and for assisting in lessening the strain created by overcriminalization, defendants were permitted to plead guilty to reduced charges and in return for lighter sentences.25 The strategy of using plea bargaining to move cases through the system was effective, as the number of defendants relieving the government of its burden at trial swelled. Between the early 1900s and 1916, the number of federal cases concluding with a guilty plea rose sharply from 50 to 72.26 By 1925, the number had reached 90.27 By 1967, the relationship between plea bargaining and overcriminalization had so solidified that even the American Bar Association (ABA) proclaimed the benefits of bargained justice for a system that remained unable to grapple with the continued growth of dockets and the criminal code.28 The ABA stated: A high proportion of pleas of guilty and nolo contendere does benefit the system. Such pleas tend to limit the trial process to deciding real disputes and, consequently, to reduce the need for funds and personnel. If the number of judges, courtrooms, court personnel and counsel for prosecution and defense were to be increased substantially, the funds necessary for such increases might be diverted from elsewhere in the criminal justice process. Moreo-ver, the limited use of the trial process for those cases in which the defendant has grounds for contesting the matter of guilt aids in preserving the meaningfulness of the presumption of innocence. 29 Interestingly, although plea bargaining had gained widespread approval by the 1960s, the U.S. Supreme Court had yet to rule on the constitutionality of bargained justice. Finally, in 1970, the Court took up Brady v. United States,30 a case decided in the shadows of a criminal justice system that had grown reliant on a force that led 90 of defendants to waive their right to trial and confess their guilt in court.31 In Brady, the defendant was charged under a federal kidnapping statute that allowed for the death penalty if a defendant was convicted by a jury.32 This meant that defendants who pleaded guilty could avoid the capital sanction by avoiding a jury verdict altogether.33 According to Brady, this statutory incentive led him to plead guilty involuntarily for fear that he might otherwise be put to death.34 The Brady Court, however, concluded that it is permissible for a criminal defendant to plead guilty in exchange for the probability of a lesser punishment, 35 a ruling likely necessitated by the reality that the criminal justice system would collapse if plea bargaining was invalidated. While the Brady decision signaled the Court’s acceptance of plea bargaining, it contained an important caveat regarding how far the Court would permit prosecutors to venture in attempting to induce guilty pleas. In Brady’s concluding paragraphs, the Court stated that plea bargaining was a tool for use only in cases where the evidence was overwhelming and the defendant, unlikely to succeed at trial, might benefit from the opportunity to bargain for a reduced sentence,36 a stance strikingly similar to the ABA’s at the time. 37 According to the Court, plea bargaining was not to be used to overwhelm defendants and force them to plead guilty where guilt was uncertain: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 avoidance 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.38 According to the Court, if judges, prosecutors, and defense counsel failed to observe these constitutional limitations, the Court would be forced to reconsider its approval of the plea bargaining system altogether: 39 This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.40 Unfortunately, evidence from the last forty years shows that Brady’s attempt to limit plea bargaining has not been successful. For example, as Professor Ribstein noted, today even innocent defendants can be persuaded by the staggering incentives to confess one’s guilt in return for a bargain.41 Importantly, this failure of the Brady limitation is due in part to the fact that overcriminalization, the phenomenon that initially created swelling dockets and the need for plea bargaining, makes creating the incentives to plead guilty easy by propagating a myriad of broad statutes from which staggering sentencing differentials can be created. All the while, plea bargains prevent these incentives, sentencing differentials, and, in fact, overcriminalization itself, from being reviewed. 42 Plea bargaining’s drift into constitutionally impermissible territory under Brady’s express language indicates the existence of both a problem and an opportunity. The problem is that the utilization of large sentencing differentials based, at least in part, on novel legal theories and overly-broad statutes, results in increasingly more defendants pleading guilty. Despite the ever-growing number of Americans captured by the criminal justice system through an increasingly wide application of novel legal theories and overly-broad statutes, these theories and statutes are seldom tested. No one is left to challenge their application—everyone has pleaded guilty instead. The opportunity is to challenge plea bargaining and reject arguments in favor of limitless incentives that may be offered in exchange for pleading guilty. This endeavor is not without support; Brady itself is the guide. By focusing on changing the entire game, it may be possible to restore justice to a system mired in posturing and negotiation about charges and assertions that will never be challenged in court. Such a challenge may also slow or even reverse the subjugation of Americans to the costs, both social and moral, of overcriminalization—plea bargaining’s unfortunate mutualistic symbiont.Hundreds of thousands of innocent people go to Jail – best evidence.Rakoff 14 Jed S. Rakoff, 11-20-2014, "Why Innocent People Plead Guilty," New York Review of Books, AReadye- up to 160 thousand individuals could be guilty and in prison – 8 * 2 million = 160kThe Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict. 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 determined by the prosecutor alone. In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because 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. While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less. It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review. After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials. The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime. Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor. All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place. At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them. In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors. One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since. The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts. The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case. Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case. 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 jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor 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 prosecutor recommends. But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision. The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years. Although under pressure to agree to the first plea bargain offered, prudent defense counsel will try to convince the prosecutor to give her some time to explore legal and factual defenses; but the prosecutor, often overworked and understaffed, may not agree. Defense counsel, moreover, is in no position to abruptly refuse the prosecutor’s proposal, since, under recent Supreme Court decisions, she will face a claim of “ineffective assistance of counsel” if, without consulting her client, she summarily rejects a plea bargain simply as a negotiating ploy. Defense counsel also recognizes that, even if she thinks the plea bargain being offered is unfair compared to those offered by other, similarly situated prosecutors, she has little or no recourse. An appeal to the prosecutor’s superior will rarely succeed, since the superiors feel the need to support their troops and since, once again, the prosecutor can shape the facts so as to make his superior find his proposed plea acceptable. And there is no way defense counsel can appeal to a neutral third party, the judge, since in all but a few jurisdictions, the judiciary is precluded from participating in plea bargain negotiations. In a word, she and her client are stuck. Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a “contract of adhesion” in which one party can effectively force its will on the other party. As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right—well over two million are there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well. A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result? The answer may be found in Jefferson’s perception that a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-determined plea bargaining invites the following objections. First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged? Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner. Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas. It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea. Every criminal defense lawyer (and I was both a federal prosecutor and a criminal defense lawyer before going on the bench) has had the experience of a client who first tells his lawyer he is innocent and then, when confronted with a preview of the government’s proof, says he is guilty. Usually, he is in fact guilty and was previously lying to his lawyer (despite the protections of the attorney–client privilege, which many defendants, suspicious even of their court-appointed lawyers, do not appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is guilty when in fact he is not, because he has decided to “take the fall.” In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are. Indeed, in situations in which the prosecutor and defense counsel themselves recognize that the guilty plea is somewhat artificial, they will have jointly arrived at a written statement of guilt for the defendant to read that cleverly covers all the bases without providing much detail. The Supreme Court, for its part, has gone so far (with the Alford plea of 1970) as to allow a defendant to enter a guilty plea while factually maintaining his innocence. While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent 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 innocent but also could be proven so. Research indicates that young, unintelligent, 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 similar 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. How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit. What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys. Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk. I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation. As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination. The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases. Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program. I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying.This disproportionally affects racial minorities – discretionary prosecutions like plea bargaining promote racial bias Smith and Levinson 12-7 Robert J. Smith and Justin D. Levinson, 12-7-2017, "Implicit Racial Bias Can Operate in Every Phase of Prosecutorial Discretion," Race, Racism and the Law, CSMost criminal cases are resolved by plea bargain, where the defendant admits guilt in exchange for a reduced charge (or a lesser sentencing recommendation). Unlike the disclosure of exculpatory evidence, plea-bargaining is subject to almost zero oversight. We have argued that, in several contexts, implicit racial bias thrives in the midst of discretionary determinations. Plea-bargaining is no exception. Consider a sampling of four "factors" among those the Department of Justice instructs federal prosecutors to consult in deciding whether to pursue a bargained disposition: (1) "The nature and seriousness of the offense or offenses charged"; (2) "the defendant's remorse or contrition and his willingness to assume responsibility"; (3) "the public interest in having the case tried rather than disposed of by a guilty plea"; and (4) "the expense of trial and How might the defendant's (or the victim's) race have an impact on the prosecutor's decision whether to offer a plea bargain, and if a plea is in fact offered, how much of a charging reduction will be offered in exchange for the guilty plea? First, consider prosecutors' assessment of the "seriousness of the offense charged." Imagine a domestic violence case where a man severely abuses his spouse. Does it matter if the spouse is black? Imagine white prosecutors deciding whether to offer the suspect a plea deal on a misdemeanor battery charge. As the prosecutors attempt to quantify the seriousness of the offense, they might not be able to empathize with the fear and pain of a black woman as much as they could empathize with a white woman subjected to domestic abuse. This phenomenon is known as "in-group favoritism," which is defined as "our tendency to favor the groups we belong Justice Scalia might use the term in-group favoritism to label the "undeniable reality" he described in his dissent in Powers v. Ohio"that all groups tend to have particular sympathies ... toward their own group There is experimental support for the existence and power of ingroup favoritism, or bias, as it relates to empathizing with a victim. Alessio Avenanti used a method called transcranial magnetic stimulation (TMS) to measure corticospinal activity level in participants who viewed short video clips of a needle entering into the hand of either a lightskinned or dark-skinned person. Consistent with the in-group empathetic-bias explanation, Avenanti found that region-specific brain activity levels were higher when Caucasian-Italian participants viewed the clip of a light-skinned participant experiencing pain than when they saw a clip of a dark-skinned target being subjected to pain. Returning to the white prosecutors trying to assess the seriousness of the domestic abuse suffered by a black woman, prosecutors might undervalue the extent of the harm caused by the abuse relative to the harm that they would consider a similarly situated white woman--perhaps someone who reminds them of their mothers, sisters, or daughters--to have suffered. The defendant's race (as well as the victim's race) can also influence the plea-bargaining process. Imagine a prosecutor trying to determine whether to offer a defendant a plea to manslaughter (and thus a term of years) or to proceed to trial to try to obtain a second-degree murder conviction (and thus, in many jurisdictions, life without parole). Whether "the public interest" is satisfied by a plea bargain (as opposed to going to trial where the defendant could receive a harsher sentence) and whether "the expense of trial" is worth it turn on how the prosecutor views the defendant. Is this person dangerous and thus likely to commit a future crime? As a white prosecutor reviews the case file of a young white defendant, the prosecutor might be unknowingly affected by positive implicit stereotypes relating to lawfulness and trustworthiness. This could lead to a more lenient evaluation of the defendant--troubled, but not a bad person, for example--and thus a plea offer is more likely to follow. As we have well-covered by now, the opposite will be true when the prosecutor views a black defendant; the prosecutor's mind will likely trigger automatic associations between the defendant and the concepts of violence and hostility. On a related point, as the prosecutor attempts to determine the degree of remorse the defendant has displayed (for example, during plea negotiations), the stereotype that black citizens are less fully human might render the prosecutor less able to detect remorse from a defendant's body language or more likely to reject a black defendant's apology as self-serving or otherwise not genuine. So too might the stereotypes that black citizens are violent, hostile, and prone to criminality have an impact on the degree of remorse that the prosecutor is able to detect in a defendant.Incarceration ruins innocent people’s lives – it’s a positive feedback loop that encourages crime and destroys livesSchrager 15 (Allison Schrager, I graduated from the University of Edinburgh and have a PhD in economics from Columbia University where I specialized in macroeconomics and public finance. I create solutions to make individual pension accounts work for the average investor) "In America, mass incarceration has caused more crime than it’s prevented", accessed from on 12-8-2017. Written 7-22-2015. AS- forces minorities to become career criminalsLast week, president Obama vowed to end mass incarceration, the imprisonment of 2.2 million Americans. He’s commuted the sentences of 46 drug offenders—but ending the practice will require a major policy change at the state and federal level. The sooner this is done, the better. Evidence from the last 40 years suggests the mass imprisonment policy was a tragic failure. Putting more people in prison not only ruined lives, it may have created more new crime than it prevented. There are five times as many people in prison today—nearly 5 of the population will be imprisoned at some point—as there were in the 1970s. The increase in crime during the 1960s and ’70s motivated Americans to get tough on crime, which took several forms. The most striking of these was putting lots of people in prison. Imprisonment is supposed to reduce crime in two ways: it takes criminals off the street so they can’t commit new crimes (incapacitation) and it discourages would-be criminals from committing crime (deterrence). But neither of these outcomes came to pass. A new paper from University of Michigan economics professor Michael Mueller-Smith measures how much incapacitation reduced crime. He looked at court records from Harris County, Texas from 1980 to 2009. Mueller-Smith observed that in Harris County people charged with similar crimes received totally different sentences depending on the judge to whom they were randomly assigned. Mueller-Smith then tracked what happened to these prisoners. He estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6 a quarter. Even people who went to prison for lesser crimes wound up committing more serious offenses subsequently, the more time they spent in prison. His conclusion: Any benefit from taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals. High recidivism rates are not unique to Texas: Within 5 years of release more than 75 of prisoners are arrested again. Why does prison turn people into career criminals? Prison obliterates your earnings potential. Being a convicted felon disqualifies you from certain jobs, housing, or voting. Mueller-Smith estimates that each year in prison reduces the odds of post-release employment by 24 and increases the odds you’ll live on public assistance. Time in prison also lowers the odds you’ll get or stay married. Being in prison and out of the labor force degrades legitimate skills and exposes you to criminal skills and a criminal network. This makes crime a more attractive alternative upon release, even if you run a high risk of returning to prison. You could argue prison is still worth it if long sentences discouraged people from committing crime in the first place. Mueller-Smith estimates a one-year prison sentence would only be worth it (in terms of prison cost and forgone economic potential) if it deterred at least 0.4 fewer rapes, 2.2 assaults, 2.5 robberies, 62 larcenies or prevented 4.8 people from becoming a habitual drug user. And the deterrent effect is not this powerful—not even close. Contention 2 is Solvency:Plan Text: The United States federal government ought to abolish plea bargaining in its criminal justice system.Solvency advocate- it’s modelled after Alaska’s abolition of plea bargaining.Fine 87 (Ralph Adam, American judge, author, and television personality who served on the Wisconsin Court of Appeals from 1988-2014) "Plea Bargaining: An Unnecessary Evil", accessed from on 12-2-2017 ASA. We Should Abolish Plea Bargaining Plea bargaining exists only because it is thought to be essential to the efficient functioning of the criminal justice system: "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system."59 The experiences of Alaska, Ventura County, Oakland County, New Orleans and Judge O'Farrell prove that it is not essential. Perhaps Judge Stern put it best when he compared the system of plea bargaining to a "fish market" that "ought to be hosed down." 60 We do not need plea bargaining - we should not tolerate it. Abolition, however, will require work and dedication. As Robert C. Erwin, then Associate Justice of the Alaskan Supreme Court, told Professor Alschuler in a June, 1976 interview: A no-plea-bargaining policy forces the police to investigate their cases more thoroughly. It forces prosecutors to screen their cases more rigorously and to prepare them more carefully. It forces the courts to face the problem of the lazy judge who comes to court late and leaves early, to search out a good presiding judge, and to adopt a sensible calendaring system. All of these things have in fact happened here., 6 1 They can happen everywhere as well, if those in the system only try. As Judge Stern told me, recalling his days as a federal prosecutor, "It worked for me, and I tell you, it would work for anybody."6 B. A Proposal First, there should be no reduction of a charge unless the prosecutor can demonstrate, and the judge can specifically find on the record, that: (1) There are facts that were unknown to the prosecutor at the time the charge was issued that make a new charge more appropriate or (2) There are other circumstances that may militate against going to trial.64 Second, the prosecutor should certify, on the record, that the charging decision was not based on a defendant's willingness to plead guilty but on his or her independent evaluation of the facts, including any circumstances that may militate against going to trial. Third, the prosecutor should certify, on the record at sentencing, that the recommendation, if any, is based on the prosecutor's independent evaluation of the facts and not a quidpro quo for a guilty plea, except where there are other circumstances that may militate against going to trial.It’s a new policy, but data supports the claim that abolishing plea bargaining solvesSavitsky 9 Douglas, 8-7-2009, “Plea Bargaining as a Cause of Racial Disparity,” Paper at Am. Sociological Assoc. Annual Meeting CSEvidence In the interest of space, the evidence supporting the theory of plea bargaining will be kept to a minimum. The most direct way to test the model would be to simply eliminate plea bargaining in a district and see the outcome. During the 1970's a small number of districts did in fact eliminate plea bargaining. For instance, the State of Alaska's Attorney General's office banned plea bargaining beginning in 1975 for a period of several years (Rubenstein and White 1979). Additionally, beginning in 1976 the city of El Paso, Texas, due to a conflict between the criminal court judges and the district attorney's office, effectively banned many types of plea bargaining (Weninger 1987). Other districts flirted with such bans as well, such as an unnamed county in the Midwest (Church 1976) as well as several others. The results of these “quasi experiments” are mixed, and in many cases difficult to analyze. This is in part because the data sets are limited, in part because much of the data has been lost over the years, and in part because the analyses done in the 1970's and 1980's do not cover the variables necessary to ascertain the questions at issue in this project. As such, only a meta-analysis of the existing reported findings is possible. In general, even with those caveats, dispositions in low level and borderline cases were reduced. The most interesting, and perhaps most directly relevant study, is from Hampton County, 6 “a suburban county located adjacent to a major midwest sic industrial city” (Church 1976). In his 1976 study, Thomas Church examined the effects of the policies implemented by a newly elected county prosecutor. The prosecutor, in an effort to get tough on drug dealers, instituted a policy whereby once a warrant was issued in a drug case, the prosecutor's office was prohibited from lowering the charge. This effectively eliminated plea bargaining in the district as so-called charge bargaining was the preeminent form of plea bargaining. Additionally, after 6 Hampton County is a fictitious name. In a conversation with the author, Hampton County was revealed to be located in Michigan. In the first year of the policy, the prosecutor's office added armed robbery and carrying a concealed weapon to the list of charges for which plea bargaining was prohibited. While the numbers are small, the data clearly shows a trend where total prosecutions are reduced, and the lion’s share of the reduction is culled from low level crimes such as drug crimes. From 1972 to 1974, the rate of guilty pleas in drug cases dropped from 98 to 90, and the number of trials increased from 2 to 4. Most importantly, however, the number of total warrants in these cases dropped by 62 from 109 to 41 while the numbers of warrants for other crimes stayed relatively steady. Indeed, it appears that the numbers of total drug dispositions were reasonably constant before the ban as well as after, except for the huge one time drop. Results from Alaska’s statewide ban are slightly less conclusive, though they are still generally supportive. Prosecutions in severe and violent crimes stayed relatively constant after the plea bargaining ban, with prosecutions in burglary, larceny, and similar property crimes actually increasing. However, prosecutions in fraud, and embezzlement dropped by almost half and prosecutions in drug cases dropped by nearly a quarter. Interestingly, rates of guilty pleas stayed relatively high. Thus, while the data necessary to the current project was not explicitly collected or reported, the data that does exist is generally supportive of the hypothesis.Abolishing plea bargaining doesn’t clog courts – Alaska provesFine 87 (Ralph Adam, justice on the Wisconsin Court of Appeals District I, Tufts University and JD @ Columbia Law School) "Plea Bargaining: An Unnecessary Evil", accessed from on 12-2-2017 ASDavid L. Bazelon, the former Chief Judge for the United States Court of Appeals for the District of Columbia, in a decision written a year before Brady v. United States, recognized that plea bargaining was not the imperative that all seemed to assume: “The arguments that the criminal process would collapse unless substantial inducements are offered to elicit guilty pleas have tended to rely upon assumption rather than empirical evidence. In many jurisdictions lacking sophisticated resources for criminal investigations, a large proportion of suspects apprehended are caught virtually red-handed. The argument 'But what if everyone did not plead guilty?' has force only to the extent that a sizable proportion of defendants have some motivation to plead innocent. If the defendant does have some hope of acquittal, the right to a trial assumes overarching importance. If he does not, there is some presumption that most men will not indulge in a meaningless act.50” Some six years after Judge Bazelon wrote those words, his prediction was tested when Alaska's Attorney General, Avrum M. Gross, abolished plea bargaining statewide. Appointed Attorney General in December of 1973, Alaska's unique centralized criminal justice system gave Gross control over all of the state's district attorneys. His new policy was announced in a memorandum dated July 3, 1975, and was addressed to "all district attorneys." With exceptions for unu-sual circumstances, permission for which "will be given sparingly," there was to be no sentence concessions or charge reductions in exchange for guilty pleas. Sentencing recommendations and charge reductions could still be made, but only if they were warranted by the facts and were not used ''simply to obtain a plea of guilty." Before Gross' plea bargaining ban in August of 1975, the practice was as endemic in Alaska as anywhere else. As one judge related, it was part of the defense lawyer's job to go to the district attorney "to see what could be worked out. 51 Often, a lot "could be worked out." An assistant district attorney told how one of his colleagues had eleven cases set for trial in one week: "He hadn't even looked at one of the files. He dealt them all out on the last day, and he was proud of himself. I'm afraid we were giving away the farm too often. It was a little difficult to sleep at night."' 52 This same prosecutor then put it all in context: The whole system became ridiculous. We were giving away cases we plainly should have tried. We often said to ourselves, 'Hell, I don't want to go to trial with this turkey; I want to go on vacation next week.' We learned that a prosecutor can get rid of everything if he just goes low enough. 3 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. 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 processed 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 practice, it is probably necessary to the efficient administration of justice. The findings of this study sug- gest that, at least in Alaska, both sides were wrong."55 Indeed, the disposition 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 reformation 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 jurisdictions 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 Emmett 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.Abolition key – conflicting motivesAlschuler 13 (Albert W. Alschuler, Albert Alschuler graduated magna cum laude from the Harvard Law School and was Case Editor of the Harvard Law Review. He has been a law clerk to Justice Walter V. Schaefer of the Illinois Supreme Court; a special assistant to the assistant attorney general in charge of the criminal division of the US Justice Department; a professor of law at the University of Texas, the University of Colorado, and the University of Pennsylvania; a visiting professor at the University of Michigan, the University of California at Berkeley, the Brooklyn Law School, and Columbia University; and a visiting scholar at the National Institute of Justice and the American Bar Foundation) "Lafler and Frye: Two Small Band-Aids for aFestering Wound", accessed from on 12-7-2017 ASEven if Lafler and Frye had not fudged the question of remedy and even if these decisions had burst on the scene bold, new, and shiny, they would not warrant the hype bestowed upon them by professors and the press. Three observations about the American legal system I made twenty-seven years ago seem relevant. First, our plea-dominated system makes the kind of justice a “defendant receives more dependent on the quality of his counsel than any other legal system in the world.” Second, this system “subjects defense attorneys to serious temptations to disregard their clients’ interests.” And third, this system “makes it impossible to determine whether defendants have received the effective assistance of counsel.”38 Decisions like Lafler and Frye can neither guarantee effective legal representation in the plea negotiation process nor do much to make it more likely. Defenses of plea negotiation offer sweet pictures of wellinformed defendants making rational assessments of surrender and gain.39 They depend on the assumption that defendants will be well represented. For private attorneys, however, a guilty plea is a quick buck. Defense attorneys have good reasons for collecting their fees in advance, and once they have pocketed their fees, their personal interests lie in disposing of their cases as rapidly as possible. This conflict of interest influences even well-paid, conscientious lawyers, and the bar includes some lawyers who are neither well paid nor conscientious. They handle a high volume of cases for small fees and almost never take a case to trial.40 Plea negotiation also minimizes work and reduces conflict within what organizational theorists call the “courtroom workgroup.”41 Bargaining promotes cordial and comfortable relationships with prosecutors and judges. These interests may influence public defenders even more than they do private lawyers.42 Advising a client to enter a plea agreement can never be proven wrong. Taking a case to trial and losing may appear to have been a bad choice, especially when this decision has produced a sentence two or twenty times more severe than the one the prosecutor offered before trial. A bad outcome at trial may cause both the client’s regard for his lawyer and the lawyer’s self-esteem to suffer. It also may increase the likelihood of a claim of professional ineffectiveness. When one has entered a plea agreement, however, he can always imagine that the outcome of a trial would have been worse. Advising a client to plead guilty is nearly always the safe, secure, comfortable, and profitable course. Everything in our criminal justice system pushes in that direction. A lawyer’s conferences with his client are not public, and neither are his bargaining sessions with the prosecutor. The effectiveness of Lafler and Frye depend on the willingness of lawyers to acknowledge failings so serious that their conduct falls below what the Supreme Court calls “the wide range of reasonable professional assistance.”43 The lawyers whose performances were judged ineffective in Lafler and Frye were appropriately forthcoming,44 but when a defendant says, “my lawyer never told me about the offer,” and the lawyer says, “oh yes I did,” the defendant is almost certain to lose. When a defendant claims that his lawyer misinformed him, many lawyers are likely to respond that the defendant misunderstood. Moreover, the confessions of lawyers must be of a particular kind. Failing to convey critical information (say, about the existence of an offer) may entitle a client to relief, and negligent misstatements of law or fact may too.45 So may ignoring or failing to investigate important evidence, trading the interests of one client for the interests of another, and refusing to bargain at all in a case offering little or no chance of success at trial.46 Self-interested advice to plead guilty, inept negotiating, and erroneous predictions, however, almost certainly will not suffice. In our lawyersupportive legal system, no one need recognize the ineffectiveness of the weakest members of the bar, not even the weak lawyers themselves. One can always conjure up plausible reasons for a default.47 Contention 3 is Framing: Thus, the standard is minimizing structural violence – a. Debate should deal with questions of real-world consequences—ideal theories ignore the concrete nature of the world and legitimize oppression.Curry 14 (Tommy J. Curry is Associate Professor of Philosophy and Affiliate Professor of Africana Studies at Texas AandM University. He is a Ray A. Rothrock Fellow and has commented on social matters in venues ranging from Forbes to Sirius XM. He is the author of 50 articles on issues of racism, Black intellectual history, and Black political theory) “The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century”, from 2014 ASDespite the pronouncement of debate as an activity and intellectual exercise pointing to the real world consequences of dialogue, thinking, and (personal) politics when addressing issues of racism, sexism, economic disparity, global conflicts, and death, many of the discussions concerning these ongoing challenges to humanity are fixed to a paradigm which sees the adjudication of material disparities and sociological realities as the conquest of one ideal theory over the other. In “Ideal Theory as Ideology,” Charles Mills outlines the problem contemporary theoretical-performance styles in policy debate and value-weighing in Lincoln-Douglass are confronted with in their attempts to get at the concrete problems in our societies. At the outset, Mills concedes that “ideal theory applies to moral theory as a whole (at least to normative ethics as against metaethics); since ethics deals by definition with normative/prescriptive/evaluative issues, it is set against factual/descriptive issues.” At the most general level, the conceptual chasm between what emerges as actual problems in the world (e.g.: racism, sexism, poverty, disease, etc.) and how we frame such problems theoretically—the assumptions and shared ideologies we depend upon for our problems to be heard and accepted as a worthy “problem” by an audience—is the most obvious call for an anti-ethical paradigm, since such a paradigm insists on the actual as the basis of what can be considered normatively. Mills, however, describes this chasm as a problem of an ideal-as-descriptive model which argues that for any actual-empirical-observable social phenomenon (P), an ideal of (P) is necessarily a representation of that phenomenon. In the idealization of a social phenomenon (P), one “necessarily has to abstract away from certain features” of (P) that is observed before abstraction occurs. ? This gap between what is actual (in the world), and what is represented by theories and politics of debaters proposed in rounds threatens any real discussions about the concrete nature of oppression and the racist economic structures which necessitate tangible policies and reorienting changes in our value orientations. As Mills states: “What distinguishes ideal theory is the reliance on idealization to the exclusion, or at least marginalization, of the actual,” so what we are seeking to resolve on the basis of “thought” is in fact incomplete, incorrect, or ultimately irrelevant to the actual problems which our “theories” seek to address. Our attempts to situate social disparity cannot simply appeal to the ontologization of social phenomenon—meaning we cannot suggest that the various complexities of social problems (which are constantly emerging and undisclosed beyond the effects we observe) are totalizable by any one set of theories within an ideological frame be it our most cherished notions of Afro-pessimism, feminism, Marxism, or the like. At best, theoretical endorsements make us aware of sets of actions to address ever developing problems in our empirical world, but even this awareness does not command us to only do X, but rather do X and the other ideas which compliment the material conditions addressed by the action X. As a whole, debate (policy and LD) neglects the need to do X in order to remedy our cast-away-ness among our ideological tendencies and politics. How then do we pull ourselves from this seeming ir-recoverability of thought in general and in our endorsement of socially actualizable values like that of the living wage? It is my position that Dr. Martin Luther King Jr.’s thinking about the need for a living wage was a unique, and remains an underappreciated, resource in our attempts to impose value reorientation (be it through critique or normative gestures) upon the actual world. In other words, King aims to reformulate the values which deny the legitimacy of the living wage, and those values predicated on the flawed views of the worker, Blacks, and the colonized (dignity, justice, fairness, rights, etc.) used to currently justify the living wages in under our contemporary moral parameters.b. No act omission distinction for states since their implicit approvals of actions still entail moral responsibilitySunstein and Vermuele Cass R. Sunstein and Adrian Vermeule. The University of Chicago Law School. “Is Capital Punishment Morally Required? The Relevance of Life‐Life Tradeoffs.” JOHN M. OLIN LAW and ECONOMICS WORKING PAPER NO. 239. The Chicago Working Paper Series. March 2005 AJIn our view, both the argument from causation and the argument from intention go wrong by overlooking the distinctive features of government as a moral agent. Whatever the general status of the act-omission distinction as a matter of moral philosophy,38 the distinction is least impressive when applied to government.39 The most fundamental point is that unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference. Most generally, government is in the business of creating creates permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything, or refusing to act.40 Moreover, the distinction between authorized and unauthorized private action—for example, private killing—becomes obscure when the government formally forbids private action, but chooses a set of policy instruments that do not adequately or fully discourage it.Legal reform is the only effective strategy of changeLobel 7 (Orly, PhD, prof of Law at U San Diego, “The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative,” The Harvard Law Review, Vol. 120, No. 4 (Feb., 2007), , pg. 971-978)Practical Failures: When Extralegal Alternatives Are Vehicles for Conservative Agendas We don't want the 1950s back. What we want is to edit them. We want to keep the safe streets, the friendly grocers, and the milk and cookies, while blotting out the political bosses, the tyrannical headmasters, the in- flexible rules, and the lectures on 100 percent Americanism and the sinful- ness of dissent.163 A basic structure of cooptation arguments as developed in relation to the labor and civil rights movements has been to show how, in the move from theory to practice, the ideal that was promoted by a social group takes on unintended content, and the group thus fails to realize the original vision. This risk is particularly high when ideals are framed in broad terms that are open to multiple interpretations. Moreover, the pitfalls of the potential risks presented under the um- brella of cooptation are in fact accentuated in current proposals. Paradoxically, as the extralegal movement is framed by way of opposi- tion to formal legal reform paths, without sufficiently defining its goals, it runs the very risks it sought to avoid by working outside the legal system. Extralegal paths are depicted mostly in negative terms and as re- sorting to new alternative forms of action rather than established mod- els. Accordingly, because the ideas of social organizing, civil society, and legal pluralism are framed in open-ended contrarian terms, they do not translate into specific visions of social justice reform. The idea of civil society, which has been embraced by people from a broad ar- ray of often conflicting ideological commitments, is particularly de- monstrative. Critics argue that "some ideas fail because they never make the light of day. The idea of civil society . . . failed because it 163 Alan Ehrenhalt, Where Have All the Followers Gone?, in COMMUNITY WORKS, supra note 124, at 93-96. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 972 HARVARD LAW REVIEW Vol. 120:937 became too popular."164 Such a broadly conceived ideal as civil society sows the seeds of its own destruction. In former eras, the claims about the legal cooptation of the trans- formative visions of workplace justice and racial equality suggested that through legal strategies the visions became stripped of their initial depth and fragmented and framed in ways that were narrow and often merely symbolic. This observation seems accurate in the contempo- rary political arena; the idea of civil society revivalism evoked by pro- gressive activists has been reduced to symbolic acts with very little substance. On the left, progressive advocates envision decentralized activism in a third, nongovernmental sphere as a way of reviving de- mocratic participation and rebuilding the state from the bottom up. By contrast, the idea of civil society has been embraced by conserva- tive politicians as a means for replacing government-funded programs and steering away from state intervention. As a result, recent political uses of civil society have subverted the ideals of progressive social re- form and replaced them with conservative agendas that reject egalitar- ian views of social provision. In particular, recent calls to strengthen civil society have been ad- vanced by politicians interested in dismantling the modern welfare sys- tem. Conservative civil society revivalism often equates the idea of self-help through extralegal means with traditional family structures, and blames the breakdown of those structures (for example, the rise of the single parent family) for the increase in reliance and dependency on government aid.165 This recent depiction of the third sphere of civic life works against legal reform precisely because state interven- tion may support newer, nontraditional social structures. For conser- vative thinkers, legal reform also risks increasing dependency on social services by groups who have traditionally been marginalized, including disproportionate reliance on public funds by people of color and single mothers. Indeed, the end of welfare as we knew it,166 as well as the 164 Alan Wolfe, Is Civil Society Obsolete? Revisiting Predictions of the Decline of Civil Society in Whose Keeper?, in COMMUNITY WORKS, supra note 124, at 18. 165 See Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 FORDHAM L. REV. 1617, 162 1 (2001). Examples of such claims about the causal connection between the breakdown of traditional civil society/family structures and reli- ance on government aid are found in documents such as COUNCIL ON CIVIL SOC'Y, A CALL TO Civil Society: Why Democracy Needs Moral Truths (1998), and Nat'l Comm'n on Civic Renewal, A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It (1998). For a critique from the perspective of racial justice, see Derrick Bell and Preeta Bansal, The Republican Revival and Racial Politics, 97 YaleLJ. 1609(1988). 166 See, e.g., Martha Minow, Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It, 49 DUKE LJ. 493 (1999). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2007 THE PARADOX OF EXTRALEGAL ACTIVISM 973 transformation of work as we knew it,167 is closely related to the quest of thinkers from all sides of the political spectrum for a third space that could replace the traditional functions of work and welfare. Strikingly, a range of liberal and conservative visions have thus con- verged into the same agenda, such as the recent welfare-to-work re- forms, which rely on myriad non-governmental institutions and activi- ties to support them.168 When analyzed from the perspective of the unbundled cooptation critique, it becomes evident that there are multiple limits to the con- temporary extralegal current. First, there have been significant prob- lems with resources and zero-sum energies in the recent campaigns promoting community development and welfare. For example, the ini- tial vision of welfare-to-work supported by liberal reformers was a multifaceted, dynamic system that would reshape the roles and respon- sibilities of the welfare bureaucracy. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996169 (PRWORA), sup- ported by President Clinton, was designed to convert various welfare programs, including Aid to Families with Dependent Children, into a single block grant program. The aim was to transform passive cash assistance into a more active welfare system, in which individuals would be better assisted, by both the government and the community, to return to the labor force and find opportunities to support them- selves. Yet from the broad vision to actual implementation, the pro- gram quickly became limited in focus and in resources. Indeed, PRWORA placed new limits on welfare provision by eliminating eligi- bility categories and by placing rigid time limits on the provision of benefits.170 Moreover, the need to frame questions relating to work, welfare, and poverty in institutional arrangements and professional jargon and to comply with various funding block grants has made some issues, such as the statistical reduction of welfare recipients, more salient, whereas other issues, such as the quality of jobs offered, have been largely eliminated from policymakers' consideration. Despite aspects of the reform that were hailed as empowering for those groups they were designed to help, such as individual private training vouchers, serious questions have been raised about the adequacy of the particu- 167 See generally Orly Lobel, The Four Pillars of Work Law, 104 MICH. L. REV. 1539 (2006) (describing changes in work relations and modes of production in the past several decades and analyzing the way these developments should affect policy). 168 See Scott L. Cummings, Mobilization Lawyering: Community Economic Development in the Figueroa Corridor, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 49, at 302, 307- 08; Matthew Diller, Form and Substance in the Privatization of Poverty Programs, 49 UCLA L. Rev. 1739(2002). 169 Pub. L. No. 104-193, no Stat. 2105 (1996). 17° See id. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 974 HARVARD LAW REVIEW Vol. 120:937 lar policy design because resources and institutional support have been found lacking.171 The reforms require individual choices and rely on the ability of private recipients to mine through a vast range of infor- mation. As in the areas of child care, health care, and educational vouchers, critics worry that the most disadvantaged workers in the new market will not be able to take advantage of the reforms.172 Un- der such conditions, the goal of eliminating poverty may be eroded and replaced by other goals, such as reducing public expenses. Thus, re- calling the earlier cooptation critique, once reforms are envisioned, even when they need not be framed in legalistic terms, they in some ways become reduced to a handful of issues, while fragmenting, ne- glecting, and ultimately neutralizing other possibilities. At this point, the paradox of extralegal activism unfolds. While public interest thinkers increasingly embrace an axiomatic rejection of law as the primary form of progress, their preferred form of activism presents the very risks they seek to avoid. The rejected "myth of the law" is replaced by a "myth of activism" or a "myth of exit," romanti- cizing a distinct sphere that can better solve social conflict. Yet these myths, like other myths, come complete with their own perpetual per- ils. The myth of exit exemplifies the myriad concerns of cooptation. For feminist agendas, for example, the separation of the world into dis- tinct spheres of action has been a continuous impediment to meaning- ful reform. Efforts to create better possibilities for women to balance work and family responsibilities, including relaxing home work rules and supporting stay-at-home parents through federal child care legisla- tion, have been couched in terms of support for individual choice and private decisionmaking.173 Indeed, recent initiatives in federal child care legislation to support stay-at-home parents have been clouded by preconceptions of the separation of spheres and the need to make one- or-the-other life choices. Most importantly, the emergence of a sphere- oriented discourse abandons a critical perspective that distinguishes between valuing traditional gender-based characteristics and celebrat- ing feminine difference in a universalist and essentialist manner.174 171 See Diller, supra note 168, at 1748-49; John Michaels, Deforming Welfare: How the Domi- nant Narratives of Devolution and Privatization Subverted Federal Welfare Reform, 34 SETON HALL L. REV. 573, 604-22 (2004); Peter Edelman, The Worst Thing Bill Clinton Has Done, AT- LANTIC Monthly, Mar. 1997, at 43, 49-50. 172 See, e.g., JOEL F. HANDLER and YEHESKEL HASENFELD, BLAME WELFARE, IGNORE POVERTY AND INEQUALITY 55-63, 133-35, 34345 (2006). 173 See generally Nancy E. Dowd, Work and Family: Restructuring the Workplace, 32 ARIZ. L. REV. 431, 431 (1990) ("Conflict between work and family responsibilities is a critical workplace issue. . . . There exists an ideology of individual choice and individual burdens which masks the nature of the structure and the basis of the conflict."). 174 See Judith Stacey, In The Name of the Family: Rethinking Family Values IN THE POSTMODERN AGE (1996); Frances E. Olsen, The Family and the Market, 96 HARV. L. Rev. 1497 (1983). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2OO7 THE PARADOX OF EXTRALEGAL ACTIVISM 975 Not surprisingly then, some feminist writers have responded to civil society revivalism with great skepticism, arguing that efforts to align feminine values and agendas with classic republican theory of civil so- ciety activism should be understood, at least in part, as a way of le- gitimizing historical social structures that subordinated women.175 The feminist lesson on the law/exit pendulum reveals a broader pattern. In a classic example of cooptation, activists should be con- cerned about the infusion (or indeed confusion) of nonlegal strategies with conservative privatization agendas. Indeed, in significant social policy contexts, legal scholarship oriented toward the exploration of ex- tralegal paths reinforces the exact narrative that it originally resisted - that the state cannot and should not be accountable for sustaining and improving the lifeworld of individuals in the twenty-first-century economy and that we must seek alternative ways to bring about social reform. Whether using the terminology of a path-dependent process, an inevitable downward spiral, a transnational prisoner's dilemma, or a global race to the bottom, current analyses often suggest a lack of control over the forces of new economic realities. Rather than counter- ing the story of lack of control, pointing to the ongoing role of gov- ernment and showing the contradictions between that which is being kept regulated and that which is privatized, alternative extralegal scholarship accepts these developments as natural and inevitable. Similar to the arguments developed in relation to the labor movement - in which focusing on a limited right to collective bargaining demo- bilized workers and stripped them of their voice, participation, and de- cisionmaking power - contemporary extralegal agendas are limited to very narrow and patterned sets of reforms. A striking example has been the focus on welfare reform as the single frontier of economic redistribution without a connection being made between these reforms and social services in which the middle class has a strong interest, such as Social Security and Medicare. Simi- larly, on the legal pluralism frontier, when activists call for more cor- porate social responsibility, the initial expressions are those of broad demands for sustainable development and overall industry obligations for the social and environmental consequences of their activities.176 The discourse, however, quickly becomes coopted by a shift to a narrow focus on charitable donations and corporate philanthropy or 175 See, e.g., Dowd, supra note 173, at 486; Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986). 176 See World Business Council for Sustainable Development, Corporate Social Responsibility: Meeting Changing Expectations (1999), available at (follow "Publications and Reports" hyperlink; then follow "Corporate Social Responsibility: Meeting changing expectations" hyperlink). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 976 HARVARD LAW REVIEW Vol. 120:937 private reporting absent an institutionalized compliance structure.177 Moreover, because of institutional limitations and crowding out effects possible in any type of reform agenda, the focus shifts to the benefits of corporate social responsibility to businesses, as marketing, recruit- ment, public relations, and "greenwashing" strategies.178 Critics therefore become deeply cynical about the industry's real commitments to ethical conduct. A similar process can be described with regard to the literature on globalization. Globalization scholarship often attempts to produce a unifying narrative and an image of unitary struggle when in fact such unity does not exist. Embodied in the aforementioned irony of a "global anti-globalization" movement, social reform activism that re- sides under the umbrella of global movements is greatly diverse, some of it highly conservative. An "anti-globalization" movement can be a defensive nationalist movement infused with xenophobia and protec- tive ideologies.179 In fact, during central instances of collective action, such as those in Seattle, Quebec, Puerto Alegre, and Genoa, competing and conflicting claims were frequently encompassed in the same pro- test.180 Nevertheless, there is a tendency to celebrate and idealize these protests as united and world-altering. Similarly, at the local level, grassroots politics often lack a clear agenda and are particularly ripe for cooptation resulting in far lesser achievements than what may have been expected by the groups in- volved. In a critical introduction to the law and organizing model, Professor Scott Cummings and Ingrid Eagly describe the ways in which new community-based approaches to progressive lawyering privilege grassroots activism over legal reform efforts and the facilita- tion of community mobilization over conventional lawyering.181 After carefully unpacking the ways in which community lawyers embrace 177 See, e.g., Symposium, Corporate Social Responsibility: Paradigm or Paradox?, 84 Cornell L. Rev. 1282, 1311 (1999). 178 See Christine Parker, The Open Corporation: Effective Self-Regulation AND DEMOCRACY 135-67 (2002); John M. Conley and Cynthia A. Williams, Engage, Embed, and Embellish: Theory Versus Practice in the Corporate Social Responsibility Movement, 31 J. CORP. L. 1, 13-18 (2005). On greenwashing, see William A. Laufer, Social Accountability and Corporate Greenwashing, 43 J. BUS. ETHICS 253 (2003) (describing greenwashing as a "form of disinforma- tion from organizations seeking to repair public reputations and further public images"). 179 See Lynch, supra note 132. 180 See, e.g., Richard Bondreaux and Marjorie Miller, Genoa on Minds of Protestors, L.A. TIMES, July 18, 2001, at Ai (noting that the "summit-hopping movement for global justice" that began in Seattle "embraces Greenpeace environmentalists, Greek trade unions, Basque separatists, German punkers, faith-based groups such as Christian Aid and more"); The WTO History Project, Or- ganizations Opposed to the WTO, (last visited Jan. 14, 2007) (listing the over 1400 organizations, representing all sorts of interests, that signed a peti- tion opposing the WTO in connection with the Seattle protest). 181 See Cummings and Eagly, supra note 40. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2007 THE PARADOX OF EXTRALEGAL ACTIVISM 977 law and organizing, Professor Cummings and Eagly rightfully warn against "exaggerating the ineffectiveness of traditional legal interven- tions" and "closing off potential avenues for redress."182 Significantly, the strategies embraced by new public interest lawyers have not been shown to produce effective change in communities, and certainly there has been no assurance that these strategies fare comparatively better than legal reform. Moreover, what are meant to be progressive pro- jects of community action and community economic development fre- quently can have a hidden effect of excluding worse-off groups, such as migrant workers, because of the geographical scope and zoning re- strictions of the project.183 In the same way that the labor and corpo- rate social responsibility movements have failed because of their em- brace of a legal framework, the community economic development movement - so diverse in its ideological appeal yet so prominent since the early 1990s as a major approach to poverty relief - may bring about its own destruction by fracture and diffusion.184 In all of these cases, it is the act of engagement, not law, that holds the risks of cooptation and the politics of compromise. It is not the particularities of lawyers as a professional group that create depend- ency. Rather, it is the dynamics between skilled, networked, and re- sourced components and those who need them that may submerge goals and create reliance. It is not the particularities of the structural limitations of the judiciary that threaten to limit the progressive vision of social movements. Rather, it is the essential difficulties of imple- menting theory into practice. Life is simply messier than abstract ideals. Cooptation analysis exposes the broad, general risk of assuming ownership over a rhetorical and conceptual framework of a movement for change. Subsequently, when, in practice, other factions in the po- litical debate embrace the language and frame their projects in similar terms, groups experience a sense of loss of control or possession of "their" vision. In sum, in the contemporary context, in the absence of a more programmatic and concrete vision of what alternative models of social reform activism need to achieve, the conclusions and rhetoric of the contemporary critical legal consciousness are appropriated by advocates representing a wide range of political commitments. Under- 182 Id. at 491. 183 See, e.g., Audrey G. McFarlane, Race, Space, and Place: The Geography of Economic Devel- opment, 36 San Diego L. Rev. 295, 318 (1999). 184 See William H. Simon, The Community Economic Development Movement (2001); Scott L. Cummings, Community Economic Development as Progressive Politics: Toward a Grassroots Movement for Economic Justice, 54 STAN. L. REV. 399 (2001); Louise A. Howells, The Dimensions of Micro enterprise: A Critical Look at Micro enterprise as a Tool To Alleviate Poverty, 9 J. Affordable Housing and Community Dev. L. 161 (2000); Shah, supra note m, at 218; Patricia A. Wilson, Empowerment: Community Economic Development from the Inside Out, 33 Urb. Stud. 617 (1996). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 978 HARVARD LAW REVIEW Vol. 120:937 stood from this perspective, cooptation is not the result of the turn to a particular reform strategy. Rather, cooptation occurs when imagined ideals are left unchecked and seemingly progressive rhetoric is repro- duced by a conservative agenda. Dominant interpretations such as privatization and market competitiveness come out ahead, whereas other values, such as group empowerment and redistributive justice, receive only symbolic recognition, and in turn serve to facilitate and stabilize the process.Even under utilitarian calculus, this is the greatest impact in debate. The sheer number effected demands redress. Edelman 13 – MARIAN WRIGHT EDELMAN activist for the rights of children. She has been an advocate for disadvantaged Americans for her entire professional life. She is president and founder of the Children's Defense Fund. (“Dismantle the Cradle to Prison Pipeline—Our Future Depends on It” ) SJDIToday a toxic cocktail of violence, poverty, racial disparities in child-serving systems, poor education, and racially unjust zero-tolerance policies are fueling a Cradle to Prison Pipeline? crisis that is funneling millions of poor children and adults into dead-end, powerless, and hopeless lives.A black boy born in 2001 has a one-in-three chance of going to prison in his lifetime, and a Latino boy has a one-in-six chance of the same fate. $e United States has the highest incarceration rate in the world: 7.1 million adults are under some form of correctional supervision including prison, jail, probation, or parole. Black males have an imprisonment rate that is nearly seven times higher than white males, and Hispanic males have a rate more than twice that of their white counterparts. This epidemic of mass incarceration has created one of the most dangerous crises for the black community since slavery and it affects everyone in our nation.Federal spending on prisons totaled $6.6 billion in 2012 and annual state spending on corrections tops $51 billion. This federal and state spending spree to warehouse prisoners has perverted our nation’s priorities. States spend on average two and half times more per prisoner than they spend per public school student, this at a time when a majority of children of all racial and income backgrounds cannot read or compute at grade level in fourth- or eighth-grade and huge numbers of youth drop out of schools. The privatization of juvenile and adult prisons is yet another added danger. The world’s largest for-profit, private prison corporation, the Corrections Corporation of America, recently offered to run the prison systems in 48 states for 20 years if the states would guarantee a 90 percent occupancy rate.The greatest threat to America’s democracy and economic security comes from no enemy, but rather from our failure to dismantle this Cradle to Prison Pipeline and to invest in and prepare all our children for the future. Tomorrow is today. Children of color, who already are a majority of babies being born in the United States and who will be a majority of our child population within this decade, face bleak futures without high-quality early childhood programs and high-quality, equitable public schools that would prepare them for college and our workforce.Closing the income and racial achievement gaps between poor and non-poor children and between white and nonwhite children is an urgent national priority. Today, every 1.5 seconds during the school year, a public school student is suspended; every 8 seconds during the school year, a public high school student drops out; every 19 seconds a child is arrested; and every 3 hours and 15 minutes, a child or teen is killed by a gun.Advocates for change should exclusively consider the human costs of mass incarceration. Coldly efficient reform narratives are unsustainable solutions to an incalculable evil. Southerland 14 – Vincent. Criminal Justice Practice, NAACP Legal Defense and Education Fund (“The Immorality of Mass Incarceration” May 7 2014, ) SJDI America is finally starting to take its first small steps on the path to curing its decades-long addiction to mass incarceration. Recently, the nation’s top law enforcement officer, Attorney General Eric Holder, testified before the United States Sentencing Commission and called for reductions to federal sentences for certain drug offenses. In doing so, Attorney General Holder declared that “over-reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate,” a statement many of us—who for years have been raising the alarm bell about America’s mass incarceration problem—have long known to be true.Attorney General Holder’s comments strike at the heart of the problem: mass incarceration has devastated African-American communities, families, and lives all around the country. Sustained changes to the policies and attitudes that created this epidemic, however, are the real key. In order for that change to happen, our nation’s moral orientation with mass incarceration and criminal justice will have to adjust accordingly.At bottom, criminal justice reforms need to be driven by the moral imperative of repairing all that is wrong with the current system. As advocates for change, we must make sure that the reform narrative includes the human costs of mass incarceration and a broken criminal justice system, not just the concern over dollars and cents. The Moral Monday movement—a multi-issue, grassroots, multiracial campaign active in the courtroom, streets, and the ballot box—offers a salient example of how ethics and the lived experiences of real people can drive change and incite action. The movement shifted North Carolina’s political discourse toward morality while focusing on individual stories and the damage done to real people by real, and unjust, policies.To date, the financial crisis and the Great Recession have forced a closer look at the financial costs associated with America’s incarceration of 5 percent of the world’s population and 25 percent of the world’s prisoners. Prisons and jails are overcrowded—in the federal system alone, they are operating at 40 percent beyond capacity. Counsel for the poor are under-resourced and over-worked. And across the country, police departments are stretched beyond capacity, having committed resources to America’s misadventure with mass incarceration. To be sure, the financial incentives for progressive change are incredibly powerful. Conservatives and liberals alike have voiced concerns about the expense of continuing down a path of perpetual incarceration. In fact, there has been much discussion over the savings borne of reforms that could be reinvested to improve public safety and police practices, particularly as the costs of prisons and incarceration constitute an increasingly disproportionate share of state and federal budgets. And change—at least in the direction we seem to be slowly moving—is definitely a good thing. Ohio, Georgia, Texas, Kentucky, South Carolina and New York serve as examples of states that have worked to reduce their prison population without sacrificing public safety. Even Congress is getting into the act. Partisan rancor and age-old arguments about the size and role of government have—at least in one instance—have begun to yield to legislative action on mass incarceration. The Smarter Sentencing Act, a piece of bipartisan legislation co-sponsored by Senators Dick Durbin (D-Ill.) and Mike Lee (R-Utah) and supported by senators like Ted Cruz (R-Texas) and Jeff Flake (R-Ariz.), recently cleared the Senate Judiciary Committee, making it ripe for consideration by Congress. The Smarter Sentencing Act would reduce mandatory minimums for federal drug offenses, expand the discretion and authority of federal judges to craft appropriate sentences for low level offenders, and give full effect to Congress’ 2010 reduction of the manifestly unjust and discriminatory 100-to-1 sentencing ratio which treated crack cocaine 100 times more severely than powder cocaine. Currently, nearly 9,000 individuals—almost 90 percent of whom are African-American—are serving federal prison sentences under that old 100-to-1 regime.Yet the impetus for these changes will be short-lived unless America faces the harsh realities—and staggering moral consequences—of its obsession with mass incarceration. For decades, we have responded to a public health problem—drug addiction and abuse—with a criminal justice remedy, failing to fully understand the complex web of conditions that spur drug abuse. In Attorney General Holder’s words late last year, we have grown “coldly efficient” at warehousing generations of people—the majority of them young men of color. Stark racial disparities are apparent at every stage of the system, from encounters with police, to the severity of charges sought by prosecutors, to the sentences handed down by judges. These systems have ravaged communities, hurt families and relegated generations to a hopeless form of second-class citizenship, devoid of any real political or economic power.As the dollars once again begin to flow in the wake of the nation’s financial recovery, the real barometer of change will be America’s continued willingness to grapple with its addiction to incarceration and other criminal justice practices that fuel unfairness and calcify discrimination. Hopefully, we will still be willing to do the right thing—not only because it is fiscally prudent, but because it is simply the right thing to do.3 Dougherty KK Neg ReformsCounterplan text: The United States Federal Government ought to institute the following court reforms:Guidelines: Require written plea agreements and records of them2. Critical Rights: Enforce important rights which the defendant has, things like the right to DNA testing frequently get ignored through waivers3. Open-File Discovery Rules: Mandate that prosecutors disclose a minimum of key plea criteria4. Judicial Oversight: Empower judges to strike plea bargaining processes considered coercive5. Limit Plea Discounts: Place limits on the sentences prosecutors are allowed to bargain with in exchange for a guilty pleaTurner ’17 / Turner, Jenia Iontcheva, Plea Bargaining (March 9, 2017). Academy For Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming; SMU Dedman School of Law Legal Studies Research Paper No. 348. Available at SSRN: KDMost of the above proposals address distinct problematic aspects of plea bargaining. They ought to be considered for adoption not in isolation, but as part of a comprehensive package that aims to ensure that plea bargaining produces just and accurate outcomes. 1. Require Written Plea Agreements Perhaps the easiest plea bargaining reform for legislators to undertake is requiring that plea agreements be placed in writing and entered into the record. As noted earlier, several jurisdictions have already adopted such requirements. They help ensure that defendants receive notice of the terms of the agreement, allow for a more informed judicial review of the plea, and make the process more transparent to the public. The California Judicial Council has created a plea form that lists a number of direct and collateral consequences that might follow a guilty plea and invites the parties to identify which of these consequences apply to their case. It also outlines rights that the defendant is waiving by pleading guilty and provides space for the parties to list other terms of the agreement. This form can serve as a blueprint for other jurisdictions.121 With respect to placing plea agreements on the record, the Maryland rule offers a good model: “All proceedings pursuant to this Rule, including the defendant's pleading, advice by the court, and inquiry into the voluntariness of the plea or a plea agreement shall be on the record. If the parties stipulate to the court that disclosure of the plea agreement or any of its terms would cause a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment, the court may order that the record be sealed subject to terms it deems appropriate.”122 In cases where cooperating defendants might frequently be subject to retaliation (e.g., organized crime cases), the recording requirement may be modified or even eliminated. The federal system is currently studying options for balancing these interests in cases where the safety of cooperating witnesses might be compromised.123 2. Prohibit Waivers of Critical Rights Courts or legislatures should prohibit the parties from negotiating waivers of several key rights that help protect the fairness and accuracy of plea bargains—the right to appeal the validity of the guilty plea and the accompanying sentence, the right to discovery, the right to subsequent DNA testing, and the right to effective assistance. Some jurisdictions already restrict or prohibit such waivers, but there is a troubling increase in the waivers negotiated in other systems, especially the federal. These waivers undermine critical protections against uninformed and unfair plea bargains. To restore a measure of due process in plea bargaining, it is critical to prohibit their use by statute, case law or ethical rules. 124 At the very least, prosecutor’s offices ought to restrict the negotiation of such waivers except in special circumstances requiring supervisory approval. 3. Provide Broad Pre-Plea Discovery and Ensure that Defense Attorneys Have the Time and Resources to Review It To ensure that innocent defendants do not plead guilty and to improve the fairness of plea bargains, legislatures should also adopt broad pre-plea discovery.125 Specifically, discovery rules should be amended to require prosecutors to disclose to the defense, before a guilty plea, at a minimum, the following types of evidence: 1) impeachment and exculpatory evidence, without regard to its materiality; 2) witness names and statements, redacted as necessary to protect witnesses from risk of harm; and 3) police reports, again redacted as needed to protect the safety of witnesses. A number of states have already adopted such rules; 126 some, like North Carolina and Texas, have gone even further and adopted open-file pre-plea discovery.127 The evidence so far suggests that broad discovery can be implemented at a reasonable cost and without undue hardship to witnesses. It is the first step toward ensuring that parties are negotiating fair, wellinformed, and factually based plea bargains and that innocent defendants are not coerced into pleading guilty. For open-file discovery to have its intended positive effects, defense counsel must have the time and resources to review and investigate the facts revealed through discovery.128 Open file discovery therefore must be coupled with reforms that ensure adequate funding of criminal defense.129 Legislators, courts, and prosecutors’ offices should also strictly limit or entirely prohibit “exploding” offers. Such offers prevent defendants and their counsel from adequately evaluating the evidence disclosed and conducting further investigations if needed, before making a decision whether to plead guilty or proceed to trial. Therefore, states may require (as Louisiana as done) that guilty pleas be accepted only after a certain period has passed since arrest130 or (as in Texas) that prosecutors make discovery available to the defense before a court can accept a guilty plea. 131 Prosecutors’ offices could also consider adopting internal protocols that discourage “exploding offers.”132 4. Strengthen Judicial Oversight of Plea Bargains and Guilty Pleas Judicial participation in plea negotiations allows a neutral party to assess the terms of the plea bargain and the facts of the case at a point in the proceeding when such oversight can make a real difference. A number of states permit such participation, and recent qualitative studies suggest that it is perceived to provide greater certainty, fairness, and much-needed oversight of the plea bargaining process. The risk of judicial coercion can be minimized through procedures that allow a different judge to preside over trial when plea bargaining falls apart.133 Legislators should therefore expressly permit judicial participation in plea negotiations, but require judicial recusal if a case proceeds to trial after negotiations fail. At a minimum, legislators should demand that judges conduct a more searching inquiry into the facts underlying the guilty plea and accompanying agreement. Judges should not rely merely on factual stipulations or summaries of the evidence presented by the prosecution, but should question the defendant and review any available materials to ensure that the conviction and the proposed plea agreement reflect the true facts of the case. Military courts—as well as courts in continental European systems that have adopted plea bargaining—engage in more thorough vetting of the facts before accepting guilty pleas, and they can offer helpful guidance for civilian U.S. jurisdictions.134 5. Adopt Limits on Plea Discounts Courts and legislatures should also limit the charging and sentencing concessions that prosecutors can offer in exchange for a guilty plea. Enormous discounts heighten the risk of innocent persons pleading guilty and may produce unjust sentencing disparities. Legislatures can address this problem by limiting plea discounts to no more than a third of the expected post-trial sentence; alternatively or in addition, courts can use any sentencing discretion they have to reduce discounts that are more than 30-35.135 In many U.S. jurisdictions today, prosecutors can circumvent plea discount caps through their charging decisions. But the experience of foreign systems like England and Germany suggests that such limits can be effective if coupled with broader judicial discretion to scrutinize charges and impose proportionate sentences. For that reason, policymakers should consider this proposal in tandem with ideas for comprehensive reform of the criminal justice system. Excising overlapping criminal statutes—a stated goal of reformers—would constrain prosecutorial discretion to evade plea discount limits through charge bargains. Reducing sentencing severity and restoring judicial discretion over sentencing can also help courts ensure that plea discounts remain reasonable. Finally, chief prosecutors themselves can also take the initiative and adopt internal regulations that limit the size of plea discounts line prosecutors can offer. The proposals above offer a range of practical solutions that can help make plea bargaining fairer, more transparent, and more honest. Given the central place of plea bargaining in our criminal justice system, any serious reform of the process ought to consider them.DA Balkan CrimeRepublic of Serbia Minsitry of Justice 2010 Counter-measures in the Balkans against organised Crime and Corruption 2010 the first session of the day, discussants reviewed the emergence of organised crime and corruption in the western Balkans during their dif cult transition from centrally-planned to free market economies. That transition, accompanied by conflicts leading to the creation of new states, often led to the breakdown of the rule of law, and created new borders behind which criminals could hide. Setting the scene, co-moderator tim Judah, western Balkans Correspondent for The Economist, highlighted the ongoing Serbian trial – in absentia – of Darko ?aric, who is alleged to have acquired a e1.3bn fortune through building an international drugs dealing network. Three over-riding themes emerged during the morning session, which sometimes recurred later in the day. First were the strenuous efforts now being made by some states in the region and by European agencies to combat organised crime and corruption. Second was the need to continue developing effective international collaboration between agencies at many levels. Finally, participants focused upon the need to ensure organised crime and corruption are seen as unacceptable, and their proceeds are confiscated. Sne?ana Malovi , Serbian Minister of Justice, opened the panel by saying Serbia has made suppression of organised crime and corruption a top priority, as part of its preparations to join the European Union. “Serbia is not going to be a safe haven for criminals,” she said. The first step, she insisted, was to establish the necessary legal framework, then develop institutions able to bring wrong-doers to book. “Experience has shown it is necessary to have specialised departments,” she noted. Because organised crime is international in character, legislation and structures in different countries need to be harmonised with EU and international standards, so that criminals can’t hide behind their citizenship in different jurisdictions, she pointed out. A law on Seizure and Confiscation of the Proceeds from Crime, and another on International Legal Assistance in Criminal Matters were among those put in place to enable the special prosecutor’s office and court department to be more effective. And these measures are now delivering “very good results” she insisted. Plea bargains result in informants in the Balkans specificallySorguc 16 (Albina Sorguc, ) Bosnian War Crimes Suspects Shun Plea Bargains :: Balkan Insight, 25 AUG 16 ATBosnian prosecution spokesperson Boris Grubesic said that the obligations imposed on defendants as part of the plea deals have helped in other cases. “In plea agreements, we always demand that the person becomes a witness in future cases. This is good strong evidence in any case, especially in cases against several perpetrators,” Grubesic explained.After former Bosnian Serb policeman Damir Ivankovic admitted he was guilty of participating in the murders of around 200 civilians at Koricanske Stijene in 1992 and was sentenced to 14 years in prison, information about a mass grave came to light, and the remains of dozens of victims were found buried on Mount anized crime wrecks Balkan instabilityUNODC 08 United Nations Office on Drugs and Crime “CRIME AND ITS IMPACT ON THE BALKANS and affected countries” ATGiven these observations about the crime situation in the region, what can be said about its impact? Despite the low levels of conventional crime and diminishing organised crime activity, the blurred demarcation between political, commercial, and criminal spheres of activity remains an issue, a legacy of the past instability. According to the Council of Europe and the European Commission in 2006: The overall accepted perception is that organised and economic crimes in South-eastern Europe threaten democracy, the rule of law, human rights, stability, and social and economic progress in the region. With regard to social and economic progress, crime and corruption have the potential to derail the progress of whole nations, by directly sapping resources and undermining the sense of safety and trust that underpin healthy societies. On the most basic level, fear of crime can limit social interaction when citizens avoid contact in order to minimise the chances of victimisation.DA Court ClogEliminating plea bargaining decks court efficiency by overburdening prosecutors and judges – they currently settle 95 percent of convicted casesFindLaw 13 (FindLaw, the largest and leading online database for legal information, “Plea Bargaining and the Judicial Economy”, ) AXY The American legal system has used plea bargaining for well over a hundred years, and one of the primary justifications for the use of plea bargaining is the principle of judicial economy. Judicial economy simply means that one goal of the judicial system is to conclude cases in an efficient and speedy manner. Without plea bargaining, it is widely believed that there would be an explosion of cases which in turn would overtax and disrupt the current legal system. Plea Bargains, Judges and Judicial Economy The primary benefit of plea bargains to a judge is that plea bargains reduce their already crowded calendar of court cases. It takes months, if not years, to get a trial date, so judges are always eager to have parties settle the matter between themselves and keep the dispute out of the court room. Many judges also see plea bargains as advantageous because they represent an agreement or bargain between the parties, which makes compliance and adherence to the agreement more likely. This, in turn, reduces potential disputes the parties will have in the future and will hopefully prevent parties from having to come back to court. Finally, most judges are keenly aware that many state's prisons are also overburdened. Many judges see plea bargains as an effective way to deal with less heinous criminals and reserve limited prison space for serious threats to the community. Plea Bargains, Prosecutors and Judicial Economy Prosecutors have their own calendars to worry about, and for the same reason as judges, prefer to keep the calendar as free as possible. Especially in offices where funding and resources are a major issue, prosecutors are open to negotiating a plea agreement rather than spend the time, money and resources on a full trial. Similarly, many prosecutors like plea bargains because they give the prosecutor flexibility and they allow prosecutors to "screen out smaller criminal offenses. By screening out lesser offenses, a prosecutor can bring the full power of their office to bear on serious criminal offenses. This creates new courts and replaces current appointees with trump-selected judgesKlain 11/21 (Ronald A., Georgetown University and Harvard University (born August 8, 1961) Ronald is an American political operative and lawyer who on October 17, 2014, was named for the newly created position of "Ebola response coordinator" or, less officially, Ebola Czar. He served as Chief of Staff to two U.S. Vice Presidents – Al Gore (1995–99) and Joe Biden (2009–11).) "Opinion", accessed from on 12-4-2017 AS/TS- The aff creates a need for a creation of new courts and judiciaries to deal with court clog, justifying plans such as Calabresi’s proposal that creates NEW judiciary vacancies, which will expand the federal judiciary by 50 percent with Trump appointees under a single year. Also replaces current positions inside regulatory agencies with Trump-selected judges.Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same. The “outer turkey” in the plan is the ongoing Trumpification of the courts. In the final two years of Obama’s presidency, Senate Republicans engaged in tenacious obstruction to leave as many judicial vacancies unfilled as possible. The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, “the number of judicial vacancies .?.?. on the table when Trump was sworn in was unprecedented,” White House Counsel Donald McGahn recently boasted to the conservative Federalist Society. Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58. Senate Republicans are racing these nominees through confirmation; last week, breaking a 100-year-old tradition, they eliminated the “blue slip” rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, 1 in 8?cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050. But even this plan — to fill approximately 150 judicial vacancies before the 2018 elections — is not enough for conservatives. Enter the next element of the court-packing turducken: a new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled “Undoing President Barack Obama’s Judicial Legacy”), Calabresi proposes to pack the federal courts with a “minimum” of 260 — and possibly as many as 447 — newly created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent. Never mind that Republicans saw no urgency in filling judicial vacancies while Obama was president. Never mind that they ignored pleas from conservative Chief Justice John G. Roberts Jr. to fill positions in courts facing “judicial emergencies.” Now, conservatives want a 30 to 50 percent increase in the number of federal judgeships. And they have a clear idea of who should fill this massive number of new posts: “President Trump and the Republican Senate will need to fill all of these new judgeships in 2018, before the next session of Congress.” Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Donald J. Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump’s nominees to date — more white and more male than any president’s in nearly 30 years — would roll back decades of progress in judicial diversity. But even that isn’t enough for the Turducken Court Packers. They have jammed one more “treat” inside this turkey. Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency, Food and Drug Administration, Federal Communications Commission, and Securities and Exchange Commission, and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life. These new Trump administrative law judges would have vast power over environmental, health and safety, fair competition, communications, labor, financial and consumer regulation for decades. Unlike the existing administrative law judges, selected as nonpartisan members of the civil service, Calabresi’s replacement corps would all be picked in a single year, by a single man: Donald J. Trump. And if this breathtaking transformation of our federal judicial system isn’t jarring enough, Calabresi has one final treat: a proposal that Congress do all of this in the tax-cut bill that Congress is trying to pass before it leaves for the holidays. Progressives need to mount a more cohesive and effective plan to slow down the Trump train of judicial transformation. Otherwise, we’ll have a court-packing turducken for Thanksgiving, and a revolutionary rollback in rights and regulation for Christmas.Courts haven’t expanded yet because it’s unnecessary – aff creates court clog, which justifies court expansionBlackman 11-27 (Josh Blackman, Josh is an Associate Professor of Law at the South Texas College of Law in Houston who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of the critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016)) "Republicans Should Not Pack the Courts", accessed from on 12-4-2017 AS Earlier this month, a law professor and his former student urged Republicans to increase the size of the federal judiciary by 33 percent, allowing President Trump to appoint 261 new judges, on a party-line vote if necessary. Like most legal scholarship, this proposal was destined to fall by the wayside, but for the identity of its lead author: Steven G. Calabresi, a law professor at Northwestern University, and the co-founder and chairman of the Federalist Society. Yes, the same Federalist Society that has played an essential role in President Trump’s highly successful judicial-nomination strategy. Were Calabresi’s memorandum in fact the official position of the Society, it would indeed be huge news. But it’s not. Not even close. As a non-profit organization, the Society does not, and indeed cannot, lobby in support of legislation. More foundationally, Calabresi’s position does not have anywhere near the monolithic support in conservative legal circles that editorialists in the New York Times, Washington Post, and Slate would suggest. As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded. Calabresi’s primary argument is that that the administration of justice could be improved by reducing the workload of our increasingly taxed judiciary. No argument there, but the size and scope of the expansion he proposes — whereby a single President could transform the judiciary in short order — is entirely disproportionate to the nature of the problem.Republicans support current packing of the courts – squo blockage of democratic judicial appointments and republican leaders pushing for it prove Rosenberg 12-3 (Paul Rosenberg) "GOP's court-packing spree: It's only the beginning", accessed from on 12-4-2017 AS/TS- answers the argument that trump leaves soon – a. this new law would put these people in courts for life, b. ”It’s the last round, and it’s a fight to the finish.” There wouldn’t be a republic worth saving, and c. it goes on a long spiel of how even if republicans do this type of stuff, democratic party doesn’t have the will to take the courts backFor all of Donald Trump’s hollow bluster about his supposed accomplishments, the one place he’s winning bigly is largely overlooked: packing the federal courts as quickly as possible. As Amanda Marcotte wrote here on Nov. 8, “Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, who chairs the Senate Judiciary Committee, have set up a factory-style assembly line for Trump's judicial nominees and are getting them confirmed at a dizzyingly fast rate.” Thanks to GOP obstruction, Trump entered office well-positioned for the task, as Susannah Jacob explained here in August. “When Obama entered office, there were 54 judicial vacancies. President Trump now has the opportunity to fill over 130,” she wrote, adding: “This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware told Business Insider’s Allan Smith. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, have a significant impact on the shape and trajectory of American law for decades.” Trump has the power, Coons said, to bring about “a wholesale change among the federal judiciary.” But if one leading conservative judicial activist gets his way, that will only be the beginning. Federalist Society founder and board chair Steven Calabresi has written a memo (along with recent graduate Shams Hirji) calling on congressional Republicans to massively expand the lower federal courts, a court-packing scheme of breathtaking proportions for the express purpose of “undoing the judicial legacy of President Barack Obama.” This would actually giving Trump the power to appoint far more judges than any president in recent history — and do it before the 2018 midterms. How many judges, exactly? Calabresi has his eye on three distinct categories. First, he’d like to double or perhaps triple the number of appeals court (i.e., circuit court) judges, who are second only in power to the Supreme Court. Trump could then appoint at least as many appeals court judges as all other presidents combined. Second, he wants to add 185 trial (district court) judgeships, which would bring Trump’s appointments to 40 percent of the total. Third, he’d like to replace 158 nonpartisan, agency-appointed administrative law judges (ALJs) with Trump-appointed judges with lifetime tenure. These come from 20 different executive branch regulatory agencies —the EPA, FCC, SEC, etc. — but almost half come from just two: the Department of Labor (41) and the National Labor Relations Board (34), both of which look out for the rights of workers, whom Trump has a long history of exploiting. Allowing this president to appoint these judges would be a classic case of the fox guarding the henhouse. Calabresi realizes he’s asking for a lot, so he also presents a more modest fallback position. Even that one would allow Trump to exceed Obama’s influence in just one-fourth the time in office. Lest you think he’s going soft, Calabresi has also proposed that Republicans pass his proposal as part of the GOP tax plan — something that still could happen through the conference process. Needless to say, the plan has drawn some sharp criticism, including high-profile pieces by Ronald Klain at the Washington Post and Linda Greenhouse at the New York Times, who carefully picks apart the claims of a judicial emergency (which Republicans, of course, ignored when Obama was in office). Calabresi and Hirji fired back in a National Review article, claiming: “Nothing could be further from the truth” than to call it a court-packing plan. “In fact, it is a court-unpacking plan.” The Democrats started it, you see. They’re the real court-packers. Even some fellow conservatives aren’t buying this plan or its rationale. "As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded," Josh Blackman wrote at the National Review. Libertarian Ilya Somin wrote at the Post's Volokh Conspiracy blog that Calabresi and Hirji "clearly state that one of their goals is 'undoing President Barack Obama’s Judicial Legacy.' Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.” But perhaps the best way to understand the plan is through the eyes of Richard Primus, of the University of Michigan Law School, who wrote a recent post at the Harvard Law Review blog titled “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” At least the proposal is honest, he writes. “The paper’s motivation is entirely out in the open. This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control. It comes as a wolf.” He seeks to elucidate both why and how this is so profoundly dangerous to America’s constitutional system. Primus' terminology is important: "Rulebooks" and "playgrounds" refer to different ways of understanding the Constitution. The "endgame" here, he writes, suggests "a kind of constitutional Armageddon." This proposal means "to end an era,” but not necessarily in the way that Calabresi and Hirji suppose. “The document is remarkable in at least two respects,” Primus begins. “First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution. If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.” The relationship between the formal big-C Constitution and the informal small-c constitution is crucial, Primus notes: “The big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.” There are two ways of understanding the Constitution, Primus says at the end of his analysis. One is as a rulebook: “As long as you stay within the permitted moves, you’re playing the game properly.” In this view, there is no little-c constitution at all. “But the rulebook approach is a dangerously inadequate way to think about constitutional law,” he warns. “A more helpful analogy might go like this: Constitutional government is like playground basketball. If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.” As he sees it, that is the danger the Calabresi-Hirji proposal holds. However “conservative” they might claim to be, these legal activists are actually lighting a fuse that could blow up the whole constitutional system. The reason they might do that brings us to the second remarkable thing Primus notes: Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law. In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power. It’s not an idea in isolation, he notes. It echoes the Republicans' refusal to consider Obama’s nomination of Merrick Garland to the Supreme Court and their decision to confirm only two circuit court justices during his last two years, along with public statements by “Republican Senators from McConnell to Cruz to McCain who said publicly that if Hillary Clinton won the election, they wouldn’t consider any of her nominees to the Supreme Court.” In all these cases, Primus writes: The underlying logic, of course, is the same as that of the Calabresi-Hirji proposal. Democratic-appointed judges are not to be considered a normal part of the system, fit to exercise adjudicative authority because they too are honorable servants of the Constitution, even when they understand the Constitution differently from the way we understand it. No. They are to be regarded unfit per se. It’s this assumption, he writes, that “can explain what would otherwise be one of the most puzzling aspects of the proposal — that is, the paper’s seeming unconcern with provoking a judgeship arms race that could make the federal judiciary both unworkable and obviously partisan.” If the proposal passed, he notes, once Democrats again had unified control of the White House and Senate, “they’d enact a bill expanding the lower courts by whatever amount was necessary to swing control right back,” and possibly to expand the size of the Supreme Court as well, to counteract the theft of Garland’s seat. “With the Calabresi-Hirji experience behind them, it would be remarkable for the Democrats in the next round not to go all the way.” Surely “Calabresi and Hirji can foresee this chain of events as easily as I can,” Primus writes, so why make their proposal? There’s one perspective that he says could explain it: We don’t think in terms of the Democrats one day coming back into power. We are building for a world in which they never exercise power. And if the Democrats do return to power, then the Republic won’t be worth saving anyway. In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system. It’s the last round, and it’s a fight to the finish. One flaw in this analysis is the assumption that Democrats will act just like Republicans, but that sort of symmetry simply doesn’t exist — either at the levels of the parties, or at the level of animating ideologies. The willingness to disrupt norms, to violate the small-c constitution, is far more evident on the right than the left. Harvard Law professor Mark Tushnet coined the term “constitutional hardball” to describe it in a 2003 paper, and I wrote four stories about the GOP’s engagement in it between the 2014 midterms and the 2016 election, starting with efforts to subvert the Electoral College by changing the way certain states choose their electors, and ending with an Election Day story on norm erosion dating back to the 1990s. In between, in March 2015, I wrote a deep dive into the concept and how important it’s been to the modern GOP, and in February 2016 I wrote about Republican refusal to let Obama appoint a Supreme Court justice as a prime example of constitutional hardball. Tushnet’s analysis makes it clear that anyone can play the game, but he also gives a reason why Republicans play it much more vigorously. He sees it as an effort to change what he calls “constitutional orders,” and Republicans have been trying to change the constitutional order initiated under Franklin D. Roosevelt for a very long time now. But there are also other perspectives on why there might be such a powerful asymmetry. David Hopkins, co-author of "Asymmetric Politics: Ideological Republicans and Group Interest Democrats" (Salon review here) had several thoughts. “It does seem to be true that the American right is more comfortable playing hardball than the left,” Hopkins told Salon. “One reason, I think, is that there is a greater sense of urgency on the right. Many conservatives are frustrated with their lack of progress over the years in rolling back the modern domestic state, while the leftward drift of American culture further contributes to their disaffection and alienation. If existing norms of governance have helped lead us to this current state of affairs, they reason, then perhaps these norms do not deserve much deference.” There’s also an inhibition working on the other side. “It’s also the case that the center-left in America tends to have a lot of philosophical investment in the practice of procedural ‘fairness,’ which often makes it uncomfortable with aggressive displays of political power even on its own behalf,” Hopkins said. Indeed, ever since the 1950s, there have been comments about how liberals have become de facto conservatives, protectors of the established order. “Finally, I think it’s clear that conservatives prioritize representation in the judicial branch much more than liberals do at this period in history," Hopkins concluded. "Control of the court system, up to and including the Supreme Court, simply matters more these days to conservatives, who view the federal judiciary as broadly hostile to their beliefs and capable of threatening their political values and power via adverse rulings.” Corey Robin, author of "The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump" (Salon review here), took a longer view. “At moments of realignment, for example, American liberalism wasn't thinking in terms of iterative games or Burkeanism,” he said. “It saw itself, and rightly so, as transforming the rules of the game, of permanently altering the terms of discussion. And it saw itself as being the gravediggers of a pathological formation that would never return: the slaveocracy, in the case of Lincoln and the Radical Republicans, and the Gilded Age oligarchy, in the case of the New Deal.” In this larger historical framework, both sides have been equally capable of playing constitutional hardball, as Tushnet argues. “Conversely, what I see in this current proposal from the conservatives is less a feature of permanent conservative thinking — though I can see why you would say that, what with references to ‘the last round’ — than a sign of conservative weakness,” Robin said. “I think conservatives see themselves in a race against time: counterintuitively, and in contrast to Primus, I think they anticipate that their hold on political power is slipping ... and they see the judiciary as a way of locking in their gains long past the expiration date.” This is certainly in keeping with their wide-ranging voter-suppression efforts, along with the ambitious $30 million gerrymandering scheme described by former Salon editor David Daley in "Ratfked: The True Story Behind the Secret Plan to Steal America's Democracy." “Their model here is the Gilded Age judiciary, which was able to hold the line against growing populist and legislative attacks on economic wealth and power,” Robin said. “So it is a last round, and it is a fight to the finish, but it's a fight they except to lose in every respect save one: their lock on the judiciary. History suggests that is not an irrational way of thinking about their current predicament, insofar as the Lochner-era Supreme Court from about 1897 to 1937 and lower courts really did strike down progressive legislation for decades.” Yale Law School’s Jack Balkin takes a similar view, at his Balkinization blog, where Primus is also a contributor. He sees little likelihood of Calabresi’s plan being enacted. “I think that we should consider Calabresi's memo for what it is — a dream of a better world,” he writes, adding that it should be examined as Freud would, to make sense of the “predicaments, anxieties, and concerns” that it expresses — especially the stark contrast between the GOP’s dominant formal power and its decaying power as a movement: Indeed, the Republican Party turned to Donald Trump in 2016 precisely because the regime's national coalition is decaying. Trump is both a symptom of decay and an agent of decay. In Stephen Skowronek's terms, Trump is a disjunctive president, brought on board to rejuvenate a dying coalition but who actually furthers its unraveling. This profound weakness is why, even with complete control of the federal government, the party has had more trouble than it should in passing legislation. Of course, nobody knows when the Reagan regime will actually end. ... Even so, as the regime decays, factionalism and radicalism undermine the party's coalition and make even the simplest tasks difficult. But as Robin notes, the Gilded Age oligarchs held onto their power in the courts for decades, long after they had lost electoral credibility. While it may be comforting, in the abstract, to see Trump’s current judicial power grab as a sign of his party’s weakness, that does nothing to soften the blows that will be coming from the bench at the hands of the scores of judges he has already nominated, with many more to come. Progressives damn well ought to be thinking in terms of playing constitutional hardball themselves. At least as far back as Bush v. Gore, conservatives have relied on the courts as an illegitimate source of power. By de facto appointing George W. Bush president (see "Jews for Buchanan" for the multitude of ways in which the election was stolen), the 5-4 Supreme Court decision effectively selected two of its successors, yet another profound violation of constitutional norms. That means we are now up to three Supreme Court justices who can be seen as illegitimate — plus, of course, Clarence Thomas, whose decades-long evasion of accountability for an egregious pattern of sexual harassment surely ought to be brought to a belated end. Plus all the lower court judges Bush appointed during his two terms in office. Primus provides us with an excellent framework for understanding the dangers of allowing constitutional hardball to run amok. We can hope that Calabresi’s plan won’t be enacted, making things incalculably worse. But there are severe dangers of not engaging in constitutional hardball, as well. As Tushnet himself (also at Balkinization) put it: If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective. He went on to say: My current hobby-horse is the small-c norm setting the Court's size at nine. I think -- really, I do think this -- that Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do). The rationale is not (on the surface) to "seize control of the judiciary." Rather, it is to undo the Republicans' theft of the Garland seat. ... The Democratic proposal for changing the small-c constitutional norm about the Court's size would be an offer of a new norm -- "You can't steal a Supreme Court seat and expect to get away with it." Seems like a good new norm to me. The situation is obvious: We’re already living in a badly damaged “normal” state, and a perniciously diminished, self-limiting form of liberalism is largely responsible for that. The Calabresi plan should be a wakeup call for progressive activists, not just to fight back against the ongoing Trump takeover of the courts but to begin crafting a serious, far-reaching constitutional hardball strategy of our own, Tushnet’s Supreme Court proposal is a good starting point — but it’s only a start. We need to see ourselves, to borrow Robin's phrase, as the future gravediggers of this pathological formation, which we fervently hope will never return.Anti-Trump court systems are key to check multiple instances of executive power Leonard 17 (Meghan E. Leonard, Associate Professor of political science at Illinois State University, “Despite Trump’s attempts to delegitimize them, the Courts are checking executive power exactly as they should”, LSE, ) TSThe government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy…It is beyond question, that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. (State of Washington and State of Minnesota v. Trump 2017). The quotes above highlight the narrative in President Trump’s seeming ‘war’ on the power of the federal courts. The President, disheartened by the district court’s temporary restraining order on his executive order, attacked both federal District Court Judge James L. Robart (“so-called judge”) and the power of the federal courts to make this decision. Of course, the federal courts do have the power to halt potentially unconstitutional executive orders and check the other two branches of government. The power of the Supreme Court and federal courts more generally to interpret the Constitution, or ‘say what the law is’ was given to the Court by its own Chief Justice John Marshall in 1803, in Marbury v. Madison. Not explicated in the Constitution itself, judicial review is the heart of judicial power in the United States. While Marbury gives the Court the legal authority to say what the law is, the legitimacy of the courts gives them the political capacity to have their decisions complied with. The legitimacy of the Supreme Court is best understood as a reservoir of goodwill toward the institution, whereby individuals accept the decisions of the Court because they trust the institution. While a debate exists on how ideology and agreement with individual Court decisions affects support for the Court, political scientists have generally concluded the support for the Supreme Court is high and enduring. And given that the courts have neither the ‘power of the purse nor the sword’ it is this diffuse support that leads the other branches of government to comply with and implement the decisions of the Court. Not doing so could lead to backlash from the public, which the elected branches, which are concerned centrally about reelection seek to avoid. The legitimacy of the Court does not mean the president or Congress won’t express their disagreement with judicial decisions. In 2010, then-President Obama infamously challenged the Supreme Court’s decision in Citizens United v. FEC, by suggesting in his state of the union address“with all due deference to separation of powers, last week the Supreme Court reversed a century of law… that would open up the floodgates to special interests.” This was neither the first nor the last time a sitting president has used their power to ‘go public’ to challenge the decision of the Supreme Court. Yet, while presidents often disagree with Supreme Court decisions on issues most important to their administration, they most often comply with the decision of the Court, even once calling the National Guard to do so. Not always the case, for example, Lincoln ignored the post-Dred Scott Court’s decision in ex parte Merryman, this would be the exception, rather than the rule. In another way to respond to the Court, the president may turn to allies in Congress and attempt to check the power of the court through court-curbing legislation. Most famously used by President Roosevelt in his attempt to add six justices and pack the Court that struck down many pieces of his New Deal legislation, this court–curbing legislation is designed to propose limitations to the power of the federal courts as well as demonstrate to the public response to unpopular decisions. Research demonstrates that the Court is responsive to new court-curbing legislation, and will limit the use of judicial review in response. So, while the Trump White House is arguing the federal courts are too powerful in their ability to check the executive and legislative branches, there are a least some limitations on this power. Given the difference in the comments by President Trump compared to past presidential statements that highlight the importance of trusting the separation of powers, many commenters have raised concern that we might be facing a crisis of the Constitution. At this point, I would conclude rather than a crisis, our system is working exactly the way it is supposed to. The judicial branch is checking the power of the executive branch, in an effort to stop any potential violations of the Constitution. As for the future relationship between Trump and the Courts? New polling hints at what the American people think : 53 percent of Americans trust the courts to make the right decisions, while only 38 percent would trust President Trump more. Only a quarter of voters would want President Trump to have the power to overturn the decisions of the courts, though of Trump voters 51 percent would give the president this power. Almost two-thirds of voters do not believe the president should have the power to overturn judicial decisions. Trump’s most ardent supporters notwithstanding, the American people seem to be happy with the so-called judges fulfilling their Constitutional duties.Unchecked executive causes multiple scenarios for extinction---resistance is keyPrashad 6/21 (Vijay, professor of international studies at Trinity College in Hartford, Connecticut. He is the author of 18 books, “Trump, With a Vicious Temperament, Seems Eager to Hasten the Doomsday Clock,” )Watching U.S. President Donald Trump toss binders of environmental regulations onto the ground underscored the grave dangers of this administration: the final administration. The disregard for the negative social and natural implications of human-induced climate change and warfare is striking. It is not as if Trump has broken fundamentally with a past where the world leadership was somehow truly worried about climate catastrophe and extinction by weapons of mass destruction. There are more continuities here than sharp breaks. Trump has nonetheless moved the needle faster, with a much more vicious temperament, unwilling to bend to liberal hypocrisies, eager to hasten the minute hand of the Doomsday Clock. It would not be too much to expect the Trump administration to propose to use ‘small’ nuclear weapons to blast coal seams and uncover more carbon to power the world to Armageddon. It is not as if the Paris or Kyoto agreements would have been sufficient to stem the tide of adverse climate change. Even those were too mild, too friendly to corporations that make their money destroying the planet. But at least these agreements forced governments to accept that human activity—namely industrial capitalism—had hastened the destruction of nature. Now, Trump’s Energy Secretary Rick Perry says openly that carbon dioxide emissions are not the main drivers of climate change. Perry pointed the finger of blame at ‘ocean waters,’ allowing industrial capitalism an exit from responsibility. Why bother with alternatives to carbon when there is no ‘evidence’ that such energy sources bring the planet closer to annihilation? Meanwhile, at the two ends of Eurasia, Trump has moved closer to war at a planetary scale. Trump has authorized the U.S. military to go after Syrian and Iranian military assets in western Syria that are currently engaged against ISIS. Russia has now warned the United States that any U.S. aircraft in that airspace will be seen as ‘air targets.’ Iran has fired ballistic missiles from Iran into eastern Syria. This sends a message to Israel and Saudi Arabia that they are within range of Iranian missiles. What might be seen as deterrence at any other time could very well be a provocation in these times of the final administration. Trump’s messy entry into the Gulf crisis, backing Saudi Arabia and the United Arab Emirates against Qatar and Turkey, suggests no finesse in contemporary U.S. diplomacy. More firepower and more belligerent talk is the currency of our times. That this might provoke a much greater altercation in West Asia is of little concern to the final administration. That the war might spread from there into other locations, such as Eastern Europe and North Africa, seems to be of no concern. Even more chilling was a tweet Trump sent this week that pertains to the other flank of Eurasia. ‘While I greatly appreciate the efforts of President Xi and China to help with North Korea,’ wrote Trump, ‘it has not worked out. At least I know China tried!’ So now what? Is the United States preparing for war against North Korea? South Korea and the U.S. have increased their military activity near North Korea—all provocations against a government terrified of being attacked. When a North Korean drone drifted into South Korean airspace this week, even the less military-minded new government in the south led by Moon Jae-in suggested that war was on the horizon. Will a ‘small’ nuclear exchange be contemplated for the Korean Peninsula and for Eastern Asia in general? We are between climate catastrophe and wars of extinction, with the final administration provoking both at hyper-speed. Trump plays the role of Judas in Gaudi’s sculpture. Jesus speaks to him about betrayal. But he is looking over Judas’ shoulder. He is asking the rest of us if we are participants in the betrayal. What are you doing today to prevent Trump's agenda from driving our planet closer to extinction?DA Drugs / CartelsOperation Raging Bull and new provisions for drug tasks forces decimate organized crime – MS-13 takedown provesFarivar 11/16 (Masood Farivar, fought in the anti-Soviet resistance in the late 1980s before attending Harvard University, from which he received a degree in history and politics. His journalism has appeared in publications including The Wall Street Journal, The Village Voice, and Soldier of Fortune. He lives in Afghanistan, 11-16-2017, "US Announces Arrests of 267 MS-13 Gang Members in Latest Sweep," VOA, )-DSU.S. law enforcement officials announced on Thursday the arrest of 267 members of MS-13, a violent gang the Trump administration has vowed to get off America's streets. The arrests were made in recent weeks as part of a major anti-gang crackdown code-named Operation Raging Bull. Led by U.S. Immigration and Customs Enforcement, the operation swept up 214 MS-13 members in the United States and 53 members in El Salvador, the gang's home base, officials said. The two-phase operation, aimed at MS-13 members and their global financial networks, was begun under the administration of former President Barack Obama but has escalated under President Donald Trump. The initial, 18-month phase ended in September and netted 51 arrests in El Salvador, officials said at a news conference in Washington. The second phase, running from October 8 to November 11, resulted in the latest arrests in the United States and El Salvador. Administration's efforts U.S. Attorney General Jeff Sessions touted the arrests as an important step in the Trump administration's effort to stamp out MS-13, whose members have been implicated in a series of high-profile murders around the country. "President Trump has ordered the Department of Justice to reduce crime and take down transnational criminal organizations, and we will be relentless in our pursuit of these objectives," Sessions said in announcing the arrests. "That's why I have ordered our drug-trafficking task forces to use every law available to arrest, prosecute, convict and defund MS-13." The only street gang designated by the Treasury Department as a transnational criminal organization, MS-13, also known as Mara Salvatrucha, boasts nearly 10,000 members in the United States, mostly immigrants from El Salvador, Guatemala and Honduras. In a statement, the Justice Department said a majority of the 214 MS-13 members arrested in the United States were from El Salvador and that 64 members had illegally en tered the United States as "unaccompanied alien children." Sixteen of the arrestees are U.S. citizens and five have legal status in the United States, the department added. Trump has blamed what he calls the lax immigration policies of the Obama administration for allowing gang members to enter the United States illegally as unaccompanied alien minors. Root out MS-13 In February, Trump directed the Justice Department to redouble its efforts to root out MS-13 and other transnational criminal organizations. The Justice Department said it's trying to do exactly that. Last month, Sessions formally designated MS-13 as a "priority" for the department's Organized Crime Drug Enforcement Task Forces, a collective of several law enforcement agencies, including the FBI. The designation allows the drug task forces that typically focus on organized crime and drug trafficking to use an array of statutes, including gun laws, drug laws and tax laws, to target the gang. The Justice Department said it has secured the convictions of 1,200 gang members and the arrests and indictments of about 4,000 MS-13 members in El Salvador so far this year.Plea bargaining is the lynchpin of maintaining low level informants for drug cases.Natapoff 8 (Natapoff, Alexandra, served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. "Deregulating Guilt: The Information Culture of the Criminal System." Cardozo Law Review 30.3 (2008): 965-1021) AXY The remainder of this piece focuses on the use of criminal informants, a low-tech law enforcement technique that has become increasingly influential in the investigation of drug and street crime, conspiracy, corporate fraud, and, most recently, terrorism. The practice dramatically illustrates the difficult trade-offs inherent in law enforcement discretion, and has altered many aspects of investigation as well as plea bargaining and sentencing. Informant use spans all three informational spheres and affects numerous aspects of the criminal system’s information culture: from its significance as an investigative tool, to its use as a plea bargaining technique, as well as its impact on Supreme Court doctrine. Taken together, these characteristics reveal a complex and troubling informational dynamic in tension with many of the system’s legitimating precepts of informational regulation. VI. CRIMINAL INFORMANTS: THE DEREGULATION OF GUILT The dominance of plea bargaining in conjunction with the war on drugs has made the use of criminal informants a central engine of the criminal justice system.114 Nearly every drug case involves a snitch, and drug cases represent an ever larger proportion of both state and federal dockets. As U.S. District Judge Marvin Shoob once complained, “I can’t tell you the last time I heard a drug case of any substance in which the government did not have at least one informant. . . . Most of the time, there are two or three informants, and sometimes they are worse criminals than the defendant on trial.”115 Moreover, informants are used in the investigation, prosecution, and/or sentencing of every type of offense, from child pornography to antitrust to burglary.116 As the use of informants becomes an increasingly common investigative and case management tool, the impact of the official practice of trading information for liability with criminals becomes of central importance for understanding the system’s changing information culture.117 Criminal informants—i.e., criminal offenders who receive lenient treatment because of their cooperation with the government118—are a longstanding and important part of the criminal system. Certain kinds of cases—drug conspiracies, antitrust, corporate fraud, terrorism—are difficult to investigate or prosecute without them, as the government is in a poor position to obtain incriminating information without inside help. Some kinds of information, for example, are only possessed by participants. Moreover, informants are procedurally simple and cheap. For example, while the government can apply for a wiretap order under Title III, it needs to show probable cause, and the resulting order will include time and other limitations. Alternatively, the government can skip the warrant process altogether and get an informant to wear a wire, without having to show probable cause and without temporal or spatial restrictions.119 Their usefulness and ease have thus made informants a staple of drug and other investigations. Drug trafficking funnels bank into money laundering practicesInsulza 15 (José Miguel Insulza, Chilean politician who served as Secretary General of the Organization of American States from 2005 to 2015,“The Drug Problem in the Americas”, Organization of American States, ) TSThe illegal drug economy needs to cover up the illicit origin of its assets and flows, in order to bring them into the legal economic system. Funds generated in the illegal drug economy enter the legal economy through money laundering, which comprises a set of activities within and outside the financial system aimed at legitimizing ill-gotten gains. A variety of approaches can be used to launder drug proceeds into the formal financial system. These include over-invoicing imports, purchasing open system prepaid cards, exchanging digital currencies, sending money through more than 200 secure online payment systems, and laundering money through cash-intensive businesses—such as hotels, casinos, and construction—that are controlled by organized criminal groups.57 Additionally, drug purchases can be laundered through purchasing and reselling real estate, vehicles, and other luxury goods. Even when various financial regulations are in place, records of property transactions often remain scattered across public notaries and are difficult to trace, making real estate a favored method both for consuming and laundering drug proceeds.58 While there is no agreement as to the volumes of illicit funds fed into the system, a broad consensus does exist as to the corrupting and distorting power of those funds. Given the multiplicity of players involved, the complete absence of transparency in their transactions, and the continually shifting mechanisms devised, the magnitude of the problem is hard to gauge. Furthermore, it is important to mention that although the illegal drug economy is one of the principal drivers of money laundering, this practice comprises multiple and complex illicit activities, including the bribing of government officials and tax evasion. From a security perspective, money laundering helps criminal organizations penetrate different spheres of society, besides wielding enormous power to corrupt civil servants and private sector actors. Money laundering drags “legal” economic agents into illegal activities. It fuels and boosts direct and indirect relations between a number of actors, generating “grey” areas in which apparently legal players take part in clearly illegal actions. Traditionally, the financial sector, and banks in particular, have been used to launder assets. The nature and diversity of the services provided by this sector permit maneuvers that can swiftly and safely channel funds generated by criminal activities, while hiding the origin of the proceeds. However, in response to the implementation of prevention systems in the financial sector, the organizations involved in money laundering have diversified their mechanisms, procedures, and flows and are now using other economic sectors. Currently, building on experiences of cases detected all over the world, prevention systems have been incorporated into a large number of sectors, such as insurance companies, securities brokers, foreign exchange dealers, remittance firms, casinos, minerals and precious stones merchants, real estate, and among independent professionals, such as notaries, accountants, and attorneys. Money laundering triggered by the illegal drug economy has detrimental effects on the economy, social development, and democratic governance. Although money laundering is a crime that often goes unnoticed, its consequences run deep and extend beyond their impact on the economy. In underdeveloped areas with little state presence, the injection of funds stemming from the illegal drug market has a powerful impact, heaping goods and services on segments of the population hitherto cut off from traditional, legal economic circuits. Under such circumstances, organized crime groups develop ties with the communities, who view their activities and investments as opportunities for social and economic integration. The dynamics of this relationship trigger “perverse” development, based on illegally acquired funds and the presence and control of criminal factions that impose order through threats and violence. In this scenario, traditional economic activities are crowded out as being less profitable while those propitious for money laundering and the concentration of resources thrive. Money laundering is not just tied to illegal drugs. Even if it were possible to diminish the funds derived from that illegal economy, the flow of money from administrative corruption, tax evasion, and other illicit activities—extortion, trafficking in persons, illegal arms sales, the smuggling of migrants, and illegal mining, to name a few—would continue to sustain the mechanisms and channels for concealing the sources of ill-gotten gains. Money-laundering laws tend to be weak. All the evidence suggests that new developments in money laundering are always a step or more ahead of the legal schemes devised to combat it, which means that laws have constantly to be revised and replaced. To make headway on this front, consideration should be given to providing more state resources for investigation and stronger penalties, even though that might involve measures that the financial sector, and even migrants remitting funds to their countries of origin, might find uncomfortable. Here it might be worth contemplating the imposition of criminal sanctions on institutions, and not just individuals, so as to avoid today’s situation in which only low-ranking officers are punished when banks or other financial institutions commit crimes. One of the main reasons why this phenomenon is transnational is that, in most cases, the “legalized” money ends up being deposited and used by head offices in the United States or Europe, not in the those financial institutions’ branches in Latin America or the Caribbean. Therefore, the focus should be on enforcing the law in the countries where the money ends up. Equally important and pressing, when it comes to continual updating of the legal schemes for combating money laundering, is ensuring homogeneity in the legislation of the different countries involved, since discrepancies in this area completely cancel out the investigative and punitive capacities developed in countries with more advanced legislation. The possibility of developing common legal ground, at least in relation to this problem, should be explored.Money laundering leads to economic decline Kumar 12 (Vandana Ajay Kumar, Department of Laws, Panjab University, Chandigarh, “Money Laundering: Concept, Significance and its Impact”, European Journal of Business and Management 4:2) TSThe Money laundering has negative effects on economic development. Money laundering constitutes a serious threat to national economies and respective governments. The infiltration and sometimes saturation of dirty money into legitimate financial sectors and nations accounts can threaten economic and political stability. Economic crimes have a devastating effect on a national economy since potential victims of such crimes are far more numerous than those in other forms of crime. Economic crimes also have the potential of adversely affecting people who do not prima-facie, seem to be the victims of the crime. For example, tax evasion results in loss of government revenue, thus affecting the potential of the government to spend on development schemes thereby affecting a large section of the population who could have benefited from such government expenditure. A company fraud not only results in cheating of the people who have invested in that company but may also adversely affects investors’ confidence and eventually the growth of the economy. The negative economic effects of money laundering on economic development are difficult to quantify, yet it is clear that such activity damages the financial-sector institutions that are critical to economic growth, reduces productivity in the economy’s real sector by diverting resources and encouraging crime and corruption, which slow economic growth, and can distort the economy’s external sector international trade and capital flows to the detriment of long-term economic development. Developing countries’ strategies to establish offshore financial centre (hereinafter OFCS) as vehicles for economic development are also impaired by significant money laundering activity through OFC channels. The negative effects of money laundering activities may be on financial sector, real sector of formal agents such as state, financial institutions and banking sector. Financial sector may get negative effects of money laundering especially financial institutions including banking and non –banking financial institutions (NBFIs),and equity markets- may directly or indirectly be affected. Basically,these institutions facilitate concentration of capital resources from domestic savings and funds from abroad. These institutions provide impetus to furtherance of investment prospects by providing conducive environment and efficient allocation of these resources to investment projects which contributes substantially to long run economic growth. Firstly the financial institutions are weakened directly through money laundering as there seems to be a correlation between money laundering and fraudulent activities undertaken by employees of the institutions. Similarly, with the increase in money laundering activities, major parts of financial institutions of a state are vulnerable to crime by criminal elements. This strengthens the criminals and other parallel system of money laundering channels. This may lead to the eviction of less equipped competitors and giving rise to monopoly. Customer trust is fundamental to the growth of sound financial institutions, and the perceived risk to the growth of sound financial institutions, and the perceived risk to depositors and investors from institutional fraud and corruption is an obstacle to such trust. Money laundering adversely affects economic growth through the real sector by diverting resources to less productive activities and by facilitating domestic corruption and crime. Money laundering carried out through the channels other than financial institutions includes more “sterile” investments such as real estate, art, antiques, jewelry and luxury automobiles, or investments of the type that gives lower marginal productivity in an economy. These sub optimal allocations of resource give lower level of economic growth which is a serious detriment to economic growth for developing countries. Criminals reinvest their proceeds in companies and real estate with the purpose to make further profits, legal or illegal. Most of these investments are in sectors that are familiar to the criminal, such as bar, restaurant, prostitution. The real estate sector is the largest and most vulnerable sector for money laundering. Real estate is important for money laundering, because it is a non-transparent market where the values of the objects are often difficult to estimate and where big value increases can happen and is an efficient method to place large amounts of money. The price increase in real estate is profitable and the annual profits on real business create a legal basis for income. The real estate has the following features, which make it attractive for criminal money Money laundering activities may impair any country’s economy through the trade and international capital flows.Excessive illicit capital flight from a state may be facilitated by either domestic financial institutions or by foreign financial institutions.That illicit capital flight drains scarce resources specially from developing economies; so by that way economic growth of respective economy is adversely affected58.Money laundering negatively affects trust of local citizens in their own domestic financial institutions as well as trust of foreign investors and financial institutions in a state’s financial institution which ultimately contributes to economic growth. Money laundering channels may also be associated with distortions of a countrys’ imports and exports. As with the involvement of criminal elements on the import side they may use illicit proceeds to purchase imported luxury goods, either with laundered funds or as part of the process of laundering such funds. Such imports do not generate domestic economic activity or employment, and in some cases can artificially depress domestic prices, thus reducing the profitability of domestic enterprises. The integrity of the banking and financial services market place depends heavily on the perception that it functions within a framework of high legal, professional and ethical standards. A reputation for integrity is the one of the most valuable assets of a financial institution. Dangers for the reputation can occur when a country deliberately declares to want to attract ‘criminal money’. If funds from criminal activity can be easily processed through a particular institution-either because its employees or directors have been bribed or because the institution turns a blind eye to the criminal nature of such funds-the institution could be drawn into active complicity with criminals and become part of the criminal network itself. Evidence of such complicity will have a damaging effect on the attitudes of other financial intermediaries and of regulatory authorities as well as ordinary customers. Money laundering not only threatens the financial system of a country by taking away command of the economic policy from the government, but also deteriorates the moral and social standing of the society by exposing it to activities such as drug trafficking, smuggling, corruption and other criminal activities. Money Laundering has become a global problem. Criminals target foreign jurisdiction with liberal bank secrecy laws and weak anti-money laundering regulatory regimes as they transfer illicit funds through domestic and international financial institutions often with the speed and ease of faceless internet transactions. This easy and vast infiltration of Criminal proceeds into world market can be stabilize them and can have a corrupting effect on those who work within the market system. The penetration of criminals into the legitimate markets can also shift the balance of economic power from responsible and responsive entities to rogue agents who have no political or social accountability. In short, when criminal enterprises are able to enjoy the fruits of the criminal ventures, the world market can be destabilized, leaving some countries vulnerable to persuasion and interference by corrupt organization.*Economic decline drives conflict and destabilizes deterrence structures --- results in nuclear war Stein T?nnesson 15, Research Professor, Peace Research Institute Oslo; Leader of East Asia Peace program, Uppsala University, 2015, “Deterrence, interdependence and Sino–US peace,” International Area Studies Review, Vol. 18, No. 3, p. 297-311Several recent works on China and Sino–US relations have made substantial contributions to the current understanding of how and under what circumstances a combination of nuclear deterrence and economic interdependence may reduce the risk of war between major powers. At least four conclusions can be drawn from the review above: first, those who say that interdependence may both inhibit and drive conflict are right. Interdependence raises the cost of conflict for all sides but asymmetrical or unbalanced dependencies and negative trade expectations may generate tensions leading to trade wars among inter-dependent states that in turn increase the risk of military conflict (Copeland, 2015: 1, 14, 437; Roach, 2014). The risk may increase if one of the interdependent countries is governed by an inward-looking socio-economic coalition (Solingen, 2015); second, the risk of war between China and the US should not just be analysed bilaterally but include their allies and partners. Third party countries could drag China or the US into confrontation; third, in this context it is of some comfort that the three main economic powers in Northeast Asia (China, Japan and South Korea) are all deeply integrated economically through production networks within a global system of trade and finance (Ravenhill, 2014; Yoshimatsu, 2014: 576); and fourth, decisions for war and peace are taken by very few people, who act on the basis of their future expectations. International relations theory must be supplemented by foreign policy analysis in order to assess the value attributed by national decision-makers to economic development and their assessments of risks and opportunities. If leaders on either side of the Atlantic begin to seriously fear or anticipate their own nation’s decline then they may blame this on external dependence, appeal to anti-foreign sentiments, contemplate the use of force to gain respect or credibility, adopt protectionist policies, and ultimately refuse to be deterred by either nuclear arms or prospects of socioeconomic calamities. Such a dangerous shift could happen abruptly, i.e. under the instigation of actions by a third party – or against a third party.Yet as long as there is both nuclear deterrence and interdependence, the tensions in East Asia are unlikely to escalate to war. As Chan (2013) says, all states in the region are aware that they cannot count on support from either China or the US if they make provocative moves. The greatest risk is not that a territorial dispute leads to war under present circumstances but that changes in the world economy alter those circumstances in ways that render inter-state peace more precarious. If China and the US fail to rebalance their financial and trading relations (Roach, 2014) then a trade war could result, interrupting transnational production networks, provoking social distress, and exacerbating nationalist emotions. This could have unforeseen consequences in the field of security, with nuclear deterrence remaining the only factor to protect the world from Armageddon, and unreliably so. Deterrence could lose its credibility: one of the two great powers might gamble that the other yield in a cyber-war or conventional limited war, or third party countries might engage in conflict with each other, with a view to obliging Washington or Beijing to intervene.4 Immac DD Aff RaceThe War on Drugs has been revitalized under Trump – Sessions has repealed Obama era reforms Lopez 10/24 (German, Writer for Vox with a focus with a focus on drugs, guns, criminal justice, race, and LGBTQ issues) “Under Trump and Sessions, federal prosecutors are ramping up the war on drugs,” Vox News, 10/24/2017 DDUS Attorney General Jeff Sessions has traveled around the country this year invoking fears of violent crime — and particularly the criminal group MS-13 — to justify a new “tough on crime” crackdown under the Trump administration. On the ground, however, Sessions’s anti-crime efforts look more like the old war on drugs than a new push against violent crime. Earl Rinehart reported for the Columbus Dispatch that US Attorney for the Southern District of Ohio Benjamin Glassman “is costing taxpayers more money” by prosecuting more people, even minor players in drug trafficking, “and he’s OK with that.” Rinehart went on (emphasis mine): The increase in the prosecution of violent crimes and drug cases such as these, especially amid the opioid crisis, had the U.S District Court for Southern Ohio looking for extra jail space to keep a record 483 defendants whose cases were pending as of Oct. 7. “That’s a lot for us,” said Chief U.S. District Judge Edmund A. Sargus Jr. Of the total defendants, 223 were up on drug charges, 43 for violent crimes and 38 for child pornography. Based on these figures, nearly half of the new cases are for drug charges, and less than 10 percent are for violent crime. Despite Sessions’s rhetoric about violent crime, it sure looks like drugs are still his office’s main focus. On Twitter, Glassman pushed back on the Dispatch’s report. He wrote, “I disagree that we are now charging minor players who, in years past, would not have been charged at all. To the contrary, as the article also notes, we're pushing our investigations and prosecutions farther and wider than ever before. If anything, as our scope and reach continue to grow, defendants who looked like leaders in years past now seem more like minor players. But we are absolutely not looking to prosecute low-level folks. Just the opposite.” In a statement, Glassman also questioned the Dispatch’s methodology and sources. He said that, by his count, “roughly a third of our case load involves violent crime and another third involves drugs or organized crime related to drugs, like money laundering.” Still, the federal government is unique in that about half the people it locks up are in for drug offenses. At the state level, where nearly nine in 10 prisoners in the US are held, most are in prison for violent offenses. Sessions seems determined to continue that federal trend. One of his first moves in the Justice Department was to instruct federal prosecutors to bring punitive charges that can trigger harsh mandatory minimum prison sentences against even low-level drug offenders, rescinding an Obama administration memo that told federal officials to pull back on these kinds of prosecutions. Criticizing the Obama administration’s decision, Sessions previously said, “What was the result? It was exactly what you would think: sentences went down and crime went up. Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016. Violent crime — which had been decreasing for two decades — suddenly went up again.” The research is against Sessions’s claims There is no reason, based on the research, to think the two trends Sessions cited are linked. Studies have repeatedly found that harsher punishments — which mandatory minimums force on judges by requiring that they sentence offenders to a minimum amount of time in prison — and the higher incarceration rates they lead to don’t have a big impact on crime. A 2015 review of the research by the Brennan Center for Justice estimated that more incarceration explained zero to 7 percent of the crime drop since the 1990s, while other researchers estimate it drove 10 to 25 percent of the crime drop since the ’90s — not a big impact either way. A 2014 analysis by the Pew Charitable Trusts also found that states that reduced their imprisonment rates also saw some of the biggest drops in crime, suggesting that there isn’t a hard link between incarceration and crime. As Harvard criminologist Thomas Abt previously told me, “Jeff Sessions is a crime dinosaur, peddling ‘tough on crime’ policies that went extinct years ago. He tries to link violent crime to the ‘smart on crime’ policies of the past administration, but there’s simply no evidence to support his argument.” (Abt broke down his criticisms further in a series of tweets.) In fact, Sessions’s prosecution strategy likely won’t make an impact even in combating the spread and use of drugs. One of the best studies on this is a 2014 review of the research by Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago. They found that while simply prohibiting drugs to some extent does raise their prices, there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance misuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs. “We did the experiment. In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing,” Mark Kleiman, a drug policy expert at the Marron Institute at New York University, previously told me. “And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to a higher drug price and therefore less drug consumption, the answer is no.”Plea bargaining is the leading contributor to mass incarceration – it manufactures a forfeiture of rights that subordinates people of color to the state Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDFirst, the procedural entrapment thesis is that the American plea bargain system (as an apparatus of population management wherein the USA maintains 5 per cent of the global population but 25 per cent of the world’s imprisoned population, and as an insti- tution that coerces the forfeiture of due process rights to accelerate criminal conviction and confinement of those charged), is massively and predominantly, though not acciden- tally or exclusively, a technology of racial domination. As a system of procedural entrap- ment, the plea bargain regime is a necessary condition of and a leading contributor to mass incarceration, which is fundamentally immoral and racially unjust. ? Without the widespread ‘forfeiture’ of rights that the plea bargain regime manufac- tures, the American criminal justice system simply could not process – i.e. arrest, detain, prosecute, imprison, and supervise – the vast numbers of people (predomi- nantly of color) that it currently does. The Supreme Court recognized this in 1971: ‘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.’78 (And this was just 5 months after President Richard Nixon declared the war on drugs, which inaugurated the era of mass incarceration that has since led to the upsurge of the imprisoned population by over 500 per cent. If criminal justice proce- dural capacity would have had to multiply many times over to accommodate every criminal defendant’s constitutional right to trial in 1971, the equivalent capacity requirements today would be paralysing to state and federal budgets.) The Court then concluded that plea bargaining is ‘an essential component of the administration of jus- tice’.79 ‘The truth is’, writes Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute, ‘government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials.’80 ? Second, the sedimentation thesis is directed toward the irresponsible prosecutorial prerogative that undergirds the system of procedural entrapment. As an institutional agency in the entrapment, confinement and social death of millions of Black, Latino/Latina and Native American people, the power of the prosecutorial function is a functional analogue, a postbellum sedimentation, of the irresponsible power of the administrators of plantation law (i.e. the southern slaveholding class). Both function massively and predominantly to enforce and reinscribe the terms of the racial contract of their day. The discretionary power of Frederick Douglass’ overseer was not subject to judicial investigation and was shielded from the censure of the public; and the Black subjects who may have sought refuge from the overseer’s arbitrary executions were extended no legal standing and thus had no recourse to equal protection of the law.81 Though the Reconstruction Amendments to the US Constitution ostensibly abolished such racial exclusions from the American social contract, present-day prosecutorial discretion, which sometimes makes life-and-death decisions, is analogously unac- countable and unreviewable, is almost always exercised behind closed doors, is answerable only to other prosecutors, and functions analogously to subordinate, entrap and confine people of color.82 ? Plea bargaining is a trap – stacked charges, underground deals, information deficits, and intimidation tactics Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDOne of the reasons for this is the widely overlooked or unknown fact, recently voiced by Supreme Court Justice Anthony Kennedy, that ‘criminal justice today is for the most part a system of pleas, not a system of trials’.33 Plea bargaining is a process that entails an (often quick) conversation in a prosecutor’s office or a courthouse hallway between attorneys familiar with only the basics of a criminal case – with no witnesses present, no full investigation, testimony, or impartial fact-finding – resulting in a proposed res- olution that is then ‘sold’ to both the defendant and the judge.34 Justice Kennedy asserts that the plea bargaining process – which he (quite tellingly) describes, following legal scholars, as a form of ‘horse trading’ – ‘is not some adjunct to the criminal justice sys- tem; it is the criminal justice system’.35 As things currently stand, more than 95 per cent of criminal convictions are the product of closed-door plea bargains that result in defen- dants ‘forfeiting’ their Fifth, Sixth and Fourteenth Amendment rights to due process,36 ? including, in the majority of cases, ‘waiving’ the right to appellate and post-conviction review.37 This means that currently more than 95 per cent of those convicted never see the fair trial by judge or jury that the constitution guarantees them – a state of affairs that led a federal judge recently to call trial by jury ‘an inconvenient artifact’.38 The cases of more than 95 per cent of the 7.5 million people under US penal control have not been held to the high evidentiary standard required to validate a criminal conviction in court. The pre-trial evidentiary threshold for leveling charges is much less exacting, merely requiring a prosecutor to persuade a grand jury that there is probable cause to indict. It is not just out of cynicism that most lawyers repeat the famous expression of former New York Court of Appeal Judge Sol Wachtler that prosecutors can get a grand jury to indict a ‘ham sandwich’.39 US attorneys prosecuted 162,000 federal cases in 2010; grand juries declined to return an indictment in 11 of those cases.40 ? Prosecutors admit to routinely engaging in strategic charge-stacking and overchar- ging in the plea bargaining process. Since the onset of the era of mass incarceration in the 1970s, federal and state legislatures have fragmented and multiplied criminal statutes so as to produce an abundance of overlapping crimes. This proliferation of criminal codes has constructed a context in which a single unlawful incident typically violates a half-dozen or more prohibitions.41 Coupled with the parallel adoption during this same period of mandatory minimum sentencing schemes at state and federal levels, the power to adjudicate guilt and impose sentences has shifted from the courtroom to the backroom, from judges and juries to plea bargaining prosecutors and police officers.42 Through the practice of strategic charge-stacking and overcharging, prosecutors exercise lax double jeopardy doctrine by charging criminal defendants with an arsenal of overlapping crimes for which they technically have probable cause, but which they seriously doubt they could ever prove in court (i.e. beyond a reasonable doubt). The strategy of this practice is to leverage what legal scholars call the ‘trial penalty’ to compel people to ‘convict themselves’ by pleading guilty to the lesser charge or set of charges that prosecutors then offer as a more ‘lenient’ alternative to the excessive, tenuous and redundant stack of charges originally leveled.43 Occasionally, defendants even enter ‘open pleas’ to all the charges against them, with no sentencing promises. ? Lest one wonder whether this coercive strategy were an accidental by-product of the mandatory sentencing regime, consider the following statement of the US Sentencing Commission, an agency in the judicial branch of government, among whose principal purposes is ‘to advise and assist Congress and the executive branch in the development of effective and efficient crime policy’. The commission identifies ‘inducement to plea bargain’ as one of the rationales for mandatory minimum sentencing legislation. In its 1991 Special Report to Congress, it stated that ‘the value of a mandatory minimum sen- tence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge’.44 Justice Kennedy affirmed this design in a recent Supreme Court ruling, claim- ing that ‘defendants who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sen- tences exist on the books largely for bargaining purposes’.45 ? A ‘bargain’ typically signifies a mutually advantageous agreement, an agreement between two parties in which a settlement is reached regarding what each party will give ? and take, perform and receive in the transaction.46 What is given and what taken in these plea bargains? According to the conventional, facially neutral account of the plea bar- gain contract, prosecutors give leniency to the accused. Specifically, prosecutors agree to drop a select number of the charges that the criminal code permits – charges, which is to say, for which probable cause has been established. In exchange for this ‘gift’, the accused must in turn forfeit his or her Fifth, Sixth and Fourteenth Amendment rights of protection against self-incrimination, to trial by jury, to confront and cross-examine adverse witnesses, to present evidence, to compel the attendance of witnesses, and to require prosecutors to prove guilt beyond reasonable doubt. By inducing defendants to forfeit these rights, district attorneys (and public defenders) save the resources that would otherwise be required to grant the accused the trial by jury that the constitution guarantees her or him. As legal scholars Scott and Stuntz put it, employing the vocabu- lary of cost-benefit calculus that is the stock-in-trade of the prison industrial complex: ‘Plea bargaining provides a means by which prosecutors can obtain a larger net return from criminal convictions, holding resources constant.’47 ? In their rationalizations of plea bargaining, legal scholars and practitioners at the highest levels of government falsely conceptualize it within an idealized framework of transaction between equals. The Supreme Court maintains that the plea bargain flows from ‘the mutuality of advantage’ to defendants and prosecutors.48 Indeed, the Court infers (with neither evidence nor argumentation) that it is this alleged ‘mutuality of advantage’ that explains the fact that the vast majority of the criminal convictions in this country rest on pleas of guilty or nolo contendere no contest resulting from plea bar- gaining.49 But the plea bargain regime appears like a market of mutually advantageous contracts, entered into freely by both parties, only when it is viewed abstractly – divorced from the structural coupling formed between mandatory minimum sentencing schemes and the pervasive prosecutorial practices of racially selective charging, charge-stacking and overcharging; disconnected from the context and genealogy of mass incarceration as a system of racial governance.50 ? In actuality, the plea bargain regime is concretely constituted by structural asymme- tries and relations of domination that are masked by the liberal contractual framework. The ‘self-incrimination’ that results from plea bargains is frequently the product of duress and unconscionable information deficits wherein defendants (who are often indigent) are deprived of the opportunity to deliberatively evaluate the ‘exchange’ of risks and penalties into which they enter. For instance, one formerly incarcerated person with whom I spoke at Project Rebound in San Francisco was given 10 minutes in court to decide in isolation whether to accept a plea carrying a 25-year sentence or face a potential life sentence. Such duress is not exceptional. Also, few criminal defen- dants (or people in general) realize that felony conviction, beyond possible prison time, entails a host of ‘collateral consequences’ or civil penalties that persist even after one has been released from prison. Judges and lawyers are not required to inform criminal defendants of some of the most important rights and entitlements that defendants are forfeiting when they plead guilty to a felony (and that they incur whether or not they spend a day in prison). These civil penalties (technically called ‘civil disabilities’, since courts have generally declined to interpret that such sanctions, for constitutional purposes, are actually ‘punishment’) include deportation, and denial of the rights to ? vote, serve on a jury, or be employed in certain occupations, as well as lifetime inelig- ibility for food stamps, cash assistance programs, public housing and student loans.51 Legislative and judicial representatives readily admit that mandatory minimum sen- tencing schemes are excessive and thus in violation of the retributive principle of propor- tional punishment – not by accident, but by design.52 And they readily admit that such utilitarian design is consequentially to ‘induce’ defendants to forfeit their constitutional rights. In the executive branch, prosecutors routinely and openly apply leverage and overlap these excessive sentencing schemes to compel defendants to ‘self-incriminate’ ? by ‘pleading out’ of the jury trial system to which they are constitutionally entitled. And yet, the Supreme Court masks the coercion that undergirds this system. In the 1978 precedent-setting case that gave ultimate legal sanction to prosecutorial compul- sion in plea bargaining, the Court acknowledged that punishing a person accused of a crime for exercising his or her right to trial by jury ‘is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional. But’, the Court continues, ‘in the ‘‘give-and-take’’ of plea bargaining, there is no such element of punish- ment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.’53 This was in the context of a decision ruling it constitutionally legitimate for a pro- secutor to threaten someone with life imprisonment error for a minor crime (i.e. forging an ? $88.30 check) in an effort to strong-arm him into forfeiting his right to a jury trial.54 How many reasonable people, when faced with the ‘double bind’ alternative between a potential life sentence and a guaranteed 5-year sentence, would feel meaningfully free to ‘accept or reject the prosecution’s offer’ and risk exercising her or his constitutional right to due process?55 Cognizant of systemic racial disparities, like the steeply higher rate of criminal conviction and disproportionate severity of criminal sentences meted out to sub- jects of color,56 reasonable people of color are especially unlikely to feel the freedom of choice that would distinguish a relation of equal exchange from a relation of domination. Seen in the light of these unconscionable information deficits and distributional inequities, the coercive and pervasive prosecutorial practice of charge-stacking and over- charging, and the sharply asymmetrical negotiating positions of the state and the accused; furthermore, considering the massive under-representation of people of color among criminal prosecutors (e.g. on average, 86 per cent of judges and prosecutors in federal districts are white),57 and the enormous over-representation of people of color among those incarcerated (i.e. roughly 70 per cent, and nearly 50 per cent Black):58 we ought to hear this multitude of pleas not as a chorus of guilty confessions singing in synch with the expediently fine-tuned orchestra of American criminal justice (playing the melody of the Law and Order theme song); and we surely ought not to view it as an expression of prosecutorial ‘leniency’ or procedural justice. Rather, we ought to concep- tualize this throng of pleas, massively and predominantly, as the procedural entrapment of the impoverished and racially oppressed. ? Mass incarceration is a form of modern genocide – it’s responsible for rampant intercity violence, crushing poverty, and massive loss of freedom Thompson 14 (Heather Ann, Associate professor of African American studies and history at Temple University) “Inner-City Violence in the Age of Mass Incarceration,” The Atlantic, 10/30/2014 DDJust as hyper-segregation doesn’t explain the violence that so many have to endure today in America’s inner city communities while still raising children, attending church, and trying to make ends meet, neither does highly-concentrated poverty. Because of their exclusion from virtually every program and policy that helped eventually to build an American middle class, non-whites have always had far less wealth than whites. From the ability to maintain land ownership after the Civil War, to the virtual guarantee of welfare benefits such as Social Security and FHA loans during the New Deal, to preferential access to employment and housing in the postwar period, white communities have always had considerably more economic advantage than communities of color. And yet, no matter how poor they were, America’s most impoverished communities have never been plagued by the level of violence they are today. But if neither racial segregation nor the racial poverty gap can account for the degree to which poor communities of color are traumatized today, then what does? What is altogether new is the extent to which these communities are devastated by the working of our nation’s criminal justice system in general and by mass incarceration in particular. Today's rates of incarceration in America's poorest, blackest, and brownest neighborhoods are historically unprecedented. By 2001, one in six black men had been incarcerated and, by the close of 2013, black and Latino inmates comprised almost 60 percent of the nation’s federal and state prison population. The numbers of incarcerated black women are also stark. According to the Bureau of Justice Statistics, young black women ages 18 to 19 were almost five times more likely to be imprisoned than white women of the same age in 2010. When President Lyndon B. Johnson passed the Law Enforcement Assistance Act in 1965—legislation which, in turn, made possible the most aggressive war on crime this nation ever waged—he was reacting not to remarkable crime rates but to the civil rights upheaval that had erupted nationwide just the year before. This activism, he and other politicians believed, represented not participatory democracy in action, but instead a criminal element that would only grow more dangerous if not checked. Notably, the national policy embrace of targeted and more aggressive policing as well as highly punitive laws and sentences—the so-called “War on Crime” that led eventually to such catastrophic rates of imprisonment—predated the remarkable levels of violence that now impact poor communities of color so disproportionately. The U.S. incarceration rate more than quadrupled between 1965 and 1995. In fact, the U.S. homicide rate in 1965 was significantly lower than it had been in several previous moments in American history: 5.5 per 100,000 U.S. residents as compared, for example, with 9.7 per 100,000 in 1933. Importantly, though, whereas the violent crime rate was 200.2 per 100,000 U.S. residents in 1965, it more than tripled to a horrifying 684.6 per 100,000 by 1995. Though mass incarceration did not originate in extraordinarily high rates of violence, mass incarceration created the conditions in which violence would surely fester. The quadrupling of the incarceration rate in America since 1970 has had devastating collateral consequences. Already economically-fragile communities sank into depths of poverty unknown for generations, simply because anyone with a criminal record is forever “marked” as dangerous and thus rendered all but permanently unemployable. Also, with blacks incarcerated at six times and Latinos at three times the rate of whites by 2010, millions of children living in communities of color have effectively been orphaned. Worse yet, these kids often experience high rates of post-traumatic shock from having witnessed the often-brutal arrests of their parents and having been suddenly ripped from them. De-industrialization and suburbanization surely did their part to erode our nation’s black and brown neighborhoods, but staggering rates of incarceration is what literally emptied them out. As this Pew Center of the States graphic on Detroit shows, the overwhelmingly-black east side of the Motor City has been ravaged by the effects of targeted policing and mass incarceration in recent years with one in twenty-two adults there under some form of correctional control. In some neighborhoods, the rate is as high as one in 16. Pew Center for the States Such concentrated levels of imprisonment have torn at the social fabric of inner city neighborhoods in ways that even people who live there find hard to comprehend, let alone outsiders. As the research of criminologist Todd Clear makes clear, extraordinary levels of incarceration create the conditions for extraordinary levels of violence. But even mass incarceration does not, in itself, explain the particularly brutal nature of the violence that erupts today in, for example, the south side of Chicago. To explain that, we must look again carefully and critically at our nation’s criminal justice system. The level of gun violence in today's inner cities is the direct product of our criminal-justice policies—specifically, the decision to wage a brutal War on Drugs. When federal and state politicians such as New York Governor Nelson Rockefeller opted to criminalize addiction by passing unprecedentedly punitive possession laws rather than to treat it as a public health crisis, unwittingly or not, a high level of violence in poor communities of color was not only assured but was guaranteed to be particularly ugly. This new drug war created a brand-new market for illegal drugs—an underground marketplace that would be inherently dangerous and would necessarily be regulated by both guns and violence. Without the War on Drugs, today's levels of inner-city gun violence would not exist. Indeed, without the War on Drugs, the level of gun violence that plagues so many poor inner-city neighborhoods today simply would not exist. The last time we saw so much violence from the use of firearms was, notably, during Prohibition. “As underground profit margins surged, gang rivalries emerged, and criminal activity mounted during Prohibition,” writes historian Abigail Perkiss, “the homicide rate across the nation rose 78 percent…and in Chicago alone, there were more than 400 gang-related murders a year.” As important as it is to rethink the origins of the violence that poor inner city residents still endure, we must also be careful even when using the term “violence,” particularly when seeking to explain “what seems to be wrong” with America’s most disadvantaged communities. A level of state violence is also employed daily in these communities that rarely gets mentioned and yet it is as brutal, and perhaps even more devastating, than the violence that is so often experienced as a result of the informal economy in now-illegal drugs. This is a violence that comes in the form of police harassment, surveillance, profiling, and even killings—the ugly realities of how law enforcement wages America’s War on Drugs. Today, young black men today are 21 times more likely than their white peers to be killed by the police and, according to a recent ProPublica report, black children have fared just as badly. Since 1980, a full 67 percent of the 151 teenagers and 66 percent of the 41 kids under 14 who have been killed by police were African American. Between 2010 and 2012 alone, police officers shot and killed fifteen teens running away from them; all but one of them black. This is the violence that undergirded the 4.4 million stop-and-frisks in New York City between 2004 and 2014. This is the violence that led to the deaths of black men and boys such as Kimani Gray, Amadou Diallo, Sean Bell, Oscar Grant, and Michael Brown. This is the violence that led to the deaths of black women and girls such as Rekia Boyd, Yvette Smith, and 7-year-old Aiyana Stanley-Jones. And this is the violence that has touched off months of protests in Ferguson, Missouri just as it also touched off nearly a decade of urban rebellions after 1964. A close look at the violence that today haunts America’s most impoverished and most segregated cities, in fact, fundamentally challenges conventional assumptions about perpetrators and victims. America’s black and brown people not only don’t have a monopoly on violence, but, in fact, a great deal of the violence being waged in their communities is perpetrated by those who are at least officially charged with protecting, not harming, them. As residents of Ferguson well know, for example, in the same month that Michael Brown was shot to death by a police officer, four other unarmed black men were also killed by members of law enforcement. Indeed, the true origins of today’s high rates of violence in America’s most highly segregated, most deeply impoverished, and blackest and brownest neighborhoods—whoever perpetrates it—are located well outside of these same communities. Simply put, America’s poorest people of color had no seat the policy table where mass incarceration was made. But though they did not create the policies that led to so much community and state violence in inner cities today, they nevertheless now suffer from them in unimaginable ways.Thus the plan, Resolved: The United States federal government should abolish plea-bargaining. The plan solves prosecutorial coercion and causes judicial overload which short-circuits the inward flow of prisoners Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDBurton is painfully aware that the norm of pleading guilty enhances prosecutors’ capacity to process an ever-increasing number of cases, widening the net of mass incar- ceration. She also knows that the system of mass incarceration relies upon the wide- spread ‘forfeiture’ of rights that the plea bargain regime manufactures. With this in mind, Burton posed the following question to Alexander: ‘What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?’ ? Initially stunned, Alexander ‘launched, predictably, into a lecture about what prose- cutors would do to people if they actually tried to stand up for their rights’, reminding Burton of the risks involved in facing down the arsenal of excessive and overlapping sen- tencing schemes that prosecutors were equipped with. She may also have reminded Bur- ton of the severity of the so-called ‘trial penalty’ that, according to recent data analysis, makes the sentence following a jury trial conviction on average 3.5 years more severe than the sentence imposed after a guilty plea.125 ? Painfully and personally aware of such risks, Burton replied, ‘Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?’ To which Alexander responded: ? The answer is yes. The system of mass incarceration depends almost entirely on the coop- eration of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, ‘if the number of peo- ple exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.’ ? Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial ‘emergency’ fiat). Either action would create a crisis and the sys- tem would crash – it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid. ? Burton, who shares Alexander’s assessment of the risk and potentiality of mass plea refusal, claimed: ? I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argu- ment would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives. ? It would be difficult to overstate the strategic advantages and potentially transformative political repercussions of the mass conscientious plea refusal that Burton incisively pro- poses. In the tradition of the civil rights movement practice of non-violent direct action – which, in Martin Luther King, Jr,’s famous formulation, sought to ‘create a crisis’ in the racist structures of society by establishing a ‘creative, constructive tension’ that forces society to confront and correct racial injustices that it has constantly refused to address – the mass assertion of constitutional due process rights would rapidly and efficiently overwhelm the prosecutorial regime, throw the system of mass incarceration into crisis, and force the government to take immediate and substantive action to remedy its racial injustice.126 Judicial overload causes broad criminal justice reforms that solve mass incarceration Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDExecutive desistence in the face of the systemic crisis generated by the mass asser- tion of due process rights would likely prove unsustainable, however, as it would pre- sumably raise widespread doubts about the rationality, legitimacy and procedural justice of maintaining an arsenal of criminal statutes that routinely go unenforced. Selective enforcement is, of course, the stock-in-trade of the prosecutorial and policing professions, which, while financially flush in the era of mass incarceration, are execu- tors of a distended body of criminal law that, as Harvard Law Professor William Stuntz claims, ‘covers far more conduct than any jurisdiction could possibly punish’.130 How- ever, programmatic desistence of the magnitude that would be required to restrict crim- inal justice processing to the levels that could be maintained while still accommodating the constitutional trial rights demanded by a mass movement of conscientious plea objectors would arguably erode the perceived legitimacy of the criminal law (at least with respect to the lower-spectrum of the penal code). Such potentialities would likely force the question of state and federal legislative reform in the direction of de- criminalization, or even legalization (e.g. in the case of certain classes of drugs).131 Recent state direct-democracy initiatives suggest that there may be fairly substantive popular support for attenuating criminal codes through selective statutory mitigation, decriminalization and legalization. For example, Colorado (2012), Washington State (2012), Oregon (2014), Alaska (2014) and Washington, DC (2014) have all passed measures to legalize, regulate and tax the production and sale of marijuana for rec- reational use. Californians also overwhelmingly passed the Three Strikes Reform Act of 2012 (Proposition 36), which shortens sentences of those subjected to life prison terms for ‘non-serious’, ‘non-violent’ offenses, and Proposition 47 (2014), which de- felonizes all drug use, downgrades a multiplicity of non-violent economic and drug offenses from felonies to misdemeanors, and reinvests the estimated $150 million in annual state savings toward school truancy and drop-out prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alter- natives to incarceration. Such measures demonstrate popular support for advancing a public safety strategy beyond incarceration to include treatment and prevention. ? Mass plea refusal could intensify such efforts by striking a major blow to the prison industrial complex, which, as Angela Y. Davis points out, ‘devours the social wealth needed to address the very problems related to employment, education, housing, addiction, mental disorder, etc. that have led to spiraling numbers of prisoners’.132 Not even accounting for the multibillion dollar corporate industry that weaves in and out of the public and private prison systems,133 US criminal justice expenditures grew by over 600 per cent between 1980 and 2006, from $35 billion to $215 billion. Criminal justice system employment (including police, and corrections, judicial and legal, at federal, state and local levels) doubled during that same period, rising from 1.2 million to 2.5 million people.134 Widespread sentencing mitigation at all or most levels of existing criminal codes and de-criminalization in the lower-spectrum of existing penal codes would disemploy and disencumber a significant portion of these people and resources for more socially generative employment and investment. As an exercise in imaginative possibility, consider the following scenario. If we cut public financing of mass incarceration by, for example, returning criminal justice spending to the inflation-adjusted levels spent in 1980 – prior to the escalations of the wars on drugs and illegal immigration, which have since fueled the 500 per cent increase in the incarcerated population – over $125 billion of public wealth would be freed up each year for investment in socially reparative and generative enterprises like education, childcare, mental and physical health care and drug treatment, public housing, job training, food assistance, parks and recreation, etc. Such enterprises could easily absorb and constructively employ the millions of people that America’s carceral system currently employs and confines. As Davis maintains, ‘The creation of new institutions that lay claim to the space now occupied by the prison industrial complex can eventually start to crowd out the prison so that it would inhabit increasingly smaller areas of our social and psychic landscape’.135 No reinvestment in mass incarceration – shrinking state and federal budgets Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDOf course, rather than a complex of executive desistence, legislative mitigation and de-criminalization, and public reinvestment that tilts toward a less carceral and puni- tive society, it is also possible that government could respond to the crisis generated by mass conscientious plea refusal by pursuing a still more punitive agenda to enlarge and shore up the procedural pipelines of mass incarceration. State legislatures could pro- cure emergency funding to expand the procedural capacity of their respective criminal justice systems. Federal legislators could seek to bolster such expansion efforts by enacting an emergency financial bail-out of the criminal justice system akin to the 2008 bail-out of the US financial system, ramping up national criminal justice spend- ing exponentially over and above the already historically unprecedented heights. ? However, this course of action seems politically unlikely. State and municipal bud- gets have not only been shrinking due to regressive tax reforms and the economic crises produced by American finance capitalism and corporate outsourcing, the portions of those budgets devoted to corrections and law enforcement have already exponentially swelled, due largely to current (and in some cases unconstitutional) overcrowding in many state prison systems. The electorate’s appetite for bankrolling the prison industrial complex is waning amid steeply declining and non-existent state financing of other social priorities like education, childcare, recreation and infrastructure. Criminal proce- dural expansion would also be logistically fraught, straining political support, as it would entail appointing an army of judges, many of whom are elected, which would in turn require special elections, etc., as well as enlisting a multitude of eligible citizens for jury duty service, and hiring the necessary personnel to coordinate them. ? In effect, on the side of utility, increasing swaths of the populace have begun to iden- tify that public investment in mass incarceration is depleting valuable social resources while producing disproportionately little social benefit in the short term and over the long term exacerbating the very social problems related to intergenerational poverty (e.g. unemployment, substance addiction, educational disparity and mental disorder) that lead to increased incarceration. On the side of justice, increasing numbers of people are beginning to recognize that the US carceral state is falling short of the threshold of social justice requisite to render state punishment morally legitimate.136 ‘If a society is to have the moral right to punish, its laws must be just’, writes Igor Primoratz in his book Justifying Legal Punishment. ? But that is not all; society must be doing something constructive about those social con- ditions that breed crime . . . If it does little or nothing about those social problems that generate law-breaking, and then goes on to punish the law-breakers, it will be rightly seen as both callous and hypocritical, and thus as lacking the moral standing requisite for punishing offenders in good faith.137 ? In addition to (and in virtue of) producing a structural crisis in the procedural system of state punishment, the widespread assertion of constitutional due process rights among those protesting procedural entrapment would openly expose the moral illegitimacy of the institutional agencies of mass incarceration, which require the compelled forfeiture of constitutional rights of nearly all their targets in order for the system to function. 1AC – Framing The standard is maximizing expected well being. Even under utilitarian calculus, this is the greatest impact in debate. The sheer number effected demands redress. Edelman 13 – MARIAN WRIGHT EDELMAN activist for the rights of children. She has been an advocate for disadvantaged Americans for her entire professional life. She is president and founder of the Children's Defense Fund. (“Dismantle the Cradle to Prison Pipeline—Our Future Depends on It” )? Today a toxic cocktail of violence, poverty, racial disparities in child-serving systems, poor education, and racially unjust zero-tolerance policies are fueling a Cradle to Prison Pipeline? crisis that is funneling millions of poor children and adults into dead-end, powerless, and hopeless lives.? A black boy born in 2001 has a one-in-three chance of going to prison in his lifetime, and a Latino boy has a one-in-six chance of the same fate. $e United States has the highest incarceration rate in the world: 7.1 million adults are under some form of correctional supervision including prison, jail, probation, or parole. Black males have an imprisonment rate that is nearly seven times higher than white males, and Hispanic males have a rate more than twice that of their white counterparts. This epidemic of mass incarceration has created one of the most dangerous crises for the black community since slavery and it affects everyone in our nation.? Federal spending on prisons totaled $6.6 billion in 2012 and annual state spending on corrections tops $51 billion. This federal and state spending spree to warehouse prisoners has perverted our nation’s priorities. States spend on average two and half times more per prisoner than they spend per public school student, this at a time when a majority of children of all racial and income backgrounds cannot read or compute at grade level in fourth- or eighth-grade and huge numbers of youth drop out of schools. The privatization of juvenile and adult prisons is yet another added danger. The world’s largest for-profit, private prison corporation, the Corrections Corporation of America, recently offered to run the prison systems in 48 states for 20 years if the states would guarantee a 90 percent occupancy rate.? The greatest threat to America’s democracy and economic security comes from no enemy, but rather from our failure to dismantle this Cradle to Prison Pipeline and to invest in and prepare all our children for the future. Tomorrow is today. Children of color, who already are a majority of babies being born in the United States and who will be a majority of our child population within this decade, face bleak futures without high-quality early childhood programs and high-quality, equitable public schools that would prepare them for college and our workforce.? Closing the income and racial achievement gaps between poor and non-poor children and between white and nonwhite children is an urgent national priority. Today, every 1.5 seconds during the school year, a public school student is suspended; every 8 seconds during the school year, a public high school student drops out; every 19 seconds a child is arrested; and every 3 hours and 15 minutes, a child or teen is killed by a gun.? Mass incarceration is made possible by a society gone mad for war. Value reorientation precedes any challenge to militarism, materialism and racismBerman 13 – Matt, Former Online Editor, National Journal (“The Forgotten Martin Luther King: A Radical Anti-War Leftist” )? Martin Luther King speaks against the Vietnam War at the University of Minnesota. (Wikimedia Commons)? Martin Luther King Jr. was not just the safe-for-all-political-stripes civil-rights activist he is often portrayed as today. He was never just the "I Have a Dream" speech, delivered 50 years ago Wednesday. He was an anti-war, anti-materialist activist whose views on American power would shock many of the same politicians who are currently scrambling to sing his praises.? King's more radical worldview came out clearly in a speech to an overflow crowd of more than 3,000 people at Riverside Church in New York on April 4, 1967. "The recent statement of your executive committee are the sentiments of my own heart and I found myself in full accord when I read its opening lines: 'A time comes when silence is betrayal,'" he began. It wasn't about the civil-rights movement -- not directly, at least. "That time has come for us in relation to Vietnam."? He continued, in a speech called "Beyond Vietnam":? Tonight, however, I wish not to speak with Hanoi and the NLF National Liberation Front but rather to my fellow Americans, who, with me, bear the greatest responsibility in ending a conflict that has exacted a heavy price on both continents.... There is at the outset a very obvious and almost facile connection between the war in Vietnam and the struggle I, and others, have been waging in America. A few years ago there was a shining moment in that struggle. It seemed as if there was a real promise of hope for the poor -- both black and white -- through the poverty program. There were experiments, hopes, new beginnings. Then came the buildup in Vietnam, and I watched the program broken and eviscerated as if it were some idle political plaything of a society gone mad on war, and I knew that America would never invest the necessary funds or energies in rehabilitation of its poor so long as adventures like Vietnam continued to draw men and skills and money like some demonic destructive suction tube. So I was increasingly compelled to see the war as an enemy of the poor and to attack it as such.? Perhaps the more tragic recognition of reality took place when it became clear to me that the war was doing far more than devastating the hopes of the poor at home. It was sending their sons and their brothers and their husbands to fight and to die in extraordinarily high proportions relative to the rest of the population. We were taking the black young men who had been crippled by our society and sending them 8,000 miles away to guarantee liberties in Southeast Asia which they had not found in southwest Georgia and East Harlem. So we have been repeatedly faced with the cruel irony of watching Negro and white boys on TV screens as they kill and die together for a nation that has been unable to seat them together in the same schools. So we watch them in brutal solidarity burning the huts of a poor village, but we realize that they would never live on the same block in Detroit. I could not be silent in the face of such cruel manipulation of the poor.? King also addressed the idea that his advocacy of nonviolence at home should extend to the rest of the world:? I knew that I could never again raise my voice against the violence of the oppressed in the ghettos without having first spoken clearly to the greatest purveyor of violence in the world today -- my own government.? Martin Luther King Jr. is being hailed by politicians of all stripes on Wednesday, from a president who is considering military options in Syria to Republicans like Virginia gubernatorial candidate Ken Cuccinelli. Former Rep. Allen West, R-Fla., wrote an op-ed for U.S. News and World Report on Wednesday, blaming "liberal progressive Democrats" and abortion for blocking King's vision of equality from becoming a reality. "Dr. King advocated we evaluate the content of one's character," West writes. "However, in 2008 Americans voted for someone as president based upon the color of his skin. In 2012, Americans used the same criteria and made the same choice."? But it's impossible to imagine West, Cuccinelli, or Barack Obama celebrating King's full range of beliefs, or using a fully realized King as a way to promote their own. Even the March on Washington itself was more radical than it is often remembered as being, having been largely designed by A. Philip Randolph, a union leader, and Bayard Rustin, a gay pacifist and World War II conscientious objector.? The man who said that his dream of equality was "deeply rooted in the American Dream" also believed the American government, with what he saw as its weapons testing in Vietnam, was on par with "the Germans who tested out new medicine and new tortures in the concentration camps of Europe." In the same speech, King said that, if U.S. actions were to continue, "there will be no doubt in my mind and in the mind of the world that we have no honorable intentions in Vietnam."? The radicalism of the 1967 speech didn't just extend to Vietnam. King called for the U.S. to "undergo a radical revolution of values," saying that "we must rapidly begin the shift from a 'thing-oriented' society to a 'person-oriented' society." He continued:? When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.? "A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death," he said.? Phenomenal introspection proves that pleasure is intrinsically good. Sinhababu 08 Neil, Assistant Professor at Department of Philosophy in National University of Singapore. PhD, University of Texas at Austin, 2008. “The Epistemic Argument for Hedonism.” LADINow I'll outline hedonism's answer to Joyce and Street's evolutionary debunking arguments, as promised in section 1.1. Phenomenal introspection is a process of belief-formation that evolved to be generally reliable, like visual perception. Knowing what one is experiencing seems to be important for perception, so creatures who couldn't know what their experiences were like would die without reproducing, having failed to form useful beliefs about their surroundings. So creatures who could reliably form true beliefs about their phenomenal states would be more likely to survive and reproduce. Hedonism withstands evolutionary debunking arguments via what Street calls a “byproduct hypothesis.” Since belief in pleasure's goodness is a byproduct of phenomenal introspection, which is selected for reliability, it's reliably caused even if other moral beliefs aren't.31 If all other moral beliefs are undermined by their origins in processes not selected for reliability, an evolutionary debunking argument could do the same work for hedonists that the argument from disagreement has done in this paper.32Our ability to understand the introspective experiences of others commits us to utilitarianism.Sinhababu 08 Neil, Assistant Professor at Department of Philosophy in National University of Singapore. PhD, University of Texas at Austin, 2008. “The Epistemic Argument for Hedonism.” LADI”One can form a variety of beliefs using phenomenal introspection. For example, one can believe that one is having sound experiences of particular noises and visual experiences of different shades of color. When looking at a lemon and considering the phenomenal states that are yellow experiences, one can form some beliefs about their intrinsic features – for example, that they're bright experiences. And when considering experiences of pleasure, one can make some judgments about their intrinsic features – for example, that they're good experiences. Just as one can look inward at one's experience of lemon yellow and recognize its brightness, one can look inward at one's experience of pleasure and recognize its goodness. 24 When I consider a situation of increasing pleasure, I can form the belief that things are better than they were before, just as I form the belief that there's more brightness in my visual field as lemon yellow replaces black. And when I suddenly experience pain, I can form the belief that things are worse in my experience than they were before. Having pleasure consists in one's experience having a positive hedonic tone. Without descending into metaphor, it's hard to give a further account of what pleasure is like than to say that when one has it, one feels good. As Aaron Smuts writes in defending the view of pleasure as hedonic tone, “to 'feel good' is about as close to an experiential primitive as we get.” 25 Fred Feldman sees pleasure as fundamentally an attitude rather than a hedonic tone.26 But as long as hedonic tones are real components of experience, phenomenal introspection will reveal pleasure's goodness. Opponents of the hedonic tone account of pleasure usually concede that hedonic tones exist, as Feldman seems to in discussing “sensory pleasures,” which he thinks his view helps us understand. Even on his view of pleasure, phenomenal introspection can produce the belief that some hedonic tones are good while others are bad.The state can be repurposed Ferguson 11, James, Professor of Anthropology at Stanford, “The Uses of Neoliberalism”, Antipode, Vol. 41, No. S1, pp 166–184If we are seeking, as this special issue of Antipode aspires to do, to link our critical analyses to the world of grounded political struggle—not only to interpret the world in various ways, but also to change it—then there is much to be said for focusing, as I have here, on mundane, real- world debates around policy and politics, even if doing so inevitably puts us on the compromised and reformist terrain of the possible, rather than the seductive high ground of revolutionary ideals and utopian desires. But I would also insist that there is more at stake in the examples I have discussed here than simply a slightly better way to ameliorate the miseries of the chronically poor, or a technically superior method for relieving the suffering of famine victims.? My point in discussing the South African BIG campaign, for instance, is not really to argue for its implementation. There is much in the campaign that is appealing, to be sure. But one can just as easily identify a series of worries that would bring the whole proposal into doubt. Does not, for instance, the decoupling of the question of assistance from the issue of labor, and the associated valorization of the “informal”, help provide a kind of alibi for the failures of the South African regime to pursue policies that would do more to create jobs? Would not the creation of a basic income benefit tied to national citizenship simply exacerbate the vicious xenophobia that already divides the South African poor,? in a context where many of the poorest are not citizens, and would thus not be eligible for the BIG? Perhaps even more fundamentally, is the idea of basic income really capable of commanding the mass support that alone could make it a central pillar of a new approach to distribution? The record to date gives powerful reasons to doubt it. So far, the technocrats’ dreams of relieving poverty through efficient cash transfers have attracted little support from actual poor people, who seem to find that vision a bit pale and washed out, compared with the vivid (if vague) populist promises of jobs and personalistic social inclusion long offered by the ANC patronage machine, and lately personified by Jacob Zuma (Ferguson forthcoming).? My real interest in the policy proposals discussed here, in fact, has little to do with the narrow policy questions to which they seek to provide answers. For what is most significant, for my purposes, is not whether or not these are good policies, but the way that they illustrate a process through which specific governmental devices and modes of reasoning that we have become used to associating with a very particular (and conservative) political agenda (“neoliberalism”) may be in the process of being peeled away from that agenda, and put to very different uses. Any progressive who takes seriously the challenge I pointed to at the start of this essay, the challenge of developing new progressive arts of government, ought to find this turn of events of considerable interest.? As Steven Collier (2005) has recently pointed out, it is important to question the assumption that there is, or must be, a neat or automatic fit between a hegemonic “neoliberal” political-economic project (however that might be characterized), on the one hand, and specific “neoliberal” techniques, on the other. Close attention to particular techniques (such as the use of quantitative calculation, free choice, and price driven by supply and demand) in particular settings (in Collier’s case, fiscal and budgetary reform in post-Soviet Russia) shows that the relationship between the technical and the political-economic “is much more polymorphous and unstable than is assumed in much critical geographical work”, and that neoliberal technical mechanisms are in fact “deployed in relation to diverse political projects and social norms” (2005:2).? As I suggested in referencing the role of statistics and techniques for pooling risk in the creation of social democratic welfare states, social technologies need not have any essential or eternal loyalty to the political formations within which they were first developed. Insurance rationality at the end of the nineteenth century had no essential vocation to provide security and solidarity to the working class; it was turned to that purpose (in some substantial measure) because it was available, in the right place at the right time, to be appropriated for that use. Specific ways of solving or posing governmental problems, specific institutional and intellectual mechanisms, can be combined in an almost infinite variety of ways, to accomplish different social ends. With social, as with any other sort of technology, it is not the machines or the mechanisms that decide what they will be used to do. Foucault (2008:94) concluded his discussion of socialist government- ality by insisting that the answers to the Left’s governmental problems require not yet another search through our sacred texts, but a process of conceptual and institutional innovation. “If there is a really socialist governmentality, then it is not hidden within socialism and its texts. It cannot be deduced from them. It must be invented”. But invention in the domain of governmental technique is rarely something worked up out of whole cloth. More often, it involves a kind of bricolage (Le ?vi- Strauss 1966), a piecing together of something new out of scavenged parts originally intended for some other purpose. As we pursue such a process of improvisatory invention, we might begin by making an inventory of the parts available for such tinkering, keeping all the while an open mind about how different mechanisms might be put to work, and what kinds of purposes they might serve. If we can go beyond seeing in “neoliberalism” an evil essence or an automatic unity, and instead learn to see a field of specific governmental techniques, we may be surprised to find that some of them can be repurposed, and put to work in the service of political projects very different from those usually associated with that word. If so, we may find that the cabinet of governmental arts available to us is a bit less bare than first appeared, and that some rather useful little mechanisms may be nearer to hand than we thought.4 Immac DD Neg Court ClogNo backlog in courts now Prost 15 – Sharon, Chief Judge, U.S. Court of Appeals for the Federal Circuit ("Innovator Insights", , 9-23-2015, IPO Education Foundation, , accessed 7-11-2017)How will the Court manage the workload?? For now, we’re ok. We just got our twelfth vacancy filled when Judge Kara Stoll came on board, so for the first time we have six senior judges. We’re all hands on deck in a way we’ve never been. A few years ago, under former Chief Judge Paul Michel, we rose from three clerks each to four clerks each. I’m fairly optimistic that in the foreseeable future we’ll be up to the task. We’re proud of the fact that we’re very current; we have virtually no backlog and are probably one of the most current appeals courts in the country, so we’d like to be able to keep that going. It may get a little harder with the influx of PTAB cases, but we’ll do the best we can.Suits will continue without settlement – this instantly destroys the economy Post 11 – Ashley, Law dot com (“Frivolous lawsuits clogging U.S. courts, stalling economic growth” )In May, the House Judiciary Committee held a hearing that explored excessive litigation’s effect on the United States’ global competitiveness. During his testimony, Skadden Partner John Beisner explained that plaintiffs counsel engage in five types of litigation abuse that ultimately undermine economic growth: improperly recruiting plaintiffs, importing foreign claims, filing suits that piggyback off government investigations and actions, pursuing aggregate litigation and seeking third-party litigation financing.? “America’s litigious nature has caused serious damage to our country’s productivity and innovation. … The root cause is that we have created incentives to sue—and to invest in litigation—instead of establishing disincentives for invoking judicial process unless absolutely necessary. Other countries discourage litigation; we nurture it,” Beisner said at the hearing.? Many litigation experts resoundingly agree with Beisner’s stance on the necessity of tort reform to ameliorate the country’s economy.? “The entrepreneurial system that we’ve developed for litigation in this country has always been an impetus to bringing cases that are close to the line or even over the line,” says Dechert Partner Sean Wajert. “When you have that kind of encouragement, you have a slippery slope, which sometimes people will slide down and get into questionable and even abusive and frivolous claims along the way.”? The result is clogged courts and corporate funds that finance defense costs instead of economic investment. Small businesses and startups with less than $20 million in revenue suffer the most because they pay a higher percentage of their revenues toward tort costs than larger companies do, and therefore they become less able to invest in research and development, create new jobs, and give raises and benefits to employees.Slowing growth causes conflict – this is specifically true under trump. Foster 16 - Dennis M. Foster is professor of international studies and political science at the Virginia Military Institute. “Would President Trump go to war to divert attention from problems at home?” December 19, 2016, Washington Post Monkey Cage Blog, ) ? Then-Republican presidential candidate Donald Trump gives a speech aboard the World War II battleship USS Iowa in San Pedro, Calif., in September, 2015. (Robyn Beck/AFP/Getty Images)? If the U.S. economy tanks, should we expect Donald Trump to engage in a diversionary war? Since the age of Machiavelli, analysts have expected world leaders to launch international conflicts to deflect popular attention away from problems at home. By stirring up feelings of patriotism, leaders might escape the political costs of scandal, unpopularity — or a poorly performing economy.? One often-cited example of diversionary war in modern times is Argentina’s 1982 invasion of the Falklands, which several (though not all) political scientists attribute to the junta’s desire to divert the people’s attention from a disastrous economy.? In a 2014 article, Jonathan Keller and I argued that whether U.S. presidents engage in diversionary conflicts depends in part on their psychological traits — how they frame the world, process information and develop plans of action. Certain traits predispose leaders to more belligerent behavior.? Do words translate into foreign policy action?? One way to identify these traits is content analyses of leaders’ rhetoric. The more leaders use certain types of verbal constructs, the more likely they are to possess traits that lead them to use military force.? Trump may put 5 former top military brass in his administration. That’s unprecedented.? For one, conceptually simplistic leaders view the world in “black and white” terms; they develop unsophisticated solutions to problems and are largely insensitive to risks. Similarly, distrustful leaders tend to exaggerate threats and rely on aggression to deal with threats. Distrustful leaders typically favor military action and are confident in their ability to wield it effectively.? Thus, when faced with politically damaging problems that are hard to solve — such as a faltering economy — leaders who are both distrustful and simplistic are less likely to put together complex, direct responses. Instead, they develop simplistic but risky “solutions” that divert popular attention from the problem, utilizing the tools with which they are most comfortable and confident (military force).? Will Beijing cut Trump some slack after that phone call with Taiwan?? Based on our analysis of the rhetoric of previous U.S. presidents, we found that presidents whose language appeared more simplistic and distrustful, such as Harry Truman, Dwight Eisenhower and George W. Bush, were more likely to use force abroad in times of rising inflation and unemployment. By contrast, John F. Kennedy and Bill Clinton, whose rhetoric pegged them as more complex and trusting, were less likely to do so.? What about Donald Trump? Since Donald Trump’s election, many commentators have expressed concern about how he will react to new challenges and whether he might make quick recourse to military action. For example, the Guardian’s George Monbiot has argued that political realities will stymie Trump’s agenda, especially his promises regarding the economy. Then, rather than risk disappointing his base, Trump might try to rally public opinion to his side via military action.? I sampled Trump’s campaign rhetoric, analyzing 71,446 words across 24 events from January 2015 to December 2016. Using a program for measuring leadership traits in rhetoric, I estimated what Trump’s words may tell us about his level of distrust and conceptual complexity. The graph below shows Trump’s level of distrust compared to previous presidents.? These results are startling. Nearly 35 percent of Trump’s references to outside groups paint them as harmful to himself, his allies and friends, and causes that are important to him — a percentage almost twice the previous high. The data suggest that Americans have elected a leader who, if his campaign rhetoric is any indication, will be historically unparalleled among modern presidents in his active suspicion of those unlike himself and his inner circle, and those who disagree with his goals.? As a candidate, Trump also scored second-lowest among presidents in conceptual complexity. Compared to earlier presidents, he used more words and phrases that indicate less willingness to see multiple dimensions or ambiguities in the decision-making environment. These include words and phrases like “absolutely,” “greatest” and “without a doubt.”? A possible implication for military action? I took these data on Trump and plugged them into the statistical model that we developed to predict major uses of force by the United States from 1953 to 2000. For a president of average distrust and conceptual complexity, an economic downturn only weakly predicts an increase in the use of force.? But the model would predict that a president with Trump’s numbers would respond to even a minor economic downturn with an increase in the use of force. For example, were the misery index (aggregate inflation and unemployment) equal to 12 — about where it stood in October 2011 — the model predicts a president with Trump’s psychological traits would initiate more than one major conflict per quarter.DA TerrorPlea bargaining is a key tool in fighting lone wolf terrorism – Britain provesGuardian 5 (“Plea bargaining urged to help gain information” 18 July 2005 )The security and intelligence agencies want to introduce plea bargaining into British law, enabling their officers to question suspects before a trial, according to legal sources. They are also prepared to look again at the vexed issue of whether to allow the product of telephone taps to be introduced in terrorist trials. Plea bargaining would enable officers from MI5 and MI6 to obtain intelligence from suspects whose cooperation would in turn be recognised by the courts, by shorter sentences, for example. Plea bargaining is not formally recognised by British courts though judges have taken into account cooperation by a suspect before conviction. Earlier this year, an Old Bailey judge told Saajid Badat, sentenced to 13 years in prison for planning to explode a shoe bomb on a passenger aircraft, that he would have faced a 50-year sentence. Mr Justice Fulford said he gave him credit for pulling out of the plot, renouncing terrorism and pleading guilty. The judge said it was in the public interest that "if a would-be terrorist turns away from death and destruction before any lives are put at risk", the courts would pass a lower sentence. Allowing information from telephone taps to be used as evidence in trials is seen now as much a bureaucratic and financial burden as a threat to sources or methods used by the security and intelligence agencies. The defence is likely to demand to see transcripts of the whole of a conversation, not only those parts used by the prosecution to make its case. That process is time-consuming and expensive. These moves are being mooted at a time when the country's three intelligence-gathering agencies - MI5, MI6 and GCHQ - face a huge challenge in their efforts against their priority target, international terrorism. MI5 is said to have discovered nothing in its internal investigation to suggest it had information which could have prevented the London bombings. This points to a significant intelligence gap rather than an intelligence failure. The agency has depended on informants - human agents or sources - for intelligence. Iraq and the US treatment of detainees at Guantánamo Bay and elsewhere have not encouraged people who otherwise might have done more to provide information, counter-terrorist officials say. The London bombings of July 7, the first by suicide bombers in Britain, may change that. However, it will be harder for MI5 to gather intelligence if its potential targets are young militants who do not attend mosques and distance themselves from imams who do not respond to their concerns. One of the problems faced by the security and intelligence agencies is that militants appear to recruit themselves - they do not have to receive, or rely on, instructions from the al-Qaida network. A plethora of websites provide detailed information about how to make bombs. Security sources say the four London bombers could have made their devices from the internet, without help from anyone else, even though they were "high grade". The IRA was infiltrated by British intelligence whose job was made easier partly because the organisation was hierarchical and structured. Al-Qaida is the opposite - diffuse and international. MI5's resources are to be beefed up by with a new Special Reconnaissance Regiment which women are being encouraged to join. Its role may reflect the army's 14th Intelligence Company, which operated in Northern Ireland. Its plain clothes members, often masquerading as couples, monitored the movements of terrorist suspects. That model may not be the most useful in tracking potential Islamist terroristsLone wolf attacks are growing and cause extinctionAckerman and Pinson 14 – Gray A., Director of the Special Projects Division at the National Consortium for the Study of Terrorism and Responses to Terrorism (START); Lauren E., Senior Research/Project Manager at START and PhD student at Yale University, 2014 (“An Army of One: Assessing CBRN Pursuit and Use by Lone Wolves and Autonomous Cells,” Terrorism and Political Violence (Vol. 26, Issue 1) Available Online to Subscribing Institutions via Tandfonline)? The first question to answer is whence the concerns about the nexus between CBRN weapons and isolated actors come and whether these are overblown. The general threat of mass violence posed by lone wolves and small autonomous cells has been detailed in accompanying issue contributions, but the potential use of CBRN weapons by such perpetrators presents some singular features that either amplify or supplement the attributes of the more general case and so are deserving of particular attention. Chief among these is the impact of rapid technological development. Recent and emerging advances in a variety of areas, from synthetic biology 3 to nanoscale engineering, 4 have opened doors not only to new medicines and materials, but also to new possibilities for malefactors to inflict harm on others. What is most relevant in the context of lone actors and small autonomous cells is not so much the pace of new invention, but rather the commercialization and consumerization of CBRN weapons-relevant technologies. This process often entails an increase in the availability and safety of the technology, with a concurrent diminution in the cost, volume, and technical knowledge required to operate it. Thus, for example, whereas fifty years ago producing large quantities of certain chemical weapons might have been a dangerous and inefficient affair requiring a large plant, expensive equipment, and several chemical engineers, with the advent of chemical microreactors,5 the same processes might be accomplished far more cheaply and safely on a desktop assemblage, purchased commercially and monitored by a single chemistry graduate student.? The rapid global spread and increased user-friendliness of many technologies thus represents a potentially radical shift from the relatively small scale of harm a single individual or small autonomous group could historically cause. 6 From the limited reach and killing power of the sword, spear, and bow, to the introduction of dynamite and eventually the use of our own infrastructures against us (as on September 11), the number of people that an individual who was unsupported by a broader political entity could kill with a single action has increased from single digits to thousands. Indeed, it has even been asserted that ‘‘over time. . . as the leverage provided by technology increases, this threshold will finally reach its culmination—with the ability of one man to declare war on the world and win.’’7 Nowhere is this trend more perceptible in the current age than in the area of unconventional weapons.? These new technologies do not simply empower users on a purely technical level. Globalization and the expansion of information networks provide new opportunities for disaffected individuals in the farthest corners of the globe to become familiar with core weapon concepts and to purchase equipment—online technical courses and eBay are undoubtedly a boon to would-be purveyors of violence. Furthermore, even the most solipsistic misanthropes, people who would never be able to function socially as part of an operational terrorist group, can find radicalizing influences or legitimation for their beliefs in the maelstrom of virtual identities on the Internet.? All of this can spawn, it is feared, a more deleterious breed of lone actors, what have been referred to in some quarters as ‘‘super-empowered individuals.’’8 Conceptually, super-empowered individuals are atomistic game-changers, i.e., they constitute a single (and often singular) individual who can shock the entire system (whether national, regional, or global) by relying only on their own resources. Their core characteristics are that they have superior intelligence, the capacity to use complex communications or technology systems, and act as an individual or a ‘‘lone-wolf.’’9 The end result, according to the pessimists, is that if one of these individuals chooses to attack the system, ‘‘the unprecedented nature of his attack ensures that no counter-measures are in place to prevent it. And when he strikes, his attack will not only kill massive amounts of people, but also profoundly change the financial, political, and social systems that govern modern life.’’10 It almost goes without saying that the same concerns attach to small autonomous cells, whose members’ capabilities and resources can be combined without appreciably increasing the operational footprint presented to intelligence and law enforcement agencies seeking to detect such behavior.K LegalismUsing defense as redress obfuscates the drivers of incarceration and legitimizes criminal injusticeButler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) Indigent persons are much more likely to go to prison today than in the era when Gideon was decided. In 1960, the U.S. imprisonment rate was approximately 126 per 100,000 population.9 By, 2008, the rate had quadrupled, to 504 per 100,000.10 African-American defendants are even worse off. In 1960, three years before Gideon, the black incarceration rate was approximately 660 per 100,000.11 By 1970, it had fallen some, to slightly under 600 per 100,000.12 In 2010, the rate of incarceration among black males was an astronomical 3,074 per 100,000.13 For men hoping to avoid prison, being both poor and black is a lethal combination. More than two-thirds of black males who do not have college degrees will be incarcerated at some point in their lives.14 Black male high school dropouts are more likely to be imprisoned than employed.15 What is it about being poor and African American that substantially increases the risk of incarceration? The answer, rather obviously, has much to do with class and race and, less obviously, little to do with the quality of the indigent defense system. This Essay employs data about both race and class to demonstrate this claim, but at the start I want to note that it is impossible to disaggregate the effects of race and class. The answer to the questions, “Are poor defendants treated unfairly because many of them are black, are black defendants treated unfairly because many of them are poor, or is there some other dynamic at work?” is “yes.”16 Indeed, the Gideon decision itself was explicitly a class intervention, but implicitly, like other Warren court criminal procedure cases, a racial justice intervention as well.17 Approximately two decades after Gideon, two trends began in criminal justice, the effects of which were to overwhelm any benefits that Gideon provided to low-income accused persons. First, the United States experienced the most pronounced increase in incarceration in the history of the world.18 Second, there was a corresponding exponential increase in racial disparities in incarceration. This dramatic expansion of incarceration was accomplished on the backs of poor people. The Bureau of Justice Statistics reports that the “generally accepted indigency rate” for state felony cases near the time when Gideon was decided was 43.19 Today approximately 80 of people charged with crime are poor.20 Other data further illustrate the correlation between poverty and incarceration. In 1997, more than half of state prisoners earned less than $1,000 in the month before their arrest.21 This would result in an annual income of less than $12,000, well below the $25,654 median per capita income in 1997.22 The same year, 35 of state inmates were unemployed in the month before their arrest, compared to the national unemployment rate of 4.9.23 Approximately 70 of state prisoners have not graduated from high school.24 Only 13 of incarcerated adults have any post-high school education, compared with almost 50 of the non-incarcerated population.25 College graduation, on the other hand, serves to insulate Americans from incarceration. Only 0.1 of bachelor’s degree holders are incarcerated, compared to 6.3 of high school dropouts.26 Put another way, high school dropouts are sixty-three times more likely to be locked up than college graduates. The post-Gideon expansion of the prison population was also accomplished on the backs of black people. There have been always been racial disparities in American criminal justice, but from the 1920s through the 1970s they were “only” about two-to-one.27 Now the black/white incarceration disparity is seven-to-one.28 There are more African Americans under correctional supervision than there were slaves in 1850.29 As Michelle Alexander states, “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”30 In summary, poor people and blacks have never fared as well as the nonpoor and the nonblack in American criminal justice. Since the 1970s, however, the disparities have gotten much worse. Something happened that dramatically increased incarceration and dramatically raised the percentage of the incarcerated who are poor and black. What happened is usually attributed to two main causes: the war on drugs and the law-and-order or so-called tough-on-crime policies of American leaders since the Nixon Administration.31 Thus far I have made the case that prisons are populated by people who are disproportionately poor and African American. My next step is to demonstrate that this is not a coincidence, in order to further support the claim that the poor are losers in American criminal justice. Mass incarceration’s process of control—the social and legal apparatus by which poor people become losers in criminal justice—can be broken into five steps. (1) The spaces that poor people, especially poor African Americans, live in receive more law enforcement in the form of police stops and arrests.32 (2) The criminal law deliberately ignores the social conditions that breed some forms of law-breaking.33 Deprivations associated with poverty are usually not “defenses” to criminal liability, although they may be factors considered in sentencing. (3) African Americans, who are disproportionately poor, are the target of explicit and implicit bias by key actors in the criminal justice system, including police, prosecutors,34 and judges. (4) Once any person is arrested, she becomes part of a crime control system of criminal justice, in which guilt is presumed.36 Prosecutors, using the legal apparatus of expansive criminal liability, recidivist statutes, and mandatory minimums,37 coerce guilty pleas by threatening defendants with vastly disproportionate punishment if they go to trial.38 (5) Repeat the cycle. A criminal caste is created. Two-thirds of freed prisoners are rearrested, and half return to prison, within three years of their release.39 This description is not intended to be novel, or especially provocative. Other observers of American criminal justice have made similar points about the process by which being poor and African American increases the risk of incarceration. Richard S. Frase, for example, writes that poverty and lack of opportunity are associated with higher crime rates; crime leads to arrest, a criminal record, and usually a jail or prison sentence; past crimes lengthen those sentences; offenders released from prison or jail confront family and neighborhood dysfunction, increased risks of unemployment, and other crime-producing disadvantages; this make them likelier to commit new crimes, and the cycle repeats itself.40 Michelle Alexander notes: It is simply taken for granted that, in cities like Baltimore and Chicago, the vast majority of young black men are currently under the control of the criminal justice system or branded criminals for life. This extraordinary circumstance—unheard of in the rest of the world—is treated here in America as a basic fact of life, as normal as separate water fountains were just a half century ago.41 What if every person accused of a crime had an excellent lawyer? Proponents of Gideon suggest it would be an important step in making criminal justice more equitable. For example, David Cole writes that the “story of the enforcement of the right to counsel suggests that our failure to make good on Gideon’s promise is no mere mistake. Rather, it is the single most important mechanism by which the courts and society ensure a double standard in constitutional rights protection in the criminal law.”42 In reality, full enforcement of Gideon probably would not significantly impact the “double standard.” If mass incarceration and racial disparities were caused by poor defense attorneys, it would make sense to think of Gideon as the appropriate solution. But, as the five-step process described above demonstrates, defenders are not the cause. Rights talk atomizes society and impedes progressive change Butler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) Robin West has described the critique of rights as “one of the most vibrant, important, counterintuitive, challenging set of ideas that emerged from the legal academy over the course of the last quarter of the twentieth century.”51 Many of these ideas were articulated as part of the critical legal studies movement that began in the 1980s.52 In a seminal 1984 article, Mark Tushnet described rights as unstable, indeterminate, overly abstract, and politically harmful to the Left.53 The critique of rights was intended as an “act of creative destruction that may help us build societies that transcend the failures of capitalism.”54 The critique of rights has evolved to many sets of critiques.55 One description on a website curated by a group of legal theorists who teach or have taught at Harvard Law School summarizes five basic elements: (1) The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume. (2) Legal rights are in fact indeterminate and incoherent. (3) The use of rights discourse stunts human imagination and mystifies people about how law really works. (4) At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection. (5) Rights discourse can actually impede progressive movement for genuine democracy and justice.56 Most of the critiques make the claim that rights are indeterminate. The proposition is that “the law is not a fixed and determined system, but rather an unruly miscellany of various, multifaceted, contradictory practices, altering from time to time and from context to context as different facets of law are privileged or suppressed.”57 Robin West describes the indeterminacy thesis as meaning that “the articulation of an interest as a ‘right’ by no means creates an unmoveable bulwark against change, interference, or recalibration of the protection of the various interests . . . toward which it so desperately strives.”58 Rights are indeterminate because they are too abstract to be useful in deciding particular cases, or because they conflict with other rights. When social progress occurs after a right is declared, it is because of the social and political context in which the right is declared rather than the right itself. Most critiques also claim that rights are regressive. Winning a “right” in a court case either has no connection to advancing a political goal, or actually impedes political goals.59 Gary Peller, for example, faults rights discourse for constituting “a narrative of legitimation, a language for concluding that particular social practices are fair because they are objective and unbiased.”60 Rights impede progressive change because they divert attention and resources away from material deprivations, and, according to some theorists, because rights are individual, rather than about the welfare of groups.61This legitimizes structures of injustice, racism, and dehumanization and turns case.West 11 West, Robin L, Georgetown University Law Center "Tragic Rights: The Rights Critique in the Age of Obama." Wm. and Mary L. Rev. 53 (2011): 713.Rights harm us, according to the Bill of Particulars put forward by the rights critics of the 1980s, in three distinct ways. First, even apparently liberating rights that seemingly expand the sphere of individual liberty also subordinate, at least according to the first and perhaps the most important of the rights critics' charges. Rights to privacy protect not only private decision making against the prying and moralistic eye of the state but also, even if inadvertently or indirectly, private subordination of vulnerable family members.' Rights to liberty of contract protect private choices of individuals but also the economic subordination of laborers by employers," and rights to speech protect ideas but also, arguably, pornography and private verbal, racial, or sexual harassment.' Whatever else rights do, Horwitz, Tushnet, MacKinnon, and other critics argued, rights that protect spheres of privacy, liberty, or autonomy against state intervention also, and by virtue of that protection, facilitate the subordination of the weak by the strong, within whatever spheres of insularity, entitlement, and nonintervention from the government the particular right in question creates. Thus, the first charge: rights subordinate. Second, by protecting against particularized but well-defined sorts of unfair relations in the private realm, even those rights that do operate to specify limits on a generalized liberty in the interest of equality—such as limits on our liberty to intentionally discrimi-nate—also run the risk of legitimizing the larger unjust social world within which those particularized moments of injustice are framed. The censure of the intentional discriminator, and our right to be free of him, for example, legitimates not only structural or unintentional racism but also an unjust classism. Our condemnation of the errors in an error-ridden meritocracy legitimates the unjust stinginess of the ways we construct merit and blame, and even a purified and idealized meritocracy legitimates our nonresponsiveness to human need.' Miranda rights, critics argued, and more largely procedural protections in the criminal justice system, legitimate not only on-going interrogation abuses that they only partially address but an overly punitive and blatantly racist system of excessive incarcera-tion as well." The targeting of gender-based "stereotypes" so as to free the nonconforming woman legitimate the belittling and cramped opportunities that attach to voluntarily assumed tradi-tional gender roles." Attempts to secure rights to a "minimum wage" render all the more difficult attempts to ensure a livable family wage—and so on.' Rights harm, then, not only because of the subordination they protect and valorize but also because they distract our critical gaze, thereby legitimating larger injustices. In brief, rights legitimate.' Lastly, critics argued, rights alienate, even those rights that seemingly empower the weakest of us in a hostile world. They alien-ate us from the dreaded other from whom they claim to protect us," from our communities,' and from a recognition of even the possibil-ity of unmediated human connection.' Rights do have a function: they facilitate essential trade between withdrawn selves, as elu-cidated by Peter Gabel's artful description of us as deeply and paranoically fearful of others, the state, and human community." But by so doing, rights intensify the very withdrawal from human life to which they then offer their poison pill as a necessary reme-diation. In short: rights alienate. The alternative is to understand criminal procedure as bureaucratic control rather than justice – it’s a prerequisite to social changeTushnet and Jaff 86 – Mark Tushnet Professor of Law, Georgetown University Law Center. and Jennifer Jaff, Instructor in Law, University of Miami Law School. (“Critical Legal Studies and Criminal Procedure,” 35 Cath. U. L. Rev. 361 (1986). )The problem of controlling discretion can be reconceptualized in a critical way-critical because we can rethink the nature of the system of criminal procedure as a whole.8 Instead of seeing efforts to control discretion as efforts to protect the citizenry from abuse, we can view them as efforts by bureaucratic superiors, such as police chiefs, head prosecutors, and appellate judges, to assert control over the activities of their subordinates.8 2 Sometimes this control will have the incidental effect of protecting the citizenry from abuse, but that is not the primary purpose of the effort. Viewed in this manner, criminal procedure is an exercise in the assertion of power-not the power of enforcing officials against the citizenry, but the power of bureaucratic superiors against their subordinates.? There are a number of advantages to this perspective. First, it brings into view many activities of enforcement officials that we usually do not consider part of criminal procedure."s On the most elementary level, it allows us to talk about different modes of asserting control over subordinates. Rules developed by appellate courts are not the only way to assert control, and may not be the best way. Thus, we can talk about the development of rules by the enforcement agencies themselves, such as police guidelines on the conduct of line-ups or head prosecutors' guidelines on charging decisions. These internal rules are certain to be more detailed than the essentially nonexistent constraints that the courts will enforce.84? Another example may be worth mentioning. Appellate law has almost nothing to say about the unique position of public defenders in relation to plea negotiation, even though a large percentage of criminal cases are handled by public defenders."5 One would not be surprised to find that public defenders have internal office policies on the conduct of plea negotiations, or norms communicated through formal training or informal conversations.8 6 These policies belie the theme of the superior trying to guard against adverse public reaction to the plea process in general. Once these aspects of the activities of the plea process are brought into view, appellate law can be seen as a similar effort to control the behavior of subordinates. Cases that may be an example are those in which effective assistance of counsel is the operative standard for evaluation of voluntariness.8 7? Another part of enforcement activity that this perspective brings into view is the presence and influence of unions, and of the organized bar. One of the constraints that superiors face is the organized political power of their subordinates. 88 Typically, the subordinates think of themselves as the best judges of how discretion should be exercised in the infinitely varying daily circumstances that they face.8 9 One would suppose that line officers in police departments, prosecutors' offices, public defenders' offices, and courts routinely hold self-images that emphasize all the good things about discretion. Organized as a political force, line officers will inevitably resist efforts by their superiors to assert control over the exercise of their discretion, and they will have cogent arguments to explain why that resistance serves the goals of sound public policy. 9? This perspective could have a significant effect on many traditional doctrines. For example, if rules of criminal procedure are to be seen primarily as efforts by superiors to assert control over subordinates, then it might make sense to distinguish among enforcement agencies according to the degree to which such control is successfully asserted.9? " The courts might enforce stringent rules of search and seizure against departments that provided no training or inadequate training to their officers, but might allow departments with extensive training programs to develop their own rules. The general idea is that judicially developed standards are substitutes for internally developed ones. Thus, where the goal of controlling discretion is reached by bureaucratic superiors pursuing their own goals of asserting power over subordinates, there is no special need for the internal rules to be supplemented by external ones.? One could play out this approach across the board, or at least as far as any other approach allows. For present purposes, however, it is more important to explain why this perspective may be characterized as critical. By emphasizing the role of rules of criminal procedure as devices by which bureaucratic superiors attempt to assert their power over subordinates, the approach allows us to rethink the nature of the system of criminal procedure as a whole. This approach assumes that enforcement agencies are bureau-cracies in which superiors need to control the discretion exercised by subordinates. It simply attempts to ascertain the implications of having bureaucratic enforcement agencies handle such important matters as law enforcement, plea bargaining, and so on. Because law enforcement agencies are, after all, just that type of bureaucracy, this is a perfectly natural way of talking about those agencies. However, since this approach brings the bureaucratic character of law enforcement to the surface, it allows us to question the necessity of using a bureaucracy to administer justice. The K is prior—The aff’s conception of law ignores its everyday effects, and any connections it makes with the social field are made indeterminate.Gordon ’12 (Robert W. Gordon, Professor of Law, Stanford University; Chancellor Kent Professor of Law and Legal History, Emeritus, Yale University, “’Critical Legal Histories Revisited’: A Response,” Law and Social Inquiry, Journal of the American Bar Foundation, Volume 37, Issue 1, 200–215, Winter 2012, ) LADIDS Whether “law” is leading or “lagging,” it is pictured in narratives of modernization as something related to, but separate from, the larger processes of social change: a secondary specialized subsystem of society, being worked on by social change and working back on it. Of course, nobody could deny that much of what we call law and legal systems are specialized activities taking place in specialized institutions (courts, administrative agencies, legislatures, etc.) populated by specialized social actors (lawyers, judges, and other of?cials). But the distinctive and specialized institutions, enactments, procedures, and of?cials that we call “the legal system” hardly account for most of the ways in which law and legal norms work their way into everyday consciousness and social processes. So another purpose of this piece was to try to capture, as many legal sociologists, anthropologists, and historians have tried to do, an alternative way of thinking about law-society relations from that of an autonomous (or “relatively autonomous”) legal system interacting with a larger social system so as to manage or facilitate or regulate that social system’s affairs. EF describes a relationship between two spheres of social life, the big sphere of society (the economy, family life, technological and demographic change, contests for political power, etc.) and the smaller dependent sphere of the legal system. But one cannot describe the social sphere independently of its constitutive legal elements, such as property rights and contracts and the expectation of routine legal enforcement and legally permitted self-help enforcement (which allows my private security force to enforce my rules on my property with lethal force if needed, or, as a condition of going to work for me or buying my product, allows me to require you to sign a contract that deprives you of any effective remedy for its violation) is much more than the activities of the of?cial legal system. Asked to describe the key economic order of modernity, “capitalism,” people usually come up with phrases like “freely marketable or transferable by gift or inheritance property rights” or “formally free labor.” But these aren’t simply legal rules and regimes that facilitate capitalism; they are capitalism, or key elements of it, anyway. So an alternative conception to functionalism has over the years come to be called—rather mystifyingly and not always helpfully—a “constitutive” theory of law society relations, or a “mutually constitutive” theory: law (partially) constitutes society and society constitutes law. Property, contract, company, slave, employee, nation-state, illegal immigrant, criminal, husband, wife, adopted child, creditor, bankrupt—these are all legal concepts, but also lived social realities and identities. The third piece of the critique of EF was that the connections hypothesized between “legal” and “social” change, even when they were not partly tautological (as in “law facilitated the rise of capitalism”), could not be strong causal links because the “law” in the dominant legal-social accounts was too underspeci?ed and indeterminate to entail any de?nite set of social consequences. Saying things like “the negligence principle” or “property rights in land” were preconditions to, or even just very favorable legal environments for, economic growth, ignored the basic insight of Legal Realism—the myriad ways in which legal doctrines can be interpreted and differentially applied or ignored or worked around or resisted on the way to enforcement. There are respects in which it is equally valid to say “the American legal system laid the foundation for economic growth by creating enforceable property rights” and “the American legal system laid the foundation of economic growth by destroying preexisting property rights” (e.g., by allowing slaveowners to extinguish property in labor and colonizers to steal Indian titles, enclosers to eliminate use-rights in commons, canal and railroad developers to cut rights of way through farmland, squatters to acquire title from absentee owners). Comparative legal-social history, moreover, usually revealed many alternative legal paths to modernity, as well as variant types of modernity.T No Martial CourtsInterpretation: Plea bargains must take place in the United States criminal justice system successful criminal prosecutions in the United States end not with jury trials, but with plea bargains. Plea bargains are agreements between defendants and prosecutors in which defendants agree to plead guilty to some or all of the chargesagainst them in exchange for concessions from the prosecutors. These agreements allow prosecutors to focus their time and resources on other cases, and reduce the number of trials that judges need to oversee.In plea bargains, prosecutors usually agree to reduce a defendant's punishment. They often accomplish this by reducing the number of charges of the severity of the charges against defendants. They might also agree to recommend that defendants receive reduced sentences. Some plea bargains require defendants to do more than simply plead guilty. For example, prosecutors often offer favorable plea bargains to defendants who agree to testify for the state in cases against other defendants.The Role of Judges In some jurisdictions, prosecutors and defendants can work with judges to predetermine what sentence the defendants will get if the defendants accept plea bargains. In most jurisdictions, however, judges’ role in plea bargaining is limited. For example, federal judges retain final authority over sentencing decisions, and are not bound by prosecutors’ recommendations, even if the recommendations are part of plea bargains. Similarly, federal judges may not be directly involved in plea bargain negotiations.Controversy Surrounding Plea BargainsAlthough plea bargaining allows the criminal justice system to conserve resources, the plea bargains are controversial. Violation: The aff defends martial courts, which are distinct -- part of the military command structure, courts martial proceedings do not have the same procedural safeguards of civilian courts. An 1859 decision of the Supreme Court of the United States determined that these courts did not wield the “judicial power” of the United States and as such were not federal courts established under Article III of the Constitution. Net benefits -- First, Limits – they allow Affs about trials that take place in any court – the amount of branches and possible permutation of actors explodes limits and places an unfair prep burden on the negative. Limits are best for education: A. Iterative content mastery: debaters learn best from successive strategic iterations of argument production. Engaging in debates about the same core issues challenges students to innovate based on feedback. B. Prep: nuanced research requires a stasis point. A large caselist results in shallow debates and pushes argumentation to the fringes. This prevents rigorous argument testing. Second, Ground – Core negative generics like the Terror DA, Spending DA, and Court Clog DA don’t apply to a fringe aff that doesn’t use the United States criminal justice system. Keeping the topic about the federal judiciary is necessary for stable negative prep. Ground is vital to produce fair debates – it ensures both sides have valuable and defensible ideas to forward.5 Nueva AK Aff NietzscheFirst: ethical statements, like the resolution, can be understood in either a normative or descriptive sense. Normative ethical claims are anthropomorphic and lack truth functionality.Nietzsche 1. Friedrich Nietzsche, “On Truth and Lying in an Extra-moral Sense”, in Literary Theory: An Anthology. 2nd ed., Julie Rivkin and Michael Ryan. Blackwell Publishing: Oxford (2004). originally published 1873. p. 263. I reject the gendered language in this card. nAKLet us still give special consideration to the formation of concepts. Every word immediately becomes a concept, inasmuch as it is not intended to serve as a reminder of the unique and wholly individualized original experience to which it owes its birth, but must at the same time fit innumerable, more or less similar cases—which means, strictly speaking, never equal—in other words, a lot of unequal cases. Every concept originates through our equating what is unequal. No leaf ever wholly equals another, and the concept "leaf" is formed through an arbitrary abstraction from these individual differences, through forgetting the distinctions; and now it gives rise to the idea that in nature there might be something besides the leaves which would be "leaf"—some kind of original form after which all leaves have been woven, marked, copied, colored, curled, and painted, but by unskilled hands, so that no copy turned out to be a correct, reliable, and faithful image of the original form. We call a person "honest." Why did he act so honestly today? we ask. Our answer usually sounds like this: because of his honesty. Honesty! That is to say again: the leaf is the cause of the leaves. After all, we know nothing of an essence-like quality named "honesty"; we know only numerous individualized, and thus unequal actions, which we equate by omitting the unequal and by then calling them honest actions. In the end, we distill from them a qualitas occulta hidden quality with the name of "honesty." We obtain the concept, as we do the form, by overlooking what is individual and actual; whereas nature is acquainted with no forms and no concepts, and likewise with no species, but only with an X which remains inaccessible and undefinable for us. For even our contrast between individual and species is something anthropomorphic and does not originate in the essence of things; although we should not presume to claim that this contrast does not correspond o the essence of things: that would of course be a dogmatic assertion and, as such, would be just as indemonstrable as its opposite. What, then, is truth? A mobile army of metaphors, metonyms, and anthropomorphisms—in short, a sum of human relations which have been enhanced, transposed, and embellished poetically and rhetorically, and which after long use seem firm, canonical, and obligatory to a people: truths are illusions about which one has forgotten that this is what they are; metaphors which are worn out and without sensuous power; coins which have lost their pictures and now matter only as metal, no longer as coins. We still do not know where the urge for truth comes from; for as yet we have heard only of the obligation imposed by society that it should exist: to be truthful means using the customary metaphors—in moral terms: the obligation to lie according to a fixed convention, to lie herd-like in a style obligatory for all. Now man of course forgets that this is the way things stand for him. Thus he lies in the manner indicated, unconsciously and in accordance with habits which are centuries' old; and precisely by means of this unconsciousness and forgetfulness he arrives at his sense of truth. From the sense that one is obliged to designate one thing as red, another as cold, and a third as mute, there arises a moral impulse in regard to truth. The venerability, reliability, and utility of truth is something which a person demonstrates for himself from the contrast with the liar, whom no one trusts and everyone excludes. As a rational being, he now places his behavior under the control of abstractions. He will no longer tolerate being carried away by sudden impressions, by intuitions. First he universalizes all these impressions into less colorful, cooler concepts, so that he can entrust the guidance of his life and conduct to them. Everything which distinguishes man from the animals depends upon this ability to volatilize perceptual metaphors in a schema, and thus to dissolve an image into a concept. For something is possible in the realm of these schemata which could never be achieved with the vivid first impressions: the construction of a pyramidal order according to castes and degrees, the creation of a new world of laws, privileges, subordinations, and clearly marked boundaries—a new world, one which now confronts that other vivid world of first impressions as more solid, more universal, better known, and more human than the immediately perceived world, and thus as the regulative and imperative world. Whereas each perceptual metaphor is individual and without equals and is therefore able to elude all classification, the great edifice of concepts displays the rigid regularity of a Roman columbarium and exhales in logic that strength and coolness which is characteristic of mathematics. Anyone who has felt this cool breath will hardly believe that even the concept—which is as bony, foursquare, and transposable as a die—is nevertheless merely the residue of a metaphor, and that the illusion which is involved in the artistic transference of a nerve stimulus into images is, if not the mother, then the grandmother of every single concept. But in this conceptual crap game "truth" means using every die in the designated manner, counting its spots accurately, fashioning the right categories, and never violating the order of caste and class rank. Just as the Romans and Etruscans cut up the heavens with rigid mathematical lines and confined a god within each of the spaces thereby delimited, as within a templum, so every people has a similarly mathematically divided conceptual heaven above themselves and henceforth thinks that truth demands that each conceptual god be sought only within his own sphere. Here one may certainly admire man as a mighty genius of construction, who succeeds in piling an infinitely complicated dome of concepts upon an unstable foundation, and, as it were, on running water. Of course, in order to be supported by such a foundation, his construction must be like one constructed of spiders' webs: delicate enough to be carried along by the waves, strong enough not to be blown apart by every wind. As a genius of construction man raises himself far above the bee in the following way: whereas the bee builds with wax that he gathers from nature, man builds with the far more delicate conceptual material which he first has to manufacture from himself. In this he is greatly to be admired, but not on account of his drive for truth or for pure knowledge of things. When someone hides something behind a bush and looks for it again in the same place and finds it there as well, there is not much to praise in such seeking and finding. Yet this is how matters stand regarding seeking and finding "truth" within the realm of reason. If I make up the definition of a mammal, and then, after inspecting a camel, declare "look, a mammal" I have indeed brought a truth to light in this way, but it is a truth of limited value. That is to say, it is a thoroughly anthropomorphic truth which contains not a single point which would be "true in itself" or really and universally valid apart from man. At bottom, what the investigator of such truths is seeking is only the metamorphosis of the world into man. He strives to understand the world as something analogous to man, and at best he achieves by his struggles the feeling of assimilation. Similar to the way in which astrologers considered the stars to be in man 's service and connected with his happiness and sorrow, such an investigator considers the entire universe in connection with man: the entire universe as the infinitely fractured echo of one original sound-man; the entire universe as the infinitely multiplied copy of one original picture-man. His method is to treat man as the measure of all things, but in doing so he again proceeds from the error of believing that he has these things which he intends to measure immediately before him as mere objects. He forgets that the original perceptual metaphors are metaphors and takes them to be the things themselves.Our language constrains our ability to think and communicate. We can only communicate when our signifiers correspond to physical facts in the world; ethical, aesthetic, and emotional statements are nonsensical. Biletzki 08 (Anat, Stanford Encyclopedia of Philosphy. nAK)In the Tractatus Wittgenstein’s logical construction of a philosophical system has a purpose—to find the limits of world, thought and language; in other words, to distinguish between sense and nonsense. “The book will … draw a limit to thinking, or rather—not to thinking, but to the expression of thoughts …. The limit can … only be drawn in language and what lies on the other side of the limit will be simply nonsense” (TLP Preface). The conditions for a proposition’s having sense have been explored and seen to rest on the possibility of representation or picturing. Names must have a bedeutung (reference/meaning), but they can only do so in the context of a proposition which is held together by logical form. It follows that only factual states of affairs which can be pictured can be represented by meaningful propositions. This means that what can be said are only propositions of natural science and leaves out of the realm of sense a daunting number of statements which are made and used in language. There are, first, the propositions of logic itself. These do not represent states of affairs, and the logical constants do not stand for objects. “My fundamental thought is that the logical constants do not represent. That the logic of the facts cannot be represented” (TLP 4.0312). This is not a happenstance thought; it is fundamental precisely because the limits of sense rest on logic. Tautologies and contradictions, the propositions of logic, are the limits of language and thought, and thereby the limits of the world. Obviously, then, they do not picture anything and do not, therefore, have sense. They are, in Wittgenstein’s terms, senseless (sinnlos). Propositions which do have sense are bipolar; they range within the truth-conditions drawn by the truth-tables. But the propositions of logic themselves are “not pictures of the reality … for the one allows every possible state of affairs, the other none” (TLP 4.462). Indeed, tautologies (and contradictions), being senseless, are recognized as true (or false) “in the symbol alone … and this fact contains in itself the whole philosophy of logic” (TLP 6.113). The characteristic of being senseless applies not only to the propositions of logic but also to mathematics or the pictorial form itself of the pictures that do represent. These are, like tautologies and contradictions, literally sense-less, they have no sense. Beyond, or aside from, senseless propositions Wittgenstein identifies another group of statements which cannot carry sense: the nonsensical (unsinnig) propositions. Nonsense, as opposed to senselessness, is encountered when a proposition is even more radically devoid of meaning, when it transcends the bounds of sense. Under the label of unsinnig can be found various propositions: “Socrates is identical”, but also “1 is a number” and “there are objects”. While some nonsensical propositions are blatantly so, others seem to be meaningful—and only analysis carried out in accordance with the picture theory can expose their nonsensicality. Since only what is “in” the world can be described, anything that is “higher” is excluded, including the notion of limit and the limit points themselves. Traditional metaphysics, and the propositions of ethics and aesthetics, which try to capture the world as a whole, are also excluded, as is the truth in solipsism, the very notion of a subject, for it is also not “in” the world but at its limit. Wittgenstein does not, however, relegate all that is not inside the bounds of sense to oblivion. He makes a distinction between saying and showing which is made to do additional crucial work. “What can be shown cannot be said,” that is, what cannot be formulated in sayable (sensical) propositions can only be shown. This applies, for example, to the logical form of the world, the pictorial form, etc., which show themselves in the form of (contingent) propositions, in the symbolism, and in logical propositions. Even the unsayable (metaphysical, ethical, aesthetic) propositions of philosophy belong in this group—which Wittgenstein finally describes as “things that cannot be put into words. They make themselves manifest. They are what is mystical” (TLP 6.522).Next, the framework. A claim to morality is at bottom a valuation of some act as preferable to another. In doing so, by designating certain actions as correct, morality attempts to guide us toward one option and forcefully eliminate alternative options as morally impermissibleNietzsche 2 Friedrich Nietzsche, The Will To Power. Translated by R.J. Hollingdale and Walter Kaufmann. p. 168. I reject the gendered language in this card. nAK When you have a virtue, a real, whole virtue (and not merely a mini-instinct for some virtue), you are its victim. But your neighbor praises your virtue precisely on that account. One praises the industrious even though they harm their eyesight or the spontaneity and freshness of their spirit. One honors and feels sorry for the youth who has worked himself into the ground because one thinks: “For society as a whole the loss of even the best individual is merely a small sacrifice. Too bad that such sacrifices are needed!” The praise of virtue is the praise of something is privately harmful – the praise of instincts that deprive a human being of his noblest selfishness and the strength for the highest autonomy. That is how education always proceeds: one tries to condition an individual by various attractions and advantages to adopt a way of thinking and behaving that, once it has become a habit, instinct, and passion, will dominate him to his own ultimate disadvantage but “for the general good.”Since systems of virtue like morality dissuade persons from ostensibly immoral acts by denying their validity, morality is grounded in a denial in the value of others. Through its privileging rules, systematic morality seeks to control thinking by constantly denying the value of certain acts.Nietzsche 3 Friedrich Nietzsche, On the Genealogy of Morals. In Basic Writings of Nietzsche. Translated and edited by Walter Kaufmann. The Modern Library Classics: New York 2000. pp. 472-3. I reject the gendered language in this card. nAKThe slave revolt in morality begins when ressentiment itself becomes creative and gives birth to values: the ressentiment of natures that are denied the true reaction, that of deeds, and compensate themselves with an imaginary revenge. While every noble morality develops from a triumphant affirmation of itself, slave morality from the outset says No to what is “outside,” what is “different,” what is “not itself”; and this No is its creative deed. This inversion of the value-positing eye – this need to direct one's view outward instead of back to oneself – is of the essence of ressentiment: in order to exist, slave morality always first needs a hostile external world; it needs, physiologically speaking, external stimuli in order to act at all – its action is fundamentally reaction.Thus the standard is consistency with slave morality.I defend the resolution as a general principle. I am willing to specify any particular topical plan in cross-ex. I defend implementation, but consequences are not relevant under the standard. I contend that plea bargain abolition is consistent with slave morality.2 Guilt: the Western Judeo-Christian order fetishizes punishment and self-harm as the ultimate form of slave morality.Janaway 7 (Christopher, “Beyond Selflessness: Reading Nietsche’s Geneology.” 2007, Oxford Scholarship Online. nAK)This chapter gives a reading of Genealogy II, whose central argument is that bad conscience, in its developed form as the feeling of guilt, particularly associated with Christianity, is a form of legitimized cruelty turned inwards upon oneself. Nietzsche posits a fundamental human tendency to experience pleasure in inflicting suffering. He assigns the origins of bad conscience to ‘internalization’, in which aggressive instincts, curbed by civilized society, express themselves towards the self. He also cites the conventional debtor-creditor relationship as its origin. This can produce a unified account, as long as we see that the instinct towards cruelty is subject both to internalization and to legitimization. We must see the cruelty we inflict upon ourselves as deserved. The Christian God is invented as the perpetual guarantee of our deserving punishment for having aggressive animal instincts. Thus, bad conscience gains its value from the same origin as the instincts it opposes.1 Prefer genealogical accounts of ethics — traditional value systems fail, since they either A fail to critique the nature of value itself, or B falsely assume that causality and morality are objective concepts.Deleuze 83 summarizes Nietzsche (Gilles, psychoanalyst and philosopher, “Nietzsche and Philosophy” trans. Hugh Tomlinson nAK)Nietzsche’s most general project is the introduction of the concepts of sense and value into philosophy. It is clear that modern philosophy has largely lived off Nietzsche. But not perhaps in the way in which he would have wished. Nietzsche made no secret of the fact that the philosophy of sense and values had to be a critique. One of the principal motifs of Nietzsche's work is that Kant had not carried out a true critique because he was not able to pose the problem of critique in terms of values. And what has happened in modern philosophy is that the theory of values has given rise to a new conformism and new forms of submission. Even the phenomenological apparatus has contributed to placing the Nietzschean inspiration, which is often present in phenomenology, at the service of modern conformism. But, with Nietzsche, we must begin from the fact that the philosophy of values as envisaged and established by him is the true realization of critique and the only way in which a total critique may be realised, the only way to "philosophize with a hammer". In fact, the notion of value implies acritkal reversal. On the one hand, values appear or are given as principles: and evaluation presupposes values on the basis of which phenomena are appraised. But, on the other hand and more profoundly, it is values which presuppose evaluations, "perspectives of appraisal", from which their own value is derived. The problem of critique is that of the value of values, of the evaluation from which their value arises, thus the problem of their creation. Evaluation is defined as the differential element of corresponding values, an element which is both critical and creative.1 * Evaluations, in essence, are not values but ways of being, modes of existence of those who judge and evaluate, serving as principles for the values on the basis of which they judge. This is why we always have the beliefs, feelings and thoughts that we deserve given our way of being or our style of life. There are things that can only be said, felt or conceived, values which can only be adhered to, on condition of "base" evaluation, "base" living and thinking. This is the crucial point; high and low, noble and base, are not values but represent the differential element from which the value of values themselves derives. Critical philosophy has two inseparable moments: the referring back of all things and any kind of origin to values, but also the reffering back of these values to something which is, as it were, their origin and determines their value. This is Nietzsche's twofold struggle: against those who remove values from criticism, contenting themselves with producing inventories of existing values or with criticising things in the name of established values (the "philosophical labourers", Kant and Schopenhauer, BGE 211); but also against those who criticise, or respect, values by deriving them from simple facts, from so-called "objective facts" (the utilitarians, the "scholars", BGE Part 6). In both cases philosophy moves in the indifferent element of the valuable in itself or the valuable for all. Nietzsche attacks both the "high" idea of foundation which leaves values indifferent to their own origin and the idea of a simple causal derivation or smooth beginning which suggests an indifferent origin for values. Nietzsche creates the new concept of genealogy. The philosopher is a genealogist rather than a Kantian tribunal judge or a utilitarian mechanic. Hesiod is such a philosopher. Nietzsche substitutes the pathos of difference or distance (the differential element) for both the Kantian principle of universality and the principle of resemblance dear to the utilitarians. "It was from the height of this pathos of distance that they first seized the right to create values and to coin names for them; what did utility matter?" (GM I 2 p. 26*).2 Consciousness is an illusion — we subconsciously invent coherent narratives by stitching together discrete experiences.Chopra 11 (Deepak, “The Absolute Break Between Life and Death Is an Illusion”, Huffington Post. Author and physician. nAK)What bothers people about losing the body is that it seems like a terrible break or interruption. This interruption is imagined as going into the void; it is total personal extinction. Yet that perspective, which arouses huge fears, is limited to the ego. The ego craves continuity; it wants today to feel like an extension of yesterday. Without that thread to cling to, the journey day to day would feel disconnected, or so the ego fears. But how traumatized are you by having a new image come to mind, or a new desire? You dip into the field of infinite possibilities for any new thought, returning with a specific image out of the trillions that could possibly exist. At that moment, you aren’t the person you were a second ago. So, you are clinging to an illusion of continuity. Give it up this moment and you will fulfill St. Paul’s dictum to die unto death. You will realize that you have been discontinuous all along, constantly changing, constantly dipping into the ocean of possibilities to bring forth anything new. Death can be viewed as a total illusion because you are dead already. When you think of who you are in terms of I, me, and mine, you are referring to your past, a time that is dead and gone. Its memories are relics of time passed by. The ego keeps itself intact by repeating what it already knows. Yet life is actually unknown, as it has to be if you are ever to conceive of new thoughts, desires, and experiences. By choosing to repeat the past, you are keeping life from renewing itself. Why wait? You can be as alive as you want to be through a process known as surrender. This is the next step in conquering death. So far the line between life and death has become so blurry that it has almost disappeared. Surrender is the act of erasing the line entirely. When you can see yourself as the total cycle of death within life and the life within death, you have surrendered – the mystic’s most powerful tool against materialism. At the threshold of the one reality, the mystic gives up all need for boundaries and plunges directly into existence. The circle closes, and the mystic experiences himself as the one reality.5 Nueva AK Neg ReformsCounterplan Text: The United States federal government should-require formal threshold charges for punishment-extend pre-trial rights to those who accept plea bargaining-release all exculpatory evidenceSolves the case and the root cause of aff impacts.Rappaport 16 Jay Rappaport, Plea Bargaining: An Unfair Deal, from Roosevelt Review of the Roosevelt Institute at Columbia University, 2016, pg 24, SJ MCAn attainable way to solve many of the problems of plea bargaining would be to require a threshold charge before plea bargaining begins. With a threshold charge, barring the discovery of new evidence, prosecutors would be prohibited from charging the defendant with a more severe crime once plea bargaining has commenced. This system would nullify a big reason why people accept suboptimal or incorrect guilty pleas: the potential of receiving a harsher punishment should they refuse. Issuing a threshold charge would require the plea bargaining process have a formal start which it does not currently have. The extension of pretrial rights to plea bargaining also represents a feasible way to solve many of plea bargaining’s problems. Currently, when one accepts a guilty plea, one releases all pretrial rights, including the right to challenge an illegally obtained confession, because as written, such rights only apply when the defendant challenges the validity of a charge itself.9 Pretrial rights should be extended to defendants during plea bargaining to ensure that they are in the most beneficial bargaining position the law accords defendants generally. Finally, exculpatory evidence should be released during any plea bargain. In November 2015, the West Virginia Supreme Court ruled that prosecutors must release all exculpatory evidence—evidence that would benefit the defense— during a plea bargain. Such a mandate has applied to cases in court for over forty years.10 This decision should be enforced to allow for the defendant to achieve the most advantageous bargaining position. Criminal justice reform movements are plea bargaining reform’s biggest ally. Plea Bargaining is not the problem – it’s essential to our system. The larger issue is the coercive power imbalances involved – the CP resolves these.Caldwell 11 Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System H. Mitchell Caldwell, Fall 2011, Volume 61, Issue 1, Article 2, itself, plea bargaining is not the problem. Quite the contrary, it is essential to our judicial process.78 According to one commentator, it defines “contemporary criminal prosecution.”79 Plea and sentence bargaining are only problematic, as previously set forth, when an accused is coerced into a so called bargain for fear of punishment disproportionate to his or her actual criminal conduct, if any.80 Yet, some persist in painting the entire practice of plea bargaining as the problem. Detractors maintain that plea bargaining is a product of “laziness, bureaucratization, overcriminalization, and economic pressure.”81 Although elements of each may, and do, foster dependence on plea bargaining, it is ultimately a function of a burgeoning population, poverty,83 urbanization,84 the prevalence of drugs,85 and the nature of the adversarial process.86 The contemporary criminal-justice infrastructure simply cannot accommodate each criminal defendant with a trial.87 Furthermore, even critics of plea bargaining must acknowledge that some form of bargaining is the norm, even in the most mundane types of cases.88 Sentence bargaining is one such example. Before defendants agree to plead to the precise charge filed, they typically strike a bargain with the prosecutor about the actual length of sentence they must serve.89 To reach this settlement, prosecutors and defendants have open discussions about the consequences of the bargain, thereby allowing defendants to be informed when entering their pleas and thereafter receiving their sentences.90 This arrangement is called sentence bargaining because the charge filed is not in dispute; rather, the defendant pleads to the filed charge, and the only point in question is the sentence to be imposed.91 Plea bargaining, in contrast to sentence bargaining, typically involves negotiations about several charges.92 These negotiations conclude with either the dismissal of some charges in exchange for a guilty plea to one or more other charges, or a downgrade of the original charge in exchange for a guilty plea to this lesser charge.93 Typically, even this basic plea-bargain arrangement involves some degree of sentence bargaining.94 In most cases, by pleading guilty to a lesser charge, the defendant subjects himself to a shorter sentence range of which the judiciary could approve.95 Thus, plea bargaining, as an integral component of the criminal justice system, is here to stay.96 Rather than complete abolition, it is the unethical abuse of the unique bargaining positions that needs to be eradicated.97DA CartelsThe drug market is booming and cartels are gaining influence — high demand.Davis 12/14 (Kristina, “Potency, purity of drugs reaching even higher levels” nAK)Methamphetamine When U.S. laws restricted the sale of precursor chemicals needed to make methamphetamine, its production moved from domestic home labs to massive labs in Mexico run by cartels. But consumption of the drug has kept a strong foothold in the nation and San Diego County. The drug is being sold in nearly pure form these days. Purity in 2016 was around 93 to 96 percent with prices low and stable, indicating an oversupply, according to the DEA’s 2017 National Drug Threat Assessment. A 93 percent pure gram was going for $58 in 2016. To counteract the falling prices, organizations are trying to market more to the East Coast and hook new users, authorities said. The Mexican labs are also coming up with new methods to make the drug so they don’t have to rely on getting precursor chemicals from China, a supply chain that is being heavily scrutinized, the DEA reported. Survey and treatment data shows demand for meth may be increasing. In San Diego County, deaths, reported usage and reported availability all rose over the past five years, according to the Methamphetamine Strike Force 2016 Report Card. Fentanyl Fentanyl, a prescription drug that has been around for decades, has been used as a painkiller and anesthetic in clinical settings. Most of the fentanyl in the U.S. illegal market is either being made in Mexican cartel labs or is being mailed in much smaller quantities from China. It is not complicated to cut fentanyl into other drugs or make into pills, which can be especially deadly to users in the hands of an amateur mixologist. It is cheaper and easier to produce than heroin, which is produced from poppy crops, and is often deceptively marketed on the street as heroin or oxycodone pills to opioid addicts. The fentanyl being seized coming across the U.S.-Mexico border in San Diego is typically 4 to 6 percent pure, already diluted considerably by the cartels, said Roderick. The smaller quantities being mailed from China are much more pure, often 90 percent or higher, according to the DEA. A wholesale kilogram of fentanyl in San Diego County goes for about $31,000, Roderick said. The prices increase the farther from the border. “We’re seeing more fentanyl than any other DEA lab in the country due to the fact we are at the border,” said Roderick. Heroin Heroin in San Diego County comes exclusively from Mexico, and with boosts in farming production there, the country is now the primary source of heroin for the U.S. Lab tests show Mexican powder heroin is extremely pure, especially on the East Coast, more than the typical 40 to 50 percent dilution in that market, the DEA reported. In San Diego in 2015 heroin was testing 35 percent pure, continuing an upward trend over the past few years. Mexican black tar heroin, which has traditionally been the heroin of choice in San Diego, has also been increasingly replaced by refined white or brown powder heroin — another result of the opioid epidemic. “Prescription drug users don’t want black tar heroin,” Roderick said. “That looks nasty; they want something nice and pretty.” A designer drug marketed as “China White,” a name that used to mean heroin now means fentanyl or perhaps an even stronger fentanyl derivative. “The illicit fentanyl and heroin markets are so intertwined it is difficult to gauge how much heroin market share fentanyl has gained,” the DEA stated in its 2017 assessment. Cocaine Cocaine appears to coming back into fashion after its 1970s and ’80s heyday. “Cocaine is really coming back with a bang,” Roderick said. “I expect purity to go up and prices to start back up.” Opioid addicts have been drawn to the drug recently, she said, and “speedballing” — mixing heroin and cocaine to balance the stimulant and depressant effects of the drugs — is becoming more popular again. Coca production has been increasing in Colombia in recent years with the end to aerial fumigation and a financial incentive program promising to pay farmers for their illicit crops if they turn to legal ones. While the average purity of a gram of cocaine in the U.S. has remained relatively stable in the past several years — around 45 to 49 percent — it increased to 56 percent last year. The price has dropped since then, to $165 per gram. “Since 2007, average annual cocaine purity in the United States has had a relatively strong relationship with Colombian cocaine production, although the relationship between cocaine production and domestic prices is weak,” the DEA reports. “This may mean other factors, including competition within drug markets, and changes in the user population, have more influence on domestic prices than previously recognized.” Marijuana This isn’t your parents’ pot. Marijuana has gotten increasingly stronger over the decades as the demand for designer crops has grown, the drug is decriminalized around the country and innovation flourishes. It’s a phenomenon tracked in part by the University of Mississippi’s Potency Monitoring Program, which tests law enforcement seizures from around the nation. Mexico is the primary foreign source for marijuana, although marijuana is being grown increasingly in the U.S. as it is legalized in many states. While Mexican marijuana is thought to be lower grade, law enforcement reporting indicates cartels are increasing the quality to stay competitive, according to the DEA. Traditional marijuana, the leafy kind, averaged a THC potency of 11 percent in 2015 — three times the amount in 1995, according to the seizure data. (Potency is the dosage needed to affect a person, versus purity, which is the amount of drug in a sample.) The highest level of THC — the component that creates a high — tested was 37 percent. Concentrated marijuana, known as hash oil, is incredibly more potent, with a national average of 56 percent purity in 2015, according to the university’s seizure data. Concentrated marijuana is found in vaporizers, edibles, tablets and lotions, and is how many new or experimental users might experience legalized recreational marijuana. Some hash oil seizures tested above 90 percent potency, the university reported. The legal market shows even higher typical potency levels — 20 percent in traditional marijuana and 60 percent in concentrate being commonplace in Washington state, according to a 2017 study by Rand. Potential users in legal states need to remember that this isn’t the same weed they smoked in college, experts say. “The purity is so much higher and you run the risk of ending up hurting yourself,” Roderick said. Pacula at Rand is part of a group of experts working to identify standard doses of marijuana that can be recommended in its various forms — an area of research lacking in the U.S. due to marijuana still being illegal under federal law.Plea deals are necessary to weaken cartels.O’Brien 8 Ann O’Brien, Senior Counsel to the Deputy Assistant Attorney General For Criminal Enforcement, 6-6-2008, "Cartel Settlements In The U.S. And EU: Similarities, Differences and Remaining Questions," Enforcement Antitrust Division, U.S. Department of Justice JSIn the U.S., early cooperators not only provide valuable evidence that the Division can use against other co-conspirators, but also once their plea agreements are filed on the public record they often provide strong momentum that expedites the Division’s investigation and prosecution of other conspirators and even, in an Amnesty-Plus situation, other cartels. Plea negotiations are confidential, but once agreements are reached, the plea agreement is filed with the court and made public.1 Other cartel participants can then see that co-conspirators have accepted responsibility and promised to cooperate, and they often quickly line up to plead guilty. The momentum created by seriatim settlements before the conclusion of an investigation is a powerful benefit to the Division that has no counterpart under the Commission’s settlement procedure.Drug use in the US kills tens of thousands annually – the number of deaths is only increasing as the opioid epidemic spreads to the East Coast.Katz 17 John Katz (graphics editor for The New York Times, where he covers politics, sports and culture for The Upshot, he studied political science and philosophy at Drew University and earned his master's degree in statistics from N.C. State University) 6-5-2017, “Drug Deaths in America Are Rising Faster Than Ever,” New York Times, JSDrug overdose deaths in 2016 most likely exceeded 59,000, the largest annual jump ever recorded in the United States, according to preliminary data compiled by The New York Times. The death count is the latest consequence of an escalating public health crisis: opioid addiction, now made more deadly by an influx of illicitly manufactured fentanyl and similar drugs. Drug overdoses are now the leading cause of death among Americans under 50. Although the data is preliminary, the Times’s best estimate is that deaths rose 19 percent over the 52,404 recorded in 2015. And all evidence suggests the problem has continued to worsen in 2017. Because drug deaths take a long time to certify, the Centers for Disease Control and Prevention will not be able to calculate final numbers until December. The Times compiled estimates for 2016 from hundreds of state health departments and county coroners and medical examiners. Together they represent data from states and counties that accounted for 76 percent of overdose deaths in 2015. They are a first look at the extent of the drug overdose epidemic last year, a detailed accounting of a modern plague. The initial data points to large increases in drug overdose deaths in states along the East Coast, particularly Maryland, Florida, Pennsylvania and Maine. In Ohio, which filed a lawsuit last week accusing five drug companies of abetting the opioid epidemic, we estimate overdose deaths increased by more than 25 percent in 2016.Drug instability risks a failed Mexican state.Thoumi, Manaut, Sain, and Jácome, 10 (*Francisco E., expert at the Wilson Center, Ph.D., professor of economics and the director of the Research and Minotiring Center on Drugs and Crime at Universidad el Rosario, former research coordinator at the United National Office of Drug Control and Crime Prevention, Raúl Benitez, public policy scholar at the Wilson Center, researcher at the Center for Interdisciplinary Research in Science and Humanities, professor and researcher at the North America Rsearch Center of UNAM-Mexico, CNAS Senior Fellow, Distinguished Scholar-in-Residence, School of Public Affairs and Washington College of Law, Ph.D in Latin American Studies at UNAM, Master of International Affairs from the Centro de Investigacion y Docencia Economica, *professor at the University of San Andrés, Ph.D., University of Salvador, political science, Francine, professor of anthropology at the Central University of Venezuela, political science degree, Friedrich, Ebert, and Stiftung Research, “The impact of organized crime on Democratic Governance in Latin America”, Organized crime in Colombia is today more complex, diversified and sophisticated than when the cocaine industry started. Indeed, the illegal industry has been a cata- lyst that aggravated many of the main social conflicts of the country and encouraged the growth of organized crime. Organized crime has become a great obstacle to democratic governance in Colombia. n We can say that the Mexican state is losing the war against drug trafficking and that therefore it must radically change its strategy because of the following: the spike in executions, the exponential increase in U.S. aid, the increased presence of the armed forces in the fight against drug trafficking and in public security in high risk cities, the transformation of Juárez into the most dangerous city in the world, increasing cocaine consumption and the sentiments that Mexico could become a failed state. The management, administration and overall control of public security matters and, amongst these, combating organized crime, as well as the organization and running of the police system remain in the hands of the police themselves, generating a sort of ?police-ification? of public security. In Brazil, Paraguay and to a lesser extent in Uruguay this process has also included a strong tendency to incorporate the Armed Forces in the ?war on organized crime?, all prompted by the failings of the police system in tackling the problem.Mexican instability causes massive global oil shocks Moran ‘9 7/31/09, Michael Moran, executive editor and policy analyst, Council on Foreign Relations, “Six Crises, 2009: A Half-Dozen Ways Geopolitics Could Upset Global Recovery,” A story receiving more attention in the American media than Iraq these days is the horrific drug-related violence across the northern states of Mexico, where Felipe Calderon has deployed the national army to combat two thriving drug cartels, which have compromised the national police beyond redemption. The tales of carnage are horrific, to be sure: 30 people were killed in a 48 hour period last week in Cuidad Juarez alone, a city located directly across the Rio Grande from El Paso, Texas. So far, the impact on the United States and beyond has been minimal. But there also isn’t much sign that the army is winning, either, and that raises a disturbing question: What if Calderon loses? The CIA’s worst nightmare during the Cold War (outside of an administration which forced transparency on it, of course) was the radicalization or collapse of Mexico. The template then was communism, but narco-capitalism doesn’t look much better. The prospect of a wholesale collapse that sent millions upon millions of Mexican refugees fleeing across the northern border so far seems remote. But Mexico’s army has its own problems with corruption, and a sizeable number of Mexicans regard Calderon’s razor-thin 2006 electoral victory over a leftist rival as illegitimate. With Mexico’s economy reeling and the traditional safety valve of illegal immigration to America dwindling, the potential for serious trouble exists. Meanwhile, Mexico ranks with Saudi Arabia and Canada as the three suppliers of oil the United States could not do without. Should things come unglued there and Pemex production shut down even temporarily, the shock on oil markets could be profound, again, sending its waves throughout the global economy. Long-term, PEMEX production has been sliding anyway, thanks to oil fields well-beyond their peak and restrictions on foreign investment. Domestically in the U.S., any trouble involving Mexico invariably will cause a bipartisan demand for more security on the southern border, inflame anti-immigrant sentiment and possibly force Obama to remember his campaign promise to “renegotiate NAFTA,” a pledge he deftly sidestepped once in office.Oil shocks cause extinction Lendman ‘7 Research Associate of the Centre for Research on Globalization. Stephen Lendman, “Resource Wars - Can We Survive Them?,” , 6-6-7, pg. the world's energy supplies finite, the US heavily dependent on imports, and "peak oil" near or approaching, "security" for America means assuring a sustainable supply of what we can't do without. It includes waging wars to get it, protect it, and defend the maritime trade routes over which it travels. That means energy's partnered with predatory New World Order globalization, militarism, wars, ecological recklessness, and now an extremist US administration willing to risk Armageddon for world dominance. Central to its plan is first controlling essential resources everywhere, at any cost, starting with oil and where most of it is located in the Middle East and Central Asia. The New "Great Game" and Perils From It The new "Great Game's" begun, but this time the stakes are greater than ever as explained above. The old one lasted nearly 100 years pitting the British empire against Tsarist Russia when the issue wasn't oil. This time, it's the US with help from Israel, Britain, the West, and satellite states like Japan, South Korea and Taiwan challenging Russia and China with today's weapons and technology on both sides making earlier ones look like toys. At stake is more than oil. It's planet earth with survival of all life on it issue number one twice over. Resources and wars for them means militarism is increasing, peace declining, and the planet's ability to sustain life front and center, if anyone's paying attention. They'd better be because beyond the point of no return, there's no second chance the way Einstein explained after the atom was split. His famous quote on future wars was : "I know not with what weapons World War III will be fought, but World War IV will be fought with sticks and stones." Under a worst case scenario, it's more dire than that. There may be nothing left but resilient beetles and bacteria in the wake of a nuclear holocaust meaning even a new stone age is way in the future, if at all. The threat is real and once nearly happened during the Cuban Missile Crisis in October, 1962. We later learned a miracle saved us at the 40th anniversary October, 2002 summit meeting in Havana attended by the US and Russia along with host country Cuba. For the first time, we were told how close we came to nuclear Armageddon. Devastation was avoided only because Soviet submarine captain Vasily Arkhipov countermanded his order to fire nuclear-tipped torpedos when Russian submarines were attacked by US destroyers near Kennedy's "quarantine" line. Had he done it, only our imagination can speculate what might have followed and whether planet earth, or at least a big part of it, would have survived.Version 2Drug demand fuels cartel influence.Davis 12/14 (Kristina, “Potency, purity of drugs reaching even higher levels” nAK)Methamphetamine When U.S. laws restricted the sale of precursor chemicals needed to make methamphetamine, its production moved from domestic home labs to massive labs in Mexico run by cartels. But consumption of the drug has kept a strong foothold in the nation and San Diego County. The drug is being sold in nearly pure form these days. Purity in 2016 was around 93 to 96 percent with prices low and stable, indicating an oversupply, according to the DEA’s 2017 National Drug Threat Assessment. A 93 percent pure gram was going for $58 in 2016. To counteract the falling prices, organizations are trying to market more to the East Coast and hook new users, authorities said. The Mexican labs are also coming up with new methods to make the drug so they don’t have to rely on getting precursor chemicals from China, a supply chain that is being heavily scrutinized, the DEA reported. Survey and treatment data shows demand for meth may be increasing. In San Diego County, deaths, reported usage and reported availability all rose over the past five years, according to the Methamphetamine Strike Force 2016 Report Card. Fentanyl Fentanyl, a prescription drug that has been around for decades, has been used as a painkiller and anesthetic in clinical settings. Most of the fentanyl in the U.S. illegal market is either being made in Mexican cartel labs or is being mailed in much smaller quantities from China. It is not complicated to cut fentanyl into other drugs or make into pills, which can be especially deadly to users in the hands of an amateur mixologist. It is cheaper and easier to produce than heroin, which is produced from poppy crops, and is often deceptively marketed on the street as heroin or oxycodone pills to opioid addicts. The fentanyl being seized coming across the U.S.-Mexico border in San Diego is typically 4 to 6 percent pure, already diluted considerably by the cartels, said Roderick. The smaller quantities being mailed from China are much more pure, often 90 percent or higher, according to the DEA. A wholesale kilogram of fentanyl in San Diego County goes for about $31,000, Roderick said. The prices increase the farther from the border. “We’re seeing more fentanyl than any other DEA lab in the country due to the fact we are at the border,” said Roderick. Heroin Heroin in San Diego County comes exclusively from Mexico, and with boosts in farming production there, the country is now the primary source of heroin for the U.S. Lab tests show Mexican powder heroin is extremely pure, especially on the East Coast, more than the typical 40 to 50 percent dilution in that market, the DEA reported. In San Diego in 2015 heroin was testing 35 percent pure, continuing an upward trend over the past few years. Mexican black tar heroin, which has traditionally been the heroin of choice in San Diego, has also been increasingly replaced by refined white or brown powder heroin — another result of the opioid epidemic. “Prescription drug users don’t want black tar heroin,” Roderick said. “That looks nasty; they want something nice and pretty.” A designer drug marketed as “China White,” a name that used to mean heroin now means fentanyl or perhaps an even stronger fentanyl derivative. “The illicit fentanyl and heroin markets are so intertwined it is difficult to gauge how much heroin market share fentanyl has gained,” the DEA stated in its 2017 assessment. Cocaine Cocaine appears to coming back into fashion after its 1970s and ’80s heyday. “Cocaine is really coming back with a bang,” Roderick said. “I expect purity to go up and prices to start back up.” Opioid addicts have been drawn to the drug recently, she said, and “speedballing” — mixing heroin and cocaine to balance the stimulant and depressant effects of the drugs — is becoming more popular again. Coca production has been increasing in Colombia in recent years with the end to aerial fumigation and a financial incentive program promising to pay farmers for their illicit crops if they turn to legal ones. While the average purity of a gram of cocaine in the U.S. has remained relatively stable in the past several years — around 45 to 49 percent — it increased to 56 percent last year. The price has dropped since then, to $165 per gram. “Since 2007, average annual cocaine purity in the United States has had a relatively strong relationship with Colombian cocaine production, although the relationship between cocaine production and domestic prices is weak,” the DEA reports. “This may mean other factors, including competition within drug markets, and changes in the user population, have more influence on domestic prices than previously recognized.” Marijuana This isn’t your parents’ pot. Marijuana has gotten increasingly stronger over the decades as the demand for designer crops has grown, the drug is decriminalized around the country and innovation flourishes. It’s a phenomenon tracked in part by the University of Mississippi’s Potency Monitoring Program, which tests law enforcement seizures from around the nation. Mexico is the primary foreign source for marijuana, although marijuana is being grown increasingly in the U.S. as it is legalized in many states. While Mexican marijuana is thought to be lower grade, law enforcement reporting indicates cartels are increasing the quality to stay competitive, according to the DEA. Traditional marijuana, the leafy kind, averaged a THC potency of 11 percent in 2015 — three times the amount in 1995, according to the seizure data. (Potency is the dosage needed to affect a person, versus purity, which is the amount of drug in a sample.) The highest level of THC — the component that creates a high — tested was 37 percent. Concentrated marijuana, known as hash oil, is incredibly more potent, with a national average of 56 percent purity in 2015, according to the university’s seizure data. Concentrated marijuana is found in vaporizers, edibles, tablets and lotions, and is how many new or experimental users might experience legalized recreational marijuana. Some hash oil seizures tested above 90 percent potency, the university reported. The legal market shows even higher typical potency levels — 20 percent in traditional marijuana and 60 percent in concentrate being commonplace in Washington state, according to a 2017 study by Rand. Potential users in legal states need to remember that this isn’t the same weed they smoked in college, experts say. “The purity is so much higher and you run the risk of ending up hurting yourself,” Roderick said. Pacula at Rand is part of a group of experts working to identify standard doses of marijuana that can be recommended in its various forms — an area of research lacking in the U.S. due to marijuana still being illegal under federal law.Plea deals control drug supply by weakening cartels — no other enforcement mechanisms.O’Brien 8 Ann O’Brien, Senior Counsel to the Deputy Assistant Attorney General For Criminal Enforcement, 6-6-2008, "Cartel Settlements In The U.S. And EU: Similarities, Differences and Remaining Questions," Enforcement Antitrust Division, U.S. Department of Justice JSIn the U.S., early cooperators not only provide valuable evidence that the Division can use against other co-conspirators, but also once their plea agreements are filed on the public record they often provide strong momentum that expedites the Division’s investigation and prosecution of other conspirators and even, in an Amnesty-Plus situation, other cartels. Plea negotiations are confidential, but once agreements are reached, the plea agreement is filed with the court and made public.1 Other cartel participants can then see that co-conspirators have accepted responsibility and promised to cooperate, and they often quickly line up to plead guilty. The momentum created by seriatim settlements before the conclusion of an investigation is a powerful benefit to the Division that has no counterpart under the Commission’s settlement procedure.Drug use in the US kills tens of thousands annually – the number of deaths is only increasing as the opioid epidemic spreads to the East Coast.Katz 17 John Katz (graphics editor for The New York Times, where he covers politics, sports and culture for The Upshot, he studied political science and philosophy at Drew University and earned his master's degree in statistics from N.C. State University) 6-5-2017, “Drug Deaths in America Are Rising Faster Than Ever,” New York Times, JSDrug overdose deaths in 2016 most likely exceeded 59,000, the largest annual jump ever recorded in the United States, according to preliminary data compiled by The New York Times. The death count is the latest consequence of an escalating public health crisis: opioid addiction, now made more deadly by an influx of illicitly manufactured fentanyl and similar drugs. Drug overdoses are now the leading cause of death among Americans under 50. Although the data is preliminary, the Times’s best estimate is that deaths rose 19 percent over the 52,404 recorded in 2015. And all evidence suggests the problem has continued to worsen in 2017. Because drug deaths take a long time to certify, the Centers for Disease Control and Prevention will not be able to calculate final numbers until December. The Times compiled estimates for 2016 from hundreds of state health departments and county coroners and medical examiners. Together they represent data from states and counties that accounted for 76 percent of overdose deaths in 2015. They are a first look at the extent of the drug overdose epidemic last year, a detailed accounting of a modern plague. The initial data points to large increases in drug overdose deaths in states along the East Coast, particularly Maryland, Florida, Pennsylvania and Maine. In Ohio, which filed a lawsuit last week accusing five drug companies of abetting the opioid epidemic, we estimate overdose deaths increased by more than 25 percent in 2016.Drug instability risks a failed Mexican state.Thoumi, Manaut, Sain, and Jácome, 10 (*Francisco E., expert at the Wilson Center, Ph.D., professor of economics and the director of the Research and Minotiring Center on Drugs and Crime at Universidad el Rosario, former research coordinator at the United National Office of Drug Control and Crime Prevention, Raúl Benitez, public policy scholar at the Wilson Center, researcher at the Center for Interdisciplinary Research in Science and Humanities, professor and researcher at the North America Rsearch Center of UNAM-Mexico, CNAS Senior Fellow, Distinguished Scholar-in-Residence, School of Public Affairs and Washington College of Law, Ph.D in Latin American Studies at UNAM, Master of International Affairs from the Centro de Investigacion y Docencia Economica, *professor at the University of San Andrés, Ph.D., University of Salvador, political science, Francine, professor of anthropology at the Central University of Venezuela, political science degree, Friedrich, Ebert, and Stiftung Research, “The impact of organized crime on Democratic Governance in Latin America”, Organized crime in Colombia is today more complex, diversified and sophisticated than when the cocaine industry started. Indeed, the illegal industry has been a cata- lyst that aggravated many of the main social conflicts of the country and encouraged the growth of organized crime. Organized crime has become a great obstacle to democratic governance in Colombia. n We can say that the Mexican state is losing the war against drug trafficking and that therefore it must radically change its strategy because of the following: the spike in executions, the exponential increase in U.S. aid, the increased presence of the armed forces in the fight against drug trafficking and in public security in high risk cities, the transformation of Juárez into the most dangerous city in the world, increasing cocaine consumption and the sentiments that Mexico could become a failed state. The management, administration and overall control of public security matters and, amongst these, combating organized crime, as well as the organization and running of the police system remain in the hands of the police themselves, generating a sort of ?police-ification? of public security. In Brazil, Paraguay and to a lesser extent in Uruguay this process has also included a strong tendency to incorporate the Armed Forces in the ?war on organized crime?, all prompted by the failings of the police system in tackling the problem.Mexican instability causes massive global oil shocks Moran ‘9 7/31/09, Michael Moran, executive editor and policy analyst, Council on Foreign Relations, “Six Crises, 2009: A Half-Dozen Ways Geopolitics Could Upset Global Recovery,” A story receiving more attention in the American media than Iraq these days is the horrific drug-related violence across the northern states of Mexico, where Felipe Calderon has deployed the national army to combat two thriving drug cartels, which have compromised the national police beyond redemption. The tales of carnage are horrific, to be sure: 30 people were killed in a 48 hour period last week in Cuidad Juarez alone, a city located directly across the Rio Grande from El Paso, Texas. So far, the impact on the United States and beyond has been minimal. But there also isn’t much sign that the army is winning, either, and that raises a disturbing question: What if Calderon loses? The CIA’s worst nightmare during the Cold War (outside of an administration which forced transparency on it, of course) was the radicalization or collapse of Mexico. The template then was communism, but narco-capitalism doesn’t look much better. The prospect of a wholesale collapse that sent millions upon millions of Mexican refugees fleeing across the northern border so far seems remote. But Mexico’s army has its own problems with corruption, and a sizeable number of Mexicans regard Calderon’s razor-thin 2006 electoral victory over a leftist rival as illegitimate. With Mexico’s economy reeling and the traditional safety valve of illegal immigration to America dwindling, the potential for serious trouble exists. Meanwhile, Mexico ranks with Saudi Arabia and Canada as the three suppliers of oil the United States could not do without. Should things come unglued there and Pemex production shut down even temporarily, the shock on oil markets could be profound, again, sending its waves throughout the global economy. Long-term, PEMEX production has been sliding anyway, thanks to oil fields well-beyond their peak and restrictions on foreign investment. Domestically in the U.S., any trouble involving Mexico invariably will cause a bipartisan demand for more security on the southern border, inflame anti-immigrant sentiment and possibly force Obama to remember his campaign promise to “renegotiate NAFTA,” a pledge he deftly sidestepped once in office.Oil shocks cause extinction Lendman ‘7 Research Associate of the Centre for Research on Globalization. Stephen Lendman, “Resource Wars - Can We Survive Them?,” , 6-6-7, pg. the world's energy supplies finite, the US heavily dependent on imports, and "peak oil" near or approaching, "security" for America means assuring a sustainable supply of what we can't do without. It includes waging wars to get it, protect it, and defend the maritime trade routes over which it travels. That means energy's partnered with predatory New World Order globalization, militarism, wars, ecological recklessness, and now an extremist US administration willing to risk Armageddon for world dominance. Central to its plan is first controlling essential resources everywhere, at any cost, starting with oil and where most of it is located in the Middle East and Central Asia. The New "Great Game" and Perils From It The new "Great Game's" begun, but this time the stakes are greater than ever as explained above. The old one lasted nearly 100 years pitting the British empire against Tsarist Russia when the issue wasn't oil. This time, it's the US with help from Israel, Britain, the West, and satellite states like Japan, South Korea and Taiwan challenging Russia and China with today's weapons and technology on both sides making earlier ones look like toys. At stake is more than oil. It's planet earth with survival of all life on it issue number one twice over. Resources and wars for them means militarism is increasing, peace declining, and the planet's ability to sustain life front and center, if anyone's paying attention. They'd better be because beyond the point of no return, there's no second chance the way Einstein explained after the atom was split. His famous quote on future wars was : "I know not with what weapons World War III will be fought, but World War IV will be fought with sticks and stones." Under a worst case scenario, it's more dire than that. There may be nothing left but resilient beetles and bacteria in the wake of a nuclear holocaust meaning even a new stone age is way in the future, if at all. The threat is real and once nearly happened during the Cuban Missile Crisis in October, 1962. We later learned a miracle saved us at the 40th anniversary October, 2002 summit meeting in Havana attended by the US and Russia along with host country Cuba. For the first time, we were told how close we came to nuclear Armageddon. Devastation was avoided only because Soviet submarine captain Vasily Arkhipov countermanded his order to fire nuclear-tipped torpedos when Russian submarines were attacked by US destroyers near Kennedy's "quarantine" line. Had he done it, only our imagination can speculate what might have followed and whether planet earth, or at least a big part of it, would have survived. Economic instability leads to nuclear war — kills interdependence and causes lashout.Tonnesson 15 Stein Tonnesson, Research Professor, Peace Research Institute Oslo; Leader of East Asia Peace program, Uppsala University, 2015, “Deterrence, interdependence and Sino–US peace,” International Area Studies Review, Vol. 18, No. 3, p. 297-311Several recent works on China and Sino–US relations have made substantial contributions to the current understanding of how and under what circumstances a combination of nuclear deterrence and economic interdependence may reduce the risk of war between major powers. At least four conclusions can be drawn from the review above: first, those who say that interdependence may both inhibit and drive conflict are right. Interdependence raises the cost of conflict for all sides but asymmetrical or unbalanced dependencies and negative trade expectations may generate tensions leading to trade wars among inter-dependent states that in turn increase the risk of military conflict (Copeland, 2015: 1, 14, 437; Roach, 2014). The risk may increase if one of the interdependent countries is governed by an inward-looking socio-economic coalition (Solingen, 2015); second, the risk of war between China and the US should not just be analysed bilaterally but include their allies and partners. Third party countries could drag China or the US into confrontation; third, in this context it is of some comfort that the three main economic powers in Northeast Asia (China, Japan and South Korea) are all deeply integrated economically through production networks within a global system of trade and finance (Ravenhill, 2014; Yoshimatsu, 2014: 576); and fourth, decisions for war and peace are taken by very few people, who act on the basis of their future expectations. International relations theory must be supplemented by foreign policy analysis in order to assess the value attributed by national decision-makers to economic development and their assessments of risks and opportunities. If leaders on either side of the Atlantic begin to seriously fear or anticipate their own nation’s decline then they may blame this on external dependence, appeal to anti-foreign sentiments, contemplate the use of force to gain respect or credibility, adopt protectionist policies, and ultimately refuse to be deterred by either nuclear arms or prospects of socioeconomic calamities. Such a dangerous shift could happen abruptly, i.e. under the instigation of actions by a third party – or against a third party. Yet as long as there is both nuclear deterrence and interdependence, the tensions in East Asia are unlikely to escalate to war. As Chan (2013) says, all states in the region are aware that they cannot count on support from either China or the US if they make provocative moves. The greatest risk is not that a territorial dispute leads to war under present circumstances but that changes in the world economy alter those circumstances in ways that render inter-state peace more precarious. If China and the US fail to rebalance their financial and trading relations (Roach, 2014) then a trade war could result, interrupting transnational production networks, provoking social distress, and exacerbating nationalist emotions. This could have unforeseen consequences in the field of security, with nuclear deterrence remaining the only factor to protect the world from Armageddon, and unreliably so. Deterrence could lose its credibility: one of the two great powers might gamble that the other yield in a cyber-war or conventional limited war, or third party countries might engage in conflict with each other, with a view to obliging Washington or Beijing to intervene.PIC CartelsCounterplan Text: The United States federal government should abolish all plea bargaining except for plea deals in cartel mon objections to plea bargaining don’t apply to cartel cases – a few warrants.OECD 08 ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT , “Plea Bargaining and Settlement of Cartel Cases,” September 2008, OECD JSAn extensive literature has criticized the use of plea bargaining in criminal cases, on the grounds that it undermines the rights of defendants, such as the presumption of innocence and the right against self-incrimination. In addition, plea bargaining has been criticized for subverting the system of justice and fairness as sanctions become subject to negotiated deals and perpetrators are unjustifiably rewarded when they decide to plead guilty. These concerns appear less relevant to settlements in cartel cases for a number of reasons. Firstly, defendants in cartel cases are represented by sophisticated and well-paid counsel with substantial experience. They can make informed choices and typically can rely on greater resources than the competition authority. In addition, settlement procedures and plea agreements are in many ways a logical extension of practices that are already in place and widely accepted. In the framework of leniency programmes, competition authorities already make some kind of contract offer by promising to impose no sanction on the first cartel participant who informs the authority about the cartel’s activities. In addition, as competition authorities reward co-operation in the form of sentencing and/or fine discounts, companies frequently will produce self-incriminating evidence, thus waiving rights that defendants normally have in criminal and administrative procedures, in exchange for a lower sanction. The most guilty cartel participants may be able to disclose the most valuable information and may benefit from the greatest reward.Theory Actor = CourtsA is the interpretation: Affirmative debaters may not defend a non-legislative governmental body as a legislative agent.B is the violation:The Supreme Court is not a legislative agent – they can functionally legislate by deeming a policy constitutional or unconstitutional but they cannot legislate independently of a case brought before them. Supreme n.d. Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people." The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written Constitution still in force. The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government. The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations. While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution. Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit. Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared. In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases. The Justices must exercise considerable discretion in deciding which cases to hear, since approximately 7,000-8,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of disputes between States or between a State and the Federal Government.T Ought = Logical ConsequenceOxford Dictionary defines ought as “used to indicate something that is probable.” is “used to express logical consequence” as defined by Merriam-Webster () the neg burden is to prove that an abolishment of plea bargaining won’t logically happen in the status quo, and the aff burden is to prove that they will.Prefer my interp:2. Resolvability—A my interp means debates focus on empirics about squo trends rather than irresolvable abstract principles, B moral framework debate is impossible.Joyce 02 Joyce, Richard. Myth of Morality. Port Chester, NY, USA: Cambridge University Press, 2002. p 45-47.This distinction between what is accepted from within an institution, and “stepping out” of that institution and appraising it from an exterior perspective, is close to Carnap’s distinction between internal and external questions. 15 Certain “linguistic frameworks” (as Carnap calls them) bring with them new terms and ways of talking: accepting the language of “things” licenses making assertions like “The shirt is in the cupboard”; accepting mathematics allows one to say “There is a prime number greater than one hundred”; accepting the language of propositions permits saying “Chicago is large is a true proposition,” etc. Internal to the framework in question, confirming or disconfirming the truth of these propositions is a trivial matter. But traditionally philosophers have interested themselves in the external question – the issue of the adequacy of the framework itself: “Do objects exist?”, “Does the world exist?”, “Are there numbers?”, “Are the propositions?”, etc. Carnap’s argument is that the external question, as it has been typically construed, does not make sense. From a perspective that accepts mathematics, the answer to the question “Do numbers exist?” is just trivially “Yes.” From a perspective which has not accepted mathematics, Carnap thinks, the only sensible way of construing the question is not as a theoretical question, but as a practical one: “Shall I accept the framework of mathematics?”, and this pragmatic question is to be answered by consideration of the efficiency, the fruitfulness, the usefulness, etc., of the adoption. But the (traditional) philosopher’s questions – “But is mathematics true?”, “Are there really numbers?” – are pseudo-questions. By turning traditional philosophical questions into practical questions of the form “Shall I adopt...?”, Carnap is offering a noncognitive analysis of metaphysics. Since I am claiming that we can critically inspect morality from an external perspective – that we can ask whether there are any non-institutional reasons accompanying moral injunctions – and that such questioning would not amount to a “Shall we adopt...?” query, Carnap’s position represents a threat. What arguments does Carnap offer to his conclusion? He starts with the example of the “thing language,” which involves reference to objects that exist in time and space. To step out of the thing language and ask “But does the world exist?” is a mistake, Carnap thinks, because the very notion of “existence” is a term which belongs to the thing language, and can be understood only within that framework, “hence this concept cannot be meaningfully applied to the system itself.” 16 Moving on to the external question “Do numbers exist?” Carnap cannot use the same argument – he cannot say that “existence” is internal to the number language and thus cannot be applied to the system as a whole. Instead he says that philosophers who ask the question do not mean material existence, but have no clear understanding of what other kind of existence might be involved, thus such questions have no cognitive content. It appears that this is the form of argument which he is willing to generalize to all further cases: persons who dispute whether propositions exist, whether properties exist, etc., do not know what they are arguing over, thus they are not arguing over the truth of a proposition, but over the practical value of their respective positions. Carnap adds that this is so because there is nothing that both parties would possibly count as evidence that would sway the debate one way or the other.Resolvability outweighs—every round needs a winner.3. Aff ground—moral knowledge is inaccessible, so they’ll always lose under their interp.Biletzki 08 (Anat, Stanford Encyclopedia of Philosphy. nAK)In the Tractatus Wittgenstein’s logical construction of a philosophical system has a purpose—to find the limits of world, thought and language; in other words, to distinguish between sense and nonsense. “The book will … draw a limit to thinking, or rather—not to thinking, but to the expression of thoughts …. The limit can … only be drawn in language and what lies on the other side of the limit will be simply nonsense” (TLP Preface). The conditions for a proposition’s having sense have been explored and seen to rest on the possibility of representation or picturing. Names must have a bedeutung (reference/meaning), but they can only do so in the context of a proposition which is held together by logical form. It follows that only factual states of affairs which can be pictured can be represented by meaningful propositions. This means that what can be said are only propositions of natural science and leaves out of the realm of sense a daunting number of statements which are made and used in language. There are, first, the propositions of logic itself. These do not represent states of affairs, and the logical constants do not stand for objects. “My fundamental thought is that the logical constants do not represent. That the logic of the facts cannot be represented” (TLP 4.0312). This is not a happenstance thought; it is fundamental precisely because the limits of sense rest on logic. Tautologies and contradictions, the propositions of logic, are the limits of language and thought, and thereby the limits of the world. Obviously, then, they do not picture anything and do not, therefore, have sense. They are, in Wittgenstein’s terms, senseless (sinnlos). Propositions which do have sense are bipolar; they range within the truth-conditions drawn by the truth-tables. But the propositions of logic themselves are “not pictures of the reality … for the one allows every possible state of affairs, the other none” (TLP 4.462). Indeed, tautologies (and contradictions), being senseless, are recognized as true (or false) “in the symbol alone … and this fact contains in itself the whole philosophy of logic” (TLP 6.113). The characteristic of being senseless applies not only to the propositions of logic but also to mathematics or the pictorial form itself of the pictures that do represent. These are, like tautologies and contradictions, literally sense-less, they have no sense. Beyond, or aside from, senseless propositions Wittgenstein identifies another group of statements which cannot carry sense: the nonsensical (unsinnig) propositions. Nonsense, as opposed to senselessness, is encountered when a proposition is even more radically devoid of meaning, when it transcends the bounds of sense. Under the label of unsinnig can be found various propositions: “Socrates is identical”, but also “1 is a number” and “there are objects”. While some nonsensical propositions are blatantly so, others seem to be meaningful—and only analysis carried out in accordance with the picture theory can expose their nonsensicality. Since only what is “in” the world can be described, anything that is “higher” is excluded, including the notion of limit and the limit points themselves. Traditional metaphysics, and the propositions of ethics and aesthetics, which try to capture the world as a whole, are also excluded, as is the truth in solipsism, the very notion of a subject, for it is also not “in” the world but at its limit. Wittgenstein does not, however, relegate all that is not inside the bounds of sense to oblivion. He makes a distinction between saying and showing which is made to do additional crucial work. “What can be shown cannot be said,” that is, what cannot be formulated in sayable (sensical) propositions can only be shown. This applies, for example, to the logical form of the world, the pictorial form, etc., which show themselves in the form of (contingent) propositions, in the symbolism, and in logical propositions. Even the unsayable (metaphysical, ethical, aesthetic) propositions of philosophy belong in this group—which Wittgenstein finally describes as “things that cannot be put into words. They make themselves manifest. They are what is mystical” (TLP 6.522).Political barriers mean that abolition is a pipe dream – there’s almost no chance it happens – reforming the system is more probable.Walsh 17 Dylan Walsh Freelance writer based in Chicago, and contributor to The Atlantic “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining.” The Atlantic. May 2, 2017. In theory, abolishing the use of plea bargains wouldn’t take much: Prosecutors would simply stop offering deals. That would be that, though the massive influx of trials would jam courts. (Michelle Alexander, author of The New Jim Crow, discussed defendants’ deliberately going to trial and “crashing the courts” as a form of resistance to mass incarceration.) But both sides of the debate agree the odds of this happening are infinitesimal. Even Alschuler, who throughout his career remained one of the staunchest critics of plea bargaining, admitted in 2013 that “the time for a crusade” had passed. Instead, he suggested people work to make the criminal-justice system “less awful.” Consistent with this, reformers are exploring two avenues to make plea bargaining either more accountable or less common: The process could be altered to afford defendants more protection, or the jury trial could be simplified to ensure more people take advantage of this right. “Plea bargaining in the United States is less regulated than it is in other countries,” said Jenia Turner, a law professor at Southern Methodist University who has written a book comparing plea processes in several U.S. and international jurisdictions. As a result, states are independently adopting measures to inject the process with more transparency here, more fairness there. In Connecticut, for example, judges often actively mediate plea negotiations, sometimes leaning in with personal opinion on an offer’s merit. In Texas and North Carolina, along with a few other states, both sides share evidence prior to a plea. Turner suggests that replicating some of these practices across state lines, or standardizing the plea process nationally, could go a long way to equalizing the power between defendants and prosecutors. She also argues that agreements should be recorded in writing, and that sentencing discounts for pleading guilty should be nonnegotiable. In the United Kingdom, for instance, sentence reductions in exchange for a guilty plea follow strict schedules based on when the plea is entered. “Trials are an important window into how the system is functioning—they’re a form of audit.” There is no obvious recipe for fomenting this kind of reform. The drivers vary “greatly from one jurisdiction to the next,” Turner said. But she did concede one common thread that unites jurisdictions invested in changing the plea process: They must be motivated by some overarching values besides efficiency, “like seeking justice,” she said, “however that’s defined.” The alternative to improved pleas is more trials. A half-step in this direction has long been practiced in Philadelphia, where bench trials—before a judge but no jury—are common. By avoiding the jury-selection process, known as voir dire, bench trials dramatically shorten the length of the proceedings while a defendant’s guilt must still be proven beyond a reasonable doubt. In 2015, excluding cases that were dismissed, only 72 percent of criminal defendants in Philadelphia pled guilty, as opposed to 97 percent federally; 15 percent pursued a bench trial. “The solution in Philadelphia is a very good one given the alternatives,” said Keir Bradford-Grey, the chief public defender for the city. “We firmly believe in putting evidence to the test and litigating cases. This program allows for far more trials than we see in other jurisdictions.” John Rappaport, a law professor at the University of Chicago, proposes a more radical idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge. What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence? “It’s all fairly straightforward, and wouldn’t require any real administrative framework, but it’s foreign,” Rappaport said. “If a defense lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12 jurors who walk in the room,’ the prosecutor would be taken aback.” He suggests that reforming the plea system to incorporate more trials would expose other problem areas. “Trials are an important window into how the system is functioning—they’re a form of audit,” Rappaport said. “They shine light on investigatory and prosecutorial behavior and air them publicly.” If the police behave badly, this remains buried when defendants take a plea. In this regard, even a heavily pruned trial is favorable to no trial at all. And such a bargaining process would not exist without limits. “The outcome of the trial still has to stem from the application of general legal principles to facts of individual cases,” he said. A defendant could not agree to a coin flip, for example, as the determinant of guilt. Though plea-bargaining started in shadow—fixers, cops twisting inmates’ arms—it has since risen to become judicial custom. It is the daily bread of every criminal court in every jurisdiction in the country, and virtually all in service to economics. “We put together the most cumbersome and expensive trial system that the world has ever seen, and then we decided we can’t do it for all but a tiny, tiny portion of people,” Alschuler said. He reached for a metaphor that he first used almost a quarter-century ago, in an article that sought alternatives to plea deals. His frustration seemed undiminished with time: “It’s like trying to solve the transportation problem by giving Cadillacs to 2 percent of the population and making everybody else walk.”6 Brentwood EL Aff RacePart 1 – The Modern PlantationPlea bargaining is the criminal justice system and the criminal justice system is the modern plantation. Plea bargaining undergirds the transformation of chattel slavery and black codes to sentencing regimes manifesting as mandatory minimums and the prison industrial complex.Heiner ‘16 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; “The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition”; Philosophy and Social Criticism 2016, Vol. 42(6) 594–631BWSWJ"In his autobiographical ... and racially oppressed."Best and most recent statistics prove plea bargaining is unquestionably discriminatory – it controls black incarceration and criminalization.Berejo ‘17 Berdejó, Carlos (Before joining the faculty at Loyola Law School, Carlos was a graduate student at Harvard University, where he obtained his PhD in Economics. As a doctoral student, he devoted much of his scholarship to the interaction of law and economics, and in particular to understanding the impact of judicial institutions on judges’ behavior. Prior to beginning his graduate studies, he practiced as a corporate attorney in New York, representing Latin American clients in various types of financings and in related securities law matters. His current research employs economic tools to further our understanding of the regulation of securities and other investments and of how legal regimes influence corporations' financing decisions.), Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39. Available at SSRN: BWSWJ"The racial disparities ... in the article. 174"Plea bargaining is the procedural entrapment that sustains mass incarceration – the unreviewable power of the prosecutor strips bodies of rights and sediments racial dominationHeiner 2 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; “The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition”; Philosophy and Social Criticism 2016, Vol. 42(6) 594–631BWSWJ"The systematic practice ... people of color.82"The intricate mechanics of the misdemeanor process racialize crime and mark black folks as criminals absent the presumption of innocence. Prioritizing efficiency over truth creates the stereotype of the black offender and causes mass incarceration.Natapoff ‘12 Natapoff, Alexandra (Professor of Law UC Irvine Law School; Expertise: Criminal law and procedure, misdemeanors, informants, public defense, law and inequality Background: Professor Natapoff’s scholarship has won numerous awards, including a 2016 Guggenheim Fellowship, the 2013 Law and Society Association Article Prize, and two Outstanding Scholarship Awards from the AALS Criminal Justice Section. Her original work on criminal informants has made her a nationally-recognized expert: her book Snitching won the 2010 ABA Silver Gavel Award Honorable Mention for Books. Professor Natapoff’s current work—including her new book—focuses on misdemeanors and their powerful influence over the criminal system as a whole. She has presented her misdemeanor work at numerous institutions including Harvard, the University of Chicago, the ABA, and the National Science Foundation. Professor Natapoff is a member of the American Law Institute; in 2015 she was appointed as an Adviser to the ALI Policing Project. She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets. Prior to joining the academy, Professor Natapoff served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. She clerked for the Honorable David S. Tatel, U.S. Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, U.S. District Court, Washington, D.C.), Misdemeanors (February 24, 2012). 85 Southern California Law Review 101 (2012); Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: BWSWJ"The misdemeanor process ... the penal system."Part 2 – PlanPlan Text: The Supreme Court of the United States, in the next available test case, ought to rule the practice of plea bargaining unconstitutional on the basis that it violates the equal protection analysis established in State v. Russell.Kruse ‘93 summarizes Jeffery A. Kruse, Kruse doesn’t think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJ"Similarly, courts could ... arbitrary or illegitimate. 27 "Part 3 – CrashCrash the system and let its ruthless efficiency collapse under its own weight. The aff causes a wide scale restructuring of the CJS.Alexander ‘12 MICHELLE ALEXANDER (Michelle Alexander is a highly acclaimed civil rights lawyer, advocate, and legal scholar. In recent years, she has taught at a number of universities, including Stanford Law School, where she was an associate professor of law and directed the Civil Rights Clinics. In 2005, she won a Soros Justice Fellowship, which supported the writing of The New Jim Crow, and that same year she accepted a joint appointment at the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University. Since its first publication,The New Jim Crow has received rave reviews and has been featured in national radio and television media outlets, including MSNBC, NPR, Bill Moyers Journal, Tavis Smiley, C-SPAN, and Washington Journal, among others. In March, the book won the 2011 NAACP Image Award for best nonfiction.); ; MARCH 10, 2012; NYTIMES; BWSWJ"AFTER years as ... risk our lives.”Absent plea bargaining, the politics of carcerality become unsustainable – the aff opens up space for decriminalization and exposing the contradiction of the lawHeiner 3 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; “The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition”; Philosophy and Social Criticism 2016, Vol. 42(6) 594–631BWSWJ"It would be ... leased convict laborers.139"Davis precedent allows judicial racism to go unchecked – Russell analysis opens the floodgates to challenge discriminatory policiesKruse ‘93 summarizes Jeffery A. Kruse, Kruse doesn’t think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJ"In State v. Russell, ... many criminal procedures."Part 4 – FramingCenter the round on mass incarceration - Ethics in the age of the prison industrial complex require a stance against its specific violence Roberts ‘04 Roberts, Dorothy E. (Dorothy Roberts, an acclaimed scholar of race, gender and the law, joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science and Society in the Center for Africana Studies. Her pathbreaking work in law and public policy focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans. Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.), "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. 583.; BWSWJ"Thus, the unprecedented ... sense of justice."Reject neg args - We’re subconsciously primed towards a continuation of plea bargaining Gocha ‘16 Alan J. Gocha (Alan’s practice is primarily focused on complex intellectual property litigation in electrical, mechanical and software matters. He has experience in both defending against and asserting copyright, trademark, and patent rights. Alan has served as lead counsel in a number of cases, both in state and federal court. He also has experience in appellate advocacy and arbitration. His experience touches a broad range of practice areas, including employment, civil rights, corporations, nonprofit, and bankruptcy law. As an attorney, Alan has provided hundreds of hours of pro bono legal services. Alan has a Bachelor of Arts in Philosophy from the University of Michigan and received his Juris Doctor from Georgetown University Law Center in 2016 where he was an editor for the Georgetown Journal of Legal Ethics. He also received a full tuition scholarship to study Communications at Wayne State University, where he ranked nationally on the university policy debate team. While in law school, he was named an Exceptional Pro Bono Pledge Honoree and winner of the first annual Justin Hansford Student Essay Contest, hosted by the Georgetown Journal on Law and Modern Critical Race Perspectives, for his essay titled The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice.), The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 Geo. J. L. and Mod. Critical Race Persp. (2016) Hein BWSWJ"At a cursory ...for state-sponsored oppression. 9"6 Brentwood EL Neg Discovery FirstCP: The United States federal and state governments ought to mandate prosecutorial open-file discovery of all exculpatory and impeachment evidence prior to plea bargainingPetegorsky ‘12 Petegorsky, Michael Nasser. "Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining." Fordham L. Rev. 81 (2012): 3599. BWSWJ"Beyond waiting for ... the guilty plea."A right to information pre-plea is necessary to correct information imbalancesHashimoto ‘08 Erica J. Hashimoto (University of Georgia School of Law), Toward Ethical Plea Bargaining (2008), Available at: h p://digitalcommons.law.uga.edu/fac_artchop/819 BWSWJ"Unfortunately, the reality ... of that right."That solves the innocence problem and false pleasO’Brien ‘03 O'Brien, Andrew P. "Reconcilable Differences: The Supreme Court Should Allow the Marriage of Brady and Plea Bargaining." Ind. LJ 78 (2003): 899. BWSWJ"One argument that ... when factually innocent."CP Traffic SchoolCP: Do the affirmative in all instances except traffic school plea bargains for moving violation infractions, and implement the DTA program.Under DTA, when you get a traffic ticket, you have the option to PLEA no contest, pay the fine, and then after you complete traffic school, the conviction either gets erased from your record or you don’t get points on your record. This avoids the need for a trial on each ticket.The CP is both textually and functionally competitive.Traffic school is the most prevalent instance of plea bargaining in the CJS. For example, in California, over 1.2 million took the program in 2005, allowing the courts to deal with a quarter of their moving violation infractions efficiently.Gebers ‘07 Gebers 2007, “A Traffic Safety Evaluation of California’s Traffic Violator School Citation Dismissal Policy,” "The number of ... by the courts."CP reduces accidents and saves lives, without triggering any of the issues raised in the affirmative. Nothing in the AFF concerns misdemeanor moving violations or traffic school. DTA ‘01 DTA 1; "The first scientific ... from traffic crashes."UnderviewanalyticanalyticCP War on DrugsCP: The United States Federal Government should end the “War on Drugs” including the abolition of the DEA, eliminating all federal enforcement of illicit drug laws and stopping all federal assistance of drug law enforcement by state and local governments, except for the enforcement of illicit prescription drugs.Drug laws are the primary driver of mass incarceration, and it’s racially disproportionate.Drug Policy Alliance ‘16 Alliance, Drug Policy. “The Drug War, Mass Incarceration And Race.” February, 2016. Web. December 09, 2017. 20Mass20Incarceration20and20Race_28Feb.20201629_0.pdf."The Drug War ... drug law violations."That would massively curtail mass incarcerationLopez ‘15 German Lopez citing Urban Institute; “Ending the war on drugs wouldn't end mass incarceration. But it would help”; ; Oct 27, 2015 BWSWJ"Only a small ... level of government."DA ImpeachmentTrump’s impeachment odds are at an all time high – betting markets proveLe Miere 12/1 Jason Le Miere, 12-1-2017, "Trump impeachments odds skyrocket after Michael Flynn agrees to cooperate with Mueller investigation," Newsweek, BWSEKL"The odds of ... first four-year term."Mueller’s investigation is fueled by plea bargains – first Papadopolous, now Flynn. Each plea brings the investigation closer to Trump, where more leverage will be needed to get testimony -Budowsky 12/1 Brent Budowsky, 12-1-2017 Former aide to Sen. Lloyd Bentsen and Rep. Bill Alexander; LLM in international financial law from LSE, "Trump’s Russian winter grows colder with Flynn plea deal," "As former national ... and for all."Soft Power remains intact after Trump, but is on the decline and risks catastrophe -USNWR 7/25 US News and World Report, 7-25-2017, "The Strength in Soft Power," BWSEKL"If a handshake ... success, experts say."Soft power is an impact filter Rieffel ‘05 –Brookings Institution, writing fellow “REACHING OUT: AMERICANS SERVING OVERSEAS By Lex Rieffel Visiting Fellow The Brookings Institution” 1775 Massachusetts Avenue, NW Washington, DC 20036-2103 December 2005http:brookings.edu//media/research/files/papers/2005/12/07volunteering20rieffel/20051207rieffel"The devastation of ... or police force."DA TerrorThe intersection between organized crime and terrorism makes access to biological weapons easier than ever. However it ALSO makes terrorist cells easier to detect and prosecute - Rollins, Wyler, and Rosen ‘02 Josh Rollins, Liana Sun Wyler, and Seth Rosen, January 5, 2010 Congressional Researchers - Specialist in Terrorism and National Security; Analyst in International Crime and Narcotics; Research Associate 'International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress' Congressional Research Service Report for Congress. BWSEKL"Potential links between ... most terrorist financing."Plea bargaining is critical to get cooperation from terrorist informants – informants are key to stopping attacksGoldman and Weiser ’17 Adam Goldman and Benjamin Weiser, 1-27-2017, "How Civilian Prosecution Gave the U.S. a Key Informant," New York Times, BWSEKL"Current and former ... that chance meeting.”Bioterror is possible and an existential riskVon Hippel ‘17 – Frank Von Hippel, Professor of Public and International Affairs at the Woodrow Wilson School of Public and International Affairs, former assistant director for national security in the White House Office of Science and Technology, Ph.D. in Physics from Oxford University (“Bioweapons Then and Now,” Nuclear Futures Lab @ Princeton University, February 19th, ) Thanks to Harvard MS Opencaselist Wiki"“Bioterrorism could kill ... seriously considered yet."Theory Spec PBA. Interp: The affirmative must specify what forms of plea bargaining they abolish with a delineated text in the 1AC. To clarify, it is not sufficient to just say all plea bargainingB. Violation: C. Standard: Strat skewThe definition of plea bargaining is super ambiguous, there’s no standard definitionSnyman and Toit 2000 E SNYMAN (LLM, Senior Lecturer, Centre for Business Law; University of the Free State.) ; SDU TOIT (LecuturorDepartment of Mercantile Law, University of the Free State.); Defining and Evaluating Plea Bargaining, 13 S. Afr. J. Crim. Just. (2000) ; HeinOnline; BWSWJ"Settling a criminal ... and judicial restraints."That’s a prerequisite to debate – we can’t debate the core issues without itGuidorizzi ‘98 Douglas D. Guidorizzi, Should we Really Ban Plea Bargaining: The Core Concerns of Plea Bargaining Critics, 47 Emory L. J. (1998) BWSWJ"No standard definition ... plea bargaining as:"D. Voter: fairness and educationdrop debaterCIno RVI'sTheory Trigger WarningsA. Interpretation: If a debater reads an argument or case about sexual assault or a similar situation they must ask everyone watching or participating in the debate round if they may do so BEFORE they read the argument.B. Violation:C. StandardsInclusivity and preventing emotional trauma - Introducing domestic violence arguments without consent perpetuates a traumatic experience for victims. Bailey Bracketed:"This month, many ... survivors and PTSD"Thus, introducing such sensitive topics into a debate round create an unsafe and potentially emotionally harmful debate space. This link turns and precludes notions of fairness and education, as they affect the security of the debate space. Berman ::"Debaters do not ... better than that."D. Voter – inclusivityanalyticDrop the debater is the only proper response. analytic2. Accountability -3. Argumentative agency –4. The debater should be dropped to create a norm against offensive arguments. Sigel writes,"There does seem ... their pre-round planning."7 Immac LM Aff Race (c&p)The War on Drugs has been revitalized under Trump – Sessions has repealed Obama era reforms Lopez 10/24 (German, Writer for Vox with a focus with a focus on drugs, guns, criminal justice, race, and LGBTQ issues) “Under Trump and Sessions, federal prosecutors are ramping up the war on drugs,” Vox News, 10/24/2017 DDUS Attorney General Jeff Sessions has traveled around the country this year invoking fears of violent crime — and particularly the criminal group MS-13 — to justify a new “tough on crime” crackdown under the Trump administration. On the ground, however, Sessions’s anti-crime efforts look more like the old war on drugs than a new push against violent crime. Earl Rinehart reported for the Columbus Dispatch that US Attorney for the Southern District of Ohio Benjamin Glassman “is costing taxpayers more money” by prosecuting more people, even minor players in drug trafficking, “and he’s OK with that.” Rinehart went on (emphasis mine): The increase in the prosecution of violent crimes and drug cases such as these, especially amid the opioid crisis, had the U.S District Court for Southern Ohio looking for extra jail space to keep a record 483 defendants whose cases were pending as of Oct. 7. “That’s a lot for us,” said Chief U.S. District Judge Edmund A. Sargus Jr. Of the total defendants, 223 were up on drug charges, 43 for violent crimes and 38 for child pornography. Based on these figures, nearly half of the new cases are for drug charges, and less than 10 percent are for violent crime. Despite Sessions’s rhetoric about violent crime, it sure looks like drugs are still his office’s main focus. On Twitter, Glassman pushed back on the Dispatch’s report. He wrote, “I disagree that we are now charging minor players who, in years past, would not have been charged at all. To the contrary, as the article also notes, we're pushing our investigations and prosecutions farther and wider than ever before. If anything, as our scope and reach continue to grow, defendants who looked like leaders in years past now seem more like minor players. But we are absolutely not looking to prosecute low-level folks. Just the opposite.” In a statement, Glassman also questioned the Dispatch’s methodology and sources. He said that, by his count, “roughly a third of our case load involves violent crime and another third involves drugs or organized crime related to drugs, like money laundering.” Still, the federal government is unique in that about half the people it locks up are in for drug offenses. At the state level, where nearly nine in 10 prisoners in the US are held, most are in prison for violent offenses. Sessions seems determined to continue that federal trend. One of his first moves in the Justice Department was to instruct federal prosecutors to bring punitive charges that can trigger harsh mandatory minimum prison sentences against even low-level drug offenders, rescinding an Obama administration memo that told federal officials to pull back on these kinds of prosecutions. Criticizing the Obama administration’s decision, Sessions previously said, “What was the result? It was exactly what you would think: sentences went down and crime went up. Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016. Violent crime — which had been decreasing for two decades — suddenly went up again.” The research is against Sessions’s claims There is no reason, based on the research, to think the two trends Sessions cited are linked. Studies have repeatedly found that harsher punishments — which mandatory minimums force on judges by requiring that they sentence offenders to a minimum amount of time in prison — and the higher incarceration rates they lead to don’t have a big impact on crime. A 2015 review of the research by the Brennan Center for Justice estimated that more incarceration explained zero to 7 percent of the crime drop since the 1990s, while other researchers estimate it drove 10 to 25 percent of the crime drop since the ’90s — not a big impact either way. A 2014 analysis by the Pew Charitable Trusts also found that states that reduced their imprisonment rates also saw some of the biggest drops in crime, suggesting that there isn’t a hard link between incarceration and crime. As Harvard criminologist Thomas Abt previously told me, “Jeff Sessions is a crime dinosaur, peddling ‘tough on crime’ policies that went extinct years ago. He tries to link violent crime to the ‘smart on crime’ policies of the past administration, but there’s simply no evidence to support his argument.” (Abt broke down his criticisms further in a series of tweets.) In fact, Sessions’s prosecution strategy likely won’t make an impact even in combating the spread and use of drugs. One of the best studies on this is a 2014 review of the research by Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago. They found that while simply prohibiting drugs to some extent does raise their prices, there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance misuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs. “We did the experiment. In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing,” Mark Kleiman, a drug policy expert at the Marron Institute at New York University, previously told me. “And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to a higher drug price and therefore less drug consumption, the answer is no.”Plea bargaining is the leading contributor to mass incarceration – it manufactures a forfeiture of rights that subordinates people of color to the state Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDFirst, the procedural entrapment thesis is that the American plea bargain system (as an apparatus of population management wherein the USA maintains 5 per cent of the global population but 25 per cent of the world’s imprisoned population, and as an insti- tution that coerces the forfeiture of due process rights to accelerate criminal conviction and confinement of those charged), is massively and predominantly, though not acciden- tally or exclusively, a technology of racial domination. As a system of procedural entrap- ment, the plea bargain regime is a necessary condition of and a leading contributor to mass incarceration, which is fundamentally immoral and racially unjust. ? Without the widespread ‘forfeiture’ of rights that the plea bargain regime manufac- tures, the American criminal justice system simply could not process – i.e. arrest, detain, prosecute, imprison, and supervise – the vast numbers of people (predomi- nantly of color) that it currently does. The Supreme Court recognized this in 1971: ‘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.’78 (And this was just 5 months after President Richard Nixon declared the war on drugs, which inaugurated the era of mass incarceration that has since led to the upsurge of the imprisoned population by over 500 per cent. If criminal justice proce- dural capacity would have had to multiply many times over to accommodate every criminal defendant’s constitutional right to trial in 1971, the equivalent capacity requirements today would be paralysing to state and federal budgets.) The Court then concluded that plea bargaining is ‘an essential component of the administration of jus- tice’.79 ‘The truth is’, writes Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute, ‘government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials.’80 ? Second, the sedimentation thesis is directed toward the irresponsible prosecutorial prerogative that undergirds the system of procedural entrapment. As an institutional agency in the entrapment, confinement and social death of millions of Black, Latino/Latina and Native American people, the power of the prosecutorial function is a functional analogue, a postbellum sedimentation, of the irresponsible power of the administrators of plantation law (i.e. the southern slaveholding class). Both function massively and predominantly to enforce and reinscribe the terms of the racial contract of their day. The discretionary power of Frederick Douglass’ overseer was not subject to judicial investigation and was shielded from the censure of the public; and the Black subjects who may have sought refuge from the overseer’s arbitrary executions were extended no legal standing and thus had no recourse to equal protection of the law.81 Though the Reconstruction Amendments to the US Constitution ostensibly abolished such racial exclusions from the American social contract, present-day prosecutorial discretion, which sometimes makes life-and-death decisions, is analogously unac- countable and unreviewable, is almost always exercised behind closed doors, is answerable only to other prosecutors, and functions analogously to subordinate, entrap and confine people of color.82 ? Plea bargaining is a trap – stacked charges, underground deals, information deficits, and intimidation tactics Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDOne of the reasons for this is the widely overlooked or unknown fact, recently voiced by Supreme Court Justice Anthony Kennedy, that ‘criminal justice today is for the most part a system of pleas, not a system of trials’.33 Plea bargaining is a process that entails an (often quick) conversation in a prosecutor’s office or a courthouse hallway between attorneys familiar with only the basics of a criminal case – with no witnesses present, no full investigation, testimony, or impartial fact-finding – resulting in a proposed res- olution that is then ‘sold’ to both the defendant and the judge.34 Justice Kennedy asserts that the plea bargaining process – which he (quite tellingly) describes, following legal scholars, as a form of ‘horse trading’ – ‘is not some adjunct to the criminal justice sys- tem; it is the criminal justice system’.35 As things currently stand, more than 95 per cent of criminal convictions are the product of closed-door plea bargains that result in defen- dants ‘forfeiting’ their Fifth, Sixth and Fourteenth Amendment rights to due process,36 ? including, in the majority of cases, ‘waiving’ the right to appellate and post-conviction review.37 This means that currently more than 95 per cent of those convicted never see the fair trial by judge or jury that the constitution guarantees them – a state of affairs that led a federal judge recently to call trial by jury ‘an inconvenient artifact’.38 The cases of more than 95 per cent of the 7.5 million people under US penal control have not been held to the high evidentiary standard required to validate a criminal conviction in court. The pre-trial evidentiary threshold for leveling charges is much less exacting, merely requiring a prosecutor to persuade a grand jury that there is probable cause to indict. It is not just out of cynicism that most lawyers repeat the famous expression of former New York Court of Appeal Judge Sol Wachtler that prosecutors can get a grand jury to indict a ‘ham sandwich’.39 US attorneys prosecuted 162,000 federal cases in 2010; grand juries declined to return an indictment in 11 of those cases.40 ? Prosecutors admit to routinely engaging in strategic charge-stacking and overchar- ging in the plea bargaining process. Since the onset of the era of mass incarceration in the 1970s, federal and state legislatures have fragmented and multiplied criminal statutes so as to produce an abundance of overlapping crimes. This proliferation of criminal codes has constructed a context in which a single unlawful incident typically violates a half-dozen or more prohibitions.41 Coupled with the parallel adoption during this same period of mandatory minimum sentencing schemes at state and federal levels, the power to adjudicate guilt and impose sentences has shifted from the courtroom to the backroom, from judges and juries to plea bargaining prosecutors and police officers.42 Through the practice of strategic charge-stacking and overcharging, prosecutors exercise lax double jeopardy doctrine by charging criminal defendants with an arsenal of overlapping crimes for which they technically have probable cause, but which they seriously doubt they could ever prove in court (i.e. beyond a reasonable doubt). The strategy of this practice is to leverage what legal scholars call the ‘trial penalty’ to compel people to ‘convict themselves’ by pleading guilty to the lesser charge or set of charges that prosecutors then offer as a more ‘lenient’ alternative to the excessive, tenuous and redundant stack of charges originally leveled.43 Occasionally, defendants even enter ‘open pleas’ to all the charges against them, with no sentencing promises. ? Lest one wonder whether this coercive strategy were an accidental by-product of the mandatory sentencing regime, consider the following statement of the US Sentencing Commission, an agency in the judicial branch of government, among whose principal purposes is ‘to advise and assist Congress and the executive branch in the development of effective and efficient crime policy’. The commission identifies ‘inducement to plea bargain’ as one of the rationales for mandatory minimum sentencing legislation. In its 1991 Special Report to Congress, it stated that ‘the value of a mandatory minimum sen- tence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge’.44 Justice Kennedy affirmed this design in a recent Supreme Court ruling, claim- ing that ‘defendants who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sen- tences exist on the books largely for bargaining purposes’.45 ? A ‘bargain’ typically signifies a mutually advantageous agreement, an agreement between two parties in which a settlement is reached regarding what each party will give ? and take, perform and receive in the transaction.46 What is given and what taken in these plea bargains? According to the conventional, facially neutral account of the plea bar- gain contract, prosecutors give leniency to the accused. Specifically, prosecutors agree to drop a select number of the charges that the criminal code permits – charges, which is to say, for which probable cause has been established. In exchange for this ‘gift’, the accused must in turn forfeit his or her Fifth, Sixth and Fourteenth Amendment rights of protection against self-incrimination, to trial by jury, to confront and cross-examine adverse witnesses, to present evidence, to compel the attendance of witnesses, and to require prosecutors to prove guilt beyond reasonable doubt. By inducing defendants to forfeit these rights, district attorneys (and public defenders) save the resources that would otherwise be required to grant the accused the trial by jury that the constitution guarantees her or him. As legal scholars Scott and Stuntz put it, employing the vocabu- lary of cost-benefit calculus that is the stock-in-trade of the prison industrial complex: ‘Plea bargaining provides a means by which prosecutors can obtain a larger net return from criminal convictions, holding resources constant.’47 ? In their rationalizations of plea bargaining, legal scholars and practitioners at the highest levels of government falsely conceptualize it within an idealized framework of transaction between equals. The Supreme Court maintains that the plea bargain flows from ‘the mutuality of advantage’ to defendants and prosecutors.48 Indeed, the Court infers (with neither evidence nor argumentation) that it is this alleged ‘mutuality of advantage’ that explains the fact that the vast majority of the criminal convictions in this country rest on pleas of guilty or nolo contendere no contest resulting from plea bar- gaining.49 But the plea bargain regime appears like a market of mutually advantageous contracts, entered into freely by both parties, only when it is viewed abstractly – divorced from the structural coupling formed between mandatory minimum sentencing schemes and the pervasive prosecutorial practices of racially selective charging, charge-stacking and overcharging; disconnected from the context and genealogy of mass incarceration as a system of racial governance.50 ? In actuality, the plea bargain regime is concretely constituted by structural asymme- tries and relations of domination that are masked by the liberal contractual framework. The ‘self-incrimination’ that results from plea bargains is frequently the product of duress and unconscionable information deficits wherein defendants (who are often indigent) are deprived of the opportunity to deliberatively evaluate the ‘exchange’ of risks and penalties into which they enter. For instance, one formerly incarcerated person with whom I spoke at Project Rebound in San Francisco was given 10 minutes in court to decide in isolation whether to accept a plea carrying a 25-year sentence or face a potential life sentence. Such duress is not exceptional. Also, few criminal defen- dants (or people in general) realize that felony conviction, beyond possible prison time, entails a host of ‘collateral consequences’ or civil penalties that persist even after one has been released from prison. Judges and lawyers are not required to inform criminal defendants of some of the most important rights and entitlements that defendants are forfeiting when they plead guilty to a felony (and that they incur whether or not they spend a day in prison). These civil penalties (technically called ‘civil disabilities’, since courts have generally declined to interpret that such sanctions, for constitutional purposes, are actually ‘punishment’) include deportation, and denial of the rights to ? vote, serve on a jury, or be employed in certain occupations, as well as lifetime inelig- ibility for food stamps, cash assistance programs, public housing and student loans.51 Legislative and judicial representatives readily admit that mandatory minimum sen- tencing schemes are excessive and thus in violation of the retributive principle of propor- tional punishment – not by accident, but by design.52 And they readily admit that such utilitarian design is consequentially to ‘induce’ defendants to forfeit their constitutional rights. In the executive branch, prosecutors routinely and openly apply leverage and overlap these excessive sentencing schemes to compel defendants to ‘self-incriminate’ ? by ‘pleading out’ of the jury trial system to which they are constitutionally entitled. And yet, the Supreme Court masks the coercion that undergirds this system. In the 1978 precedent-setting case that gave ultimate legal sanction to prosecutorial compul- sion in plea bargaining, the Court acknowledged that punishing a person accused of a crime for exercising his or her right to trial by jury ‘is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional. But’, the Court continues, ‘in the ‘‘give-and-take’’ of plea bargaining, there is no such element of punish- ment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.’53 This was in the context of a decision ruling it constitutionally legitimate for a pro- secutor to threaten someone with life imprisonment error for a minor crime (i.e. forging an ? $88.30 check) in an effort to strong-arm him into forfeiting his right to a jury trial.54 How many reasonable people, when faced with the ‘double bind’ alternative between a potential life sentence and a guaranteed 5-year sentence, would feel meaningfully free to ‘accept or reject the prosecution’s offer’ and risk exercising her or his constitutional right to due process?55 Cognizant of systemic racial disparities, like the steeply higher rate of criminal conviction and disproportionate severity of criminal sentences meted out to sub- jects of color,56 reasonable people of color are especially unlikely to feel the freedom of choice that would distinguish a relation of equal exchange from a relation of domination. Seen in the light of these unconscionable information deficits and distributional inequities, the coercive and pervasive prosecutorial practice of charge-stacking and over- charging, and the sharply asymmetrical negotiating positions of the state and the accused; furthermore, considering the massive under-representation of people of color among criminal prosecutors (e.g. on average, 86 per cent of judges and prosecutors in federal districts are white),57 and the enormous over-representation of people of color among those incarcerated (i.e. roughly 70 per cent, and nearly 50 per cent Black):58 we ought to hear this multitude of pleas not as a chorus of guilty confessions singing in synch with the expediently fine-tuned orchestra of American criminal justice (playing the melody of the Law and Order theme song); and we surely ought not to view it as an expression of prosecutorial ‘leniency’ or procedural justice. Rather, we ought to concep- tualize this throng of pleas, massively and predominantly, as the procedural entrapment of the impoverished and racially oppressed. ? Mass incarceration is a form of modern genocide – it’s responsible for rampant intercity violence, crushing poverty, and massive loss of freedom Thompson 14 (Heather Ann, Associate professor of African American studies and history at Temple University) “Inner-City Violence in the Age of Mass Incarceration,” The Atlantic, 10/30/2014 DDJust as hyper-segregation doesn’t explain the violence that so many have to endure today in America’s inner city communities while still raising children, attending church, and trying to make ends meet, neither does highly-concentrated poverty. Because of their exclusion from virtually every program and policy that helped eventually to build an American middle class, non-whites have always had far less wealth than whites. From the ability to maintain land ownership after the Civil War, to the virtual guarantee of welfare benefits such as Social Security and FHA loans during the New Deal, to preferential access to employment and housing in the postwar period, white communities have always had considerably more economic advantage than communities of color. And yet, no matter how poor they were, America’s most impoverished communities have never been plagued by the level of violence they are today. But if neither racial segregation nor the racial poverty gap can account for the degree to which poor communities of color are traumatized today, then what does? What is altogether new is the extent to which these communities are devastated by the working of our nation’s criminal justice system in general and by mass incarceration in particular. Today's rates of incarceration in America's poorest, blackest, and brownest neighborhoods are historically unprecedented. By 2001, one in six black men had been incarcerated and, by the close of 2013, black and Latino inmates comprised almost 60 percent of the nation’s federal and state prison population. The numbers of incarcerated black women are also stark. According to the Bureau of Justice Statistics, young black women ages 18 to 19 were almost five times more likely to be imprisoned than white women of the same age in 2010. When President Lyndon B. Johnson passed the Law Enforcement Assistance Act in 1965—legislation which, in turn, made possible the most aggressive war on crime this nation ever waged—he was reacting not to remarkable crime rates but to the civil rights upheaval that had erupted nationwide just the year before. This activism, he and other politicians believed, represented not participatory democracy in action, but instead a criminal element that would only grow more dangerous if not checked. Notably, the national policy embrace of targeted and more aggressive policing as well as highly punitive laws and sentences—the so-called “War on Crime” that led eventually to such catastrophic rates of imprisonment—predated the remarkable levels of violence that now impact poor communities of color so disproportionately. The U.S. incarceration rate more than quadrupled between 1965 and 1995. In fact, the U.S. homicide rate in 1965 was significantly lower than it had been in several previous moments in American history: 5.5 per 100,000 U.S. residents as compared, for example, with 9.7 per 100,000 in 1933. Importantly, though, whereas the violent crime rate was 200.2 per 100,000 U.S. residents in 1965, it more than tripled to a horrifying 684.6 per 100,000 by 1995. Though mass incarceration did not originate in extraordinarily high rates of violence, mass incarceration created the conditions in which violence would surely fester. The quadrupling of the incarceration rate in America since 1970 has had devastating collateral consequences. Already economically-fragile communities sank into depths of poverty unknown for generations, simply because anyone with a criminal record is forever “marked” as dangerous and thus rendered all but permanently unemployable. Also, with blacks incarcerated at six times and Latinos at three times the rate of whites by 2010, millions of children living in communities of color have effectively been orphaned. Worse yet, these kids often experience high rates of post-traumatic shock from having witnessed the often-brutal arrests of their parents and having been suddenly ripped from them. De-industrialization and suburbanization surely did their part to erode our nation’s black and brown neighborhoods, but staggering rates of incarceration is what literally emptied them out. As this Pew Center of the States graphic on Detroit shows, the overwhelmingly-black east side of the Motor City has been ravaged by the effects of targeted policing and mass incarceration in recent years with one in twenty-two adults there under some form of correctional control. In some neighborhoods, the rate is as high as one in 16. Pew Center for the States Such concentrated levels of imprisonment have torn at the social fabric of inner city neighborhoods in ways that even people who live there find hard to comprehend, let alone outsiders. As the research of criminologist Todd Clear makes clear, extraordinary levels of incarceration create the conditions for extraordinary levels of violence. But even mass incarceration does not, in itself, explain the particularly brutal nature of the violence that erupts today in, for example, the south side of Chicago. To explain that, we must look again carefully and critically at our nation’s criminal justice system. The level of gun violence in today's inner cities is the direct product of our criminal-justice policies—specifically, the decision to wage a brutal War on Drugs. When federal and state politicians such as New York Governor Nelson Rockefeller opted to criminalize addiction by passing unprecedentedly punitive possession laws rather than to treat it as a public health crisis, unwittingly or not, a high level of violence in poor communities of color was not only assured but was guaranteed to be particularly ugly. This new drug war created a brand-new market for illegal drugs—an underground marketplace that would be inherently dangerous and would necessarily be regulated by both guns and violence. Without the War on Drugs, today's levels of inner-city gun violence would not exist. Indeed, without the War on Drugs, the level of gun violence that plagues so many poor inner-city neighborhoods today simply would not exist. The last time we saw so much violence from the use of firearms was, notably, during Prohibition. “As underground profit margins surged, gang rivalries emerged, and criminal activity mounted during Prohibition,” writes historian Abigail Perkiss, “the homicide rate across the nation rose 78 percent…and in Chicago alone, there were more than 400 gang-related murders a year.” As important as it is to rethink the origins of the violence that poor inner city residents still endure, we must also be careful even when using the term “violence,” particularly when seeking to explain “what seems to be wrong” with America’s most disadvantaged communities. A level of state violence is also employed daily in these communities that rarely gets mentioned and yet it is as brutal, and perhaps even more devastating, than the violence that is so often experienced as a result of the informal economy in now-illegal drugs. This is a violence that comes in the form of police harassment, surveillance, profiling, and even killings—the ugly realities of how law enforcement wages America’s War on Drugs. Today, young black men today are 21 times more likely than their white peers to be killed by the police and, according to a recent ProPublica report, black children have fared just as badly. Since 1980, a full 67 percent of the 151 teenagers and 66 percent of the 41 kids under 14 who have been killed by police were African American. Between 2010 and 2012 alone, police officers shot and killed fifteen teens running away from them; all but one of them black. This is the violence that undergirded the 4.4 million stop-and-frisks in New York City between 2004 and 2014. This is the violence that led to the deaths of black men and boys such as Kimani Gray, Amadou Diallo, Sean Bell, Oscar Grant, and Michael Brown. This is the violence that led to the deaths of black women and girls such as Rekia Boyd, Yvette Smith, and 7-year-old Aiyana Stanley-Jones. And this is the violence that has touched off months of protests in Ferguson, Missouri just as it also touched off nearly a decade of urban rebellions after 1964. A close look at the violence that today haunts America’s most impoverished and most segregated cities, in fact, fundamentally challenges conventional assumptions about perpetrators and victims. America’s black and brown people not only don’t have a monopoly on violence, but, in fact, a great deal of the violence being waged in their communities is perpetrated by those who are at least officially charged with protecting, not harming, them. As residents of Ferguson well know, for example, in the same month that Michael Brown was shot to death by a police officer, four other unarmed black men were also killed by members of law enforcement. Indeed, the true origins of today’s high rates of violence in America’s most highly segregated, most deeply impoverished, and blackest and brownest neighborhoods—whoever perpetrates it—are located well outside of these same communities. Simply put, America’s poorest people of color had no seat the policy table where mass incarceration was made. But though they did not create the policies that led to so much community and state violence in inner cities today, they nevertheless now suffer from them in unimaginable ways.Thus the plan, Resolved: The United States federal government should abolish plea-bargaining. The plan solves prosecutorial coercion and causes judicial overload which short-circuits the inward flow of prisoners Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDBurton is painfully aware that the norm of pleading guilty enhances prosecutors’ capacity to process an ever-increasing number of cases, widening the net of mass incar- ceration. She also knows that the system of mass incarceration relies upon the wide- spread ‘forfeiture’ of rights that the plea bargain regime manufactures. With this in mind, Burton posed the following question to Alexander: ‘What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?’ ? Initially stunned, Alexander ‘launched, predictably, into a lecture about what prose- cutors would do to people if they actually tried to stand up for their rights’, reminding Burton of the risks involved in facing down the arsenal of excessive and overlapping sen- tencing schemes that prosecutors were equipped with. She may also have reminded Bur- ton of the severity of the so-called ‘trial penalty’ that, according to recent data analysis, makes the sentence following a jury trial conviction on average 3.5 years more severe than the sentence imposed after a guilty plea.125 ? Painfully and personally aware of such risks, Burton replied, ‘Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?’ To which Alexander responded: ? The answer is yes. The system of mass incarceration depends almost entirely on the coop- eration of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, ‘if the number of peo- ple exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.’ ? Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial ‘emergency’ fiat). Either action would create a crisis and the sys- tem would crash – it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid. ? Burton, who shares Alexander’s assessment of the risk and potentiality of mass plea refusal, claimed: ? I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argu- ment would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives. ? It would be difficult to overstate the strategic advantages and potentially transformative political repercussions of the mass conscientious plea refusal that Burton incisively pro- poses. In the tradition of the civil rights movement practice of non-violent direct action – which, in Martin Luther King, Jr,’s famous formulation, sought to ‘create a crisis’ in the racist structures of society by establishing a ‘creative, constructive tension’ that forces society to confront and correct racial injustices that it has constantly refused to address – the mass assertion of constitutional due process rights would rapidly and efficiently overwhelm the prosecutorial regime, throw the system of mass incarceration into crisis, and force the government to take immediate and substantive action to remedy its racial injustice.126 Judicial overload causes broad criminal justice reforms that solve mass incarceration Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDExecutive desistence in the face of the systemic crisis generated by the mass asser- tion of due process rights would likely prove unsustainable, however, as it would pre- sumably raise widespread doubts about the rationality, legitimacy and procedural justice of maintaining an arsenal of criminal statutes that routinely go unenforced. Selective enforcement is, of course, the stock-in-trade of the prosecutorial and policing professions, which, while financially flush in the era of mass incarceration, are execu- tors of a distended body of criminal law that, as Harvard Law Professor William Stuntz claims, ‘covers far more conduct than any jurisdiction could possibly punish’.130 How- ever, programmatic desistence of the magnitude that would be required to restrict crim- inal justice processing to the levels that could be maintained while still accommodating the constitutional trial rights demanded by a mass movement of conscientious plea objectors would arguably erode the perceived legitimacy of the criminal law (at least with respect to the lower-spectrum of the penal code). Such potentialities would likely force the question of state and federal legislative reform in the direction of de- criminalization, or even legalization (e.g. in the case of certain classes of drugs).131 Recent state direct-democracy initiatives suggest that there may be fairly substantive popular support for attenuating criminal codes through selective statutory mitigation, decriminalization and legalization. For example, Colorado (2012), Washington State (2012), Oregon (2014), Alaska (2014) and Washington, DC (2014) have all passed measures to legalize, regulate and tax the production and sale of marijuana for rec- reational use. Californians also overwhelmingly passed the Three Strikes Reform Act of 2012 (Proposition 36), which shortens sentences of those subjected to life prison terms for ‘non-serious’, ‘non-violent’ offenses, and Proposition 47 (2014), which de- felonizes all drug use, downgrades a multiplicity of non-violent economic and drug offenses from felonies to misdemeanors, and reinvests the estimated $150 million in annual state savings toward school truancy and drop-out prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alter- natives to incarceration. Such measures demonstrate popular support for advancing a public safety strategy beyond incarceration to include treatment and prevention. ? Mass plea refusal could intensify such efforts by striking a major blow to the prison industrial complex, which, as Angela Y. Davis points out, ‘devours the social wealth needed to address the very problems related to employment, education, housing, addiction, mental disorder, etc. that have led to spiraling numbers of prisoners’.132 Not even accounting for the multibillion dollar corporate industry that weaves in and out of the public and private prison systems,133 US criminal justice expenditures grew by over 600 per cent between 1980 and 2006, from $35 billion to $215 billion. Criminal justice system employment (including police, and corrections, judicial and legal, at federal, state and local levels) doubled during that same period, rising from 1.2 million to 2.5 million people.134 Widespread sentencing mitigation at all or most levels of existing criminal codes and de-criminalization in the lower-spectrum of existing penal codes would disemploy and disencumber a significant portion of these people and resources for more socially generative employment and investment. As an exercise in imaginative possibility, consider the following scenario. If we cut public financing of mass incarceration by, for example, returning criminal justice spending to the inflation-adjusted levels spent in 1980 – prior to the escalations of the wars on drugs and illegal immigration, which have since fueled the 500 per cent increase in the incarcerated population – over $125 billion of public wealth would be freed up each year for investment in socially reparative and generative enterprises like education, childcare, mental and physical health care and drug treatment, public housing, job training, food assistance, parks and recreation, etc. Such enterprises could easily absorb and constructively employ the millions of people that America’s carceral system currently employs and confines. As Davis maintains, ‘The creation of new institutions that lay claim to the space now occupied by the prison industrial complex can eventually start to crowd out the prison so that it would inhabit increasingly smaller areas of our social and psychic landscape’.135 No reinvestment in mass incarceration – shrinking state and federal budgets Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDOf course, rather than a complex of executive desistence, legislative mitigation and de-criminalization, and public reinvestment that tilts toward a less carceral and puni- tive society, it is also possible that government could respond to the crisis generated by mass conscientious plea refusal by pursuing a still more punitive agenda to enlarge and shore up the procedural pipelines of mass incarceration. State legislatures could pro- cure emergency funding to expand the procedural capacity of their respective criminal justice systems. Federal legislators could seek to bolster such expansion efforts by enacting an emergency financial bail-out of the criminal justice system akin to the 2008 bail-out of the US financial system, ramping up national criminal justice spend- ing exponentially over and above the already historically unprecedented heights. ? However, this course of action seems politically unlikely. State and municipal bud- gets have not only been shrinking due to regressive tax reforms and the economic crises produced by American finance capitalism and corporate outsourcing, the portions of those budgets devoted to corrections and law enforcement have already exponentially swelled, due largely to current (and in some cases unconstitutional) overcrowding in many state prison systems. The electorate’s appetite for bankrolling the prison industrial complex is waning amid steeply declining and non-existent state financing of other social priorities like education, childcare, recreation and infrastructure. Criminal proce- dural expansion would also be logistically fraught, straining political support, as it would entail appointing an army of judges, many of whom are elected, which would in turn require special elections, etc., as well as enlisting a multitude of eligible citizens for jury duty service, and hiring the necessary personnel to coordinate them. ? In effect, on the side of utility, increasing swaths of the populace have begun to iden- tify that public investment in mass incarceration is depleting valuable social resources while producing disproportionately little social benefit in the short term and over the long term exacerbating the very social problems related to intergenerational poverty (e.g. unemployment, substance addiction, educational disparity and mental disorder) that lead to increased incarceration. On the side of justice, increasing numbers of people are beginning to recognize that the US carceral state is falling short of the threshold of social justice requisite to render state punishment morally legitimate.136 ‘If a society is to have the moral right to punish, its laws must be just’, writes Igor Primoratz in his book Justifying Legal Punishment. ? But that is not all; society must be doing something constructive about those social con- ditions that breed crime . . . If it does little or nothing about those social problems that generate law-breaking, and then goes on to punish the law-breakers, it will be rightly seen as both callous and hypocritical, and thus as lacking the moral standing requisite for punishing offenders in good faith.137 ? In addition to (and in virtue of) producing a structural crisis in the procedural system of state punishment, the widespread assertion of constitutional due process rights among those protesting procedural entrapment would openly expose the moral illegitimacy of the institutional agencies of mass incarceration, which require the compelled forfeiture of constitutional rights of nearly all their targets in order for the system to function. 1AC – Framing The standard is maximizing expected well being. Even under utilitarian calculus, this is the greatest impact in debate. The sheer number effected demands redress. Edelman 13 – MARIAN WRIGHT EDELMAN activist for the rights of children. She has been an advocate for disadvantaged Americans for her entire professional life. She is president and founder of the Children's Defense Fund. (“Dismantle the Cradle to Prison Pipeline—Our Future Depends on It” )? Today a toxic cocktail of violence, poverty, racial disparities in child-serving systems, poor education, and racially unjust zero-tolerance policies are fueling a Cradle to Prison Pipeline? crisis that is funneling millions of poor children and adults into dead-end, powerless, and hopeless lives.? A black boy born in 2001 has a one-in-three chance of going to prison in his lifetime, and a Latino boy has a one-in-six chance of the same fate. $e United States has the highest incarceration rate in the world: 7.1 million adults are under some form of correctional supervision including prison, jail, probation, or parole. Black males have an imprisonment rate that is nearly seven times higher than white males, and Hispanic males have a rate more than twice that of their white counterparts. This epidemic of mass incarceration has created one of the most dangerous crises for the black community since slavery and it affects everyone in our nation.? Federal spending on prisons totaled $6.6 billion in 2012 and annual state spending on corrections tops $51 billion. This federal and state spending spree to warehouse prisoners has perverted our nation’s priorities. States spend on average two and half times more per prisoner than they spend per public school student, this at a time when a majority of children of all racial and income backgrounds cannot read or compute at grade level in fourth- or eighth-grade and huge numbers of youth drop out of schools. The privatization of juvenile and adult prisons is yet another added danger. The world’s largest for-profit, private prison corporation, the Corrections Corporation of America, recently offered to run the prison systems in 48 states for 20 years if the states would guarantee a 90 percent occupancy rate.? The greatest threat to America’s democracy and economic security comes from no enemy, but rather from our failure to dismantle this Cradle to Prison Pipeline and to invest in and prepare all our children for the future. Tomorrow is today. Children of color, who already are a majority of babies being born in the United States and who will be a majority of our child population within this decade, face bleak futures without high-quality early childhood programs and high-quality, equitable public schools that would prepare them for college and our workforce.? Closing the income and racial achievement gaps between poor and non-poor children and between white and nonwhite children is an urgent national priority. Today, every 1.5 seconds during the school year, a public school student is suspended; every 8 seconds during the school year, a public high school student drops out; every 19 seconds a child is arrested; and every 3 hours and 15 minutes, a child or teen is killed by a gun.? Mass incarceration is made possible by a society gone mad for war. Value reorientation precedes any challenge to militarism, materialism and racismBerman 13 – Matt, Former Online Editor, National Journal (“The Forgotten Martin Luther King: A Radical Anti-War Leftist” )? Martin Luther King speaks against the Vietnam War at the University of Minnesota. (Wikimedia Commons)? Martin Luther King Jr. was not just the safe-for-all-political-stripes civil-rights activist he is often portrayed as today. He was never just the "I Have a Dream" speech, delivered 50 years ago Wednesday. He was an anti-war, anti-materialist activist whose views on American power would shock many of the same politicians who are currently scrambling to sing his praises.? King's more radical worldview came out clearly in a speech to an overflow crowd of more than 3,000 people at Riverside Church in New York on April 4, 1967. "The recent statement of your executive committee are the sentiments of my own heart and I found myself in full accord when I read its opening lines: 'A time comes when silence is betrayal,'" he began. It wasn't about the civil-rights movement -- not directly, at least. "That time has come for us in relation to Vietnam."? He continued, in a speech called "Beyond Vietnam":? Tonight, however, I wish not to speak with Hanoi and the NLF National Liberation Front but rather to my fellow Americans, who, with me, bear the greatest responsibility in ending a conflict that has exacted a heavy price on both continents.... There is at the outset a very obvious and almost facile connection between the war in Vietnam and the struggle I, and others, have been waging in America. A few years ago there was a shining moment in that struggle. It seemed as if there was a real promise of hope for the poor -- both black and white -- through the poverty program. There were experiments, hopes, new beginnings. Then came the buildup in Vietnam, and I watched the program broken and eviscerated as if it were some idle political plaything of a society gone mad on war, and I knew that America would never invest the necessary funds or energies in rehabilitation of its poor so long as adventures like Vietnam continued to draw men and skills and money like some demonic destructive suction tube. So I was increasingly compelled to see the war as an enemy of the poor and to attack it as such.? Perhaps the more tragic recognition of reality took place when it became clear to me that the war was doing far more than devastating the hopes of the poor at home. It was sending their sons and their brothers and their husbands to fight and to die in extraordinarily high proportions relative to the rest of the population. We were taking the black young men who had been crippled by our society and sending them 8,000 miles away to guarantee liberties in Southeast Asia which they had not found in southwest Georgia and East Harlem. So we have been repeatedly faced with the cruel irony of watching Negro and white boys on TV screens as they kill and die together for a nation that has been unable to seat them together in the same schools. So we watch them in brutal solidarity burning the huts of a poor village, but we realize that they would never live on the same block in Detroit. I could not be silent in the face of such cruel manipulation of the poor.? King also addressed the idea that his advocacy of nonviolence at home should extend to the rest of the world:? I knew that I could never again raise my voice against the violence of the oppressed in the ghettos without having first spoken clearly to the greatest purveyor of violence in the world today -- my own government.? Martin Luther King Jr. is being hailed by politicians of all stripes on Wednesday, from a president who is considering military options in Syria to Republicans like Virginia gubernatorial candidate Ken Cuccinelli. Former Rep. Allen West, R-Fla., wrote an op-ed for U.S. News and World Report on Wednesday, blaming "liberal progressive Democrats" and abortion for blocking King's vision of equality from becoming a reality. "Dr. King advocated we evaluate the content of one's character," West writes. "However, in 2008 Americans voted for someone as president based upon the color of his skin. In 2012, Americans used the same criteria and made the same choice."? But it's impossible to imagine West, Cuccinelli, or Barack Obama celebrating King's full range of beliefs, or using a fully realized King as a way to promote their own. Even the March on Washington itself was more radical than it is often remembered as being, having been largely designed by A. Philip Randolph, a union leader, and Bayard Rustin, a gay pacifist and World War II conscientious objector.? The man who said that his dream of equality was "deeply rooted in the American Dream" also believed the American government, with what he saw as its weapons testing in Vietnam, was on par with "the Germans who tested out new medicine and new tortures in the concentration camps of Europe." In the same speech, King said that, if U.S. actions were to continue, "there will be no doubt in my mind and in the mind of the world that we have no honorable intentions in Vietnam."? The radicalism of the 1967 speech didn't just extend to Vietnam. King called for the U.S. to "undergo a radical revolution of values," saying that "we must rapidly begin the shift from a 'thing-oriented' society to a 'person-oriented' society." He continued:? When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.? "A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death," he said.? Phenomenal introspection proves that pleasure is intrinsically good. Sinhababu 08 Neil, Assistant Professor at Department of Philosophy in National University of Singapore. PhD, University of Texas at Austin, 2008. “The Epistemic Argument for Hedonism.” LADINow I'll outline hedonism's answer to Joyce and Street's evolutionary debunking arguments, as promised in section 1.1. Phenomenal introspection is a process of belief-formation that evolved to be generally reliable, like visual perception. Knowing what one is experiencing seems to be important for perception, so creatures who couldn't know what their experiences were like would die without reproducing, having failed to form useful beliefs about their surroundings. So creatures who could reliably form true beliefs about their phenomenal states would be more likely to survive and reproduce. Hedonism withstands evolutionary debunking arguments via what Street calls a “byproduct hypothesis.” Since belief in pleasure's goodness is a byproduct of phenomenal introspection, which is selected for reliability, it's reliably caused even if other moral beliefs aren't.31 If all other moral beliefs are undermined by their origins in processes not selected for reliability, an evolutionary debunking argument could do the same work for hedonists that the argument from disagreement has done in this paper.32Our ability to understand the introspective experiences of others commits us to utilitarianism.Sinhababu 08 Neil, Assistant Professor at Department of Philosophy in National University of Singapore. PhD, University of Texas at Austin, 2008. “The Epistemic Argument for Hedonism.” LADI”One can form a variety of beliefs using phenomenal introspection. For example, one can believe that one is having sound experiences of particular noises and visual experiences of different shades of color. When looking at a lemon and considering the phenomenal states that are yellow experiences, one can form some beliefs about their intrinsic features – for example, that they're bright experiences. And when considering experiences of pleasure, one can make some judgments about their intrinsic features – for example, that they're good experiences. Just as one can look inward at one's experience of lemon yellow and recognize its brightness, one can look inward at one's experience of pleasure and recognize its goodness. 24 When I consider a situation of increasing pleasure, I can form the belief that things are better than they were before, just as I form the belief that there's more brightness in my visual field as lemon yellow replaces black. And when I suddenly experience pain, I can form the belief that things are worse in my experience than they were before. Having pleasure consists in one's experience having a positive hedonic tone. Without descending into metaphor, it's hard to give a further account of what pleasure is like than to say that when one has it, one feels good. As Aaron Smuts writes in defending the view of pleasure as hedonic tone, “to 'feel good' is about as close to an experiential primitive as we get.” 25 Fred Feldman sees pleasure as fundamentally an attitude rather than a hedonic tone.26 But as long as hedonic tones are real components of experience, phenomenal introspection will reveal pleasure's goodness. Opponents of the hedonic tone account of pleasure usually concede that hedonic tones exist, as Feldman seems to in discussing “sensory pleasures,” which he thinks his view helps us understand. Even on his view of pleasure, phenomenal introspection can produce the belief that some hedonic tones are good while others are bad.The state can be repurposed Ferguson 11, James, Professor of Anthropology at Stanford, “The Uses of Neoliberalism”, Antipode, Vol. 41, No. S1, pp 166–184If we are seeking, as this special issue of Antipode aspires to do, to link our critical analyses to the world of grounded political struggle—not only to interpret the world in various ways, but also to change it—then there is much to be said for focusing, as I have here, on mundane, real- world debates around policy and politics, even if doing so inevitably puts us on the compromised and reformist terrain of the possible, rather than the seductive high ground of revolutionary ideals and utopian desires. But I would also insist that there is more at stake in the examples I have discussed here than simply a slightly better way to ameliorate the miseries of the chronically poor, or a technically superior method for relieving the suffering of famine victims.? My point in discussing the South African BIG campaign, for instance, is not really to argue for its implementation. There is much in the campaign that is appealing, to be sure. But one can just as easily identify a series of worries that would bring the whole proposal into doubt. Does not, for instance, the decoupling of the question of assistance from the issue of labor, and the associated valorization of the “informal”, help provide a kind of alibi for the failures of the South African regime to pursue policies that would do more to create jobs? Would not the creation of a basic income benefit tied to national citizenship simply exacerbate the vicious xenophobia that already divides the South African poor,? in a context where many of the poorest are not citizens, and would thus not be eligible for the BIG? Perhaps even more fundamentally, is the idea of basic income really capable of commanding the mass support that alone could make it a central pillar of a new approach to distribution? The record to date gives powerful reasons to doubt it. So far, the technocrats’ dreams of relieving poverty through efficient cash transfers have attracted little support from actual poor people, who seem to find that vision a bit pale and washed out, compared with the vivid (if vague) populist promises of jobs and personalistic social inclusion long offered by the ANC patronage machine, and lately personified by Jacob Zuma (Ferguson forthcoming).? My real interest in the policy proposals discussed here, in fact, has little to do with the narrow policy questions to which they seek to provide answers. For what is most significant, for my purposes, is not whether or not these are good policies, but the way that they illustrate a process through which specific governmental devices and modes of reasoning that we have become used to associating with a very particular (and conservative) political agenda (“neoliberalism”) may be in the process of being peeled away from that agenda, and put to very different uses. Any progressive who takes seriously the challenge I pointed to at the start of this essay, the challenge of developing new progressive arts of government, ought to find this turn of events of considerable interest.? As Steven Collier (2005) has recently pointed out, it is important to question the assumption that there is, or must be, a neat or automatic fit between a hegemonic “neoliberal” political-economic project (however that might be characterized), on the one hand, and specific “neoliberal” techniques, on the other. Close attention to particular techniques (such as the use of quantitative calculation, free choice, and price driven by supply and demand) in particular settings (in Collier’s case, fiscal and budgetary reform in post-Soviet Russia) shows that the relationship between the technical and the political-economic “is much more polymorphous and unstable than is assumed in much critical geographical work”, and that neoliberal technical mechanisms are in fact “deployed in relation to diverse political projects and social norms” (2005:2).? As I suggested in referencing the role of statistics and techniques for pooling risk in the creation of social democratic welfare states, social technologies need not have any essential or eternal loyalty to the political formations within which they were first developed. Insurance rationality at the end of the nineteenth century had no essential vocation to provide security and solidarity to the working class; it was turned to that purpose (in some substantial measure) because it was available, in the right place at the right time, to be appropriated for that use. Specific ways of solving or posing governmental problems, specific institutional and intellectual mechanisms, can be combined in an almost infinite variety of ways, to accomplish different social ends. With social, as with any other sort of technology, it is not the machines or the mechanisms that decide what they will be used to do. Foucault (2008:94) concluded his discussion of socialist government- ality by insisting that the answers to the Left’s governmental problems require not yet another search through our sacred texts, but a process of conceptual and institutional innovation. “If there is a really socialist governmentality, then it is not hidden within socialism and its texts. It cannot be deduced from them. It must be invented”. But invention in the domain of governmental technique is rarely something worked up out of whole cloth. More often, it involves a kind of bricolage (Le ?vi- Strauss 1966), a piecing together of something new out of scavenged parts originally intended for some other purpose. As we pursue such a process of improvisatory invention, we might begin by making an inventory of the parts available for such tinkering, keeping all the while an open mind about how different mechanisms might be put to work, and what kinds of purposes they might serve. If we can go beyond seeing in “neoliberalism” an evil essence or an automatic unity, and instead learn to see a field of specific governmental techniques, we may be surprised to find that some of them can be repurposed, and put to work in the service of political projects very different from those usually associated with that word. If so, we may find that the cabinet of governmental arts available to us is a bit less bare than first appeared, and that some rather useful little mechanisms may be nearer to hand than we thought.7 Immac LM NegDA Court Clog (c&p)No backlog in courts now Prost 15 – Sharon, Chief Judge, U.S. Court of Appeals for the Federal Circuit ("Innovator Insights", , 9-23-2015, IPO Education Foundation, , accessed 7-11-2017)How will the Court manage the workload?? For now, we’re ok. We just got our twelfth vacancy filled when Judge Kara Stoll came on board, so for the first time we have six senior judges. We’re all hands on deck in a way we’ve never been. A few years ago, under former Chief Judge Paul Michel, we rose from three clerks each to four clerks each. I’m fairly optimistic that in the foreseeable future we’ll be up to the task. We’re proud of the fact that we’re very current; we have virtually no backlog and are probably one of the most current appeals courts in the country, so we’d like to be able to keep that going. It may get a little harder with the influx of PTAB cases, but we’ll do the best we can.Suits will continue without settlement – this instantly destroys the economy Post 11 – Ashley, Law dot com (“Frivolous lawsuits clogging U.S. courts, stalling economic growth” )In May, the House Judiciary Committee held a hearing that explored excessive litigation’s effect on the United States’ global competitiveness. During his testimony, Skadden Partner John Beisner explained that plaintiffs counsel engage in five types of litigation abuse that ultimately undermine economic growth: improperly recruiting plaintiffs, importing foreign claims, filing suits that piggyback off government investigations and actions, pursuing aggregate litigation and seeking third-party litigation financing.? “America’s litigious nature has caused serious damage to our country’s productivity and innovation. … The root cause is that we have created incentives to sue—and to invest in litigation—instead of establishing disincentives for invoking judicial process unless absolutely necessary. Other countries discourage litigation; we nurture it,” Beisner said at the hearing.? Many litigation experts resoundingly agree with Beisner’s stance on the necessity of tort reform to ameliorate the country’s economy.? “The entrepreneurial system that we’ve developed for litigation in this country has always been an impetus to bringing cases that are close to the line or even over the line,” says Dechert Partner Sean Wajert. “When you have that kind of encouragement, you have a slippery slope, which sometimes people will slide down and get into questionable and even abusive and frivolous claims along the way.”? The result is clogged courts and corporate funds that finance defense costs instead of economic investment. Small businesses and startups with less than $20 million in revenue suffer the most because they pay a higher percentage of their revenues toward tort costs than larger companies do, and therefore they become less able to invest in research and development, create new jobs, and give raises and benefits to employees.Slowing growth causes conflict – this is specifically true under trump. Foster 16 - Dennis M. Foster is professor of international studies and political science at the Virginia Military Institute. “Would President Trump go to war to divert attention from problems at home?” December 19, 2016, Washington Post Monkey Cage Blog, ) ? Then-Republican presidential candidate Donald Trump gives a speech aboard the World War II battleship USS Iowa in San Pedro, Calif., in September, 2015. (Robyn Beck/AFP/Getty Images)? If the U.S. economy tanks, should we expect Donald Trump to engage in a diversionary war? Since the age of Machiavelli, analysts have expected world leaders to launch international conflicts to deflect popular attention away from problems at home. By stirring up feelings of patriotism, leaders might escape the political costs of scandal, unpopularity — or a poorly performing economy.? One often-cited example of diversionary war in modern times is Argentina’s 1982 invasion of the Falklands, which several (though not all) political scientists attribute to the junta’s desire to divert the people’s attention from a disastrous economy.? In a 2014 article, Jonathan Keller and I argued that whether U.S. presidents engage in diversionary conflicts depends in part on their psychological traits — how they frame the world, process information and develop plans of action. Certain traits predispose leaders to more belligerent behavior.? Do words translate into foreign policy action?? One way to identify these traits is content analyses of leaders’ rhetoric. The more leaders use certain types of verbal constructs, the more likely they are to possess traits that lead them to use military force.? Trump may put 5 former top military brass in his administration. That’s unprecedented.? For one, conceptually simplistic leaders view the world in “black and white” terms; they develop unsophisticated solutions to problems and are largely insensitive to risks. Similarly, distrustful leaders tend to exaggerate threats and rely on aggression to deal with threats. Distrustful leaders typically favor military action and are confident in their ability to wield it effectively.? Thus, when faced with politically damaging problems that are hard to solve — such as a faltering economy — leaders who are both distrustful and simplistic are less likely to put together complex, direct responses. Instead, they develop simplistic but risky “solutions” that divert popular attention from the problem, utilizing the tools with which they are most comfortable and confident (military force).? Will Beijing cut Trump some slack after that phone call with Taiwan?? Based on our analysis of the rhetoric of previous U.S. presidents, we found that presidents whose language appeared more simplistic and distrustful, such as Harry Truman, Dwight Eisenhower and George W. Bush, were more likely to use force abroad in times of rising inflation and unemployment. By contrast, John F. Kennedy and Bill Clinton, whose rhetoric pegged them as more complex and trusting, were less likely to do so.? What about Donald Trump? Since Donald Trump’s election, many commentators have expressed concern about how he will react to new challenges and whether he might make quick recourse to military action. For example, the Guardian’s George Monbiot has argued that political realities will stymie Trump’s agenda, especially his promises regarding the economy. Then, rather than risk disappointing his base, Trump might try to rally public opinion to his side via military action.? I sampled Trump’s campaign rhetoric, analyzing 71,446 words across 24 events from January 2015 to December 2016. Using a program for measuring leadership traits in rhetoric, I estimated what Trump’s words may tell us about his level of distrust and conceptual complexity. The graph below shows Trump’s level of distrust compared to previous presidents.? These results are startling. Nearly 35 percent of Trump’s references to outside groups paint them as harmful to himself, his allies and friends, and causes that are important to him — a percentage almost twice the previous high. The data suggest that Americans have elected a leader who, if his campaign rhetoric is any indication, will be historically unparalleled among modern presidents in his active suspicion of those unlike himself and his inner circle, and those who disagree with his goals.? As a candidate, Trump also scored second-lowest among presidents in conceptual complexity. Compared to earlier presidents, he used more words and phrases that indicate less willingness to see multiple dimensions or ambiguities in the decision-making environment. These include words and phrases like “absolutely,” “greatest” and “without a doubt.”? A possible implication for military action? I took these data on Trump and plugged them into the statistical model that we developed to predict major uses of force by the United States from 1953 to 2000. For a president of average distrust and conceptual complexity, an economic downturn only weakly predicts an increase in the use of force.? But the model would predict that a president with Trump’s numbers would respond to even a minor economic downturn with an increase in the use of force. For example, were the misery index (aggregate inflation and unemployment) equal to 12 — about where it stood in October 2011 — the model predicts a president with Trump’s psychological traits would initiate more than one major conflict per quarter.DA Terror (c&p)Plea bargaining is a key tool in fighting lone wolf terrorism – Britain provesGuardian 5 (“Plea bargaining urged to help gain information” 18 July 2005 )The security and intelligence agencies want to introduce plea bargaining into British law, enabling their officers to question suspects before a trial, according to legal sources. They are also prepared to look again at the vexed issue of whether to allow the product of telephone taps to be introduced in terrorist trials. Plea bargaining would enable officers from MI5 and MI6 to obtain intelligence from suspects whose cooperation would in turn be recognised by the courts, by shorter sentences, for example. Plea bargaining is not formally recognised by British courts though judges have taken into account cooperation by a suspect before conviction. Earlier this year, an Old Bailey judge told Saajid Badat, sentenced to 13 years in prison for planning to explode a shoe bomb on a passenger aircraft, that he would have faced a 50-year sentence. Mr Justice Fulford said he gave him credit for pulling out of the plot, renouncing terrorism and pleading guilty. The judge said it was in the public interest that "if a would-be terrorist turns away from death and destruction before any lives are put at risk", the courts would pass a lower sentence. Allowing information from telephone taps to be used as evidence in trials is seen now as much a bureaucratic and financial burden as a threat to sources or methods used by the security and intelligence agencies. The defence is likely to demand to see transcripts of the whole of a conversation, not only those parts used by the prosecution to make its case. That process is time-consuming and expensive. These moves are being mooted at a time when the country's three intelligence-gathering agencies - MI5, MI6 and GCHQ - face a huge challenge in their efforts against their priority target, international terrorism. MI5 is said to have discovered nothing in its internal investigation to suggest it had information which could have prevented the London bombings. This points to a significant intelligence gap rather than an intelligence failure. The agency has depended on informants - human agents or sources - for intelligence. Iraq and the US treatment of detainees at Guantánamo Bay and elsewhere have not encouraged people who otherwise might have done more to provide information, counter-terrorist officials say. The London bombings of July 7, the first by suicide bombers in Britain, may change that. However, it will be harder for MI5 to gather intelligence if its potential targets are young militants who do not attend mosques and distance themselves from imams who do not respond to their concerns. One of the problems faced by the security and intelligence agencies is that militants appear to recruit themselves - they do not have to receive, or rely on, instructions from the al-Qaida network. A plethora of websites provide detailed information about how to make bombs. Security sources say the four London bombers could have made their devices from the internet, without help from anyone else, even though they were "high grade". The IRA was infiltrated by British intelligence whose job was made easier partly because the organisation was hierarchical and structured. Al-Qaida is the opposite - diffuse and international. MI5's resources are to be beefed up by with a new Special Reconnaissance Regiment which women are being encouraged to join. Its role may reflect the army's 14th Intelligence Company, which operated in Northern Ireland. Its plain clothes members, often masquerading as couples, monitored the movements of terrorist suspects. That model may not be the most useful in tracking potential Islamist terroristsLone wolf attacks are growing and cause extinctionAckerman and Pinson 14 – Gray A., Director of the Special Projects Division at the National Consortium for the Study of Terrorism and Responses to Terrorism (START); Lauren E., Senior Research/Project Manager at START and PhD student at Yale University, 2014 (“An Army of One: Assessing CBRN Pursuit and Use by Lone Wolves and Autonomous Cells,” Terrorism and Political Violence (Vol. 26, Issue 1) Available Online to Subscribing Institutions via Tandfonline)? The first question to answer is whence the concerns about the nexus between CBRN weapons and isolated actors come and whether these are overblown. The general threat of mass violence posed by lone wolves and small autonomous cells has been detailed in accompanying issue contributions, but the potential use of CBRN weapons by such perpetrators presents some singular features that either amplify or supplement the attributes of the more general case and so are deserving of particular attention. Chief among these is the impact of rapid technological development. Recent and emerging advances in a variety of areas, from synthetic biology 3 to nanoscale engineering, 4 have opened doors not only to new medicines and materials, but also to new possibilities for malefactors to inflict harm on others. What is most relevant in the context of lone actors and small autonomous cells is not so much the pace of new invention, but rather the commercialization and consumerization of CBRN weapons-relevant technologies. This process often entails an increase in the availability and safety of the technology, with a concurrent diminution in the cost, volume, and technical knowledge required to operate it. Thus, for example, whereas fifty years ago producing large quantities of certain chemical weapons might have been a dangerous and inefficient affair requiring a large plant, expensive equipment, and several chemical engineers, with the advent of chemical microreactors,5 the same processes might be accomplished far more cheaply and safely on a desktop assemblage, purchased commercially and monitored by a single chemistry graduate student.? The rapid global spread and increased user-friendliness of many technologies thus represents a potentially radical shift from the relatively small scale of harm a single individual or small autonomous group could historically cause. 6 From the limited reach and killing power of the sword, spear, and bow, to the introduction of dynamite and eventually the use of our own infrastructures against us (as on September 11), the number of people that an individual who was unsupported by a broader political entity could kill with a single action has increased from single digits to thousands. Indeed, it has even been asserted that ‘‘over time. . . as the leverage provided by technology increases, this threshold will finally reach its culmination—with the ability of one man to declare war on the world and win.’’7 Nowhere is this trend more perceptible in the current age than in the area of unconventional weapons.? These new technologies do not simply empower users on a purely technical level. Globalization and the expansion of information networks provide new opportunities for disaffected individuals in the farthest corners of the globe to become familiar with core weapon concepts and to purchase equipment—online technical courses and eBay are undoubtedly a boon to would-be purveyors of violence. Furthermore, even the most solipsistic misanthropes, people who would never be able to function socially as part of an operational terrorist group, can find radicalizing influences or legitimation for their beliefs in the maelstrom of virtual identities on the Internet.? All of this can spawn, it is feared, a more deleterious breed of lone actors, what have been referred to in some quarters as ‘‘super-empowered individuals.’’8 Conceptually, super-empowered individuals are atomistic game-changers, i.e., they constitute a single (and often singular) individual who can shock the entire system (whether national, regional, or global) by relying only on their own resources. Their core characteristics are that they have superior intelligence, the capacity to use complex communications or technology systems, and act as an individual or a ‘‘lone-wolf.’’9 The end result, according to the pessimists, is that if one of these individuals chooses to attack the system, ‘‘the unprecedented nature of his attack ensures that no counter-measures are in place to prevent it. And when he strikes, his attack will not only kill massive amounts of people, but also profoundly change the financial, political, and social systems that govern modern life.’’10 It almost goes without saying that the same concerns attach to small autonomous cells, whose members’ capabilities and resources can be combined without appreciably increasing the operational footprint presented to intelligence and law enforcement agencies seeking to detect such behavior.DA/PIC Impeachment Counter plan: The United States federal government should abolish plea bargaining other than in cases pursuant to the special investigation probe into the Trump administration.Plea bargains are key to stop the trump administration Budowsky 12/1 – Brent, was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics. (“Trump’s Russian winter grows colder with Flynn plea deal” )The potential culpability of the president and others involving obstruction of justice will be decided by evidence, facts and law as viewed by the special counsel and the grand jury considering the matter. It was wrong, and has evidentiary value, for the president to fire former New York U.S. Attorney Preet Bharara while he was investigating the Russia scandal. It was wrong, and has evidentiary value, for the president to fire former acting Attorney General Sally Yates when she warned the White House that Russians could have material to blackmail former national security adviser, Michael Flynn. It was wrong, and has evidentiary value, for the president to fire former FBI Director James Comey while he was investigating the Russia scandal after asking Comey to drop the investigation of Flynn. It was a terrible mistake by Trump, and has evidentiary value, for Trump to admit the reason he fired Comey was to lower pressure on himself brought by the investigation that Comey was then leading. It was wrong, and has evidentiary value, for the president to humiliate and threaten Attorney General Jeff Sessions through intense public criticism and letting it be known he might fire Sessions. It was wrong, and has evidentiary value, for Sessions to refuse to tell the House Intelligence Committee whether Trump has pressured him to end or limit the Russia investigation, which he will be asked about by the special counsel and may have to testify about in court. It was wrong, and has evidentiary value, for Sessions to recuse himself from the Russia investigation and then take actions that impeded the Russia investigation he had recused himself from, such as supporting the firing of Comey. In this context it was wrong, and has evidentiary value, for Trump to pressure Senate Republicans to cut short their investigations of the Russia scandal. It is wrong, and has evidentiary value, that Trump stands virtually alone among high-level officials in refusing to unequivocally state that the Russians have attacked our country and continue to attack our country, which intelligence and law enforcement agencies warn about today. Stay tuned for the next blockbuster event in the Russian scandal, which is probably imminent after the Flynn plea bargain. Sealed indictments or other plea bargains may have already been reached but not yet disclosed. If not, they will probably happen soon. There are multiple issues involving multiple Trump associates now under investigation, including failure to disclose foreign contacts as required by law. The potential for an obstruction of justice charge is real and growing. The Flynn plea will set off a chain reaction with more evidence, revelations, indictments and plea bargains that will continue to make Trump’s cold Russian winter colder by the day, until the investigation is concluded and the fate of the Trump presidency is decided one way or the other, once and for all.Trump would use nuclear weapons -- there are no checks on an unstable President. This risk is extremely high. Illing 11/17 (Sean, is the Interviews Writer for Vox. Before publishing things on the Internet, he taught politics and philosophy at a university. Before that, he was a paramedic in the United States Air Force.) “Trump Can’t Start a Nuclear War by Himself, but there’s not much stopping him,” Vox News, 11/17/2017 MCM.Senators held a congressional hearing on Tuesday to discuss the US president’s authority to launch a nuclear strike. It was the first hearing to overtly address this issue in more than four decades. The hearing was not explicitly about President Trump, but rather about the general question of whether the president currently has too much power over our nuclear arsenal. But the fact that Trump is swapping Twitter insults with North Korea’s Kim Jong Un and has threatened to use “fire and fury” against the regime was clearly a motivating factor. “We are concerned that the president of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic, that he might order a nuclear strike that is wildly out of step with US interests,” said Sen. Chris Murphy, a Democrat from Connecticut. Even Bob Corker, a Republican senator from Tennessee, warned that Trump’s reckless threats could put the country on a “path to World War III.” One of the experts who testified at the hearing was Peter Feaver, a political science professor at Duke University and a former special adviser on the National Security Council. I reached out to Feaver with two big questions: Can the president unilaterally launch a nuclear strike? And what are the checks in place to stop an unlawful order from the president? The answer, it turns out, is complicated. You can read my lightly edited conversation with Feaver below. Sean Illing Let me start with a simple but important question: Can the president unilaterally launch a nuclear strike? Peter Feaver No. But the wording of your question is very precise. Can he launch a strike “unilaterally”? No. He requires other people to carry out an order, so he can't just lean on a button and automatically the missiles fly. But he has the legal and political authority on his own to give an order that would cause other people to take steps which would result in a nuclear strike. That’s the system we currently have.K Legalism (c&p)Using defense as redress obfuscates the drivers of incarceration and legitimizes criminal injusticeButler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) Indigent persons are much more likely to go to prison today than in the era when Gideon was decided. In 1960, the U.S. imprisonment rate was approximately 126 per 100,000 population.9 By, 2008, the rate had quadrupled, to 504 per 100,000.10 African-American defendants are even worse off. In 1960, three years before Gideon, the black incarceration rate was approximately 660 per 100,000.11 By 1970, it had fallen some, to slightly under 600 per 100,000.12 In 2010, the rate of incarceration among black males was an astronomical 3,074 per 100,000.13 For men hoping to avoid prison, being both poor and black is a lethal combination. More than two-thirds of black males who do not have college degrees will be incarcerated at some point in their lives.14 Black male high school dropouts are more likely to be imprisoned than employed.15 What is it about being poor and African American that substantially increases the risk of incarceration? The answer, rather obviously, has much to do with class and race and, less obviously, little to do with the quality of the indigent defense system. This Essay employs data about both race and class to demonstrate this claim, but at the start I want to note that it is impossible to disaggregate the effects of race and class. The answer to the questions, “Are poor defendants treated unfairly because many of them are black, are black defendants treated unfairly because many of them are poor, or is there some other dynamic at work?” is “yes.”16 Indeed, the Gideon decision itself was explicitly a class intervention, but implicitly, like other Warren court criminal procedure cases, a racial justice intervention as well.17 Approximately two decades after Gideon, two trends began in criminal justice, the effects of which were to overwhelm any benefits that Gideon provided to low-income accused persons. First, the United States experienced the most pronounced increase in incarceration in the history of the world.18 Second, there was a corresponding exponential increase in racial disparities in incarceration. This dramatic expansion of incarceration was accomplished on the backs of poor people. The Bureau of Justice Statistics reports that the “generally accepted indigency rate” for state felony cases near the time when Gideon was decided was 43.19 Today approximately 80 of people charged with crime are poor.20 Other data further illustrate the correlation between poverty and incarceration. In 1997, more than half of state prisoners earned less than $1,000 in the month before their arrest.21 This would result in an annual income of less than $12,000, well below the $25,654 median per capita income in 1997.22 The same year, 35 of state inmates were unemployed in the month before their arrest, compared to the national unemployment rate of 4.9.23 Approximately 70 of state prisoners have not graduated from high school.24 Only 13 of incarcerated adults have any post-high school education, compared with almost 50 of the non-incarcerated population.25 College graduation, on the other hand, serves to insulate Americans from incarceration. Only 0.1 of bachelor’s degree holders are incarcerated, compared to 6.3 of high school dropouts.26 Put another way, high school dropouts are sixty-three times more likely to be locked up than college graduates. The post-Gideon expansion of the prison population was also accomplished on the backs of black people. There have been always been racial disparities in American criminal justice, but from the 1920s through the 1970s they were “only” about two-to-one.27 Now the black/white incarceration disparity is seven-to-one.28 There are more African Americans under correctional supervision than there were slaves in 1850.29 As Michelle Alexander states, “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”30 In summary, poor people and blacks have never fared as well as the nonpoor and the nonblack in American criminal justice. Since the 1970s, however, the disparities have gotten much worse. Something happened that dramatically increased incarceration and dramatically raised the percentage of the incarcerated who are poor and black. What happened is usually attributed to two main causes: the war on drugs and the law-and-order or so-called tough-on-crime policies of American leaders since the Nixon Administration.31 Thus far I have made the case that prisons are populated by people who are disproportionately poor and African American. My next step is to demonstrate that this is not a coincidence, in order to further support the claim that the poor are losers in American criminal justice. Mass incarceration’s process of control—the social and legal apparatus by which poor people become losers in criminal justice—can be broken into five steps. (1) The spaces that poor people, especially poor African Americans, live in receive more law enforcement in the form of police stops and arrests.32 (2) The criminal law deliberately ignores the social conditions that breed some forms of law-breaking.33 Deprivations associated with poverty are usually not “defenses” to criminal liability, although they may be factors considered in sentencing. (3) African Americans, who are disproportionately poor, are the target of explicit and implicit bias by key actors in the criminal justice system, including police, prosecutors,34 and judges. (4) Once any person is arrested, she becomes part of a crime control system of criminal justice, in which guilt is presumed.36 Prosecutors, using the legal apparatus of expansive criminal liability, recidivist statutes, and mandatory minimums,37 coerce guilty pleas by threatening defendants with vastly disproportionate punishment if they go to trial.38 (5) Repeat the cycle. A criminal caste is created. Two-thirds of freed prisoners are rearrested, and half return to prison, within three years of their release.39 This description is not intended to be novel, or especially provocative. Other observers of American criminal justice have made similar points about the process by which being poor and African American increases the risk of incarceration. Richard S. Frase, for example, writes that poverty and lack of opportunity are associated with higher crime rates; crime leads to arrest, a criminal record, and usually a jail or prison sentence; past crimes lengthen those sentences; offenders released from prison or jail confront family and neighborhood dysfunction, increased risks of unemployment, and other crime-producing disadvantages; this make them likelier to commit new crimes, and the cycle repeats itself.40 Michelle Alexander notes: It is simply taken for granted that, in cities like Baltimore and Chicago, the vast majority of young black men are currently under the control of the criminal justice system or branded criminals for life. This extraordinary circumstance—unheard of in the rest of the world—is treated here in America as a basic fact of life, as normal as separate water fountains were just a half century ago.41 What if every person accused of a crime had an excellent lawyer? Proponents of Gideon suggest it would be an important step in making criminal justice more equitable. For example, David Cole writes that the “story of the enforcement of the right to counsel suggests that our failure to make good on Gideon’s promise is no mere mistake. Rather, it is the single most important mechanism by which the courts and society ensure a double standard in constitutional rights protection in the criminal law.”42 In reality, full enforcement of Gideon probably would not significantly impact the “double standard.” If mass incarceration and racial disparities were caused by poor defense attorneys, it would make sense to think of Gideon as the appropriate solution. But, as the five-step process described above demonstrates, defenders are not the cause. Rights talk atomizes society and impedes progressive change Butler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) Robin West has described the critique of rights as “one of the most vibrant, important, counterintuitive, challenging set of ideas that emerged from the legal academy over the course of the last quarter of the twentieth century.”51 Many of these ideas were articulated as part of the critical legal studies movement that began in the 1980s.52 In a seminal 1984 article, Mark Tushnet described rights as unstable, indeterminate, overly abstract, and politically harmful to the Left.53 The critique of rights was intended as an “act of creative destruction that may help us build societies that transcend the failures of capitalism.”54 The critique of rights has evolved to many sets of critiques.55 One description on a website curated by a group of legal theorists who teach or have taught at Harvard Law School summarizes five basic elements: (1) The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume. (2) Legal rights are in fact indeterminate and incoherent. (3) The use of rights discourse stunts human imagination and mystifies people about how law really works. (4) At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection. (5) Rights discourse can actually impede progressive movement for genuine democracy and justice.56 Most of the critiques make the claim that rights are indeterminate. The proposition is that “the law is not a fixed and determined system, but rather an unruly miscellany of various, multifaceted, contradictory practices, altering from time to time and from context to context as different facets of law are privileged or suppressed.”57 Robin West describes the indeterminacy thesis as meaning that “the articulation of an interest as a ‘right’ by no means creates an unmoveable bulwark against change, interference, or recalibration of the protection of the various interests . . . toward which it so desperately strives.”58 Rights are indeterminate because they are too abstract to be useful in deciding particular cases, or because they conflict with other rights. When social progress occurs after a right is declared, it is because of the social and political context in which the right is declared rather than the right itself. Most critiques also claim that rights are regressive. Winning a “right” in a court case either has no connection to advancing a political goal, or actually impedes political goals.59 Gary Peller, for example, faults rights discourse for constituting “a narrative of legitimation, a language for concluding that particular social practices are fair because they are objective and unbiased.”60 Rights impede progressive change because they divert attention and resources away from material deprivations, and, according to some theorists, because rights are individual, rather than about the welfare of groups.61This legitimizes structures of injustice, racism, and dehumanization and turns case.West 11 West, Robin L, Georgetown University Law Center "Tragic Rights: The Rights Critique in the Age of Obama." Wm. and Mary L. Rev. 53 (2011): 713.Rights harm us, according to the Bill of Particulars put forward by the rights critics of the 1980s, in three distinct ways. First, even apparently liberating rights that seemingly expand the sphere of individual liberty also subordinate, at least according to the first and perhaps the most important of the rights critics' charges. Rights to privacy protect not only private decision making against the prying and moralistic eye of the state but also, even if inadvertently or indirectly, private subordination of vulnerable family members.' Rights to liberty of contract protect private choices of individuals but also the economic subordination of laborers by employers," and rights to speech protect ideas but also, arguably, pornography and private verbal, racial, or sexual harassment.' Whatever else rights do, Horwitz, Tushnet, MacKinnon, and other critics argued, rights that protect spheres of privacy, liberty, or autonomy against state intervention also, and by virtue of that protection, facilitate the subordination of the weak by the strong, within whatever spheres of insularity, entitlement, and nonintervention from the government the particular right in question creates. Thus, the first charge: rights subordinate. Second, by protecting against particularized but well-defined sorts of unfair relations in the private realm, even those rights that do operate to specify limits on a generalized liberty in the interest of equality—such as limits on our liberty to intentionally discrimi-nate—also run the risk of legitimizing the larger unjust social world within which those particularized moments of injustice are framed. The censure of the intentional discriminator, and our right to be free of him, for example, legitimates not only structural or unintentional racism but also an unjust classism. Our condemnation of the errors in an error-ridden meritocracy legitimates the unjust stinginess of the ways we construct merit and blame, and even a purified and idealized meritocracy legitimates our nonresponsiveness to human need.' Miranda rights, critics argued, and more largely procedural protections in the criminal justice system, legitimate not only on-going interrogation abuses that they only partially address but an overly punitive and blatantly racist system of excessive incarcera-tion as well." The targeting of gender-based "stereotypes" so as to free the nonconforming woman legitimate the belittling and cramped opportunities that attach to voluntarily assumed tradi-tional gender roles." Attempts to secure rights to a "minimum wage" render all the more difficult attempts to ensure a livable family wage—and so on.' Rights harm, then, not only because of the subordination they protect and valorize but also because they distract our critical gaze, thereby legitimating larger injustices. In brief, rights legitimate.' Lastly, critics argued, rights alienate, even those rights that seemingly empower the weakest of us in a hostile world. They alien-ate us from the dreaded other from whom they claim to protect us," from our communities,' and from a recognition of even the possibil-ity of unmediated human connection.' Rights do have a function: they facilitate essential trade between withdrawn selves, as elu-cidated by Peter Gabel's artful description of us as deeply and paranoically fearful of others, the state, and human community." But by so doing, rights intensify the very withdrawal from human life to which they then offer their poison pill as a necessary reme-diation. In short: rights alienate. The alternative is to understand criminal procedure as bureaucratic control rather than justice – it’s a prerequisite to social changeTushnet and Jaff 86 – Mark Tushnet Professor of Law, Georgetown University Law Center. and Jennifer Jaff, Instructor in Law, University of Miami Law School. (“Critical Legal Studies and Criminal Procedure,” 35 Cath. U. L. Rev. 361 (1986). )The problem of controlling discretion can be reconceptualized in a critical way-critical because we can rethink the nature of the system of criminal procedure as a whole.8 Instead of seeing efforts to control discretion as efforts to protect the citizenry from abuse, we can view them as efforts by bureaucratic superiors, such as police chiefs, head prosecutors, and appellate judges, to assert control over the activities of their subordinates.8 2 Sometimes this control will have the incidental effect of protecting the citizenry from abuse, but that is not the primary purpose of the effort. Viewed in this manner, criminal procedure is an exercise in the assertion of power-not the power of enforcing officials against the citizenry, but the power of bureaucratic superiors against their subordinates.? There are a number of advantages to this perspective. First, it brings into view many activities of enforcement officials that we usually do not consider part of criminal procedure."s On the most elementary level, it allows us to talk about different modes of asserting control over subordinates. Rules developed by appellate courts are not the only way to assert control, and may not be the best way. Thus, we can talk about the development of rules by the enforcement agencies themselves, such as police guidelines on the conduct of line-ups or head prosecutors' guidelines on charging decisions. These internal rules are certain to be more detailed than the essentially nonexistent constraints that the courts will enforce.84? Another example may be worth mentioning. Appellate law has almost nothing to say about the unique position of public defenders in relation to plea negotiation, even though a large percentage of criminal cases are handled by public defenders."5 One would not be surprised to find that public defenders have internal office policies on the conduct of plea negotiations, or norms communicated through formal training or informal conversations.8 6 These policies belie the theme of the superior trying to guard against adverse public reaction to the plea process in general. Once these aspects of the activities of the plea process are brought into view, appellate law can be seen as a similar effort to control the behavior of subordinates. Cases that may be an example are those in which effective assistance of counsel is the operative standard for evaluation of voluntariness.8 7? Another part of enforcement activity that this perspective brings into view is the presence and influence of unions, and of the organized bar. One of the constraints that superiors face is the organized political power of their subordinates. 88 Typically, the subordinates think of themselves as the best judges of how discretion should be exercised in the infinitely varying daily circumstances that they face.8 9 One would suppose that line officers in police departments, prosecutors' offices, public defenders' offices, and courts routinely hold self-images that emphasize all the good things about discretion. Organized as a political force, line officers will inevitably resist efforts by their superiors to assert control over the exercise of their discretion, and they will have cogent arguments to explain why that resistance serves the goals of sound public policy. 9? This perspective could have a significant effect on many traditional doctrines. For example, if rules of criminal procedure are to be seen primarily as efforts by superiors to assert control over subordinates, then it might make sense to distinguish among enforcement agencies according to the degree to which such control is successfully asserted.9? " The courts might enforce stringent rules of search and seizure against departments that provided no training or inadequate training to their officers, but might allow departments with extensive training programs to develop their own rules. The general idea is that judicially developed standards are substitutes for internally developed ones. Thus, where the goal of controlling discretion is reached by bureaucratic superiors pursuing their own goals of asserting power over subordinates, there is no special need for the internal rules to be supplemented by external ones.? One could play out this approach across the board, or at least as far as any other approach allows. For present purposes, however, it is more important to explain why this perspective may be characterized as critical. By emphasizing the role of rules of criminal procedure as devices by which bureaucratic superiors attempt to assert their power over subordinates, the approach allows us to rethink the nature of the system of criminal procedure as a whole. This approach assumes that enforcement agencies are bureau-cracies in which superiors need to control the discretion exercised by subordinates. It simply attempts to ascertain the implications of having bureaucratic enforcement agencies handle such important matters as law enforcement, plea bargaining, and so on. Because law enforcement agencies are, after all, just that type of bureaucracy, this is a perfectly natural way of talking about those agencies. However, since this approach brings the bureaucratic character of law enforcement to the surface, it allows us to question the necessity of using a bureaucracy to administer justice. The K is prior—The aff’s conception of law ignores its everyday effects, and any connections it makes with the social field are made indeterminate.Gordon ’12 (Robert W. Gordon, Professor of Law, Stanford University; Chancellor Kent Professor of Law and Legal History, Emeritus, Yale University, “’Critical Legal Histories Revisited’: A Response,” Law and Social Inquiry, Journal of the American Bar Foundation, Volume 37, Issue 1, 200–215, Winter 2012, ) LADIDS Whether “law” is leading or “lagging,” it is pictured in narratives of modernization as something related to, but separate from, the larger processes of social change: a secondary specialized subsystem of society, being worked on by social change and working back on it. Of course, nobody could deny that much of what we call law and legal systems are specialized activities taking place in specialized institutions (courts, administrative agencies, legislatures, etc.) populated by specialized social actors (lawyers, judges, and other of?cials). But the distinctive and specialized institutions, enactments, procedures, and of?cials that we call “the legal system” hardly account for most of the ways in which law and legal norms work their way into everyday consciousness and social processes. So another purpose of this piece was to try to capture, as many legal sociologists, anthropologists, and historians have tried to do, an alternative way of thinking about law-society relations from that of an autonomous (or “relatively autonomous”) legal system interacting with a larger social system so as to manage or facilitate or regulate that social system’s affairs. EF describes a relationship between two spheres of social life, the big sphere of society (the economy, family life, technological and demographic change, contests for political power, etc.) and the smaller dependent sphere of the legal system. But one cannot describe the social sphere independently of its constitutive legal elements, such as property rights and contracts and the expectation of routine legal enforcement and legally permitted self-help enforcement (which allows my private security force to enforce my rules on my property with lethal force if needed, or, as a condition of going to work for me or buying my product, allows me to require you to sign a contract that deprives you of any effective remedy for its violation) is much more than the activities of the of?cial legal system. Asked to describe the key economic order of modernity, “capitalism,” people usually come up with phrases like “freely marketable or transferable by gift or inheritance property rights” or “formally free labor.” But these aren’t simply legal rules and regimes that facilitate capitalism; they are capitalism, or key elements of it, anyway. So an alternative conception to functionalism has over the years come to be called—rather mystifyingly and not always helpfully—a “constitutive” theory of law society relations, or a “mutually constitutive” theory: law (partially) constitutes society and society constitutes law. Property, contract, company, slave, employee, nation-state, illegal immigrant, criminal, husband, wife, adopted child, creditor, bankrupt—these are all legal concepts, but also lived social realities and identities. The third piece of the critique of EF was that the connections hypothesized between “legal” and “social” change, even when they were not partly tautological (as in “law facilitated the rise of capitalism”), could not be strong causal links because the “law” in the dominant legal-social accounts was too underspeci?ed and indeterminate to entail any de?nite set of social consequences. Saying things like “the negligence principle” or “property rights in land” were preconditions to, or even just very favorable legal environments for, economic growth, ignored the basic insight of Legal Realism—the myriad ways in which legal doctrines can be interpreted and differentially applied or ignored or worked around or resisted on the way to enforcement. There are respects in which it is equally valid to say “the American legal system laid the foundation for economic growth by creating enforceable property rights” and “the American legal system laid the foundation of economic growth by destroying preexisting property rights” (e.g., by allowing slaveowners to extinguish property in labor and colonizers to steal Indian titles, enclosers to eliminate use-rights in commons, canal and railroad developers to cut rights of way through farmland, squatters to acquire title from absentee owners). Comparative legal-social history, moreover, usually revealed many alternative legal paths to modernity, as well as variant types of modernity.T Abolish = All (Not Just Undocumented)Interpretation:Abolish requires a complete end Webster 17 ()to end the observance or effect of (something, such as a law) : to completely do away with (something) : annul. abolish a law.Violation: a) The plan defends only in the case of undocumented. That includes plans that do not abolish. b) The plan includes judicial replacement – that is extra topical since it goes beyond the scope of abolition. Extra topicality explodes the topic by allowing added planks to the plan – they could read “end plea bargaining, and replace it with single payer health insurance”Standards: 1) Limits –ur interp justifies a new set of plans that carve out specific types of pleas, which negative prep won’t apply to. Generics create shallow debating – nuanced research and depth maximize debate’s educational potential. 2) Ground – small plans skirt core disads and counterplans. The negative is already reactionary, predictable links are the key to fair negative preparation. Voters:1) Fairness – its an axiomatic principle of the game and a prerequisite to substantive evaluation.2) Education – debate is an educational activity with productive potential. Its best to preserve this.8 HW SM Aff StockAdvantage 1 DiscretionSessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power.Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735 First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, n28 including the right to redress sentencing errors that have not yet occurred. n29 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n32 on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n42 Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire criminal justice system.Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012 What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.This results in cycles of criminalization that results in dehumanization and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Interpedently, rights violations results in rampant totalitarianism and an inability to critique power. Inga Ivsan, University of Miami School of Law & Philip E. Heckerling Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. (2017)Plea bargaining is not necessarily bad in and of itself, but its extreme overuse raises concerns about the U.S. criminal justice system.7 The pleabargaining process does not afford any constitutional or ethical protections.' For example, suppose police obtain evidence illegally, without a warrant. Prosecutors would prefer to keep a case built on warrantless evidence out of court rather than have the illegal police conduct exposed at trial. 9 A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.'o Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on questionable evidence, and accepts a lesser punishment in exchange for sacrificing the defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the subjects of bargaining and barter."" The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had indeed incorporated it into the Sixth Amendment.12 While plea bargains originally were used as a practical compromise between an overburdened prosecutor and a defendant of certain guilt, modernday plea bargains resemble one-sided contracts of adhesion 3 favoring a prosecutor too often holding insufficient evidence14 gainst a criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being sentenced to purgatory under current sen- tencing guidelines." A rational defendant, particularly in federal court, cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking additional charges' 6 and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size of the financial loss without any requirement that the defendant be found to have intended the loss.' 7 On average, the defendant who turns down a plea offer and is later convicted receives a sentence three times longer than under a plea agreement." Combined with a growing list of vague and poorly drafted statutes defining various crimes, prosecutors can target individuals and coerce them into plea bargains by promising to drop charges against family members' 9 and freezing assets.20 By punishing the defendant with a sentence three times longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary" and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v. United States.2 ' While acknowledging the utility or impossibility of getting rid of plea bargains in the modem criminal justice system, this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors when coupled with incredibly long sentences for those who risk conviction at trial, especially in complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial legal system. First conceived as a convenient procedural tool of expediency, modem plea bargain practice has supplanted trials altogether, severely punishing those few who dare exercise their Sixth Amendment right to trial.2 2 This article proposes a practical solution, one borrowed from the business world, to restore parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in which the government has absolute, unfettered discretion to selectively punish anyone and every- one.23 Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize government power at the expense of individual rights.24 The government enjoyed immense discretion to apply vaguely-written laws to political opponents and other disfavored individuals. 25 Even today, countries such as Iran continue to exploit such prosecutorial mechanisms to suppress freedom of discourse.2 6 The sad irony is that, while the United States may have won the Cold War, its legal institutions have gravitated toward resembling the inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modem American society can possibly know all of his or her individual legal obligations. For example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print.27 With over 5,000 federal criminal laws on the books, one legal scholar has determined that the average person unknowingly commits three felonies every day. 28 Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers, among other white-collar professionals, often operate in perpetual fear of the regulation state. Should their behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of justice or conspiracy, to threaten in order to gain cooperation.2 9 Thus, under the current system of plea bargaining, the adversary legal system is being severely undermined and an innocent individual is sacrificed for the pretense of the public good and its insatiable need to regulate every aspect of individual life. As the hero in Arthur Koestler's Stalinist critique novel Darkness at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind."3 0Advantage 2 Legitimacy Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. NOVEMBER 21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.2 million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the 2nd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.Perception that court decisions are done through back room deals tanks legitimacy. Stephanos Bibas. 2006 Associate Professor, University of Iowa College of Law; Visiting Associate Professor, University of Chicago Law School; Professordesignate, University of Pennsylvania Law School; former Assistant U.S. Attorney, Criminal Division, U.S. Attorney's Office for the Southern District of New York. B.A., Columbia University; B.A. and M.A., University of Oxford; J.D., Yale Law School NEW YORK UNIVERSITY LAW REVIEW VOLUME 81 JUNE 2006 NUMBER 3 / SMToday, however, criminal justice is the province of professionals. A gulf divides the knowledgeable, powerful participants inside American criminal justice from the poorly informed, powerless people outside of it. The insiders-the judges, prosecutors, police, and defense counsel who regularly handle criminal cases-are professional repeat players who dominate criminal justice. They come to know the kinds of crimes, defendants, and sentences that dominate the justice system. They understand the intricate, technical rules that regulate arrests, searches and seizures, interrogations, discovery, evidence, and sentencing, as well as the going rates in plea bargaining. In short, they are knowledgeable. Insiders control the levers of power, deciding which cases to charge, which crimes and defendants should receive probation, and what prison sentences are appropriate. They reach many of these decisions in private negotiating rooms and conference calls; in-court proceedings are mere formalities that confirm these decisions. In an earlier era, lay juries and the litigants themselves called many of these shots at public trials. In a world in which plea bargaining resolves almost 95% of cases,1 however, professionals (especially lawyers) run the show. 1 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 426-27 tbl.5.24 (2004), available at http:// albany.edu/sourcebook/pdf/t524.pdf (reporting that in fiscal year 2003, 95.4% of criminal defendants in federal district court whose cases were not dismissed pleaded guilty or no-contest); id. at 450 tbl.5.46, available at t546.pdf (reporting that in 2000, 95% of state felony convictions resulted from guilty pleas). These figures exemplify a trend in recent decades away from trials and toward pleas. As recently as 1990, only 83.7% of federal criminal defendants whose cases were not dismissed pleaded guilty or no-contest. Id. at 423 tbl.5.22, available at sourcebook/pdf/t522.pdf (displaying increasing proportion of pleas and decreasing proportion of trials since 1970s); see also BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1994, at 486 tbl.5.49 (1995), available at (reporting that in 1992, 92% of state felony convictions resulted from guilty pleas). While not all guilty pleas result from plea bargains, most felony guilty pleas do. HERBERT S. MILLER ET AL., U.S. DEP'T Reprinted with Permission of New York University School of Law [Vol. 81:911 TRANSPARENCY IN CRIMINAL PROCEDURE Insiders also have a distinct set of incentives and practical concerns. While they may share the public's intuitions about justice and retribution, they also have self-interests in disposing of large caseloads quickly, reducing their own workloads, rewarding cooperative behavior, and ensuring certainty of conviction and sentence at the cost of severity. Dealing face-to-face with offenders, they may develop sympathy and see individualized mitigating and aggravating factors that the public does not. There is also some evidence that insiders mellow with time, perhaps because repeated exposure dulls outrage and makes some crimes seem less heinous.2 Outsiders, namely the general public and many victims, have a very different perspective. To them, the criminal justice system seems opaque, hidden behind closed doors, and cloaked in jargon, technicalities, and euphemism. Public information about criminal justice is notoriously inaccurate and outdated, derived from television and movies in which trials are worlds away from the reality of plea bargaining. Outsiders have few ways to learn about, let alone participate in, the progress of most pending cases unless a newspaper publishes a verdict or sentence after the fact. Instead of participating in jury trials, the public must rely on sensationalist and often distorted media accounts of atypical, high-profile cases, from which citizens overgeneralize about the system as a whole. Politicians seize on these salient examples to whip up popular outrage at what may be an aberration rather than a trend. Thus, surveys show that outsiders consistently underestimate the average nominal sentences for particular crimes and so believe they need to be stiffened. In addition, outsiders do not share insiders' agency costs, their aversion to risking acquittals, and their jadedness or mellowing over time.3 The result is an enduring tension between self-interested insiders and excluded outsiders. The insiders have firsthand knowledge and understanding, run the show, and accommodate their own pragmatic concerns and self-interests. The outsiders find criminal justice opaque, run by lawyers, and more concerned with efficiency and technicalities than with justice. This tension is far from an absolute dichotomy. Insiders bring their senses of justice to bear and not just their self-interests, and outsiders can at least dimly see some of the practical constraints on insiders. Moreover, outsiders are not by nature more harsh or punitive. When surveyed in the abstract, outsiders say they believe the OF JUSTICE, PLEA BARGAINING IN THE UNITED STATES 17 (1978) (basing this finding on field research). 2 See infra note 30 and accompanying text. 3 See infra Part I.C. Reprinted with Permission of New York University School of Law June 2006] NEW YORK UNIVERSITY LAW REVIEW criminal justice system is too lenient. But when confronted with detailed cases, the public is often no more punitive than insiders,4 apart from the jading or mellowing process mentioned earlier. On average, however, insiders are more concerned with and informed about practical constraints, and they are comfortable with the trade-offs and the system that they themselves run. Outsiders, knowing and caring less about practical obstacles and insiders' interests, focus on process values and offenders' just deserts. The gap in information, participation, and self-interests causes insiders' and outsiders' views to diverge. While victims and the public expect police and prosecutors to represent their interests in a sense, each group has a markedly different perspective. A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 1923 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan TextThe Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” 26 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."2 With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.2 " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. 2 History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.FrameworkRights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.182? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'85A focus on purely intent based frameworks crush our ability to respond to violence. McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo(Martha, “How the "Unintended Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi: dx.doi:10.15779/Z381664)By similarly making structures of inequality appear beyond the reach of law reform, the "unintended consequences" message helps update and reinforce the narrowing of protections against intentional racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and in what form and to whom. Power is centrally about being able to act without having to take harm to others into account. This power to gain by harming others is strongest when it operates through systems and structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the "unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice requires careful attention to both harmful intent and to complex harmful effects. But the concept of "unintended consequences" inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that message promotes the theme that those who have power to ignore their harmful effects on others need not-indeed should not-be induced by law to care about this harm, because this caring is what is harmful. One right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites should reject stories of "unintended consequences" and instead scrutinize the power and laws that have so effectively achieved the intention of making devastating losses to so many of us seem natural, inevitable, and beneficial.8 HW SM Neg AgambenIn Moulmein, in Lower Burma, I was hated by large numbers of people — the only time in my life that I have been important enough for this to happen to me. I was sub-divisional police officer of the town, and in an aimless, petty kind of way anti-European feeling was very bitter. No one had the guts to raise a riot, but if a European woman went through the bazaars alone somebody would probably spit betel juice over her dress. As a police officer I was an obvious target and was baited whenever it seemed safe to do so. When a nimble Burman tripped me up on the football field and the referee (another Burman) looked the other way, the crowd yelled with hideous laughter. This happened more than once. In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. The young Buddhist priests were the worst of all. There were several thousands of them in the town and none of them seemed to have anything to do except stand on street corners and jeer at Europeans.All this was perplexing and upsetting. For at that time I had already made up my mind that imperialism was an evil thing and the sooner I chucked up my job and got out of it the better. Theoretically — and secretly, of course — I was all for the Burmese and all against their oppressors, the British. As for the job I was doing, I hated it more bitterly than I can perhaps make clear. In a job like that you see the dirty work of Empire at close quarters. The wretched prisoners huddling in the stinking cages of the lock-ups, the grey, cowed faces of the long-term convicts, the scarred buttocks of the men who had been flogged with bamboos — all these oppressed me with an intolerable sense of guilt. But I could get nothing into perspective. I was young and ill-educated and I had had to think out my problems in the utter silence that is imposed on every Englishman in the East. I did not even know that the British Empire is dying, still less did I know that it is a great deal better than the younger empires that are going to supplant it. All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny, as something clamped down, in saecula saeculorum, upon the will of prostrate peoples; with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. Feelings like these are the normal by-products of imperialism; ask any Anglo-Indian official, if you can catch him off duty.One day something happened which in a roundabout way was enlightening. It was a tiny incident in itself, but it gave me a better glimpse than I had had before of the real nature of imperialism — the real motives for which despotic governments act. Early one morning the sub-inspector at a police station the other end of the town rang me up on the phone and said that an elephant was ravaging the bazaar. Would I please come and do something about it? I did not know what I could do, but I wanted to see what was happening and I got on to a pony and started out. I took my rifle, an old .44 Winchester and much too small to kill an elephant, but I thought the noise might be useful in terrorem. Various Burmans stopped me on the way and told me about the elephant's doings. It was not, of course, a wild elephant, but a tame one which had gone ‘must’. It had been chained up, as tame elephants always are when their attack of ‘must’ is due, but on the previous night it had broken its chain and escaped. Its mahout, the only person who could manage it when it was in that state, had set out in pursuit, but had taken the wrong direction and was now twelve hours’ journey away, and in the morning the elephant had suddenly reappeared in the town. The Burmese population had no weapons and were quite helpless against it. It had already destroyed somebody's bamboo hut, killed a cow and raided some fruit-stalls and devoured the stock; also it had met the municipal rubbish van and, when the driver jumped out and took to his heels, had turned the van over and inflicted violences upon it.The Burmese sub-inspector and some Indian constables were waiting for me in the quarter where the elephant had been seen. It was a very poor quarter, a labyrinth of squalid bamboo huts, thatched with palmleaf, winding all over a steep hillside. I remember that it was a cloudy, stuffy morning at the beginning of the rains. We began questioning the people as to where the elephant had gone and, as usual, failed to get any definite information. That is invariably the case in the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes. Some of the people said that the elephant had gone in one direction, some said that he had gone in another, some professed not even to have heard of any elephant. I had almost made up my mind that the whole story was a pack of lies, when we heard yells a little distance away. There was a loud, scandalized cry of ‘Go away, child! Go away this instant!’ and an old woman with a switch in her hand came round the corner of a hut, violently shooing away a crowd of naked children. Some more women followed, clicking their tongues and exclaiming; evidently there was something that the children ought not to have seen. I rounded the hut and saw a man's dead body sprawling in the mud. He was an Indian, a black Dravidian coolie, almost naked, and he could not have been dead many minutes. The people said that the elephant had come suddenly upon him round the corner of the hut, caught him with its trunk, put its foot on his back and ground him into the earth. This was the rainy season and the ground was soft, and his face had scored a trench a foot deep and a couple of yards long. He was lying on his belly with arms crucified and head sharply twisted to one side. His face was coated with mud, the eyes wide open, the teeth bared and grinning with an expression of unendurable agony. (Never tell me, by the way, that the dead look peaceful. Most of the corpses I have seen looked devilish.) The friction of the great beast's foot had stripped the skin from his back as neatly as one skins a rabbit. As soon as I saw the dead man I sent an orderly to a friend's house nearby to borrow an elephant rifle. I had already sent back the pony, not wanting it to go mad with fright and throw me if it smelt the elephant.The orderly came back in a few minutes with a rifle and five cartridges, and meanwhile some Burmans had arrived and told us that the elephant was in the paddy fields below, only a few hundred yards away. As I started forward practically the whole population of the quarter flocked out of the houses and followed me. They had seen the rifle and were all shouting excitedly that I was going to shoot the elephant. They had not shown much interest in the elephant when he was merely ravaging their homes, but it was different now that he was going to be shot. It was a bit of fun to them, as it would be to an English crowd; besides they wanted the meat. It made me vaguely uneasy. I had no intention of shooting the elephant — I had merely sent for the rifle to defend myself if necessary — and it is always unnerving to have a crowd following you. I marched down the hill, looking and feeling a fool, with the rifle over my shoulder and an ever-growing army of people jostling at my heels. At the bottom, when you got away from the huts, there was a metalled road and beyond that a miry waste of paddy fields a thousand yards across, not yet ploughed but soggy from the first rains and dotted with coarse grass. The elephant was standing eight yards from the road, his left side towards us. He took not the slightest notice of the crowd's approach. He was tearing up bunches of grass, beating them against his knees to clean them and stuffing them into his mouth.I had halted on the road. As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant — it is comparable to destroying a huge and costly piece of machinery — and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow. I thought then and I think now that his attack of ‘must’ was already passing off; in which case he would merely wander harmlessly about until the mahout came back and caught him. Moreover, I did not in the least want to shoot him. I decided that I would watch him for a little while to make sure that he did not turn savage again, and then go home.But at that moment I glanced round at the crowd that had followed me. It was an immense crowd, two thousand at the least and growing every minute. It blocked the road for a long distance on either side. I looked at the sea of yellow faces above the garish clothes-faces all happy and excited over this bit of fun, all certain that the elephant was going to be shot. They were watching me as they would watch a conjurer about to perform a trick. They did not like me, but with the magical rifle in my hands I was momentarily worth watching. And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly. And it was at this moment, as I stood there with the rifle in my hands, that I first grasped the hollowness, the futility of the white man's dominion in the East. Here was I, the white man with his gun, standing in front of the unarmed native crowd — seemingly the leading actor of the piece; but in reality I was only an absurd puppet pushed to and fro by the will of those yellow faces behind. I perceived in this moment that when the white man turns tyrant it is his own freedom that he destroys. He becomes a sort of hollow, posing dummy, the conventionalized figure of a sahib. For it is the condition of his rule that he shall spend his life in trying to impress the ‘natives’, and so in every crisis he has got to do what the ‘natives’ expect of him. He wears a mask, and his face grows to fit it. I had got to shoot the elephant. I had committed myself to doing it when I sent for the rifle. A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing — no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at.But I did not want to shoot the elephant. I watched him beating his bunch of grass against his knees, with that preoccupied grandmotherly air that elephants have. It seemed to me that it would be murder to shoot him. At that age I was not squeamish about killing animals, but I had never shot an elephant and never wanted to. (Somehow it always seems worse to kill a large animal.) Besides, there was the beast's owner to be considered. Alive, the elephant was worth at least a hundred pounds; dead, he would only be worth the value of his tusks, five pounds, possibly. But I had got to act quickly. I turned to some experienced-looking Burmans who had been there when we arrived, and asked them how the elephant had been behaving. They all said the same thing: he took no notice of you if you left him alone, but he might charge if you went too close to him.It was perfectly clear to me what I ought to do. I ought to walk up to within, say, twenty-five yards of the elephant and test his behavior. If he charged, I could shoot; if he took no notice of me, it would be safe to leave him until the mahout came back. But also I knew that I was going to do no such thing. I was a poor shot with a rifle and the ground was soft mud into which one would sink at every step. If the elephant charged and I missed him, I should have about as much chance as a toad under a steam-roller. But even then I was not thinking particularly of my own skin, only of the watchful yellow faces behind. For at that moment, with the crowd watching me, I was not afraid in the ordinary sense, as I would have been if I had been alone. A white man mustn't be frightened in front of ‘natives’; and so, in general, he isn't frightened. The sole thought in my mind was that if anything went wrong those two thousand Burmans would see me pursued, caught, trampled on and reduced to a grinning corpse like that Indian up the hill. And if that happened it was quite probable that some of them would laugh. That would never do.There was only one alternative. I shoved the cartridges into the magazine and lay down on the road to get a better aim. The crowd grew very still, and a deep, low, happy sigh, as of people who see the theatre curtain go up at last, breathed from innumerable throats. They were going to have their bit of fun after all. The rifle was a beautiful German thing with cross-hair sights. I did not then know that in shooting an elephant one would shoot to cut an imaginary bar running from ear-hole to ear-hole. I ought, therefore, as the elephant was sideways on, to have aimed straight at his ear-hole, actually I aimed several inches in front of this, thinking the brain would be further forward.When I pulled the trigger I did not hear the bang or feel the kick — one never does when a shot goes home — but I heard the devilish roar of glee that went up from the crowd. In that instant, in too short a time, one would have thought, even for the bullet to get there, a mysterious, terrible change had come over the elephant. He neither stirred nor fell, but every line of his body had altered. He looked suddenly stricken, shrunken, immensely old, as though the frightful impact of the bullet had paralysed him without knocking him down. At last, after what seemed a long time — it might have been five seconds, I dare say — he sagged flabbily to his knees. His mouth slobbered. An enormous senility seemed to have settled upon him. One could have imagined him thousands of years old. I fired again into the same spot. At the second shot he did not collapse but climbed with desperate slowness to his feet and stood weakly upright, with legs sagging and head drooping. I fired a third time. That was the shot that did for him. You could see the agony of it jolt his whole body and knock the last remnant of strength from his legs. But in falling he seemed for a moment to rise, for as his hind legs collapsed beneath him he seemed to tower upward like a huge rock toppling, his trunk reaching skyward like a tree. He trumpeted, for the first and only time. And then down he came, his belly towards me, with a crash that seemed to shake the ground even where I lay.I got up. The Burmans were already racing past me across the mud. It was obvious that the elephant would never rise again, but he was not dead. He was breathing very rhythmically with long rattling gasps, his great mound of a side painfully rising and falling. His mouth was wide open — I could see far down into caverns of pale pink throat. I waited a long time for him to die, but his breathing did not weaken. Finally I fired my two remaining shots into the spot where I thought his heart must be. The thick blood welled out of him like red velvet, but still he did not die. His body did not even jerk when the shots hit him, the tortured breathing continued without a pause. He was dying, very slowly and in great agony, but in some world remote from me where not even a bullet could damage him further. I felt that I had got to put an end to that dreadful noise. It seemed dreadful to see the great beast Lying there, powerless to move and yet powerless to die, and not even to be able to finish him. I sent back for my small rifle and poured shot after shot into his heart and down his throat. They seemed to make no impression. The tortured gasps continued as steadily as the ticking of a clock.In the end I could not stand it any longer and went away. I heard later that it took him half an hour to die. Burmans were bringing dash and baskets even before I left, and I was told they had stripped his body almost to the bones by the afternoon.Afterwards, of course, there were endless discussions about the shooting of the elephant. The owner was furious, but he was only an Indian and could do nothing. Besides, legally I had done the right thing, for a mad elephant has to be killed, like a mad dog, if its owner fails to control it. Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. Criminal justice reform efforts ignore culture and ideology by portraying miscarriages of justice as “accidents” when in reality they are features of the system. Perceived inevitability of the existing legal order is a disciplinary tactic Doyle, JD/LLM, 16(James M., Of Counsel, Bassil, Klovee, & Budreau, ORWELL'S ELEPHANT AND THE ETIOLOGY OF WRONGFUL CONVICTIONS Albany Law Review 2015 / 2016 Albany Law Review 79 Alb. L. Rev. 895)Criminal justice reform is having its moment. The gatekeepers around the public square - the editors, the publishers, the producers, the bloggers, and the "most-followed" social media posters - have decided to grant criminal justice issues some attention. In the accompanying wave of punditry familiar facts are treated as discoveries. The system's impacts are racially biased. n2 The innocent are often convicted. n3 Unwarranted law enforcement violence is common. n4 Legions of unnecessary prisoners fill our prisons. n5 Chronic mental illness has been effectively criminalized. n6 [*896] This media moment will fade; these media moments always do fade. Can something useful be left behind? The criminal justice system is a target-rich environment for empirical study. Many factors await data-oriented examination in (and around) our courtrooms, and it seems natural to seize this opening to mobilize evidence-based inquiries analyzing a range of specific questions. As Michael Jacobson has noted, criminal justice policy is "a field that over the last several decades has been almost immune to evidence and knowledge in the face of its overwhelming politicization." n7 Perhaps in this new atmosphere we are ready to learn the lessons that the data teach. Still, any exclusively data-oriented approach to wrongful convictions will face challenges as a remedial tool where preventing wrongful convictions is concerned. No individual evidence-based exploration of the criminal justice system is likely to minimize the frequency of miscarriages of justice unless it takes place within a general etiology of wrongful conviction that recognizes the reciprocal impacts of the system's components - including its human components - on each other, and the impact on those system components of their surrounding environment. The potential implications of that general etiology - that is, of the manner of causation of criminal justice system errors - are overlooked issues. A version of such an etiology is available for adaptation. n8 Safety experts in aviation, medicine, and other high-risk fields would argue that, like the Challenger launch decision, n9 a "wrong patient" surgery, n10 or the Chernobyl meltdown, n11 wrongful convictions are [*897] system n12 errors: "organizational accidents." n13 In this conception, miscarriages of justice are not single-cause events but, rather, result from discrete, small mistakes, none of which is independently sufficient to cause the harm that combine with each other and with latent system weaknesses, and only then cause a tragedy. Miscarriages of justice can never be fully explained by the failures of a single component or a lone operator. The right answer to the question "Who was responsible for this wrongful conviction?" is usually "Everyone involved, to one degree or another," either by making an error or by failing to anticipate or intercept someone else's error. In this view "everyone" includes actors far from the scene of the event who set the budgets, did the hiring, wrote the laws, developed the jurisprudence, and designed the incentives for the apparent culprits on the frontlines. "Everyone" includes those who created the environment in which the sharp-end actors operated. "Everyone" even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others. The hardest case for this approach is presented by the recurrent situation in which the miscarriage of justice seems to have resulted from a moral failure - often a spectacular one - on the part of an individual criminal justice actor. Even people who accept the organizational accident explanation as a general theory resist applying it to those events. For example, when a prosecutor hides exculpatory Brady n14 material, that act is a proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. n15 Disciplining the individual actor seems to be both a sufficient response and an emergency. To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded: to generate bogus extenuation where all that is required is a plain statement of culpability. The assumption, "Good man, good result," once formed the basis [*898] of medicine's attitude towards its own tragic failures. n16 Even now it characterizes much of the commentary on wrongful convictions. n17 A similar dependence on good men, n18 and therefore on reform strategies focused on the discovery, denunciation, and excision of the bad men, characterizes criminal justice reform discourse. n19 But if wrongful convictions are "organizational accidents," can disciplining and punishing an individual be enough to reduce future risk? Can we punish our way to safe verdicts? Is there a way to balance accountability for misconduct and the non-blaming, "forward-looking accountability" n20 we need in order to minimize future risk? Should we be searching for a new practice rather than a new structure? Can we develop a vehicle for holding the data-rich statistical findings and the complex individual narratives in permanent productive tension? I. A famous essay of George Orwell's, "Shooting an Elephant," focuses on an individual's moral failure: on the bad choice of an actor who zigged when he should have zagged, and who fully understood that he was doing the wrong thing as he acted. n21 Orwell's narrative might illuminate an issue implicit in the organizational accident etiology of error: is the challenge presented by wrongful convictions one best approached as protecting a presumptively safe system from amoral and incompetent people, or one of repairing an inherently vulnerable system that necessarily relies on ordinary human beings? George Orwell has been regarded as the quintessential "good man" for over half a century. To V.S. Pritchett, Orwell was "the [*899] wintry conscience of a generation." n22 Robert Conquest, the historian of Stalin's purges, n23 described Orwell as "[a] moral genius." n24 In 1922, at the age of nineteen, at loose ends after leaving Eton, and unlikely to obtain a university scholarship, Orwell passed the necessary examinations and followed his father into imperial service: in Orwell's case, into the Burma Police. n25 Reflecting on that experience he produced "Shooting an Elephant," n26 first published in New Writing in 1936. n27 "In Moulmein, in Lower Burma, I was hated by large numbers of people - the only time in my life that I have been important enough for this to happen to me," Orwell begins. n28 In an aimless, petty kind of way anti-European feeling was very bitter... . As a police officer I was an obvious target and was baited whenever it seemed safe to do so... . In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. n29 By the time of the incident he describes, Orwell had "made up [his] mind that imperialism was an evil thing and the sooner [he quit his] job ... the better." n30 "Theoretically - and secretly, of course - [he] was all for the Burmese and all against their [*900] oppressors, the British." n31 But that didn't mean Orwell's immediate situation was simple. As he explains in the essay: All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny ... with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. n32 In this state of mind Orwell is called out to deal with a rampaging elephant: a working animal that has been maddened by "must" (heat), broken its chain, and eluded its keeper. n33 Arming himself and arriving in the quarter where the elephant had been destroying everything within reach, Orwell "failed to get any definite information ... . In the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." n34 But soon he is told that the elephant has trampled an Indian coolie to death, and he is shown the corpse. n35 Followed by a growing crowd of Burmese, Orwell tracks the animal down. n36 As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant - it is comparable to destroying a huge and costly piece of machinery - and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow... . Moreover, I did not in the least want to shoot him. n37 But at that moment Orwell looks around at the Burmese who had followed him: a crowd of "two thousand" people and "growing," all - according to Orwell - "happy and excited over this bit of fun, all certain that the elephant was going to be shot." n38 This was a turning point: "And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to [*901] do it; I could feel their two thousand wills pressing me forward, irresistibly." n39 In Orwell's recounting, he zigged when he knew he should have zagged because his role required it: A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing - no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at. n40 Orwell shoots the elephant. n41 Unable to endure the sight of the animal's agonized death throes, Orwell leaves the scene while the elephant is still alive. n42 Later he learns that its body has been stripped to the bone, and that: Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. n43 In the end, the opinions of the Europeans, back in the Club, were what mattered to young Orwell. n44 II. John Thompson was convicted of murder in New Orleans in 1985. n45 After a trial where he opted not to testify, Thompson was sentenced to death and spent the next eighteen years in prison, [*902] fourteen of them on death row. n46 A few weeks before Thompson's scheduled execution in 1999, a defense investigator learned that a cancer-stricken member of the prosecution team had confessed on his deathbed to having withheld crime lab results from the defense, as well as removing a blood sample from the evidence room. n47 In addition, Thompson's defense learned that the New Orleans district attorney's office had failed to disclose that Thompson had been implicated in the murder by a person who received a reward from the victim's family, and that an eyewitness identification did not match Thompson. n48 Thompson's conviction was overturned on appeal. n49 On retrial, a jury exonerated Thompson in thirty-five minutes. n50 Reviewing Thompson's experience with Orwell's in mind suggests that the problem we face is neither people, nor systems, but, rather, people in systems. The rule that prosecutors must turn over exculpatory evidence material to guilt or punishment to defense counsel is a "best practice" that the Supreme Court held in Brady v. Maryland is also a minimum requirement of the Constitution. n51 As Thompson indicates, it is a "best practice" that is not reliably followed. n52 According to at least one noted federal judge, violations of the Brady rule are "epidemic." n53 We tend to think of the Brady violation cases as uncomplicated events: a prosecutor, driven by an excess of the All-American will to win, n54 is encouraged to go too far by the apparently total absence of [*903] accountability, and conceals exculpatory evidence. As Marvin Schechter, chairman of the criminal justice section of the New York State Bar Association and a defense attorney put it: "Prosecutors engage in misconduct because they know they can get away with it." n55 Introducing the credible threat of punishment seems to be the simple answer to this simple problem. n56 But the Brady (and other misconduct) cases are, like the episode in Shooting an Elephant, more complicated. Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream failure by the defenders to uncover the Brady violation or to compensate for its impact, n57 much remains to be explained about the prosecutors' actions. What if the Brady cases involve a problematic - but not abnormal - prosecutor who makes a faulty decision while playing, under intense pressure, the hand he has been dealt by others? What if the problem is not the will to win, but the fear of losing and exposure; not the absence of accountability, but the distorting power of a peculiarly intense, all-embracing, and acutely local accountability that eclipses well-known general constitutional norms? Safety experts in aviation, medicine, and other high risk fields find that these questions indicate that we should pivot from our focus on writing new rules - and punishing the violations of old ones - to a new focus on developing a culture of safety that has reducing future risk through continuous, collaborative, quality improvement as its goal. n58 No system can survive without sanctions for its conscious rule [*904] breakers, and advocates for "non-blaming" approaches to accountability must keep that reality in mind. n59 Still, it ought to be possible to see the young Orwells in the criminal system as potential resources, not exclusively as dangerous toxins. The most productive question could be not why prosecutors believe they can get away with cheating, but why they feel any desire to cheat in the first place. The question that the Thompson narrative raises is not whether the choices of either the District Attorney's office as an agency or the individual frontline prosecutors who hid the evidence were wrong. n60 Of course those choices were wrong. The real question is why did the mistaken choices seem to the agency and to the individuals to be good choices at the time? Or, at least, why did the mistaken choices seem from their perspectives to be the only, or "least bad" choices available. Exculpatory evidence has to be turned over. n61 Why didn't the prosecutors know this? (In fact, as the deathbed confession indicates, at least one did know it.) n62 Why, knowing that withholding the evidence was wrong (as fully as Orwell knew shooting his elephant was wrong) did they decide not to act as the Brady rule required? Safety experts reviewing "operator error" events believe that the operators' choices may have been mistaken, may have violated rules - may even have been immoral - but they were locally rational. n63 They promised to solve, at least for a moment, a pressing local problem, and the same choices will seem rational to the operators who next face the same problems unless their circumstances are changed. To understand why this can happen in a Brady exoneration case it is not enough to go "down and in" to find the broken procedural component or the rogue Assistant District Attorney. The problem [*905] cannot be fully encompassed within the character of any individual prosecutor. That prosecutor is reacting to the conventional demands within his office. And his office is reacting to pressures from the larger society. What we see in the Brady exoneration cases are choices typical of organizations and individuals reacting to the compelling pressure to provide outputs under conditions of resource scarcity. It may be disappointing but it should not be shocking that prosecutors in the wrongful conviction cases, like workers in many production processes, adopted a "covert work system." n64 They decided to evade well-known formal disclosure requirements and buried alternative narratives because they believed sharing the exculpatory facts would interfere with achieving the "real" production goals assigned to them by people to whom they were accountable, namely, superiors who demand "outputs" in the form of convictions, and, therefore, to the unpredictable lay jurors, who will require persuasion before those "outputs" can be generated. n65 Were the prosecutors so starved of resources by the city or state that they felt they could not successfully prosecute guilty violent offenders by following the rules? Had their caseloads crept up to a level where competent, thorough practice seemed impossible? Did they feel that they were so swamped that they needed to bluff Thompson into a guilty plea by withholding the evidence that might have demonstrated his innocence? n66 Did supervisory oversight slacken for the same reasons? Did tunnel vision and other cognitive biases set in? n67 Did the prosecutors feel acutely vulnerable to irresponsible media or political pressure? Or did the prosecutors believe that the police department was so under-resourced or ill-managed that no prosecutors could ever convict anyone, no matter [*906] how guilty, if they dutifully played the woeful cards the police dealt them? Were they right about that? Did the see-no-evil attitude of local trial judges and the vulnerability of overwhelmed appointed defenders encourage them? Had the prosecutors moved by small increments down the inculpatory-to-exculpatory spectrum over the years, withholding progressively more exculpatory material but seeing no negative local impacts (such as exonerations) from doing so? n68 Did they learn to tolerate ever-widening margins of error in making guilt/ innocence judgments? Had deviation from the Brady rule been "normalized"? n69 It is common to speak of the prosecutors' offices as "black boxes," a reference to their characteristic absence of transparency. n70 But it is important to remember that within that black box local norms are well-known and conveyed with great force. n71 Young prosecutors learn very early their local version of "[a] sahib has got to act like a sahib." n72 The prosecutors who figured in the high profile Brady-driven exoneration cases are not lone wolf outcasts in their offices; typically, they are the rising local stars n73 who had successfully managed the conflicts between the formal legal rules and their office culture and have been rewarded with progressively more visible and important case assignments. The prosecutors feel intensely accountable to the role requirements imposed by the [*907] culture n74 within their office. Inevitably, some prosecutors will do what workers in other fields do when confronted by the end-of-process inspections. (In this case, the inspection is provided by adversary trials.) They will develop "workarounds" that allow them to get on with their "real" job, n75 no matter what the formal rules instituted by the Supreme Court at 30,000 feet (or the Board of Bar Overseers at 10,000) require. n76 As Barbara O'Brien has demonstrated, these prosecutors, driven by criteria of outputs (not processes) and persuasion (not comprehension) find themselves in a cognitive position that degrades not only their willingness to turn over Brady material, but their ability to recognize it. n77 A Brady violation seen from this perspective is a mundane workaround; a well-traveled shortcut through a thicket of rules that if meticulously followed would frustrate the attainment of "higher" goals. n78 In fact, within the prosecutors' "black box" familiarity with these workarounds begins to seem to be the essence of veteran workmanship and professionalism. n79 Impose an improved rule without changing either the internal culture or the external demands on that culture and that new rule will be under immediate attack from its environment: new workarounds will be generated very quickly. Encapsulation in a local black box dilutes the deterrent efficacy of punitive gestures applied to other prosecutors outside the local world. n80 The disciplining of a prosecutor in Texas will have limited impact on the conduct of prosecutors in Philadelphia. The informal sanctions for violating the local "covert work rules" and then losing a trial as a consequence are immediate, personal, and public: enforced by the people in the next office. Any official sanction for withholding Brady material is - and will remain even if some novel enthusiasm for disciplining prosecutors gradually takes hold in [*908] scattered jurisdictions - theoretical. n81 Punishment is necessarily contingent on your concealment being discovered by an actually innocent defendant who insisted on a trial, an eventual official finding that the particular defendant really was innocent, that the withheld evidence was "material," and that your violation was knowing. n82 For all of the reasons that disciplinary actions against prosecutors have not become normal (to put it mildly) up until now, some skepticism about the likelihood of their multiplying any time soon is in order. III. We admire George Orwell because of his willingness to subject his own beliefs and actions to unsparing critical examination: a rare quality. This capacity of Orwell's is on full display in "Shooting an Elephant," but that essay also illuminates the limits of even Orwell's very rigorous introspective scrutiny. By focusing on his own experience and canvassing the "within-silo" reactions of his European peers while ignoring the Burmese community he was assigned to serve, Orwell misses the fundamental question underlying his choice: that is, whether it was ever sane to shoot the harmless elephant on the basis of an assumption that, "the people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly." n83 In fact, the first of the Five Precepts accepted by most strains of Buddhism is a requirement to abstain from killing either humans or animals. n84 Orwell's Buddhist crowd likely never wished to see the elephant killed, and believed the killing was wrong. The members of the crowd would not have killed the elephant, or would have been ashamed if they had killed it. But the Buddhist crowd may well have expected Orwell - or any sahib - to do something violent and stupid, and that is exactly what Orwell did, by his own account. By living down to Burmese [*909] expectations Orwell actually undermined the legitimacy of the British colonial rule he believed he was (reluctantly) acting to bolster. He showed (or confirmed) that the best that Burmese could anticipate from the British was the destructive, uncomprehending, exercise of raw power. Like Orwell and his colleagues, young frontline prosecutors in the United States operate in environments devised for them by others, and it is dangerous to ignore the fact that it is the larger American society, not the local district attorney's office, that has contrived a socially constructed reality in which a recognizably colonialist vision of the inner city exerts steady pressure on its frontline criminal justice actors. n85 The unwavering conventions of the news and entertainment media have turned the American inner city - especially the African-American inner city and the criminal justice system - into permanent Elsewheres: places where ordinary white Americans never go, largely because they feel supremely confident of what they would find if they did go. n86 Practitioners who take jobs in this distant zone share with Orwell's peers a rhetoric of isolation, service, sacrifice, burden-bearing. Both groups chose careers that "promised early autonomy in exotic surroundings." n87 Their autobiographical writings recount a disorienting plunge into a world where they struggle to find a role for the values in which they were raised. n88 Similar to the young colonial officers who were thrown into strange and foreign surroundings, a young lawyer's professional life begins "alone, ignorant, and responsible." n89 Isolation and vulnerability plague the functionaries in the courthouses - not unlike Orwell's [*910] "Kipling-haunted little clubs" n90 - and they are menaced by locals and policy-makers, by editorial boards back home or "downtown," who can wreck careers from the safety of their office desks. They feel constrained by wild legalities and utopian standards: "Young Assistant District Attorneys, like young Assistant District Commissioners in the old empires, hurriedly seize, then vehemently defend, a conventional wisdom as protection against these threats." n91 They adopt a "professional code" that sees an environment in which people are divided into collectives. n92 Indeed, instead of seeing individuals, they often see "races, types, and colors" instead. n93 Facing defendants, defenders, even (sometimes) witnesses, and communities, they gradually embrace a "rigidly binomial opposition of "ours' and "theirs.'" n94 A defendant such as John Thompson seems, as did an individual Burmese to Orwell, a featureless face in an anonymous crowd of "them." As William Stuntz put it: One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. n95 In other words, the mental world of our criminal justice practitioners has come to have something in common with that of the White Man whom Kipling extolled and Orwell exemplified. It is not a question of race. In the criminal justice system, there are whites who are not White Men, and African-Americans (and women) who are. n96 Despite the overwhelming statistical evidence of imbalance in the system's treatment of the races, its White Men in deny any racist intent. n97 Very few would ever sign on to an [*911] explicitly racist project, and most read the aggregated figures indicating wildly disparate results for the races with bewilderment and dismay: this is not what they intended. But as Edward Said observed of Orwell's imperial generation: "being a White Man was ... an idea and a reality. It involved a reasoned position towards both the white and the non-white worlds. It meant ... speaking in a certain way, behaving according to a code of regulations, and even feeling certain things and not others." n98 In the criminal justice system, as on the frontiers of empire, something like this "impersonal communal idea of being a White Man rule[s;]" it becomes "a very concrete manner of being-in-the-world, a way of taking hold of reality, language, and thought." n99 This is not a situation that frontline criminal justice practitioners can easily remedy by themselves. It is not obvious that statistical studies of their "outputs" or checklists generated from those studies will remedy it for them either. n100 This is not a situation that more training about, or tinkering with, the Brady rule will resolve. n101 The problem does not lie in our having no rule, or in the nature of the existing rule; it lies in persuading people that personally following the rule is a crucial element of their individual responsibility for a just collective outcome. This looming environment generates perpetual pressure to clear the docket and produce convictions, as well as accelerates the routine dehumanization of the people whose lives the practitioners impact so powerfully. n102 The reduction of defendants, victims, and communities into faceless crowds can allow the practice of mass incarceration to run very smoothly. n103 As bad as its consequences are in the spectacular capital felony exonerations that make news, they may be even worse in the submerged street crime dockets, where factual accuracy is treated as largely irrelevant, guilty pleas are the rule, and thousands of black lives are taken on the [*912] installment plan. n104 Orwell's experience is replayed constantly not only in the courtrooms, but also on the streets, where people, not tame elephants, pay the price. On the streets it is enacted in humiliating stops and frisks; sometimes in fatal violence. n105 Exiling or punishing one erring practitioner, or even a string of erring practitioners, will not change this environment, and the environment will envelope the next practitioner who comes along. This system is in crisis and desperately needs reform, but not because of an explicitly racist ideology. Throughout the system, in many roles, thousands of beleaguered young Orwells are trying to get through their days, doing what they believe is expected of them, with the tools at hand, oblivious to the appalling collateral damage they are inflicting. n106 The lesson that Orwell might have learned by seeking the perspective of the Burmese in his review of his action resonates with the lesson William Stuntz urged us to learn in the final paragraph of his magisterial The Collapse of American Criminal Justice: The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals' neighborhoods. Neither side of this divide is "them." Both sides are us. Democracy and justice alike depend on getting that most basic principle of human relations right. n107 The question is whether by recognizing a deeper etiology of wrongful convictions we might move in that direction. [*913] IV. If it is true as a matter of fundamental etiology that even so seemingly simple an event as a wrongful conviction after a Brady violation is actually a complex "organizational accident" implicating many contributing factors that ultimately combined and cascaded, we are in a position to capitalize on an insight mobilized by Donald Berwick, one of the pioneers of the modern patient safety movement: n108 "Every defect is a treasure." n109 The basic manner of causation of wrongful convictions argues that we should amend our standard criminal justice response to disasters, and say when one occurs, "Something to see here: don't move along." n110 The recognition that there is something to be learned from past criminal justice events has begun to gather some momentum. The National Institute of Justice, borrowing a phrase n111 from the Joint Commission on Hospital Accreditation, has launched a Sentinel Events Initiative n112 that attempts to promote the exploration of non-blaming, all-stakeholders reviews of wrongful convictions, wrongful releases, "near misses" and other meaningful incidents. n113 The National Commission on Forensic Science has recommended "Root Cause Analysis" as a standard practice in forensic laboratory error reviews. n114 The Presidential Task Force on 21st Century Policing [*914] has recommended the practice of Sentinel Event Reviews of critical events. n115 These efforts share a determination to move beyond performance reviews of individuals (including searches for "bad apples") to press for system-oriented event analyses. n116 This approach aims to avoid the tendencies of the "bad apple" disciplinary review or civil lawsuit to drive reports of significant events underground and to narrow the lense to scrutinize only the conduct of a lone individual rather than the system's various contributing weaknesses. n117 It accepts the fact that a full understanding of what went wrong is (to at least a degree) dependent on the insights from the perspective of the "second victim;" n118 for example, the nurse who was the last in the chain that delivered a fatal medication dose, or the defense lawyer who failed to intercept the Brady violation in a wrongful conviction [*915] case, or even - however much it may rankle - a prosecutor who after having been seduced the by local office culture has contributed to a Brady exoneration. The criminal justice system is an organization which, like many others, has a lot invested in its practitioners. As Sidney Dekker argues: Paying off the first victim and sending off the second denies the humanity and reality of the relationship that existed between the two victims... . Where first victims are given the impression that their lives had been entrusted to a dispensable, disposable cog in the organizational machine, what does that say about the organization's own duty ethic in relation to its patients, passengers, clients? n119 The "second victim" focus is one particular example of a general principle of analysis more or less dictated by the organizational accident etiology of error; the need for the perspectives of all of those implicated in the event. As John Chisholm (the District Attorney of Milwaukee County, Wisconsin and a N.I.J. "Sentinel Event" participant) put it: Creating a better justice system requires us to expand our definition of the critical actors involved in any event, from citizens, police, corrections, pretrial services, public defenders and the defense bar, as well as prosecutors and judges. And we have to create a process where everyone feels empowered to speak the truth about his or her role in any given event. n120 Chisholm does not mean by this that he plans to turn the running of his office or the education of his assistants over to outsiders; nor should he: outsiders are not well-equipped for the task. n121 But he does recognize the value to him, and to all criminal justice system leaders, of a new feedback loop that can draw attention to system weaknesses and begin to prepare the way for cultural change. n122 The "all stakeholders" aspect of these reviews requires not only the participation of representatives of all agencies, but also of all ranks from within the implicated "silos." n123 Elements of the foot [*916] soldiers' working environment - for example, caseloads and resource shortages - that would be shrugged off as excuses or evasions in a disciplinary or tort proceeding can be given their deserved explanatory weight in these event reviews. n124 Moreover, the potential contributions of scholars and researchers from a variety of disciplines can be mobilized in these reviews to supplement the basic narratives with insights into the role that, for example, unconscious biases or census pressures may have played. The researchers will receive in return new challenges for empirical research of increased salience: the good questions that are at the heart of the research enterprise. And although we are most concerned with the problem of wrongful convictions, we should not ignore the fact that the universe of available lessons about the sources of wrongful conviction includes not only those learned from completed exonerations, but also others, gathered from "near misses," n125 and other "high frequency/low impact" events. But, perhaps most importantly, the "all-stakeholders" event reviews that the logic of the organizational accident etiology requires access to the perspective of community stakeholders. Among other things, a community presence may indicate that many "low impact" events - humiliating stops and frisks, pretrial detentions, misdemeanor processing and the collateral consequences of records - are not, for defendants, families, and communities the "low impact" practices that from the practitioners' perspective they seem to be. n126 Besides, "Shooting an Elephant" also illustrates why, although the perspectives of the young Orwells at the sharp end of the criminal system are indispensable to an understanding of an event, their professional accounts - even when these seem to be confessional accounts - are not sufficient if our aim is "forward-looking accountability." For all of Orwell's sincere contrition for his role in the imperial project, it is not clear that Orwell's version of this particular event can be trusted. Orwell had lived in Burma for some time and his father was a career imperial civil servant. n127 Orwell was a curious [*917] and intelligent man. Orwell probably knew very well that Buddhism abhors killing, but counted on his audience's ignorance of that fact when he enlisted "the will" of the crowd tactically as a motivator in order to mitigate, even partly obscure, his personal role. n128 If we rely solely on Orwell we will learn that imperialism was a bad thing and that one of its officers was acutely ashamed of his role. n129 We would still not know why Orwell's elephant was destroyed. n130 The presence of community stakeholders in the process can be a crucial guard against the influence of these blind spots in a review: an important tool for preventing reoccurrence. William Stuntz believed that: "the [criminal] justice system stopped working when a particular kind of local democracy - the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets - ceased to govern the ways police officers, prosecutors, and trial judges do their jobs." n131 It may be that the determined, routine practice of including community voices in the learning from error event reviews can begin to repair this situation, and to erode the Manichean separation of "Us" from "Them." It is very easy to sympathize with Joseph Margulies's statement that "reform proposals aimed at population-cutting rather [than] principle are dangerously incomplete," that, "halving the prison population is a laudable goal, but population-cutting initiatives mistake a symptom for [a cause]." n132 If our current reform tide recedes leaving only a drop in prison census behind, we can be pretty sure that the population will soon be replenished. Something more fundamental, something such as Margulies's call for the elevation of the three principles of human dignity, thriving communities, and fair government officials and processes n133 - something that emulates hospital medicine's paradigm shift toward a "culture of safety" n134 - is called for. [*918] Such a sweeping change in the world of American criminal justice cannot be imposed from the rarefied heights of the think tanks and law reviews; it must come from the bottom up. As John Griffith's observations about the early Twentieth Century's doomed attempt to impose a "Family Model" of juvenile justice on the "Battle Model" culture of criminal justice make clear, a culture change of this magnitude cannot be achieved by fiat. n135 The advantage of the practice of non-blaming, all-stakeholders event review is that it enlists the frontline practitioners in a collaborative review of processes, not only outcomes, and with researchers and community members participating as equals. In this process the map of the criminal justice process as it is appears in the vision comprised of statistical findings and the living criminal justice process as it appears in the narratives of the citizens and communities entangled in it are not simply complementary (although they are that) but dynamic and reciprocal. "Narrative," as Edward Said observed, writing about the colonial system that enmeshed Orwell, "asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change ... ." n136 We need the narratives of the Orwells, but also of the Burmese; of the prosecutors, police, defenders, and judges, but also of the exonerees, the crime survivors, the stopped and frisked, their families, and their communities. No "fix" is permanent. We need constantly to gather both narratives and statistical analyses and to take account of them in a continuous practice if we are going to create resilience and heal the system. Criminal justice practitioners have to learn to allow others to learn about our lives: to suffer the pain of being known along with the pleasure of knowing. n137 We also have to learn - as Orwell did, in his dogged, imperfect way - to be willing to risk discovering uncomfortable facts about ourselves.The AC buys into a theory of “constituent power”- this model assumes the state exercises rational, juridical control that can be challenged and overthrown by a legal revolution. But modern societies aren’t disciplinary, they are control based. Legal reform is simply a new mechanism of this control-it is a depoliticized and hollow form of resistance. Instead we need “destituent power”, a strategy that deposes the law permanently to open space for new modes of political engagement Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)You will probably know that Michel Foucault, in his book Surveiller et punir and in his courses at the Collège de France sketched a typological classification of modern States. He shows how the State of the Ancien regime, that he calls territorial or sovereign State and whose motto was faire mourir et laisser vivre, evolves progressively in a population State and in a disciplinary State, whose motto reverses now in faire vivre et laisser mourir, as it will take care of the citizens life in order to produce healthy, well-ordered and manageable bodies. The state in which we live now is no more a disciplinary State. Gilles Deleuze suggested to call it ?Etat de contr?le?, control State, because what it wants, is not to order and to impose discipline, but rather to manage and to control. Deleuze’s definition is correct, because management and control do not necessarily coincide with order and discipline. No one has told it so clearly as the Italian police officer, who, after the turmoil of Genoa in July 2001, declared that the government did not want that the police maintains order, but that it manages disorder. American politologists, who have tried to analyze the constitutional transformation involved in the Patriot Act and in the other laws which followed September 2001, prefer to speak of a Security State. But what does security here mean? It is during the French revolution that the notion of security — sureté, as they used to say — is linked to the definition of police. The laws of March 16, 1791 and August 11, 1792 introduce thus in the French legislation the notion of ?police de sureté? (security police), which was doomed to have a long history in modernity. If you read the debates which preceded the voting of these laws, you will see that police and security define one another, but no one among the speakers (Brissot, Heraut de Séchelle, Gensonné) is able to define police or security by themselves. The debates focused on the situation of the police with respect to justice and judicial power. Gensonné maintains that they are ?two separate and distinct powers?; yet, while the function of the judicial power is clear, it is impossible to define the role of the police. An analysis of the debate shows that the place and function of the police is undecidable and must remain undecidable, because, if it were really absorbed in the judicial power, police could no more exist. This is the discretionary power which still today defines the action of the police officer, who, in a concrete situation of danger for the public security, acts so to speak as a sovereign. But, even when he exerts this discretionary power, he does not really take a decision, nor prepares, as is usually stated, the judge’s decision. Every decision concerns the causes, while the police acts on effects, which are by definition undecidable. The name of this undecidable element is no more today, like it was in XVII century, ?raison d’Etat?, State reason: it is rather ?security reasons?. The Security State is a police State: but, again, in the juridical theory, the police is a kind of black hole. All we can say is that when the so called ?Science of the police? first appears in XVIII century, the ?police? is brought back to its etymology from the Greek ?politeia? and opposed as such to ?politics?. But it is surprising to see that Police coincides now with the true political function, while the term politics is reserved to the foreign policy. Thus Von Justi, in his treatise on Policey Wissenschaft, calls Politik the relationship of a State with other States, while he calls Polizei the relationship of a State with itself. It is worthwhile to reflect upon this definition: (I quote): ?Police is the relationship of a State with itself?. The hypothesis I would like to suggest here is that, placing itself under the sign of security, modern State has left the domain of politics to enter a no man’s land, whose geography and whose borders are still unknown. The Security State, whose name seems to refer to an absence of cares (securus from sine cura) should, on the contrary, make us worry about the dangers it involves for democracy, because in it political life has become impossible, while democracy means precisely the possibility of a political life. But I would like to conclude –or better to simply stop my lecture (in philosophy like in art, no conclusion is possible, you can only abandon your work) with something which, as far as I can see now, is perhaps the most urgent political problem. If the State we have in front of us is the Security State I described, we have to think anew the traditional strategies of political conflicts. What shall we do, what strategy shall we follow? The Security paradigm implies that each dissention, each more or less violent attempt to overthrow its order, become an opportunity to govern them in a profitable direction. This is evident in the dialectics which binds tightly together terrorism and State in an endless vicious spiral. Starting with French revolution, the political tradition of modernity has conceived of radical changes in the form of a revolutionary process that acts as the pouvoir constituant, the ?constituent power? of a new institutional order. I think that we have to abandon this paradigm and try to think something as a puissance destituante, a ?purely destituent power?, that cannot be captured in the spiral of security. It is a destituent power of this sort that Benjamin has in mind in his essay On the critique of violence when he tries to define a pure violence which could ?break the false dialectics of lawmaking violence and law-preserving violence?, an example of which is Sorel’s proletarian general strike. ?On the breaking of this cycle? he writes in the end of the essay ?maintained by mythic forms of law, on the destitution of law with all the forces on which it depends, finally therefore on the abolition of State power, a new historical epoch is founded?. While a constituent power destroys law only to recreate it in a new form, destituent power, in so far as it deposes once and for all the law, can open a really new historical epoch. To think such a purely destituent power is not an easy task. Benjamin wrote once that nothing is so anarchical as the bourgeois order. In the same sense, Pasolini in his last movie has one of the four Salò masters saying to their slaves: ?true anarchy is the anarchy of power?. It is precisely because power constitutes itself through the inclusion and the capture of anarchy and anomy, that it is so difficult to have an immediate access to these dimensions, it is so hard to think today something as a true anarchy or a true anomy. I think that a praxis which would succeed in exposing clearly the anarchy and the anomy captured in the Security government technologies could act as a purely destituent power. A really new political dimension becomes possible only when we grasp and depose the anarchy and the anomy of power. But this is not only a theoretical task: it means first of all the rediscovery of a form-of-life, the access to a new figure of that political life whose memory the Security State tries at any price to cancel.While the AC attempts to criticize the law, it does so within the confines of existing ideological investments and institutions, this is constituent power. Destutuency is a an active no: it rejects the terms of the 1AC in order to divest our political and affective investments that sustain this system. Bougtsy-Marshall, JD, 16(Skye, Climate Activist, “Flooding Wall Street: Echoes from the Future of Resistance around Climate Change,” Capitalism Nature Socialism Volume 27, 2016 - Issue 3, Pages 64-82, )The concept of destituent power (poder destituyente), on the other hand, originates from the Colectivo Situaciones’ (2011) analysis of the uprisings in Argentina on 19 and 20 December 2001. Destituent power exhibits potency similar to constituent power, but operates as a continual process of openended withdrawal from, or refusal of, the juridical, institutional order (Laudani 2013, 4). It functions completely outside the law – extrainstitutionally – seeking to dismantle sovereign, constituted power altogether rather than to reform it or overthrow it and then re-institute it in a different form. Destituent power undermines and erodes the obedience that is fundamental to and presupposed by the constituted order for its continued existence. However, destituent power is not a purely reactive or nihilistic force, but instead is creative – not in the sense of producing new institutions to replace the old, but through its deactivation of the legal order. This, in turn, opens new horizons of possibilities for egalitarian and holistic social and ecological relationships far exceeding what is practicable under the current destructive political order (Laudani 2013, xv, n. 23). Benjamin (1978, 300) also envisaged this immanent creative potential within destituent power as he attempted to identify a pure violence that could “break the false dialectics of lawmaking violence and law-preserving violence.” Following this line of reasoning, he argued that: [o]n the breaking of this cycle maintained by mythical forms of law, on the suspension [destitution] of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. Thus, although a constituent power destroys law only to re-institute it again in a new form (merely perpetuating the cycle), insofar as destituent power dismantles and deposes the law once for all, it can function to open onto the terrain of a new epoch characterized by radically new possibilities (Agamben 2014). In deposing the political order, destituent power opens becomings, enabling experimentation with new practices and the development of new knowledges that will, in turn, themselves be de-instituted in the continual and open-ended process unfolding (Colectivo Situaciones 2011, 64, 87). Constituent power’s direct confrontation with the state – through terrorism or revolution – simply reinforces the security apparatus and invites greater levels of repression. As destituent power, disobedience can be conceived not as a direct clash with constituted power but instead as the withdrawal of consent to the political order, as a direct negation of its legitimacy (Laudani 2013, 37). Early twentieth-century German anarchist Gustav Landauer (2010, 214) deployed a similar argument in maintaining that all social and political institutions depend for their existence on the choices of individuals to continue to give them their support, and, thus, removal of this support and constituting ourselves apart from these institutions, thereby rendering them redundant, is the key to dissolving them. Furthermore, Landauer extended this insight concerning the extent to which our obedient practices and behaviors serve as the basis of the state, arguing that “[t]he state is a condition, a certain relationship among human beings, a mode of behavior between men; we destroy it by contracting other relationships, by behaving differently toward one another” (qtd. in Lunn 1973, 226). This view of the basis of the power of the state and capitalism as sets of relations anticipates and finds consonance in the poststructuralist understanding of power articulated by Foucault (referenced above). The network of power relations forms a “dense web that passes through apparatuses and institutions, without being exactly localized in them” (Foucault 1978, 95). Thus, power is not like an object that is acquired or held, but rather it is exercised from innumerable points in a network of shifting relations. This understanding of social and political space as exhaustively comprised by a complex web of intersecting power relationships does not preclude particular lines and points in the network, like the state, from being bolder, so to speak, or more socially determinative than others; however, these points or lines do not act as a central locus from which the other lines emanate or through which they must pass (May 1995, 52–53). The state is not a “thing” exterior to us that can be seized and wielded by a dominant class or group without thereby merely reproducing the intricate network of power relations that manifests in exploitation, domination, irreducible forms of oppression (e.g. patriarchy, racism, heteronormativity, etc.), and deterioration of the biosphere. We are not controlled by a state or capital as institutions apart from us, set above or outside a “civil society,” but instead “we all govern each other through a complex web of capillary relations of power” (Day 2005, 124–125). This is not to say the state or capital are not real or do not have material effects, that the profane violence wrought by each and in tandem is an illusion, or that they can simply be wished away. Rather it is to reveal the critical foundation of their existence. Macropolitical practices or relations like the state and global capitalism are products of the manifold intersections and confluence of specific local, or micropolitical, practices, and must be understood and assayed on their basis. The intersecting local power relations and practices on which the macropolitical is founded cannot be subsumed and absorbed by the latter. This recognition is crucial to avoiding the theoretical and historical error of assuming that the destruction or replacement of dominating macropolitical arrangements will result in the dissolution of the composite power relations and the oppressive effects reflected in them. There remains a heterogeneity between micropolitical and macropolitical practices notwithstanding their entanglement through reflexive interplay and mutual supposition and reinforcement (May 1995, 99–100). Even as the relations comprising the state and global capital are traceable to and constituted by myriad local practices and power relationships, the macropolitical is not completely reducible to these local dynamics either. Rather it is an agglomeration of different lines in the network of mobile power relations that makes it more than the sum of its parts – not a mere mechanical transposition in scale of the local practices on which it is founded – but also not separate from the microrelations, from the confluence of micropolitical practices that constitute it and on which it depends for its functioning. In analyzing capitalism and the state form not as “things” but as particular sets of relations among subjects and the local practices yielded through the innumerable interactions of such relations, we can see how deactivating and reconceiving these relationships through the connection of experiments (even if initially small in scale) in the construction of alternative modes of social, political, and economic relations and organization can offer a way to avoid both the indefinite wait for the ripening of the moment for revolution to arrive – which, in aspiring to totalizing transformation through enacting a changing of the guard at the helm of the state, will leave unaddressed the underlying power relations – and the perpetuation of existing forms of domination by injecting energy into them anew through reformist demands (Day 2005, 16). To the extent that we continue to come to the state to mediate and redress our grievances, we remain circumscribed within the horizons of state logic. We perpetuate the set of relationships constitutive of the state each time we make claims or demands upon it for the conferral of recognition, inclusion, or gifts of heretofore denied rights. This is not necessarily to maintain that struggling for reforms can never be advantageous – perhaps to achieve short-term palliatives to mitigate the most severe depravities of capitalism – but it is to accentuate the consequences of this politics of demand that both provides the state system with positive energy which could be directed towards building alternatives, and serves to relegitimize and further sediment the set of social relationships constituting the dominant global political order. Armed with this conceptual lens for apprehending the manifold ways local power relations constitute macropolitical practices of the state and global capital, we can orient ourselves to evaluate the various molecular bonds, specific practices, psychic attachments, idealizations, investments of desire, modes of subjectification that traverse individuals, and the social order as specifically contributing to the macropolitical functioning of the state and capital or, in contrast, as eroding and undermining their operation, weaving different relationships that do not sustain those constituting capitalism and the state. Destituent power deposes the political order through withdrawing the vital energy and reconfiguring the social relationships and practices on which the system depends and which serve as its basis for perpetuation. If we are the state and capitalism and each is in all of us, then we must disentangle ourselves from this condition thereby creating openings in which we can begin to define ourselves through alternative relations (Day 2005, 188). The state and capitalism will persist only and as long as individuals continue to relinquish their autonomy to give their support to them, as their existence is sustained through psychic attachments to and codependency on their power, through the persistent acknowledgement and idealization of the dominant authority of each, and the local microrelations that crisscross the social body constituting these attachments, dependencies, and idealizations (Newman 2010, 42). Change will come through individuals withdrawing their collective support and deactivating at a micropolitical level the multifarious ways in which we are bound to the prevailing organization of power at the level of our social relationships and subjectivities. Thus, against the criticism that this approach of destituent power merely evinces an impotent allergy to state power, we can see we cannot reestablish a legal and political order without reproducing the subjectivities and power relations on which the former is predicated and from which the latter are derived in a dynamic relation of mutual codetermination. Some may also worry that embracing destituent power is naively unrealistic, that we need a legal and institutional order to functionally organize the social, especially at increasing geographic scales. While undoubtedly a critical challenge for the coming communities, this issue of administering complex systems is ultimately more a problem of imagination rather than logistics (though it is certainly that too). Destituent power pushes our collective imaginaries to develop approaches to organize political life that do not rely on establishing a legal and institutional order. Constituted power, wielding its law-preserving violence, functions as a machine for its own reproduction. Distancing itself from the historical and theoretical trappings of constituent power, destituent power operates ceaselessly to disperse power – for example, through developing mechanisms for rotating individuals who temporarily occupy a position of executing the communal will, or of “leading by obeying” (mandar obedeciendo), as with the Zapatistas or Aymaras in Bolivia – to prevent its accumulation, concentration, and reinstitutionalization (Zibechi 2010, 14–16). Drawing on these autonomous and indigenous communal forms can help us imagine modes of community that are non-institutional, non-legal, nonorganizational, in which the ostensibly distinct domains of the economic, social, political, cultural, etc. are not separated but woven together in the same field of the unfolding, indefinite communities-in-process. We do not yet know what a destituent body is capable of. The concept of destitution should be understood as a “positive no” rather than a pure negation, a “no” that in rejecting representation at once “produces a ‘self-changing’ affirmation that engenders new practices and modes of subjectification, from which the ‘no’ first derives its force” (Nowotny 2007). Destituent power dissolves sovereignty, institutions, and representation, thereby expanding “the field of the thinkable” as if manipulating an aperture (Colectivo Situaciones 2011, 53). The flight from the system does not carry with it a hegemonic, universal program for constructing new social and ecological relations in destituent territories, but will be a ceaseless process of experimentation with alternatives developed through recursive (re)negotiation of common social values using participatory democratic practices.(7-11)Depoliticization spreads annihilating value to life. The affirmative’s conception of free/unfree is based on the physical location of the prison which obscures the omnipresence state “indifference” Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)But the extreme step has been taken only in our days and it is still in the process of full realization. The development of new digital technologies, with optical scanners which can easily record not only finger prints but also the retina or the eye iris structure, biometrical apparatuses tend to move beyond the police stations and immigration offices and spread to everyday life. In many countries, the access to student’s restaurants or even to schools is controlled by a biometric apparatus on which the student just puts his hand. The European industries in this field, which are quickly growing, recommend that citizens get used to this kind of controls from their early youth. The phenomenon is really disturbing, because the European Commissions for the development of security (like the ESPR, European security research program) include among their permanent members the representatives of the big industries in the field, which are just armaments producers like Thales, Finmeccanica, EADS et BAE System, that have converted to the security business. It is easy to imagine the dangers represented by a power that could have at its disposal the unlimited biometric and genetic information of all its citizens. With such a power at hand, the extermination of the jews, which was undertaken on the basis of incomparably less efficient documentation, would have been total and incredibly swift. But I will not dwell on this important aspect of the security problem. The reflections I would like to share with you concern rather the transformation of political identity and of political relationships that are involved in security technologies. This transformation is so extreme, that we can legitimately ask not only if the society in which we live is still a democratic one, but also if this society can be still considered as political. Christian Meier has shown how in fifth century a transformation of the political conceptuality took place in Athens, which was grounded on what he calls a “politisation” (politisierung) of citizenship. While till that moment the fact of belonging to the polis was defined by a number of conditions and social status of different kind — for instance belonging to nobility or to a certain cultual community, to be peasant or merchant, member of a certain family etc — from now on citizenship became the main criterion of social identity. “The result was a specifically greek conception of citizenship, in which the fact that men had to behave as citizens found an institutional form. The belonging to economical or religious communities was removed to a secondary rank. The citizens of a democracy considered themselves as members of the polis, only in so far as they devoted themselves to a political life.Polis and politeia, city and citizenship constituted and defined one another. Citizenship became in that way a form of life, by means of which the polis constituted itself in a domain clearly distinct from the oikos, the house. Politics became therefore a free public space as such opposed to the private space, which was the reign of necessity”. According to Meier, this specifically greek process of politisation was transmitted to western politics, where citizenship remained the decisive element. The hypothesis I would like to propose to you is that this fundamental political factor has entered an irrevocable process that we can only define as a process of increasing depolitisation. What was in the beginning a way of living , an essentially and irreducibly active condition, has now become a purely passive juridical status, in which action and inaction, the private and the public are progressively blurred and become indistinguishable. This process of depolitisation of citizenship is so evident, that I will not dwell on it. I will rather try to show how the paradigm of security and the security apparatuses have played a decisive role in this process. The growing extension to citizens of technologies which were conceived for criminals has inevitably consequences on the political identity of the citizen. For the first time in the history of humanity, identity is no longer a function of the social personality and its recognition by others, but rather a function of biological data, which cannot bear any relation to it, like the arabesques of the fingerprints or the disposition of the genes in the double helix of DNA. The most neutral and private thing becomes the decisive factor of social identity, which lose therefore its public character. If my identity is now determined by biological facts, that in no way depends on my will and over which I have no control, then the construction of something like a political and ethical identity becomes problematic. What relationship can I establish with my fingerprints or my genetic code? The new identity is an identity without the person, as it were, in which the space of politics and ethics loses its sense and must be thought again from the ground up. While the greek citizen was defined through the opposition between the private and the public, the oikos , which is the place of reproductive life, and the polis, place of political action, the modern citizen seems rather to move in a zone of indifference between the private and the public, or , to quote Hobbes terms, the physical and the political body. The materialization in space of this zone of indifference is the video surveillance of the streets and the squares of our cities. Here again an apparatus that had been conceived for the prisons has been extended to public places. But it is evident that a video recorded place is no more an agora and becomes a hybrid of public and private, a zone of indifference between the prison and the forum. This transformation of the political space is certainly a complex phenomenon, that involves a multiplicity of causes, and among them the birth of biopower holds a special place. The primacy of the biological identity over the political identity is certainly linked to the politicization of bare life in modern states. But one should never forget that the leveling of social identity on body identity begun with the attempt to identify the recidivist criminals. We should not be astonished if today the normal relationship between the state and its citizens is defined by suspicion, police filing and control. The unspoken principle which rules our society can be stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a principle? Can we still define it as democratic State? Can we even consider it as being something political? In which kind of State do we live today?Constituent thought is the scaffolding that enables modern violence. Violence is no longer war between states but a war on distinctions themselves- war/peace, guilty/innocent are roadbumps on the way to total annihilation. Only a destitutent strategy offers a way out of unending destruction Lazzarato and Alliez, PhDs, 16(Maurizio, researcher at Matisse/CNRS, Pantheon-Sorbonne University , Eric, professor at Universite Paris 8 and at the Centre for Research in Modern European Philosophy “To Our Enemies,” e-flux, Journal #78 - December 2016 )22. If the fall of the Wall delivered the death certificate of a mummy whose Communist prehistory ’68 made us forget, and if it is to be considered a nonevent (as the thesis of the End of History states in its melancholic way), the bloody fiasco of the imperial war machine’s first post-Communist wars made history. In part because of the debate that it started inside the military, where a new paradigm of war appeared. An antithesis of the industrial wars of the twentieth century, the new paradigm is defined as a “war amongst the population.” This concept, which inspired an improbable “military humanism,” is one we make our own by returning its meaning to the source and real terrain of wars of capital, and by rewriting this “war within the population” in the plural of our wars. The population is the battlefield in which counter-insurrectional operations of all kinds are underway. At the same time, and indistinguishably, they are both military and nonmilitary because they also carry the new identity of “bloody wars” and “non-bloody wars.” Under Fordism, the State not only guaranteed State territorialization of Capital but also of war. As a result, globalization cannot not free capital from State control without also freeing war, which passes to a superior power of continuity by integrating the plane of capital. Deterritorialized war is no longer inter-State war at all, but an uninterrupted succession of multiple wars against populations, definitively sending “governmentality” to the side of governance in a common enterprise of denial of global civil wars. What is governed and what allows governing are the divisions that project wars into the heart of the population at the level of the real content of biopolitics. A biopolitical governmentality of war as differential distribution of instability and norm of “daily life.” The complete opposite of the Great Narrative of the liberal birth of biopolitics taking place in a famous course at the Collège de France in the break between the 1970s and 1980s. 23. Accentuating divisions, aggravating the polarization of every capitalist society, the debt economy transforms “global civil war” (Schmitt, Arendt) into interconnected civil wars: class wars, neocolonialist wars on “minorities,” wars on women, wars of subjectivity. The matrix of these civil wars is the colonial war. Colonial war was never a war between States but, in essence, a war in and against the population, where the distinctions between war and peace, between combatants and noncombatants, between economy, politics, and military were never used. Colonial war in and against populations is the model of the war that financial Capital unleashed starting in the 1970s in the name of a neoliberalism of combat. Its war is both fractal and transversal: fractal, because it indefinitely produces its invariance by constant changes of scale (its “irregularity” and the “cracks” it introduces operate at different scales of reality); and transversal, because it is simultaneously deployed at the macropolitical level (by playing on all of the major binary oppositions: social classes, whites and nonwhites, men and women) and the micropolitical level (by molecular “engineering” privileging the highest interactions). It can also connect the civilian and military levels in the Global South and North, in the Souths and Norths of everyone (or almost everyone). Its first characteristic is therefore to be less indiscriminate war than irregular war. The war machine of capital which, in the early 1970s, definitively integrated the State, war, science, and technology, clearly declares the strategy of contemporary globalization: to bring to an end the very short history of reforming capital—Full Employment in a Free Society, according to the manifesto of Lord Beveridge published in 1944—by attacking everywhere and with all means available the conditions of reality of the power struggle that imposed it. An infernal creativity is deployed by the neoliberal political project in pretending to grant the “market” superhuman qualities of information processing: the market as the ultimate cyborg. 24. The newfound consistency of neofascisms starting with the financial “crisis” in 2008 represents a turning point in the waging of wars amongst populations. Their dimensions, both fractal and transversal, take on a new and formidable effectiveness in dividing and polarizing. The new fascisms challenge all of the resources of the “war machine,” because if the “war machine” is not necessarily identified with the State, it can also escape the control of Capital. While the war machine of Capital governs through an “inclusive” differentiation of property and wealth, the new fascist war machines function through exclusion based on racial, sexual, and national identity. The two logics seem incompatible. In reality, they inevitably converge (see “national preference”) as the state of economic and political emergency takes residence in the coercive time of global flow. If the capitalist machine continues to be wary of the new fascisms, it is not because of its democratic principles (Capital is ontologically antidemocratic!) or the rule of law, but because, as it happened with Nazism, post-fascism can claim its “autonomy” from the war machine of Capital and escape its control. Isn’t this exactly the same thing that has happened with Islamic fascisms? Trained, armed, and financed by the US, they turned their weapons against the superpower and its allies who had instrumentalized them. From the West to the lands of the Caliphate and back, the neo-Nazis of all allegiances embody the suicidal subjectivation of the capitalist “mode of destruction.” It is also the final scene of the return of the colonial repressed: the jihadists of generation 2.0 haunt Western cities like their most internal enemy. Endocolonization also becomes the generalized conjugation of “topical” violence of the most intense domination of capitalism over populations. As for the process of convergence or divergence between the capitalist and neofascist war machines, it will depend on the evolution of the civil wars now underway and the risks that a future revolutionary process could run for private property, and more generally for the power of Capital. 25. Prohibiting the reduction of Capital and capitalism to a system or a structure, and of the economy to a history of self-enclosed cycles, wars of class, race, sex, and subjectivity also challenge every principle of autonomy in science and technology, every highway to “complexity” or emancipation forged by the progressive (and now accelerationist) idea of the movement of History. Wars constantly inject the indeterminacy of conflict into open strategic relationships, making inoperable every mechanism of self-regulation (of the market) or every regulation by feedback (“man-machine systems” open their “complexity” to the future). The strategic “opening” of war is radically other than the systematic opening of cybernetics, which was not born in/of war for nothing. Capital is not structure or system; it is “machine” and war machine, of which the economy, politics, technology, the State, the media, and so forth are only the articulations informed by strategic relations. In the Marxist/Marxian definition of General Intellect, the war machine integrating science, technology, and communication into its functioning is curiously neglected for the sake of a hardly credible “communism of capital.” 26. Capital is not a mode of production without being at the same time a mode of destruction. The infinite accumulation that constantly moves its limits to recreate them again is at the same time unlimited, widespread destruction. The gains in productivity and gains of destructiveness progress in parallel. They manifest themselves in the generalized war that scientists prefer to call “Anthropocene” rather than “Capitalocene,” even if, in all evidence, the destruction of the environments in and through which we live does not begin with “humans” and their growing needs, but with Capital. The “ecological crisis” is not the result of a modernity and humanity blinded to the negative effects of technological development but the “fruit of the will” of some people to exercise absolute domination over other people through a global geopolitical strategy of unlimited exploitation of all human and nonhuman resources. Capitalism is not only the deadliest civilization in the history of humanity, the one that introduced us to the “shame of being human”; it is also the civilization through which labor, science, and technology have created—another (absolute) privilege in the history of humanity—the possibility of (absolute) annihilation of all species and the planet that houses them. In the meantime, the “complexity” of (saving) “nature” still offers the prospect of healthy profits combining the techno utopia of geoengineering and the reality of the new markets of “polluting rights.” At the confluence of one and the other, the Capitalocene does not send capitalism to the Moon (it has been there and back); it completes the global merchandizing of the planet by asserting its rights to the well-named troposphere. 27. The logic of Capital is the logistics of an infinite valuation. It implies the accumulation of a power that is not merely economic for the simple reason that it is complicated by strategic power and knowledge of the strength and weakness of the classes struggling, to which it is applied and with which they are in constant explanation. Foucault tells us that the Marxists turned their attention to the concept of “class” to the detriment of the concept of “struggle.” Knowledge of strategy is thus evacuated in favor of an alternative enterprise of pacification (Tronti offers the most epic version of this). Who is strong and who is weak? In what way did the strong become weak, and why did the weak become strong? How to strengthen oneself and weaken the other to dominate and exploit it? We propose to follow and reinvent the anticapitalist path of French Nietzscheism. 28. Capital came out the victor in the total wars and in the confrontation with global revolution, for which the number for us is 1968. Since then, it has gone from victory to victory, perfecting its self-cooled motor, where it verifies that the first function of power is to deny the existence of civil wars by erasing even the memory of them (pacification is a scorched earth policy). Walter Benjamin is there to remind us that reactivating the memory of the victories and defeats from which the victors take their domination can only come from the “defeated.” Problem: the “defeated” of ’68 threw out the bath water of civil wars with the old Leninist baby at the end of the “Hot Autumn” sealed by the failure of the dialectic of the “party of autonomy.” Entry into the “winter years” on the edge of a second Cold War that ensures the triumph of the “people of capitalism” (“‘People’s Capitalism’—This IS America!”), the End of History will take the relay without stopping at a Gulf War that “did not take place.” Except there is a constellation of new wars, revolutionary machines, or mutant militants (Chiapas, Birmingham, Seattle, Washington, Genoa …) and new defeats. The new writing generations describe “the missing people” dreaming of insomnia and destituent processes unfortunately reserved for their friends. 29. We will cut it short, in addressing our enemies. Because this text has no other object, under the economy and its “democracy,” behind the technological revolutions and “mass intellectuality” of the General Intellect, than to make heard the “rumble” of real wars now underway in all of their multiplicity. A multiplicity which is not to be made but unmade and remade to charge the “masses or flows,” which are doubly subjects, with new possibilities. On the side of relations of power as subject to war or/and on the side of strategic relationships that are capable of projecting them to the rank of subjects of wars, with “their mutations, their quanta of deterritorialization, their connections, their precipitations.” In short, it is a question of drawing the lessons from what seems to us like the failure of the thought of ’68 which we have inherited, even in our inability to think and construct a collective war machine equal to the civil war unleashed in the name of neoliberalism and the absolute primacy of the economy as exclusive policy of capital. Everything is taking place as if ’68 was unable to think all the way, not its defeat (there are, since the New Philosophers, professionals in the matter), but the warring order of reasons that broke its insistence through a continuous destruction, placed in the present infinitive of the struggles of “resistance.” 30. It is not a question, it is not at all a question of stopping resistance. It is a question of dropping a “theoricism” satisfied with a strategic discourse that is powerless in the face of what is happening. And what has happened to us. Because if the mechanisms of power are constitutive, to the detriment of strategic relationships and the wars taking place there, there can only be phenomena of “resistance” against them. With the success we all know. Graecia docet.Prefer negative evidence- sociolegal study proves incremental reform efforts like the AC are counterproductive- they reinforce tropes/assumptions that underly mass incarceration and the CJS Beckett, PhD, et al., 16(Katherine, Sociology@Washington, Anna Reositi, PhD Candidate, Emily Knaphus, PhD Candidate, The End of an Era? Understanding the Contradictions of Criminal Justice Reform The Annals of The American Academy of Political and Social Science March, 2016)There is, then, considerable evidence that the criminal justice zeitgeist is in flux and that meaningful criminal justice reform is under way. On the other hand, sociolegal scholarship provides ample reason to suspect that once created, mass incarceration may prove difficult to reverse, even with the enactment of meaningful reforms. There are several reasons for this. In some cases, reforms simply trigger adaptation by institutional actors. For example, following the Supreme Court's invalidation of vagrancy and loitering statutes, local authorities across the country created novel social control tools that enabled them to regulate the movement of the socially marginal but are comparatively difficult to challenge in the courts n2 (Beckett and Herbert 2010). Similarly, the Supreme Court's 1972 [*241] Furman v. Georgia decision--in which the Court determined that the administration of capital punishment violated several constitutional protections--triggered the widespread adoption of statutes authorizing the imposition of LWOP sentences. Because these statutes were not rescinded after the Court reinstated the death penalty in 1976, n3 the unintended consequence of the temporarily successful challenge to capital punishment was the spread of "the other death penalty" (Gottschalk 2012; McCann and Johnson 2009; Ogletree and Sarat 2012). Similarly, prison litigation efforts in Florida backfired when court orders to reduce overcrowding were (re)interpreted by political actors as mandates to build additional prisons rather than to reduce prison populations (Schoenfeld 2010). And as Petersilia and Cullen (2015, 12) note in their recounting of instances in which good intentions went awry, efforts to reduce prison populations through the adoption of intermediate sanctions in the early 1990s did not reduce prison populations, and in some cases actually increased them. These studies remind us that criminal justice reform may not unfold in a linear or unidirectional manner, and often has paradoxical consequences, in part because institutional dynamics may undercut or complicate criminal justice reform efforts. Indeed, as the vast literature on path dependence shows, developments such as mass incarceration create vested interests that seek to perpetuate favorable institutional arrangements. Path dependence refers to "the tendency for courses of political or social development to 'generate self-reinforcing processes'" (Pierson 2000, 810) that frustrate efforts to change direction. For example, the creation of Sweden's generous social welfare programs created a large population of public sector social service workers who were well suited (and motivated) to mobilize politically around policies that sustained or expanded the national welfare state (Pierson 2000, 810; see also Mahoney 2000). Similarly, institutions that have flourished as a result of mass incarceration often work to ensure its continued existence. For example, private corporations that own and operate prisons (or profit from them), prison officers' unions, the bail industry, and even county clerks often seek to block progressive criminal justice reform (Gottshalk 2015; Mason 2012; Page 2011a, 2011b; Petersilia and Cullen 2015). These policy fights may play out in relatively public ways, as efforts by the prison officers' union to prevent reform of California's "Three Strikes" law did (Page 2011a, 2011b). Organizations such as prison officer unions also make campaign donations, fund victims groups, and engage in effective public relations campaigns in pursuit of their political goals. Institutional developments such as mass incarceration thus create powerful institutions that may engage in overt policy battles to protect their interests. But efforts to blunt or reverse reforms may also take subtler and less visible forms (Beckett and Murakawa 2012; Hacker 2004). As sociolegal scholars have long emphasized, the exercise of legal discretion can create a notable gap between the "law on the books" and the "law in action" (Halliday et al. 2009; Silbey and Sarat 1987). Moreover, legal discretion is ubiquitous throughout the criminal justice process (Davis 2008). For example, police scholars have long noted that police organizations and officers possess significant discretion that shapes not only criminal justice outcomes but urban landscapes as well (Bittner 1967). Similarly, prosecutorial discretion is enormously consequential but notoriously difficult to [*242] monitor (Davis 2008; Stuntz 2011). And in states with in-determinant sentencing systems (in which judges impose open-ended sentences and parole boards determine actual release dates), parole boards also exercise substantial discretion and notably impact the amount of time inmates serve in prison (Gottshalk 2015). In short, institutional dynamics may undermine the impact of criminal justice reform efforts. But sociolegal scholarship also suggests that criminal justice reformers are also likely to encounter--and may even perpetuate--important cultural obstacles. Mass incarceration is a highly racialized phenomenon, one that both reflects and perpetuates racial stereotypes, especially the cultural association between blackness and criminality (Muhammad 2010). Indeed, rhetorical justifications for the wars on crime and drugs have relied heavily on racialized images and discourses (Alexander 2010; Beckett 1997; Provine 2007; Simon 2007); criminal justice institutions now serve, in part, as "race-making" institutions (Pager 2007). Institutional and political actors opposed to criminal justice reforms will therefore find a plethora of racially inflected images and discourses that may be effectively deployed in an effort to buttress antireform efforts. Moreover, there is reason to suspect that these racialized tropes and images will continue to resonate with large sectors of the public (Eberhardt and Goff 2005; Eberhardt et al. 2004). Indeed, recent studies suggest that white citizens actually become more supportive of "tough" criminal justice policies when they are informed that those policies disproportionately impact people of color (Hetey and Eberhardt 2014; see also Ghandnoosh 2014). In addition, as theorists ranging from Durkheim (1984) and Mead (1918) to Garfinkel (1956) and Goffman (1956) have emphasized, penal practices are inherently expressive and symbolic acts. The expressive dimension of penal rituals and the judgment, condemnation, and punishment of criminal offenders means that public discussions of penal practices are emotionally and morally loaded (Garland 1990). Discussions of crime and punishment, then, are intensely symbolic phenomena; crime talk generally, and reassertions of the need to punish "real criminals" and "predators," are highly subject to "symbolic politics" (Edelman 1985). For these reasons, policy-makers may feel compelled to reassert the moral boundaries that differentiate deserving citizens from "predators" and to reassure the public that they remain committed to the idea that "real criminals" must be aggressively punished--even as they embrace certain (limited) criminal justice reforms. Indeed, reformers themselves sometimes juxtapose the comparatively sympathetic target of their reform efforts--usually "nonviolent drug users"--with "serious and violent" criminals (see also Gottshalk 2015). One example of this kind of rhetoric comes from the I75 campaign that took place in Seattle in the early 2000s, in which reformers sought to deprioritize marijuana enforcement. In justifying this policy shift, reformers emphasized that the initiative would save scarce resources and "free our police and prosecutors--who are already over-worked and deserve our strong support--to concentrate on protecting us against serious and violent crime" (Licata et al. n.d.). Similarly, the U.S. Department of Justice's recent (2013) campaign for policies that are "smart on crime" highlights the need to ensure "just punishments" for "non-violent offenders"--implying, it would seem, that unjust punishments for people convicted of a violent offense are "smart" and acceptable. [*243] In short, as Seeds (2015) argues, the national discourse on crime and punishment may reflect a new, bifurcated way of thinking and talking about punishment that draws a sharp line between nonviolent and violent offenders and depicts the former as worthy of reform but the latter as deserving of even greater punishment. These observations lead us to suspect that neither the emergence of discourses associated with the "Right on Crime" and "Smart on Crime" campaigns, nor the recent adoption of drug and parole reforms, nor even the dramatic "realignment" of California's correctional populations, necessarily signal a comprehensive rethinking of the nature, scope, and intensity of U.S. penal practices. Instead, we explore the possibility that these developments may constitute a comparatively minor adjustment of the boundaries that delineate "real criminals" from more sympathetic others. Ironically, reformers may reaffirm the collective commitment to severely punishing those who remain firmly entrenched in the "real criminal" category even as they make the case for particular reforms. For these reasons, the enactment of drug and parole reforms and the spread of discourses that highlight the validity of such reforms may be accompanied by subtle shifts in penal discourse in which the use of nonconfinement sanctions for some offenders is legitimated even as the imposition of increasingly severe penalties for less sympathetic criminal defendants is justified. To the extent that this occurs, the prospects of comprehensive sentencing reform that would significantly reduce levels of incarceration are weakened. These insights leads us to hypothesize that recent calls for criminal justice reform--and policy reforms themselves--are not comprehensive but, rather, consistently identify nonviolent, nonserious, and nonrepeat offenders as the intended beneficiary of penal reform. We also expect that calls for such reforms frequently entail assertions of the need to maintain or intensify the penalties imposed on "serious" and "violent" criminals. Empirical support for these hypotheses would suggest that the reach (and potential impact) of criminal justice reform is circumscribed; it would also suggest that contemporary debates--and even calls for reform--reinforce the idea that penalties for repeat, serious, and violent offenders should be maintained and perhaps even intensified. Finally, we suspect that reforms will be primarily framed as a way of reducing state expenditures on corrections rather than as a way to promote fairness, proportionality, and/or human rights in the criminal justice system. To the extent that this is the case, policy "solutions" aimed at minimizing correctional costs--but not reducing correctional populations or improving prison conditions--may be seen as sufficient. We assess these hypotheses by analyzing recent criminal justice policy reforms as well as newspaper stories about criminal justice reform. In what follows, we briefly describe the data and methods employed in these analyses.The alternative is whatever being: a mode of life that resists political classification. Since sovereignty exercises power through classification, resistance should focus on modes of living rather than acts Caldwell, PhD, 04(Anne, Political/Feministtheory@Louisville, Bio-Sovereignty and the Emergence of Humanity Theory & Event Volume 7, Issue 2, 2004)Can we imagine another form of humanity, and another form of power? The bio-sovereignty described by Agamben is so fluid as to appear irresistible. Yet Agamben never suggests this order is necessary. Bio-sovereignty results from a particular and contingent history, and it requires certain conditions. Sovereign power, as Agamben describes it, finds its grounds in specific coordinates of life, which it then places in a relation of indeterminacy. What defies sovereign power is a life that cannot be reduced to those determinations: a life “that can never be separated from its form, a life in which it is never possible to isolate something such as naked life.” (2.3). In his earlier Coming Community, Agamben describes this alternative life as “whatever being.” More recently he has used the term “forms-of-life.” These concepts come from the figure Benjamin proposed as a counter to homo sacer: the “total condition that is ‘man’.” For Benjamin and Agamben, mere life is the life which unites law and life. That tie permits law, in its endless cycle of violence, to reduce life an instrument of its own power. The total condition that is man refers to an alternative life incapable of serving as the ground of law. Such a life would exist outside sovereignty. Agamben’s own concept of whatever being is extraordinarily dense. It is made up of varied concepts, including language and potentiality; it is also shaped by several particular dense thinkers, including Benjamin and Heidegger. What follows is only a brief consideration of whatever being, in its relation to sovereign power. “Whatever being,” as described by Agamben, lacks the features permitting the sovereign capture and regulation of life in our tradition. Sovereignty’s capture of life has been conditional upon the separation of natural and political life. That separation has permitted the emergence of a sovereign power grounded in this distinction, and empowered to decide on the value, and non-value of life (1998: 142). Since then, every further politicization of life, in turn, calls for “a new decision concerning the threshold beyond which life ceases to be politically relevant, becomes only ‘sacred life,’ and can as such be eliminated without punishment” (p. 139). This expansion of the range of life meriting protection does not limit sovereignty, but provides sites for its expansion. In recent decades, factors that once might have been indifferent to sovereignty become a field for its exercise. Attributes such as national status, economic status, color, race, sex, religion, geo-political position have become the subjects of rights declarations. From a liberal or cosmopolitan perspective, such enumerations expand the range of life protected from and serving as a limit upon sovereignty. Agamben’s analysis suggests the contrary. If indeed sovereignty is bio-political before it is juridical, then juridical rights come into being only where life is incorporated within the field of bio-sovereignty. The language of rights, in other words, calls up and depends upon the life caught within sovereignty: homo sacer. Agamben’s alternative is therefore radical. He does not contest particular aspects of the tradition. He does not suggest we expand the range of rights available to life. He does not call us to deconstruct a tradition whose power lies in its indeterminate status.21 Instead, he suggests we take leave of the tradition and all its terms. Whatever being is a life that defies the classifications of the tradition, and its reduction of all forms of life to homo sacer. Whatever being therefore has no common ground, no presuppositions, and no particular attributes. It cannot be broken into discrete parts; it has no essence to be separated from its attributes; and it has no common substrate of existence defining its relation to others. Whatever being cannot then be broken down into some common element of life to which additive series of rights would then be attached. Whatever being retains all its properties, without any of them constituting a different valuation of life (1993: 18.9). As a result, whatever being is “reclaimed from its having this or that property, which identifies it as belonging to this or that set, to this or that class (the reds, the French, the Muslims) — and it is reclaimed not for another class nor for the simple generic absence of any belonging, but for its being-such, for belonging itself.” (0.1–1.2). Indifferent to any distinction between a ground and added determinations of its essence, whatever being cannot be grasped by a power built upon the separation of a common natural life, and its political specification. Whatever being dissolves the material ground of the sovereign exception and cancels its terms. This form of life is less post-metaphysical or anti-sovereign, than a-metaphysical and a-sovereign. Whatever is indifferent not because its status does not matter, but because it has no particular attribute which gives it more value than another whatever being. As Agamben suggests, whatever being is akin to Heidegger’s Dasein. Dasein, as Heidegger describes it, is that life which always has its own being as its concern — regardless of the way any other power might determine its status. Whatever being, in the manner of Dasein, takes the form of an “indissoluble cohesion in which it is impossible to isolate something like a bare life. In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into existence over which power no longer seems to have any hold” (Agamben 1998: 153). We should pay attention to this comparison. For what Agamben suggests is that whatever being is not any abstract, inaccessible life, perhaps promised to us in the future. Whatever being, should we care to see it, is all around us, wherever we reject the criteria sovereign power would use to classify and value life. “In the final instance the State can recognize any claim for identity — even that of a State identity within the State . . . What the State cannot tolerate in any way, however, is that the singularities form a community without affirming an identity, that humans co-belong without a representable condition of belonging” (Agamben 1993:85.6). At every point where we refuse the distinctions sovereignty and the state would demand of us, the possibility of a non-state world, made up of whatever life, appears.K Agamben (900 word 2NR overview)The main point of conflict in this debate is a choice between constituent and destituent power. Constituent power says that the law is bad, so we should make the law good. The AC exemplifies in constituent power because they engage with the legal system in an attempt to reform it. Even though they are technically taking away a law, the AC is still constituent power because they are investing energy and activism efforts into the law.Destituent power agrees that the law is bad, but instead of advocating for legal reform, destituent power recognizes that the law can never be made good because the structure of the law was created to reinforce power. Destituent power is an unequivocal no the law - instead of investing effort into reforming the law, we should instead. Whatever being is an example of destituent power. The legal system works through classifications such as guilt/innocent, child/adult etc. Whatever being monkey wrenches the legal system because it is a mode of existence that resists classificationIe. Don’t check the gender box, don’t check citizen or non citizen.Whenever a government is oppressive – ie mass incarceration, deportation etc – there are two elements involved- law and power. The AC conflates the two, thinking that the way to resist or constrain power was through the law – assuming that law can restrain powerThe thesis of this K is that law is an enabling mechanism that allows power to do bad things, not a method of restraining power.The AC thinks that the law is political and written on paper, and that bureaucracy follows those rules. Therefore, when the law is doing something bad, the solution is to change the law. But our collective affective investment in the law is what makes the law real. If people stop investing in the law, the law ceases to exist.Constituent power says that the law is bad, so we should make the law good. We agree that the law is bad, but we disagree – the law can never be made good because the structure of the law was created to reinforce power.The AC says that they are anti-law because they are negative state action BUT that presumes that the law is a list of physical rules that can be edited and modified. In reality, the law is affective, so the affirmative by talking about the law, animates the law, instead of walking away from the institution. The law only works because we believe in it.Tradeoff – in order to make destituent power work, we need to take the affective energy we invest in the law and invest it elsewhere. The AC funnels emotion and activism into legal reform which is a dead end – we should instead engage in anarchic destituent power. This is a better means of addressing the problem’s brought up in the AC.Circumvention – the government can change the law or get around that law. If the institutional and cultural factors that make plea bargaining a good idea for prosecutors aren’t reformed, prosecutors will always find a way around the new law – empirically proven - i.e. implicit bargains. Circumvention occurs because of the state of exception. We think that the law is a concrete law, but the government sets aside laws when it suits them. Therefore, if we don’t challenge the structure, legal reform does nothing.Inevitability – Orwell is forced to play the role of the white colonialist with the gun – everyone thinks this roleplaying inevitable, so they make the least bad choice - this functions at a metaphor of our K. Doyle explains how their worldview of inevitable roleplaying in the system makes them believe that they have to reform the law. Prosecutors don’t want to behave this way, but they do because a “sahib has to behave like a sahib”Cultural and institutional restraints overwhelm the law because they aren’t rational. The AC’s framing kills our ability to recognize this roleplaying in the first place. Bougtsy-Marshall provides policy impacts – root cause of cap, global warming etc.Freedom link – liberalism defines freedom as not being in prison – this is the AC’s definition. That simplistic conception is wrong – we are still constrained and unfree because of labels such as poor or black or a woman.Terminal impacts- war, colonization etc. Beckett framing – sociology is key to understanding the law. Criminal justice reform movements have made things worse – for example when Californians protested the death penalty, we temporarily banned death penalty, causing us to create a new life without parole sentence. When the ban was lifted, the life without parole sentence remained – reform attempts made the problem worse. Because the AC does’t address institutional dynamics – ie politicians feel they have to hard on crime to get elected – even if they change plea bargaining, if people think we’re soft on crime we’ll do more things to amp up punishment of criminals. Hard evidence proves that criminal justice reform doesn’t workAT permThe K isn’t an object, it’s a way of being. Whatever being is a way of being that is mutually exclusive with the AC because it engages in the law with the terms of political classification. The AC chose to live in a certain way – we think a different way of living is better, so you can’t do both. It’s not just adding together inanimate objects.CP CeilingCriminal justice systems within the United States should adopt “Plea Based Ceilings” as per Covey.Contention 1: Theory 1. The CP is not plan inclusive- it doesn’t eliminate any form of plea bargaining, it sets up restrictions on how trial sentences relate to plea bargaining offers2. The CP Competes A. Mutually exclusive- you can’t both abolish plea bargains and reform how they work at the same timeSupreme Court of Illinois 58 (Bernard F. Jordan et al., Appellees, v. Metropolitan Sanitary District of Greater Chicago et al., Appellants No. 3473215 Ill. 2d 369; 155 N.E.2d 297; 1958 Ill. LEXIS 422 November 26, 1958, Filed)No person shall be deprived of life, liberty or property, without due process of law. Ill. Const. art. II.III, § 2; Fourteenth Amendment. However, before a person can properly invoke these clauses he must establish that he is within the ambit of their protection. Generally speaking, public employment does not create property rights subject to the protection of due process. The legislature, having created the office or public position, may alter its terms or abolish it entirely. Positions held under the civil service enactments of the legislature are in the nature of offices and the salary created is not property. The right of compensation arises from the rendition of services and not from a contractual relation.B. Net benefits- any elimination of bargaining links to the disad. A rational policy maker would never take that risk when the CP solves the case. Evaluate solvency through a lens of sufficiency- even if the aff solves better the CP is enough to solve the advantage 3. Interpretation: the aff gets 1 permutation and it must have a written text given to the negative prior to the 1ARA. Permutations are unique- they are functionally advocacies which makes the text uniquely important. A written text is key to prevent aff conditionality and 2AR pivots we can’t respond toB. Reciprocity- we get 1 CP they should get 1 perm. Multiple perms are bad for debate- the aff makes five 2-word arguments in 1 second- its not reasonable to tell us to “flow” because no human can actually record that. Writing it down is not an unjust burden on the aff so they have no offenseC. Pre-emptive theory is a voting issue: the aff is told in advance what they have to do to avoid violating, this makes it uniquely fair. Theory should be evaluated through a lens of competing interpretations- the aff has to win offense for why the need multiple vague perms Contention 2: Solvency The CP solves the case and avoids the disads-PBC’s limit prosecutorial discretion and encourage transparency and equity in plea offers. Aff indicts assume a “fixed discount” system which is the opposite of what the CP does Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )In a standard fixed-discount system, like that incorporated into the Guidelines, the discount for guilty pleas is supposed to be invariable.' 8 But the prosecutor's ability to make near-binding sentencing recommendations and to engage in charge, fact, and cooperation bargaining render actual discounts potentially much greater and substantially more variable.' 9 This variability of course undermines the very purpose of fixed discounts, creating disparity among similarly situated defendants and destabilizing the incentives of innocent defendants to contest charges and of prosecutors to screen out low-probability conviction cases. Because charge and fact bargaining in particular are tactics deployed largely below judges' "radar screens," as long as prosecutors can use these tactics to increase discount size, there is little hope that a workable fixed-discount regime can be implemented. Plea-based ceilings, however, offer a solution to this enforcement problem by limiting prosecutors' ability to offer such inducements. A. How They Work The idea underlying plea-based ceilings is straightforward. Pleabased ceilings guarantee defendants that they will not receive a sentence following a trial conviction that is more severe than any plea offer made to them, adjusted upward by the appropriate fixed discount. To illustrate how this might function in practice, imagine a defendant charged with bank robbery. Say that the defendant's criminal history and the facts of the crime would normally result in a ten-year trial sentence and that the jurisdiction adopted a fixed discount of 33%. During bargaining, prosecutors offer the defendant a five-year deal.' ° With ceilings, the defendant could accept the offer or proceed to trial when, if convicted, he would face a maximum sentence capped by the plea-based ceiling at 7.5 years-that is, the same five-year sentence he would have received had he accepted the plea offer, adjusted upward to reflect the absence of the fixed discount.'51 The plea-based ceiling, in other words, mimics what conventional fixed discounts do (had he pled guilty, he would have received a 33% discount), except it works backwards. As a result, in a ceiling system, the defendant would know exactly what he risked in declining the plea offer, permitting him to calibrate more carefully his decision of whether to risk trial. Like fixed discounts in general, plea-based ceilings would dramatically curtail prosecutors' ability to induce defendants in weak cases to plead guilty. As noted above, because the prosecutor is bound by whatever plea offer she makes, it is very hard for her to make an offer that is sufficiently lenient to induce a defendant in a weak case to plead guilty.'52 If the prosecutor has a 10% chance of convicting the defendant on a charge that carries a ten-year term, her offer of six months might look good in a world without ceilings, but if the sixmonth offer creates a nine-month ceiling on the sentence the defendant could receive upon conviction at trial, then the inducement to plead guilty disappears. The defendant is markedly better off declining the plea offer and holding out for a trial. Although the defendant's initial ETS was one year, the defendant's ceiling-adjusted ETS falls to a mere 0.9 months, or roughly three days, after the plea offer.'53 Rational defendants should be willing to go to trial under these changed conditions. As a result, plea-based ceilings eliminate the power of lenient plea offers to induce guilty pleas in weak cases. The same is not true, however, in strong cases. Consider a defendant with an 80% POC. In that case, if the prosecutor offered the defendant the same five-year deal and the defendant rejected the offer, the maximum trial sentence would still be 7.5 years, and with an 80% POC, the defendant would have a substantially higher ETS of six years. This defendant would be better off (although only marginally) taking the plea offer than going to trial. A defendant who calculated the odds of conviction at near-certain (99%), would have an even stronger incentive to take the plea offer, since his ETS of 7.42 years exceeds the plea offer by nearly 50%. These discounts might well be large enough to induce defendants to plead guilty. Where the probability of conviction is high, experience indicates that defendants do accept plea bargains, even if the offered concessions are minor.'54 A jurisdiction that implemented a ceiling system would of course first need to determine an appropriate "plea discount.""'5 This itself might prove politically difficult.' To achieve a sufficiently high guilty-plea rate, the discount might have to be set much higher than 33%. As the data presented in Part II shows, the typical differential may exceed 100%, and discounts fixed below that range might (indeed, should) generate lower guilty-plea rates and higher trial rates.'57 Jurisdictions would then face the difficult situation of responding to increased trial demands or frankly acknowledging the existence of an embarrassingly high plea discount. Ideally, a compromise might be struck that reduces the differential below its current high rate, while making accommodation for a marginally lower guilty-plea rate.' 8 Because the point at which it is rational for a defendant to plead guilty is a strict function of the size of the posttrial penalty, considerations regarding the kinds of cases that should not settle should govern the size of the discount. If the trial penalty is fixed at 50% (comparable to a 33% plea discount), then the only cases in which accepting the plea offer is the rational strategy are cases in which the defendant will be convicted at least two out of three times (i.e., POC is 0.667 or greater).'5 9 If the trial penalty were increased to 100%, then defendants would be better off pleading guilty rather than going to trial in all cases where the POC was at least 0.50.' 60 With a 100% trial tax, the 80% POC defendant offered a five-year plea deal would have a sizeable incentive to take the deal, because his ETS otherwise is eight years. Ideally, the plea discount should not exceed the point at which prosecutors can induce guilty pleas in cases in which it is more likely than not that the defendant will be acquitted at trial.'6' Precluding guilty pleas in cases where the POC falls below 50% is consistent with prosecutorial guidelines that suggest that prosecuting such cases is unethical.'62 As noted above, the size of the plea discount will predictably determine the number and types of cases resolved through plea bargaining. As such, it will have important effects on both the mix of cases that go to trial and on prosecutorial screening decisions. In addition to setting the discount size, the jurisdiction would also need to ensure that prosecutors memorialize the plea-bargain terms in writing and present them in a way that provides defendants with an adequate opportunity to accept or reject them. The memorialization requirement is necessary to ensure that judges have a clear record to calculate the plea-ceiling sentence. Written plea agreements are also wise because they facilitate enforcement of any disputed terms, regardless of whether the sentence is imposed immediately on the basis of the plea bargain or after a trial, a point which federal policymakers at the DOJ have long recognized.'63 Written plea offers must include all terms. There can be no "secret deals," and prosecutors cannot make a plea offer available only if the defendant agrees first to accept it. 6 " Defendants must remain free to decline plea offers until formal acceptance of the plea. Prosecutors should not be permitted to make the extension of a plea offer contingent on its acceptance. If prosecutors are able to do so, plea ceilings will not work. Finally, ceiling jurisdictions would have to ensure that written plea offers are admissible at sentencing.16The CP avoids circumvention- by creating clear, enforceable requirements it better alters prosecutor behavior than bans Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )Although plea-based ceilings promise many of the benefits that conventional fixed discounts offer, there are important differences. First, plea-based ceilings would be not only far easier for judges to monitor and to enforce but also harder for prosecutors to evade through charge or fact bargaining than conventional fixed discounts. Second, unlike conventional fixed discounts, plea-based ceilings would not circumscribe sentencing discretion by limiting the scope of practical outcomes that can be achieved through plea bargaining. Pleabased ceilings would preserve the flexibility of prosecutors and, to a lesser extent, judges to take a wide range of relevant factors into account in determining the ultimate sentence.' 66 Plea-bargaining reforms that rely on fixed discounts or partial bans require careful judicial scrutiny of prosecutorial decision making to be effective.'67 As noted above, however, such scrutiny is not realistic.'68 Judges are not institutionally suited to evaluate plea bargains to determine whether any particular plea agreement provides the defendant with an overlarge discount from the expected trial sentence. Plea-based ceilings avoid these problems. Judicial oversight is simple in a plea-based ceiling system because ceilings focus judicial attention on hard facts. Upon presentation of a written plea offer at the sentencing hearing, judges would merely need to ensure that the trial sentence did not exceed the plea-offer sentence by more than the fixed discount. Because sentences are capped by the written plea terms offered by prosecutors, judges would not need to speculate about what charges the prosecutor might have brought or what facts the prosecutor might have alleged to determine whether the disparity between the plea-bargained sentence and the trial sentence was excessive. 9 Instead, the judge would only need to review the set of charges and the factual allegations underlying them that the prosecutor would have accepted to dispose of the case, determine what sentencing exposure that package entailed, and ensure that the sentence imposed does not exceed that amount by more than the ceiling permits.'7 ° That type of review falls well within the traditional scope of judicial competence. Not only would judges be able to enforce ceilings easily, prosecutors would have more difficulty evading the plea-based ceilings because they are keyed off the end product that the prosecutor most desires: the plea agreement itself. Prosecutors could not get plea agreements without first making (or acquiescing to) plea offers. With plea-based ceilings, prosecutors with weak cases could not induce defendants to plead guilty by making an excessively large plea offer because the same lenient plea offer would also protect the defendant from receiving a substantially harsher penalty after trial. 17 ' Regardless of whether the prosecutor sought to induce the plea through an overlarge sentence discount or by dismissing charges carrying overly large upward-sentencing exposure, barring imposition at trial of any sentence higher than the plea offer, adjusted upward to reflect the absence of a plea discount, would enforce the fixed discount. As a result, charge concessions would provide prosecutors no more bargaining leverage than sentence concessions. Obviously, plea-based ceilings would have a dramatic impact on the kinds of plea offers a prosecutor would be willing to make in the first instance. In a plea-based ceiling system, the prosecutor could not make extremely lenient plea offers in order to induce a guilty plea because this would simultaneously reduce the defendant's incentive to avoid trial without changing the likelihood of conviction. Because a lenient offer would not result in a plea agreement, the prosecutor will be far less likely to make such an offer, unless she believed it represented a substantively fair outcome.CP Ceiling (2NR Blocks)The CP competes- modify terms of pleas isn’t abolitionCOURT OF APPEALS OF TENNESSEE 96(COUNTY OF SHELBY, a Political Subdivision of the State of Tennessee; BOARD OF COUNTY COMMISSIONERS OF SHELBY COUNTY, TENNESSEE; and CHARLES R. PERKINS, as Chairman of the Board of County Commissioners of Shelby County, Tennessee, Plaintiffs-Appellants, JAMES W. ANDERSON, Superintendent of Shelby County Board of Education, RUBYE DOBBINS, CAROLYN BOBO, TOM BROOKS, HOMER BUNKER, FINIS F. FIELDS, CHERYL HALL and KAREN HILL, Individually and comprising the Shelby County Board of Education, Plaintiffs-Intervenors-Appellants, v. NED McWHERTER, Governor of the State of Tennessee; RILEY C. DARNELL, Secretary of the State of Tennessee; CHARLES W. BURSON, Attorney General of the State of Tennessee; and SHELBY COUNTY ELECTION COMMISSION, Defendants-Appellees. C.A. No. 02A01-9601-CH-00015 COURT OF APPEALS OF TENNESSEE, WESTERN SECTION, AT JACKSON 936 S.W.2d 923; 1996 Tenn. App. LEXIS 340 June 3, 1996, FILED)The office of county superintendent is not a constitutionally created office, rather, it is a legislatively created office. If the Legislature may change the form of county government and divest the county commission of all power not conferred upon it by the constitution, Blanton, 595 S.W.2d at 77, it necessarily follows that the Legislature can abolish legislatively created county offices. Our Supreme Court so held in State ex rel. Cummings [**15] v. Trewhitt, 113 Tenn. (5 Cates) 561, 566, 82 S.W. 480 (1904). The Cummings Court stated: "The office of county attorney is not provided for in the constitution, but was created for the county solely by legislative action. There can be no doubt, therefore, of the power of the legislature to lengthen or shorten the term, or to abolish the office altogether." Cummings, 113 Tenn. at 566.Fixed discounts transform incentive structure solving the case Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )In such a fixed-discount system, defendants who plead guilty would receive a standard, predetermined discount off the sentence they would have received had they been convicted after a trial." Alternatively, the size of the plea discount might be capped rather than fixed, as Oren Gazal-Ayal has recently proposed.' Both fixed discounts and Gazal-Ayal's caps are based on similar logic: a limitation on prosecutors' discretion to offer overly large guilty-plea discounts can shape the strategic decisions of both defendants and prosecutors in ways that ultimately improve the plea-bargaining process and reduce the risk that innocent defendants will be induced to falsely plead guilty. Fixed-plea discounts offer four primary benefits, which will be discussed in detail below. First, where large discounts are routinely offered, all defendants have strong incentives to plead guilty, including defendants in weak cases (presumably including a disproportionately large number of innocent defendants)." Fixed discounts prevent prosecutors from offering discounts so large that innocent defendants are essentially coerced to plead guilty to avoid the risk of a dramatically harsher sentence. Second, because fixed discounts limit prosecutors' ability to dispose of weak cases through plea bargaining by changing the defendant's incentive structure, fixed discounts directly impact prosecutorial screening practices, creating strong incentives to dismiss weak cases rather than try them. Third, fixed discounts reduce prosecutorial incentives to overcharge criminal defendants by eliminating the bargaining leverage that can be obtained through strategic overcharging." Absent those incentives, a prosecutor is more likely to select charges based on the prosecutor's actual evaluation of the defendant's culpability. Fourth, precisely because the discounts are fixed and available to every defendant who decides to plead guilty rather than contest guilt at trial, fixed discounts put an end to "barter justice," an aspect of the criminal process that is highly corrosive to the system's legitimacy in the eyes of the public, professionals who work in the criminal courts, and, perhaps most importantly, criminal defendants themselves.35CP changes incentive structure resulting in less innocent people pleading guilty, and more getting acquitted at trial Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )Fixed discounts address this problem by discouraging pleas in all cases in which the expected trial sentence falls below the fixed discount." By preventing prosecutors from making offers sufficiently lenient to entice defendants in weak cases to plead guilty, fixed discounts create varying incentives to plead guilty depending on the strength of the evidence of guilt. As a result, implementation of a system of fixed-plea discounts should change the mix of defendants who take their cases to trial by encouraging persons most likely to be acquitted to forgo guilty pleas (because the available plea sentence would be higher than the ETS), while encouraging those with high POCs, that is, those most likely to be convicted at trial, to plead guilty.6 Because weak cases are likely to include a disproportionate number of innocent defendants, fixed discounts should encourage a larger proportion of innocent defendants to refuse to plead guilty and to hold out for trial, where they will be acquitted in proportionately larger numbers.The CP is necessary and sufficient to change prosecutor behavior Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )In short, imposing limits on plea bargaining through fixed discounts would necessitate reforms in prosecutorial screening just as much as tightened screening would lessen pressure to plea bargain. This is a significant insight. After all, there is no reason to believe that prosecutors have any particular interest in adopting hard-screening policies without some external inducement. Fixed-plea discounts would provide the required inducement by making it difficult to dispose of weak cases later.' The more effective the fixed-discount system is-that is, the more difficult it is to negotiate a plea bargain that exceeds the maximum discount permitted-the stronger prosecutors' incentives are to screen out weak cases early rather than suffer the embarrassment of dismissing cases after charges have been filed or, worse yet, losing at trial.72 In sum, fixed discounts would compel prosecutors to diminish the number of weak cases they pursue by screening cases more carefully early in the investigative process, making more conservative charging decisions, and investing more resources into the investigation of those cases to ensure that they do not get stuck with unpleadable and untriable cases later.Reforms allow incorpoation of restorative justice concepts Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )While the article opposes shadow-of-trial efficiency as a measure for evaluating plea bargaining, it does not oppose reforms. Plea bargaining is not systematically unfair. However, courts might consider, for example, following practices through which they could more often accommodate sentencing reductions in plea-bargained cases with theories of remorse and apology. See generally Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 YALE L.J. 85 (2004)PIC “Structural Violence”PICCounterplan Text: We advocate the entirety of the aff plan without the use of the words “structural violence”.The counterplan is inherently competitive. Since we defend the entirety of the aff advocacy aside from a change in certain rhetoric a perm would be severance out of both the reps and the language of the 1AC. DefinitionThey misunderstand the meaning of the term “structural violence”. It is a specific term of art used in the sociological field of peace research that has been widely discredited by both critics and the terms creator. Structural violence” is a term coined by Johan Galtung, it refers to violence where no single decision maker is responsible- like poverty which results from the global economy, which ignores that multiple actors are responsible. Gatlung 12 Galtung Institute 12()Theories of structural violence explore how political, economic and cultural structures result in the occurrence of avoidable violence, most commonly seen as the deprivation of basic human needs (will be discussed later). Structural theorists attempt to link personal suffering with political, social and cultural choices. Johan Galtung’s original definition included a lack of human agency; that is the violence is not a direct act of any decision or action made by a particular person but a result of an unequal distribution of resources.Here, we must also understand “institutional violence”. “Institutional violence” is often mistaken for structural violence, but this is not the case. “Institutional violence” should be used to refer to violence perpetrated by institutions like companies, universities, corporations, organisations as opposed to individuals. The fact that women are paid less at an establishment than men is an act of direct violence by that specific establishment. It is true that there is a relationship with structural violence as there is between interpersonal violence and structural violence. And Structural violence is the most problematic area to be addressed for conflict BenefitsReliance on the vague concept of “structural violence” recreates oppression. Subpoint A: Theories of “structural violence” distract solutions to material conditions in favor of vague criticism of poorly defined systems. Existing structures will co-opt your criticism and the process trades off with more effective reforms. 1.Structural violence obscures analysis necessary to reduce poverty and violence- this card is on fire. Boulding 77 Kenneth Boulding, Prof Univ. of Michigan and UC Boulder, Journal of Peace Research 1977; 14; 75 p. Boulding p. 83-4Finally, we come to the great Galtung metaphors of ’structural violence’ and ’positive peace’. They are metaphors rather than models, and for that very reason are suspect. Metaphors always imply models and metaphors have much more persuasive power than models do, for models tend to be the preserve of the specialist. But when a metaphor implies a bad model it can be very dangerous, for it is both persuasive and wrong. The metaphor of structural violence I would argue falls right into this category. The metaphor is that poverty, deprivation, ill health, low expectations of life, a condition in which more than half the human race lives, is ’like’ a thug beating up the victim and taking his money away from him in the street, -or it is ’like’ a conqueror stealing the land of the people and reducing them to slavery. The implication is that poverty and its associated ills are the fault of the thug or the conqueror and the solution is to do away with thugs and conquerors. While there is some truth in the metaphor, in the modem world at least there is not very much. Violence, whether of the streets and the home, or of the guerilla, of the police, or of the armed forces, is a very different phenomenon from poverty. The processes which create and sustain poverty are not at all like the processes which create and sustain violence, although like everything else in the world, everything is somewhat related to everything else. There is a very real problem of the structures which lead to violence, but unfortunately Galtung’s metaphor of structural violence as he has used it has diverted attention from this problem. Violence in the behavioral sense, that is, somebody actually doing damage to somebody else and trying to make them worse off, is a ’threshold’ phenomenon, rather like the boiling over of a pot. The temperature under a pot can rise for a long time without its boiling over, but at some threshold boiling over will take place. The study of the structures which underlie violence are a very important and much neglected part of peace research and indeed of social science in general. Threshold phenomena like violence are difficult to study because they represent ’breaks’ in the system rather than uniformities. Violence, whether between persons or organizations, occurs when the ’strain’ on a system is too great for its ‘~s~trength’. The metaphor here is that violence is like what happens when we break a piece of chalk. Strength and strain, however, especially in social systems, are so interwoven historically that it is very difficulty to separate them. The diminution of violence involves two possible strategies, or a mixture of the two; one is the increase in the strength of the system, ~the other is the diminution of the strain. The strength of systems involves habit, culture, taboos, and sanctions, all these things, which enable a system to stand Increasing strain without breaking down into violence. The strains on the system are largely dynamic in character, such as arms races, mutually stimulated hostility, changes in relative economic position or political power, which are often hard to identify. Conflict of interest are only part of the strain on a system, and not always the most important part. It is very hard for people to know their interests, and misperceptions of interests take place mainly through the dynamic processes, not through the structural ones. It is only perceptions of interest which affect people’s behavior, not the ’real’ interests, whatever these may be, and the gap between perception and reality can be very large and resistant to change. However, what Galitung calls structural violence (which has been defined by one unkind commentator as anything that Galltung doesn’~t like) was originally defined as any unnecessarily low expectation of life, an that assumption that anybody who dies before the allotted span has been killed, however unintentionally and unknowingly, by somebody else. The concept has been expanded to include all the problems off poverty, destitution, deprivation, and misery. These are enormously real and are a very high priority for research and action, but they belong to systems which are only peripherally related to the structures which, produce violence. This is not to say that the cultures of violence and the cultures of poverty are not sometimes related, though not all poverty cultures are culture of violence, and certainly not all cultures of violence are poverty cultures. But the dynamics of poverty and the success or failure to rise out off ’it are of a complexity far beyond anything which the metaphor of structural violence can offer. While the metaphor of structural violence performed a ’service in calling attention to a problem, it may have done a disservice in preventing us from finding the answer.2. Galtung’s theory of structural violence perpetuates the status quo of dominant states by offering an overly vague criticism of oppression. Lawler 89 Peter Lawler (1989) A question of values: A critique of Galtung's peace research, Interdisciplinary Peace Research: formerly Pacifica Review: Peace, Security & Global Change, 1:2, 27-55, DOI: 10.1080/14781158908412711 In the late 1960's Galtung's foundational model of peace research was subjected to considerable criticism as part of a general upheaval within the peace research community. A group of young, mostly Scandinavian, radicals employed a neo-Marxist perspective to attack the assumptions of symmetry and ideological neutrality that formed the core of Galtung's argument (Schmid 1968, 1970; Olsen and Jarvad 1969; Eckhardt 1971; Dencik 1982). Though their primary target was American conflict research and its contribution to the analysis of the Vietnam War, they questioned also Galtung's assumption that the path to peace lay in the principles of integration and cooperation. For the radicals, Galtung's approach neglected the political-economy of relations between the developed and underdeveloped worlds and in its attempt to preserve a sym- metrical approach to violent conflict was guilty of 'idealistic universal- ism'. From the perspective of the oppressed, an argument for the further integration of the international system was tantamount to defending a status quo which reflected the interests of the dominant states and the beneficiaries of the world capitalist economy. Against this, the radicals called for a peace research that openly sided with the exploited and advocated the 'sharpening' of the various latent conflicts of interests that characterised global politics.3. Resolving “structural violence” requires action by international powers, as they are the only bodies capable of amending existing “structures”. This reliance on current institutions preserves existing structures of dominance. Schmid 68Peace Research and Politics; Herman Schmid; Journal of Peace Research, Vol. 5, No. 3, pp. 217-232; 1968; Sage Publications; research is an applied or 'oriented' science. An applied science has to be applied by somebody who has the power to apply it. In the case of peace research, this means there must be some kind of institutionalized link between peace re- searchers and decision-makers on the supranational level. Thus, the universalist ethos of peace research becomes operationalized into identification with the interests of the existing international system, that is the interests of those who have power 229 in the international system. So peace research becomes a factor supporting the status quo of the international power structure, providing the decision-makers of the system with knowledge for control, manipulation and integration of the system. That is the institutional aspect of peace research. The theoretical frame of reference dominating peace research closely cor- responds to the institutional needs: the peace researcher/specialist is trained in an ideology of internationalism; he has learned how to solve conflicts, how to integrate a system, how to avoid manifest organized violence, how to prevent major uprisings against the system; and he believes that what is good for the system is in the long run also good for its elements. His concept of peace is essentially a negative one, stressing the need for stable peace,38 and the 'common interest' he will have to fall back on is the avoidance of catastrophe. His positive concept of peace is not sui generis but a negation of his negative peace concept. The essence of peace research is concentrated in the concepts of control of the international sys- tem to prevent major breakdowns, and integration of the international system to make it more stable. That is the ideological aspect of peace research. The institutional and the ideological aspects presuppose and condition each other. To become applied, peace research must meet the needs of the decision- makers. To satisfy their concern about stable peace, peace researchers must ally themselves with the decision-makers of the international system. Given this situation, change of the system can not be advocated by peace research. Structural change would be a threat to the power-holders of the international system. Only adaptive change within the system is possible.all! But the drive for equality as such is extremely strong in all his writings.4. Theories of structural violence offer a one-sided mechanism of achieving equality in which instead of aiding the poor we focus primarily on bringing down the rich, resulting in a system that is technically equal but objectively destitute. Boulding 77Twelve Friendly Quarrels with Johan Galtung; Kenneth E. Boulding; Journal of Peace Research, Vol. 14, No. 1 (1977), pp. 75-86; Sage Publications, Ltd; of his passion for equality, his hatred of hierarchy, dominance, top dogs, and anything which looks like oppression (much of which is praiseworthy), Galtung identifies entropy as a symbol of goodness and regards negentropy, that is, structure, improbability, and potential, as evil. Galt- ung is all for the increase of social entropy so far as that means destruction of organi- zation and hierarchy, the dissipation of wealth, 'and the reduction of everything to a dead level. It would almost seem as if Galtung would regard the last ultimate whimper of the universe, according to the second law of thermodynamics, in which all things are at an equal temperature and equally distributed throughout space so that nothing more can 'conceivably happen, as the ultimate heaven, or perhaps one should say Nirvana, towards which all this uncom- fortable and unequal structure of stars and planets, life and society, will eventually move. Here we see the profound difference be- tween the structural and the evolutionary points of view. The structural point of view turns out to be inimical to the ideal of struc- ture itself, and sees structure as the enemy of equality - which it is. The evolutionary point of view sees the whole evolutionary process as the segregation of entropy, the building up of little castles of order in the crystal, in DNA, in life, in humans, and in their innumerable artifacts both personal, material and organizational, always at the cost, according to the second law, of increas- ing thermodynamic disorder elsewhere, in our case of course nicely segregated in the sun about which we don't have to worry. The structuralist sees pollution in the struc- ture whether it is smoke, slums or vice and says 'away with it. The evolutionist sees pollution as part of the price of evolution itself. Gal'tung's misunderstandings about entro- py derive, one suspects, from the cardinal principle of his normative system, the over- whelmingly strong value which he gives to equality as such. One almost suspect's that Galtung would prefer a society in which everybody were equally destitute rather than one in which some were destitute and 'some were rich. A passion for equality as such, however, can easily lead into the hatred of the rich without any love for the poor. One can put a very strong negative value on poverty and believe it should be abolished wi'thout believing in equality at all. This would lead to a society with a floor below which nobody were allowed to fall, but above which a high degree of inequality would be tolerable. Galtung nowhere spells out what his ideal society would be, and in- deed if any of us did this we would probably decide that we did not like it af'ter all! But the drive for equality as such is extremely strong in all his writings.Subpoint B: Attempts to resolve “structural violence” inevitably result in the perpetuation of physical violence that shuts off democratic channels for minority representation. 1. The concept of structural violence shuts down democratic debate and justifies violent lash outs to combat inequality. Maley 88 William Maley, Professor and Director of the Asia-Pacific College of Diplomacy at The Australian National University , Australian Journal of International Affairs 42, 1988The deployment of a notion of positive peace has been a far from innocuous development in peace research. A comprehensive theory of needs, where needs are not defined simply as necessary means to an agreed end, can be the basis for a suppression of both democratic and liberal aspirations. Democracy and Liberty are both concerned with personal desires, the former in the sphere of the polity, and the latter in the sphere of the individual. Needs theory subjugates both the individual and the polity to the abstract ideology of the needs theorist. When Maxim Litvinov remarked in Geneva in the 1930s that peace is indivisible, he was referring to the negative sense of the term. 'Negative peace' is one of the few social values in whose name crimes can be committed only at the cost of self-contradiction. However, if 'negative peace' must be associated with 'positive peace' to give rise to peace in totality, then peace is no longer indivisible —since direct violence may be defended as a means of eliminating `structural violence'. This defence is a familiar one, resembling the classic liberal justification for rebellion, and even in certain circumstances intervention. Christian Bay has argued that structural violence `may be so extreme that a limited war must be deemed a lesser evil, if there is no other way to end or mitigate the structural violence, and if the war is sure to remain limited and brief in duration.'" This blithe assumption — that there could ever be circumstances in which one could be absolutely sure that a war would remain limited and brief in duration — is a splendid illustration of Bay's detachment from the real world. Nonetheless, the greatest danger in his claim stems from the extraordinary elasticity of the notion of structural violence. This is best brought out by the Danish peace researcher Lars Dencik, although using slightly different terminology. He defines conflicts as `incompatible interests', and goes on to remark that 'incompatible interests are here defined objectively, i.e. by the observing scientist according to his theory and is [sic] independent of the actual subjective consciousness of the actors involved. This means that incompatible interests are conceived of as structural (actor indepen-dent), the structure defined according to the theory of the scientist.'" He draws the predictable conclusion that 'in certain situations "revolutionary violence" may be the necessary means to obtain conflict resolution proper'." This is irresistibly reminiscent of the conclusion of Georges Sorel's Reflections on Violence, that it is `to violence that Socialism owes those high ethical values by means of which it brings salvation to the modern world'20, and it is instructive, though for peace educators perhaps not very comforting, to recall that Sorel's ideas eventually were used in justification of Italian Fascism." (p. 30)2. Democratic deliberation is key to avoid massive violence. Halperin 11 (Morton H., Senior Advisor – Open Society Institute and Senior Vice President of the Center for American Progress, “Unconventional Wisdom – Democracy is Still Worth Fighting For”, Foreign Policy, January / February, )As the United States struggles to wind down two wars and recover from a humbling financial crisis, realism is enjoying a renaissance. Afghanistan and Iraq bear scant resemblance to the democracies we were promised. The Treasury is broke. And America has a president, Barack Obama, who once compared his foreign-policy philosophy to the realism of theologian Reinhold Niebuhr: "There's serious evil in the world, and hardship and pain," Obama said during his 2008 campaign. "And we should be humble and modest in our belief we can eliminate those things." But one can take such words of wisdom to the extreme-as realists like former Secretary of State Henry Kissinger and writer Robert Kaplan sometimes do, arguing that the United States can't afford the risks inherent in supporting democracy and human rights around the world. Others, such as cultural historian Jacques Barzun, go even further, saying that America can't export democracy at all, "because it is not an ideology but a wayward historical development." Taken too far, such realist absolutism can be just as dangerous, and wrong, as neoconservative hubris. For there is one thing the neocons get right: As I argue in The Democracy Advantage, democratic governments are more likely than autocratic regimes to engage in conduct that advances U.S. interests and avoids situations that pose a threat to peace and security. Democratic states are more likely to develop and to avoid famines and economic collapse. They are also less likely to become failed states or suffer a civil war. Democratic states are also more likely to cooperate in dealing with security issues, such as terrorism and proliferation of weapons of mass destruction. As the bloody aftermath of the Iraq invasion painfully shows, democracy cannot be imposed from the outside by force or coercion. It must come from the people of a nation working to get on the path of democracy and then adopting the policies necessary to remain on that path. But we should be careful about overlearning the lessons of Iraq. In fact, the outside world can make an enormous difference in whether such efforts succeed. There are numerous examples-starting with Spain and Portugal and spreading to Eastern Europe, Latin America, and Asia-in which the struggle to establish democracy and advance human rights received critical support from multilateral bodies, including the United Nations, as well as from regional organizations, democratic governments, and private groups. It is very much in America's interest to provide such assistance now to new democracies, such as Indonesia, Liberia, and Nepal, and to stand with those advocating democracy in countries such as Belarus, Burma, and China. It will still be true that the United States will sometimes need to work with a nondemocratic regime to secure an immediate objective, such as use of a military base to support the U.S. mission in Afghanistan, or in the case of Russia, to sign an arms-control treaty. None of that, however, should come at the expense of speaking out in support of those struggling for their rights. Nor should we doubt that America would be more secure if they succeed.3. Combatting “structural violence” justifies reactionary violence against a system that is poorly defined. This makes conflict inevitable and trades-off with peaceful reform. Quester George H. Quester is chair of the Department of Government and Politics at the University of Maryland, ANNALS, AAPSS, 504, July 1989A third major problem to be raised about some forms of peace research and peace studies, again related to what we have al- ready discussed, arises in the tendency to define peace as much more than an absence of the organized violence of warfare, to define it indeed as the elimination also of poverty and injustice and of prejudice and tyranny, and so on-namely, to define peace simply as a synonym for what is good, for what an economist would call utility. Sometimes we are thus told that an op- position to violence must include an oppo- sition to "structural violence,"7 with the latter phrase presumably meaning any or- ganizational or power relationships that vi- olate the moral standards of the beholder, or we are also told that we must be in favor of "positive peace," which will include all of these good things, accomplished some- how simultaneously, rather than being con- tent with a "negative peace," limited merely to an absence of warfare. Surely there is a great deal that is lost from all of these definitional innovations, but what is there to be gained? If someone assumed, as noted previously, that con- sciousnesses somehow have to be raised, then it may well seem important. as an educational and motivational vehicle, to insist that peace includes an end to poverty or racism. If one assumes that there can never be an avoidance of war unless one simultaneously has an avoidance of pov-erty or racism or other social evils, then this causal link will also suggest a definitional link. But, if there is indeed no such one-to- one link in causal relationships and if mo- tivation is not the entirety of the problem of war and peace, then we surely will have thrown away a great deal of clarity if we insist on calling everything bad "war" or "violence" and if we insist on referring to everything we favor as "peace." This would be a little like telling the American Cancer Society that every disease now has to be referred to as "cancer," including heart disease and cholera and meningitis. Can medicine make any progress at all if it is not allowed to use different words for different ailments? Is it really true that to use different words for war and dictator- ship and poverty is to weaken our motiva- tion or to accept the inevitability of some evils or actually to favor the existence of such evils? If one goes far enough in accepting the definitional innovations produced by some peace studies curricula, it becomes possi- ble then to define violent attacks as peace- ful, as long as they are intended to eliminate racism or injustice, because these attacks are to oppose "structural violence." At the worst, this kind of redefinition is deliberately misleading, as war and vio- lence are defined as being inappropriate for any cause except one's own. At a less du- plicitous level, we simply have some need- less confusion brought into the process, by some relatively honest and well-meaning people.Subpoint C: The term “structural violence” is insufficient for diagnosing the reality of oppression. It is not a method for liberation, just an ivory tower theory. 1. The term “structural violence” is incredibly vague. It can refer to any form of exploitation. Leech 12Galtung’s ‘Structural Violence’ and the Sierra Leone Civil War?c.1985-1992; Dr. Philip JM Leech [lecturer in International Relations at Plymouth University where he teaches International Relations of the Middle East]; October 12, 2012; critical element or link in the chain of this ‘causal flow’ (200 Galtung, 1996) is structural violence. It is the process that links cultural distinction to Direct Violence. Structural violence is an ostensive label that may be applied to a broad range of phenomena. What Galtung notes as definitive is that Structural violence is the process of deprivation of needs. Each part of the violence equation depends on the existence of the other two before the violent conflict become truly serious and sustained? (197-200 Galtung, 1996). It need not be consistent or radical . Simply put, it is violence embodied by a structure, or violence that ‘operat[es] regardless of intent’ (93 Galtung, 1996). It is characterized politically as repression, and economically by exploitation. However, Galtung notes that ‘blunt repression/exploitation is necessary but not sufficient’ (93 Galtung, 1996). In fact the nature of structural violence is somewhat vague in that it allows the quantity and the qualitative nature of aggression and dominance to be variable (201 Galtung, 1996).2. “Structural violence” cannot explain social changes or the exact origins of violence beyond the fact that it simply exists. Lawler 89Peter Lawler (1989) A question of values: A critique of Galtung's peace research, Interdisciplinary Peace Research: formerly Pacifica Review: Peace, Security & Global Change, 1:2, 27-55, DOI: 10.1080/14781158908412711 In his sociological writings Galtung provided no analysis or defence of any specific values, other than to claim that they were empirically held, or to assert that values should be revised in reflection of systemic changes. What was missing was a sense of the politics of social change. Even if consensus could be established as to the direction in which a social system is moving, it is a different matter to evaluate such change. Furth-ermore, how are we to choose between competing and non-commensurable understandings of systemic 'health'? The only answer implicit in Galtung's discussion was that empirical evidence must be produced to show which set of values accorded best with the social system under scrutiny. That brings us back full-circle to the value-contamination of observation and the impact of the political perspective that conditions our analysis of social systems. Functionalism can be wedded to any political ideology, but being a descriptive rather than analytical discourse it cannot provide that ideology. Though aware of the problem of defending values outside of a dis-tinctly normative discourse, Galtung was not apparently perturbed by it. In his discussion of functionalism (1959a) he claimed that there were' fairly inter-subjectively communicable and consensual standards' such as 'sane', 'healthy' or 'normal', against which social systems could be judged. For Galtung, to describe a system as 'healthy' was not a value-judgement, in contrast to the claim that 'healthy is good'. Leaving aside the question as to whether the distinction holds or if 'fairly consensual 'constitutes a scientific category, it became clear that when Galtung turned to peace research the evaluative standard of 'peace' was to be sim-ilarly derived and understood. In its Galtungian mould, peace research was differentiated from earlier forms of normative enquiry into global social relations by the absence of any distinctly normative discourse. 3. Galtung’s theory of structural violence is entirely theoretical. It makes massive leaps in logic and cannot even quantify the violence people suffer. RummelUNDERSTANDING CONFLICT AND WAR: VOL. 5: THE JUST PEACE, Chapter 3, Alternative Concepts Of Peace*; R.J. Rummel; violence appears, for Galtung, when resources, or especially the power to allocate them, are unevenly distributed: when people are starving and this could be avoided; when life expectancy is much greater in the upper class; when a small elite control the entry into high status. Here, without any prior ethical analysis or normative preparation,110 Galtung makes his first intellectual broad jump from the analytical-empirical plane to the ethical, but in a most cavalier manner: "In order not to overwork the word violence we shall sometimes refer to the condition of structural violence as social injustice."111? Then Galtung presents his final two distinctions (dimensions) regarding violence: it may be intended or unintended, or manifest or latent. With these and the other distinctions mentioned, Galtung defines a "typology of violence" in which the personal-structural distinctions are basic. In focusing on the means of personal and structural violence Galtung makes his second broad jump, but now back from the ethical to the analytical-empirical plane--again without analysis and as offhanded: "If we accept that the general formula behind structural violence is inequality, above all in the distribution of power, then this can be measured."112? D. His Concept of "Positive Peace." The above serves as an introduction to six factors maintaining inequalitarian distributions--that is, "mechanisms of structural violence"113--which are of no concern here. Nor need we tarry over Galtung's discussion of the relationship between personal and structural violence, and the trade-offs in emphasizing a system that is higher on one than another. But what I should mention is his conclusion on the definition of peace: ? E. His Political Theory. Thus, structural violence = unactualized human potentials = social injustice = inequality. Therefore, positive peace = equality = social justice = realized human potentials = absence of structural violence. This equation is stipulated; analysis to support the critical relationships are lacking; and the definitional and substantive problems in the formulation are glaring. One should understand, however, that the critical relationships and definitions are entirely theoretical. Even violence, usually an easily measured empirical concept of physical harm and destruction, is converted into a construct meaning unactualized human potential, then equated in theory with injustice and, thence, equality--each of them constructs.PICs GoodOur interp is that Pics are legitimate as long as they exclude a central component of the AFF that they choose to include. Solves their offense - PICS are only abusive when they moot the 1AC by excluding a trivial or not aff chosen component of implementation. Our offense 1. Fair side balance – PICs offset advantage of case selection, literature biased advantages, and the inherent problems with the status quo. The aff gets infinite prep to write the most strategic AC2. Depth of Education – focusing on intricacies highlights comparative argument quality as well as moving past a vague “good/bad” focus. Prefer in depth strategies over generics that don’t generate clash3. Strategic Research – PICs encourage innovative research that avoids stale debates and bridges different parts of the literature. Our PIC directly engages the literature base of the AC4. Intelligent Plan Writing and AFF Research – AFFs are forced to defend and research every part of the plan through in-depth analysis. No pics guarantees important arguments will be pushed aside in favor of high magnitude nonsense 6. discursive advocacy sills: To be real policymakers people need to be aware of language – this type of education is most useful. WoodsSteve Woods, [Director of Forensics at Western Washington University], “Changing the Game?: Embracing the Advocacy Standard”, [No date given] The world of policy technocrats and public decision makers is bound to strict codes of expectation regarding their public statements about constituencies and members of the public. Racist or gender-insensitive comments would not be tolerated by administrators, especially those who see such comments as public liabilities. In the debate context, making sure that all references or literature introduced into the debate are consistent, and that the in-round rhetoric of the debater in explaining the arguments is consistent with the assumptions of the literature, is a parallel expectation.5. Key to CP Ground – virtually every CP could be classified as a PIC and in the real world PICS are an important part of legislative deliberation- if Obama pushes tax cuts for the poor republicans can counter with tax cuts for the richOutweighs their offense – this is a key form of engagement for negatives to answer well written plans and promotes important policy education. Jourde 2Cedric Jourde * Ph.D., Political Science, University of Wisconsin-Madison, Madison, 2002 * M.A., Political Science, University of Wisconsin-Madison, Madison, 1996 * B.Sc., Political Science, Université de Montréal, Montréal, 1995 Hegemony or Empire?: The redefinition of US Power under George W Bush Ed. David and Grondin p. 182-3 2006 Relations between states are, at least in part, constructed upon representations. Representations are interpretative prisms through which decision-makers make sense of a political reality, through which they define and assign a subjective value to the other states and non-state actors of the international system, and through which they determine what are significant international political issues.2 For instance, officials of a given state will represent other states as 'allies', 'rivals', or simply 'insignificant', thus assigning a subjective value to these states. Such subjective categorizations often derive from representations of these states' domestic politics, which can for instance be perceived as 'unstable*, 'prosperous', or 'ethnically divided'. It must be clear that representations are not objective or truthful depictions of reality; rather they are subjective and political ways of seeing the world, making certain things 'seen' by and significant for an actor while making other things 'unseen' and 'insignificant'.3 In other words, they are founded on each actor's and group of actors' cognitive, cultural-social, and emotional standpoints. Being fundamentally political, representations are the object of tense struggles and tensions, as some actors or groups of actors can impose on others their own representations of the world, of what they consider to be appropriate political orders, or appropriate economic relations, while others may in turn accept, subvert or contest these representations. Representations of a foreign political reality influence how decision-making actors will act upon that reality. In other words, as subjective and politically infused interpretations of reality, representations constrain and enable the policies that decision-makers will adopt vis-a-vis other states; they limit the courses of action that are politically thinkable and imaginable, making certain policies conceivable while relegating other policies to the realm of the unthinkable.4 Accordingly, identifying how a state represents another state or non-state actor helps to understand how and why certain foreign policies have been adopted while other policies have been excluded. To take a now famous example, if a transnational organization is represented as a group of 'freedom fighters', such as the multi-national mujahideen in Afghanistan in the 1980s, then military cooperation is conceivable with that organization; if on the other hand the same organization is represented as a 'terrorist network', such as Al-Qaida, then military cooperation as a policy is simply not an option. In sum. the way in which one sees, interprets and imagines the 'other* delineates the course of action one will adopt in order to deal with this 'other'. Theory is an attempt to evade criticism and perpetuates exclusion where we have to jump through hurdles to ever talk about oppression. Smith 13 Elijah Smith, A Conversation in Ruins: Race and Black Participation in Lincoln Douglas Debate, Vbriefly, 2013. NSIt will be uncomfortable, it will be hard, and it will require continued effort but the necessary step in fixing this problem, like all problems, is the community as a whole admitting that such a problem with many “socially acceptable” choices exists in the first place. Like all systems of social control, the reality of racism in debate is constituted by the singular choices that institutions, coaches, and students make on a weekly basis. I have watched countless rounds where competitors attempt to win by rushing to abstractions to distance the conversation from the material reality that black debaters are forced to deal with every day. One of the students I coached, who has since graduated after leaving debate, had an adult judge write out a ballot that concluded by “hypothetically” defending my student being lynched at the tournament. Another debate concluded with a young man defending that we can kill animals humanely, “just like we did that guy Troy Davis”. Community norms would have competitors do intellectual gymnastics or make up rules to accuse black debaters of breaking to escape hard conversations but as someone who understands that experience, the only constructive strategy is to acknowledge the reality of the oppressed, engage the discussion from the perspective of authors who are black and brown, and then find strategies to deal with the issues at hand. It hurts to see competitive seasons come and go and have high school students and judges spew the same hateful things you expect to hear at a Klan rally. A student should not, when presenting an advocacy that aligns them with the oppressed, have to justify why oppression is bad. Debate is not just a game, but a learning environment with liberatory potential. Even if the form debate gives to a conversation is not the same you wouldOur Defense-1. Doesn’t Skew Ground – the AFF can turn our net benefit by utilizing their AC framing- if they have no ground vs this strategy they should have written a better AC2. No Infinite Regress – competition is an adequate standard and the AFF literature predictably defines what we can run- if our net benefit doesn’t clash we lose anyway 3. Doesn’t Trivialize – our net benefits prove a significant difference and trivial distinctions are often the most important to policy questions4. No right to case harms – debate is about policy making, not about who finds the best impact arguments6. Not a Voting Issue – reject the illegitimate argument, not the negative-you can still vote for the net benefit 7. DA’s aren’t enoughA. CPs are needed to deal with entrenched status quo trends as well as understand different processesB. CPs are a critical part of reciprocity, while DAs alone create unfairnessC. Only CPs test comparative necessity, while DAs test desirability9 HW SK Aff StockAdvantage 1 – SV 1. Sessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power. Pendergrass 5/26Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 1t, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the t00,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.2. Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, nt8 including the right to redress sentencing errors that have not yet occurred. nt9 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n3t on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n4t Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] 3. Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire CJS. Weil 12Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.4. This results in cycles of criminalization, dehumanization, and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the t.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Advantage 2 – Judicial Legitimacy, Trump1. Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. NOVEMBER 21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.t million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the tnd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.2. A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.3. Perception that court decisions are done through back room deals tanks legitimacy. Stephanos Bibas. 2006 Associate Professor, University of Iowa College of Law; Visiting Associate Professor, University of Chicago Law School; Professor designate, University of Pennsylvania Law School; former Assistant U.S. Attorney, Criminal Division, U.S. Attorney's Office for the Southern District of New York. B.A., Columbia University; B.A. and M.A., University of Oxford; J.D., Yale Law School NEW YORK UNIVERSITY LAW REVIEW VOLUME 81 JUNE 2006 NUMBER 3 / SMToday, however, criminal justice is the province of professionals. A gulf divides the knowledgeable, powerful participants inside American criminal justice from the poorly informed, powerless people outside of it. The insiders-the judges, prosecutors, police, and defense counsel who regularly handle criminal cases-are professional repeat players who dominate criminal justice. They come to know the kinds of crimes, defendants, and sentences that dominate the justice system. They understand the intricate, technical rules that regulate arrests, searches and seizures, interrogations, discovery, evidence, and sentencing, as well as the going rates in plea bargaining. In short, they are knowledgeable. Insiders control the levers of power, deciding which cases to charge, which crimes and defendants should receive probation, and what prison sentences are appropriate. They reach many of these decisions in private negotiating rooms and conference calls; in-court proceedings are mere formalities that confirm these decisions. In an earlier era, lay juries and the litigants themselves called many of these shots at public trials. In a world in which plea bargaining resolves almost 95% of cases,1 however, professionals (especially lawyers) run the show. 1 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 4t6-t7 tbl.5.t4 (2004), available at http:// albany.edu/sourcebook/pdf/t5t4.pdf (reporting that in fiscal year 2003, 95.4% of criminal defendants in federal district court whose cases were not dismissed pleaded guilty or no-contest); id. at 450 tbl.5.46, available at t546.pdf (reporting that in 2000, 95% of state felony convictions resulted from guilty pleas). These figures exemplify a trend in recent decades away from trials and toward pleas. As recently as 1990, only 83.7% of federal criminal defendants whose cases were not dismissed pleaded guilty or no-contest. Id. at 4t3 tbl.5.tt, available at sourcebook/pdf/t5tt.pdf (displaying increasing proportion of pleas and decreasing proportion of trials since 1970s); see also BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1994, at 486 tbl.5.49 (1995), available at (reporting that in 199t, 9t% of state felony convictions resulted from guilty pleas). While not all guilty pleas result from plea bargains, most felony guilty pleas do. HERBERT S. MILLER ET AL., U.S. DEP'T Reprinted with Permission of New York University School of Law [Vol. 81:911 TRANSPARENCY IN CRIMINAL PROCEDURE Insiders also have a distinct set of incentives and practical concerns. While they may share the public's intuitions about justice and retribution, they also have self-interests in disposing of large caseloads quickly, reducing their own workloads, rewarding cooperative behavior, and ensuring certainty of conviction and sentence at the cost of severity. Dealing face-to-face with offenders, they may develop sympathy and see individualized mitigating and aggravating factors that the public does not. There is also some evidence that insiders mellow with time, perhaps because repeated exposure dulls outrage and makes some crimes seem less heinous.t Outsiders, namely the general public and many victims, have a very different perspective. To them, the criminal justice system seems opaque, hidden behind closed doors, and cloaked in jargon, technicalities, and euphemism. Public information about criminal justice is notoriously inaccurate and outdated, derived from television and movies in which trials are worlds away from the reality of plea bargaining. Outsiders have few ways to learn about, let alone participate in, the progress of most pending cases unless a newspaper publishes a verdict or sentence after the fact. Instead of participating in jury trials, the public must rely on sensationalist and often distorted media accounts of atypical, high-profile cases, from which citizens overgeneralize about the system as a whole. Politicians seize on these salient examples to whip up popular outrage at what may be an aberration rather than a trend. Thus, surveys show that outsiders consistently underestimate the average nominal sentences for particular crimes and so believe they need to be stiffened. In addition, outsiders do not share insiders' agency costs, their aversion to risking acquittals, and their jadedness or mellowing over time.3 The result is an enduring tension between self-interested insiders and excluded outsiders. The insiders have firsthand knowledge and understanding, run the show, and accommodate their own pragmatic concerns and self-interests. The outsiders find criminal justice opaque, run by lawyers, and more concerned with efficiency and technicalities than with justice. This tension is far from an absolute dichotomy. Insiders bring their senses of justice to bear and not just their self-interests, and outsiders can at least dimly see some of the practical constraints on insiders. Moreover, outsiders are not by nature more harsh or punitive. When surveyed in the abstract, outsiders say they believe the OF JUSTICE, PLEA BARGAINING IN THE UNITED STATES 17 (1978) (basing this finding on field research). t See infra note 30 and accompanying text. 3 See infra Part I.C. Reprinted with Permission of New York University School of Law June 2006] NEW YORK UNIVERSITY LAW REVIEW criminal justice system is too lenient. But when confronted with detailed cases, the public is often no more punitive than insiders,4 apart from the jading or mellowing process mentioned earlier. On average, however, insiders are more concerned with and informed about practical constraints, and they are comfortable with the trade-offs and the system that they themselves run. Outsiders, knowing and caring less about practical obstacles and insiders' interests, focus on process values and offenders' just deserts. The gap in information, participation, and self-interests causes insiders' and outsiders' views to diverge. While victims and the public expect police and prosecutors to represent their interests in a sense, each group has a markedly different perspective. 4. A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 19t3 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.5. And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan Text1. The Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” t6 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.2. Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."t With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.t " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. t History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.Framework1. Rights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.18t? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'859 HW SK Neg Defense Abuse1. No coercion and multiple checks on innocent PB Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The phenomenon of factually innocent defendants pleading guilty raises a special concern about plea bargaining. Plea offers made to these defendants involve no inherent coercion or unconscionability. The same conclusions based on autonomy that apply to factually guilty offenders apply with equal force to factually innocent defendants. Unlike the factually guilty offender 159 who pleads guilty and receives deserved punishment, however, the factually innocent defendant who pleads guilty does not deserve any sanction. Current law and practice surrounding plea bargaining reflect ambivalence about this problem. American lawmakers have not abolished plea bargaining to prevent innocent people from pleading guilty, despite both warnings from academics that bargaining promotes false guilty pleas and convincing 160 evidence that they sometimes occur. The Supreme Court has also 161 concluded that a trial court can accept a guilty plea from a defendant who proclaims his innocence as long as a strong factual basis for the plea exists.162 At the same time, many trial judges take precautions to try to prevent guilty pleas by innocent persons. At the guilty-plea proceeding, many judges require the defendant to assent to or even recount in his own words a story of guilt as a prerequisite to entering the plea, and they will rescind the plea before 163 sentencing if the defendant proffers a claim of innocence.1642. Abolition harms innocents MORE than PB Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Those who urge abolition of bargaining to save innocent defendants also gain nothing by noting the inefficiency of most bargains. Whether too high or too low, the inefficiency does not mean that innocent defendants are better off without bargaining. Even in the face of an inefficiently harsh plea offer, an innocent defendant may prefer the deal, and, certainly, he may prefer the inefficiently lenient one. A significant number of innocent defendants are found guilty at trial, and the litigation process itself can be onerous and expensive. Consequently, denying the bargaining option would only compound the horror for those innocents who would favor a bargained plea. The argument for abolition based on the problem of innocent defendants gains no traction by rebutting shadow-of-trial efficiency theory. Ultimately, the situation of innocent defendants presents competing concerns that the law cannot simultaneously remedy. On the one hand, concern for public trust in the criminal justice system does not warrant trying to foreclose innocents from pleading guilty. Abolition of plea bargaining would harm innocent defendants by denying them a risk-reducing option. This remedy would also not significantly further the public interest. Any public cost resulting from exonerations after guilty pleas is tiny and is 175 surely outweighed by the high costs of attempting to abolish bargaining. On 176 the other hand, lawmakers should not, out of concern for innocents, abandon the meaning of the guilty plea, such as by replacing all guilty pleas with pleas of nolo contendere. That approach would not only promote erroneous convictions but would also confuse the moral meaning of the criminal law by allowing factually guilty offenders to accept deals while claiming their innocence.177 Given the dilemma, the current approach to bargaining is difficult to improve. The law allows plea bargains by innocent defendants, but does not 178 encourage them. Indeed, many trial judges take strong steps to try to discourage these bargains. The law sometimes reflects conflicted views 179 about certain conduct. The question of innocent defendants who wish to plead guilty presents an example. The desire to maintain both plea bargaining and 180 the moral meaning of guilty pleas produces ambivalence about innocent defendants’ decisions.3. Stats show few innocents take the deal Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The number of innocent defendants who accept bargained guilty pleas is uncertain. Recent empirical evidence hints that, at least in serious cases, far fewer innocent persons plead guilty than proceed to trial. A study of official exonerations in the United States from 1989 through 2003, led by Professor 165 Samuel Gross, found that less than six percent of the persons exonerated (19 out of 328) had pled guilty. Particularly if many innocent defendants who 166 go to trial are acquitted, this figure does not support claims that innocent defendants are generally more risk averse regarding trials than factually guilty defendants or that prosecutors frequently persuade innocent defendants with 167 irresistibly low plea offers. Those relying on this study, however, should 168 do so cautiously. The proportion of false convictions due to guilty pleas probably exceeds the exoneration figure from the study, because pleading 169 guilty, as opposed to being convicted after trial, likely makes subsequent exoneration more difficult. The Gross researchers also noted two unusual 170 mass-exoneration cases, not included in the study, in which large proportions of innocent defendants pled guilty, suggesting that many innocent defendants faced with a seemingly strong government case will opt for the bargain. In 171 addition, while the study focused only on cases involving death or a long prison term (where exoneration efforts generally focus), more innocent offenders may enter bargained guilty pleas in minor cases. Hence, the 172 Gross study does not definitively show the proportion of innocent defendants who accept plea offers, although it confirms that some innocents do succumb.4. Lenient plea offers help innocent defendants Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Does the fact that innocents sometimes plead guilty call for reform? Shadow-of-trial efficiency theory confuses more than it advances our thinking about this question. According to proponents of the theory who defend plea bargaining, the law should enforce bargains that reflect accurate discounting and, in contexts where discounting tends to be inaccurate, try to eliminate the impediments to accuracy. However, this efficiency polestar makes no sense 173 in cases of innocent defendants. An efficient plea bargain followed by the discovery of evidence that incontrovertibly proves innocence should result in exoneration, not enforcement of the bargain. Likewise, inefficient plea offers may be preferable to efficient ones in cases of innocent defendants. If the law seeks to discourage pleas by innocent defendants, inefficiently harsh plea offers would serve this purpose. If, instead, the law seeks to provide the fairest outcome to innocent defendants short of outright dismissals of the charges, the more inefficiently lenient the offers, the better. Efficient bargaining as a goal does little to remedy the problem of innocents.Case Defense Circumvention, BudgetReverse Goldilocks- the plan won’t reduce bargaining but will collapse budgets and legitimacyHowe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The argument against fundamental systemic change to try to eliminate plea bargaining rests largely on the uncertain, although clearly substantial, costs involved. If jury trials produce results that we like, while plea bargaining produces results that we do not, we may prefer jury trials although they are more expensive. However, achieving a balance between results and costs is preferable where the cost of perfection is exorbitant. The argument for plea bargaining reflects this perspective. The costs of eliminating bargaining, although difficult to quantify, are plausibly thought to far outweigh the costs of leniency in punishment that result from continuing to allow it. The perceived imbalance in costs surely helps explain the lack of truly successful efforts in recent decades to end bargaining.80 All of the options for eliminating plea bargaining are infeasible in practice. Amending the Constitution to entitle criminal defendants to only short, nonadversarial, non-jury trials is too controversial itself to serve as a remedy for leniency in bargaining. The negative consequences associated with this 81 alternative begin with its tendency to promote erroneous trial convictions.82 The notion of decriminalizing a large portion of the behavior currently deemed criminal is at least equally extreme. At best, legislatures might marginally stem the continuing expansion in the use of the criminal sanction. The only 83 remaining option focuses on money, and the increases would have to be enormous. Current police, court, and corrections budgets would have to increase at least several times over. As for the practicalities of this latter 84 approach, the only uncertainty is whether it is significantly less implausible than the other two potential remedies. A large infusion of resources also might not eliminate plea bargaining. The scarcity of resources is not the only driving force behind bargaining, although resource scarcity helps fuel the practice. The key players involved — prosecutors, judges, defense lawyers, and defendants — have incentives to bargain merely because pleas are so much cheaper and easier than trials, and because litigation is fraught with uncertainty. A substantial cost differential 85 between pleas and trials would remain even if there were more resources available for adjudication. Likewise, the uncertainty of litigation would 86 remain. Therefore, the parties would often still want to bargain. Bans might temporarily help deter the practice. However, given the continuing incentives to deal, the parties would likely turn to subterfuges that produced the equivalent of plea bargains.87 Shadow-of-trial efficiency theory does not help decide whether to abolish bargaining. The arguments offered here against such efforts do not build on that theory. Likewise, nothing about that theory undermines these arguments. The shadow-of-trial efficiency theory in no way relates to this larger question because it assumes that the adjudication costs of trials are appropriately traded for leniency in sentencing. Based on that assumption, the theory focuses on 88 the degree of sentencing discount that will produce a purportedly “efficient” bargain. The theory does not address whether bargains should always be disallowed to try to ensure that every criminal defendant receives his maximum deserved punishment. This part of the article has argued against such a trade-off, but its larger point is that shadow-of-trial efficiency theory does not help resolve this question.Case Defense No ModelingThere is a negative correlation between the US government model and the implementation of judicial independenceVoigt and Hayo 14 [Stefan, Institute of Law & Economics, University of Hamburg; Bernd, professor of Macroeconomics, University of Marburg; 01/17/14; Mapping Constitutionally Safeguarded Judicial Independence—A Global Survey; Wiley Online Library; 07/07/15; jac]Organizational Structure of the Judiciary An aspect related to legal origin is the underlying court model. There are various ways of designing constitutional review. (1) Review power can be allocated to each and every court of the country, as in the United States, which does not have a specialized court. This system implies that constitutional review is a posteriori, and uniformity is secured by the highest court of the country (in the United States, the Supreme Court). (2) The Austrian model, as proposed by Hans Kelsen and implemented into the Austrian Constitution in 1920, is characterized by a specialized constitutional court dealing with constitutional matters. This design can entail both abstract and concrete review, as well as ex ante and ex post review. (3) In the French model, constitutional matters are relegated to a special body (e.g., the Conseil Constitutionnel in France) traditionally constrained to ex ante review (Harutyunyan & Mavcic 1999). Most, but not all, constitutional systems can be grouped into one of these three designs. Additionally, Harutyunyan and Mavcic (1999) define a “New (British) Commonwealth Model” implemented by Mauritius, and a “Mixed (American Continental) Model,” which can be found in a number of states, including Portugal, Columbia, Ecuador, Guatemala, and Peru. 10 The cross-tabulation between implementation of JI in the original constitution and court model in Table?14 shows that all mixed-type and French-type models include a relevant passage, and so do a majority of countries adhering to the Austrian/Continental-European and U.S. types of court model. There is a positive correlation between the Austrian/Continental-European type of court model and the implementation of judicial independence (0.29), which is significant at a 5 percent level. The negative correlation between the U.S. court model and judicial independence (–0.39) is significant at all plausible levels of significance.CP Ceilings1CP Text: Criminal justice systems within the United States should adopt “Plea Based Ceilings” as per Covey.1: Theory 1. The CP is not plan inclusive- it doesn’t eliminate any form of plea bargaining, it sets up restrictions on how trial sentences relate to plea bargaining offers2. The CP Competes:A. Mutually exclusive- you can’t both abolish plea bargains and reform how they work at the same time. Supreme Court of Illinois 58Supreme Court of Illinois 58 (Bernard F. Jordan et al., Appellees, v. Metropolitan Sanitary District of Greater Chicago et al., Appellants No. 3473215 Ill. 2d 369; 155 N.E.2d 297; 1958 Ill. LEXIS 422 November 26, 1958, Filed)No person shall be deprived of life, liberty or property, without due process of law. Ill. Const. art. II.III, § 2; Fourteenth Amendment. However, before a person can properly invoke these clauses he must establish that he is within the ambit of their protection. Generally speaking, public employment does not create property rights subject to the protection of due process. The legislature, having created the office or public position, may alter its terms or abolish it entirely. Positions held under the civil service enactments of the legislature are in the nature of offices and the salary created is not property. The right of compensation arises from the rendition of services and not from a contractual relation.B. Net benefits- any elimination of bargaining links to the disad. A rational policy maker would never take that risk when the CP solves the case. Evaluate solvency through a lens of sufficiency- even if the aff solves better the CP is enough to solve the advantage 2: Solvency 1. The CP solves the case and avoids the disads-PBC’s limit prosecutorial discretion and encourage transparency and equity in plea offers. Aff indicts assume a “fixed discount” system which is the opposite of what the CP does. Covey 98Covey, JD Yale, 98 (Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )In a standard fixed-discount system, like that incorporated into the Guidelines, the discount for guilty pleas is supposed to be invariable.' 8 But the prosecutor's ability to make near-binding sentencing recommendations and to engage in charge, fact, and cooperation bargaining render actual discounts potentially much greater and substantially more variable.' 9 This variability of course undermines the very purpose of fixed discounts, creating disparity among similarly situated defendants and destabilizing the incentives of innocent defendants to contest charges and of prosecutors to screen out low-probability conviction cases. Because charge and fact bargaining in particular are tactics deployed largely below judges' "radar screens," as long as prosecutors can use these tactics to increase discount size, there is little hope that a workable fixed-discount regime can be implemented. Plea-based ceilings, however, offer a solution to this enforcement problem by limiting prosecutors' ability to offer such inducements. A. How They Work The idea underlying plea-based ceilings is straightforward. Pleabased ceilings guarantee defendants that they will not receive a sentence following a trial conviction that is more severe than any plea offer made to them, adjusted upward by the appropriate fixed discount. To illustrate how this might function in practice, imagine a defendant charged with bank robbery. Say that the defendant's criminal history and the facts of the crime would normally result in a ten-year trial sentence and that the jurisdiction adopted a fixed discount of 33%. During bargaining, prosecutors offer the defendant a five-year deal.' ° With ceilings, the defendant could accept the offer or proceed to trial when, if convicted, he would face a maximum sentence capped by the plea-based ceiling at 7.5 years-that is, the same five-year sentence he would have received had he accepted the plea offer, adjusted upward to reflect the absence of the fixed discount.'51 The plea-based ceiling, in other words, mimics what conventional fixed discounts do (had he pled guilty, he would have received a 33% discount), except it works backwards. As a result, in a ceiling system, the defendant would know exactly what he risked in declining the plea offer, permitting him to calibrate more carefully his decision of whether to risk trial. Like fixed discounts in general, plea-based ceilings would dramatically curtail prosecutors' ability to induce defendants in weak cases to plead guilty. As noted above, because the prosecutor is bound by whatever plea offer she makes, it is very hard for her to make an offer that is sufficiently lenient to induce a defendant in a weak case to plead guilty.'52 If the prosecutor has a 10% chance of convicting the defendant on a charge that carries a ten-year term, her offer of six months might look good in a world without ceilings, but if the sixmonth offer creates a nine-month ceiling on the sentence the defendant could receive upon conviction at trial, then the inducement to plead guilty disappears. The defendant is markedly better off declining the plea offer and holding out for a trial. Although the defendant's initial ETS was one year, the defendant's ceiling-adjusted ETS falls to a mere 0.9 months, or roughly three days, after the plea offer.'53 Rational defendants should be willing to go to trial under these changed conditions. As a result, plea-based ceilings eliminate the power of lenient plea offers to induce guilty pleas in weak cases. The same is not true, however, in strong cases. Consider a defendant with an 80% POC. In that case, if the prosecutor offered the defendant the same five-year deal and the defendant rejected the offer, the maximum trial sentence would still be 7.5 years, and with an 80% POC, the defendant would have a substantially higher ETS of six years. This defendant would be better off (although only marginally) taking the plea offer than going to trial. A defendant who calculated the odds of conviction at near-certain (99%), would have an even stronger incentive to take the plea offer, since his ETS of 7.42 years exceeds the plea offer by nearly 50%. These discounts might well be large enough to induce defendants to plead guilty. Where the probability of conviction is high, experience indicates that defendants do accept plea bargains, even if the offered concessions are minor.'54 A jurisdiction that implemented a ceiling system would of course first need to determine an appropriate "plea discount.""'5 This itself might prove politically difficult.' To achieve a sufficiently high guilty-plea rate, the discount might have to be set much higher than 33%. As the data presented in Part II shows, the typical differential may exceed 100%, and discounts fixed below that range might (indeed, should) generate lower guilty-plea rates and higher trial rates.'57 Jurisdictions would then face the difficult situation of responding to increased trial demands or frankly acknowledging the existence of an embarrassingly high plea discount. Ideally, a compromise might be struck that reduces the differential below its current high rate, while making accommodation for a marginally lower guilty-plea rate.' 8 Because the point at which it is rational for a defendant to plead guilty is a strict function of the size of the posttrial penalty, considerations regarding the kinds of cases that should not settle should govern the size of the discount. If the trial penalty is fixed at 50% (comparable to a 33% plea discount), then the only cases in which accepting the plea offer is the rational strategy are cases in which the defendant will be convicted at least two out of three times (i.e., POC is 0.667 or greater).'5 9 If the trial penalty were increased to 100%, then defendants would be better off pleading guilty rather than going to trial in all cases where the POC was at least 0.50.' 60 With a 100% trial tax, the 80% POC defendant offered a five-year plea deal would have a sizeable incentive to take the deal, because his ETS otherwise is eight years. Ideally, the plea discount should not exceed the point at which prosecutors can induce guilty pleas in cases in which it is more likely than not that the defendant will be acquitted at trial.'6' Precluding guilty pleas in cases where the POC falls below 50% is consistent with prosecutorial guidelines that suggest that prosecuting such cases is unethical.'62 As noted above, the size of the plea discount will predictably determine the number and types of cases resolved through plea bargaining. As such, it will have important effects on both the mix of cases that go to trial and on prosecutorial screening decisions. In addition to setting the discount size, the jurisdiction would also need to ensure that prosecutors memorialize the plea-bargain terms in writing and present them in a way that provides defendants with an adequate opportunity to accept or reject them. The memorialization requirement is necessary to ensure that judges have a clear record to calculate the plea-ceiling sentence. Written plea agreements are also wise because they facilitate enforcement of any disputed terms, regardless of whether the sentence is imposed immediately on the basis of the plea bargain or after a trial, a point which federal policymakers at the DOJ have long recognized.'63 Written plea offers must include all terms. There can be no "secret deals," and prosecutors cannot make a plea offer available only if the defendant agrees first to accept it. 6 " Defendants must remain free to decline plea offers until formal acceptance of the plea. Prosecutors should not be permitted to make the extension of a plea offer contingent on its acceptance. If prosecutors are able to do so, plea ceilings will not work. Finally, ceiling jurisdictions would have to ensure that written plea offers are admissible at sentencing.162. The CP avoids circumvention- by creating clear, enforceable requirements it better alters prosecutor behavior than bans. Covey 98Covey, JD Yale, 98 (Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )Although plea-based ceilings promise many of the benefits that conventional fixed discounts offer, there are important differences. First, plea-based ceilings would be not only far easier for judges to monitor and to enforce but also harder for prosecutors to evade through charge or fact bargaining than conventional fixed discounts. Second, unlike conventional fixed discounts, plea-based ceilings would not circumscribe sentencing discretion by limiting the scope of practical outcomes that can be achieved through plea bargaining. Pleabased ceilings would preserve the flexibility of prosecutors and, to a lesser extent, judges to take a wide range of relevant factors into account in determining the ultimate sentence.' 66 Plea-bargaining reforms that rely on fixed discounts or partial bans require careful judicial scrutiny of prosecutorial decision making to be effective.'67 As noted above, however, such scrutiny is not realistic.'68 Judges are not institutionally suited to evaluate plea bargains to determine whether any particular plea agreement provides the defendant with an overlarge discount from the expected trial sentence. Plea-based ceilings avoid these problems. Judicial oversight is simple in a plea-based ceiling system because ceilings focus judicial attention on hard facts. Upon presentation of a written plea offer at the sentencing hearing, judges would merely need to ensure that the trial sentence did not exceed the plea-offer sentence by more than the fixed discount. Because sentences are capped by the written plea terms offered by prosecutors, judges would not need to speculate about what charges the prosecutor might have brought or what facts the prosecutor might have alleged to determine whether the disparity between the plea-bargained sentence and the trial sentence was excessive. 9 Instead, the judge would only need to review the set of charges and the factual allegations underlying them that the prosecutor would have accepted to dispose of the case, determine what sentencing exposure that package entailed, and ensure that the sentence imposed does not exceed that amount by more than the ceiling permits.'7 ° That type of review falls well within the traditional scope of judicial competence. Not only would judges be able to enforce ceilings easily, prosecutors would have more difficulty evading the plea-based ceilings because they are keyed off the end product that the prosecutor most desires: the plea agreement itself. Prosecutors could not get plea agreements without first making (or acquiescing to) plea offers. With plea-based ceilings, prosecutors with weak cases could not induce defendants to plead guilty by making an excessively large plea offer because the same lenient plea offer would also protect the defendant from receiving a substantially harsher penalty after trial. 17 ' Regardless of whether the prosecutor sought to induce the plea through an overlarge sentence discount or by dismissing charges carrying overly large upward-sentencing exposure, barring imposition at trial of any sentence higher than the plea offer, adjusted upward to reflect the absence of a plea discount, would enforce the fixed discount. As a result, charge concessions would provide prosecutors no more bargaining leverage than sentence concessions. Obviously, plea-based ceilings would have a dramatic impact on the kinds of plea offers a prosecutor would be willing to make in the first instance. In a plea-based ceiling system, the prosecutor could not make extremely lenient plea offers in order to induce a guilty plea because this would simultaneously reduce the defendant's incentive to avoid trial without changing the likelihood of conviction. Because a lenient offer would not result in a plea agreement, the prosecutor will be far less likely to make such an offer, unless she believed it represented a substantively fair outcome.DA Growth2A. Uniqueness- states are adopting cautious budgets now. Reuters 12/14Reuters 12-14-17 YORK, Dec 14 (Reuters) - “Cautious” U.S. state budgets enacted for fiscal year 2018 reflect the limitations states faced from two consecutive years of slow revenue growth as well as spending pressure for pensions and healthcare, according to a report released on Thursday. The report from the National Association of State Budget Officers, which details data collected from all 50 states, shows state general fund spending for enacted fiscal 2018 budgets is expected to grow 2.3 percent from fiscal 2017 - the slowest growth rate since fiscal 2010. SPONSORED State general funds are used by most states to draw expenditures and appropriations for services. For fiscal 2018, general fund appropriations ticked up $12.7 billion across program areas, compared with increases totaling $25.8 billion enacted last year. General fund revenues are expected to increase “moderately” at 4 percent in fiscal 2018 from fiscal 2017, the report said. Nearly a quarter of the revenue growth is due to revenue measures, including tax and fee increases, that legislatures enacted in their last legislative session.B. Links 1. Budget Pressure- Abolishing PB upends the entire CJS and introduces massive costs- pressure results in circumvention and WORSE outcomes flipping the case. Howe 05Howe, JD Michigan, 05 (Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Attempting to eliminate plea bargaining would involve costly trade-offs. The previous section assumed a system that would exchange guilty pleas for trials by not proceeding against many defendants who had previously been legitimately charged with crime or by not charging many who should be charged. To attempt to abolish plea bargaining in any other way would require changes in the constraints noted at the outset of this part — the amount of behavior defined as crime, the amount of public resources devoted to fighting crime, and the basic approach to criminal trials. Moreover, bargaining is so central to the current system of adjudicating crime that abolishing it would necessitate extraordinary changes. Some commentators have suggested that abolition could be achieved without major costs, but their proposals are illusory. For example, based on a study of Philadelphia courts, one leading critic of plea bargaining contended that short bench trials could almost entirely replace plea bargains as the secondary means for resolving criminal cases. According to the study itself, 48 this conclusion was probably too optimistic. Nearly half of the cases in the Philadelphia courts ended with a guilty plea based on either explicit concessions from the prosecutor or implicit concessions from the judge.49 Also, the trade-off of guilty pleas for bench trials was arguably only a triumph of form over substance. The bench trials were extremely short — generally only a few minutes longer than a guilty plea — and judges richly rewarded 50 jury waivers through sentencing concessions. The Philadelphia system could 51 be viewed as merely an effort by judges to reward jury waivers and to allow for the correction of prosecutorial overcharging where the prosecutor, for reasons particular to that city, did not provide these functions through bargaining. The system did not eliminate bargaining for actual guilty pleas 52 53 and, to the extent that it reduced such bargaining, arguably only substituted an essentially equivalent method for extending leniency to reward purely strategic behavior by defendants.54 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 prosecutor, Harry Connick. This study showed that Connick had 55 greatly reduced the number of plea bargains offered by his office through a plan of intensive screening at the charging stage. The New Orleans District 56 Attorney’s office rejected many charges that prosecutors 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 57 reduce the need to dismiss questionable charges later. Due to the difficulty of accurately assessing cases, however, attempts at tough screening may allow a large percentage of questionable cases to go forward while also foreclosing many other legitimate charges. This approach may also have little influence on bargaining. The New Orleans District Attorney’s office “reject[ed] for prosecution . . . 52% of all cases and 63% of all charges.” Nonetheless, the 59 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, and some additional bargaining seemed 60 to occur in the form of failures by the prosecution to pursue enhanced penalties under habitual felon statutes. Much more significantly, overt 61 sentence bargaining continued in almost all cases between judges and defense lawyers, a practice historically deemed problematic even by proponents of 62 plea bargaining. In the end, the study failed to show that plea bargaining is 63 eradicable through tough screening practices. Instead, it raised the question 64 whether tough screening forecloses too many valid prosecutions 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 repeatedly 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. More often, they have resulted 66 from the order of the chief prosecutor, such as with the ban imposed by the Alaska Attorney General in 1975. Most have occurred in rural areas with a 67 low volume of criminal prosecutions, although the prosecutor in El Paso, Texas, also attempted to impose such a ban in 1975. Almost all have been 68 limited in major ways, such as to prosecutors alone or to certain stages of the adjudication process or to certain types of crimes. In each case, either the 69 bargaining shifted to other stages in the adjudication process, the provision 70 of bargains merely shifted from prosecutors to judges, or prosecutors 71 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 One leading critic of plea bargaining, Professor John Langbein, has openly confronted the unavoidable trade-offs required to try to eliminate it. He argued in the late 1970s that the United States should emulate the West German system of criminal justice. According to the argument, the West 75 Germans had avoided bargaining by resolving every case through a rapid, nonadversarial trial. This contention later appeared to be inaccurate. Plea 76 77 bargaining reportedly emerged in the West German system in the 1970s and has gained popularity there since that time. In any event, the argument 78 reveals the kind of sacrifice required to try to end the practice. To adopt the German system would eviscerate not only plea bargaining but our basic approach to criminal trials, which the Constitution guarantees to criminal defendants.792. Reverse Goldilocks- the plan won’t reduce bargaining but will collapse budgets and legitimacy. Howe 05Howe, JD Michigan, 05 (Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The argument against fundamental systemic change to try to eliminate plea bargaining rests largely on the uncertain, although clearly substantial, costs involved. If jury trials produce results that we like, while plea bargaining produces results that we do not, we may prefer jury trials although they are more expensive. However, achieving a balance between results and costs is preferable where the cost of perfection is exorbitant. The argument for plea bargaining reflects this perspective. The costs of eliminating bargaining, although difficult to quantify, are plausibly thought to far outweigh the costs of leniency in punishment that result from continuing to allow it. The perceived imbalance in costs surely helps explain the lack of truly successful efforts in recent decades to end bargaining.80 All of the options for eliminating plea bargaining are infeasible in practice. Amending the Constitution to entitle criminal defendants to only short, nonadversarial, non-jury trials is too controversial itself to serve as a remedy for leniency in bargaining. The negative consequences associated with this 81 alternative begin with its tendency to promote erroneous trial convictions.82 The notion of decriminalizing a large portion of the behavior currently deemed criminal is at least equally extreme. At best, legislatures might marginally stem the continuing expansion in the use of the criminal sanction. The only 83 remaining option focuses on money, and the increases would have to be enormous. Current police, court, and corrections budgets would have to increase at least several times over. As for the practicalities of this latter 84 approach, the only uncertainty is whether it is significantly less implausible than the other two potential remedies. A large infusion of resources also might not eliminate plea bargaining. The scarcity of resources is not the only driving force behind bargaining, although resource scarcity helps fuel the practice. The key players involved — prosecutors, judges, defense lawyers, and defendants — have incentives to bargain merely because pleas are so much cheaper and easier than trials, and because litigation is fraught with uncertainty. A substantial cost differential 85 between pleas and trials would remain even if there were more resources available for adjudication. Likewise, the uncertainty of litigation would 86 remain. Therefore, the parties would often still want to bargain. Bans might temporarily help deter the practice. However, given the continuing incentives to deal, the parties would likely turn to subterfuges that produced the equivalent of plea bargains.87 Shadow-of-trial efficiency theory does not help decide whether to abolish bargaining. The arguments offered here against such efforts do not build on that theory. Likewise, nothing about that theory undermines these arguments. The shadow-of-trial efficiency theory in no way relates to this larger question because it assumes that the adjudication costs of trials are appropriately traded for leniency in sentencing. Based on that assumption, the theory focuses on 88 the degree of sentencing discount that will produce a purportedly “efficient” bargain. The theory does not address whether bargains should always be disallowed to try to ensure that every criminal defendant receives his maximum deserved punishment. This part of the article has argued against such a trade-off, but its larger point is that shadow-of-trial efficiency theory does not help resolve this question.C. Impacts 1. Depleted state budgets slow economic growth and ensure pension crisis. Donlan 17Donlan 17 [Thomas G. Donlan, editor at Barron’s, “There’s a Hole in State Pensions,” Feb 11, 2017, ]Turn away from the lurid deficit spectacles in Washington to examine the declining state of the states. In the eighth year of economic recovery, 23 states are still deep in the financial holes they dug for themselves. Economic growth and tax-revenue growth are slowing. Revenue growth from sales taxes—which are most sensitive to changing economic conditions—have slowed the most, according to the National Association of State Budget Officers. The executive director of that organization explains and complains that online sales across state lines—more popular every year—are often not taxed. Every state has a different tax system, a different tax base, and a different political inclination toward taxes and spending. But slow growth in tax revenue in general has placed many under serious fiscal pressure. In a report on states’ fiscal health issued on Feb. 2, the Pew Charitable Trusts said that after adjusting for inflation, 23 states still have lower tax revenue than they did before the most recent recession, and 18 states have lower employment than they did in 2007. Only 19 states have the kind of fiscal cushion—rainy-day funds and general fund surpluses—that they had in 2007. Analysts at Pew and other watchdog groups are warning that the states are clearly not ready for another recession. MultiState Associates, a consulting firm, estimates 31 state legislatures will have revenue shortfalls to deal with before their next budgets go into effect. The Cavalry Isn’t Coming The states may wish to call Washington for help, but Congress and the White House are busy with their own fiscal quandaries. Newly empowered Republicans want to cut taxes, increase defense and infrastructure spending, and repeal Obamacare to replace it with something better—just to mention a few expensive proposals that nearly all Republicans agree on. All this and more, despite a $559 billion deficit projected for fiscal 2017. There’s no room for helping out the states, and plenty of reasons to say the states are getting more than enough help already. The federal government provides nearly a third of the states’ total revenues, but the federal hand is far more important than direct grants, which totaled $589 billion in 2014. The same year, the federal government paid out $1.1 trillion in retirement benefits and $895 billion in other benefits, chiefly medical, for individuals located in the 50 states. The U.S. government paid its own military and civilian employees $305 billion, and it paid $356 billion on federal contracts. Nearly all of that federal spending is subject to income tax in states that have income taxes, and the recipients use federal money to buy things, generating revenue for states that have sales taxes. Pension Panic Beyond the unfortunate short-term dependence of many states on money that falls from the federal heavens, there are the unfortunate longer-term policies of their own that have put many states in fiscal trouble. Chief among these is the growing crisis in state and municipal pension funds. Importantly, the condition of state and local pensions is worse than officially reported. Pension boards, their advisors, and their actuaries have been using unrealistic estimates of their investment returns that are left over from the years of higher inflation that ended in the 1990s. The National Association of State Retirement Administrators surveyed 132 big government pension plans last year and found the average estimate of future annual investment returns—the discount rate—to be 7.6%. Hard-nosed reformers say they should be using a Treasury rate around 3%, but only seven of the funds in the survey were using discount rates below 7%. The difference is powerful: The funds pretend their investments are strong and that they are a mere $1 trillion short of what they will need to pay benefits that workers have already earned. Cutting the 7.6% investment estimate back to 3% turns the $1 trillion deficit into a $3 trillion hole. Officials around the country are loath to acknowledge the mismatch, and government plans aren’t covered by federal pension law that would make them fess up. Pension officials can use whatever discount rate suits their needs. Excuses abound: Governments don’t go out of business; they have taxing power; they can hold on for a long time before wolves chew their way through the door. This is the Micawber theory of management. Wilkins Micawber, a colorful character in Charles Dickens’ David Copperfield, is a grandiose optimist always flirting with poverty, whose financial maxim is “Something will turn up.” Like the author’s father, he spends some time in debtors’ prison. But, being a charming Dickensian character, something does turn up for him eventually. Actuaries should not be so sanguine, but many know about getting by going along. They want to keep their jobs. The Montana pension systems spoke loudly in 2009 when they were looking for new actuaries. The invitation to actuaries said that a firm arguing for tougher standards “may be disqualified from further consideration.”2. Slow growth makes war more likely – drives tensions and hyper-nationalism. Landsay 17 Landsay 17 Jonathan Landay, National Security Correspondent at Thomson Reuters. U.S. intelligence study warns of growing conflict risk report also said that while globalization and technological advances had “enriched the richest” and raised billions from poverty, they had also “hollowed out” Western middle classes and ignited backlashes against globalization. Those trends have been compounded by the largest migrant flows in seven decades, which are stoking “nativist, anti-elite impulses.” “Slow growth plus technology-induced disruptions in job markets will threaten poverty reduction and drive tensions within countries in the years to come, fueling the very nationalism that contributes to tension between counties,” it said. 3. Slow growth collapses hegemony – the impact is nuclear war. Goure 13Goure 13 Dr. Daniel Goure is a Vice President with the Lexington Institute, a nonprofit public-policy research organization headquartered in Arlington, Virginia. He is involved in a wide range of issues as part of the institute’s national security program. “How U.S. Military Power Holds the World Together” Nations, like nature, abhor a vacuum. It must be filled. How it is filled, by whom and with what are the challenging questions. Unlike nature, which seeks to fill a vacuum with whatever is handy and can be stuffed or sucked into the space available, nations rely on power, relationships and institutions to fill vacuums that arise in the international system. Political vacuums can readily be filled by raw power and the domination of the strong over the weak. Or they can be filled by the rule of law and a community of nations. Twice in the last 60-plus years the United States chose to fill the vacuum caused by the collapse of old institutions, relationships, and power centers. After World War II, along with key allies, the U.S. created an entirely new international order with a set of democratic institutions and international agreements that have endured to this day. America, again in concert with many allies, also built a security apparatus and military machine of global reach and power unlike any seen in peacetime. When the Soviet Union collapsed, the United States did not simply declare victory and go home. Rather, even while reducing the size of its military, America chose to remain in the world, forward deployed, and committed to maintaining and even expanding long-established alliances and security relationships. As a result, the world was able to weather difficult and dangerous transitions and create or maintain a viable international system. In both cases, nations, including America’s former adversaries, had the opportunity to become part of that system and to flourish. An Increased Role and Decreased Size Ironically, the role of the United States military in maintaining the global order increased with the end of the Cold War. From 1945 to the collapse of the Soviet Union there were between 40 and 50 significant instances of the use of U.S. armed forces abroad. From 1991 to the present, that number nearly tripled to between 100 and 135. These figures do not include several hundred humanitarian operations, support for civil authorities after natural disasters, or the myriad of routine deployments for training purposes or to build partnership capacity. Add these other actions to the total and the activity level for the U.S. military went up by a factor of four after 1991. At the same time, in the 1990s, the size of the U.S. military was reduced by half. With an activity level that increased four-fold and a force reduced by half, the resulting “use rate” or “stress level” on the military increased eight-fold. Two things saved the military from collapse in this period. The first was the overhang of military procurements that had taken place during the Reagan-Bush era. The military has lived off this investment for more than twenty years. The second was selective hollowing in which the services deliberately chose to reduce spending on maintenance and upgrades. For the Army alone this amounted to some $50 billion in the years prior to September 11, 2001. Now again, the prospect of a vacuum in the international order is emerging. Unlike the previous two, this one is not the result of a war or the collapse of erstwhile major powers. Rather, it is the consequence of a gradual diminution of the power and will of those that created the current international system to sustain it. Repeated economic crises, chronic slow growth at home, and the growing burden of social welfare programs have brought most Western counties to the point of military near-irrelevance. The last time U.S. allies “walked away” from the challenge of filling the global space, the United States took up the burden. The Need for Modernization Today, facing some of the same challenges at home as its allies and, simply put, being somewhat tired of carrying the burden, America is also considering a less central role in world affairs. It is not just that the U.S. defense budget is being reduced; it is being gutted. As every senior defense official and an endless parade of academics and experts has testified and written, the current plan to cut $1 trillion from defense spending over the next decade will be devastating to the U.S. military. Moreover, this is not the same military that existed at the end of the Cold War. It doesn’t have the legacy of the Reagan-Bush buildup on which to rely. It is emerging from a decade of conflict that has worn it out. There are new threats, such as the Russian sale of advanced air defense systems to Syria, which must be countered if the U.S. military is to have any future. It is also badly in need of modernization. The reason the United States requires a new strategic bomber to replace the fifty-year-old B-52 and F-22s and F-35s rather than F-15s and F-16s is because the threat is changing and it chooses not to send U.S. airmen into combat with less capable systems. The growing threat from ballistic missiles, including some armed with nuclear weapons, requires advanced missile defenses such as the Aegis BMDS and National Missile Defense system. It is also a power projection military, which must come from the homeland. This means airlift, aerial refueling, sealift, and a Navy with advanced nuclear attack submarines, aircraft carriers, and surface ships to ensure control of the oceans over which American forces must travel. The Call for Cuts The military also faces an internal cost problem. Overhead, administrative and personnel costs have grown to an unsustainable level. A full quarter of all defense spending is to cover administrative costs, a figure which no private enterprise would tolerate. Another 20 percent is a “tax” on all purchases due to government regulations and unique requirements. Given current budget projections, and recent growth rates for medical care, retirement and personnel, within a decade or so there will be no money left in the defense budget for new equipment. The defense of the United States is in danger of being crushed between the jaws of decreased budgets and increased indirect costs. An even greater challenge is political, or perhaps philosophical. The 65-year-old consensus on the role of this country’s military as the central pillar of security for Western civilization and a force for global stability is over. Elements on both ends of the political spectrum have been campaigning for years for a reduced vision of America’s role in the world and a correspondingly large retrenchment in our security commitments. A few years ago, former Congressmen Ron Paul and Barney Frank, two men who could not be more diametrically opposite politically, sponsored a study of American security that proposed in essence, that this country come home and in doing so, reduce its defense burden by nearly half. Now, what was once an extreme position has taken hold of the entire American political system. The desire to win on issues such as reducing the size of the federal government or increasing federal revenues has become so all-consuming that virtually no one is paying attention to the consequences of these absolute positions for the nation’s security. Congress as a whole has responded to warnings of the dire impacts of sequestration on the military with supreme indifference. Even centrists in both political parties are calling for America to reduce its overseas burden, stop acting as a “global cop,” and cut the size and cost of its military. The Centrality of U.S. Power There are three fundamental problems with the argument in favor of abandoning America’s security role in the world. The first problem is that the United States cannot withdraw without sucking the air out of the system. U.S. power and presence have been the central structural feature that holds the present international order together. It flavors the very air that fills the sphere that is the international system. Whether it is the size of the U.S. economy, its capacity for innovation, the role of the dollar as the world’s reserve currency or the contribution of U.S. military power to the stability and peace of the global commons, the present world order has “Made in the USA” written all over it. The international system is not a game of Jenga where the worst thing that can happen is that one’s tower collapses. Start taking away the fundamental building blocks of the international order, particularly American military power, and the results are all but certain to be major instability, increased conflict rates, rapid proliferation of nuclear weapons, economic dislocation and, ultimately, serious and growing threats to security at home. The second problem is the presumption that the country’s global security posture was created and maintained to serve others. In reality, the United States built a global security architecture and the world’s best military because it served our interests. Our network of security ties and treaties, most notably NATO, were instituted to serve a number of functions: prevent another war among the Western powers, deter the Soviet Union and its allies, and ensure that the major economic regions remain free and that global trade flowed. In the 1970s, based on the experience of the oil embargo, the U.S. focused more on the security of the Persian Gulf because of the growing importance of Middle East oil to the national economy and that of the entire industrialized world. While the Soviet Union is no more, the essential self-interestedness of America’s military role in the world remains. Any oil expert would say that even though the U.S. is less dependent than a decade ago on foreign oil, a cutoff of the flow from the Middle East would cause oil prices to go through the ceiling. A war across the Taiwan Straits or between the two Koreas will cost us hundreds of billions in lost trade and investment income, not to mention that it would cut off most of the world’s supply of computer chips and consumer electronics. The world’s economy and America’s well being depend on the independence of a relative handful of nations, most of whom are allies. The third problem with the case for abandoning America’s role as the security linchpin of a democratic world order and an international free trade system is simply this: while this country can run, it cannot hide. The U.S. is still the largest economy—at worst it will be number two behind China some day. America’s major companies are global, have hundreds of billions of dollars invested overseas, and millions of citizens working or traveling abroad. American culture permeates—foreign extremists would say pollutes—the world. To truly avoid international entanglements this nation would have to behave like a cloistered monk with vows of poverty and silence. Too Late to Hide Even if America runs, as the far left and right propose, it is too late to hide. Those who choose to be enemies can come after the United States. This is the lesson of 9-11. It also is the message that North Korea sent with its latest tests of a nuclear weapon and long-range ballistic missile. China, one of America’s largest trading partners and the holder of a trillion dollars in U.S. debt, is conducting a massive and continuous cyber assault on the nation’s private companies, infrastructure, and military facilities. To what mountaintop can America withdraw, how small must it become, and how meekly will it have to behave in order to ensure its security? The irony is that the cost of the U.S. military had for decades represented a small and declining percentage of both overall GDP and total federal spending. Today, defense spending is about 4 percent of GDP and less than 20 percent of federal spending. For this relatively small sum the U.S. had to deter major wars—including nuclear attacks on the homeland—contain innumerable local conflicts, create an environment in which a community of democratic nations emerged, grown, and flourished, and secured literally trillions of dollars of overseas investments, trade flows, and natural resources. It is a tragedy of epic proportions that all this should be put at risk. 4. Turns Case-This collapses the entire justice system Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )As one set of commentators rather blandly observed, "[tihe practice of exchanging punishment discounts for waivers of process is widespread." Nancy J. King et al., Wen Process Affects Punishment. Differences in Sentences After Guilty Plea, Bench Thal, and Jury Trial in Five Guidelines States, 105 COLUM. L. REV. 959, 962 (2005). Nationwide data shows that guilty-plea sentences are the least punitive and jury trial sentences the most punitive. Id at 962-63. Or, as William Stuntz and Dean Scott more colorfully put it: "plea bargaining is ... not some adjunct to the criminal justice system; it is the criminal justice system." Robert E. Scott & William J. Stuntz, Plea Bargaining as Contact, 101 YALE L.J. 1909, 1912 (1992). Without plea bargaining, the number of cases resolved through guilty pleas almost certainly would plummet, potentially resulting in system-wide gridlock. See Susan R. Klein, Enhancing the Judicial Role in Ciminal Plea and Sentence Bargaining, 84 TEX. L. REv. 2023, 2023 (2006) ("[T]he American criminal justice system, like the civil system, would collapse if even a small percentage of suspects... demanded trials.").DA Impeachment3A. More plea deals in Trump-Russia are coming – Flynn’s plea and prisoner’s dilemma prove.Jed Handelsman Shugerman 12-1-2017, "How Robert Mueller’s Deal With Michael Flynn Neutralizes Trump’s Pardon Power," Slate Magazine, prisoner’s dilemma is a famous problem in prosecutions and in academic game theory. A prisoner (or more illustratively in this case, a defendant) knows if he holds out against making a deal, and if all his co-defendants in other jail cells also hold out, they will all go free. However, if he holds out and another defendant confesses and implicates him, he will get a much worse sentence. If everyone confesses, everyone gets something in between. So, the dilemma here is whether to assume everyone is holding out or whether to assume someone else is confessing to get a better deal. Up until now, only a very small figure—Papadopoulos—had confessed, not enough to make any central figure rethink his assumptions. But now that Flynn is cooperating with Mueller, all bets are off. Everyone knows the next few cooperators will get deals, but the later you cooperate, the worse deal you get. The last (and biggest) co-conspirators get no deals at all. Flynn’s deal could be a moment that breaks the silence, and opens the gates for others to cooperate with Mueller to get a deal while there are still deals on the table.B. Mueller probe is close to succeeding now, but plea deals are key to providing prosecutors with the proper tools.Greg Farrell et al 12-7, Tom Schoenberg, Neil Weinberg 17, 12-7-2017, "Mueller’s Investigation Just Got Some Insurance," Bloomberg, Mueller’s probe has gotten closer to Trump’s inner orbit, speculation has risen over whether Trump might find a way to shut it down. The Flynn deal may make that harder. For one thing, it shows that Mueller is making progress. “Any rational prosecutor would realize that in this political environment, laying down a few markers would be a good way of fending off criticism that the prosecutors are burning through money and not accomplishing anything,” says Samuel Buell, a former federal prosecutor now at Duke Law School. The Flynn plea also makes it difficult for Trump to fire Mueller without inviting accusations of a cover-up and sparking a constitutional crisis, says Michael Weinstein, a former Department of Justice prosecutor now at the law firm Cole Schotz. “There would be a groundswell, it would look so objectionable, like the Saturday Night Massacre with Nixon,” Weinstein says, referring to President Richard Nixon’s attempt to derail the Watergate investigation in 1973 by firing special prosecutor Archibald Cox. Even if Mueller goes, his team is providing tools that other prosecutors or investigators can use to continue inquiries. Flynn’s deal requires him to cooperate with state and local officials as well as with federal investigators. That includes submitting to a polygraph test and taking part in “covert law enforcement activities.” Mueller also has provided a road map to state prosecutors interested in pursuing money laundering charges against Trump’s former campaign chairman, Paul Manafort. Mueller’s case against Manafort lays out a series of irregular wire transfers made from Manafort’s bank accounts in Cyprus to a variety of companies in the U.S. The sums that Manafort transferred suggest the possibility that some of the money was diverted for other purposes. Mueller stopped short of filing charges related to where the money went. But by including the details in his indictment, he left open the possibility of bringing charges in a follow-up indictment and perhaps left breadcrumbs for state authorities to pursue. The president can pardon people convicted of federal crimes; only governors can pardon those convicted under state law. For prosecutors in New York, “the Manafort case is like a legal Chia Pet,” says Weinstein. “Just add water, and it grows.” Manhattan District Attorney Cyrus Vance Jr. is investigating the circumstances surrounding unusual real estate loans to Manafort from a bank run by Steve Calk, who served as an adviser to the Trump campaign. New York Attorney General Eric Schneiderman is conducting his own Trump-related probe. Trump’s reaction to Flynn’s plea raised fresh questions about whether the president had obstructed justice. The day after Flynn appeared in court, Trump tweeted that he fired Flynn because he’d lied to the FBI, which some lawyers say provided a new piece of evidence of what the president knew and when he knew it. Legal experts say Mueller’s ability to bring an obstruction case against Trump could hinge on whether the president was aware of Flynn’s illegal activities when he fired FBI Director James Comey. Prosecuting an obstruction case without an underlying crime is problematic. Critics could demand to know what crime Trump or his campaign officials committed to justify the charge. Many have already argued that collusion itself isn’t a crime. And within days of the Flynn agreement, Trump’s personal lawyer, John Dowd, began pushing back against the notion that a sitting president can even be charged with obstruction. Mueller is also looking at conduct before the election, when Trump was a private citizen and not covered by the executive protections afforded by the Oval Office. If Mueller uncovers evidence that the campaign accepted Russian help, that opens up the possibility of charging people in the Trump campaign with conspiracy related to the solicitation of in-kind foreign donations. Mueller’s team would be on stronger ground if it uncovered evidence of any quid pro quo deals struck during the campaign, either in changes to the GOP platform favoring Russia or promises made to entice Moscow’s help against Hillary Clinton. Flynn alone may not be enough to advance an obstruction or collusion case. Prosecutors would likely need evidence against other high-ranking Trump associates, including perhaps Jared Kushner. “Unless you’ve got them on tape, you’re going to need a lot better witnesses than Flynn,” says Raymond Banoun, a former federal prosecutor. Some experts believe that Mueller’s probe is now almost certain to reach a step beyond that. “Before this is wrapped up, Mueller’s going to request an interview with the president, and he may even request it under oath,” says Amy Sabrin, a Washington lawyer who worked for Bill Clinton on the Paula Jones sexual harassment case. “And then what is Trump going to do?” C. Use of plea deals is specifically key to bring down Trump – it avoids constitutional questions and political battles.Kimberly Wehle 12-8 [professor of law at the University of Baltimore School of Law, former assistant United States attorney], "A presidential plea deal is better than impeachment," are heating up with Robert Mueller’s criminal probe of Russia’s interference with the 2016 presidential election. And the Trump campaign’s ties to that Russian effort continue to prompt questions, including whether — if the evidence shows that he violated the law — the president himself could be held accountable in the criminal justice system. President Trump’s personal attorney has publicly declared that his client cannot as a matter of constitutional law be charged and prosecuted for obstruction of justice. Is he right? This is a highly complex legal question, to be sure. But the likely answer is no, for a number of reasons. To make it short, it is hard to persuasively dispute that the president is not above the law under the Constitution, and that he can certainly act in ways that would legally amount to obstruction of justice. Whether impeachment is the exclusive constitutional route to presidential accountability is doubtful as well, although like much of the Trump presidency, nobody knows for sure what the Supreme Court would say. But more to the point, if this president did, in fact, obstruct justice or violate any other criminal law, the tea leaves suggest that, strategically, neither a public indictment, criminal trial or an impeachment trial are likely. The better course for the country and the Trump family would be for the president to give serious consideration to resignation and a plea deal. Mueller’s predecessors both considered the question of whether a president can be prosecuted and indicted while in office. Both answered yes. In 1998, Ken Starr’s office analyzed whether President Clinton could be indicted after deputies advised him that they had gathered enough evidence to ask a grand jury for an indictment. Starr’s legal ethics counsel concluded that a sitting president is subject to indictment and criminal prosecution, but that he might not be subject to imprisonment during his term. In 1974, Leon Jaworski’s office concluded the same thing about President Nixon: he could be indicted. The question is not a slam-dunk, however, so Jaworski named Nixon an “unindicted co-conspirator” in an apparent ploy to avoid a constitutional showdown. For its part, the Supreme Court held in 1997 that Clinton could be subject to a private civil lawsuit while in office. That effort ultimately led to his impeachment. The Department of Justice’s Office of Legal Counsel concluded in 1973 and again in 2000 that a criminal prosecution would undermine the executive branch’s ability to perform its functions, in the wake of Clinton v. Jones. Trump cannot viably claim that Article II of the Constitution fully insulates him from legal interference with his ability to do his job as president. The question may come down to whether a criminal prosecution is somehow different from a civil claim for money damages, and the Supreme Court would no doubt consider these historical views if Trump’s sky were to fall and the issue to reach the court. In any event, Mueller’s team of career prosecutors will want to see justice done, and it appears that this Republican Congress is ideologically disinclined to take a hard look at impeaching any Republican president, regardless of the charges. Thus, Mueller might do well to avoid a lengthy legal battle over the constitutionality of his prosecutorial authority, and strike a deal with Trump. This maneuver assumes, of course, that Mueller is able to compile an evidentiary dossier of criminal wrongdoing that would put serious pressure on the first family to do a deal. Nobody but Mueller’s team knows for sure what evidence it has (if any) that implicates the president of the United States in criminal wrongdoing. But we do know that Trump’s sons and son-in-law — to some extent, at least — are entangled in the Flynn drama that led to his perjury plea. Nixon and Clinton had their own hides to save. Trump also has family members to think about, and an impeachment process won’t cover them. The Trump children change the stakes in this particular game, and Mueller has shown through Flynn’s son that he is willing to go down the familial path. If the evidence does wind up leading to the White House, therefore, the best outcome for the Trumps might be the president’s resignation and their respective plea(s) to something relatively trivial. (That would still leave the New York Attorney General investigation of Trump’s dealings out there, but Mueller could try to broker a global resolution.) Flynn’s fate is perhaps premonitory. If all that Mueller had against Flynn was a perjury charge, it’s unlikely he would have agreed to plead guilty at this juncture. With the whiff of a presidential pardon in the air, all Flynn had to do was call Mueller’s bluff, force a trial on a diminutive charge, accept a pardon, and paint the entire investigation as much political ado about nothing. Given the tight-lipped ethos of the Mueller operation, we are living in the world of speculation, to be sure. But with Mike Flynn Jr. in the mix, it seems more likely that his dad struck a deal — and one that suggests he has information that hurts people up the chain of command. At the end of the day, as the harsh realities set in for Trump, a constitutional conundrum over whether sitting presidents may be criminally prosecuted could remain but a theoretical footnote in American history.D. Continued Trump presidency causes extinction – aggressive foreign policy, authoritarianism, isolationism and warming catastrophes.Baum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.K AgambenCriminal justice reform efforts ignore culture and ideology by portraying miscarriages of justice as “accidents” when in reality they are features of the system. Perceived inevitability of the existing legal order is a disciplinary tactic Doyle, JD/LLM, 16(James M., Of Counsel, Bassil, Klovee, & Budreau, ORWELL'S ELEPHANT AND THE ETIOLOGY OF WRONGFUL CONVICTIONS Albany Law Review 2015 / 2016 Albany Law Review 79 Alb. L. Rev. 895)Criminal justice reform is having its moment. The gatekeepers around the public square - the editors, the publishers, the producers, the bloggers, and the "most-followed" social media posters - have decided to grant criminal justice issues some attention. In the accompanying wave of punditry familiar facts are treated as discoveries. The system's impacts are racially biased. n2 The innocent are often convicted. n3 Unwarranted law enforcement violence is common. n4 Legions of unnecessary prisoners fill our prisons. n5 Chronic mental illness has been effectively criminalized. n6 [*896] This media moment will fade; these media moments always do fade. Can something useful be left behind? The criminal justice system is a target-rich environment for empirical study. Many factors await data-oriented examination in (and around) our courtrooms, and it seems natural to seize this opening to mobilize evidence-based inquiries analyzing a range of specific questions. As Michael Jacobson has noted, criminal justice policy is "a field that over the last several decades has been almost immune to evidence and knowledge in the face of its overwhelming politicization." n7 Perhaps in this new atmosphere we are ready to learn the lessons that the data teach. Still, any exclusively data-oriented approach to wrongful convictions will face challenges as a remedial tool where preventing wrongful convictions is concerned. No individual evidence-based exploration of the criminal justice system is likely to minimize the frequency of miscarriages of justice unless it takes place within a general etiology of wrongful conviction that recognizes the reciprocal impacts of the system's components - including its human components - on each other, and the impact on those system components of their surrounding environment. The potential implications of that general etiology - that is, of the manner of causation of criminal justice system errors - are overlooked issues. A version of such an etiology is available for adaptation. n8 Safety experts in aviation, medicine, and other high-risk fields would argue that, like the Challenger launch decision, n9 a "wrong patient" surgery, n10 or the Chernobyl meltdown, n11 wrongful convictions are [*897] system n12 errors: "organizational accidents." n13 In this conception, miscarriages of justice are not single-cause events but, rather, result from discrete, small mistakes, none of which is independently sufficient to cause the harm that combine with each other and with latent system weaknesses, and only then cause a tragedy. Miscarriages of justice can never be fully explained by the failures of a single component or a lone operator. The right answer to the question "Who was responsible for this wrongful conviction?" is usually "Everyone involved, to one degree or another," either by making an error or by failing to anticipate or intercept someone else's error. In this view "everyone" includes actors far from the scene of the event who set the budgets, did the hiring, wrote the laws, developed the jurisprudence, and designed the incentives for the apparent culprits on the frontlines. "Everyone" includes those who created the environment in which the sharp-end actors operated. "Everyone" even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others. The hardest case for this approach is presented by the recurrent situation in which the miscarriage of justice seems to have resulted from a moral failure - often a spectacular one - on the part of an individual criminal justice actor. Even people who accept the organizational accident explanation as a general theory resist applying it to those events. For example, when a prosecutor hides exculpatory Brady n14 material, that act is a proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. n15 Disciplining the individual actor seems to be both a sufficient response and an emergency. To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded: to generate bogus extenuation where all that is required is a plain statement of culpability. The assumption, "Good man, good result," once formed the basis [*898] of medicine's attitude towards its own tragic failures. n16 Even now it characterizes much of the commentary on wrongful convictions. n17 A similar dependence on good men, n18 and therefore on reform strategies focused on the discovery, denunciation, and excision of the bad men, characterizes criminal justice reform discourse. n19 But if wrongful convictions are "organizational accidents," can disciplining and punishing an individual be enough to reduce future risk? Can we punish our way to safe verdicts? Is there a way to balance accountability for misconduct and the non-blaming, "forward-looking accountability" n20 we need in order to minimize future risk? Should we be searching for a new practice rather than a new structure? Can we develop a vehicle for holding the data-rich statistical findings and the complex individual narratives in permanent productive tension? I. A famous essay of George Orwell's, "Shooting an Elephant," focuses on an individual's moral failure: on the bad choice of an actor who zigged when he should have zagged, and who fully understood that he was doing the wrong thing as he acted. n21 Orwell's narrative might illuminate an issue implicit in the organizational accident etiology of error: is the challenge presented by wrongful convictions one best approached as protecting a presumptively safe system from amoral and incompetent people, or one of repairing an inherently vulnerable system that necessarily relies on ordinary human beings? George Orwell has been regarded as the quintessential "good man" for over half a century. To V.S. Pritchett, Orwell was "the [*899] wintry conscience of a generation." n22 Robert Conquest, the historian of Stalin's purges, n23 described Orwell as "[a] moral genius." n24 In 1922, at the age of nineteen, at loose ends after leaving Eton, and unlikely to obtain a university scholarship, Orwell passed the necessary examinations and followed his father into imperial service: in Orwell's case, into the Burma Police. n25 Reflecting on that experience he produced "Shooting an Elephant," n26 first published in New Writing in 1936. n27 "In Moulmein, in Lower Burma, I was hated by large numbers of people - the only time in my life that I have been important enough for this to happen to me," Orwell begins. n28 In an aimless, petty kind of way anti-European feeling was very bitter... . As a police officer I was an obvious target and was baited whenever it seemed safe to do so... . In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. n29 By the time of the incident he describes, Orwell had "made up [his] mind that imperialism was an evil thing and the sooner [he quit his] job ... the better." n30 "Theoretically - and secretly, of course - [he] was all for the Burmese and all against their [*900] oppressors, the British." n31 But that didn't mean Orwell's immediate situation was simple. As he explains in the essay: All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny ... with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. n32 In this state of mind Orwell is called out to deal with a rampaging elephant: a working animal that has been maddened by "must" (heat), broken its chain, and eluded its keeper. n33 Arming himself and arriving in the quarter where the elephant had been destroying everything within reach, Orwell "failed to get any definite information ... . In the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." n34 But soon he is told that the elephant has trampled an Indian coolie to death, and he is shown the corpse. n35 Followed by a growing crowd of Burmese, Orwell tracks the animal down. n36 As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant - it is comparable to destroying a huge and costly piece of machinery - and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow... . Moreover, I did not in the least want to shoot him. n37 But at that moment Orwell looks around at the Burmese who had followed him: a crowd of "two thousand" people and "growing," all - according to Orwell - "happy and excited over this bit of fun, all certain that the elephant was going to be shot." n38 This was a turning point: "And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to [*901] do it; I could feel their two thousand wills pressing me forward, irresistibly." n39 In Orwell's recounting, he zigged when he knew he should have zagged because his role required it: A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing - no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at. n40 Orwell shoots the elephant. n41 Unable to endure the sight of the animal's agonized death throes, Orwell leaves the scene while the elephant is still alive. n42 Later he learns that its body has been stripped to the bone, and that: Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. n43 In the end, the opinions of the Europeans, back in the Club, were what mattered to young Orwell. n44 II. John Thompson was convicted of murder in New Orleans in 1985. n45 After a trial where he opted not to testify, Thompson was sentenced to death and spent the next eighteen years in prison, [*902] fourteen of them on death row. n46 A few weeks before Thompson's scheduled execution in 1999, a defense investigator learned that a cancer-stricken member of the prosecution team had confessed on his deathbed to having withheld crime lab results from the defense, as well as removing a blood sample from the evidence room. n47 In addition, Thompson's defense learned that the New Orleans district attorney's office had failed to disclose that Thompson had been implicated in the murder by a person who received a reward from the victim's family, and that an eyewitness identification did not match Thompson. n48 Thompson's conviction was overturned on appeal. n49 On retrial, a jury exonerated Thompson in thirty-five minutes. n50 Reviewing Thompson's experience with Orwell's in mind suggests that the problem we face is neither people, nor systems, but, rather, people in systems. The rule that prosecutors must turn over exculpatory evidence material to guilt or punishment to defense counsel is a "best practice" that the Supreme Court held in Brady v. Maryland is also a minimum requirement of the Constitution. n51 As Thompson indicates, it is a "best practice" that is not reliably followed. n52 According to at least one noted federal judge, violations of the Brady rule are "epidemic." n53 We tend to think of the Brady violation cases as uncomplicated events: a prosecutor, driven by an excess of the All-American will to win, n54 is encouraged to go too far by the apparently total absence of [*903] accountability, and conceals exculpatory evidence. As Marvin Schechter, chairman of the criminal justice section of the New York State Bar Association and a defense attorney put it: "Prosecutors engage in misconduct because they know they can get away with it." n55 Introducing the credible threat of punishment seems to be the simple answer to this simple problem. n56 But the Brady (and other misconduct) cases are, like the episode in Shooting an Elephant, more complicated. Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream failure by the defenders to uncover the Brady violation or to compensate for its impact, n57 much remains to be explained about the prosecutors' actions. What if the Brady cases involve a problematic - but not abnormal - prosecutor who makes a faulty decision while playing, under intense pressure, the hand he has been dealt by others? What if the problem is not the will to win, but the fear of losing and exposure; not the absence of accountability, but the distorting power of a peculiarly intense, all-embracing, and acutely local accountability that eclipses well-known general constitutional norms? Safety experts in aviation, medicine, and other high risk fields find that these questions indicate that we should pivot from our focus on writing new rules - and punishing the violations of old ones - to a new focus on developing a culture of safety that has reducing future risk through continuous, collaborative, quality improvement as its goal. n58 No system can survive without sanctions for its conscious rule [*904] breakers, and advocates for "non-blaming" approaches to accountability must keep that reality in mind. n59 Still, it ought to be possible to see the young Orwells in the criminal system as potential resources, not exclusively as dangerous toxins. The most productive question could be not why prosecutors believe they can get away with cheating, but why they feel any desire to cheat in the first place. The question that the Thompson narrative raises is not whether the choices of either the District Attorney's office as an agency or the individual frontline prosecutors who hid the evidence were wrong. n60 Of course those choices were wrong. The real question is why did the mistaken choices seem to the agency and to the individuals to be good choices at the time? Or, at least, why did the mistaken choices seem from their perspectives to be the only, or "least bad" choices available. Exculpatory evidence has to be turned over. n61 Why didn't the prosecutors know this? (In fact, as the deathbed confession indicates, at least one did know it.) n62 Why, knowing that withholding the evidence was wrong (as fully as Orwell knew shooting his elephant was wrong) did they decide not to act as the Brady rule required? Safety experts reviewing "operator error" events believe that the operators' choices may have been mistaken, may have violated rules - may even have been immoral - but they were locally rational. n63 They promised to solve, at least for a moment, a pressing local problem, and the same choices will seem rational to the operators who next face the same problems unless their circumstances are changed. To understand why this can happen in a Brady exoneration case it is not enough to go "down and in" to find the broken procedural component or the rogue Assistant District Attorney. The problem [*905] cannot be fully encompassed within the character of any individual prosecutor. That prosecutor is reacting to the conventional demands within his office. And his office is reacting to pressures from the larger society. What we see in the Brady exoneration cases are choices typical of organizations and individuals reacting to the compelling pressure to provide outputs under conditions of resource scarcity. It may be disappointing but it should not be shocking that prosecutors in the wrongful conviction cases, like workers in many production processes, adopted a "covert work system." n64 They decided to evade well-known formal disclosure requirements and buried alternative narratives because they believed sharing the exculpatory facts would interfere with achieving the "real" production goals assigned to them by people to whom they were accountable, namely, superiors who demand "outputs" in the form of convictions, and, therefore, to the unpredictable lay jurors, who will require persuasion before those "outputs" can be generated. n65 Were the prosecutors so starved of resources by the city or state that they felt they could not successfully prosecute guilty violent offenders by following the rules? Had their caseloads crept up to a level where competent, thorough practice seemed impossible? Did they feel that they were so swamped that they needed to bluff Thompson into a guilty plea by withholding the evidence that might have demonstrated his innocence? n66 Did supervisory oversight slacken for the same reasons? Did tunnel vision and other cognitive biases set in? n67 Did the prosecutors feel acutely vulnerable to irresponsible media or political pressure? Or did the prosecutors believe that the police department was so under-resourced or ill-managed that no prosecutors could ever convict anyone, no matter [*906] how guilty, if they dutifully played the woeful cards the police dealt them? Were they right about that? Did the see-no-evil attitude of local trial judges and the vulnerability of overwhelmed appointed defenders encourage them? Had the prosecutors moved by small increments down the inculpatory-to-exculpatory spectrum over the years, withholding progressively more exculpatory material but seeing no negative local impacts (such as exonerations) from doing so? n68 Did they learn to tolerate ever-widening margins of error in making guilt/ innocence judgments? Had deviation from the Brady rule been "normalized"? n69 It is common to speak of the prosecutors' offices as "black boxes," a reference to their characteristic absence of transparency. n70 But it is important to remember that within that black box local norms are well-known and conveyed with great force. n71 Young prosecutors learn very early their local version of "[a] sahib has got to act like a sahib." n72 The prosecutors who figured in the high profile Brady-driven exoneration cases are not lone wolf outcasts in their offices; typically, they are the rising local stars n73 who had successfully managed the conflicts between the formal legal rules and their office culture and have been rewarded with progressively more visible and important case assignments. The prosecutors feel intensely accountable to the role requirements imposed by the [*907] culture n74 within their office. Inevitably, some prosecutors will do what workers in other fields do when confronted by the end-of-process inspections. (In this case, the inspection is provided by adversary trials.) They will develop "workarounds" that allow them to get on with their "real" job, n75 no matter what the formal rules instituted by the Supreme Court at 30,000 feet (or the Board of Bar Overseers at 10,000) require. n76 As Barbara O'Brien has demonstrated, these prosecutors, driven by criteria of outputs (not processes) and persuasion (not comprehension) find themselves in a cognitive position that degrades not only their willingness to turn over Brady material, but their ability to recognize it. n77 A Brady violation seen from this perspective is a mundane workaround; a well-traveled shortcut through a thicket of rules that if meticulously followed would frustrate the attainment of "higher" goals. n78 In fact, within the prosecutors' "black box" familiarity with these workarounds begins to seem to be the essence of veteran workmanship and professionalism. n79 Impose an improved rule without changing either the internal culture or the external demands on that culture and that new rule will be under immediate attack from its environment: new workarounds will be generated very quickly. Encapsulation in a local black box dilutes the deterrent efficacy of punitive gestures applied to other prosecutors outside the local world. n80 The disciplining of a prosecutor in Texas will have limited impact on the conduct of prosecutors in Philadelphia. The informal sanctions for violating the local "covert work rules" and then losing a trial as a consequence are immediate, personal, and public: enforced by the people in the next office. Any official sanction for withholding Brady material is - and will remain even if some novel enthusiasm for disciplining prosecutors gradually takes hold in [*908] scattered jurisdictions - theoretical. n81 Punishment is necessarily contingent on your concealment being discovered by an actually innocent defendant who insisted on a trial, an eventual official finding that the particular defendant really was innocent, that the withheld evidence was "material," and that your violation was knowing. n82 For all of the reasons that disciplinary actions against prosecutors have not become normal (to put it mildly) up until now, some skepticism about the likelihood of their multiplying any time soon is in order. III. We admire George Orwell because of his willingness to subject his own beliefs and actions to unsparing critical examination: a rare quality. This capacity of Orwell's is on full display in "Shooting an Elephant," but that essay also illuminates the limits of even Orwell's very rigorous introspective scrutiny. By focusing on his own experience and canvassing the "within-silo" reactions of his European peers while ignoring the Burmese community he was assigned to serve, Orwell misses the fundamental question underlying his choice: that is, whether it was ever sane to shoot the harmless elephant on the basis of an assumption that, "the people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly." n83 In fact, the first of the Five Precepts accepted by most strains of Buddhism is a requirement to abstain from killing either humans or animals. n84 Orwell's Buddhist crowd likely never wished to see the elephant killed, and believed the killing was wrong. The members of the crowd would not have killed the elephant, or would have been ashamed if they had killed it. But the Buddhist crowd may well have expected Orwell - or any sahib - to do something violent and stupid, and that is exactly what Orwell did, by his own account. By living down to Burmese [*909] expectations Orwell actually undermined the legitimacy of the British colonial rule he believed he was (reluctantly) acting to bolster. He showed (or confirmed) that the best that Burmese could anticipate from the British was the destructive, uncomprehending, exercise of raw power. Like Orwell and his colleagues, young frontline prosecutors in the United States operate in environments devised for them by others, and it is dangerous to ignore the fact that it is the larger American society, not the local district attorney's office, that has contrived a socially constructed reality in which a recognizably colonialist vision of the inner city exerts steady pressure on its frontline criminal justice actors. n85 The unwavering conventions of the news and entertainment media have turned the American inner city - especially the African-American inner city and the criminal justice system - into permanent Elsewheres: places where ordinary white Americans never go, largely because they feel supremely confident of what they would find if they did go. n86 Practitioners who take jobs in this distant zone share with Orwell's peers a rhetoric of isolation, service, sacrifice, burden-bearing. Both groups chose careers that "promised early autonomy in exotic surroundings." n87 Their autobiographical writings recount a disorienting plunge into a world where they struggle to find a role for the values in which they were raised. n88 Similar to the young colonial officers who were thrown into strange and foreign surroundings, a young lawyer's professional life begins "alone, ignorant, and responsible." n89 Isolation and vulnerability plague the functionaries in the courthouses - not unlike Orwell's [*910] "Kipling-haunted little clubs" n90 - and they are menaced by locals and policy-makers, by editorial boards back home or "downtown," who can wreck careers from the safety of their office desks. They feel constrained by wild legalities and utopian standards: "Young Assistant District Attorneys, like young Assistant District Commissioners in the old empires, hurriedly seize, then vehemently defend, a conventional wisdom as protection against these threats." n91 They adopt a "professional code" that sees an environment in which people are divided into collectives. n92 Indeed, instead of seeing individuals, they often see "races, types, and colors" instead. n93 Facing defendants, defenders, even (sometimes) witnesses, and communities, they gradually embrace a "rigidly binomial opposition of "ours' and "theirs.'" n94 A defendant such as John Thompson seems, as did an individual Burmese to Orwell, a featureless face in an anonymous crowd of "them." As William Stuntz put it: One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. n95 In other words, the mental world of our criminal justice practitioners has come to have something in common with that of the White Man whom Kipling extolled and Orwell exemplified. It is not a question of race. In the criminal justice system, there are whites who are not White Men, and African-Americans (and women) who are. n96 Despite the overwhelming statistical evidence of imbalance in the system's treatment of the races, its White Men in deny any racist intent. n97 Very few would ever sign on to an [*911] explicitly racist project, and most read the aggregated figures indicating wildly disparate results for the races with bewilderment and dismay: this is not what they intended. But as Edward Said observed of Orwell's imperial generation: "being a White Man was ... an idea and a reality. It involved a reasoned position towards both the white and the non-white worlds. It meant ... speaking in a certain way, behaving according to a code of regulations, and even feeling certain things and not others." n98 In the criminal justice system, as on the frontiers of empire, something like this "impersonal communal idea of being a White Man rule[s;]" it becomes "a very concrete manner of being-in-the-world, a way of taking hold of reality, language, and thought." n99 This is not a situation that frontline criminal justice practitioners can easily remedy by themselves. It is not obvious that statistical studies of their "outputs" or checklists generated from those studies will remedy it for them either. n100 This is not a situation that more training about, or tinkering with, the Brady rule will resolve. n101 The problem does not lie in our having no rule, or in the nature of the existing rule; it lies in persuading people that personally following the rule is a crucial element of their individual responsibility for a just collective outcome. This looming environment generates perpetual pressure to clear the docket and produce convictions, as well as accelerates the routine dehumanization of the people whose lives the practitioners impact so powerfully. n102 The reduction of defendants, victims, and communities into faceless crowds can allow the practice of mass incarceration to run very smoothly. n103 As bad as its consequences are in the spectacular capital felony exonerations that make news, they may be even worse in the submerged street crime dockets, where factual accuracy is treated as largely irrelevant, guilty pleas are the rule, and thousands of black lives are taken on the [*912] installment plan. n104 Orwell's experience is replayed constantly not only in the courtrooms, but also on the streets, where people, not tame elephants, pay the price. On the streets it is enacted in humiliating stops and frisks; sometimes in fatal violence. n105 Exiling or punishing one erring practitioner, or even a string of erring practitioners, will not change this environment, and the environment will envelope the next practitioner who comes along. This system is in crisis and desperately needs reform, but not because of an explicitly racist ideology. Throughout the system, in many roles, thousands of beleaguered young Orwells are trying to get through their days, doing what they believe is expected of them, with the tools at hand, oblivious to the appalling collateral damage they are inflicting. n106 The lesson that Orwell might have learned by seeking the perspective of the Burmese in his review of his action resonates with the lesson William Stuntz urged us to learn in the final paragraph of his magisterial The Collapse of American Criminal Justice: The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals' neighborhoods. Neither side of this divide is "them." Both sides are us. Democracy and justice alike depend on getting that most basic principle of human relations right. n107 The question is whether by recognizing a deeper etiology of wrongful convictions we might move in that direction. [*913] IV. If it is true as a matter of fundamental etiology that even so seemingly simple an event as a wrongful conviction after a Brady violation is actually a complex "organizational accident" implicating many contributing factors that ultimately combined and cascaded, we are in a position to capitalize on an insight mobilized by Donald Berwick, one of the pioneers of the modern patient safety movement: n108 "Every defect is a treasure." n109 The basic manner of causation of wrongful convictions argues that we should amend our standard criminal justice response to disasters, and say when one occurs, "Something to see here: don't move along." n110 The recognition that there is something to be learned from past criminal justice events has begun to gather some momentum. The National Institute of Justice, borrowing a phrase n111 from the Joint Commission on Hospital Accreditation, has launched a Sentinel Events Initiative n112 that attempts to promote the exploration of non-blaming, all-stakeholders reviews of wrongful convictions, wrongful releases, "near misses" and other meaningful incidents. n113 The National Commission on Forensic Science has recommended "Root Cause Analysis" as a standard practice in forensic laboratory error reviews. n114 The Presidential Task Force on 21st Century Policing [*914] has recommended the practice of Sentinel Event Reviews of critical events. n115 These efforts share a determination to move beyond performance reviews of individuals (including searches for "bad apples") to press for system-oriented event analyses. n116 This approach aims to avoid the tendencies of the "bad apple" disciplinary review or civil lawsuit to drive reports of significant events underground and to narrow the lense to scrutinize only the conduct of a lone individual rather than the system's various contributing weaknesses. n117 It accepts the fact that a full understanding of what went wrong is (to at least a degree) dependent on the insights from the perspective of the "second victim;" n118 for example, the nurse who was the last in the chain that delivered a fatal medication dose, or the defense lawyer who failed to intercept the Brady violation in a wrongful conviction [*915] case, or even - however much it may rankle - a prosecutor who after having been seduced the by local office culture has contributed to a Brady exoneration. The criminal justice system is an organization which, like many others, has a lot invested in its practitioners. As Sidney Dekker argues: Paying off the first victim and sending off the second denies the humanity and reality of the relationship that existed between the two victims... . Where first victims are given the impression that their lives had been entrusted to a dispensable, disposable cog in the organizational machine, what does that say about the organization's own duty ethic in relation to its patients, passengers, clients? n119 The "second victim" focus is one particular example of a general principle of analysis more or less dictated by the organizational accident etiology of error; the need for the perspectives of all of those implicated in the event. As John Chisholm (the District Attorney of Milwaukee County, Wisconsin and a N.I.J. "Sentinel Event" participant) put it: Creating a better justice system requires us to expand our definition of the critical actors involved in any event, from citizens, police, corrections, pretrial services, public defenders and the defense bar, as well as prosecutors and judges. And we have to create a process where everyone feels empowered to speak the truth about his or her role in any given event. n120 Chisholm does not mean by this that he plans to turn the running of his office or the education of his assistants over to outsiders; nor should he: outsiders are not well-equipped for the task. n121 But he does recognize the value to him, and to all criminal justice system leaders, of a new feedback loop that can draw attention to system weaknesses and begin to prepare the way for cultural change. n122 The "all stakeholders" aspect of these reviews requires not only the participation of representatives of all agencies, but also of all ranks from within the implicated "silos." n123 Elements of the foot [*916] soldiers' working environment - for example, caseloads and resource shortages - that would be shrugged off as excuses or evasions in a disciplinary or tort proceeding can be given their deserved explanatory weight in these event reviews. n124 Moreover, the potential contributions of scholars and researchers from a variety of disciplines can be mobilized in these reviews to supplement the basic narratives with insights into the role that, for example, unconscious biases or census pressures may have played. The researchers will receive in return new challenges for empirical research of increased salience: the good questions that are at the heart of the research enterprise. And although we are most concerned with the problem of wrongful convictions, we should not ignore the fact that the universe of available lessons about the sources of wrongful conviction includes not only those learned from completed exonerations, but also others, gathered from "near misses," n125 and other "high frequency/low impact" events. But, perhaps most importantly, the "all-stakeholders" event reviews that the logic of the organizational accident etiology requires access to the perspective of community stakeholders. Among other things, a community presence may indicate that many "low impact" events - humiliating stops and frisks, pretrial detentions, misdemeanor processing and the collateral consequences of records - are not, for defendants, families, and communities the "low impact" practices that from the practitioners' perspective they seem to be. n126 Besides, "Shooting an Elephant" also illustrates why, although the perspectives of the young Orwells at the sharp end of the criminal system are indispensable to an understanding of an event, their professional accounts - even when these seem to be confessional accounts - are not sufficient if our aim is "forward-looking accountability." For all of Orwell's sincere contrition for his role in the imperial project, it is not clear that Orwell's version of this particular event can be trusted. Orwell had lived in Burma for some time and his father was a career imperial civil servant. n127 Orwell was a curious [*917] and intelligent man. Orwell probably knew very well that Buddhism abhors killing, but counted on his audience's ignorance of that fact when he enlisted "the will" of the crowd tactically as a motivator in order to mitigate, even partly obscure, his personal role. n128 If we rely solely on Orwell we will learn that imperialism was a bad thing and that one of its officers was acutely ashamed of his role. n129 We would still not know why Orwell's elephant was destroyed. n130 The presence of community stakeholders in the process can be a crucial guard against the influence of these blind spots in a review: an important tool for preventing reoccurrence. William Stuntz believed that: "the [criminal] justice system stopped working when a particular kind of local democracy - the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets - ceased to govern the ways police officers, prosecutors, and trial judges do their jobs." n131 It may be that the determined, routine practice of including community voices in the learning from error event reviews can begin to repair this situation, and to erode the Manichean separation of "Us" from "Them." It is very easy to sympathize with Joseph Margulies's statement that "reform proposals aimed at population-cutting rather [than] principle are dangerously incomplete," that, "halving the prison population is a laudable goal, but population-cutting initiatives mistake a symptom for [a cause]." n132 If our current reform tide recedes leaving only a drop in prison census behind, we can be pretty sure that the population will soon be replenished. Something more fundamental, something such as Margulies's call for the elevation of the three principles of human dignity, thriving communities, and fair government officials and processes n133 - something that emulates hospital medicine's paradigm shift toward a "culture of safety" n134 - is called for. [*918] Such a sweeping change in the world of American criminal justice cannot be imposed from the rarefied heights of the think tanks and law reviews; it must come from the bottom up. As John Griffith's observations about the early Twentieth Century's doomed attempt to impose a "Family Model" of juvenile justice on the "Battle Model" culture of criminal justice make clear, a culture change of this magnitude cannot be achieved by fiat. n135 The advantage of the practice of non-blaming, all-stakeholders event review is that it enlists the frontline practitioners in a collaborative review of processes, not only outcomes, and with researchers and community members participating as equals. In this process the map of the criminal justice process as it is appears in the vision comprised of statistical findings and the living criminal justice process as it appears in the narratives of the citizens and communities entangled in it are not simply complementary (although they are that) but dynamic and reciprocal. "Narrative," as Edward Said observed, writing about the colonial system that enmeshed Orwell, "asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change ... ." n136 We need the narratives of the Orwells, but also of the Burmese; of the prosecutors, police, defenders, and judges, but also of the exonerees, the crime survivors, the stopped and frisked, their families, and their communities. No "fix" is permanent. We need constantly to gather both narratives and statistical analyses and to take account of them in a continuous practice if we are going to create resilience and heal the system. Criminal justice practitioners have to learn to allow others to learn about our lives: to suffer the pain of being known along with the pleasure of knowing. n137 We also have to learn - as Orwell did, in his dogged, imperfect way - to be willing to risk discovering uncomfortable facts about ourselves.The AC buys into a theory of “constituent power”- this model assumes the state exercises rational, juridical control that can be challenged and overthrown by a legal revolution. But modern societies aren’t disciplinary, they are control based. Legal reform is simply a new mechanism of this control-it is a depoliticized and hollow form of resistance. Instead we need “destituent power”, a strategy that deposes the law permanently to open space for new modes of political engagement Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)You will probably know that Michel Foucault, in his book Surveiller et punir and in his courses at the Collège de France sketched a typological classification of modern States. He shows how the State of the Ancien regime, that he calls territorial or sovereign State and whose motto was faire mourir et laisser vivre, evolves progressively in a population State and in a disciplinary State, whose motto reverses now in faire vivre et laisser mourir, as it will take care of the citizens life in order to produce healthy, well-ordered and manageable bodies. The state in which we live now is no more a disciplinary State. Gilles Deleuze suggested to call it ?Etat de contr?le?, control State, because what it wants, is not to order and to impose discipline, but rather to manage and to control. Deleuze’s definition is correct, because management and control do not necessarily coincide with order and discipline. No one has told it so clearly as the Italian police officer, who, after the turmoil of Genoa in July 2001, declared that the government did not want that the police maintains order, but that it manages disorder. American politologists, who have tried to analyze the constitutional transformation involved in the Patriot Act and in the other laws which followed September 2001, prefer to speak of a Security State. But what does security here mean? It is during the French revolution that the notion of security — sureté, as they used to say — is linked to the definition of police. The laws of March 16, 1791 and August 11, 1792 introduce thus in the French legislation the notion of ?police de sureté? (security police), which was doomed to have a long history in modernity. If you read the debates which preceded the voting of these laws, you will see that police and security define one another, but no one among the speakers (Brissot, Heraut de Séchelle, Gensonné) is able to define police or security by themselves. The debates focused on the situation of the police with respect to justice and judicial power. Gensonné maintains that they are ?two separate and distinct powers?; yet, while the function of the judicial power is clear, it is impossible to define the role of the police. An analysis of the debate shows that the place and function of the police is undecidable and must remain undecidable, because, if it were really absorbed in the judicial power, police could no more exist. This is the discretionary power which still today defines the action of the police officer, who, in a concrete situation of danger for the public security, acts so to speak as a sovereign. But, even when he exerts this discretionary power, he does not really take a decision, nor prepares, as is usually stated, the judge’s decision. Every decision concerns the causes, while the police acts on effects, which are by definition undecidable. The name of this undecidable element is no more today, like it was in XVII century, ?raison d’Etat?, State reason: it is rather ?security reasons?. The Security State is a police State: but, again, in the juridical theory, the police is a kind of black hole. All we can say is that when the so called ?Science of the police? first appears in XVIII century, the ?police? is brought back to its etymology from the Greek ?politeia? and opposed as such to ?politics?. But it is surprising to see that Police coincides now with the true political function, while the term politics is reserved to the foreign policy. Thus Von Justi, in his treatise on Policey Wissenschaft, calls Politik the relationship of a State with other States, while he calls Polizei the relationship of a State with itself. It is worthwhile to reflect upon this definition: (I quote): ?Police is the relationship of a State with itself?. The hypothesis I would like to suggest here is that, placing itself under the sign of security, modern State has left the domain of politics to enter a no man’s land, whose geography and whose borders are still unknown. The Security State, whose name seems to refer to an absence of cares (securus from sine cura) should, on the contrary, make us worry about the dangers it involves for democracy, because in it political life has become impossible, while democracy means precisely the possibility of a political life. But I would like to conclude –or better to simply stop my lecture (in philosophy like in art, no conclusion is possible, you can only abandon your work) with something which, as far as I can see now, is perhaps the most urgent political problem. If the State we have in front of us is the Security State I described, we have to think anew the traditional strategies of political conflicts. What shall we do, what strategy shall we follow? The Security paradigm implies that each dissention, each more or less violent attempt to overthrow its order, become an opportunity to govern them in a profitable direction. This is evident in the dialectics which binds tightly together terrorism and State in an endless vicious spiral. Starting with French revolution, the political tradition of modernity has conceived of radical changes in the form of a revolutionary process that acts as the pouvoir constituant, the ?constituent power? of a new institutional order. I think that we have to abandon this paradigm and try to think something as a puissance destituante, a ?purely destituent power?, that cannot be captured in the spiral of security. It is a destituent power of this sort that Benjamin has in mind in his essay On the critique of violence when he tries to define a pure violence which could ?break the false dialectics of lawmaking violence and law-preserving violence?, an example of which is Sorel’s proletarian general strike. ?On the breaking of this cycle? he writes in the end of the essay ?maintained by mythic forms of law, on the destitution of law with all the forces on which it depends, finally therefore on the abolition of State power, a new historical epoch is founded?. While a constituent power destroys law only to recreate it in a new form, destituent power, in so far as it deposes once and for all the law, can open a really new historical epoch. To think such a purely destituent power is not an easy task. Benjamin wrote once that nothing is so anarchical as the bourgeois order. In the same sense, Pasolini in his last movie has one of the four Salò masters saying to their slaves: ?true anarchy is the anarchy of power?. It is precisely because power constitutes itself through the inclusion and the capture of anarchy and anomy, that it is so difficult to have an immediate access to these dimensions, it is so hard to think today something as a true anarchy or a true anomy. I think that a praxis which would succeed in exposing clearly the anarchy and the anomy captured in the Security government technologies could act as a purely destituent power. A really new political dimension becomes possible only when we grasp and depose the anarchy and the anomy of power. But this is not only a theoretical task: it means first of all the rediscovery of a form-of-life, the access to a new figure of that political life whose memory the Security State tries at any price to cancel.While the AC attempts to criticize the law, it does so within the confines of existing ideological investments and institutions, this is constituent power. Destutuency is an active no: it rejects the terms of the 1AC in order to divest our political and affective investments that sustain this system. Bougtsy-Marshall, JD, 16(Skye, Climate Activist, “Flooding Wall Street: Echoes from the Future of Resistance around Climate Change,” Capitalism Nature Socialism Volume 27, 2016 - Issue 3, Pages 64-82, )The concept of destituent power (poder destituyente), on the other hand, originates from the Colectivo Situaciones’ (2011) analysis of the uprisings in Argentina on 19 and 20 December 2001. Destituent power exhibits potency similar to constituent power, but operates as a continual process of openended withdrawal from, or refusal of, the juridical, institutional order (Laudani 2013, 4). It functions completely outside the law – extrainstitutionally – seeking to dismantle sovereign, constituted power altogether rather than to reform it or overthrow it and then re-institute it in a different form. Destituent power undermines and erodes the obedience that is fundamental to and presupposed by the constituted order for its continued existence. However, destituent power is not a purely reactive or nihilistic force, but instead is creative – not in the sense of producing new institutions to replace the old, but through its deactivation of the legal order. This, in turn, opens new horizons of possibilities for egalitarian and holistic social and ecological relationships far exceeding what is practicable under the current destructive political order (Laudani 2013, xv, n. 23). Benjamin (1978, 300) also envisaged this immanent creative potential within destituent power as he attempted to identify a pure violence that could “break the false dialectics of lawmaking violence and law-preserving violence.” Following this line of reasoning, he argued that: [o]n the breaking of this cycle maintained by mythical forms of law, on the suspension [destitution] of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. Thus, although a constituent power destroys law only to re-institute it again in a new form (merely perpetuating the cycle), insofar as destituent power dismantles and deposes the law once for all, it can function to open onto the terrain of a new epoch characterized by radically new possibilities (Agamben 2014). In deposing the political order, destituent power opens becomings, enabling experimentation with new practices and the development of new knowledges that will, in turn, themselves be de-instituted in the continual and open-ended process unfolding (Colectivo Situaciones 2011, 64, 87). Constituent power’s direct confrontation with the state – through terrorism or revolution – simply reinforces the security apparatus and invites greater levels of repression. As destituent power, disobedience can be conceived not as a direct clash with constituted power but instead as the withdrawal of consent to the political order, as a direct negation of its legitimacy (Laudani 2013, 37). Early twentieth-century German anarchist Gustav Landauer (2010, 214) deployed a similar argument in maintaining that all social and political institutions depend for their existence on the choices of individuals to continue to give them their support, and, thus, removal of this support and constituting ourselves apart from these institutions, thereby rendering them redundant, is the key to dissolving them. Furthermore, Landauer extended this insight concerning the extent to which our obedient practices and behaviors serve as the basis of the state, arguing that “[t]he state is a condition, a certain relationship among human beings, a mode of behavior between men; we destroy it by contracting other relationships, by behaving differently toward one another” (qtd. in Lunn 1973, 226). This view of the basis of the power of the state and capitalism as sets of relations anticipates and finds consonance in the poststructuralist understanding of power articulated by Foucault (referenced above). The network of power relations forms a “dense web that passes through apparatuses and institutions, without being exactly localized in them” (Foucault 1978, 95). Thus, power is not like an object that is acquired or held, but rather it is exercised from innumerable points in a network of shifting relations. This understanding of social and political space as exhaustively comprised by a complex web of intersecting power relationships does not preclude particular lines and points in the network, like the state, from being bolder, so to speak, or more socially determinative than others; however, these points or lines do not act as a central locus from which the other lines emanate or through which they must pass (May 1995, 52–53). The state is not a “thing” exterior to us that can be seized and wielded by a dominant class or group without thereby merely reproducing the intricate network of power relations that manifests in exploitation, domination, irreducible forms of oppression (e.g. patriarchy, racism, heteronormativity, etc.), and deterioration of the biosphere. We are not controlled by a state or capital as institutions apart from us, set above or outside a “civil society,” but instead “we all govern each other through a complex web of capillary relations of power” (Day 2005, 124–125). This is not to say the state or capital are not real or do not have material effects, that the profane violence wrought by each and in tandem is an illusion, or that they can simply be wished away. Rather it is to reveal the critical foundation of their existence. Macropolitical practices or relations like the state and global capitalism are products of the manifold intersections and confluence of specific local, or micropolitical, practices, and must be understood and assayed on their basis. The intersecting local power relations and practices on which the macropolitical is founded cannot be subsumed and absorbed by the latter. This recognition is crucial to avoiding the theoretical and historical error of assuming that the destruction or replacement of dominating macropolitical arrangements will result in the dissolution of the composite power relations and the oppressive effects reflected in them. There remains a heterogeneity between micropolitical and macropolitical practices notwithstanding their entanglement through reflexive interplay and mutual supposition and reinforcement (May 1995, 99–100). Even as the relations comprising the state and global capital are traceable to and constituted by myriad local practices and power relationships, the macropolitical is not completely reducible to these local dynamics either. Rather it is an agglomeration of different lines in the network of mobile power relations that makes it more than the sum of its parts – not a mere mechanical transposition in scale of the local practices on which it is founded – but also not separate from the microrelations, from the confluence of micropolitical practices that constitute it and on which it depends for its functioning. In analyzing capitalism and the state form not as “things” but as particular sets of relations among subjects and the local practices yielded through the innumerable interactions of such relations, we can see how deactivating and reconceiving these relationships through the connection of experiments (even if initially small in scale) in the construction of alternative modes of social, political, and economic relations and organization can offer a way to avoid both the indefinite wait for the ripening of the moment for revolution to arrive – which, in aspiring to totalizing transformation through enacting a changing of the guard at the helm of the state, will leave unaddressed the underlying power relations – and the perpetuation of existing forms of domination by injecting energy into them anew through reformist demands (Day 2005, 16). To the extent that we continue to come to the state to mediate and redress our grievances, we remain circumscribed within the horizons of state logic. We perpetuate the set of relationships constitutive of the state each time we make claims or demands upon it for the conferral of recognition, inclusion, or gifts of heretofore denied rights. This is not necessarily to maintain that struggling for reforms can never be advantageous – perhaps to achieve short-term palliatives to mitigate the most severe depravities of capitalism – but it is to accentuate the consequences of this politics of demand that both provides the state system with positive energy which could be directed towards building alternatives, and serves to relegitimize and further sediment the set of social relationships constituting the dominant global political order. Armed with this conceptual lens for apprehending the manifold ways local power relations constitute macropolitical practices of the state and global capital, we can orient ourselves to evaluate the various molecular bonds, specific practices, psychic attachments, idealizations, investments of desire, modes of subjectification that traverse individuals, and the social order as specifically contributing to the macropolitical functioning of the state and capital or, in contrast, as eroding and undermining their operation, weaving different relationships that do not sustain those constituting capitalism and the state. Destituent power deposes the political order through withdrawing the vital energy and reconfiguring the social relationships and practices on which the system depends and which serve as its basis for perpetuation. If we are the state and capitalism and each is in all of us, then we must disentangle ourselves from this condition thereby creating openings in which we can begin to define ourselves through alternative relations (Day 2005, 188). The state and capitalism will persist only and as long as individuals continue to relinquish their autonomy to give their support to them, as their existence is sustained through psychic attachments to and codependency on their power, through the persistent acknowledgement and idealization of the dominant authority of each, and the local microrelations that crisscross the social body constituting these attachments, dependencies, and idealizations (Newman 2010, 42). Change will come through individuals withdrawing their collective support and deactivating at a micropolitical level the multifarious ways in which we are bound to the prevailing organization of power at the level of our social relationships and subjectivities. Thus, against the criticism that this approach of destituent power merely evinces an impotent allergy to state power, we can see we cannot reestablish a legal and political order without reproducing the subjectivities and power relations on which the former is predicated and from which the latter are derived in a dynamic relation of mutual codetermination. Some may also worry that embracing destituent power is naively unrealistic, that we need a legal and institutional order to functionally organize the social, especially at increasing geographic scales. While undoubtedly a critical challenge for the coming communities, this issue of administering complex systems is ultimately more a problem of imagination rather than logistics (though it is certainly that too). Destituent power pushes our collective imaginaries to develop approaches to organize political life that do not rely on establishing a legal and institutional order. Constituted power, wielding its law-preserving violence, functions as a machine for its own reproduction. Distancing itself from the historical and theoretical trappings of constituent power, destituent power operates ceaselessly to disperse power – for example, through developing mechanisms for rotating individuals who temporarily occupy a position of executing the communal will, or of “leading by obeying” (mandar obedeciendo), as with the Zapatistas or Aymaras in Bolivia – to prevent its accumulation, concentration, and reinstitutionalization (Zibechi 2010, 14–16). Drawing on these autonomous and indigenous communal forms can help us imagine modes of community that are non-institutional, non-legal, nonorganizational, in which the ostensibly distinct domains of the economic, social, political, cultural, etc. are not separated but woven together in the same field of the unfolding, indefinite communities-in-process. We do not yet know what a destituent body is capable of. The concept of destitution should be understood as a “positive no” rather than a pure negation, a “no” that in rejecting representation at once “produces a ‘self-changing’ affirmation that engenders new practices and modes of subjectification, from which the ‘no’ first derives its force” (Nowotny 2007). Destituent power dissolves sovereignty, institutions, and representation, thereby expanding “the field of the thinkable” as if manipulating an aperture (Colectivo Situaciones 2011, 53). The flight from the system does not carry with it a hegemonic, universal program for constructing new social and ecological relations in destituent territories, but will be a ceaseless process of experimentation with alternatives developed through recursive (re)negotiation of common social values using participatory democratic practices.(7-11)Depoliticization spreads annihilating value to life. The affirmative’s conception of free/unfree is based on the physical location of the prison which obscures the omnipresent state “indifference” Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)But the extreme step has been taken only in our days and it is still in the process of full realization. The development of new digital technologies, with optical scanners which can easily record not only finger prints but also the retina or the eye iris structure, biometrical apparatuses tend to move beyond the police stations and immigration offices and spread to everyday life. In many countries, the access to student’s restaurants or even to schools is controlled by a biometric apparatus on which the student just puts his hand. The European industries in this field, which are quickly growing, recommend that citizens get used to this kind of controls from their early youth. The phenomenon is really disturbing, because the European Commissions for the development of security (like the ESPR, European security research program) include among their permanent members the representatives of the big industries in the field, which are just armaments producers like Thales, Finmeccanica, EADS et BAE System, that have converted to the security business. It is easy to imagine the dangers represented by a power that could have at its disposal the unlimited biometric and genetic information of all its citizens. With such a power at hand, the extermination of the jews, which was undertaken on the basis of incomparably less efficient documentation, would have been total and incredibly swift. But I will not dwell on this important aspect of the security problem. The reflections I would like to share with you concern rather the transformation of political identity and of political relationships that are involved in security technologies. This transformation is so extreme, that we can legitimately ask not only if the society in which we live is still a democratic one, but also if this society can be still considered as political. Christian Meier has shown how in fifth century a transformation of the political conceptuality took place in Athens, which was grounded on what he calls a “politisation” (politisierung) of citizenship. While till that moment the fact of belonging to the polis was defined by a number of conditions and social status of different kind — for instance belonging to nobility or to a certain cultual community, to be peasant or merchant, member of a certain family etc — from now on citizenship became the main criterion of social identity. “The result was a specifically greek conception of citizenship, in which the fact that men had to behave as citizens found an institutional form. The belonging to economical or religious communities was removed to a secondary rank. The citizens of a democracy considered themselves as members of the polis, only in so far as they devoted themselves to a political life.Polis and politeia, city and citizenship constituted and defined one another. Citizenship became in that way a form of life, by means of which the polis constituted itself in a domain clearly distinct from the oikos, the house. Politics became therefore a free public space as such opposed to the private space, which was the reign of necessity”. According to Meier, this specifically greek process of politisation was transmitted to western politics, where citizenship remained the decisive element. The hypothesis I would like to propose to you is that this fundamental political factor has entered an irrevocable process that we can only define as a process of increasing depolitisation. What was in the beginning a way of living , an essentially and irreducibly active condition, has now become a purely passive juridical status, in which action and inaction, the private and the public are progressively blurred and become indistinguishable. This process of depolitisation of citizenship is so evident, that I will not dwell on it. I will rather try to show how the paradigm of security and the security apparatuses have played a decisive role in this process. The growing extension to citizens of technologies which were conceived for criminals has inevitably consequences on the political identity of the citizen. For the first time in the history of humanity, identity is no longer a function of the social personality and its recognition by others, but rather a function of biological data, which cannot bear any relation to it, like the arabesques of the fingerprints or the disposition of the genes in the double helix of DNA. The most neutral and private thing becomes the decisive factor of social identity, which lose therefore its public character. If my identity is now determined by biological facts, that in no way depends on my will and over which I have no control, then the construction of something like a political and ethical identity becomes problematic. What relationship can I establish with my fingerprints or my genetic code? The new identity is an identity without the person, as it were, in which the space of politics and ethics loses its sense and must be thought again from the ground up. While the greek citizen was defined through the opposition between the private and the public, the oikos , which is the place of reproductive life, and the polis, place of political action, the modern citizen seems rather to move in a zone of indifference between the private and the public, or , to quote Hobbes terms, the physical and the political body. The materialization in space of this zone of indifference is the video surveillance of the streets and the squares of our cities. Here again an apparatus that had been conceived for the prisons has been extended to public places. But it is evident that a video recorded place is no more an agora and becomes a hybrid of public and private, a zone of indifference between the prison and the forum. This transformation of the political space is certainly a complex phenomenon, that involves a multiplicity of causes, and among them the birth of biopower holds a special place. The primacy of the biological identity over the political identity is certainly linked to the politicization of bare life in modern states. But one should never forget that the leveling of social identity on body identity begun with the attempt to identify the recidivist criminals. We should not be astonished if today the normal relationship between the state and its citizens is defined by suspicion, police filing and control. The unspoken principle which rules our society can be stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a principle? Can we still define it as democratic State? Can we even consider it as being something political? In which kind of State do we live today?Constituent thought is the scaffolding that enables modern violence. Violence is no longer war between states but a war on distinctions themselves- war/peace, guilty/innocent are road bumps on the way to total annihilation. Only a destituent strategy offers a way out of unending destruction Lazzarato and Alliez, PhDs, 16(Maurizio, researcher at Matisse/CNRS, Pantheon-Sorbonne University , Eric, professor at Universite Paris 8 and at the Centre for Research in Modern European Philosophy “To Our Enemies,” e-flux, Journal #78 - December 2016 )22. If the fall of the Wall delivered the death certificate of a mummy whose Communist prehistory ’68 made us forget, and if it is to be considered a nonevent (as the thesis of the End of History states in its melancholic way), the bloody fiasco of the imperial war machine’s first post-Communist wars made history. In part because of the debate that it started inside the military, where a new paradigm of war appeared. An antithesis of the industrial wars of the twentieth century, the new paradigm is defined as a “war amongst the population.” This concept, which inspired an improbable “military humanism,” is one we make our own by returning its meaning to the source and real terrain of wars of capital, and by rewriting this “war within the population” in the plural of our wars. The population is the battlefield in which counter-insurrectional operations of all kinds are underway. At the same time, and indistinguishably, they are both military and nonmilitary because they also carry the new identity of “bloody wars” and “non-bloody wars.” Under Fordism, the State not only guaranteed State territorialization of Capital but also of war. As a result, globalization cannot not free capital from State control without also freeing war, which passes to a superior power of continuity by integrating the plane of capital. Deterritorialized war is no longer inter-State war at all, but an uninterrupted succession of multiple wars against populations, definitively sending “governmentality” to the side of governance in a common enterprise of denial of global civil wars. What is governed and what allows governing are the divisions that project wars into the heart of the population at the level of the real content of biopolitics. A biopolitical governmentality of war as differential distribution of instability and norm of “daily life.” The complete opposite of the Great Narrative of the liberal birth of biopolitics taking place in a famous course at the Collège de France in the break between the 1970s and 1980s. 23. Accentuating divisions, aggravating the polarization of every capitalist society, the debt economy transforms “global civil war” (Schmitt, Arendt) into interconnected civil wars: class wars, neocolonialist wars on “minorities,” wars on women, wars of subjectivity. The matrix of these civil wars is the colonial war. Colonial war was never a war between States but, in essence, a war in and against the population, where the distinctions between war and peace, between combatants and noncombatants, between economy, politics, and military were never used. Colonial war in and against populations is the model of the war that financial Capital unleashed starting in the 1970s in the name of a neoliberalism of combat. Its war is both fractal and transversal: fractal, because it indefinitely produces its invariance by constant changes of scale (its “irregularity” and the “cracks” it introduces operate at different scales of reality); and transversal, because it is simultaneously deployed at the macropolitical level (by playing on all of the major binary oppositions: social classes, whites and nonwhites, men and women) and the micropolitical level (by molecular “engineering” privileging the highest interactions). It can also connect the civilian and military levels in the Global South and North, in the Souths and Norths of everyone (or almost everyone). Its first characteristic is therefore to be less indiscriminate war than irregular war. The war machine of capital which, in the early 1970s, definitively integrated the State, war, science, and technology, clearly declares the strategy of contemporary globalization: to bring to an end the very short history of reforming capital—Full Employment in a Free Society, according to the manifesto of Lord Beveridge published in 1944—by attacking everywhere and with all means available the conditions of reality of the power struggle that imposed it. An infernal creativity is deployed by the neoliberal political project in pretending to grant the “market” superhuman qualities of information processing: the market as the ultimate cyborg. 24. The newfound consistency of neofascisms starting with the financial “crisis” in 2008 represents a turning point in the waging of wars amongst populations. Their dimensions, both fractal and transversal, take on a new and formidable effectiveness in dividing and polarizing. The new fascisms challenge all of the resources of the “war machine,” because if the “war machine” is not necessarily identified with the State, it can also escape the control of Capital. While the war machine of Capital governs through an “inclusive” differentiation of property and wealth, the new fascist war machines function through exclusion based on racial, sexual, and national identity. The two logics seem incompatible. In reality, they inevitably converge (see “national preference”) as the state of economic and political emergency takes residence in the coercive time of global flow. If the capitalist machine continues to be wary of the new fascisms, it is not because of its democratic principles (Capital is ontologically antidemocratic!) or the rule of law, but because, as it happened with Nazism, post-fascism can claim its “autonomy” from the war machine of Capital and escape its control. Isn’t this exactly the same thing that has happened with Islamic fascisms? Trained, armed, and financed by the US, they turned their weapons against the superpower and its allies who had instrumentalized them. From the West to the lands of the Caliphate and back, the neo-Nazis of all allegiances embody the suicidal subjectivation of the capitalist “mode of destruction.” It is also the final scene of the return of the colonial repressed: the jihadists of generation 2.0 haunt Western cities like their most internal enemy. Endocolonization also becomes the generalized conjugation of “topical” violence of the most intense domination of capitalism over populations. As for the process of convergence or divergence between the capitalist and neofascist war machines, it will depend on the evolution of the civil wars now underway and the risks that a future revolutionary process could run for private property, and more generally for the power of Capital. 25. Prohibiting the reduction of Capital and capitalism to a system or a structure, and of the economy to a history of self-enclosed cycles, wars of class, race, sex, and subjectivity also challenge every principle of autonomy in science and technology, every highway to “complexity” or emancipation forged by the progressive (and now accelerationist) idea of the movement of History. Wars constantly inject the indeterminacy of conflict into open strategic relationships, making inoperable every mechanism of self-regulation (of the market) or every regulation by feedback (“man-machine systems” open their “complexity” to the future). The strategic “opening” of war is radically other than the systematic opening of cybernetics, which was not born in/of war for nothing. Capital is not structure or system; it is “machine” and war machine, of which the economy, politics, technology, the State, the media, and so forth are only the articulations informed by strategic relations. In the Marxist/Marxian definition of General Intellect, the war machine integrating science, technology, and communication into its functioning is curiously neglected for the sake of a hardly credible “communism of capital.” 26. Capital is not a mode of production without being at the same time a mode of destruction. The infinite accumulation that constantly moves its limits to recreate them again is at the same time unlimited, widespread destruction. The gains in productivity and gains of destructiveness progress in parallel. They manifest themselves in the generalized war that scientists prefer to call “Anthropocene” rather than “Capitalocene,” even if, in all evidence, the destruction of the environments in and through which we live does not begin with “humans” and their growing needs, but with Capital. The “ecological crisis” is not the result of a modernity and humanity blinded to the negative effects of technological development but the “fruit of the will” of some people to exercise absolute domination over other people through a global geopolitical strategy of unlimited exploitation of all human and nonhuman resources.‘ Capitalism is not only the deadliest civilization in the history of humanity, the one that introduced us to the “shame of being human”; it is also the civilization through which labor, science, and technology have created—another (absolute) privilege in the history of humanity—the possibility of (absolute) annihilation of all species and the planet that houses them. In the meantime, the “complexity” of (saving) “nature” still offers the prospect of healthy profits combining the techno utopia of geoengineering and the reality of the new markets of “polluting rights.” At the confluence of one and the other, the Capitalocene does not send capitalism to the Moon (it has been there and back); it completes the global merchandizing of the planet by asserting its rights to the well-named troposphere. 27. The logic of Capital is the logistics of an infinite valuation. It implies the accumulation of a power that is not merely economic for the simple reason that it is complicated by strategic power and knowledge of the strength and weakness of the classes struggling, to which it is applied and with which they are in constant explanation. Foucault tells us that the Marxists turned their attention to the concept of “class” to the detriment of the concept of “struggle.” Knowledge of strategy is thus evacuated in favor of an alternative enterprise of pacification (Tronti offers the most epic version of this). Who is strong and who is weak? In what way did the strong become weak, and why did the weak become strong? How to strengthen oneself and weaken the other to dominate and exploit it? We propose to follow and reinvent the anticapitalist path of French Nietzscheism. 28. Capital came out the victor in the total wars and in the confrontation with global revolution, for which the number for us is 1968. Since then, it has gone from victory to victory, perfecting its self-cooled motor, where it verifies that the first function of power is to deny the existence of civil wars by erasing even the memory of them (pacification is a scorched earth policy). Walter Benjamin is there to remind us that reactivating the memory of the victories and defeats from which the victors take their domination can only come from the “defeated.” Problem: the “defeated” of ’68 threw out the bath water of civil wars with the old Leninist baby at the end of the “Hot Autumn” sealed by the failure of the dialectic of the “party of autonomy.” Entry into the “winter years” on the edge of a second Cold War that ensures the triumph of the “people of capitalism” (“‘People’s Capitalism’—This IS America!”), the End of History will take the relay without stopping at a Gulf War that “did not take place.” Except there is a constellation of new wars, revolutionary machines, or mutant militants (Chiapas, Birmingham, Seattle, Washington, Genoa …) and new defeats. The new writing generations describe “the missing people” dreaming of insomnia and destituent processes unfortunately reserved for their friends. 29. We will cut it short, in addressing our enemies. Because this text has no other object, under the economy and its “democracy,” behind the technological revolutions and “mass intellectuality” of the General Intellect, than to make heard the “rumble” of real wars now underway in all of their multiplicity. A multiplicity which is not to be made but unmade and remade to charge the “masses or flows,” which are doubly subjects, with new possibilities. On the side of relations of power as subject to war or/and on the side of strategic relationships that are capable of projecting them to the rank of subjects of wars, with “their mutations, their quanta of deterritorialization, their connections, their precipitations.” In short, it is a question of drawing the lessons from what seems to us like the failure of the thought of ’68 which we have inherited, even in our inability to think and construct a collective war machine equal to the civil war unleashed in the name of neoliberalism and the absolute primacy of the economy as exclusive policy of capital. Everything is taking place as if ’68 was unable to think all the way, not its defeat (there are, since the New Philosophers, professionals in the matter), but the warring order of reasons that broke its insistence through a continuous destruction, placed in the present infinitive of the struggles of “resistance.” 30. It is not a question, it is not at all a question of stopping resistance. It is a question of dropping a “theoricism” satisfied with a strategic discourse that is powerless in the face of what is happening. And what has happened to us. Because if the mechanisms of power are constitutive, to the detriment of strategic relationships and the wars taking place there, there can only be phenomena of “resistance” against them. With the success we all know. Graecia docet.The alternative is whatever being: a mode of life that resists political classification. Since sovereignty exercises power through classification, resistance should focus on modes of living rather than acts Caldwell, PhD, 04(Anne, Political/Feministtheory@Louisville, Bio-Sovereignty and the Emergence of Humanity Theory & Event Volume 7, Issue 2, 2004)Can we imagine another form of humanity, and another form of power? The bio-sovereignty described by Agamben is so fluid as to appear irresistible. Yet Agamben never suggests this order is necessary. Bio-sovereignty results from a particular and contingent history, and it requires certain conditions. Sovereign power, as Agamben describes it, finds its grounds in specific coordinates of life, which it then places in a relation of indeterminacy. What defies sovereign power is a life that cannot be reduced to those determinations: a life “that can never be separated from its form, a life in which it is never possible to isolate something such as naked life.” (2.3). In his earlier Coming Community, Agamben describes this alternative life as “whatever being.” More recently he has used the term “forms-of-life.” These concepts come from the figure Benjamin proposed as a counter to homo sacer: the “total condition that is ‘man’.” For Benjamin and Agamben, mere life is the life which unites law and life. That tie permits law, in its endless cycle of violence, to reduce life an instrument of its own power. The total condition that is man refers to an alternative life incapable of serving as the ground of law. Such a life would exist outside sovereignty. Agamben’s own concept of whatever being is extraordinarily dense. It is made up of varied concepts, including language and potentiality; it is also shaped by several particular dense thinkers, including Benjamin and Heidegger. What follows is only a brief consideration of whatever being, in its relation to sovereign power. “Whatever being,” as described by Agamben, lacks the features permitting the sovereign capture and regulation of life in our tradition. Sovereignty’s capture of life has been conditional upon the separation of natural and political life. That separation has permitted the emergence of a sovereign power grounded in this distinction, and empowered to decide on the value, and non-value of life (1998: 142). Since then, every further politicization of life, in turn, calls for “a new decision concerning the threshold beyond which life ceases to be politically relevant, becomes only ‘sacred life,’ and can as such be eliminated without punishment” (p. 139). This expansion of the range of life meriting protection does not limit sovereignty, but provides sites for its expansion. In recent decades, factors that once might have been indifferent to sovereignty become a field for its exercise. Attributes such as national status, economic status, color, race, sex, religion, geo-political position have become the subjects of rights declarations. From a liberal or cosmopolitan perspective, such enumerations expand the range of life protected from and serving as a limit upon sovereignty. Agamben’s analysis suggests the contrary. If indeed sovereignty is bio-political before it is juridical, then juridical rights come into being only where life is incorporated within the field of bio-sovereignty. The language of rights, in other words, calls up and depends upon the life caught within sovereignty: homo sacer. Agamben’s alternative is therefore radical. He does not contest particular aspects of the tradition. He does not suggest we expand the range of rights available to life. He does not call us to deconstruct a tradition whose power lies in its indeterminate status.21 Instead, he suggests we take leave of the tradition and all its terms. Whatever being is a life that defies the classifications of the tradition, and its reduction of all forms of life to homo sacer. Whatever being therefore has no common ground, no presuppositions, and no particular attributes. It cannot be broken into discrete parts; it has no essence to be separated from its attributes; and it has no common substrate of existence defining its relation to others. Whatever being cannot then be broken down into some common element of life to which additive series of rights would then be attached. Whatever being retains all its properties, without any of them constituting a different valuation of life (1993: 18.9). As a result, whatever being is “reclaimed from its having this or that property, which identifies it as belonging to this or that set, to this or that class (the reds, the French, the Muslims) — and it is reclaimed not for another class nor for the simple generic absence of any belonging, but for its being-such, for belonging itself.” (0.1–1.2). Indifferent to any distinction between a ground and added determinations of its essence, whatever being cannot be grasped by a power built upon the separation of a common natural life, and its political specification. Whatever being dissolves the material ground of the sovereign exception and cancels its terms. This form of life is less post-metaphysical or anti-sovereign, than a-metaphysical and a-sovereign. Whatever is indifferent not because its status does not matter, but because it has no particular attribute which gives it more value than another whatever being. As Agamben suggests, whatever being is akin to Heidegger’s Dasein. Dasein, as Heidegger describes it, is that life which always has its own being as its concern — regardless of the way any other power might determine its status. Whatever being, in the manner of Dasein, takes the form of an “indissoluble cohesion in which it is impossible to isolate something like a bare life. In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into existence over which power no longer seems to have any hold” (Agamben 1998: 153). We should pay attention to this comparison. For what Agamben suggests is that whatever being is not any abstract, inaccessible life, perhaps promised to us in the future. Whatever being, should we care to see it, is all around us, wherever we reject the criteria sovereign power would use to classify and value life. “In the final instance the State can recognize any claim for identity — even that of a State identity within the State . . . What the State cannot tolerate in any way, however, is that the singularities form a community without affirming an identity, that humans co-belong without a representable condition of belonging” (Agamben 1993:85.6). At every point where we refuse the distinctions sovereignty and the state would demand of us, the possibility of a non-state world, made up of whatever life, appears.10 Immac MC Aff Race (c&p)The War on Drugs has been revitalized under Trump – Sessions has repealed Obama era reforms Lopez 10/24 (German, Writer for Vox with a focus with a focus on drugs, guns, criminal justice, race, and LGBTQ issues) “Under Trump and Sessions, federal prosecutors are ramping up the war on drugs,” Vox News, 10/24/2017 DDUS Attorney General Jeff Sessions has traveled around the country this year invoking fears of violent crime — and particularly the criminal group MS-13 — to justify a new “tough on crime” crackdown under the Trump administration. On the ground, however, Sessions’s anti-crime efforts look more like the old war on drugs than a new push against violent crime. Earl Rinehart reported for the Columbus Dispatch that US Attorney for the Southern District of Ohio Benjamin Glassman “is costing taxpayers more money” by prosecuting more people, even minor players in drug trafficking, “and he’s OK with that.” Rinehart went on (emphasis mine): The increase in the prosecution of violent crimes and drug cases such as these, especially amid the opioid crisis, had the U.S District Court for Southern Ohio looking for extra jail space to keep a record 483 defendants whose cases were pending as of Oct. 7. “That’s a lot for us,” said Chief U.S. District Judge Edmund A. Sargus Jr. Of the total defendants, 223 were up on drug charges, 43 for violent crimes and 38 for child pornography. Based on these figures, nearly half of the new cases are for drug charges, and less than 10 percent are for violent crime. Despite Sessions’s rhetoric about violent crime, it sure looks like drugs are still his office’s main focus. On Twitter, Glassman pushed back on the Dispatch’s report. He wrote, “I disagree that we are now charging minor players who, in years past, would not have been charged at all. To the contrary, as the article also notes, we're pushing our investigations and prosecutions farther and wider than ever before. If anything, as our scope and reach continue to grow, defendants who looked like leaders in years past now seem more like minor players. But we are absolutely not looking to prosecute low-level folks. Just the opposite.” In a statement, Glassman also questioned the Dispatch’s methodology and sources. He said that, by his count, “roughly a third of our case load involves violent crime and another third involves drugs or organized crime related to drugs, like money laundering.” Still, the federal government is unique in that about half the people it locks up are in for drug offenses. At the state level, where nearly nine in 10 prisoners in the US are held, most are in prison for violent offenses. Sessions seems determined to continue that federal trend. One of his first moves in the Justice Department was to instruct federal prosecutors to bring punitive charges that can trigger harsh mandatory minimum prison sentences against even low-level drug offenders, rescinding an Obama administration memo that told federal officials to pull back on these kinds of prosecutions. Criticizing the Obama administration’s decision, Sessions previously said, “What was the result? It was exactly what you would think: sentences went down and crime went up. Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016. Violent crime — which had been decreasing for two decades — suddenly went up again.” The research is against Sessions’s claims There is no reason, based on the research, to think the two trends Sessions cited are linked. Studies have repeatedly found that harsher punishments — which mandatory minimums force on judges by requiring that they sentence offenders to a minimum amount of time in prison — and the higher incarceration rates they lead to don’t have a big impact on crime. A 2015 review of the research by the Brennan Center for Justice estimated that more incarceration explained zero to 7 percent of the crime drop since the 1990s, while other researchers estimate it drove 10 to 25 percent of the crime drop since the ’90s — not a big impact either way. A 2014 analysis by the Pew Charitable Trusts also found that states that reduced their imprisonment rates also saw some of the biggest drops in crime, suggesting that there isn’t a hard link between incarceration and crime. As Harvard criminologist Thomas Abt previously told me, “Jeff Sessions is a crime dinosaur, peddling ‘tough on crime’ policies that went extinct years ago. He tries to link violent crime to the ‘smart on crime’ policies of the past administration, but there’s simply no evidence to support his argument.” (Abt broke down his criticisms further in a series of tweets.) In fact, Sessions’s prosecution strategy likely won’t make an impact even in combating the spread and use of drugs. One of the best studies on this is a 2014 review of the research by Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago. They found that while simply prohibiting drugs to some extent does raise their prices, there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance misuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs. “We did the experiment. In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing,” Mark Kleiman, a drug policy expert at the Marron Institute at New York University, previously told me. “And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to a higher drug price and therefore less drug consumption, the answer is no.”Plea bargaining is the leading contributor to mass incarceration – it manufactures a forfeiture of rights that subordinates people of color to the state Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDFirst, the procedural entrapment thesis is that the American plea bargain system (as an apparatus of population management wherein the USA maintains 5 per cent of the global population but 25 per cent of the world’s imprisoned population, and as an insti- tution that coerces the forfeiture of due process rights to accelerate criminal conviction and confinement of those charged), is massively and predominantly, though not acciden- tally or exclusively, a technology of racial domination. As a system of procedural entrap- ment, the plea bargain regime is a necessary condition of and a leading contributor to mass incarceration, which is fundamentally immoral and racially unjust. ? Without the widespread ‘forfeiture’ of rights that the plea bargain regime manufac- tures, the American criminal justice system simply could not process – i.e. arrest, detain, prosecute, imprison, and supervise – the vast numbers of people (predomi- nantly of color) that it currently does. The Supreme Court recognized this in 1971: ‘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.’78 (And this was just 5 months after President Richard Nixon declared the war on drugs, which inaugurated the era of mass incarceration that has since led to the upsurge of the imprisoned population by over 500 per cent. If criminal justice proce- dural capacity would have had to multiply many times over to accommodate every criminal defendant’s constitutional right to trial in 1971, the equivalent capacity requirements today would be paralysing to state and federal budgets.) The Court then concluded that plea bargaining is ‘an essential component of the administration of jus- tice’.79 ‘The truth is’, writes Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute, ‘government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials.’80 ? Second, the sedimentation thesis is directed toward the irresponsible prosecutorial prerogative that undergirds the system of procedural entrapment. As an institutional agency in the entrapment, confinement and social death of millions of Black, Latino/Latina and Native American people, the power of the prosecutorial function is a functional analogue, a postbellum sedimentation, of the irresponsible power of the administrators of plantation law (i.e. the southern slaveholding class). Both function massively and predominantly to enforce and reinscribe the terms of the racial contract of their day. The discretionary power of Frederick Douglass’ overseer was not subject to judicial investigation and was shielded from the censure of the public; and the Black subjects who may have sought refuge from the overseer’s arbitrary executions were extended no legal standing and thus had no recourse to equal protection of the law.81 Though the Reconstruction Amendments to the US Constitution ostensibly abolished such racial exclusions from the American social contract, present-day prosecutorial discretion, which sometimes makes life-and-death decisions, is analogously unac- countable and unreviewable, is almost always exercised behind closed doors, is answerable only to other prosecutors, and functions analogously to subordinate, entrap and confine people of color.82 ? Plea bargaining is a trap – stacked charges, underground deals, information deficits, and intimidation tactics Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDOne of the reasons for this is the widely overlooked or unknown fact, recently voiced by Supreme Court Justice Anthony Kennedy, that ‘criminal justice today is for the most part a system of pleas, not a system of trials’.33 Plea bargaining is a process that entails an (often quick) conversation in a prosecutor’s office or a courthouse hallway between attorneys familiar with only the basics of a criminal case – with no witnesses present, no full investigation, testimony, or impartial fact-finding – resulting in a proposed res- olution that is then ‘sold’ to both the defendant and the judge.34 Justice Kennedy asserts that the plea bargaining process – which he (quite tellingly) describes, following legal scholars, as a form of ‘horse trading’ – ‘is not some adjunct to the criminal justice sys- tem; it is the criminal justice system’.35 As things currently stand, more than 95 per cent of criminal convictions are the product of closed-door plea bargains that result in defen- dants ‘forfeiting’ their Fifth, Sixth and Fourteenth Amendment rights to due process,36 ? including, in the majority of cases, ‘waiving’ the right to appellate and post-conviction review.37 This means that currently more than 95 per cent of those convicted never see the fair trial by judge or jury that the constitution guarantees them – a state of affairs that led a federal judge recently to call trial by jury ‘an inconvenient artifact’.38 The cases of more than 95 per cent of the 7.5 million people under US penal control have not been held to the high evidentiary standard required to validate a criminal conviction in court. The pre-trial evidentiary threshold for leveling charges is much less exacting, merely requiring a prosecutor to persuade a grand jury that there is probable cause to indict. It is not just out of cynicism that most lawyers repeat the famous expression of former New York Court of Appeal Judge Sol Wachtler that prosecutors can get a grand jury to indict a ‘ham sandwich’.39 US attorneys prosecuted 162,000 federal cases in 2010; grand juries declined to return an indictment in 11 of those cases.40 ? Prosecutors admit to routinely engaging in strategic charge-stacking and overchar- ging in the plea bargaining process. Since the onset of the era of mass incarceration in the 1970s, federal and state legislatures have fragmented and multiplied criminal statutes so as to produce an abundance of overlapping crimes. This proliferation of criminal codes has constructed a context in which a single unlawful incident typically violates a half-dozen or more prohibitions.41 Coupled with the parallel adoption during this same period of mandatory minimum sentencing schemes at state and federal levels, the power to adjudicate guilt and impose sentences has shifted from the courtroom to the backroom, from judges and juries to plea bargaining prosecutors and police officers.42 Through the practice of strategic charge-stacking and overcharging, prosecutors exercise lax double jeopardy doctrine by charging criminal defendants with an arsenal of overlapping crimes for which they technically have probable cause, but which they seriously doubt they could ever prove in court (i.e. beyond a reasonable doubt). The strategy of this practice is to leverage what legal scholars call the ‘trial penalty’ to compel people to ‘convict themselves’ by pleading guilty to the lesser charge or set of charges that prosecutors then offer as a more ‘lenient’ alternative to the excessive, tenuous and redundant stack of charges originally leveled.43 Occasionally, defendants even enter ‘open pleas’ to all the charges against them, with no sentencing promises. ? Lest one wonder whether this coercive strategy were an accidental by-product of the mandatory sentencing regime, consider the following statement of the US Sentencing Commission, an agency in the judicial branch of government, among whose principal purposes is ‘to advise and assist Congress and the executive branch in the development of effective and efficient crime policy’. The commission identifies ‘inducement to plea bargain’ as one of the rationales for mandatory minimum sentencing legislation. In its 1991 Special Report to Congress, it stated that ‘the value of a mandatory minimum sen- tence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge’.44 Justice Kennedy affirmed this design in a recent Supreme Court ruling, claim- ing that ‘defendants who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sen- tences exist on the books largely for bargaining purposes’.45 ? A ‘bargain’ typically signifies a mutually advantageous agreement, an agreement between two parties in which a settlement is reached regarding what each party will give ? and take, perform and receive in the transaction.46 What is given and what taken in these plea bargains? According to the conventional, facially neutral account of the plea bar- gain contract, prosecutors give leniency to the accused. Specifically, prosecutors agree to drop a select number of the charges that the criminal code permits – charges, which is to say, for which probable cause has been established. In exchange for this ‘gift’, the accused must in turn forfeit his or her Fifth, Sixth and Fourteenth Amendment rights of protection against self-incrimination, to trial by jury, to confront and cross-examine adverse witnesses, to present evidence, to compel the attendance of witnesses, and to require prosecutors to prove guilt beyond reasonable doubt. By inducing defendants to forfeit these rights, district attorneys (and public defenders) save the resources that would otherwise be required to grant the accused the trial by jury that the constitution guarantees her or him. As legal scholars Scott and Stuntz put it, employing the vocabu- lary of cost-benefit calculus that is the stock-in-trade of the prison industrial complex: ‘Plea bargaining provides a means by which prosecutors can obtain a larger net return from criminal convictions, holding resources constant.’47 ? In their rationalizations of plea bargaining, legal scholars and practitioners at the highest levels of government falsely conceptualize it within an idealized framework of transaction between equals. The Supreme Court maintains that the plea bargain flows from ‘the mutuality of advantage’ to defendants and prosecutors.48 Indeed, the Court infers (with neither evidence nor argumentation) that it is this alleged ‘mutuality of advantage’ that explains the fact that the vast majority of the criminal convictions in this country rest on pleas of guilty or nolo contendere no contest resulting from plea bar- gaining.49 But the plea bargain regime appears like a market of mutually advantageous contracts, entered into freely by both parties, only when it is viewed abstractly – divorced from the structural coupling formed between mandatory minimum sentencing schemes and the pervasive prosecutorial practices of racially selective charging, charge-stacking and overcharging; disconnected from the context and genealogy of mass incarceration as a system of racial governance.50 ? In actuality, the plea bargain regime is concretely constituted by structural asymme- tries and relations of domination that are masked by the liberal contractual framework. The ‘self-incrimination’ that results from plea bargains is frequently the product of duress and unconscionable information deficits wherein defendants (who are often indigent) are deprived of the opportunity to deliberatively evaluate the ‘exchange’ of risks and penalties into which they enter. For instance, one formerly incarcerated person with whom I spoke at Project Rebound in San Francisco was given 10 minutes in court to decide in isolation whether to accept a plea carrying a 25-year sentence or face a potential life sentence. Such duress is not exceptional. Also, few criminal defen- dants (or people in general) realize that felony conviction, beyond possible prison time, entails a host of ‘collateral consequences’ or civil penalties that persist even after one has been released from prison. Judges and lawyers are not required to inform criminal defendants of some of the most important rights and entitlements that defendants are forfeiting when they plead guilty to a felony (and that they incur whether or not they spend a day in prison). These civil penalties (technically called ‘civil disabilities’, since courts have generally declined to interpret that such sanctions, for constitutional purposes, are actually ‘punishment’) include deportation, and denial of the rights to ? vote, serve on a jury, or be employed in certain occupations, as well as lifetime inelig- ibility for food stamps, cash assistance programs, public housing and student loans.51 Legislative and judicial representatives readily admit that mandatory minimum sen- tencing schemes are excessive and thus in violation of the retributive principle of propor- tional punishment – not by accident, but by design.52 And they readily admit that such utilitarian design is consequentially to ‘induce’ defendants to forfeit their constitutional rights. In the executive branch, prosecutors routinely and openly apply leverage and overlap these excessive sentencing schemes to compel defendants to ‘self-incriminate’ ? by ‘pleading out’ of the jury trial system to which they are constitutionally entitled. And yet, the Supreme Court masks the coercion that undergirds this system. In the 1978 precedent-setting case that gave ultimate legal sanction to prosecutorial compul- sion in plea bargaining, the Court acknowledged that punishing a person accused of a crime for exercising his or her right to trial by jury ‘is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional. But’, the Court continues, ‘in the ‘‘give-and-take’’ of plea bargaining, there is no such element of punish- ment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.’53 This was in the context of a decision ruling it constitutionally legitimate for a pro- secutor to threaten someone with life imprisonment error for a minor crime (i.e. forging an ? $88.30 check) in an effort to strong-arm him into forfeiting his right to a jury trial.54 How many reasonable people, when faced with the ‘double bind’ alternative between a potential life sentence and a guaranteed 5-year sentence, would feel meaningfully free to ‘accept or reject the prosecution’s offer’ and risk exercising her or his constitutional right to due process?55 Cognizant of systemic racial disparities, like the steeply higher rate of criminal conviction and disproportionate severity of criminal sentences meted out to sub- jects of color,56 reasonable people of color are especially unlikely to feel the freedom of choice that would distinguish a relation of equal exchange from a relation of domination. Seen in the light of these unconscionable information deficits and distributional inequities, the coercive and pervasive prosecutorial practice of charge-stacking and over- charging, and the sharply asymmetrical negotiating positions of the state and the accused; furthermore, considering the massive under-representation of people of color among criminal prosecutors (e.g. on average, 86 per cent of judges and prosecutors in federal districts are white),57 and the enormous over-representation of people of color among those incarcerated (i.e. roughly 70 per cent, and nearly 50 per cent Black):58 we ought to hear this multitude of pleas not as a chorus of guilty confessions singing in synch with the expediently fine-tuned orchestra of American criminal justice (playing the melody of the Law and Order theme song); and we surely ought not to view it as an expression of prosecutorial ‘leniency’ or procedural justice. Rather, we ought to concep- tualize this throng of pleas, massively and predominantly, as the procedural entrapment of the impoverished and racially oppressed. ? Mass incarceration is a form of modern genocide – it’s responsible for rampant intercity violence, crushing poverty, and massive loss of freedom Thompson 14 (Heather Ann, Associate professor of African American studies and history at Temple University) “Inner-City Violence in the Age of Mass Incarceration,” The Atlantic, 10/30/2014 DDJust as hyper-segregation doesn’t explain the violence that so many have to endure today in America’s inner city communities while still raising children, attending church, and trying to make ends meet, neither does highly-concentrated poverty. Because of their exclusion from virtually every program and policy that helped eventually to build an American middle class, non-whites have always had far less wealth than whites. From the ability to maintain land ownership after the Civil War, to the virtual guarantee of welfare benefits such as Social Security and FHA loans during the New Deal, to preferential access to employment and housing in the postwar period, white communities have always had considerably more economic advantage than communities of color. And yet, no matter how poor they were, America’s most impoverished communities have never been plagued by the level of violence they are today. But if neither racial segregation nor the racial poverty gap can account for the degree to which poor communities of color are traumatized today, then what does? What is altogether new is the extent to which these communities are devastated by the working of our nation’s criminal justice system in general and by mass incarceration in particular. Today's rates of incarceration in America's poorest, blackest, and brownest neighborhoods are historically unprecedented. By 2001, one in six black men had been incarcerated and, by the close of 2013, black and Latino inmates comprised almost 60 percent of the nation’s federal and state prison population. The numbers of incarcerated black women are also stark. According to the Bureau of Justice Statistics, young black women ages 18 to 19 were almost five times more likely to be imprisoned than white women of the same age in 2010. When President Lyndon B. Johnson passed the Law Enforcement Assistance Act in 1965—legislation which, in turn, made possible the most aggressive war on crime this nation ever waged—he was reacting not to remarkable crime rates but to the civil rights upheaval that had erupted nationwide just the year before. This activism, he and other politicians believed, represented not participatory democracy in action, but instead a criminal element that would only grow more dangerous if not checked. Notably, the national policy embrace of targeted and more aggressive policing as well as highly punitive laws and sentences—the so-called “War on Crime” that led eventually to such catastrophic rates of imprisonment—predated the remarkable levels of violence that now impact poor communities of color so disproportionately. The U.S. incarceration rate more than quadrupled between 1965 and 1995. In fact, the U.S. homicide rate in 1965 was significantly lower than it had been in several previous moments in American history: 5.5 per 100,000 U.S. residents as compared, for example, with 9.7 per 100,000 in 1933. Importantly, though, whereas the violent crime rate was 200.2 per 100,000 U.S. residents in 1965, it more than tripled to a horrifying 684.6 per 100,000 by 1995. Though mass incarceration did not originate in extraordinarily high rates of violence, mass incarceration created the conditions in which violence would surely fester. The quadrupling of the incarceration rate in America since 1970 has had devastating collateral consequences. Already economically-fragile communities sank into depths of poverty unknown for generations, simply because anyone with a criminal record is forever “marked” as dangerous and thus rendered all but permanently unemployable. Also, with blacks incarcerated at six times and Latinos at three times the rate of whites by 2010, millions of children living in communities of color have effectively been orphaned. Worse yet, these kids often experience high rates of post-traumatic shock from having witnessed the often-brutal arrests of their parents and having been suddenly ripped from them. De-industrialization and suburbanization surely did their part to erode our nation’s black and brown neighborhoods, but staggering rates of incarceration is what literally emptied them out. As this Pew Center of the States graphic on Detroit shows, the overwhelmingly-black east side of the Motor City has been ravaged by the effects of targeted policing and mass incarceration in recent years with one in twenty-two adults there under some form of correctional control. In some neighborhoods, the rate is as high as one in 16. Pew Center for the States Such concentrated levels of imprisonment have torn at the social fabric of inner city neighborhoods in ways that even people who live there find hard to comprehend, let alone outsiders. As the research of criminologist Todd Clear makes clear, extraordinary levels of incarceration create the conditions for extraordinary levels of violence. But even mass incarceration does not, in itself, explain the particularly brutal nature of the violence that erupts today in, for example, the south side of Chicago. To explain that, we must look again carefully and critically at our nation’s criminal justice system. The level of gun violence in today's inner cities is the direct product of our criminal-justice policies—specifically, the decision to wage a brutal War on Drugs. When federal and state politicians such as New York Governor Nelson Rockefeller opted to criminalize addiction by passing unprecedentedly punitive possession laws rather than to treat it as a public health crisis, unwittingly or not, a high level of violence in poor communities of color was not only assured but was guaranteed to be particularly ugly. This new drug war created a brand-new market for illegal drugs—an underground marketplace that would be inherently dangerous and would necessarily be regulated by both guns and violence. Without the War on Drugs, today's levels of inner-city gun violence would not exist. Indeed, without the War on Drugs, the level of gun violence that plagues so many poor inner-city neighborhoods today simply would not exist. The last time we saw so much violence from the use of firearms was, notably, during Prohibition. “As underground profit margins surged, gang rivalries emerged, and criminal activity mounted during Prohibition,” writes historian Abigail Perkiss, “the homicide rate across the nation rose 78 percent…and in Chicago alone, there were more than 400 gang-related murders a year.” As important as it is to rethink the origins of the violence that poor inner city residents still endure, we must also be careful even when using the term “violence,” particularly when seeking to explain “what seems to be wrong” with America’s most disadvantaged communities. A level of state violence is also employed daily in these communities that rarely gets mentioned and yet it is as brutal, and perhaps even more devastating, than the violence that is so often experienced as a result of the informal economy in now-illegal drugs. This is a violence that comes in the form of police harassment, surveillance, profiling, and even killings—the ugly realities of how law enforcement wages America’s War on Drugs. Today, young black men today are 21 times more likely than their white peers to be killed by the police and, according to a recent ProPublica report, black children have fared just as badly. Since 1980, a full 67 percent of the 151 teenagers and 66 percent of the 41 kids under 14 who have been killed by police were African American. Between 2010 and 2012 alone, police officers shot and killed fifteen teens running away from them; all but one of them black. This is the violence that undergirded the 4.4 million stop-and-frisks in New York City between 2004 and 2014. This is the violence that led to the deaths of black men and boys such as Kimani Gray, Amadou Diallo, Sean Bell, Oscar Grant, and Michael Brown. This is the violence that led to the deaths of black women and girls such as Rekia Boyd, Yvette Smith, and 7-year-old Aiyana Stanley-Jones. And this is the violence that has touched off months of protests in Ferguson, Missouri just as it also touched off nearly a decade of urban rebellions after 1964. A close look at the violence that today haunts America’s most impoverished and most segregated cities, in fact, fundamentally challenges conventional assumptions about perpetrators and victims. America’s black and brown people not only don’t have a monopoly on violence, but, in fact, a great deal of the violence being waged in their communities is perpetrated by those who are at least officially charged with protecting, not harming, them. As residents of Ferguson well know, for example, in the same month that Michael Brown was shot to death by a police officer, four other unarmed black men were also killed by members of law enforcement. Indeed, the true origins of today’s high rates of violence in America’s most highly segregated, most deeply impoverished, and blackest and brownest neighborhoods—whoever perpetrates it—are located well outside of these same communities. Simply put, America’s poorest people of color had no seat the policy table where mass incarceration was made. But though they did not create the policies that led to so much community and state violence in inner cities today, they nevertheless now suffer from them in unimaginable ways.Thus the plan, Resolved: The United States federal government should abolish plea-bargaining. The plan solves prosecutorial coercion and causes judicial overload which short-circuits the inward flow of prisoners Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDBurton is painfully aware that the norm of pleading guilty enhances prosecutors’ capacity to process an ever-increasing number of cases, widening the net of mass incar- ceration. She also knows that the system of mass incarceration relies upon the wide- spread ‘forfeiture’ of rights that the plea bargain regime manufactures. With this in mind, Burton posed the following question to Alexander: ‘What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?’ ? Initially stunned, Alexander ‘launched, predictably, into a lecture about what prose- cutors would do to people if they actually tried to stand up for their rights’, reminding Burton of the risks involved in facing down the arsenal of excessive and overlapping sen- tencing schemes that prosecutors were equipped with. She may also have reminded Bur- ton of the severity of the so-called ‘trial penalty’ that, according to recent data analysis, makes the sentence following a jury trial conviction on average 3.5 years more severe than the sentence imposed after a guilty plea.125 ? Painfully and personally aware of such risks, Burton replied, ‘Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?’ To which Alexander responded: ? The answer is yes. The system of mass incarceration depends almost entirely on the coop- eration of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, ‘if the number of peo- ple exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.’ ? Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial ‘emergency’ fiat). Either action would create a crisis and the sys- tem would crash – it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid. ? Burton, who shares Alexander’s assessment of the risk and potentiality of mass plea refusal, claimed: ? I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argu- ment would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives. ? It would be difficult to overstate the strategic advantages and potentially transformative political repercussions of the mass conscientious plea refusal that Burton incisively pro- poses. In the tradition of the civil rights movement practice of non-violent direct action – which, in Martin Luther King, Jr,’s famous formulation, sought to ‘create a crisis’ in the racist structures of society by establishing a ‘creative, constructive tension’ that forces society to confront and correct racial injustices that it has constantly refused to address – the mass assertion of constitutional due process rights would rapidly and efficiently overwhelm the prosecutorial regime, throw the system of mass incarceration into crisis, and force the government to take immediate and substantive action to remedy its racial injustice.126 Judicial overload causes broad criminal justice reforms that solve mass incarceration Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDExecutive desistence in the face of the systemic crisis generated by the mass asser- tion of due process rights would likely prove unsustainable, however, as it would pre- sumably raise widespread doubts about the rationality, legitimacy and procedural justice of maintaining an arsenal of criminal statutes that routinely go unenforced. Selective enforcement is, of course, the stock-in-trade of the prosecutorial and policing professions, which, while financially flush in the era of mass incarceration, are execu- tors of a distended body of criminal law that, as Harvard Law Professor William Stuntz claims, ‘covers far more conduct than any jurisdiction could possibly punish’.130 How- ever, programmatic desistence of the magnitude that would be required to restrict crim- inal justice processing to the levels that could be maintained while still accommodating the constitutional trial rights demanded by a mass movement of conscientious plea objectors would arguably erode the perceived legitimacy of the criminal law (at least with respect to the lower-spectrum of the penal code). Such potentialities would likely force the question of state and federal legislative reform in the direction of de- criminalization, or even legalization (e.g. in the case of certain classes of drugs).131 Recent state direct-democracy initiatives suggest that there may be fairly substantive popular support for attenuating criminal codes through selective statutory mitigation, decriminalization and legalization. For example, Colorado (2012), Washington State (2012), Oregon (2014), Alaska (2014) and Washington, DC (2014) have all passed measures to legalize, regulate and tax the production and sale of marijuana for rec- reational use. Californians also overwhelmingly passed the Three Strikes Reform Act of 2012 (Proposition 36), which shortens sentences of those subjected to life prison terms for ‘non-serious’, ‘non-violent’ offenses, and Proposition 47 (2014), which de- felonizes all drug use, downgrades a multiplicity of non-violent economic and drug offenses from felonies to misdemeanors, and reinvests the estimated $150 million in annual state savings toward school truancy and drop-out prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alter- natives to incarceration. Such measures demonstrate popular support for advancing a public safety strategy beyond incarceration to include treatment and prevention. ? Mass plea refusal could intensify such efforts by striking a major blow to the prison industrial complex, which, as Angela Y. Davis points out, ‘devours the social wealth needed to address the very problems related to employment, education, housing, addiction, mental disorder, etc. that have led to spiraling numbers of prisoners’.132 Not even accounting for the multibillion dollar corporate industry that weaves in and out of the public and private prison systems,133 US criminal justice expenditures grew by over 600 per cent between 1980 and 2006, from $35 billion to $215 billion. Criminal justice system employment (including police, and corrections, judicial and legal, at federal, state and local levels) doubled during that same period, rising from 1.2 million to 2.5 million people.134 Widespread sentencing mitigation at all or most levels of existing criminal codes and de-criminalization in the lower-spectrum of existing penal codes would disemploy and disencumber a significant portion of these people and resources for more socially generative employment and investment. As an exercise in imaginative possibility, consider the following scenario. If we cut public financing of mass incarceration by, for example, returning criminal justice spending to the inflation-adjusted levels spent in 1980 – prior to the escalations of the wars on drugs and illegal immigration, which have since fueled the 500 per cent increase in the incarcerated population – over $125 billion of public wealth would be freed up each year for investment in socially reparative and generative enterprises like education, childcare, mental and physical health care and drug treatment, public housing, job training, food assistance, parks and recreation, etc. Such enterprises could easily absorb and constructively employ the millions of people that America’s carceral system currently employs and confines. As Davis maintains, ‘The creation of new institutions that lay claim to the space now occupied by the prison industrial complex can eventually start to crowd out the prison so that it would inhabit increasingly smaller areas of our social and psychic landscape’.135 No reinvestment in mass incarceration – shrinking state and federal budgets Heiner 16 (Brady, Affiliated Faculty of African American Studies, California State University, Fullerton) “The procedural entrapment of mass incarceration: prosecution, race, and the unfinished project of American abolition,” Philosophy and Social Criticism, 2016 DRDOf course, rather than a complex of executive desistence, legislative mitigation and de-criminalization, and public reinvestment that tilts toward a less carceral and puni- tive society, it is also possible that government could respond to the crisis generated by mass conscientious plea refusal by pursuing a still more punitive agenda to enlarge and shore up the procedural pipelines of mass incarceration. State legislatures could pro- cure emergency funding to expand the procedural capacity of their respective criminal justice systems. Federal legislators could seek to bolster such expansion efforts by enacting an emergency financial bail-out of the criminal justice system akin to the 2008 bail-out of the US financial system, ramping up national criminal justice spend- ing exponentially over and above the already historically unprecedented heights. ? However, this course of action seems politically unlikely. State and municipal bud- gets have not only been shrinking due to regressive tax reforms and the economic crises produced by American finance capitalism and corporate outsourcing, the portions of those budgets devoted to corrections and law enforcement have already exponentially swelled, due largely to current (and in some cases unconstitutional) overcrowding in many state prison systems. The electorate’s appetite for bankrolling the prison industrial complex is waning amid steeply declining and non-existent state financing of other social priorities like education, childcare, recreation and infrastructure. Criminal proce- dural expansion would also be logistically fraught, straining political support, as it would entail appointing an army of judges, many of whom are elected, which would in turn require special elections, etc., as well as enlisting a multitude of eligible citizens for jury duty service, and hiring the necessary personnel to coordinate them. ? In effect, on the side of utility, increasing swaths of the populace have begun to iden- tify that public investment in mass incarceration is depleting valuable social resources while producing disproportionately little social benefit in the short term and over the long term exacerbating the very social problems related to intergenerational poverty (e.g. unemployment, substance addiction, educational disparity and mental disorder) that lead to increased incarceration. On the side of justice, increasing numbers of people are beginning to recognize that the US carceral state is falling short of the threshold of social justice requisite to render state punishment morally legitimate.136 ‘If a society is to have the moral right to punish, its laws must be just’, writes Igor Primoratz in his book Justifying Legal Punishment. ? But that is not all; society must be doing something constructive about those social con- ditions that breed crime . . . If it does little or nothing about those social problems that generate law-breaking, and then goes on to punish the law-breakers, it will be rightly seen as both callous and hypocritical, and thus as lacking the moral standing requisite for punishing offenders in good faith.137 ? In addition to (and in virtue of) producing a structural crisis in the procedural system of state punishment, the widespread assertion of constitutional due process rights among those protesting procedural entrapment would openly expose the moral illegitimacy of the institutional agencies of mass incarceration, which require the compelled forfeiture of constitutional rights of nearly all their targets in order for the system to function. 1AC – Framing The standard is maximizing expected well being. Even under utilitarian calculus, this is the greatest impact in debate. The sheer number effected demands redress. Edelman 13 – MARIAN WRIGHT EDELMAN activist for the rights of children. She has been an advocate for disadvantaged Americans for her entire professional life. She is president and founder of the Children's Defense Fund. (“Dismantle the Cradle to Prison Pipeline—Our Future Depends on It” )? Today a toxic cocktail of violence, poverty, racial disparities in child-serving systems, poor education, and racially unjust zero-tolerance policies are fueling a Cradle to Prison Pipeline? crisis that is funneling millions of poor children and adults into dead-end, powerless, and hopeless lives.? A black boy born in 2001 has a one-in-three chance of going to prison in his lifetime, and a Latino boy has a one-in-six chance of the same fate. $e United States has the highest incarceration rate in the world: 7.1 million adults are under some form of correctional supervision including prison, jail, probation, or parole. Black males have an imprisonment rate that is nearly seven times higher than white males, and Hispanic males have a rate more than twice that of their white counterparts. This epidemic of mass incarceration has created one of the most dangerous crises for the black community since slavery and it affects everyone in our nation.? Federal spending on prisons totaled $6.6 billion in 2012 and annual state spending on corrections tops $51 billion. This federal and state spending spree to warehouse prisoners has perverted our nation’s priorities. States spend on average two and half times more per prisoner than they spend per public school student, this at a time when a majority of children of all racial and income backgrounds cannot read or compute at grade level in fourth- or eighth-grade and huge numbers of youth drop out of schools. The privatization of juvenile and adult prisons is yet another added danger. The world’s largest for-profit, private prison corporation, the Corrections Corporation of America, recently offered to run the prison systems in 48 states for 20 years if the states would guarantee a 90 percent occupancy rate.? The greatest threat to America’s democracy and economic security comes from no enemy, but rather from our failure to dismantle this Cradle to Prison Pipeline and to invest in and prepare all our children for the future. Tomorrow is today. Children of color, who already are a majority of babies being born in the United States and who will be a majority of our child population within this decade, face bleak futures without high-quality early childhood programs and high-quality, equitable public schools that would prepare them for college and our workforce.? Closing the income and racial achievement gaps between poor and non-poor children and between white and nonwhite children is an urgent national priority. Today, every 1.5 seconds during the school year, a public school student is suspended; every 8 seconds during the school year, a public high school student drops out; every 19 seconds a child is arrested; and every 3 hours and 15 minutes, a child or teen is killed by a gun.? Mass incarceration is made possible by a society gone mad for war. Value reorientation precedes any challenge to militarism, materialism and racismBerman 13 – Matt, Former Online Editor, National Journal (“The Forgotten Martin Luther King: A Radical Anti-War Leftist” )? Martin Luther King speaks against the Vietnam War at the University of Minnesota. (Wikimedia Commons)? Martin Luther King Jr. was not just the safe-for-all-political-stripes civil-rights activist he is often portrayed as today. He was never just the "I Have a Dream" speech, delivered 50 years ago Wednesday. He was an anti-war, anti-materialist activist whose views on American power would shock many of the same politicians who are currently scrambling to sing his praises.? King's more radical worldview came out clearly in a speech to an overflow crowd of more than 3,000 people at Riverside Church in New York on April 4, 1967. "The recent statement of your executive committee are the sentiments of my own heart and I found myself in full accord when I read its opening lines: 'A time comes when silence is betrayal,'" he began. It wasn't about the civil-rights movement -- not directly, at least. "That time has come for us in relation to Vietnam."? He continued, in a speech called "Beyond Vietnam":? Tonight, however, I wish not to speak with Hanoi and the NLF National Liberation Front but rather to my fellow Americans, who, with me, bear the greatest responsibility in ending a conflict that has exacted a heavy price on both continents.... There is at the outset a very obvious and almost facile connection between the war in Vietnam and the struggle I, and others, have been waging in America. A few years ago there was a shining moment in that struggle. It seemed as if there was a real promise of hope for the poor -- both black and white -- through the poverty program. There were experiments, hopes, new beginnings. Then came the buildup in Vietnam, and I watched the program broken and eviscerated as if it were some idle political plaything of a society gone mad on war, and I knew that America would never invest the necessary funds or energies in rehabilitation of its poor so long as adventures like Vietnam continued to draw men and skills and money like some demonic destructive suction tube. So I was increasingly compelled to see the war as an enemy of the poor and to attack it as such.? Perhaps the more tragic recognition of reality took place when it became clear to me that the war was doing far more than devastating the hopes of the poor at home. It was sending their sons and their brothers and their husbands to fight and to die in extraordinarily high proportions relative to the rest of the population. We were taking the black young men who had been crippled by our society and sending them 8,000 miles away to guarantee liberties in Southeast Asia which they had not found in southwest Georgia and East Harlem. So we have been repeatedly faced with the cruel irony of watching Negro and white boys on TV screens as they kill and die together for a nation that has been unable to seat them together in the same schools. So we watch them in brutal solidarity burning the huts of a poor village, but we realize that they would never live on the same block in Detroit. I could not be silent in the face of such cruel manipulation of the poor.? King also addressed the idea that his advocacy of nonviolence at home should extend to the rest of the world:? I knew that I could never again raise my voice against the violence of the oppressed in the ghettos without having first spoken clearly to the greatest purveyor of violence in the world today -- my own government.? Martin Luther King Jr. is being hailed by politicians of all stripes on Wednesday, from a president who is considering military options in Syria to Republicans like Virginia gubernatorial candidate Ken Cuccinelli. Former Rep. Allen West, R-Fla., wrote an op-ed for U.S. News and World Report on Wednesday, blaming "liberal progressive Democrats" and abortion for blocking King's vision of equality from becoming a reality. "Dr. King advocated we evaluate the content of one's character," West writes. "However, in 2008 Americans voted for someone as president based upon the color of his skin. In 2012, Americans used the same criteria and made the same choice."? But it's impossible to imagine West, Cuccinelli, or Barack Obama celebrating King's full range of beliefs, or using a fully realized King as a way to promote their own. Even the March on Washington itself was more radical than it is often remembered as being, having been largely designed by A. Philip Randolph, a union leader, and Bayard Rustin, a gay pacifist and World War II conscientious objector.? The man who said that his dream of equality was "deeply rooted in the American Dream" also believed the American government, with what he saw as its weapons testing in Vietnam, was on par with "the Germans who tested out new medicine and new tortures in the concentration camps of Europe." In the same speech, King said that, if U.S. actions were to continue, "there will be no doubt in my mind and in the mind of the world that we have no honorable intentions in Vietnam."? The radicalism of the 1967 speech didn't just extend to Vietnam. King called for the U.S. to "undergo a radical revolution of values," saying that "we must rapidly begin the shift from a 'thing-oriented' society to a 'person-oriented' society." He continued:? When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.? "A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death," he said.? Phenomenal introspection proves that pleasure is intrinsically good. Sinhababu 08 Neil, Assistant Professor at Department of Philosophy in National University of Singapore. PhD, University of Texas at Austin, 2008. “The Epistemic Argument for Hedonism.” LADINow I'll outline hedonism's answer to Joyce and Street's evolutionary debunking arguments, as promised in section 1.1. Phenomenal introspection is a process of belief-formation that evolved to be generally reliable, like visual perception. Knowing what one is experiencing seems to be important for perception, so creatures who couldn't know what their experiences were like would die without reproducing, having failed to form useful beliefs about their surroundings. So creatures who could reliably form true beliefs about their phenomenal states would be more likely to survive and reproduce. Hedonism withstands evolutionary debunking arguments via what Street calls a “byproduct hypothesis.” Since belief in pleasure's goodness is a byproduct of phenomenal introspection, which is selected for reliability, it's reliably caused even if other moral beliefs aren't.31 If all other moral beliefs are undermined by their origins in processes not selected for reliability, an evolutionary debunking argument could do the same work for hedonists that the argument from disagreement has done in this paper.32Our ability to understand the introspective experiences of others commits us to utilitarianism.Sinhababu 08 Neil, Assistant Professor at Department of Philosophy in National University of Singapore. PhD, University of Texas at Austin, 2008. “The Epistemic Argument for Hedonism.” LADI”One can form a variety of beliefs using phenomenal introspection. For example, one can believe that one is having sound experiences of particular noises and visual experiences of different shades of color. When looking at a lemon and considering the phenomenal states that are yellow experiences, one can form some beliefs about their intrinsic features – for example, that they're bright experiences. And when considering experiences of pleasure, one can make some judgments about their intrinsic features – for example, that they're good experiences. Just as one can look inward at one's experience of lemon yellow and recognize its brightness, one can look inward at one's experience of pleasure and recognize its goodness. 24 When I consider a situation of increasing pleasure, I can form the belief that things are better than they were before, just as I form the belief that there's more brightness in my visual field as lemon yellow replaces black. And when I suddenly experience pain, I can form the belief that things are worse in my experience than they were before. Having pleasure consists in one's experience having a positive hedonic tone. Without descending into metaphor, it's hard to give a further account of what pleasure is like than to say that when one has it, one feels good. As Aaron Smuts writes in defending the view of pleasure as hedonic tone, “to 'feel good' is about as close to an experiential primitive as we get.” 25 Fred Feldman sees pleasure as fundamentally an attitude rather than a hedonic tone.26 But as long as hedonic tones are real components of experience, phenomenal introspection will reveal pleasure's goodness. Opponents of the hedonic tone account of pleasure usually concede that hedonic tones exist, as Feldman seems to in discussing “sensory pleasures,” which he thinks his view helps us understand. Even on his view of pleasure, phenomenal introspection can produce the belief that some hedonic tones are good while others are bad.The state can be repurposed Ferguson 11, James, Professor of Anthropology at Stanford, “The Uses of Neoliberalism”, Antipode, Vol. 41, No. S1, pp 166–184If we are seeking, as this special issue of Antipode aspires to do, to link our critical analyses to the world of grounded political struggle—not only to interpret the world in various ways, but also to change it—then there is much to be said for focusing, as I have here, on mundane, real- world debates around policy and politics, even if doing so inevitably puts us on the compromised and reformist terrain of the possible, rather than the seductive high ground of revolutionary ideals and utopian desires. But I would also insist that there is more at stake in the examples I have discussed here than simply a slightly better way to ameliorate the miseries of the chronically poor, or a technically superior method for relieving the suffering of famine victims.? My point in discussing the South African BIG campaign, for instance, is not really to argue for its implementation. There is much in the campaign that is appealing, to be sure. But one can just as easily identify a series of worries that would bring the whole proposal into doubt. Does not, for instance, the decoupling of the question of assistance from the issue of labor, and the associated valorization of the “informal”, help provide a kind of alibi for the failures of the South African regime to pursue policies that would do more to create jobs? Would not the creation of a basic income benefit tied to national citizenship simply exacerbate the vicious xenophobia that already divides the South African poor,? in a context where many of the poorest are not citizens, and would thus not be eligible for the BIG? Perhaps even more fundamentally, is the idea of basic income really capable of commanding the mass support that alone could make it a central pillar of a new approach to distribution? The record to date gives powerful reasons to doubt it. So far, the technocrats’ dreams of relieving poverty through efficient cash transfers have attracted little support from actual poor people, who seem to find that vision a bit pale and washed out, compared with the vivid (if vague) populist promises of jobs and personalistic social inclusion long offered by the ANC patronage machine, and lately personified by Jacob Zuma (Ferguson forthcoming).? My real interest in the policy proposals discussed here, in fact, has little to do with the narrow policy questions to which they seek to provide answers. For what is most significant, for my purposes, is not whether or not these are good policies, but the way that they illustrate a process through which specific governmental devices and modes of reasoning that we have become used to associating with a very particular (and conservative) political agenda (“neoliberalism”) may be in the process of being peeled away from that agenda, and put to very different uses. Any progressive who takes seriously the challenge I pointed to at the start of this essay, the challenge of developing new progressive arts of government, ought to find this turn of events of considerable interest.? As Steven Collier (2005) has recently pointed out, it is important to question the assumption that there is, or must be, a neat or automatic fit between a hegemonic “neoliberal” political-economic project (however that might be characterized), on the one hand, and specific “neoliberal” techniques, on the other. Close attention to particular techniques (such as the use of quantitative calculation, free choice, and price driven by supply and demand) in particular settings (in Collier’s case, fiscal and budgetary reform in post-Soviet Russia) shows that the relationship between the technical and the political-economic “is much more polymorphous and unstable than is assumed in much critical geographical work”, and that neoliberal technical mechanisms are in fact “deployed in relation to diverse political projects and social norms” (2005:2).? As I suggested in referencing the role of statistics and techniques for pooling risk in the creation of social democratic welfare states, social technologies need not have any essential or eternal loyalty to the political formations within which they were first developed. Insurance rationality at the end of the nineteenth century had no essential vocation to provide security and solidarity to the working class; it was turned to that purpose (in some substantial measure) because it was available, in the right place at the right time, to be appropriated for that use. Specific ways of solving or posing governmental problems, specific institutional and intellectual mechanisms, can be combined in an almost infinite variety of ways, to accomplish different social ends. With social, as with any other sort of technology, it is not the machines or the mechanisms that decide what they will be used to do. Foucault (2008:94) concluded his discussion of socialist government- ality by insisting that the answers to the Left’s governmental problems require not yet another search through our sacred texts, but a process of conceptual and institutional innovation. “If there is a really socialist governmentality, then it is not hidden within socialism and its texts. It cannot be deduced from them. It must be invented”. But invention in the domain of governmental technique is rarely something worked up out of whole cloth. More often, it involves a kind of bricolage (Le ?vi- Strauss 1966), a piecing together of something new out of scavenged parts originally intended for some other purpose. As we pursue such a process of improvisatory invention, we might begin by making an inventory of the parts available for such tinkering, keeping all the while an open mind about how different mechanisms might be put to work, and what kinds of purposes they might serve. If we can go beyond seeing in “neoliberalism” an evil essence or an automatic unity, and instead learn to see a field of specific governmental techniques, we may be surprised to find that some of them can be repurposed, and put to work in the service of political projects very different from those usually associated with that word. If so, we may find that the cabinet of governmental arts available to us is a bit less bare than first appeared, and that some rather useful little mechanisms may be nearer to hand than we thought.10 Immac MC Neg Terror (c&p)Plea bargaining is a key tool in fighting lone wolf terrorism – Britain provesGuardian 5 (“Plea bargaining urged to help gain information” 18 July 2005 )The security and intelligence agencies want to introduce plea bargaining into British law, enabling their officers to question suspects before a trial, according to legal sources. They are also prepared to look again at the vexed issue of whether to allow the product of telephone taps to be introduced in terrorist trials. Plea bargaining would enable officers from MI5 and MI6 to obtain intelligence from suspects whose cooperation would in turn be recognised by the courts, by shorter sentences, for example. Plea bargaining is not formally recognised by British courts though judges have taken into account cooperation by a suspect before conviction. Earlier this year, an Old Bailey judge told Saajid Badat, sentenced to 13 years in prison for planning to explode a shoe bomb on a passenger aircraft, that he would have faced a 50-year sentence. Mr Justice Fulford said he gave him credit for pulling out of the plot, renouncing terrorism and pleading guilty. The judge said it was in the public interest that "if a would-be terrorist turns away from death and destruction before any lives are put at risk", the courts would pass a lower sentence. Allowing information from telephone taps to be used as evidence in trials is seen now as much a bureaucratic and financial burden as a threat to sources or methods used by the security and intelligence agencies. The defence is likely to demand to see transcripts of the whole of a conversation, not only those parts used by the prosecution to make its case. That process is time-consuming and expensive. These moves are being mooted at a time when the country's three intelligence-gathering agencies - MI5, MI6 and GCHQ - face a huge challenge in their efforts against their priority target, international terrorism. MI5 is said to have discovered nothing in its internal investigation to suggest it had information which could have prevented the London bombings. This points to a significant intelligence gap rather than an intelligence failure. The agency has depended on informants - human agents or sources - for intelligence. Iraq and the US treatment of detainees at Guantánamo Bay and elsewhere have not encouraged people who otherwise might have done more to provide information, counter-terrorist officials say. The London bombings of July 7, the first by suicide bombers in Britain, may change that. However, it will be harder for MI5 to gather intelligence if its potential targets are young militants who do not attend mosques and distance themselves from imams who do not respond to their concerns. One of the problems faced by the security and intelligence agencies is that militants appear to recruit themselves - they do not have to receive, or rely on, instructions from the al-Qaida network. A plethora of websites provide detailed information about how to make bombs. Security sources say the four London bombers could have made their devices from the internet, without help from anyone else, even though they were "high grade". The IRA was infiltrated by British intelligence whose job was made easier partly because the organisation was hierarchical and structured. Al-Qaida is the opposite - diffuse and international. MI5's resources are to be beefed up by with a new Special Reconnaissance Regiment which women are being encouraged to join. Its role may reflect the army's 14th Intelligence Company, which operated in Northern Ireland. Its plain clothes members, often masquerading as couples, monitored the movements of terrorist suspects. That model may not be the most useful in tracking potential Islamist terroristsLone wolf attacks are growing and cause extinctionAckerman and Pinson 14 – Gray A., Director of the Special Projects Division at the National Consortium for the Study of Terrorism and Responses to Terrorism (START); Lauren E., Senior Research/Project Manager at START and PhD student at Yale University, 2014 (“An Army of One: Assessing CBRN Pursuit and Use by Lone Wolves and Autonomous Cells,” Terrorism and Political Violence (Vol. 26, Issue 1) Available Online to Subscribing Institutions via Tandfonline)? The first question to answer is whence the concerns about the nexus between CBRN weapons and isolated actors come and whether these are overblown. The general threat of mass violence posed by lone wolves and small autonomous cells has been detailed in accompanying issue contributions, but the potential use of CBRN weapons by such perpetrators presents some singular features that either amplify or supplement the attributes of the more general case and so are deserving of particular attention. Chief among these is the impact of rapid technological development. Recent and emerging advances in a variety of areas, from synthetic biology 3 to nanoscale engineering, 4 have opened doors not only to new medicines and materials, but also to new possibilities for malefactors to inflict harm on others. What is most relevant in the context of lone actors and small autonomous cells is not so much the pace of new invention, but rather the commercialization and consumerization of CBRN weapons-relevant technologies. This process often entails an increase in the availability and safety of the technology, with a concurrent diminution in the cost, volume, and technical knowledge required to operate it. Thus, for example, whereas fifty years ago producing large quantities of certain chemical weapons might have been a dangerous and inefficient affair requiring a large plant, expensive equipment, and several chemical engineers, with the advent of chemical microreactors,5 the same processes might be accomplished far more cheaply and safely on a desktop assemblage, purchased commercially and monitored by a single chemistry graduate student.? The rapid global spread and increased user-friendliness of many technologies thus represents a potentially radical shift from the relatively small scale of harm a single individual or small autonomous group could historically cause. 6 From the limited reach and killing power of the sword, spear, and bow, to the introduction of dynamite and eventually the use of our own infrastructures against us (as on September 11), the number of people that an individual who was unsupported by a broader political entity could kill with a single action has increased from single digits to thousands. Indeed, it has even been asserted that ‘‘over time. . . as the leverage provided by technology increases, this threshold will finally reach its culmination—with the ability of one man to declare war on the world and win.’’7 Nowhere is this trend more perceptible in the current age than in the area of unconventional weapons.? These new technologies do not simply empower users on a purely technical level. Globalization and the expansion of information networks provide new opportunities for disaffected individuals in the farthest corners of the globe to become familiar with core weapon concepts and to purchase equipment—online technical courses and eBay are undoubtedly a boon to would-be purveyors of violence. Furthermore, even the most solipsistic misanthropes, people who would never be able to function socially as part of an operational terrorist group, can find radicalizing influences or legitimation for their beliefs in the maelstrom of virtual identities on the Internet.? All of this can spawn, it is feared, a more deleterious breed of lone actors, what have been referred to in some quarters as ‘‘super-empowered individuals.’’8 Conceptually, super-empowered individuals are atomistic game-changers, i.e., they constitute a single (and often singular) individual who can shock the entire system (whether national, regional, or global) by relying only on their own resources. Their core characteristics are that they have superior intelligence, the capacity to use complex communications or technology systems, and act as an individual or a ‘‘lone-wolf.’’9 The end result, according to the pessimists, is that if one of these individuals chooses to attack the system, ‘‘the unprecedented nature of his attack ensures that no counter-measures are in place to prevent it. And when he strikes, his attack will not only kill massive amounts of people, but also profoundly change the financial, political, and social systems that govern modern life.’’10 It almost goes without saying that the same concerns attach to small autonomous cells, whose members’ capabilities and resources can be combined without appreciably increasing the operational footprint presented to intelligence and law enforcement agencies seeking to detect such behavior.DA/PIC Impeachment Counter plan: The United States federal government should abolish plea bargaining other than in cases pursuant to the special investigation probe into the Trump administration.Plea bargains are key to stop the trump administration Budowsky 12/1 – Brent, was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics. (“Trump’s Russian winter grows colder with Flynn plea deal” )The potential culpability of the president and others involving obstruction of justice will be decided by evidence, facts and law as viewed by the special counsel and the grand jury considering the matter. It was wrong, and has evidentiary value, for the president to fire former New York U.S. Attorney Preet Bharara while he was investigating the Russia scandal. It was wrong, and has evidentiary value, for the president to fire former acting Attorney General Sally Yates when she warned the White House that Russians could have material to blackmail former national security adviser, Michael Flynn. It was wrong, and has evidentiary value, for the president to fire former FBI Director James Comey while he was investigating the Russia scandal after asking Comey to drop the investigation of Flynn. It was a terrible mistake by Trump, and has evidentiary value, for Trump to admit the reason he fired Comey was to lower pressure on himself brought by the investigation that Comey was then leading. It was wrong, and has evidentiary value, for the president to humiliate and threaten Attorney General Jeff Sessions through intense public criticism and letting it be known he might fire Sessions. It was wrong, and has evidentiary value, for Sessions to refuse to tell the House Intelligence Committee whether Trump has pressured him to end or limit the Russia investigation, which he will be asked about by the special counsel and may have to testify about in court. It was wrong, and has evidentiary value, for Sessions to recuse himself from the Russia investigation and then take actions that impeded the Russia investigation he had recused himself from, such as supporting the firing of Comey. In this context it was wrong, and has evidentiary value, for Trump to pressure Senate Republicans to cut short their investigations of the Russia scandal. It is wrong, and has evidentiary value, that Trump stands virtually alone among high-level officials in refusing to unequivocally state that the Russians have attacked our country and continue to attack our country, which intelligence and law enforcement agencies warn about today. Stay tuned for the next blockbuster event in the Russian scandal, which is probably imminent after the Flynn plea bargain. Sealed indictments or other plea bargains may have already been reached but not yet disclosed. If not, they will probably happen soon. There are multiple issues involving multiple Trump associates now under investigation, including failure to disclose foreign contacts as required by law. The potential for an obstruction of justice charge is real and growing. The Flynn plea will set off a chain reaction with more evidence, revelations, indictments and plea bargains that will continue to make Trump’s cold Russian winter colder by the day, until the investigation is concluded and the fate of the Trump presidency is decided one way or the other, once and for all.Trump would use nuclear weapons -- there are no checks on an unstable President. This risk is extremely high. Illing 11/17 (Sean, is the Interviews Writer for Vox. Before publishing things on the Internet, he taught politics and philosophy at a university. Before that, he was a paramedic in the United States Air Force.) “Trump Can’t Start a Nuclear War by Himself, but there’s not much stopping him,” Vox News, 11/17/2017 MCM.Senators held a congressional hearing on Tuesday to discuss the US president’s authority to launch a nuclear strike. It was the first hearing to overtly address this issue in more than four decades. The hearing was not explicitly about President Trump, but rather about the general question of whether the president currently has too much power over our nuclear arsenal. But the fact that Trump is swapping Twitter insults with North Korea’s Kim Jong Un and has threatened to use “fire and fury” against the regime was clearly a motivating factor. “We are concerned that the president of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic, that he might order a nuclear strike that is wildly out of step with US interests,” said Sen. Chris Murphy, a Democrat from Connecticut. Even Bob Corker, a Republican senator from Tennessee, warned that Trump’s reckless threats could put the country on a “path to World War III.” One of the experts who testified at the hearing was Peter Feaver, a political science professor at Duke University and a former special adviser on the National Security Council. I reached out to Feaver with two big questions: Can the president unilaterally launch a nuclear strike? And what are the checks in place to stop an unlawful order from the president? The answer, it turns out, is complicated. You can read my lightly edited conversation with Feaver below. Sean Illing Let me start with a simple but important question: Can the president unilaterally launch a nuclear strike? Peter Feaver No. But the wording of your question is very precise. Can he launch a strike “unilaterally”? No. He requires other people to carry out an order, so he can't just lean on a button and automatically the missiles fly. But he has the legal and political authority on his own to give an order that would cause other people to take steps which would result in a nuclear strike. That’s the system we currently have.K Legalism (c&p)Using defense as redress obfuscates the drivers of incarceration and legitimizes criminal injusticeButler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) Indigent persons are much more likely to go to prison today than in the era when Gideon was decided. In 1960, the U.S. imprisonment rate was approximately 126 per 100,000 population.9 By, 2008, the rate had quadrupled, to 504 per 100,000.10 African-American defendants are even worse off. In 1960, three years before Gideon, the black incarceration rate was approximately 660 per 100,000.11 By 1970, it had fallen some, to slightly under 600 per 100,000.12 In 2010, the rate of incarceration among black males was an astronomical 3,074 per 100,000.13 For men hoping to avoid prison, being both poor and black is a lethal combination. More than two-thirds of black males who do not have college degrees will be incarcerated at some point in their lives.14 Black male high school dropouts are more likely to be imprisoned than employed.15 What is it about being poor and African American that substantially increases the risk of incarceration? The answer, rather obviously, has much to do with class and race and, less obviously, little to do with the quality of the indigent defense system. This Essay employs data about both race and class to demonstrate this claim, but at the start I want to note that it is impossible to disaggregate the effects of race and class. The answer to the questions, “Are poor defendants treated unfairly because many of them are black, are black defendants treated unfairly because many of them are poor, or is there some other dynamic at work?” is “yes.”16 Indeed, the Gideon decision itself was explicitly a class intervention, but implicitly, like other Warren court criminal procedure cases, a racial justice intervention as well.17 Approximately two decades after Gideon, two trends began in criminal justice, the effects of which were to overwhelm any benefits that Gideon provided to low-income accused persons. First, the United States experienced the most pronounced increase in incarceration in the history of the world.18 Second, there was a corresponding exponential increase in racial disparities in incarceration. This dramatic expansion of incarceration was accomplished on the backs of poor people. The Bureau of Justice Statistics reports that the “generally accepted indigency rate” for state felony cases near the time when Gideon was decided was 43.19 Today approximately 80 of people charged with crime are poor.20 Other data further illustrate the correlation between poverty and incarceration. In 1997, more than half of state prisoners earned less than $1,000 in the month before their arrest.21 This would result in an annual income of less than $12,000, well below the $25,654 median per capita income in 1997.22 The same year, 35 of state inmates were unemployed in the month before their arrest, compared to the national unemployment rate of 4.9.23 Approximately 70 of state prisoners have not graduated from high school.24 Only 13 of incarcerated adults have any post-high school education, compared with almost 50 of the non-incarcerated population.25 College graduation, on the other hand, serves to insulate Americans from incarceration. Only 0.1 of bachelor’s degree holders are incarcerated, compared to 6.3 of high school dropouts.26 Put another way, high school dropouts are sixty-three times more likely to be locked up than college graduates. The post-Gideon expansion of the prison population was also accomplished on the backs of black people. There have been always been racial disparities in American criminal justice, but from the 1920s through the 1970s they were “only” about two-to-one.27 Now the black/white incarceration disparity is seven-to-one.28 There are more African Americans under correctional supervision than there were slaves in 1850.29 As Michelle Alexander states, “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”30 In summary, poor people and blacks have never fared as well as the nonpoor and the nonblack in American criminal justice. Since the 1970s, however, the disparities have gotten much worse. Something happened that dramatically increased incarceration and dramatically raised the percentage of the incarcerated who are poor and black. What happened is usually attributed to two main causes: the war on drugs and the law-and-order or so-called tough-on-crime policies of American leaders since the Nixon Administration.31 Thus far I have made the case that prisons are populated by people who are disproportionately poor and African American. My next step is to demonstrate that this is not a coincidence, in order to further support the claim that the poor are losers in American criminal justice. Mass incarceration’s process of control—the social and legal apparatus by which poor people become losers in criminal justice—can be broken into five steps. (1) The spaces that poor people, especially poor African Americans, live in receive more law enforcement in the form of police stops and arrests.32 (2) The criminal law deliberately ignores the social conditions that breed some forms of law-breaking.33 Deprivations associated with poverty are usually not “defenses” to criminal liability, although they may be factors considered in sentencing. (3) African Americans, who are disproportionately poor, are the target of explicit and implicit bias by key actors in the criminal justice system, including police, prosecutors,34 and judges. (4) Once any person is arrested, she becomes part of a crime control system of criminal justice, in which guilt is presumed.36 Prosecutors, using the legal apparatus of expansive criminal liability, recidivist statutes, and mandatory minimums,37 coerce guilty pleas by threatening defendants with vastly disproportionate punishment if they go to trial.38 (5) Repeat the cycle. A criminal caste is created. Two-thirds of freed prisoners are rearrested, and half return to prison, within three years of their release.39 This description is not intended to be novel, or especially provocative. Other observers of American criminal justice have made similar points about the process by which being poor and African American increases the risk of incarceration. Richard S. Frase, for example, writes that poverty and lack of opportunity are associated with higher crime rates; crime leads to arrest, a criminal record, and usually a jail or prison sentence; past crimes lengthen those sentences; offenders released from prison or jail confront family and neighborhood dysfunction, increased risks of unemployment, and other crime-producing disadvantages; this make them likelier to commit new crimes, and the cycle repeats itself.40 Michelle Alexander notes: It is simply taken for granted that, in cities like Baltimore and Chicago, the vast majority of young black men are currently under the control of the criminal justice system or branded criminals for life. This extraordinary circumstance—unheard of in the rest of the world—is treated here in America as a basic fact of life, as normal as separate water fountains were just a half century ago.41 What if every person accused of a crime had an excellent lawyer? Proponents of Gideon suggest it would be an important step in making criminal justice more equitable. For example, David Cole writes that the “story of the enforcement of the right to counsel suggests that our failure to make good on Gideon’s promise is no mere mistake. Rather, it is the single most important mechanism by which the courts and society ensure a double standard in constitutional rights protection in the criminal law.”42 In reality, full enforcement of Gideon probably would not significantly impact the “double standard.” If mass incarceration and racial disparities were caused by poor defense attorneys, it would make sense to think of Gideon as the appropriate solution. But, as the five-step process described above demonstrates, defenders are not the cause. Rights talk atomizes society and impedes progressive change Butler 13 – Paul D. Professor, Georgetown University Law Center; Yale College, B.A.; Harvard Law School, J.D. ( “Poor People Lose: Gideon and the Critique of Rights” the yale law journal 122:2176 2013 ) Robin West has described the critique of rights as “one of the most vibrant, important, counterintuitive, challenging set of ideas that emerged from the legal academy over the course of the last quarter of the twentieth century.”51 Many of these ideas were articulated as part of the critical legal studies movement that began in the 1980s.52 In a seminal 1984 article, Mark Tushnet described rights as unstable, indeterminate, overly abstract, and politically harmful to the Left.53 The critique of rights was intended as an “act of creative destruction that may help us build societies that transcend the failures of capitalism.”54 The critique of rights has evolved to many sets of critiques.55 One description on a website curated by a group of legal theorists who teach or have taught at Harvard Law School summarizes five basic elements: (1) The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume. (2) Legal rights are in fact indeterminate and incoherent. (3) The use of rights discourse stunts human imagination and mystifies people about how law really works. (4) At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection. (5) Rights discourse can actually impede progressive movement for genuine democracy and justice.56 Most of the critiques make the claim that rights are indeterminate. The proposition is that “the law is not a fixed and determined system, but rather an unruly miscellany of various, multifaceted, contradictory practices, altering from time to time and from context to context as different facets of law are privileged or suppressed.”57 Robin West describes the indeterminacy thesis as meaning that “the articulation of an interest as a ‘right’ by no means creates an unmoveable bulwark against change, interference, or recalibration of the protection of the various interests . . . toward which it so desperately strives.”58 Rights are indeterminate because they are too abstract to be useful in deciding particular cases, or because they conflict with other rights. When social progress occurs after a right is declared, it is because of the social and political context in which the right is declared rather than the right itself. Most critiques also claim that rights are regressive. Winning a “right” in a court case either has no connection to advancing a political goal, or actually impedes political goals.59 Gary Peller, for example, faults rights discourse for constituting “a narrative of legitimation, a language for concluding that particular social practices are fair because they are objective and unbiased.”60 Rights impede progressive change because they divert attention and resources away from material deprivations, and, according to some theorists, because rights are individual, rather than about the welfare of groups.61This legitimizes structures of injustice, racism, and dehumanization and turns case.West 11 West, Robin L, Georgetown University Law Center "Tragic Rights: The Rights Critique in the Age of Obama." Wm. and Mary L. Rev. 53 (2011): 713.Rights harm us, according to the Bill of Particulars put forward by the rights critics of the 1980s, in three distinct ways. First, even apparently liberating rights that seemingly expand the sphere of individual liberty also subordinate, at least according to the first and perhaps the most important of the rights critics' charges. Rights to privacy protect not only private decision making against the prying and moralistic eye of the state but also, even if inadvertently or indirectly, private subordination of vulnerable family members.' Rights to liberty of contract protect private choices of individuals but also the economic subordination of laborers by employers," and rights to speech protect ideas but also, arguably, pornography and private verbal, racial, or sexual harassment.' Whatever else rights do, Horwitz, Tushnet, MacKinnon, and other critics argued, rights that protect spheres of privacy, liberty, or autonomy against state intervention also, and by virtue of that protection, facilitate the subordination of the weak by the strong, within whatever spheres of insularity, entitlement, and nonintervention from the government the particular right in question creates. Thus, the first charge: rights subordinate. Second, by protecting against particularized but well-defined sorts of unfair relations in the private realm, even those rights that do operate to specify limits on a generalized liberty in the interest of equality—such as limits on our liberty to intentionally discrimi-nate—also run the risk of legitimizing the larger unjust social world within which those particularized moments of injustice are framed. The censure of the intentional discriminator, and our right to be free of him, for example, legitimates not only structural or unintentional racism but also an unjust classism. Our condemnation of the errors in an error-ridden meritocracy legitimates the unjust stinginess of the ways we construct merit and blame, and even a purified and idealized meritocracy legitimates our nonresponsiveness to human need.' Miranda rights, critics argued, and more largely procedural protections in the criminal justice system, legitimate not only on-going interrogation abuses that they only partially address but an overly punitive and blatantly racist system of excessive incarcera-tion as well." The targeting of gender-based "stereotypes" so as to free the nonconforming woman legitimate the belittling and cramped opportunities that attach to voluntarily assumed tradi-tional gender roles." Attempts to secure rights to a "minimum wage" render all the more difficult attempts to ensure a livable family wage—and so on.' Rights harm, then, not only because of the subordination they protect and valorize but also because they distract our critical gaze, thereby legitimating larger injustices. In brief, rights legitimate.' Lastly, critics argued, rights alienate, even those rights that seemingly empower the weakest of us in a hostile world. They alien-ate us from the dreaded other from whom they claim to protect us," from our communities,' and from a recognition of even the possibil-ity of unmediated human connection.' Rights do have a function: they facilitate essential trade between withdrawn selves, as elu-cidated by Peter Gabel's artful description of us as deeply and paranoically fearful of others, the state, and human community." But by so doing, rights intensify the very withdrawal from human life to which they then offer their poison pill as a necessary reme-diation. In short: rights alienate. The alternative is to understand criminal procedure as bureaucratic control rather than justice – it’s a prerequisite to social changeTushnet and Jaff 86 – Mark Tushnet Professor of Law, Georgetown University Law Center. and Jennifer Jaff, Instructor in Law, University of Miami Law School. (“Critical Legal Studies and Criminal Procedure,” 35 Cath. U. L. Rev. 361 (1986). )The problem of controlling discretion can be reconceptualized in a critical way-critical because we can rethink the nature of the system of criminal procedure as a whole.8 Instead of seeing efforts to control discretion as efforts to protect the citizenry from abuse, we can view them as efforts by bureaucratic superiors, such as police chiefs, head prosecutors, and appellate judges, to assert control over the activities of their subordinates.8 2 Sometimes this control will have the incidental effect of protecting the citizenry from abuse, but that is not the primary purpose of the effort. Viewed in this manner, criminal procedure is an exercise in the assertion of power-not the power of enforcing officials against the citizenry, but the power of bureaucratic superiors against their subordinates.? There are a number of advantages to this perspective. First, it brings into view many activities of enforcement officials that we usually do not consider part of criminal procedure."s On the most elementary level, it allows us to talk about different modes of asserting control over subordinates. Rules developed by appellate courts are not the only way to assert control, and may not be the best way. Thus, we can talk about the development of rules by the enforcement agencies themselves, such as police guidelines on the conduct of line-ups or head prosecutors' guidelines on charging decisions. These internal rules are certain to be more detailed than the essentially nonexistent constraints that the courts will enforce.84? Another example may be worth mentioning. Appellate law has almost nothing to say about the unique position of public defenders in relation to plea negotiation, even though a large percentage of criminal cases are handled by public defenders."5 One would not be surprised to find that public defenders have internal office policies on the conduct of plea negotiations, or norms communicated through formal training or informal conversations.8 6 These policies belie the theme of the superior trying to guard against adverse public reaction to the plea process in general. Once these aspects of the activities of the plea process are brought into view, appellate law can be seen as a similar effort to control the behavior of subordinates. Cases that may be an example are those in which effective assistance of counsel is the operative standard for evaluation of voluntariness.8 7? Another part of enforcement activity that this perspective brings into view is the presence and influence of unions, and of the organized bar. One of the constraints that superiors face is the organized political power of their subordinates. 88 Typically, the subordinates think of themselves as the best judges of how discretion should be exercised in the infinitely varying daily circumstances that they face.8 9 One would suppose that line officers in police departments, prosecutors' offices, public defenders' offices, and courts routinely hold self-images that emphasize all the good things about discretion. Organized as a political force, line officers will inevitably resist efforts by their superiors to assert control over the exercise of their discretion, and they will have cogent arguments to explain why that resistance serves the goals of sound public policy. 9? This perspective could have a significant effect on many traditional doctrines. For example, if rules of criminal procedure are to be seen primarily as efforts by superiors to assert control over subordinates, then it might make sense to distinguish among enforcement agencies according to the degree to which such control is successfully asserted.9? " The courts might enforce stringent rules of search and seizure against departments that provided no training or inadequate training to their officers, but might allow departments with extensive training programs to develop their own rules. The general idea is that judicially developed standards are substitutes for internally developed ones. Thus, where the goal of controlling discretion is reached by bureaucratic superiors pursuing their own goals of asserting power over subordinates, there is no special need for the internal rules to be supplemented by external ones.? One could play out this approach across the board, or at least as far as any other approach allows. For present purposes, however, it is more important to explain why this perspective may be characterized as critical. By emphasizing the role of rules of criminal procedure as devices by which bureaucratic superiors attempt to assert their power over subordinates, the approach allows us to rethink the nature of the system of criminal procedure as a whole. This approach assumes that enforcement agencies are bureau-cracies in which superiors need to control the discretion exercised by subordinates. It simply attempts to ascertain the implications of having bureaucratic enforcement agencies handle such important matters as law enforcement, plea bargaining, and so on. Because law enforcement agencies are, after all, just that type of bureaucracy, this is a perfectly natural way of talking about those agencies. However, since this approach brings the bureaucratic character of law enforcement to the surface, it allows us to question the necessity of using a bureaucracy to administer justice. The K is prior—The aff’s conception of law ignores its everyday effects, and any connections it makes with the social field are made indeterminate.Gordon ’12 (Robert W. Gordon, Professor of Law, Stanford University; Chancellor Kent Professor of Law and Legal History, Emeritus, Yale University, “’Critical Legal Histories Revisited’: A Response,” Law and Social Inquiry, Journal of the American Bar Foundation, Volume 37, Issue 1, 200–215, Winter 2012, ) LADIDS Whether “law” is leading or “lagging,” it is pictured in narratives of modernization as something related to, but separate from, the larger processes of social change: a secondary specialized subsystem of society, being worked on by social change and working back on it. Of course, nobody could deny that much of what we call law and legal systems are specialized activities taking place in specialized institutions (courts, administrative agencies, legislatures, etc.) populated by specialized social actors (lawyers, judges, and other of?cials). But the distinctive and specialized institutions, enactments, procedures, and of?cials that we call “the legal system” hardly account for most of the ways in which law and legal norms work their way into everyday consciousness and social processes. So another purpose of this piece was to try to capture, as many legal sociologists, anthropologists, and historians have tried to do, an alternative way of thinking about law-society relations from that of an autonomous (or “relatively autonomous”) legal system interacting with a larger social system so as to manage or facilitate or regulate that social system’s affairs. EF describes a relationship between two spheres of social life, the big sphere of society (the economy, family life, technological and demographic change, contests for political power, etc.) and the smaller dependent sphere of the legal system. But one cannot describe the social sphere independently of its constitutive legal elements, such as property rights and contracts and the expectation of routine legal enforcement and legally permitted self-help enforcement (which allows my private security force to enforce my rules on my property with lethal force if needed, or, as a condition of going to work for me or buying my product, allows me to require you to sign a contract that deprives you of any effective remedy for its violation) is much more than the activities of the of?cial legal system. Asked to describe the key economic order of modernity, “capitalism,” people usually come up with phrases like “freely marketable or transferable by gift or inheritance property rights” or “formally free labor.” But these aren’t simply legal rules and regimes that facilitate capitalism; they are capitalism, or key elements of it, anyway. So an alternative conception to functionalism has over the years come to be called—rather mystifyingly and not always helpfully—a “constitutive” theory of law society relations, or a “mutually constitutive” theory: law (partially) constitutes society and society constitutes law. Property, contract, company, slave, employee, nation-state, illegal immigrant, criminal, husband, wife, adopted child, creditor, bankrupt—these are all legal concepts, but also lived social realities and identities. The third piece of the critique of EF was that the connections hypothesized between “legal” and “social” change, even when they were not partly tautological (as in “law facilitated the rise of capitalism”), could not be strong causal links because the “law” in the dominant legal-social accounts was too underspeci?ed and indeterminate to entail any de?nite set of social consequences. Saying things like “the negligence principle” or “property rights in land” were preconditions to, or even just very favorable legal environments for, economic growth, ignored the basic insight of Legal Realism—the myriad ways in which legal doctrines can be interpreted and differentially applied or ignored or worked around or resisted on the way to enforcement. There are respects in which it is equally valid to say “the American legal system laid the foundation for economic growth by creating enforceable property rights” and “the American legal system laid the foundation of economic growth by destroying preexisting property rights” (e.g., by allowing slaveowners to extinguish property in labor and colonizers to steal Indian titles, enclosers to eliminate use-rights in commons, canal and railroad developers to cut rights of way through farmland, squatters to acquire title from absentee owners). Comparative legal-social history, moreover, usually revealed many alternative legal paths to modernity, as well as variant types of modernity.11 Dougherty DS Aff Stock (c&p)Contention 1 is Innocent People:Plea bargains and overcriminalization feed upon each other – efficiency of plea bargains incentivizes more prosecutions. The system allows prosecutors to coerce defendants, including innocents, into pleading guilty.Dervan 11 (Lucian E., Assistant Professor of Law, Southern Illinois University School of Law, and former member of the King and Spalding LLP Special Matters and Government Investigations Team. Special thanks to the Professors Ellen Podgor and Jeffrey Parker, the Journal of Law, Economics and Policy, the Law and Economics Center at George Mason University, the National Association of Criminal Defense Lawyers, and the Foundation for Criminal Justice), “OVERCRIMINALIZATION 2.0: THE SYMBIOTIC RELATIONSHIP BETWEEN PLEA BARGAINING AND OVERCRIMINALIZATION”, accessed from , 8-24-2011 AS- possible framing argument against the CP – the very existence of plea bargaining protects overcriminalization from scrutiny – the cp’s defense of plea bargaining takes away scrutiny to system as a whole, which is plea bargaining itself- example of the Computer Associates company is where the criminal justice system creates new interpretations of laws to criminalize people for the sake of criminalizing them- stats prove – over half the amount of people jailed in 1912 were jailed by reasons that didn’t exist just 25 year before. Along with this was the use of plea bargain increase from 50- 90 percent In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.”1 If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95 of defendants in the federal criminal justice system succumb to the power of bargained justice.2 As such, while Professor Ribstein pays tribute to plea bargaining, this piece provides a more detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence. To illustrate the co-dependent nature of plea bargaining and overcriminalization, consider what it would mean if there were no plea bargaining. Novel legal theories and overly-broad statutes would no longer be tools merely for posturing during charge and sentence bargaining, but would have to be defended and affirmed both morally and legally at trial. Further, the significant costs of prosecuting individuals with creative, tenuous, and technical charges would not be an abstract possibility used in determining how great of an incentive to offer a defendant in return for pleading guilty. Instead, these costs would be a real consideration in determining whether justice is being served by bringing a prosecution at all. Similarly, consider the significant ramifications that would follow should there no longer be overcriminalization. The law would be refined and clear regarding conduct for which criminal liability may attach. Individual benefits, political pressure, and notoriety would not incentivize the invention of novel legal theories upon which to base liability where none otherwise exists, despite the already expansive size of the United States criminal code. Further, novel legal theories and overly-broad statutes would not be used to create staggering sentencing differentials that coerce defendants, even innocent ones, to falsely confess in return for leniency. As these hypothetical considerations demonstrate, plea bargaining and overcriminalization perpetuate each other, as plea bargaining shields overcriminalization from scrutiny and overcriminalization creates the incentives that make plea bargaining so pervasive. For example, take the novel trend toward deputizing corporate America as agents of the government, as illustrated in the case of Computer Associates.3 In 2002, the Department of Justice and the Securities and Exchange Commission began a joint investigation regarding the accounting practices of Computer Associates, an Islandia, New York-based manufacturer of computer software.4 Almost immediately, the government requested that Computer Associates perform an internal investigation.5 As has been noted by numerous commentators, such internal investigations provide invaluable assistance to the government, in part because corporate counsel can more easily acquire confidential materials and gain unfettered access to employees.6 Complying with the government’s request, Computer Associates hired an outside law firm.7 What happened next was both typical and atypical: Shortly after being retained in February 2002, the Company’s Law Firm met with the defendant Sanjay Kumar former CEO and chairman of the board and other Computer Associates executives including Stephen Richards, former head of sales, in order to inquire into their knowledge of the practices that were the subject of the government investigations. During these meetings, Kumar and others did not disclose, falsely denied and otherwise concealed the existence of the 35-day month accounting practice. Moreover, Kumar and others concocted and presented to the company’s law firm an assortment of false justifications, the pur-pose of which was to support their false denials of the 35-day month practice. Kumar and others knew, and in fact intended, that the company’s law firm would present these false justifications to the United States Attorney’s Office, the SEC and the FBI so as to obstruct and impeded (sic) the government investigations. For example, during a meeting with attorneys from the company’s law firm, the defendant Sanjay Kumar and Ira Zar discussed the fact that former Computer Associates salespeople had accused Computer Associates of engaging in the 35-day month practice. Kumar falsely denied that Computer Associates had engaged in such a practice and suggested to the attorneys from the company’s law firm that because quarterly commissions paid to Computer Associates salespeople regularly included commissions on license agreements not finalized until after end of quarter, the salespeople might assume, incorrectly, that revenue associated with those agreements was recognized by Computer Associates within the quarter. Kumar knew that this explanation was false and intended that the company’s law firm would present this false explanation to the United States Attorney’s Office, the SEC and the FBI as part of an effort to persuade those entities that the accusations of the former salespeople were unfounded and that the 35-day month practice never existed.8 The interviewing of employees by private counsel as part of an internal investigation is common practice and few would be surprised to learn that employees occasionally lie during these meetings. Further, information gathered during internal investigations is often passed along to the government in an effort to cooperate.9 What was uncommon in the Computer Associates situation, however, was the government’s response to the employees’ actions. Along with the traditional host of criminal charges related to the accounting practices under investigation, the government indicted Kumar and others with obstruction of justice for lying to Computer Associates’ private outside counsel.10 According to the government, the defendants “did knowingly, intentionally and corruptly obstruct, influence and impede official proceedings, to wit: the Government Investigations,” in violation of 18 U.S.C. § 1512(c)(2).11 This novel and creative use of the obstruction of justice laws, which had recently been amended after the collapse of Enron and the passage of Sarbanes–Oxley, was ill-received by many members of the legal establishment.12 Echoing the unease expressed by the bar, Kumar and his codefen-dants challenged the validity of the government’s creative charging decision and filed a motion to dismiss.13 The district court responded by denying the defendants’ motion without specifically addressing their concerns about the government’s interference with the attorney–client privilege.14 The stage was thus set for this important issue to make its way to the U.S. Court of Appeals for the Second Circuit (and, perhaps, eventually the U.S. Supreme Court) for guidance on the limits of prosecutorial power to manipulate the relationships among a corporation, its employees, and its private counsel. Unfortunately, despite the grave concerns expressed from various corners of the legal establishment about the obstruction of justice charges in the Computer Associates case, the appellate courts never had the opportunity to scrutinize the validity of this novel and heavily criticized expansion of criminal law. The government’s new legal theory went untested in the Computer Associates case due to the symbiotic relationship between plea bargaining and overcriminalization. Three of the five defendants in the Computer Associates case pleaded guilty immediately, while Kumar and Stephens gave in to the pressures of plea bargaining two months after filing their unsuccessful motion to dismiss before the district court.15 As might be expected in today’s enforcement environment, not even the corporation challenged the government in the matter. Computer Associates entered into a deferred prosecution agreement that brought the government’s investigation to an end. 16 Once again, overcriminalization created a situation where the defendants could be charged with obstruction of justice and presented with significant incentives to plead guilty, while plea bargaining ensured these novel legal theories would go untested. Given the symbiotic existence of plea bargaining and overcriminalization, perhaps the answer to overcriminalization does not lie solely in changing imperfect prosecutorial incentives or changing the nature of corporate liability—it may also lie in changing the game itself.17 Perhaps the time has come to reexamine the role of plea bargaining in our criminal justice system. While the right to plead guilty dates back to English common law, the evolution of plea bargaining into a force that consumes over 95 of defendants in the American criminal justice system mainly took place in the nineteenth and twentieth centuries.18 In particular, appellate courts after the Civil War witnessed an influx of appeals involving “bargains” between defendants and prosecutors. 19 While courts uniformly rejected these early attempts at bargained justice, deals escaping judicial review continued to be struck by defendants and prosecutors.20 By the turn of the twentieth century, plea bargaining was on the rise as overcriminalization flourished and courts became weighed down with evergrowing dockets.21 According to one observer, over half of the defendants in at least one major urban criminal justice system in 1912 were charged with crimes that had not existed a quarter century before.22 The challenges presented by the growing number of prosecutions in the early twentieth century accelerated with the passage of the Eighteenth Amendment and the beginning of the Prohibition Era.23 To cope with the strain on the courts, the symbiotic relationship between overcriminalization and plea bargaining was born: Federal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total of all pending federal prosecutions in 1914. In a number of urban districts the enforcement agencies maintain that the only practicable way of meeting this situation with the existing machinery of federal courts . . . is for the United States Attorneys to make bargains with defendants or their counsel whereby defendants plead guilty to minor offenses and escape with light penalties.24 In return for agreeing not to challenge the government’s legal assertions and for assisting in lessening the strain created by overcriminalization, defendants were permitted to plead guilty to reduced charges and in return for lighter sentences.25 The strategy of using plea bargaining to move cases through the system was effective, as the number of defendants relieving the government of its burden at trial swelled. Between the early 1900s and 1916, the number of federal cases concluding with a guilty plea rose sharply from 50 to 72.26 By 1925, the number had reached 90.27 By 1967, the relationship between plea bargaining and overcriminalization had so solidified that even the American Bar Association (ABA) proclaimed the benefits of bargained justice for a system that remained unable to grapple with the continued growth of dockets and the criminal code.28 The ABA stated: A high proportion of pleas of guilty and nolo contendere does benefit the system. Such pleas tend to limit the trial process to deciding real disputes and, consequently, to reduce the need for funds and personnel. If the number of judges, courtrooms, court personnel and counsel for prosecution and defense were to be increased substantially, the funds necessary for such increases might be diverted from elsewhere in the criminal justice process. Moreo-ver, the limited use of the trial process for those cases in which the defendant has grounds for contesting the matter of guilt aids in preserving the meaningfulness of the presumption of innocence. 29 Interestingly, although plea bargaining had gained widespread approval by the 1960s, the U.S. Supreme Court had yet to rule on the constitutionality of bargained justice. Finally, in 1970, the Court took up Brady v. United States,30 a case decided in the shadows of a criminal justice system that had grown reliant on a force that led 90 of defendants to waive their right to trial and confess their guilt in court.31 In Brady, the defendant was charged under a federal kidnapping statute that allowed for the death penalty if a defendant was convicted by a jury.32 This meant that defendants who pleaded guilty could avoid the capital sanction by avoiding a jury verdict altogether.33 According to Brady, this statutory incentive led him to plead guilty involuntarily for fear that he might otherwise be put to death.34 The Brady Court, however, concluded that it is permissible for a criminal defendant to plead guilty in exchange for the probability of a lesser punishment, 35 a ruling likely necessitated by the reality that the criminal justice system would collapse if plea bargaining was invalidated. While the Brady decision signaled the Court’s acceptance of plea bargaining, it contained an important caveat regarding how far the Court would permit prosecutors to venture in attempting to induce guilty pleas. In Brady’s concluding paragraphs, the Court stated that plea bargaining was a tool for use only in cases where the evidence was overwhelming and the defendant, unlikely to succeed at trial, might benefit from the opportunity to bargain for a reduced sentence,36 a stance strikingly similar to the ABA’s at the time. 37 According to the Court, plea bargaining was not to be used to overwhelm defendants and force them to plead guilty where guilt was uncertain: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 avoidance 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.38 According to the Court, if judges, prosecutors, and defense counsel failed to observe these constitutional limitations, the Court would be forced to reconsider its approval of the plea bargaining system altogether: 39 This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.40 Unfortunately, evidence from the last forty years shows that Brady’s attempt to limit plea bargaining has not been successful. For example, as Professor Ribstein noted, today even innocent defendants can be persuaded by the staggering incentives to confess one’s guilt in return for a bargain.41 Importantly, this failure of the Brady limitation is due in part to the fact that overcriminalization, the phenomenon that initially created swelling dockets and the need for plea bargaining, makes creating the incentives to plead guilty easy by propagating a myriad of broad statutes from which staggering sentencing differentials can be created. All the while, plea bargains prevent these incentives, sentencing differentials, and, in fact, overcriminalization itself, from being reviewed. 42 Plea bargaining’s drift into constitutionally impermissible territory under Brady’s express language indicates the existence of both a problem and an opportunity. The problem is that the utilization of large sentencing differentials based, at least in part, on novel legal theories and overly-broad statutes, results in increasingly more defendants pleading guilty. Despite the ever-growing number of Americans captured by the criminal justice system through an increasingly wide application of novel legal theories and overly-broad statutes, these theories and statutes are seldom tested. No one is left to challenge their application—everyone has pleaded guilty instead. The opportunity is to challenge plea bargaining and reject arguments in favor of limitless incentives that may be offered in exchange for pleading guilty. This endeavor is not without support; Brady itself is the guide. By focusing on changing the entire game, it may be possible to restore justice to a system mired in posturing and negotiation about charges and assertions that will never be challenged in court. Such a challenge may also slow or even reverse the subjugation of Americans to the costs, both social and moral, of overcriminalization—plea bargaining’s unfortunate mutualistic symbiont.Hundreds of thousands of innocent people go to Jail – best evidence.Rakoff 14 Jed S. Rakoff, 11-20-2014, "Why Innocent People Plead Guilty," New York Review of Books, AReadye- up to 160 thousand individuals could be guilty and in prison – 8 * 2 million = 160kThe Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict. 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 determined by the prosecutor alone. In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because 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. While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less. It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review. After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials. The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime. Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor. All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place. At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them. In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors. One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since. The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts. The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case. Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case. 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 jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor 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 prosecutor recommends. But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision. The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years. Although under pressure to agree to the first plea bargain offered, prudent defense counsel will try to convince the prosecutor to give her some time to explore legal and factual defenses; but the prosecutor, often overworked and understaffed, may not agree. Defense counsel, moreover, is in no position to abruptly refuse the prosecutor’s proposal, since, under recent Supreme Court decisions, she will face a claim of “ineffective assistance of counsel” if, without consulting her client, she summarily rejects a plea bargain simply as a negotiating ploy. Defense counsel also recognizes that, even if she thinks the plea bargain being offered is unfair compared to those offered by other, similarly situated prosecutors, she has little or no recourse. An appeal to the prosecutor’s superior will rarely succeed, since the superiors feel the need to support their troops and since, once again, the prosecutor can shape the facts so as to make his superior find his proposed plea acceptable. And there is no way defense counsel can appeal to a neutral third party, the judge, since in all but a few jurisdictions, the judiciary is precluded from participating in plea bargain negotiations. In a word, she and her client are stuck. Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a “contract of adhesion” in which one party can effectively force its will on the other party. As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right—well over two million are there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well. A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result? The answer may be found in Jefferson’s perception that a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-determined plea bargaining invites the following objections. First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged? Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner. Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas. It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea. Every criminal defense lawyer (and I was both a federal prosecutor and a criminal defense lawyer before going on the bench) has had the experience of a client who first tells his lawyer he is innocent and then, when confronted with a preview of the government’s proof, says he is guilty. Usually, he is in fact guilty and was previously lying to his lawyer (despite the protections of the attorney–client privilege, which many defendants, suspicious even of their court-appointed lawyers, do not appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is guilty when in fact he is not, because he has decided to “take the fall.” In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are. Indeed, in situations in which the prosecutor and defense counsel themselves recognize that the guilty plea is somewhat artificial, they will have jointly arrived at a written statement of guilt for the defendant to read that cleverly covers all the bases without providing much detail. The Supreme Court, for its part, has gone so far (with the Alford plea of 1970) as to allow a defendant to enter a guilty plea while factually maintaining his innocence. While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent 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 innocent but also could be proven so. Research indicates that young, unintelligent, 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 similar 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. How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit. What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys. Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk. I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation. As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination. The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases. Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program. I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying.This disproportionally affects racial minorities – discretionary prosecutions like plea bargaining promote racial bias Smith and Levinson 12-7 Robert J. Smith and Justin D. Levinson, 12-7-2017, "Implicit Racial Bias Can Operate in Every Phase of Prosecutorial Discretion," Race, Racism and the Law, CSMost criminal cases are resolved by plea bargain, where the defendant admits guilt in exchange for a reduced charge (or a lesser sentencing recommendation). Unlike the disclosure of exculpatory evidence, plea-bargaining is subject to almost zero oversight. We have argued that, in several contexts, implicit racial bias thrives in the midst of discretionary determinations. Plea-bargaining is no exception. Consider a sampling of four "factors" among those the Department of Justice instructs federal prosecutors to consult in deciding whether to pursue a bargained disposition: (1) "The nature and seriousness of the offense or offenses charged"; (2) "the defendant's remorse or contrition and his willingness to assume responsibility"; (3) "the public interest in having the case tried rather than disposed of by a guilty plea"; and (4) "the expense of trial and How might the defendant's (or the victim's) race have an impact on the prosecutor's decision whether to offer a plea bargain, and if a plea is in fact offered, how much of a charging reduction will be offered in exchange for the guilty plea? First, consider prosecutors' assessment of the "seriousness of the offense charged." Imagine a domestic violence case where a man severely abuses his spouse. Does it matter if the spouse is black? Imagine white prosecutors deciding whether to offer the suspect a plea deal on a misdemeanor battery charge. As the prosecutors attempt to quantify the seriousness of the offense, they might not be able to empathize with the fear and pain of a black woman as much as they could empathize with a white woman subjected to domestic abuse. This phenomenon is known as "in-group favoritism," which is defined as "our tendency to favor the groups we belong Justice Scalia might use the term in-group favoritism to label the "undeniable reality" he described in his dissent in Powers v. Ohio"that all groups tend to have particular sympathies ... toward their own group There is experimental support for the existence and power of ingroup favoritism, or bias, as it relates to empathizing with a victim. Alessio Avenanti used a method called transcranial magnetic stimulation (TMS) to measure corticospinal activity level in participants who viewed short video clips of a needle entering into the hand of either a lightskinned or dark-skinned person. Consistent with the in-group empathetic-bias explanation, Avenanti found that region-specific brain activity levels were higher when Caucasian-Italian participants viewed the clip of a light-skinned participant experiencing pain than when they saw a clip of a dark-skinned target being subjected to pain. Returning to the white prosecutors trying to assess the seriousness of the domestic abuse suffered by a black woman, prosecutors might undervalue the extent of the harm caused by the abuse relative to the harm that they would consider a similarly situated white woman--perhaps someone who reminds them of their mothers, sisters, or daughters--to have suffered. The defendant's race (as well as the victim's race) can also influence the plea-bargaining process. Imagine a prosecutor trying to determine whether to offer a defendant a plea to manslaughter (and thus a term of years) or to proceed to trial to try to obtain a second-degree murder conviction (and thus, in many jurisdictions, life without parole). Whether "the public interest" is satisfied by a plea bargain (as opposed to going to trial where the defendant could receive a harsher sentence) and whether "the expense of trial" is worth it turn on how the prosecutor views the defendant. Is this person dangerous and thus likely to commit a future crime? As a white prosecutor reviews the case file of a young white defendant, the prosecutor might be unknowingly affected by positive implicit stereotypes relating to lawfulness and trustworthiness. This could lead to a more lenient evaluation of the defendant--troubled, but not a bad person, for example--and thus a plea offer is more likely to follow. As we have well-covered by now, the opposite will be true when the prosecutor views a black defendant; the prosecutor's mind will likely trigger automatic associations between the defendant and the concepts of violence and hostility. On a related point, as the prosecutor attempts to determine the degree of remorse the defendant has displayed (for example, during plea negotiations), the stereotype that black citizens are less fully human might render the prosecutor less able to detect remorse from a defendant's body language or more likely to reject a black defendant's apology as self-serving or otherwise not genuine. So too might the stereotypes that black citizens are violent, hostile, and prone to criminality have an impact on the degree of remorse that the prosecutor is able to detect in a defendant.Incarceration ruins innocent people’s lives – it’s a positive feedback loop that encourages crime and destroys livesSchrager 15 (Allison Schrager, I graduated from the University of Edinburgh and have a PhD in economics from Columbia University where I specialized in macroeconomics and public finance. I create solutions to make individual pension accounts work for the average investor) "In America, mass incarceration has caused more crime than it’s prevented", accessed from on 12-8-2017. Written 7-22-2015. AS- forces minorities to become career criminalsLast week, president Obama vowed to end mass incarceration, the imprisonment of 2.2 million Americans. He’s commuted the sentences of 46 drug offenders—but ending the practice will require a major policy change at the state and federal level. The sooner this is done, the better. Evidence from the last 40 years suggests the mass imprisonment policy was a tragic failure. Putting more people in prison not only ruined lives, it may have created more new crime than it prevented. There are five times as many people in prison today—nearly 5 of the population will be imprisoned at some point—as there were in the 1970s. The increase in crime during the 1960s and ’70s motivated Americans to get tough on crime, which took several forms. The most striking of these was putting lots of people in prison. Imprisonment is supposed to reduce crime in two ways: it takes criminals off the street so they can’t commit new crimes (incapacitation) and it discourages would-be criminals from committing crime (deterrence). But neither of these outcomes came to pass. A new paper from University of Michigan economics professor Michael Mueller-Smith measures how much incapacitation reduced crime. He looked at court records from Harris County, Texas from 1980 to 2009. Mueller-Smith observed that in Harris County people charged with similar crimes received totally different sentences depending on the judge to whom they were randomly assigned. Mueller-Smith then tracked what happened to these prisoners. He estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6 a quarter. Even people who went to prison for lesser crimes wound up committing more serious offenses subsequently, the more time they spent in prison. His conclusion: Any benefit from taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals. High recidivism rates are not unique to Texas: Within 5 years of release more than 75 of prisoners are arrested again. Why does prison turn people into career criminals? Prison obliterates your earnings potential. Being a convicted felon disqualifies you from certain jobs, housing, or voting. Mueller-Smith estimates that each year in prison reduces the odds of post-release employment by 24 and increases the odds you’ll live on public assistance. Time in prison also lowers the odds you’ll get or stay married. Being in prison and out of the labor force degrades legitimate skills and exposes you to criminal skills and a criminal network. This makes crime a more attractive alternative upon release, even if you run a high risk of returning to prison. You could argue prison is still worth it if long sentences discouraged people from committing crime in the first place. Mueller-Smith estimates a one-year prison sentence would only be worth it (in terms of prison cost and forgone economic potential) if it deterred at least 0.4 fewer rapes, 2.2 assaults, 2.5 robberies, 62 larcenies or prevented 4.8 people from becoming a habitual drug user. And the deterrent effect is not this powerful—not even close. Contention 2 is Solvency:Plan Text: The United States federal government ought to abolish plea bargaining in its criminal justice system.Solvency advocate- it’s modelled after Alaska’s abolition of plea bargaining.Fine 87 (Ralph Adam, American judge, author, and television personality who served on the Wisconsin Court of Appeals from 1988-2014) "Plea Bargaining: An Unnecessary Evil", accessed from on 12-2-2017 ASA. We Should Abolish Plea Bargaining Plea bargaining exists only because it is thought to be essential to the efficient functioning of the criminal justice system: "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system."59 The experiences of Alaska, Ventura County, Oakland County, New Orleans and Judge O'Farrell prove that it is not essential. Perhaps Judge Stern put it best when he compared the system of plea bargaining to a "fish market" that "ought to be hosed down." 60 We do not need plea bargaining - we should not tolerate it. Abolition, however, will require work and dedication. As Robert C. Erwin, then Associate Justice of the Alaskan Supreme Court, told Professor Alschuler in a June, 1976 interview: A no-plea-bargaining policy forces the police to investigate their cases more thoroughly. It forces prosecutors to screen their cases more rigorously and to prepare them more carefully. It forces the courts to face the problem of the lazy judge who comes to court late and leaves early, to search out a good presiding judge, and to adopt a sensible calendaring system. All of these things have in fact happened here., 6 1 They can happen everywhere as well, if those in the system only try. As Judge Stern told me, recalling his days as a federal prosecutor, "It worked for me, and I tell you, it would work for anybody."6 B. A Proposal First, there should be no reduction of a charge unless the prosecutor can demonstrate, and the judge can specifically find on the record, that: (1) There are facts that were unknown to the prosecutor at the time the charge was issued that make a new charge more appropriate or (2) There are other circumstances that may militate against going to trial.64 Second, the prosecutor should certify, on the record, that the charging decision was not based on a defendant's willingness to plead guilty but on his or her independent evaluation of the facts, including any circumstances that may militate against going to trial. Third, the prosecutor should certify, on the record at sentencing, that the recommendation, if any, is based on the prosecutor's independent evaluation of the facts and not a quidpro quo for a guilty plea, except where there are other circumstances that may militate against going to trial.It’s a new policy, but data supports the claim that abolishing plea bargaining solvesSavitsky 9 Douglas, 8-7-2009, “Plea Bargaining as a Cause of Racial Disparity,” Paper at Am. Sociological Assoc. Annual Meeting CSEvidence In the interest of space, the evidence supporting the theory of plea bargaining will be kept to a minimum. The most direct way to test the model would be to simply eliminate plea bargaining in a district and see the outcome. During the 1970's a small number of districts did in fact eliminate plea bargaining. For instance, the State of Alaska's Attorney General's office banned plea bargaining beginning in 1975 for a period of several years (Rubenstein and White 1979). Additionally, beginning in 1976 the city of El Paso, Texas, due to a conflict between the criminal court judges and the district attorney's office, effectively banned many types of plea bargaining (Weninger 1987). Other districts flirted with such bans as well, such as an unnamed county in the Midwest (Church 1976) as well as several others. The results of these “quasi experiments” are mixed, and in many cases difficult to analyze. This is in part because the data sets are limited, in part because much of the data has been lost over the years, and in part because the analyses done in the 1970's and 1980's do not cover the variables necessary to ascertain the questions at issue in this project. As such, only a meta-analysis of the existing reported findings is possible. In general, even with those caveats, dispositions in low level and borderline cases were reduced. The most interesting, and perhaps most directly relevant study, is from Hampton County, 6 “a suburban county located adjacent to a major midwest sic industrial city” (Church 1976). In his 1976 study, Thomas Church examined the effects of the policies implemented by a newly elected county prosecutor. The prosecutor, in an effort to get tough on drug dealers, instituted a policy whereby once a warrant was issued in a drug case, the prosecutor's office was prohibited from lowering the charge. This effectively eliminated plea bargaining in the district as so-called charge bargaining was the preeminent form of plea bargaining. Additionally, after 6 Hampton County is a fictitious name. In a conversation with the author, Hampton County was revealed to be located in Michigan. In the first year of the policy, the prosecutor's office added armed robbery and carrying a concealed weapon to the list of charges for which plea bargaining was prohibited. While the numbers are small, the data clearly shows a trend where total prosecutions are reduced, and the lion’s share of the reduction is culled from low level crimes such as drug crimes. From 1972 to 1974, the rate of guilty pleas in drug cases dropped from 98 to 90, and the number of trials increased from 2 to 4. Most importantly, however, the number of total warrants in these cases dropped by 62 from 109 to 41 while the numbers of warrants for other crimes stayed relatively steady. Indeed, it appears that the numbers of total drug dispositions were reasonably constant before the ban as well as after, except for the huge one time drop. Results from Alaska’s statewide ban are slightly less conclusive, though they are still generally supportive. Prosecutions in severe and violent crimes stayed relatively constant after the plea bargaining ban, with prosecutions in burglary, larceny, and similar property crimes actually increasing. However, prosecutions in fraud, and embezzlement dropped by almost half and prosecutions in drug cases dropped by nearly a quarter. Interestingly, rates of guilty pleas stayed relatively high. Thus, while the data necessary to the current project was not explicitly collected or reported, the data that does exist is generally supportive of the hypothesis.Abolishing plea bargaining doesn’t clog courts – Alaska provesFine 87 (Ralph Adam, justice on the Wisconsin Court of Appeals District I, Tufts University and JD @ Columbia Law School) "Plea Bargaining: An Unnecessary Evil", accessed from on 12-2-2017 ASDavid L. Bazelon, the former Chief Judge for the United States Court of Appeals for the District of Columbia, in a decision written a year before Brady v. United States, recognized that plea bargaining was not the imperative that all seemed to assume: “The arguments that the criminal process would collapse unless substantial inducements are offered to elicit guilty pleas have tended to rely upon assumption rather than empirical evidence. In many jurisdictions lacking sophisticated resources for criminal investigations, a large proportion of suspects apprehended are caught virtually red-handed. The argument 'But what if everyone did not plead guilty?' has force only to the extent that a sizable proportion of defendants have some motivation to plead innocent. If the defendant does have some hope of acquittal, the right to a trial assumes overarching importance. If he does not, there is some presumption that most men will not indulge in a meaningless act.50” Some six years after Judge Bazelon wrote those words, his prediction was tested when Alaska's Attorney General, Avrum M. Gross, abolished plea bargaining statewide. Appointed Attorney General in December of 1973, Alaska's unique centralized criminal justice system gave Gross control over all of the state's district attorneys. His new policy was announced in a memorandum dated July 3, 1975, and was addressed to "all district attorneys." With exceptions for unu-sual circumstances, permission for which "will be given sparingly," there was to be no sentence concessions or charge reductions in exchange for guilty pleas. Sentencing recommendations and charge reductions could still be made, but only if they were warranted by the facts and were not used ''simply to obtain a plea of guilty." Before Gross' plea bargaining ban in August of 1975, the practice was as endemic in Alaska as anywhere else. As one judge related, it was part of the defense lawyer's job to go to the district attorney "to see what could be worked out. 51 Often, a lot "could be worked out." An assistant district attorney told how one of his colleagues had eleven cases set for trial in one week: "He hadn't even looked at one of the files. He dealt them all out on the last day, and he was proud of himself. I'm afraid we were giving away the farm too often. It was a little difficult to sleep at night."' 52 This same prosecutor then put it all in context: The whole system became ridiculous. We were giving away cases we plainly should have tried. We often said to ourselves, 'Hell, I don't want to go to trial with this turkey; I want to go on vacation next week.' We learned that a prosecutor can get rid of everything if he just goes low enough. 3 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. 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 processed 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 practice, it is probably necessary to the efficient administration of justice. The findings of this study sug- gest that, at least in Alaska, both sides were wrong."55 Indeed, the disposition 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 reformation 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 jurisdictions 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 Emmett 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.Abolition key – conflicting motivesAlschuler 13 (Albert W. Alschuler, Albert Alschuler graduated magna cum laude from the Harvard Law School and was Case Editor of the Harvard Law Review. He has been a law clerk to Justice Walter V. Schaefer of the Illinois Supreme Court; a special assistant to the assistant attorney general in charge of the criminal division of the US Justice Department; a professor of law at the University of Texas, the University of Colorado, and the University of Pennsylvania; a visiting professor at the University of Michigan, the University of California at Berkeley, the Brooklyn Law School, and Columbia University; and a visiting scholar at the National Institute of Justice and the American Bar Foundation) "Lafler and Frye: Two Small Band-Aids for aFestering Wound", accessed from on 12-7-2017 ASEven if Lafler and Frye had not fudged the question of remedy and even if these decisions had burst on the scene bold, new, and shiny, they would not warrant the hype bestowed upon them by professors and the press. Three observations about the American legal system I made twenty-seven years ago seem relevant. First, our plea-dominated system makes the kind of justice a “defendant receives more dependent on the quality of his counsel than any other legal system in the world.” Second, this system “subjects defense attorneys to serious temptations to disregard their clients’ interests.” And third, this system “makes it impossible to determine whether defendants have received the effective assistance of counsel.”38 Decisions like Lafler and Frye can neither guarantee effective legal representation in the plea negotiation process nor do much to make it more likely. Defenses of plea negotiation offer sweet pictures of wellinformed defendants making rational assessments of surrender and gain.39 They depend on the assumption that defendants will be well represented. For private attorneys, however, a guilty plea is a quick buck. Defense attorneys have good reasons for collecting their fees in advance, and once they have pocketed their fees, their personal interests lie in disposing of their cases as rapidly as possible. This conflict of interest influences even well-paid, conscientious lawyers, and the bar includes some lawyers who are neither well paid nor conscientious. They handle a high volume of cases for small fees and almost never take a case to trial.40 Plea negotiation also minimizes work and reduces conflict within what organizational theorists call the “courtroom workgroup.”41 Bargaining promotes cordial and comfortable relationships with prosecutors and judges. These interests may influence public defenders even more than they do private lawyers.42 Advising a client to enter a plea agreement can never be proven wrong. Taking a case to trial and losing may appear to have been a bad choice, especially when this decision has produced a sentence two or twenty times more severe than the one the prosecutor offered before trial. A bad outcome at trial may cause both the client’s regard for his lawyer and the lawyer’s self-esteem to suffer. It also may increase the likelihood of a claim of professional ineffectiveness. When one has entered a plea agreement, however, he can always imagine that the outcome of a trial would have been worse. Advising a client to plead guilty is nearly always the safe, secure, comfortable, and profitable course. Everything in our criminal justice system pushes in that direction. A lawyer’s conferences with his client are not public, and neither are his bargaining sessions with the prosecutor. The effectiveness of Lafler and Frye depend on the willingness of lawyers to acknowledge failings so serious that their conduct falls below what the Supreme Court calls “the wide range of reasonable professional assistance.”43 The lawyers whose performances were judged ineffective in Lafler and Frye were appropriately forthcoming,44 but when a defendant says, “my lawyer never told me about the offer,” and the lawyer says, “oh yes I did,” the defendant is almost certain to lose. When a defendant claims that his lawyer misinformed him, many lawyers are likely to respond that the defendant misunderstood. Moreover, the confessions of lawyers must be of a particular kind. Failing to convey critical information (say, about the existence of an offer) may entitle a client to relief, and negligent misstatements of law or fact may too.45 So may ignoring or failing to investigate important evidence, trading the interests of one client for the interests of another, and refusing to bargain at all in a case offering little or no chance of success at trial.46 Self-interested advice to plead guilty, inept negotiating, and erroneous predictions, however, almost certainly will not suffice. In our lawyersupportive legal system, no one need recognize the ineffectiveness of the weakest members of the bar, not even the weak lawyers themselves. One can always conjure up plausible reasons for a default.47 Contention 3 is Framing: Thus, the standard is minimizing structural violence – a. Debate should deal with questions of real-world consequences—ideal theories ignore the concrete nature of the world and legitimize oppression.Curry 14 (Tommy J. Curry is Associate Professor of Philosophy and Affiliate Professor of Africana Studies at Texas AandM University. He is a Ray A. Rothrock Fellow and has commented on social matters in venues ranging from Forbes to Sirius XM. He is the author of 50 articles on issues of racism, Black intellectual history, and Black political theory) “The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century”, from 2014 ASDespite the pronouncement of debate as an activity and intellectual exercise pointing to the real world consequences of dialogue, thinking, and (personal) politics when addressing issues of racism, sexism, economic disparity, global conflicts, and death, many of the discussions concerning these ongoing challenges to humanity are fixed to a paradigm which sees the adjudication of material disparities and sociological realities as the conquest of one ideal theory over the other. In “Ideal Theory as Ideology,” Charles Mills outlines the problem contemporary theoretical-performance styles in policy debate and value-weighing in Lincoln-Douglass are confronted with in their attempts to get at the concrete problems in our societies. At the outset, Mills concedes that “ideal theory applies to moral theory as a whole (at least to normative ethics as against metaethics); since ethics deals by definition with normative/prescriptive/evaluative issues, it is set against factual/descriptive issues.” At the most general level, the conceptual chasm between what emerges as actual problems in the world (e.g.: racism, sexism, poverty, disease, etc.) and how we frame such problems theoretically—the assumptions and shared ideologies we depend upon for our problems to be heard and accepted as a worthy “problem” by an audience—is the most obvious call for an anti-ethical paradigm, since such a paradigm insists on the actual as the basis of what can be considered normatively. Mills, however, describes this chasm as a problem of an ideal-as-descriptive model which argues that for any actual-empirical-observable social phenomenon (P), an ideal of (P) is necessarily a representation of that phenomenon. In the idealization of a social phenomenon (P), one “necessarily has to abstract away from certain features” of (P) that is observed before abstraction occurs. ? This gap between what is actual (in the world), and what is represented by theories and politics of debaters proposed in rounds threatens any real discussions about the concrete nature of oppression and the racist economic structures which necessitate tangible policies and reorienting changes in our value orientations. As Mills states: “What distinguishes ideal theory is the reliance on idealization to the exclusion, or at least marginalization, of the actual,” so what we are seeking to resolve on the basis of “thought” is in fact incomplete, incorrect, or ultimately irrelevant to the actual problems which our “theories” seek to address. Our attempts to situate social disparity cannot simply appeal to the ontologization of social phenomenon—meaning we cannot suggest that the various complexities of social problems (which are constantly emerging and undisclosed beyond the effects we observe) are totalizable by any one set of theories within an ideological frame be it our most cherished notions of Afro-pessimism, feminism, Marxism, or the like. At best, theoretical endorsements make us aware of sets of actions to address ever developing problems in our empirical world, but even this awareness does not command us to only do X, but rather do X and the other ideas which compliment the material conditions addressed by the action X. As a whole, debate (policy and LD) neglects the need to do X in order to remedy our cast-away-ness among our ideological tendencies and politics. How then do we pull ourselves from this seeming ir-recoverability of thought in general and in our endorsement of socially actualizable values like that of the living wage? It is my position that Dr. Martin Luther King Jr.’s thinking about the need for a living wage was a unique, and remains an underappreciated, resource in our attempts to impose value reorientation (be it through critique or normative gestures) upon the actual world. In other words, King aims to reformulate the values which deny the legitimacy of the living wage, and those values predicated on the flawed views of the worker, Blacks, and the colonized (dignity, justice, fairness, rights, etc.) used to currently justify the living wages in under our contemporary moral parameters.b. No act omission distinction for states since their implicit approvals of actions still entail moral responsibilitySunstein and Vermuele Cass R. Sunstein and Adrian Vermeule. The University of Chicago Law School. “Is Capital Punishment Morally Required? The Relevance of Life‐Life Tradeoffs.” JOHN M. OLIN LAW and ECONOMICS WORKING PAPER NO. 239. The Chicago Working Paper Series. March 2005 AJIn our view, both the argument from causation and the argument from intention go wrong by overlooking the distinctive features of government as a moral agent. Whatever the general status of the act-omission distinction as a matter of moral philosophy,38 the distinction is least impressive when applied to government.39 The most fundamental point is that unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference. Most generally, government is in the business of creating creates permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything, or refusing to act.40 Moreover, the distinction between authorized and unauthorized private action—for example, private killing—becomes obscure when the government formally forbids private action, but chooses a set of policy instruments that do not adequately or fully discourage it.Legal reform is the only effective strategy of changeLobel 7 (Orly, PhD, prof of Law at U San Diego, “The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative,” The Harvard Law Review, Vol. 120, No. 4 (Feb., 2007), , pg. 971-978)Practical Failures: When Extralegal Alternatives Are Vehicles for Conservative Agendas We don't want the 1950s back. What we want is to edit them. We want to keep the safe streets, the friendly grocers, and the milk and cookies, while blotting out the political bosses, the tyrannical headmasters, the in- flexible rules, and the lectures on 100 percent Americanism and the sinful- ness of dissent.163 A basic structure of cooptation arguments as developed in relation to the labor and civil rights movements has been to show how, in the move from theory to practice, the ideal that was promoted by a social group takes on unintended content, and the group thus fails to realize the original vision. This risk is particularly high when ideals are framed in broad terms that are open to multiple interpretations. Moreover, the pitfalls of the potential risks presented under the um- brella of cooptation are in fact accentuated in current proposals. Paradoxically, as the extralegal movement is framed by way of opposi- tion to formal legal reform paths, without sufficiently defining its goals, it runs the very risks it sought to avoid by working outside the legal system. Extralegal paths are depicted mostly in negative terms and as re- sorting to new alternative forms of action rather than established mod- els. Accordingly, because the ideas of social organizing, civil society, and legal pluralism are framed in open-ended contrarian terms, they do not translate into specific visions of social justice reform. The idea of civil society, which has been embraced by people from a broad ar- ray of often conflicting ideological commitments, is particularly de- monstrative. Critics argue that "some ideas fail because they never make the light of day. The idea of civil society . . . failed because it 163 Alan Ehrenhalt, Where Have All the Followers Gone?, in COMMUNITY WORKS, supra note 124, at 93-96. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 972 HARVARD LAW REVIEW Vol. 120:937 became too popular."164 Such a broadly conceived ideal as civil society sows the seeds of its own destruction. In former eras, the claims about the legal cooptation of the trans- formative visions of workplace justice and racial equality suggested that through legal strategies the visions became stripped of their initial depth and fragmented and framed in ways that were narrow and often merely symbolic. This observation seems accurate in the contempo- rary political arena; the idea of civil society revivalism evoked by pro- gressive activists has been reduced to symbolic acts with very little substance. On the left, progressive advocates envision decentralized activism in a third, nongovernmental sphere as a way of reviving de- mocratic participation and rebuilding the state from the bottom up. By contrast, the idea of civil society has been embraced by conserva- tive politicians as a means for replacing government-funded programs and steering away from state intervention. As a result, recent political uses of civil society have subverted the ideals of progressive social re- form and replaced them with conservative agendas that reject egalitar- ian views of social provision. In particular, recent calls to strengthen civil society have been ad- vanced by politicians interested in dismantling the modern welfare sys- tem. Conservative civil society revivalism often equates the idea of self-help through extralegal means with traditional family structures, and blames the breakdown of those structures (for example, the rise of the single parent family) for the increase in reliance and dependency on government aid.165 This recent depiction of the third sphere of civic life works against legal reform precisely because state interven- tion may support newer, nontraditional social structures. For conser- vative thinkers, legal reform also risks increasing dependency on social services by groups who have traditionally been marginalized, including disproportionate reliance on public funds by people of color and single mothers. Indeed, the end of welfare as we knew it,166 as well as the 164 Alan Wolfe, Is Civil Society Obsolete? Revisiting Predictions of the Decline of Civil Society in Whose Keeper?, in COMMUNITY WORKS, supra note 124, at 18. 165 See Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 FORDHAM L. REV. 1617, 162 1 (2001). Examples of such claims about the causal connection between the breakdown of traditional civil society/family structures and reli- ance on government aid are found in documents such as COUNCIL ON CIVIL SOC'Y, A CALL TO Civil Society: Why Democracy Needs Moral Truths (1998), and Nat'l Comm'n on Civic Renewal, A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It (1998). For a critique from the perspective of racial justice, see Derrick Bell and Preeta Bansal, The Republican Revival and Racial Politics, 97 YaleLJ. 1609(1988). 166 See, e.g., Martha Minow, Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It, 49 DUKE LJ. 493 (1999). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2007 THE PARADOX OF EXTRALEGAL ACTIVISM 973 transformation of work as we knew it,167 is closely related to the quest of thinkers from all sides of the political spectrum for a third space that could replace the traditional functions of work and welfare. Strikingly, a range of liberal and conservative visions have thus con- verged into the same agenda, such as the recent welfare-to-work re- forms, which rely on myriad non-governmental institutions and activi- ties to support them.168 When analyzed from the perspective of the unbundled cooptation critique, it becomes evident that there are multiple limits to the con- temporary extralegal current. First, there have been significant prob- lems with resources and zero-sum energies in the recent campaigns promoting community development and welfare. For example, the ini- tial vision of welfare-to-work supported by liberal reformers was a multifaceted, dynamic system that would reshape the roles and respon- sibilities of the welfare bureaucracy. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996169 (PRWORA), sup- ported by President Clinton, was designed to convert various welfare programs, including Aid to Families with Dependent Children, into a single block grant program. The aim was to transform passive cash assistance into a more active welfare system, in which individuals would be better assisted, by both the government and the community, to return to the labor force and find opportunities to support them- selves. Yet from the broad vision to actual implementation, the pro- gram quickly became limited in focus and in resources. Indeed, PRWORA placed new limits on welfare provision by eliminating eligi- bility categories and by placing rigid time limits on the provision of benefits.170 Moreover, the need to frame questions relating to work, welfare, and poverty in institutional arrangements and professional jargon and to comply with various funding block grants has made some issues, such as the statistical reduction of welfare recipients, more salient, whereas other issues, such as the quality of jobs offered, have been largely eliminated from policymakers' consideration. Despite aspects of the reform that were hailed as empowering for those groups they were designed to help, such as individual private training vouchers, serious questions have been raised about the adequacy of the particu- 167 See generally Orly Lobel, The Four Pillars of Work Law, 104 MICH. L. REV. 1539 (2006) (describing changes in work relations and modes of production in the past several decades and analyzing the way these developments should affect policy). 168 See Scott L. Cummings, Mobilization Lawyering: Community Economic Development in the Figueroa Corridor, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 49, at 302, 307- 08; Matthew Diller, Form and Substance in the Privatization of Poverty Programs, 49 UCLA L. Rev. 1739(2002). 169 Pub. L. No. 104-193, no Stat. 2105 (1996). 17° See id. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 974 HARVARD LAW REVIEW Vol. 120:937 lar policy design because resources and institutional support have been found lacking.171 The reforms require individual choices and rely on the ability of private recipients to mine through a vast range of infor- mation. As in the areas of child care, health care, and educational vouchers, critics worry that the most disadvantaged workers in the new market will not be able to take advantage of the reforms.172 Un- der such conditions, the goal of eliminating poverty may be eroded and replaced by other goals, such as reducing public expenses. Thus, re- calling the earlier cooptation critique, once reforms are envisioned, even when they need not be framed in legalistic terms, they in some ways become reduced to a handful of issues, while fragmenting, ne- glecting, and ultimately neutralizing other possibilities. At this point, the paradox of extralegal activism unfolds. While public interest thinkers increasingly embrace an axiomatic rejection of law as the primary form of progress, their preferred form of activism presents the very risks they seek to avoid. The rejected "myth of the law" is replaced by a "myth of activism" or a "myth of exit," romanti- cizing a distinct sphere that can better solve social conflict. Yet these myths, like other myths, come complete with their own perpetual per- ils. The myth of exit exemplifies the myriad concerns of cooptation. For feminist agendas, for example, the separation of the world into dis- tinct spheres of action has been a continuous impediment to meaning- ful reform. Efforts to create better possibilities for women to balance work and family responsibilities, including relaxing home work rules and supporting stay-at-home parents through federal child care legisla- tion, have been couched in terms of support for individual choice and private decisionmaking.173 Indeed, recent initiatives in federal child care legislation to support stay-at-home parents have been clouded by preconceptions of the separation of spheres and the need to make one- or-the-other life choices. Most importantly, the emergence of a sphere- oriented discourse abandons a critical perspective that distinguishes between valuing traditional gender-based characteristics and celebrat- ing feminine difference in a universalist and essentialist manner.174 171 See Diller, supra note 168, at 1748-49; John Michaels, Deforming Welfare: How the Domi- nant Narratives of Devolution and Privatization Subverted Federal Welfare Reform, 34 SETON HALL L. REV. 573, 604-22 (2004); Peter Edelman, The Worst Thing Bill Clinton Has Done, AT- LANTIC Monthly, Mar. 1997, at 43, 49-50. 172 See, e.g., JOEL F. HANDLER and YEHESKEL HASENFELD, BLAME WELFARE, IGNORE POVERTY AND INEQUALITY 55-63, 133-35, 34345 (2006). 173 See generally Nancy E. Dowd, Work and Family: Restructuring the Workplace, 32 ARIZ. L. REV. 431, 431 (1990) ("Conflict between work and family responsibilities is a critical workplace issue. . . . There exists an ideology of individual choice and individual burdens which masks the nature of the structure and the basis of the conflict."). 174 See Judith Stacey, In The Name of the Family: Rethinking Family Values IN THE POSTMODERN AGE (1996); Frances E. Olsen, The Family and the Market, 96 HARV. L. Rev. 1497 (1983). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2OO7 THE PARADOX OF EXTRALEGAL ACTIVISM 975 Not surprisingly then, some feminist writers have responded to civil society revivalism with great skepticism, arguing that efforts to align feminine values and agendas with classic republican theory of civil so- ciety activism should be understood, at least in part, as a way of le- gitimizing historical social structures that subordinated women.175 The feminist lesson on the law/exit pendulum reveals a broader pattern. In a classic example of cooptation, activists should be con- cerned about the infusion (or indeed confusion) of nonlegal strategies with conservative privatization agendas. Indeed, in significant social policy contexts, legal scholarship oriented toward the exploration of ex- tralegal paths reinforces the exact narrative that it originally resisted - that the state cannot and should not be accountable for sustaining and improving the lifeworld of individuals in the twenty-first-century economy and that we must seek alternative ways to bring about social reform. Whether using the terminology of a path-dependent process, an inevitable downward spiral, a transnational prisoner's dilemma, or a global race to the bottom, current analyses often suggest a lack of control over the forces of new economic realities. Rather than counter- ing the story of lack of control, pointing to the ongoing role of gov- ernment and showing the contradictions between that which is being kept regulated and that which is privatized, alternative extralegal scholarship accepts these developments as natural and inevitable. Similar to the arguments developed in relation to the labor movement - in which focusing on a limited right to collective bargaining demo- bilized workers and stripped them of their voice, participation, and de- cisionmaking power - contemporary extralegal agendas are limited to very narrow and patterned sets of reforms. A striking example has been the focus on welfare reform as the single frontier of economic redistribution without a connection being made between these reforms and social services in which the middle class has a strong interest, such as Social Security and Medicare. Simi- larly, on the legal pluralism frontier, when activists call for more cor- porate social responsibility, the initial expressions are those of broad demands for sustainable development and overall industry obligations for the social and environmental consequences of their activities.176 The discourse, however, quickly becomes coopted by a shift to a narrow focus on charitable donations and corporate philanthropy or 175 See, e.g., Dowd, supra note 173, at 486; Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986). 176 See World Business Council for Sustainable Development, Corporate Social Responsibility: Meeting Changing Expectations (1999), available at (follow "Publications and Reports" hyperlink; then follow "Corporate Social Responsibility: Meeting changing expectations" hyperlink). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 976 HARVARD LAW REVIEW Vol. 120:937 private reporting absent an institutionalized compliance structure.177 Moreover, because of institutional limitations and crowding out effects possible in any type of reform agenda, the focus shifts to the benefits of corporate social responsibility to businesses, as marketing, recruit- ment, public relations, and "greenwashing" strategies.178 Critics therefore become deeply cynical about the industry's real commitments to ethical conduct. A similar process can be described with regard to the literature on globalization. Globalization scholarship often attempts to produce a unifying narrative and an image of unitary struggle when in fact such unity does not exist. Embodied in the aforementioned irony of a "global anti-globalization" movement, social reform activism that re- sides under the umbrella of global movements is greatly diverse, some of it highly conservative. An "anti-globalization" movement can be a defensive nationalist movement infused with xenophobia and protec- tive ideologies.179 In fact, during central instances of collective action, such as those in Seattle, Quebec, Puerto Alegre, and Genoa, competing and conflicting claims were frequently encompassed in the same pro- test.180 Nevertheless, there is a tendency to celebrate and idealize these protests as united and world-altering. Similarly, at the local level, grassroots politics often lack a clear agenda and are particularly ripe for cooptation resulting in far lesser achievements than what may have been expected by the groups in- volved. In a critical introduction to the law and organizing model, Professor Scott Cummings and Ingrid Eagly describe the ways in which new community-based approaches to progressive lawyering privilege grassroots activism over legal reform efforts and the facilita- tion of community mobilization over conventional lawyering.181 After carefully unpacking the ways in which community lawyers embrace 177 See, e.g., Symposium, Corporate Social Responsibility: Paradigm or Paradox?, 84 Cornell L. Rev. 1282, 1311 (1999). 178 See Christine Parker, The Open Corporation: Effective Self-Regulation AND DEMOCRACY 135-67 (2002); John M. Conley and Cynthia A. Williams, Engage, Embed, and Embellish: Theory Versus Practice in the Corporate Social Responsibility Movement, 31 J. CORP. L. 1, 13-18 (2005). On greenwashing, see William A. Laufer, Social Accountability and Corporate Greenwashing, 43 J. BUS. ETHICS 253 (2003) (describing greenwashing as a "form of disinforma- tion from organizations seeking to repair public reputations and further public images"). 179 See Lynch, supra note 132. 180 See, e.g., Richard Bondreaux and Marjorie Miller, Genoa on Minds of Protestors, L.A. TIMES, July 18, 2001, at Ai (noting that the "summit-hopping movement for global justice" that began in Seattle "embraces Greenpeace environmentalists, Greek trade unions, Basque separatists, German punkers, faith-based groups such as Christian Aid and more"); The WTO History Project, Or- ganizations Opposed to the WTO, (last visited Jan. 14, 2007) (listing the over 1400 organizations, representing all sorts of interests, that signed a peti- tion opposing the WTO in connection with the Seattle protest). 181 See Cummings and Eagly, supra note 40. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2007 THE PARADOX OF EXTRALEGAL ACTIVISM 977 law and organizing, Professor Cummings and Eagly rightfully warn against "exaggerating the ineffectiveness of traditional legal interven- tions" and "closing off potential avenues for redress."182 Significantly, the strategies embraced by new public interest lawyers have not been shown to produce effective change in communities, and certainly there has been no assurance that these strategies fare comparatively better than legal reform. Moreover, what are meant to be progressive pro- jects of community action and community economic development fre- quently can have a hidden effect of excluding worse-off groups, such as migrant workers, because of the geographical scope and zoning re- strictions of the project.183 In the same way that the labor and corpo- rate social responsibility movements have failed because of their em- brace of a legal framework, the community economic development movement - so diverse in its ideological appeal yet so prominent since the early 1990s as a major approach to poverty relief - may bring about its own destruction by fracture and diffusion.184 In all of these cases, it is the act of engagement, not law, that holds the risks of cooptation and the politics of compromise. It is not the particularities of lawyers as a professional group that create depend- ency. Rather, it is the dynamics between skilled, networked, and re- sourced components and those who need them that may submerge goals and create reliance. It is not the particularities of the structural limitations of the judiciary that threaten to limit the progressive vision of social movements. Rather, it is the essential difficulties of imple- menting theory into practice. Life is simply messier than abstract ideals. Cooptation analysis exposes the broad, general risk of assuming ownership over a rhetorical and conceptual framework of a movement for change. Subsequently, when, in practice, other factions in the po- litical debate embrace the language and frame their projects in similar terms, groups experience a sense of loss of control or possession of "their" vision. In sum, in the contemporary context, in the absence of a more programmatic and concrete vision of what alternative models of social reform activism need to achieve, the conclusions and rhetoric of the contemporary critical legal consciousness are appropriated by advocates representing a wide range of political commitments. Under- 182 Id. at 491. 183 See, e.g., Audrey G. McFarlane, Race, Space, and Place: The Geography of Economic Devel- opment, 36 San Diego L. Rev. 295, 318 (1999). 184 See William H. Simon, The Community Economic Development Movement (2001); Scott L. Cummings, Community Economic Development as Progressive Politics: Toward a Grassroots Movement for Economic Justice, 54 STAN. L. REV. 399 (2001); Louise A. Howells, The Dimensions of Micro enterprise: A Critical Look at Micro enterprise as a Tool To Alleviate Poverty, 9 J. Affordable Housing and Community Dev. L. 161 (2000); Shah, supra note m, at 218; Patricia A. Wilson, Empowerment: Community Economic Development from the Inside Out, 33 Urb. Stud. 617 (1996). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 978 HARVARD LAW REVIEW Vol. 120:937 stood from this perspective, cooptation is not the result of the turn to a particular reform strategy. Rather, cooptation occurs when imagined ideals are left unchecked and seemingly progressive rhetoric is repro- duced by a conservative agenda. Dominant interpretations such as privatization and market competitiveness come out ahead, whereas other values, such as group empowerment and redistributive justice, receive only symbolic recognition, and in turn serve to facilitate and stabilize the process.Even under utilitarian calculus, this is the greatest impact in debate. The sheer number effected demands redress. Edelman 13 – MARIAN WRIGHT EDELMAN activist for the rights of children. She has been an advocate for disadvantaged Americans for her entire professional life. She is president and founder of the Children's Defense Fund. (“Dismantle the Cradle to Prison Pipeline—Our Future Depends on It” ) SJDIToday a toxic cocktail of violence, poverty, racial disparities in child-serving systems, poor education, and racially unjust zero-tolerance policies are fueling a Cradle to Prison Pipeline? crisis that is funneling millions of poor children and adults into dead-end, powerless, and hopeless lives.A black boy born in 2001 has a one-in-three chance of going to prison in his lifetime, and a Latino boy has a one-in-six chance of the same fate. $e United States has the highest incarceration rate in the world: 7.1 million adults are under some form of correctional supervision including prison, jail, probation, or parole. Black males have an imprisonment rate that is nearly seven times higher than white males, and Hispanic males have a rate more than twice that of their white counterparts. This epidemic of mass incarceration has created one of the most dangerous crises for the black community since slavery and it affects everyone in our nation.Federal spending on prisons totaled $6.6 billion in 2012 and annual state spending on corrections tops $51 billion. This federal and state spending spree to warehouse prisoners has perverted our nation’s priorities. States spend on average two and half times more per prisoner than they spend per public school student, this at a time when a majority of children of all racial and income backgrounds cannot read or compute at grade level in fourth- or eighth-grade and huge numbers of youth drop out of schools. The privatization of juvenile and adult prisons is yet another added danger. The world’s largest for-profit, private prison corporation, the Corrections Corporation of America, recently offered to run the prison systems in 48 states for 20 years if the states would guarantee a 90 percent occupancy rate.The greatest threat to America’s democracy and economic security comes from no enemy, but rather from our failure to dismantle this Cradle to Prison Pipeline and to invest in and prepare all our children for the future. Tomorrow is today. Children of color, who already are a majority of babies being born in the United States and who will be a majority of our child population within this decade, face bleak futures without high-quality early childhood programs and high-quality, equitable public schools that would prepare them for college and our workforce.Closing the income and racial achievement gaps between poor and non-poor children and between white and nonwhite children is an urgent national priority. Today, every 1.5 seconds during the school year, a public school student is suspended; every 8 seconds during the school year, a public high school student drops out; every 19 seconds a child is arrested; and every 3 hours and 15 minutes, a child or teen is killed by a gun.Advocates for change should exclusively consider the human costs of mass incarceration. Coldly efficient reform narratives are unsustainable solutions to an incalculable evil. Southerland 14 – Vincent. Criminal Justice Practice, NAACP Legal Defense and Education Fund (“The Immorality of Mass Incarceration” May 7 2014, ) SJDI America is finally starting to take its first small steps on the path to curing its decades-long addiction to mass incarceration. Recently, the nation’s top law enforcement officer, Attorney General Eric Holder, testified before the United States Sentencing Commission and called for reductions to federal sentences for certain drug offenses. In doing so, Attorney General Holder declared that “over-reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate,” a statement many of us—who for years have been raising the alarm bell about America’s mass incarceration problem—have long known to be true.Attorney General Holder’s comments strike at the heart of the problem: mass incarceration has devastated African-American communities, families, and lives all around the country. Sustained changes to the policies and attitudes that created this epidemic, however, are the real key. In order for that change to happen, our nation’s moral orientation with mass incarceration and criminal justice will have to adjust accordingly.At bottom, criminal justice reforms need to be driven by the moral imperative of repairing all that is wrong with the current system. As advocates for change, we must make sure that the reform narrative includes the human costs of mass incarceration and a broken criminal justice system, not just the concern over dollars and cents. The Moral Monday movement—a multi-issue, grassroots, multiracial campaign active in the courtroom, streets, and the ballot box—offers a salient example of how ethics and the lived experiences of real people can drive change and incite action. The movement shifted North Carolina’s political discourse toward morality while focusing on individual stories and the damage done to real people by real, and unjust, policies.To date, the financial crisis and the Great Recession have forced a closer look at the financial costs associated with America’s incarceration of 5 percent of the world’s population and 25 percent of the world’s prisoners. Prisons and jails are overcrowded—in the federal system alone, they are operating at 40 percent beyond capacity. Counsel for the poor are under-resourced and over-worked. And across the country, police departments are stretched beyond capacity, having committed resources to America’s misadventure with mass incarceration. To be sure, the financial incentives for progressive change are incredibly powerful. Conservatives and liberals alike have voiced concerns about the expense of continuing down a path of perpetual incarceration. In fact, there has been much discussion over the savings borne of reforms that could be reinvested to improve public safety and police practices, particularly as the costs of prisons and incarceration constitute an increasingly disproportionate share of state and federal budgets. And change—at least in the direction we seem to be slowly moving—is definitely a good thing. Ohio, Georgia, Texas, Kentucky, South Carolina and New York serve as examples of states that have worked to reduce their prison population without sacrificing public safety. Even Congress is getting into the act. Partisan rancor and age-old arguments about the size and role of government have—at least in one instance—have begun to yield to legislative action on mass incarceration. The Smarter Sentencing Act, a piece of bipartisan legislation co-sponsored by Senators Dick Durbin (D-Ill.) and Mike Lee (R-Utah) and supported by senators like Ted Cruz (R-Texas) and Jeff Flake (R-Ariz.), recently cleared the Senate Judiciary Committee, making it ripe for consideration by Congress. The Smarter Sentencing Act would reduce mandatory minimums for federal drug offenses, expand the discretion and authority of federal judges to craft appropriate sentences for low level offenders, and give full effect to Congress’ 2010 reduction of the manifestly unjust and discriminatory 100-to-1 sentencing ratio which treated crack cocaine 100 times more severely than powder cocaine. Currently, nearly 9,000 individuals—almost 90 percent of whom are African-American—are serving federal prison sentences under that old 100-to-1 regime.Yet the impetus for these changes will be short-lived unless America faces the harsh realities—and staggering moral consequences—of its obsession with mass incarceration. For decades, we have responded to a public health problem—drug addiction and abuse—with a criminal justice remedy, failing to fully understand the complex web of conditions that spur drug abuse. In Attorney General Holder’s words late last year, we have grown “coldly efficient” at warehousing generations of people—the majority of them young men of color. Stark racial disparities are apparent at every stage of the system, from encounters with police, to the severity of charges sought by prosecutors, to the sentences handed down by judges. These systems have ravaged communities, hurt families and relegated generations to a hopeless form of second-class citizenship, devoid of any real political or economic power.As the dollars once again begin to flow in the wake of the nation’s financial recovery, the real barometer of change will be America’s continued willingness to grapple with its addiction to incarceration and other criminal justice practices that fuel unfairness and calcify discrimination. Hopefully, we will still be willing to do the right thing—not only because it is fiscally prudent, but because it is simply the right thing to do.Theory Skep BadINTERPRETATION: Both debaters must advocate only one evaluative mechanism thatIs a comprehensive theory2. Is capable of entailing obligations, permissions, and prohibitions3. Is not capable of changing to include different arguments than it originally includes as offensewhen arguments are made to indict any part of the evaluative mechanismB is the Violation:The first standard is strat skew-analyticA analyticB analyticSecond, they force me to make contradictory arguments -anaylticNo phil ed - analyticA analyticB analyticC analytic11 Dougherty DS Neg Actor – Attorney GeneralCP text: The Attorney General of the United States ought to abolish plea bargaining in the United States criminal justice system.Michael L. Rubinstein and Teresa J. White 79 “Alaska's Ban on Plea Bargaining,” Law and Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining (Winter, 1979), pp. 367-383 ATOn July 3, 1975, the Attorney General of Alaska, Avrum Gross, issued written instructions forbidding all district attor- neys and their assistants from engaging in plea bargaining. This prohibition extended to all felony and all misdemeanor prosecutions filed as of August 15. They could not offer to re- duce charges or dismiss counts in multiple-count complaints, informations, or indictments as a quid pro quo for guilty pleas. Nor could they request the court to impose any stated sen- tence; they could only recite the facts. The Attorney General announced this new policy in a jurisdiction in which explicit sentence bargaining had been central to the practice of crimi- nal law for as long as most experienced lawyers could recall.CP Reforms (Bibas)CP: The USFG should a. create independent departments composed of investigating magistrates whose role is analogous to a double blind experimental designb. make police departments and prosecutors’ offices appoint devils advocates for moderately serious crimesc. require judges at plea colloquies to review bases carefully with a military court modeld. make crime labs independent with dedicated funding and safeguards to witness tamperinge. impose bail reform that aids defendants and rotates citizen representatives.Solves case – prevents wrongful convictions, bias, and plea overload but improves crime investigations and defense lawyer capabilities. Bibas ’16 (Stephanos Bibas, Professor of Law and Criminology; Director, Supreme Court Clinic, University of Pennsylvania Law School, “Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops” William and Mary Law Review, VOLUME 57 NO. 4, 2016)-DSTo make plea bargaining more accurate, the system needs actors who are not hired, rewarded, or promoted for racking up convictions to be more actively involved. This goal requires developing independent departments or bodies outside the core institutions of police departments and prosecutors’ offices, new bodies whose missions are not tied to arrests and convictions. Foremost among the new independent bodies would be investigating magistrates. A judicial official, such as a magistrate, would take an active role in investigating, following up leads, sharing discovery, and framing the issues for potential adjudication. With the advent of FaceTime, Skype, and similar electronic communications, magistrates can interview many possible witnesses and review documents and records without leaving their chambers. The parties could suggest various witnesses, pieces of evidence, and lines of inquiry, and the magistrate could dig into and test each one. This alternative would pool efforts, greatly compensating for defense lawyers’ limited time and attention to pursuing leads and alibis. It would also limit each side’s ability to hide unfavorable evidence or spin a witness’s story, as the magistrate would record the fruits of the investigation for the use of both sides. Investigating magistrates could also take prompt depositions of victims, witnesses, and even the many defendants who waive their Miranda rights. After all, the defendant is generally the person who knows the most about the case. At the stationhouse, soon after arrest, an on-call magistrate could question the suspect. Statements would be audio- and video-recorded. Investigators would draw natural inferences from silence, or pin down a suspect’s alibi and check it out promptly. Magistrate questioning would improve upon police questioning, which on occasion lets slip incriminating details and results in some false confessions.58 The magistrate’s involvement would be analogous to a double-blind experimental design; the magistrate is less likely to bias the outcome because he is not motivated to tally arrests and does not know the secret details of the crime.59 Police departments and prosecutors’ offices could also appoint designated devil’s advocates for moderately serious cases. The advocate’s job would be to argue the weaknesses in each case, so police and prosecutors should carefully consider the other side. Psychology studies find that forcing a decision maker to “consider the opposite” is perhaps the best way to combat various psychological heuristics and biases.60 It is hard to know how effective these advocates would be, however, at swimming upstream against the dominant culture within each office, just as internal affairs divisions have difficulty pushing back against internal misconduct.61 Prosecutors could also borrow from the playbook of former New Orleans District Attorney Harry Connick, Sr. They could institute hard-screening units, staffed by experienced trial attorneys, to speak with the witnesses and probe the weaknesses of each case before committing to charge and prosecute it.62 Insisting on more evidence up front, before the office has committed itself to prosecute, delays the onset of tunnel vision and the confirmation bias, which leads prosecutors to interpret most of the evidence as supporting the initial charging decision.63 Stricter screening also leads prosecutors to decline about half of the charges received, reserving prosecution for the strongest cases—those in which defendants are least likely to be innocent.64 Supervisory prosecutors could also create formal avenues for defense lawyers to make legal and normative arguments on behalf of their clients, much as well-connected ex-prosecutors already do informally.65 As Jerry Lynch explains, allowing appeals of prosecutors’ charging and plea-bargaining decisions can force them to justify their offers and weigh countervailing considerations ex ante.66 Judges can also be more active before and at plea colloquies. Al Alschuler and I have previously proposed relaxing the stringent judicial ban on all participation in plea discussions to allow judges to counterbalance prosecutors’ unilateral offers and threats.67 Being more active need not mean sacrificing neutrality.68 If a defendant chose to reject a judge’s advice to plead, the case could automatically be reassigned to a different judge for trial.69 The late Bill Stuntz proposed requiring judges at plea colloquies to review guilty pleas’ factual bases very carefully, with little deference.70 Military courts already do this by reversing pleas whenever they are improvident.71 Relatedly, I have supported banning Alford and nolo contendere pleas to ensure that the judge has unequivocally verified the defendant’s guilt.72 Forensic and scientific experts can also be more inquisitorial. Crime labs can be moved out of police departments to become independent agencies or offices within the judiciary.73 Courts can make greater use of their existing authority to appoint neutral experts, beholden to neither side, to test ballistics, drugs, biological evidence, mental illness, and other forensic issues.74 2. More Vigorous Defense One of the best solutions to the problem of inadequate defense would be to greatly increase defender funding and greatly reduce caseloads.75 This has long proven politically infeasible, however, so for the moment, I set it aside.76 More modestly, defenders could at least receive dedicated funding for private investigators and forensic testing. Given the popularity of crime dramas such as CSI,77 forensic funding is less politically vulnerable to the charge that it gets guilty defendants off the hook, because the results seem more neutral and scientific.78 Thus, it might well be more politically palatable than an overall funding increase. 79 Also, police and prosecutors should greatly expand their information sharing with defense lawyers early on, disclosing not only exculpatory material (required by Brady and Giglio),80 but also most of the inculpatory material.81 This change would result in something much closer to an open-file discovery system in advance of plea bargaining, except that there would be safeguards against witness tampering.82 For instance, in organized crime, gang, and drug cases, witnesses’ names and addresses might not be disclosed at all, or their statements might be shown to defense counsel under strict protective orders against sharing those names with their clients.83 Witness statements might also be locked in through videotaped depositions subject to cross-examination, so the statements would be admissible regardless, and there would be no incentive to tamper later.84 Bail reform would help defendants to consult with and assist their defense lawyers in investigating their cases. Greater use of ankle bracelets and GPS monitoring would relieve pressure to plead guilty, while freeing up defendants to serve as their own private investigators, locating alibi and other favorable witnesses.85 Moreover, many innocent defendants probably plead guilty to misdemeanors in exchange for time served so they can just go home.86 Bail reform that reduces or eliminates monetary bail for minor crimes would lessen instances of the most common wrongful convictions.87 3. Better Normative Evaluation Finally, we could create or resurrect various structures for ensuring some focus on normative issues—whether a defendant deserves punishment, and if so, how much.88 I have suggested letting citizen representatives rotate through police and prosecutors’ offices.89 Normative grand juries, plea juries, or restorative sentencing juries could inject lay community voices into serious cases, ensuring that charges and punishments do not deviate too far from the community’s shared sense of justice.90 Whatever the institution, the goal is some check to force a fresh, critical look without the legal blinders that often push cases toward foreordained convictions and punishments.CP ReformsCounterplan text: The United States Federal Government ought to institute the following court reforms:Guidelines: Require written plea agreements and records of them2. Critical Rights: Enforce important rights which the defendant has, things like the right to DNA testing frequently get ignored through waivers3. Open-File Discovery Rules: Mandate that prosecutors disclose a minimum of key plea criteria4. Judicial Oversight: Empower judges to strike plea bargaining processes considered coercive5. Limit Plea Discounts: Place limits on the sentences prosecutors are allowed to bargain with in exchange for a guilty pleaTurner ’17 / Turner, Jenia Iontcheva, Plea Bargaining (March 9, 2017). Academy For Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming; SMU Dedman School of Law Legal Studies Research Paper No. 348. Available at SSRN: KDMost of the above proposals address distinct problematic aspects of plea bargaining. They ought to be considered for adoption not in isolation, but as part of a comprehensive package that aims to ensure that plea bargaining produces just and accurate outcomes. 1. Require Written Plea Agreements Perhaps the easiest plea bargaining reform for legislators to undertake is requiring that plea agreements be placed in writing and entered into the record. As noted earlier, several jurisdictions have already adopted such requirements. They help ensure that defendants receive notice of the terms of the agreement, allow for a more informed judicial review of the plea, and make the process more transparent to the public. The California Judicial Council has created a plea form that lists a number of direct and collateral consequences that might follow a guilty plea and invites the parties to identify which of these consequences apply to their case. It also outlines rights that the defendant is waiving by pleading guilty and provides space for the parties to list other terms of the agreement. This form can serve as a blueprint for other jurisdictions.121 With respect to placing plea agreements on the record, the Maryland rule offers a good model: “All proceedings pursuant to this Rule, including the defendant's pleading, advice by the court, and inquiry into the voluntariness of the plea or a plea agreement shall be on the record. If the parties stipulate to the court that disclosure of the plea agreement or any of its terms would cause a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment, the court may order that the record be sealed subject to terms it deems appropriate.”122 In cases where cooperating defendants might frequently be subject to retaliation (e.g., organized crime cases), the recording requirement may be modified or even eliminated. The federal system is currently studying options for balancing these interests in cases where the safety of cooperating witnesses might be compromised.123 2. Prohibit Waivers of Critical Rights Courts or legislatures should prohibit the parties from negotiating waivers of several key rights that help protect the fairness and accuracy of plea bargains—the right to appeal the validity of the guilty plea and the accompanying sentence, the right to discovery, the right to subsequent DNA testing, and the right to effective assistance. Some jurisdictions already restrict or prohibit such waivers, but there is a troubling increase in the waivers negotiated in other systems, especially the federal. These waivers undermine critical protections against uninformed and unfair plea bargains. To restore a measure of due process in plea bargaining, it is critical to prohibit their use by statute, case law or ethical rules. 124 At the very least, prosecutor’s offices ought to restrict the negotiation of such waivers except in special circumstances requiring supervisory approval. 3. Provide Broad Pre-Plea Discovery and Ensure that Defense Attorneys Have the Time and Resources to Review It To ensure that innocent defendants do not plead guilty and to improve the fairness of plea bargains, legislatures should also adopt broad pre-plea discovery.125 Specifically, discovery rules should be amended to require prosecutors to disclose to the defense, before a guilty plea, at a minimum, the following types of evidence: 1) impeachment and exculpatory evidence, without regard to its materiality; 2) witness names and statements, redacted as necessary to protect witnesses from risk of harm; and 3) police reports, again redacted as needed to protect the safety of witnesses. A number of states have already adopted such rules; 126 some, like North Carolina and Texas, have gone even further and adopted open-file pre-plea discovery.127 The evidence so far suggests that broad discovery can be implemented at a reasonable cost and without undue hardship to witnesses. It is the first step toward ensuring that parties are negotiating fair, wellinformed, and factually based plea bargains and that innocent defendants are not coerced into pleading guilty. For open-file discovery to have its intended positive effects, defense counsel must have the time and resources to review and investigate the facts revealed through discovery.128 Open file discovery therefore must be coupled with reforms that ensure adequate funding of criminal defense.129 Legislators, courts, and prosecutors’ offices should also strictly limit or entirely prohibit “exploding” offers. Such offers prevent defendants and their counsel from adequately evaluating the evidence disclosed and conducting further investigations if needed, before making a decision whether to plead guilty or proceed to trial. Therefore, states may require (as Louisiana as done) that guilty pleas be accepted only after a certain period has passed since arrest130 or (as in Texas) that prosecutors make discovery available to the defense before a court can accept a guilty plea. 131 Prosecutors’ offices could also consider adopting internal protocols that discourage “exploding offers.”132 4. Strengthen Judicial Oversight of Plea Bargains and Guilty Pleas Judicial participation in plea negotiations allows a neutral party to assess the terms of the plea bargain and the facts of the case at a point in the proceeding when such oversight can make a real difference. A number of states permit such participation, and recent qualitative studies suggest that it is perceived to provide greater certainty, fairness, and much-needed oversight of the plea bargaining process. The risk of judicial coercion can be minimized through procedures that allow a different judge to preside over trial when plea bargaining falls apart.133 Legislators should therefore expressly permit judicial participation in plea negotiations, but require judicial recusal if a case proceeds to trial after negotiations fail. At a minimum, legislators should demand that judges conduct a more searching inquiry into the facts underlying the guilty plea and accompanying agreement. Judges should not rely merely on factual stipulations or summaries of the evidence presented by the prosecution, but should question the defendant and review any available materials to ensure that the conviction and the proposed plea agreement reflect the true facts of the case. Military courts—as well as courts in continental European systems that have adopted plea bargaining—engage in more thorough vetting of the facts before accepting guilty pleas, and they can offer helpful guidance for civilian U.S. jurisdictions.134 5. Adopt Limits on Plea Discounts Courts and legislatures should also limit the charging and sentencing concessions that prosecutors can offer in exchange for a guilty plea. Enormous discounts heighten the risk of innocent persons pleading guilty and may produce unjust sentencing disparities. Legislatures can address this problem by limiting plea discounts to no more than a third of the expected post-trial sentence; alternatively or in addition, courts can use any sentencing discretion they have to reduce discounts that are more than 30-35.135 In many U.S. jurisdictions today, prosecutors can circumvent plea discount caps through their charging decisions. But the experience of foreign systems like England and Germany suggests that such limits can be effective if coupled with broader judicial discretion to scrutinize charges and impose proportionate sentences. For that reason, policymakers should consider this proposal in tandem with ideas for comprehensive reform of the criminal justice system. Excising overlapping criminal statutes—a stated goal of reformers—would constrain prosecutorial discretion to evade plea discount limits through charge bargains. Reducing sentencing severity and restoring judicial discretion over sentencing can also help courts ensure that plea discounts remain reasonable. Finally, chief prosecutors themselves can also take the initiative and adopt internal regulations that limit the size of plea discounts line prosecutors can offer. The proposals above offer a range of practical solutions that can help make plea bargaining fairer, more transparent, and more honest. Given the central place of plea bargaining in our criminal justice system, any serious reform of the process ought to consider them.DA CrimePlea bargaining is the lynchpin of maintaining low level informants for drug cases, turns incarcerationNatapoff 8 (Natapoff, Alexandra, served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. "Deregulating Guilt: The Information Culture of the Criminal System." Cardozo Law Review 30.3 (2008): 965-1021) AXY The remainder of this piece focuses on the use of criminal informants, a low-tech law enforcement technique that has become increasingly influential in the investigation of drug and street crime, conspiracy, corporate fraud, and, most recently, terrorism. The practice dramatically illustrates the difficult trade-offs inherent in law enforcement discretion, and has altered many aspects of investigation as well as plea bargaining and sentencing. Informant use spans all three informational spheres and affects numerous aspects of the criminal system’s information culture: from its significance as an investigative tool, to its use as a plea bargaining technique, as well as its impact on Supreme Court doctrine. Taken together, these characteristics reveal a complex and troubling informational dynamic in tension with many of the system’s legitimating precepts of informational regulation. VI. CRIMINAL INFORMANTS: THE DEREGULATION OF GUILT The dominance of plea bargaining in conjunction with the war on drugs has made the use of criminal informants a central engine of the criminal justice system.114 Nearly every drug case involves a snitch, and drug cases represent an ever larger proportion of both state and federal dockets. As U.S. District Judge Marvin Shoob once complained, “I can’t tell you the last time I heard a drug case of any substance in which the government did not have at least one informant. . . . Most of the time, there are two or three informants, and sometimes they are worse criminals than the defendant on trial.”115 Moreover, informants are used in the investigation, prosecution, and/or sentencing of every type of offense, from child pornography to antitrust to burglary.116 As the use of informants becomes an increasingly common investigative and case management tool, the impact of the official practice of trading information for liability with criminals becomes of central importance for understanding the system’s changing information culture.117 Criminal informants—i.e., criminal offenders who receive lenient treatment because of their cooperation with the government118—are a longstanding and important part of the criminal system. Certain kinds of cases—drug conspiracies, antitrust, corporate fraud, terrorism—are difficult to investigate or prosecute without them, as the government is in a poor position to obtain incriminating information without inside help. Some kinds of information, for example, are only possessed by participants. Moreover, informants are procedurally simple and cheap. For example, while the government can apply for a wiretap order under Title III, it needs to show probable cause, and the resulting order will include time and other limitations. Alternatively, the government can skip the warrant process altogether and get an informant to wear a wire, without having to show probable cause and without temporal or spatial restrictions.119 Their usefulness and ease have thus made informants a staple of drug and other investigations. Drug trafficking funnels bank into money laundering practicesInsulza 15 (José Miguel Insulza, Chilean politician who served as Secretary General of the Organization of American States from 2005 to 2015,“The Drug Problem in the Americas”, Organization of American States, ) TSThe illegal drug economy needs to cover up the illicit origin of its assets and flows, in order to bring them into the legal economic system. Funds generated in the illegal drug economy enter the legal economy through money laundering, which comprises a set of activities within and outside the financial system aimed at legitimizing ill-gotten gains. A variety of approaches can be used to launder drug proceeds into the formal financial system. These include over-invoicing imports, purchasing open system prepaid cards, exchanging digital currencies, sending money through more than 200 secure online payment systems, and laundering money through cash-intensive businesses—such as hotels, casinos, and construction—that are controlled by organized criminal groups.57 Additionally, drug purchases can be laundered through purchasing and reselling real estate, vehicles, and other luxury goods. Even when various financial regulations are in place, records of property transactions often remain scattered across public notaries and are difficult to trace, making real estate a favored method both for consuming and laundering drug proceeds.58 While there is no agreement as to the volumes of illicit funds fed into the system, a broad consensus does exist as to the corrupting and distorting power of those funds. Given the multiplicity of players involved, the complete absence of transparency in their transactions, and the continually shifting mechanisms devised, the magnitude of the problem is hard to gauge. Furthermore, it is important to mention that although the illegal drug economy is one of the principal drivers of money laundering, this practice comprises multiple and complex illicit activities, including the bribing of government officials and tax evasion. From a security perspective, money laundering helps criminal organizations penetrate different spheres of society, besides wielding enormous power to corrupt civil servants and private sector actors. Money laundering drags “legal” economic agents into illegal activities. It fuels and boosts direct and indirect relations between a number of actors, generating “grey” areas in which apparently legal players take part in clearly illegal actions. Traditionally, the financial sector, and banks in particular, have been used to launder assets. The nature and diversity of the services provided by this sector permit maneuvers that can swiftly and safely channel funds generated by criminal activities, while hiding the origin of the proceeds. However, in response to the implementation of prevention systems in the financial sector, the organizations involved in money laundering have diversified their mechanisms, procedures, and flows and are now using other economic sectors. Currently, building on experiences of cases detected all over the world, prevention systems have been incorporated into a large number of sectors, such as insurance companies, securities brokers, foreign exchange dealers, remittance firms, casinos, minerals and precious stones merchants, real estate, and among independent professionals, such as notaries, accountants, and attorneys. Money laundering triggered by the illegal drug economy has detrimental effects on the economy, social development, and democratic governance. Although money laundering is a crime that often goes unnoticed, its consequences run deep and extend beyond their impact on the economy. In underdeveloped areas with little state presence, the injection of funds stemming from the illegal drug market has a powerful impact, heaping goods and services on segments of the population hitherto cut off from traditional, legal economic circuits. Under such circumstances, organized crime groups develop ties with the communities, who view their activities and investments as opportunities for social and economic integration. The dynamics of this relationship trigger “perverse” development, based on illegally acquired funds and the presence and control of criminal factions that impose order through threats and violence. In this scenario, traditional economic activities are crowded out as being less profitable while those propitious for money laundering and the concentration of resources thrive. Money laundering is not just tied to illegal drugs. Even if it were possible to diminish the funds derived from that illegal economy, the flow of money from administrative corruption, tax evasion, and other illicit activities—extortion, trafficking in persons, illegal arms sales, the smuggling of migrants, and illegal mining, to name a few—would continue to sustain the mechanisms and channels for concealing the sources of ill-gotten gains. Money-laundering laws tend to be weak. All the evidence suggests that new developments in money laundering are always a step or more ahead of the legal schemes devised to combat it, which means that laws have constantly to be revised and replaced. To make headway on this front, consideration should be given to providing more state resources for investigation and stronger penalties, even though that might involve measures that the financial sector, and even migrants remitting funds to their countries of origin, might find uncomfortable. Here it might be worth contemplating the imposition of criminal sanctions on institutions, and not just individuals, so as to avoid today’s situation in which only low-ranking officers are punished when banks or other financial institutions commit crimes. One of the main reasons why this phenomenon is transnational is that, in most cases, the “legalized” money ends up being deposited and used by head offices in the United States or Europe, not in the those financial institutions’ branches in Latin America or the Caribbean. Therefore, the focus should be on enforcing the law in the countries where the money ends up. Equally important and pressing, when it comes to continual updating of the legal schemes for combating money laundering, is ensuring homogeneity in the legislation of the different countries involved, since discrepancies in this area completely cancel out the investigative and punitive capacities developed in countries with more advanced legislation. The possibility of developing common legal ground, at least in relation to this problem, should be explored.Money laundering leads to economic decline Kumar 12 (Vandana Ajay Kumar, Department of Laws, Panjab University, Chandigarh, “Money Laundering: Concept, Significance and its Impact”, European Journal of Business and Management 4:2) TSThe Money laundering has negative effects on economic development. Money laundering constitutes a serious threat to national economies and respective governments. The infiltration and sometimes saturation of dirty money into legitimate financial sectors and nations accounts can threaten economic and political stability. Economic crimes have a devastating effect on a national economy since potential victims of such crimes are far more numerous than those in other forms of crime. Economic crimes also have the potential of adversely affecting people who do not prima-facie, seem to be the victims of the crime. For example, tax evasion results in loss of government revenue, thus affecting the potential of the government to spend on development schemes thereby affecting a large section of the population who could have benefited from such government expenditure. A company fraud not only results in cheating of the people who have invested in that company but may also adversely affects investors’ confidence and eventually the growth of the economy. The negative economic effects of money laundering on economic development are difficult to quantify, yet it is clear that such activity damages the financial-sector institutions that are critical to economic growth, reduces productivity in the economy’s real sector by diverting resources and encouraging crime and corruption, which slow economic growth, and can distort the economy’s external sector international trade and capital flows to the detriment of long-term economic development. Developing countries’ strategies to establish offshore financial centre (hereinafter OFCS) as vehicles for economic development are also impaired by significant money laundering activity through OFC channels. The negative effects of money laundering activities may be on financial sector, real sector of formal agents such as state, financial institutions and banking sector. Financial sector may get negative effects of money laundering especially financial institutions including banking and non –banking financial institutions (NBFIs),and equity markets- may directly or indirectly be affected. Basically,these institutions facilitate concentration of capital resources from domestic savings and funds from abroad. These institutions provide impetus to furtherance of investment prospects by providing conducive environment and efficient allocation of these resources to investment projects which contributes substantially to long run economic growth. Firstly the financial institutions are weakened directly through money laundering as there seems to be a correlation between money laundering and fraudulent activities undertaken by employees of the institutions. Similarly, with the increase in money laundering activities, major parts of financial institutions of a state are vulnerable to crime by criminal elements. This strengthens the criminals and other parallel system of money laundering channels. This may lead to the eviction of less equipped competitors and giving rise to monopoly. Customer trust is fundamental to the growth of sound financial institutions, and the perceived risk to the growth of sound financial institutions, and the perceived risk to depositors and investors from institutional fraud and corruption is an obstacle to such trust. Money laundering adversely affects economic growth through the real sector by diverting resources to less productive activities and by facilitating domestic corruption and crime. Money laundering carried out through the channels other than financial institutions includes more “sterile” investments such as real estate, art, antiques, jewelry and luxury automobiles, or investments of the type that gives lower marginal productivity in an economy. These sub optimal allocations of resource give lower level of economic growth which is a serious detriment to economic growth for developing countries. Criminals reinvest their proceeds in companies and real estate with the purpose to make further profits, legal or illegal. Most of these investments are in sectors that are familiar to the criminal, such as bar, restaurant, prostitution. The real estate sector is the largest and most vulnerable sector for money laundering. Real estate is important for money laundering, because it is a non-transparent market where the values of the objects are often difficult to estimate and where big value increases can happen and is an efficient method to place large amounts of money. The price increase in real estate is profitable and the annual profits on real business create a legal basis for income. The real estate has the following features, which make it attractive for criminal money Money laundering activities may impair any country’s economy through the trade and international capital flows.Excessive illicit capital flight from a state may be facilitated by either domestic financial institutions or by foreign financial institutions.That illicit capital flight drains scarce resources specially from developing economies; so by that way economic growth of respective economy is adversely affected58.Money laundering negatively affects trust of local citizens in their own domestic financial institutions as well as trust of foreign investors and financial institutions in a state’s financial institution which ultimately contributes to economic growth. Money laundering channels may also be associated with distortions of a countrys’ imports and exports. As with the involvement of criminal elements on the import side they may use illicit proceeds to purchase imported luxury goods, either with laundered funds or as part of the process of laundering such funds. Such imports do not generate domestic economic activity or employment, and in some cases can artificially depress domestic prices, thus reducing the profitability of domestic enterprises. The integrity of the banking and financial services market place depends heavily on the perception that it functions within a framework of high legal, professional and ethical standards. A reputation for integrity is the one of the most valuable assets of a financial institution. Dangers for the reputation can occur when a country deliberately declares to want to attract ‘criminal money’. If funds from criminal activity can be easily processed through a particular institution-either because its employees or directors have been bribed or because the institution turns a blind eye to the criminal nature of such funds-the institution could be drawn into active complicity with criminals and become part of the criminal network itself. Evidence of such complicity will have a damaging effect on the attitudes of other financial intermediaries and of regulatory authorities as well as ordinary customers. Money laundering not only threatens the financial system of a country by taking away command of the economic policy from the government, but also deteriorates the moral and social standing of the society by exposing it to activities such as drug trafficking, smuggling, corruption and other criminal activities. Money Laundering has become a global problem. Criminals target foreign jurisdiction with liberal bank secrecy laws and weak anti-money laundering regulatory regimes as they transfer illicit funds through domestic and international financial institutions often with the speed and ease of faceless internet transactions. This easy and vast infiltration of Criminal proceeds into world market can be stabilize them and can have a corrupting effect on those who work within the market system. The penetration of criminals into the legitimate markets can also shift the balance of economic power from responsible and responsive entities to rogue agents who have no political or social accountability. In short, when criminal enterprises are able to enjoy the fruits of the criminal ventures, the world market can be destabilized, leaving some countries vulnerable to persuasion and interference by corrupt organization.Economic decline drives conflict and destabilizes deterrence structures --- results in nuclear war Stein T?nnesson 15, Research Professor, Peace Research Institute Oslo; Leader of East Asia Peace program, Uppsala University, 2015, “Deterrence, interdependence and Sino–US peace,” International Area Studies Review, Vol. 18, No. 3, p. 297-311Several recent works on China and Sino–US relations have made substantial contributions to the current understanding of how and under what circumstances a combination of nuclear deterrence and economic interdependence may reduce the risk of war between major powers. At least four conclusions can be drawn from the review above: first, those who say that interdependence may both inhibit and drive conflict are right. Interdependence raises the cost of conflict for all sides but asymmetrical or unbalanced dependencies and negative trade expectations may generate tensions leading to trade wars among inter-dependent states that in turn increase the risk of military conflict (Copeland, 2015: 1, 14, 437; Roach, 2014). The risk may increase if one of the interdependent countries is governed by an inward-looking socio-economic coalition (Solingen, 2015); second, the risk of war between China and the US should not just be analysed bilaterally but include their allies and partners. Third party countries could drag China or the US into confrontation; third, in this context it is of some comfort that the three main economic powers in Northeast Asia (China, Japan and South Korea) are all deeply integrated economically through production networks within a global system of trade and finance (Ravenhill, 2014; Yoshimatsu, 2014: 576); and fourth, decisions for war and peace are taken by very few people, who act on the basis of their future expectations. International relations theory must be supplemented by foreign policy analysis in order to assess the value attributed by national decision-makers to economic development and their assessments of risks and opportunities. If leaders on either side of the Atlantic begin to seriously fear or anticipate their own nation’s decline then they may blame this on external dependence, appeal to anti-foreign sentiments, contemplate the use of force to gain respect or credibility, adopt protectionist policies, and ultimately refuse to be deterred by either nuclear arms or prospects of socioeconomic calamities. Such a dangerous shift could happen abruptly, i.e. under the instigation of actions by a third party – or against a third party.Yet as long as there is both nuclear deterrence and interdependence, the tensions in East Asia are unlikely to escalate to war. As Chan (2013) says, all states in the region are aware that they cannot count on support from either China or the US if they make provocative moves. The greatest risk is not that a territorial dispute leads to war under present circumstances but that changes in the world economy alter those circumstances in ways that render inter-state peace more precarious. If China and the US fail to rebalance their financial and trading relations (Roach, 2014) then a trade war could result, interrupting transnational production networks, provoking social distress, and exacerbating nationalist emotions. This could have unforeseen consequences in the field of security, with nuclear deterrence remaining the only factor to protect the world from Armageddon, and unreliably so. Deterrence could lose its credibility: one of the two great powers might gamble that the other yield in a cyber-war or conventional limited war, or third party countries might engage in conflict with each other, with a view to obliging Washington or Beijing to intervene.DA Crime (Extra UQ/!)Colombia, Mexico, and US created new efforts against organized crime, cocaine plant destruction is empirically successful. The Associated Press 12/7 (The Associated Press, Abc News, 12-7-2017, "US, Colombia vow to redouble efforts against drug trade," ABC News, )-DS U.S. and Colombian officials vowed Thursday to redouble efforts against drug trafficking as the South American nation contends with a record surge in coca production that has tested the relationship between the two nations. U.S. Attorney General Jeff Sessions met with his Colombian counterpart, chief prosecutor Nestor Martinez, and a delegation from Mexico in the Caribbean city of Cartagena Thursday. The meeting came three months after President Donald Trump threatened to decertify Colombia as a partner in the war against drugs unless the south American nation reverses a rise in coca cultivation. Cultivation of the plant used to make cocaine rose in 2016 to levels unseen in nearly two decades of U.S. eradication efforts, according to a White House report. The prosecutors also discussed money laundering and human trafficking, two issues frequently intertwined with the illegal drug trade. In a short statement after the meeting, Martinez said the three nations would "strengthen cooperation among each other to effectively battle this scourge." "We're gonna make progress," Sessions said after shaking hands with Martinez. Colombia is the U.S.'s staunchest ally in the region and one of the largest recipients of U.S. foreign aid. The U.S. has spent more than $10 billion in counter-narcotics work in Colombia over the course of nearly two decades. The amount of land devoted to coca cultivation had steadily declined but began rising again in 2014, according to the United Nations Office on Drugs and Crime. The biggest jump was seen last year, when the agency registered a 52 percent increase in the area where coca is grown. The rise coincided with both a decision by President Juan Manuel Santos to stop the use of crop-destroyed herbicides due to health concerns in 2015 and a peace deal that provides benefits to coca farmers who agree to substitute their crops. Colombian officials have vowed to eradicate 100,000 hectares of coca this year through a combination of forced and voluntary destruction of the plants. Authorities announced this week they had met the goal of eradicating 50,000 hectares through force. Independent analysts do not expect they will succeed in reaching that same number through voluntary eradication. Exacerbates wealth inequality for minorities, turns case. Pfeffer et al 14 (Fabian T. Pfeffer, Ph.D. in sociology from the University of Wisconsin-Madison, Research Assistant Professor at the Survey Research Center, Institute for Social Research and serves as Co-Investigator of the Panel Study of Income Dynamics, Sheldon Danziger, and Robert F. Schoeni, “Wealth Disparities before and after the Great Recession”, ) The collapse of the labor, housing, and stock markets beginning in 2007 created unprecedented challenges for American families. This study examines disparities in wealth holdings leading up to the Great Recession and during the first years of the recovery. All socioeconomic groups experienced declines in wealth following the recession, with higher wealth families experiencing larger absolute declines. In percentage terms, however, the declines were greater for less-advantaged groups as measured by minority status, education, and pre-recession income and wealth, leading to a substantial rise in wealth inequality in just a few years. Despite large changes in wealth, longitudinal analyses demonstrate little change in mobility in the ranking of particular families in the wealth distribution. Between 2007 and 2011, one fourth of American families lost at least 75 percent of their wealth, and more than half of all families lost at least 25 percent of their wealth. Multivariate longitudinal analyses document that these large relative losses were disproportionally concentrated among lower income, less educated, and minority households. The Great Recession caused an unprecedented decline in wealth holdings among American households. Between 2007 and 2009, average housing prices in the largest metropolitan areas fell by nearly a third as measured by the Case-Shiller Index. Stock prices also collapsed, with the Dow Jones Index losing nearly half of its value between mid-2007 and early 2009 (see Figure A. 1 in Appendix A). These developments were exacerbated by a rapid rise in the unemployment rate from 5 percent in December 2007 to 10 percent in October 2009 and a large reduction in labor market earnings due to increased unemployment, wage cuts, and furloughs. The enormity of wealth disparities and their growth prior to the Great Recession is well documented (Wolff 1995; 2006; Keister 2000; Klevmarken et al. 2003). As demonstrated below, in 2003 households at the 90th percentile of the net worth distribution held 73 times the net worth of households at the 25th percentile. Similarly, households in the highest income quintile had median wealth that was 45 times the median of households in the lowest income quintile. And whites had median wealth that was over six times that of nonwhites. These disparities dwarf disparities in individual earnings and household incomes (Keister and Moller 2000; Oliver and Shapiro 1997; Scholz and Levine 2004). This study assesses the extent to which the Great Recession altered the distribution of wealth through 2011. We begin by using repeated cross-sectional data from two widely-used surveys, the Panel Study of Income Dynamics (PSID) and the Survey of Consumer Finances (SCF), to document changes in wealth inequality. Motivated by hypotheses that the Great Recession affected some groups more than others, we further examine whether pre-existing disparities in wealth across socioeconomic groups were exacerbated. We then make use of the longitudinal nature of the PSID data and examine wealth changes for individual households over time. We determine whether the ranking of households based on their wealth after the recession was similar to the ranking prior to the recession, i.e., whether –despite the dramatic declines in wealth due to the Great Recession –the households that were at the top (bottom) of the wealth distribution before the crash remained at the top (bottom) through 2011. Lastly, we estimate the magnitude of wealth losses – and gains – for individual households and identify the households characteristics that were associated with wealth losses to learn what types of household were able to weather the recession more and less effectively.DA Gerrymandering / Court LegitimacyKennedy is the swing vote on gerrymandering – oral arguments show he’s leaning Whitford – but it’ll cost him capitalLevinson 10/13/17 (Jessica, professor at Loyola Law School and president of the Los Angeles Ethics Commission, Fight Over Gerrymandering Is Year's Most Important Court Case, )Importantly, Justice Anthony Kennedy, the court’s swing vote in 2004 (as he is today), left the door open to the possibility that courts can hear and rule on these cases.If the Court believes that it can review these political disputes, the second question the Court will consider is the standard that should be applied to determine when partisan gerrymandering goes too far and crosses a constitutional line.This case, like so many others, likely rests in Justice Kennedy’s hands, and after oral arguments there may be some reason for optimism. Justice Kennedy had sharp questions for those defending Wisconsin’s legislative lines, but none for those challenging them. Justice Sonia Sotomayor had perhaps the most stinging question for those defending Wisconsin’s legislative lines – “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?” The attorney’s response was a jumbled mess of words amounting to nothing.At the end of oral arguments it appeared that the four conservatives members of the Court — Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch — would conclude that federal courts cannot resolve challenges based on partisan gerrymandering, and the four liberal members of the Court — Justices Ginsburg, Breyer, Sotomayor and Kagan would.Now the voting rights of millions of Americans may rest with that one vote, that of Justice Kennedy.If a majority of the court adheres to the view that federal courts should not or cannot review claims of partisan gerrymandering, that would be a deeply dissatisfying result for many of us who believe the judicial branch has a responsibility to protect voting rights.In addition, before even one vote is cast in 2018 — or any U.S. election going forward — such a verdict would essentially hand over the reins of power to those who can draw the most politically advantageous district lines — not those who hold the most popular views. A representative democracy works when the people pick the voters pick their representative, not the other way around.Whitford is a uniquely political case Thompson 10/11/17 (Bruce, writer for UrbanMilwaukee, John Roberts’ Nightmare, 2017/10/11/data-wonk-john-roberts-nightmare/)At the October 3 US Supreme Court hearing on Gil v Whitford, the challenge to the Wisconsin legislative gerrymander, Chief Justice John Roberts expressed the concern that the public would view the court’s decision as favoring one party over the other. “And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”That is not a new theme from Roberts. He and other justices decry the notion that they are increasingly considered “politicians in robes,” who use the courts to pursue a partisan and ideological agenda. In his confirmation, now-Justice Neil Gorsuch rejected this view: “If I thought that were true, I’d hang up the robe.”Increasingly, news articles, in describing controversial court decisions, list the president—whether Democratic or Republican—who appointed each judge. It is disturbing how often the judge’s vote can be predicted from that tabulation.Like Bush v Gore, the partisan stakes are higher than normal in Gil v Whitford. In Bush v Gore, the Court decided who–the Republican or the Democrat–would become president. In Gil v Whitford, it will decide whether Wisconsin returns to competitive elections or the Republican Party retains its legislative monopoly. However the Court rules, many Americans will believe the justices voted according to their partisan preferences.The plan requires an overruling of precedentDarryl K. Brown, Judicial Power to Regulate Plea Bargaining, 57 Wm. and Mary L. Rev. 1225 (2016), bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges and in effect, the law from any meaningful role.Overruling tanks capitalMerrill 94 (Thomas, Professor of Law at Northwestern School of Law, Harvard Journal of Law and Public Policy, page 137)The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey, (2) decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court’s power lies in its legitimacy, and that its legitimacy is “a product of the substance and perception” that it is a court of law. (3) Thus, frequent overrulings are to be avoided, because this would “overtax the country’s belief’ that the Court’s rulings are grounded in law. (4) Especially when a controversial ruling like Roe v. Wade (5) is involved, a decision to overrule should be avoided at all costs because this would give rise to the perception that the Court is “surrendering to political pressure” or “overruling under fire.” (6) Such a perception, in turn, would lead to “loss of confidence in the judiciary.” (7) Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.Necessary to save global democracy – court ruling can solveThompson 8/23/17 (Bruce, former member of the Milwaukee Board of School Directors and writer for Urban Milwaukee, Right Wing Seeks to End Democracy?, 2017/08/23/data-wonk-right-wing-seeks-to-end-democracy/)It is no secret that democracy is under stress in the early 21st century, both in America and globally. The US has a president who repeatedly expresses his admiration for foreign dictators and extremist groups. The fragility of democracy is underlined by posts on the home website of Freedom House as I write this column. Internationally it reports on the “illegal grab of legislative powers by the constitutional assembly”—“part of Venezuelan President Maduro’s efforts to silence all dissent and shore up a dictatorship,” the imprisoning of democracy activists in Hong Kong, the assault on press freedom in Poland, and the new strategies of repression in democratic countries themselves. How does democracy end? Classically, with a military coup. But in a disturbing number of cases, it commits suicide, as a democratically-elected group, once in power, changes the rules to entrench itself in power. In a recent court brief two eminent political scientists describe one of the entrenchment tools, partisan gerrymandering: Left unchecked, partisan gerrymandering fundamentally undermines our democracy. It is a basic tenet of fair elections that the parties must play by the same rules. But a partisan gerrymander violates that core principle: Under a successful partisan gerrymander, one party needs fewer votes to win representation than the other party. A partisan gerrymander places unequal burdens on voters’ opportunity to elect their representatives, based on the party with which they associate. And where the partisan gerrymander is unresponsive to electoral shifts, only the courts can provide a remedy. Despite this threat to democracy, groups that support partisan gerrymandering–at least when done for the benefit of the party they support—are easy to spot. Below is a list of the groups that submitted “friend of the court” briefs in support of the Wisconsin gerrymander, Act 43. These were sent to the US Supreme Court in anticipation of its October 3 argument. Groups Who Support the Wisconsin Gerrymander American Civil Rights Union Judicial Watch, Inc. and Allied Educational Foundation Majority Leader and Temporary President of the New York State Senate and members of the Majority Coalition National Republican Congressional Committee Republican National Committee Republican State Leadership Committee Southeastern Legal Foundation States of Texas, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina and Utah Tennessee State Senators Legacy Foundation Wisconsin Institute for Law and Liberty Wisconsin Manufacturers and Commerce Wisconsin State Senate and Wisconsin State Assembly That the two dozen states and other organizations represented were willing to stand up for gerrymandering represents the triumph of partisanship over devotion to democracy. While several of the organizations represented describe themselves as “non-partisan,” it is doubtful they would have endorsed a Democratic-favoring gerrymander. (The briefs themselves can be downloaded from the Campaign Legal Center website.) I find this a very depressing collection. Much of the right-wing seems to have adopted the attitude that gaining and holding power is more important than respect for democracy. In ruling against Act 43, the federal district court adopted a three-part test to identify whether a redistricting plan is an unconstitutional partisan gerrymander. It concluded “that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” In his appeal to the US Supreme Court, Wisconsin Attorney General Brad Schimel complained that this test came as a surprise to him. “Are Defendants entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed?” he asked. If it truly came as a surprise, Schimel is confessing to incompetence at reading the direction the court was likely to take. What additional evidence could Schimel offer? Once the court adopted its three-prong test, Act 43 was doomed. Wisconsin’s gerrymander fails all three parts of the court’s test. This was clear from testimony of the very people who had worked to develop the district maps. In drafting Act 43, the Wisconsin legislature’s Republican leadership hired Keith Gaddie, a political scientist from the University of Oklahoma, to assess the maps drawn by staff members of the Republican caucus. Gaddie testified that he measured each map’s conformance to “the so-called good government principles of redistricting,” such as the appropriate racial and/or political make-up of legislative and congressional districts in Wisconsin, compactness, and the integrity of county and city boundaries. He also built a regression model that allowed him to test the partisan makeup and performance of districts in the Assembly maps that the drafters passed on to him. The staff members then proceeded to choose the map with the greatest Republican advantage, according to Gaddie’s analysis. Given this history, it is hard to see what additional evidence would allow Act 43 to pass the circuit court’s test. Among the amicus briefs to the US Supreme Court is one from two political scientists, Bernard Grofman of the University of California at Irvine and Keith Gaddie. Both have extensive experience with redistricting cases, in addition to Gaddie’s role as a consultant on Act 43. Having studied redistricting from both sides, they are no fans of partisan gerrymandering. The quote with which I opened this column is from their brief. Grofman and Gaddie argue that partisan gerrymandering has become steadily easier to quantify. This is partly because of advances in political science and partly due to vastly increased computer power allowing the quick generation of hundreds of possible district maps. This same advance increases the ability to create a map that favors one party over the other, without resorting to the odd-shaped district that were typical of gerrymanders of the past. Grofman and Gaddie propose a three-part standard, similar but not identical to the standard used by the circuit court. The first element is partisan asymmetry, “based on the idea that a citizen’s representational rights must not depend on the party with which he chooses to affiliate.” The next two graphs demonstrate how much Act 43 increased Wisconsin asymmetry to favor Republicans. The first is based on the 2008 election whose districts were designed by a panel of federal judges. It is not perfectly symmetric; if each party won half the votes, Democrats would have won 48 seats, compared to 51 for the Republicans. Seats Won as of Vote--2008 Seats Won as of Vote–2008 Compare this to the story told by the three statewide elections since Act 43. The gerrymander opened a huge gap between the ability of Republicans and Democrats to convert their votes into seats. With each party receiving half the votes, Republicans will win around 60 seats to Democrats’ 39. Seats Won as of Vote Post-gerrymander Seats Won as of Vote Post-gerrymander The second element in Grofman and Gaddie’s proposed test is lack of responsiveness. When voters change their allegiances, does their representation also change? The plot of the post-Act 43 elections shows the durability of the Republican advantage. It persisted whether the election favored Republicans (2014), favored Democrats (2012), or was almost tied (2016). The third element in Grofman and Gaddie’s proposed test is causation. It requires that the partisan bias must be intentional, rather than the natural byproduct of ordinary districting practices or of chance. The history of Act 43, with a steady progression of maps with a greater and greater partisan bias towards Republican domination would seem to settle the question of causation. After reviewing past gerrymandering cases, Grofman and Gaddie conclude that “the statistical tools for detecting and measuring partisan gerrymanders have improved greatly since the Court last considered partisan gerrymandering in LULAC (in 2006). Courts—assisted by competent experts—can now reliably and accurately identify and measure the impact of partisan gerrymanders.” I find the idea of symmetry an attractive one, because it comports with American democratic values. In contrast to some other countries, such as Russia, we expect courts to not favor people based on how the currently governing leader views them. This concept is inherent in the quote attributed to John Adams, that we are a “government of laws, and not of men.” It is sometimes argued that turning redistricting over to legislators is an exercise in democracy. Instead as Wisconsin amply demonstrates, it creates an obvious conflict of interest. The steady improvement in measuring partisan bias means that situation will steadily worsen if the courts refuse to intervene. By the same token, this improvement in measurement offers the courts exactly the means they need to manage this threat to democracy.Democracy creates strategic stability in all global hotspots – avoids war and terrorismKasparov 2/16/17 (Garry, Chairman of the Human Rights Foundation, “Democracy and Human Rights: The Case for U.S. Leadership” )The Soviet Union was an existential threat, and this focused the attention of the world, and the American people. There existential threat today is not found on a map, but it is very real. The forces of the past are making steady progress against the modern world order. Terrorist movements in the Middle East, extremist parties across Europe, a paranoid tyrant in North Korea threatening nuclear blackmail, and, at the center of the web, an aggressive KGB dictator in Russia. They all want to turn the world back to a dark past because their survival is threatened by the values of the free world, epitomized by the United States. And they are thriving as the U.S. has retreated. The global freedom index has declined for ten consecutive years. No one like to talk about the United States as a global policeman, but this is what happens when there is no cop on the beat. American leadership begins at home, right here. America cannot lead the world on democracy and human rights if there is no unity on the meaning and importance of these things. Leadership is required to make that case clearly and powerfully. Right now, Americans are engaged in politics at a level not seen in decades. It is an opportunity for them to rediscover that making America great begins with believing America can be great. The Cold War was won on American values that were shared by both parties and nearly every American. Institutions that were created by a Democrat, Truman, were triumphant forty years later thanks to the courage of a Republican, Reagan. This bipartisan consistency created the decades of strategic stability that is the great strength of democracies. Strong institutions that outlast politicians allow for long-range planning. In contrast, dictators can operate only tactically, not strategically, because they are not constrained by the balance of powers, but cannot afford to think beyond their own survival. This is why a dictator like Putin has an advantage in chaos, the ability to move quickly. This can only be met by strategy, by long-term goals that are based on shared values, not on polls and cable news. The fear of making things worse has paralyzed the United States from trying to make things better. There will always be setbacks, but the United States cannot quit. The spread of democracy is the only proven remedy for nearly every crisis that plagues the world today. War, famine, poverty, terrorism–all are generated and exacerbated by authoritarian regimes. A policy of America First inevitably puts American security last. American leadership is required because there is no one else, and because it is good for America. There is no weapon or wall that is more powerful for security than America being envied, imitated, and admired around the world. Admired not for being perfect, but for having the exceptional courage to always try to be better. Thank youDA Court Packing (Exec Power)Courts haven’t expanded yet because it’s unnecessary – aff creates court clog, which justifies court expansionBlackman 11-27 (Josh Blackman, Josh is an Associate Professor of Law at the South Texas College of Law in Houston who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of the critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016)) "Republicans Should Not Pack the Courts", accessed from on 12-4-2017 AS Earlier this month, a law professor and his former student urged Republicans to increase the size of the federal judiciary by 33 percent, allowing President Trump to appoint 261 new judges, on a party-line vote if necessary. Like most legal scholarship, this proposal was destined to fall by the wayside, but for the identity of its lead author: Steven G. Calabresi, a law professor at Northwestern University, and the co-founder and chairman of the Federalist Society. Yes, the same Federalist Society that has played an essential role in President Trump’s highly successful judicial-nomination strategy. Were Calabresi’s memorandum in fact the official position of the Society, it would indeed be huge news. But it’s not. Not even close. As a non-profit organization, the Society does not, and indeed cannot, lobby in support of legislation. More foundationally, Calabresi’s position does not have anywhere near the monolithic support in conservative legal circles that editorialists in the New York Times, Washington Post, and Slate would suggest. As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded. Calabresi’s primary argument is that that the administration of justice could be improved by reducing the workload of our increasingly taxed judiciary. No argument there, but the size and scope of the expansion he proposes — whereby a single President could transform the judiciary in short order — is entirely disproportionate to the nature of the problem.This creates new courts and replaces current appointees with trump-selected judgesKlain 11/21 (Ronald A., Georgetown University and Harvard University (born August 8, 1961) Ronald is an American political operative and lawyer who on October 17, 2014, was named for the newly created position of "Ebola response coordinator" or, less officially, Ebola Czar. He served as Chief of Staff to two U.S. Vice Presidents – Al Gore (1995–99) and Joe Biden (2009–11).) "Opinion", accessed from on 12-4-2017 AS/TS- The aff creates a need for a creation of new courts and judiciaries to deal with court clog, justifying plans such as Calabresi’s proposal that creates NEW judiciary vacancies, which will expand the federal judiciary by 50 percent with Trump appointees under a single year. Also replaces current positions inside regulatory agencies with Trump-selected judges.Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same. The “outer turkey” in the plan is the ongoing Trumpification of the courts. In the final two years of Obama’s presidency, Senate Republicans engaged in tenacious obstruction to leave as many judicial vacancies unfilled as possible. The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, “the number of judicial vacancies .?.?. on the table when Trump was sworn in was unprecedented,” White House Counsel Donald McGahn recently boasted to the conservative Federalist Society. Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58. Senate Republicans are racing these nominees through confirmation; last week, breaking a 100-year-old tradition, they eliminated the “blue slip” rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, 1 in 8?cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050. But even this plan — to fill approximately 150 judicial vacancies before the 2018 elections — is not enough for conservatives. Enter the next element of the court-packing turducken: a new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled “Undoing President Barack Obama’s Judicial Legacy”), Calabresi proposes to pack the federal courts with a “minimum” of 260 — and possibly as many as 447 — newly created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent. Never mind that Republicans saw no urgency in filling judicial vacancies while Obama was president. Never mind that they ignored pleas from conservative Chief Justice John G. Roberts Jr. to fill positions in courts facing “judicial emergencies.” Now, conservatives want a 30 to 50 percent increase in the number of federal judgeships. And they have a clear idea of who should fill this massive number of new posts: “President Trump and the Republican Senate will need to fill all of these new judgeships in 2018, before the next session of Congress.” Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Donald J. Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump’s nominees to date — more white and more male than any president’s in nearly 30 years — would roll back decades of progress in judicial diversity. But even that isn’t enough for the Turducken Court Packers. They have jammed one more “treat” inside this turkey. Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency, Food and Drug Administration, Federal Communications Commission, and Securities and Exchange Commission, and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life. These new Trump administrative law judges would have vast power over environmental, health and safety, fair competition, communications, labor, financial and consumer regulation for decades. Unlike the existing administrative law judges, selected as nonpartisan members of the civil service, Calabresi’s replacement corps would all be picked in a single year, by a single man: Donald J. Trump. And if this breathtaking transformation of our federal judicial system isn’t jarring enough, Calabresi has one final treat: a proposal that Congress do all of this in the tax-cut bill that Congress is trying to pass before it leaves for the holidays. Progressives need to mount a more cohesive and effective plan to slow down the Trump train of judicial transformation. Otherwise, we’ll have a court-packing turducken for Thanksgiving, and a revolutionary rollback in rights and regulation for Christmas.Republicans support current packing of the courts – squo blockage of democratic judicial appointments and republican leaders pushing for it prove Rosenberg 12-3 (Paul Rosenberg) "GOP's court-packing spree: It's only the beginning", accessed from on 12-4-2017 AS/TS- answers the argument that trump leaves soon – a. this new law would put these people in courts for life, b. ”It’s the last round, and it’s a fight to the finish.” There wouldn’t be a republic worth saving, and c. it goes on a long spiel of how even if republicans do this type of stuff, democratic party doesn’t have the will to take the courts backFor all of Donald Trump’s hollow bluster about his supposed accomplishments, the one place he’s winning bigly is largely overlooked: packing the federal courts as quickly as possible. As Amanda Marcotte wrote here on Nov. 8, “Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, who chairs the Senate Judiciary Committee, have set up a factory-style assembly line for Trump's judicial nominees and are getting them confirmed at a dizzyingly fast rate.” Thanks to GOP obstruction, Trump entered office well-positioned for the task, as Susannah Jacob explained here in August. “When Obama entered office, there were 54 judicial vacancies. President Trump now has the opportunity to fill over 130,” she wrote, adding: “This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware told Business Insider’s Allan Smith. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, have a significant impact on the shape and trajectory of American law for decades.” Trump has the power, Coons said, to bring about “a wholesale change among the federal judiciary.” But if one leading conservative judicial activist gets his way, that will only be the beginning. Federalist Society founder and board chair Steven Calabresi has written a memo (along with recent graduate Shams Hirji) calling on congressional Republicans to massively expand the lower federal courts, a court-packing scheme of breathtaking proportions for the express purpose of “undoing the judicial legacy of President Barack Obama.” This would actually giving Trump the power to appoint far more judges than any president in recent history — and do it before the 2018 midterms. How many judges, exactly? Calabresi has his eye on three distinct categories. First, he’d like to double or perhaps triple the number of appeals court (i.e., circuit court) judges, who are second only in power to the Supreme Court. Trump could then appoint at least as many appeals court judges as all other presidents combined. Second, he wants to add 185 trial (district court) judgeships, which would bring Trump’s appointments to 40 percent of the total. Third, he’d like to replace 158 nonpartisan, agency-appointed administrative law judges (ALJs) with Trump-appointed judges with lifetime tenure. These come from 20 different executive branch regulatory agencies —the EPA, FCC, SEC, etc. — but almost half come from just two: the Department of Labor (41) and the National Labor Relations Board (34), both of which look out for the rights of workers, whom Trump has a long history of exploiting. Allowing this president to appoint these judges would be a classic case of the fox guarding the henhouse. Calabresi realizes he’s asking for a lot, so he also presents a more modest fallback position. Even that one would allow Trump to exceed Obama’s influence in just one-fourth the time in office. Lest you think he’s going soft, Calabresi has also proposed that Republicans pass his proposal as part of the GOP tax plan — something that still could happen through the conference process. Needless to say, the plan has drawn some sharp criticism, including high-profile pieces by Ronald Klain at the Washington Post and Linda Greenhouse at the New York Times, who carefully picks apart the claims of a judicial emergency (which Republicans, of course, ignored when Obama was in office). Calabresi and Hirji fired back in a National Review article, claiming: “Nothing could be further from the truth” than to call it a court-packing plan. “In fact, it is a court-unpacking plan.” The Democrats started it, you see. They’re the real court-packers. Even some fellow conservatives aren’t buying this plan or its rationale. "As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded," Josh Blackman wrote at the National Review. Libertarian Ilya Somin wrote at the Post's Volokh Conspiracy blog that Calabresi and Hirji "clearly state that one of their goals is 'undoing President Barack Obama’s Judicial Legacy.' Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.” But perhaps the best way to understand the plan is through the eyes of Richard Primus, of the University of Michigan Law School, who wrote a recent post at the Harvard Law Review blog titled “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” At least the proposal is honest, he writes. “The paper’s motivation is entirely out in the open. This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control. It comes as a wolf.” He seeks to elucidate both why and how this is so profoundly dangerous to America’s constitutional system. Primus' terminology is important: "Rulebooks" and "playgrounds" refer to different ways of understanding the Constitution. The "endgame" here, he writes, suggests "a kind of constitutional Armageddon." This proposal means "to end an era,” but not necessarily in the way that Calabresi and Hirji suppose. “The document is remarkable in at least two respects,” Primus begins. “First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution. If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.” The relationship between the formal big-C Constitution and the informal small-c constitution is crucial, Primus notes: “The big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.” There are two ways of understanding the Constitution, Primus says at the end of his analysis. One is as a rulebook: “As long as you stay within the permitted moves, you’re playing the game properly.” In this view, there is no little-c constitution at all. “But the rulebook approach is a dangerously inadequate way to think about constitutional law,” he warns. “A more helpful analogy might go like this: Constitutional government is like playground basketball. If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.” As he sees it, that is the danger the Calabresi-Hirji proposal holds. However “conservative” they might claim to be, these legal activists are actually lighting a fuse that could blow up the whole constitutional system. The reason they might do that brings us to the second remarkable thing Primus notes: Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law. In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power. It’s not an idea in isolation, he notes. It echoes the Republicans' refusal to consider Obama’s nomination of Merrick Garland to the Supreme Court and their decision to confirm only two circuit court justices during his last two years, along with public statements by “Republican Senators from McConnell to Cruz to McCain who said publicly that if Hillary Clinton won the election, they wouldn’t consider any of her nominees to the Supreme Court.” In all these cases, Primus writes: The underlying logic, of course, is the same as that of the Calabresi-Hirji proposal. Democratic-appointed judges are not to be considered a normal part of the system, fit to exercise adjudicative authority because they too are honorable servants of the Constitution, even when they understand the Constitution differently from the way we understand it. No. They are to be regarded unfit per se. It’s this assumption, he writes, that “can explain what would otherwise be one of the most puzzling aspects of the proposal — that is, the paper’s seeming unconcern with provoking a judgeship arms race that could make the federal judiciary both unworkable and obviously partisan.” If the proposal passed, he notes, once Democrats again had unified control of the White House and Senate, “they’d enact a bill expanding the lower courts by whatever amount was necessary to swing control right back,” and possibly to expand the size of the Supreme Court as well, to counteract the theft of Garland’s seat. “With the Calabresi-Hirji experience behind them, it would be remarkable for the Democrats in the next round not to go all the way.” Surely “Calabresi and Hirji can foresee this chain of events as easily as I can,” Primus writes, so why make their proposal? There’s one perspective that he says could explain it: We don’t think in terms of the Democrats one day coming back into power. We are building for a world in which they never exercise power. And if the Democrats do return to power, then the Republic won’t be worth saving anyway. In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system. It’s the last round, and it’s a fight to the finish. One flaw in this analysis is the assumption that Democrats will act just like Republicans, but that sort of symmetry simply doesn’t exist — either at the levels of the parties, or at the level of animating ideologies. The willingness to disrupt norms, to violate the small-c constitution, is far more evident on the right than the left. Harvard Law professor Mark Tushnet coined the term “constitutional hardball” to describe it in a 2003 paper, and I wrote four stories about the GOP’s engagement in it between the 2014 midterms and the 2016 election, starting with efforts to subvert the Electoral College by changing the way certain states choose their electors, and ending with an Election Day story on norm erosion dating back to the 1990s. In between, in March 2015, I wrote a deep dive into the concept and how important it’s been to the modern GOP, and in February 2016 I wrote about Republican refusal to let Obama appoint a Supreme Court justice as a prime example of constitutional hardball. Tushnet’s analysis makes it clear that anyone can play the game, but he also gives a reason why Republicans play it much more vigorously. He sees it as an effort to change what he calls “constitutional orders,” and Republicans have been trying to change the constitutional order initiated under Franklin D. Roosevelt for a very long time now. But there are also other perspectives on why there might be such a powerful asymmetry. David Hopkins, co-author of "Asymmetric Politics: Ideological Republicans and Group Interest Democrats" (Salon review here) had several thoughts. “It does seem to be true that the American right is more comfortable playing hardball than the left,” Hopkins told Salon. “One reason, I think, is that there is a greater sense of urgency on the right. Many conservatives are frustrated with their lack of progress over the years in rolling back the modern domestic state, while the leftward drift of American culture further contributes to their disaffection and alienation. If existing norms of governance have helped lead us to this current state of affairs, they reason, then perhaps these norms do not deserve much deference.” There’s also an inhibition working on the other side. “It’s also the case that the center-left in America tends to have a lot of philosophical investment in the practice of procedural ‘fairness,’ which often makes it uncomfortable with aggressive displays of political power even on its own behalf,” Hopkins said. Indeed, ever since the 1950s, there have been comments about how liberals have become de facto conservatives, protectors of the established order. “Finally, I think it’s clear that conservatives prioritize representation in the judicial branch much more than liberals do at this period in history," Hopkins concluded. "Control of the court system, up to and including the Supreme Court, simply matters more these days to conservatives, who view the federal judiciary as broadly hostile to their beliefs and capable of threatening their political values and power via adverse rulings.” Corey Robin, author of "The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump" (Salon review here), took a longer view. “At moments of realignment, for example, American liberalism wasn't thinking in terms of iterative games or Burkeanism,” he said. “It saw itself, and rightly so, as transforming the rules of the game, of permanently altering the terms of discussion. And it saw itself as being the gravediggers of a pathological formation that would never return: the slaveocracy, in the case of Lincoln and the Radical Republicans, and the Gilded Age oligarchy, in the case of the New Deal.” In this larger historical framework, both sides have been equally capable of playing constitutional hardball, as Tushnet argues. “Conversely, what I see in this current proposal from the conservatives is less a feature of permanent conservative thinking — though I can see why you would say that, what with references to ‘the last round’ — than a sign of conservative weakness,” Robin said. “I think conservatives see themselves in a race against time: counterintuitively, and in contrast to Primus, I think they anticipate that their hold on political power is slipping ... and they see the judiciary as a way of locking in their gains long past the expiration date.” This is certainly in keeping with their wide-ranging voter-suppression efforts, along with the ambitious $30 million gerrymandering scheme described by former Salon editor David Daley in "Ratfked: The True Story Behind the Secret Plan to Steal America's Democracy." “Their model here is the Gilded Age judiciary, which was able to hold the line against growing populist and legislative attacks on economic wealth and power,” Robin said. “So it is a last round, and it is a fight to the finish, but it's a fight they except to lose in every respect save one: their lock on the judiciary. History suggests that is not an irrational way of thinking about their current predicament, insofar as the Lochner-era Supreme Court from about 1897 to 1937 and lower courts really did strike down progressive legislation for decades.” Yale Law School’s Jack Balkin takes a similar view, at his Balkinization blog, where Primus is also a contributor. He sees little likelihood of Calabresi’s plan being enacted. “I think that we should consider Calabresi's memo for what it is — a dream of a better world,” he writes, adding that it should be examined as Freud would, to make sense of the “predicaments, anxieties, and concerns” that it expresses — especially the stark contrast between the GOP’s dominant formal power and its decaying power as a movement: Indeed, the Republican Party turned to Donald Trump in 2016 precisely because the regime's national coalition is decaying. Trump is both a symptom of decay and an agent of decay. In Stephen Skowronek's terms, Trump is a disjunctive president, brought on board to rejuvenate a dying coalition but who actually furthers its unraveling. This profound weakness is why, even with complete control of the federal government, the party has had more trouble than it should in passing legislation. Of course, nobody knows when the Reagan regime will actually end. ... Even so, as the regime decays, factionalism and radicalism undermine the party's coalition and make even the simplest tasks difficult. But as Robin notes, the Gilded Age oligarchs held onto their power in the courts for decades, long after they had lost electoral credibility. While it may be comforting, in the abstract, to see Trump’s current judicial power grab as a sign of his party’s weakness, that does nothing to soften the blows that will be coming from the bench at the hands of the scores of judges he has already nominated, with many more to come. Progressives damn well ought to be thinking in terms of playing constitutional hardball themselves. At least as far back as Bush v. Gore, conservatives have relied on the courts as an illegitimate source of power. By de facto appointing George W. Bush president (see "Jews for Buchanan" for the multitude of ways in which the election was stolen), the 5-4 Supreme Court decision effectively selected two of its successors, yet another profound violation of constitutional norms. That means we are now up to three Supreme Court justices who can be seen as illegitimate — plus, of course, Clarence Thomas, whose decades-long evasion of accountability for an egregious pattern of sexual harassment surely ought to be brought to a belated end. Plus all the lower court judges Bush appointed during his two terms in office. Primus provides us with an excellent framework for understanding the dangers of allowing constitutional hardball to run amok. We can hope that Calabresi’s plan won’t be enacted, making things incalculably worse. But there are severe dangers of not engaging in constitutional hardball, as well. As Tushnet himself (also at Balkinization) put it: If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective. He went on to say: My current hobby-horse is the small-c norm setting the Court's size at nine. I think -- really, I do think this -- that Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do). The rationale is not (on the surface) to "seize control of the judiciary." Rather, it is to undo the Republicans' theft of the Garland seat. ... The Democratic proposal for changing the small-c constitutional norm about the Court's size would be an offer of a new norm -- "You can't steal a Supreme Court seat and expect to get away with it." Seems like a good new norm to me. The situation is obvious: We’re already living in a badly damaged “normal” state, and a perniciously diminished, self-limiting form of liberalism is largely responsible for that. The Calabresi plan should be a wakeup call for progressive activists, not just to fight back against the ongoing Trump takeover of the courts but to begin crafting a serious, far-reaching constitutional hardball strategy of our own, Tushnet’s Supreme Court proposal is a good starting point — but it’s only a start. We need to see ourselves, to borrow Robin's phrase, as the future gravediggers of this pathological formation, which we fervently hope will never return.Anti-Trump court systems are key to check multiple instances of executive power Leonard 17 (Meghan E. Leonard, Associate Professor of political science at Illinois State University, “Despite Trump’s attempts to delegitimize them, the Courts are checking executive power exactly as they should”, LSE, ) TSThe government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy…It is beyond question, that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. (State of Washington and State of Minnesota v. Trump 2017). The quotes above highlight the narrative in President Trump’s seeming ‘war’ on the power of the federal courts. The President, disheartened by the district court’s temporary restraining order on his executive order, attacked both federal District Court Judge James L. Robart (“so-called judge”) and the power of the federal courts to make this decision. Of course, the federal courts do have the power to halt potentially unconstitutional executive orders and check the other two branches of government. The power of the Supreme Court and federal courts more generally to interpret the Constitution, or ‘say what the law is’ was given to the Court by its own Chief Justice John Marshall in 1803, in Marbury v. Madison. Not explicated in the Constitution itself, judicial review is the heart of judicial power in the United States. While Marbury gives the Court the legal authority to say what the law is, the legitimacy of the courts gives them the political capacity to have their decisions complied with. The legitimacy of the Supreme Court is best understood as a reservoir of goodwill toward the institution, whereby individuals accept the decisions of the Court because they trust the institution. While a debate exists on how ideology and agreement with individual Court decisions affects support for the Court, political scientists have generally concluded the support for the Supreme Court is high and enduring. And given that the courts have neither the ‘power of the purse nor the sword’ it is this diffuse support that leads the other branches of government to comply with and implement the decisions of the Court. Not doing so could lead to backlash from the public, which the elected branches, which are concerned centrally about reelection seek to avoid. The legitimacy of the Court does not mean the president or Congress won’t express their disagreement with judicial decisions. In 2010, then-President Obama infamously challenged the Supreme Court’s decision in Citizens United v. FEC, by suggesting in his state of the union address“with all due deference to separation of powers, last week the Supreme Court reversed a century of law… that would open up the floodgates to special interests.” This was neither the first nor the last time a sitting president has used their power to ‘go public’ to challenge the decision of the Supreme Court. Yet, while presidents often disagree with Supreme Court decisions on issues most important to their administration, they most often comply with the decision of the Court, even once calling the National Guard to do so. Not always the case, for example, Lincoln ignored the post-Dred Scott Court’s decision in ex parte Merryman, this would be the exception, rather than the rule. In another way to respond to the Court, the president may turn to allies in Congress and attempt to check the power of the court through court-curbing legislation. Most famously used by President Roosevelt in his attempt to add six justices and pack the Court that struck down many pieces of his New Deal legislation, this court–curbing legislation is designed to propose limitations to the power of the federal courts as well as demonstrate to the public response to unpopular decisions. Research demonstrates that the Court is responsive to new court-curbing legislation, and will limit the use of judicial review in response. So, while the Trump White House is arguing the federal courts are too powerful in their ability to check the executive and legislative branches, there are a least some limitations on this power. Given the difference in the comments by President Trump compared to past presidential statements that highlight the importance of trusting the separation of powers, many commenters have raised concern that we might be facing a crisis of the Constitution. At this point, I would conclude rather than a crisis, our system is working exactly the way it is supposed to. The judicial branch is checking the power of the executive branch, in an effort to stop any potential violations of the Constitution. As for the future relationship between Trump and the Courts? New polling hints at what the American people think : 53 percent of Americans trust the courts to make the right decisions, while only 38 percent would trust President Trump more. Only a quarter of voters would want President Trump to have the power to overturn the decisions of the courts, though of Trump voters 51 percent would give the president this power. Almost two-thirds of voters do not believe the president should have the power to overturn judicial decisions. Trump’s most ardent supporters notwithstanding, the American people seem to be happy with the so-called judges fulfilling their Constitutional duties.Unchecked executive causes multiple scenarios for extinction---resistance is keyPrashad 6/21 (Vijay, professor of international studies at Trinity College in Hartford, Connecticut. He is the author of 18 books, “Trump, With a Vicious Temperament, Seems Eager to Hasten the Doomsday Clock,” )Watching U.S. President Donald Trump toss binders of environmental regulations onto the ground underscored the grave dangers of this administration: the final administration. The disregard for the negative social and natural implications of human-induced climate change and warfare is striking. It is not as if Trump has broken fundamentally with a past where the world leadership was somehow truly worried about climate catastrophe and extinction by weapons of mass destruction. There are more continuities here than sharp breaks. Trump has nonetheless moved the needle faster, with a much more vicious temperament, unwilling to bend to liberal hypocrisies, eager to hasten the minute hand of the Doomsday Clock. It would not be too much to expect the Trump administration to propose to use ‘small’ nuclear weapons to blast coal seams and uncover more carbon to power the world to Armageddon. It is not as if the Paris or Kyoto agreements would have been sufficient to stem the tide of adverse climate change. Even those were too mild, too friendly to corporations that make their money destroying the planet. But at least these agreements forced governments to accept that human activity—namely industrial capitalism—had hastened the destruction of nature. Now, Trump’s Energy Secretary Rick Perry says openly that carbon dioxide emissions are not the main drivers of climate change. Perry pointed the finger of blame at ‘ocean waters,’ allowing industrial capitalism an exit from responsibility. Why bother with alternatives to carbon when there is no ‘evidence’ that such energy sources bring the planet closer to annihilation? Meanwhile, at the two ends of Eurasia, Trump has moved closer to war at a planetary scale. Trump has authorized the U.S. military to go after Syrian and Iranian military assets in western Syria that are currently engaged against ISIS. Russia has now warned the United States that any U.S. aircraft in that airspace will be seen as ‘air targets.’ Iran has fired ballistic missiles from Iran into eastern Syria. This sends a message to Israel and Saudi Arabia that they are within range of Iranian missiles. What might be seen as deterrence at any other time could very well be a provocation in these times of the final administration. Trump’s messy entry into the Gulf crisis, backing Saudi Arabia and the United Arab Emirates against Qatar and Turkey, suggests no finesse in contemporary U.S. diplomacy. More firepower and more belligerent talk is the currency of our times. That this might provoke a much greater altercation in West Asia is of little concern to the final administration. That the war might spread from there into other locations, such as Eastern Europe and North Africa, seems to be of no concern. Even more chilling was a tweet Trump sent this week that pertains to the other flank of Eurasia. ‘While I greatly appreciate the efforts of President Xi and China to help with North Korea,’ wrote Trump, ‘it has not worked out. At least I know China tried!’ So now what? Is the United States preparing for war against North Korea? South Korea and the U.S. have increased their military activity near North Korea—all provocations against a government terrified of being attacked. When a North Korean drone drifted into South Korean airspace this week, even the less military-minded new government in the south led by Moon Jae-in suggested that war was on the horizon. Will a ‘small’ nuclear exchange be contemplated for the Korean Peninsula and for Eastern Asia in general? We are between climate catastrophe and wars of extinction, with the final administration provoking both at hyper-speed. Trump plays the role of Judas in Gaudi’s sculpture. Jesus speaks to him about betrayal. But he is looking over Judas’ shoulder. He is asking the rest of us if we are participants in the betrayal. What are you doing today to prevent Trump's agenda from driving our planet closer to extinction?K Ableism “Mad”D Rule - “Mad” is a derogatory term for mental care institutionsBrown 14 (Lydia Brown is an activist, public speaker, and writer focused on violence against multiply-marginalized disabled people. She is diagnosed with autism. : “Ableist Words and Phrases To Avoid” updated October 11th, 2014. Accessed July 25th, 2015. )Madhouse/Mad/Madman Refers to an institution housing people with mental or psychiatric disabilities.Continued ableist epistemology in the academic space destroy educationHehir ‘7 (Thomas Hehir is Professor of Practice and Director of the School Leadership Program, Harvard Graduate School of Education, Cambridge, Massachusetts. Educational Leadership: “Confronting Ableism.” Published in February, 2007. Accessed July 20th, 2015. )TheFedoraNegative cultural attitudes toward disability can undermine opportunities for all students to participate fully in school and society. When Ricky was born deaf, his parents were determined to raise him to function in the “normal” world. Ricky learned to read lips and was not taught American Sign Language. He felt comfortable within the secure world of his family, but when he entered his neighborhood school, he grew less confident as he struggled to understand what his classmates seemed to grasp so easily. Susan, a child with dyslexia, entered kindergarten with curiosity about the world around her, a lively imagination, and a love of picture books. Although her school provided her with individual tutoring and other special education services, it also expected her to read grade-level texts at the same speed as her nondisabled peers. Susan fell further and further behind. By 6th grade, she hated school and avoided reading. These two examples illustrate how society's pervasive negative attitude about disability—which I term ableism—often makes the world unwelcoming and inaccessible for people with disabilities. An ableist perspective asserts that it is preferable for a child to read print rather than Braille, walk rather than use a wheelchair, spell independently rather than use a spell-checker, read written text rather than listen to a book on tape, and hang out with nondisabled kids rather than with other disabled kids. Certainly, given a human-made world designed with the nondisabled in mind, children with disabilities gain an advantage if they can perform like their nondisabled peers. A physically disabled child who receives the help he or she needs to walk can move more easily in a barrier-filled environment. A child with a mild hearing loss who has been given the amplification and speech therapy he or she needs may function well in a regular classroom. But ableist assumptions become dysfunctional when the education and development services provided to disabled children focus on their disability to the exclusion of all else. From an early age, many people with disabilities encounter the view that disability is negative and tragic and that “overcoming” disability is the only valued result (Ferguson and Asch, 1989; Rousso, 1984). In education, considerable evidence shows that unquestioned ableist assumptions are harming disabled students and contributing to unequal outcomes (see Allington and McGill-Franzen, 1989; Lyon et al., 2001). School time devoted to activities that focus on changing disability may take away from the time needed to learn academic material. In addition, academic deficits may be exacerbated by the ingrained prejudice against performing activities in “different” ways that might be more efficient for disabled people—such as reading Braille, using sign language, or using text-to-speech software to read. The Purpose of Special Education What should the purpose of special education be? In struggling with this issue, we can find guidance in the rich and varied narratives of people with disabilities and their families. Noteworthy among these narratives is the work of Adrienne Asch, a professor of bioethics at Yeshiva University in New York who is blind. In her analysis of stories that adults with disabilities told about their childhood experiences (Ferguson and Asch, 1989), Asch identified common themes in their parents' and educators' responses to their disability. Some of the adults responded with excessive concern and sheltering. Others conveyed to children, through silence or denial, that nothing was “wrong.” For example, one young woman with significant vision loss related that she was given no alternative but to use her limited vision even though this restriction caused her significant academic problems. Another common reaction was to make ill-conceived attempts to fix the disability. For example, Harilyn Rousso, an accomplished psychotherapist with cerebral palsy, recounts, My mother was quite concerned with the awkwardness of my walk. Not only did it periodically cause me to fall but it made me stand out, appear conspicuously different—which she feared would subject me to endless teasing and rejection. To some extent it did. She made numerous attempts over the years of my childhood to have me go to physical therapy and to practice walking “normally” at home. I vehemently refused her efforts. She could not understand why I would not walk straight. (1984, p. 9) In recalling her own upbringing and education, Asch describes a more positive response to disability: I give my parents high marks. They did not deny that I was blind, and did not ask me to pretend that everything about my life was fine. They rarely sheltered. They worked to help me behave and look the way others did without giving me a sense that to be blind—“different”—was shameful. They fought for me to ensure that I lived as full and rich a life as I could. For them, and consequently for me, my blindness was a fact, not a tragedy. It affected them but did not dominate their lives. Nor did it dominate mine. (Ferguson and Asch, 1989, p. 118) Asch's narrative and others (Biklen, 1992) suggest that we can best frame the purpose of special education as minimizing the impact of disability and maximizing the opportunities for students with disabilities to participate in schooling and the community. This framework assumes that most students with disabilities will be integrated into general education and educated within their natural community. It is consistent with the 1997 and 2004 reauthorizations of the Individuals with Disabilities Education Act (IDEA), which requires that individualized education program (IEP) teams address how the student will gain access to the curriculum and how the school will meet the unique needs that arise out of the student's disability. Finally, this framework embraces the diverse needs of students with various disabilities as well as the individual diversity found among students within each disability group. Falling Short of the Goal Minimizing the impact of disability does not mean making misguided attempts to “cure” disability but rather giving students the supports, skills, and opportunities needed to live as full a life as possible with their disability. Maximizing access requires that school practices recognize the right of students with disabilities to participate fully in the school community—not only in academic programs, but also in sports teams, choruses, clubs, and field trips. A look at common problems encountered by students with low-incidence disabilities, specific learning disabilities, and emotional disturbances illustrates that schools still have a long way to go in fulfilling the purpose of special education. Students with Low-Incidence Disabilities In Adrienne Asch's case, minimizing the impact of her blindness meant learning Braille, developing orientation and mobility skills, and having appropriate accommodations available that gave her access to education. Asch also points out that because of New Jersey's enlightened policies at the time, she could live at home and attend her local school, so she and her family were not required to disrupt their lives to receive the specialized services she needed. Unfortunately, many students today with low-incidence disabilities like blindness and deafness are not afforded the opportunities that Asch had in the early 1950s. Parents sometimes face the choice of sending their children to a local school that is ill equipped to meet their needs or to a residential school with specialized services, thus disrupting normal family life. Parents should not be forced to make this Hobson's choice. Services can be brought to blind and deaf students in typical community settings, and most students can thrive in that environment (Wagner, Black-orby, Cameto, and Newman, 1993; Wagner and Cameto, 2004). It is up to policymakers to ensure that such services are available. Students with Specific Learning Disabilities Because students identified as having learning disabilities are such a large and growing portion of the school population, we might expect that these students would be less likely to be subjected to ableist practices. The available evidence, however, contradicts this assumption. Many students with dyslexia and other specific learning disabilities receive inappropriate instruction that exacerbates their disabilities. For example, instead of making taped books available to these students, many schools require those taught in regular classrooms to handle grade-level or higher text. Other schools do not allow students to use computers when taking exams, thus greatly diminishing some students' ability to produce acceptable written work. The late disabilities advocate Ed Roberts had polio as a child, which left him dependent on an iron lung. He attended school from home in the 1960s with the assistance of a telephone link. When it was time for graduation, however, the school board planned to deny him a diploma because he had failed to meet the physical education requirement. His parents protested, and Ed eventually graduated (Shapiro, 1994). We can hardly imagine this scenario happening today, given disability law and improved societal attitudes. Yet similar ableist assumptions are at work when schools routinely require students with learning disabilities to read print at grade level to gain access to the curriculum or to meet proficiency levels on high-stakes assessments. Assuming that there is only one “right” way to learn—or to walk, talk, paint, read, and write—is the root of fundamental inequities. Seriously Emotionally Disturbed Students Perhaps no group suffers from negative attitudes more than students who have been identified as having serious emotional disturbance (SED)—and no other subpopulation experiences poorer outcomes. Students with SED drop out of school at more than double the rate of nondisabled students. Only 15 percent pursue higher education, and approximately 50 percent are taught in segregated settings (U.S. Department of Education, 2003; Wagner and Cameto, 2004). For large numbers of students with serious emotional disturbance, their IEPs are more likely to include inappropriate responses to control the most common symptom of their disability—acting-out behavior—than to provide the accommodations and support the students need to be successful in education. Only 50 percent of students with SED receive mental health services, only 30 percent receive social work services, and only 50 percent have behavior management appropriately addressed in their IEPs (Wagner and Cameto, 2004). What do these students typically receive through special education? They are commonly placed in a special classroom or school with other students with similar disabilities (U.S. Department of Education, 2003)—often with an uncertified teacher. Placing such students in separate classes without specific behavioral supports, counseling, or an expert teacher is unlikely to work. Substantial evidence, indicates, however, that providing these students with appropriate supports and mental health services can significantly reduce disruptive behavior and improve their learning (Sugai, Sprague, Horner, and Walker, 2000). Such supports are most effective when provided within the context of effective schoolwide discipline approaches, such as the U.S. Department of Education's Positive Behavioral Interventions and Supports program (). Schoolwide approaches also produce safer and better-run schools for all students. Guidelines for Special Education Decision Making The goal of minimizing the impact of disability and maximizing opportunities to participate suggests several guidelines for serving students with disabilities.K Race (Kant Bad)Kantianism is tainted by racist assumptions. To Kant only Europeans count as fully human, all others must be forced to conform. Eze 97 Emmanuel Chukwudi, Prof. Philosophy DePaul University. Post Colonial African Philosophy: A Critical Reader. “The Color of Reason.” Pg. 130-31 “It should be…of human nature.” It should be obvious that what is at stake in our critique of Kant is, as Lucius Outlaw pointedly stales, the "struggle over the meaning of man,"140 or the project of defining what it means to be(come) human. In 1765 Kant wrote: “If there is any science man really needs, ii is the one 1 teach, of how to fulfill properly that position in creation which is assigned to man, and from which he is able to learn what one must be m order to be a man.” It is clear that what Kant settled upon as the "essence" of humanity, that which one ought to become in order to deserve human dignity, sounds very much like Kant himself: "white," European, and male.'4* More broadly speaking, Kant's philosophical anthropology reveals itself as the guardian of Europe's self-image of itself as superior and the rest of the world as barbaric. Behind Kant's anthropology is what Tsenay Serequeberhan characterizes as "the singular and grounding metaphysical belief that European humanity is properly speaking isomorphic with the humanity of the human as such. This universalist conjunction of metaphysics and anthropology is made possible by a philosophy which understands itself as the lieu of logos so that philosophical anthropology becomes the logocentric articulation of an ahisiorical, universal, and unchanging essence of "man." The so-called primitives surely ought to be wary of such Kantian universalist-humanoid abstraction, which colonizes humanity by grounding the particularity of the European self as center even as it denies the humanity of others. And lest it be forgotten, nothing that I have said here is particularly new. Friedrich Gentz, who studied with Kant at Konigsberg In between 1783 and 1786, pointed out that, if the goal of Kant's anthropological theories were realized, it would "compact the whole species into one and the same form," a dangerous situation which would destroy diversity and the "free movement of the spirit" for anyone who disagreed with Kant's compact would be treated as a rebel against fundamental principles of human nature.European conceptions of reason/body dualism posit non-white people – especially women – as irrational and closer to nature, and therefore dominable and exploitable Quijano 2000 (Anibal, Professor of sociology at Binghamton University, “Coloniality of Power, Eurocentrism, and Latin America,” , 2000)With Descartes the mutation of the ancient dualist approach to? the bodyand the nonbodytook place.23 What was a permanent copresence? of both elements in each stage of the human being, with Descartes came a? radical separation between reason/subject and body. Reason was not only a? secularization of the idea of the soul in the theological sense, but a mutation? into a new entity, the reason/subject, the only entity capable of rational? knowledge. The body was and could be nothing but an object of knowledge.? From this point of view the human being is, par excellence, a being? gifted with reason, and this gift was conceived as localized exclusively in the? soul. Thus the body, by definition incapable of reason, does not have anything? that meets reason/subject. The radical separation produced between? reason/subject and body and their relations should be seen only as relations? between the human subject/reason and the human body/nature, or between? spirit and nature. In this way, in Eurocentric rationality the body was fixed? as object of knowledge, outside of the environment of subject/reason.? Without this objectification of the body as nature, its expulsion? from the sphere of the spirit (and this is mystrong thesis), the “scientific”? theorization of the problem of race (as in the case of the comte de Gobineau? 1853–57 during the nineteenth century) would have hardly been? possible. From the Eurocentric perspective, certain races are condemned? as inferior for not being rational subjects. They are objects of study, consequently bodies closer to nature. In a sense, they became dominable and? exploitable. According to the myth of the state of nature and the chain of? the civilizing process that culminates in European civilization, some races—? blacks, American Indians, or yellows—are closer to nature than whites.24? It was only within this peculiar perspective that non-European peoples? were considered as an object of knowledge and domination/exploitation by? Europeans virtually to the end of World War II.? This new and radical dualism affected not only the racial relations? of domination, but the older sexual relations of domination as well. Women,? especially the women of inferior races (“women of color”), remained stereotyped? together with the rest of the bodies, and their place was all the more inferior for their race, so that they were considered much closer to nature or? (as was the case with black slaves) directly within nature. It is probable (although? the question remains to be investigated) that the new idea of gender? has been elaborated after the new and radical dualism of the Eurocentric? cognitive perspective in the articulation of the colonialityof power.? Furthermore, the new radical dualism was amalgamated in the? eighteenth century with the new mystified ideas of “progress” and of the? state of nature in the human trajectory: the foundational myths of the Eurocentric? version of modernity. The peculiar dualist/evolutionist historical? perspective was linked to the foundational myths. Thus, all non-Europeans? could be considered as pre-European and at the same time displaced on a? certain historical chain from the primitive to the civilized, from the rational? to the irrational, from the traditional to the modern, from the magic-mythic? to the scientific. In other words, from the non-European/pre-European to? something that in time will be Europeanized or modernized.Without considering? the entire experience of colonialism and coloniality,this intellectual? trademark, as well as the long-lasting global hegemonyof Eurocentrism,? would hardlyb e explicable. The necessities of capital as such alone do not? exhaust, could not exhaust, the explanation of the character and trajectory? of this perspective of knowledge.Anti-Blackness structurally underpins all violence-- while racialized violence is still a daily reality for people caught in the position of the slave, the rhetoric of “oppression” or “exploitation” alone asks only how we might redeem this failed American experiment. There is no analogy for the structural suffering of the slave, meaning authentic engagement with social violence must begin with the anti-human void known as BlacknessPak ’12 {Yumi; philosophy prof ; "Outside Relationality: Autobiographical Deformations and the Literary Lineage of Afro-Pessimism in 20th and 21st Century African American Literature.”; Accessed 7/13/15}AvP Because the four authors I examine focus intensively on untangling and retangling the nexus of race, gender, and sexuality in autobiographical narratives, this project originally relied most heavily on the frameworks provided by queer theory and performance studies, as the structural organization and methodology behind both disciplines offered the characteristic of being “‘inter’ – in between… intergenric sic, interdisciplinary, intercultural – and therefore inherently unstable” (“What is Performance Studies Anyway?” 360). My abstract ideation of the dissertation was one which conceptualized the unloosening of the authors’ respective texts from the ways in which they have been read in particular genres. Yet the investigative progression of my research redirected me to question the despondency I found within Toomer, Himes, Baldwin and Jones’ novels, a despondency and sorrow that seemed to reach beyond the individual and collective purportedly represented in these works. What does it mean, they seem to speculate, to suffer beyond the individual, beyond the collective, and into the far reaches of paradigmatic structure? What does it mean to exist beyond “social oppression” and veer instead into what Frank B. Wilderson, III calls “structural suffering” (Red, White and Black 36)? Briefly, Wilderson utilizes what he calls Frantz Fanon’s splitting of “the hairs between social oppression and structural suffering”; in other words, Wilderson refutes the possibility of analogizing blackness with any other positionality in the world. Others may be oppressed, indeed, may suffer experientially, but only the black, the paradigmatic slave, suffers structurally. Afro-pessimism, the theoretical means by which I attempt to answer this query, provides the integral term and parameters with which I bind together queer theory, performance studies, and autobiography studies in order to propose a re-examination of these authors and their texts. The structural suffering of blackness seeps into all elements of American history, culture, and life, and thus I begin my discussion with an analysis of Hortense Spillers’ concept of an American grammar in “Mama’s Baby, Papa’s Maybe: An American Grammar Book.” To theorize blackness is to begin with the slave ship, in a space that is in actuality no place. 7 In discussing the transportation of human cargo across the Middle Passage, Spillers writes that this physical theft of bodies was “a willful and violent (and unimaginable from this distance) severing of the captive body from its motive will, its active desire” (Spillers 67). She contends here that in this mass gathering and transportation, what becomes illuminated is not only the complete and total deracination of native from soil, but rather the evisceration of subjectivity from blackness, the evacuation of will and desire from the body; in other words, we see that even before the black body there is flesh, “that zero degree of social conceptualization that does not escape concealment under the brush of discourse, or the reflexes of iconography” (67). Black flesh, which arrives in the United States to be manipulated and utilized as slave bodies, is “a primary narrative” with its “seared, divided, ripped-apartness, riveted to the ship’s hole, fallen, or ‘escaped’ overboard” (67). These markings – “lacerations, woundings, fissures, tears, scars, openings, ruptures, lesions, rendings, punctures of the flesh” – are indicative of the sheer scale of the structural violence amassed against blackness, and from this beginning Spillers culls an “American grammar” that grounds itself in the “rupture and a radically different kind of cultural continuation,” a grammar that is the fabric of blackness in the United States (67, 68). As Wilderson observes, “Africans went into the ships and came out as Blacks” (Red, White and Black 38). In other words, in the same moment they are (re)born as blacks, they are doomed to death as slaves. This rupture, I argue, is evident in the definitions of slavery set forth by Orlando Patterson in his seminal volume, Slavery and Social Death: natal alienation, general dishonor and openness to gratuitous violence. The captive body, which is constructed with torn flesh, is laid bare to any and all, and it is critical to note here that Patterson, in line with Afro-pessimists, does not align slavery with labor. The slave can – and did – work, but what defines him/her as such is that as a dishonored and violated object, the master’s whims for him/her to work, or not work, can be carried out without ramifications. Rather, the slave’s powerlessness is heightened to the greatest possible capacity, wherein s/he is marked by social death and the “permanent, violent domination” of their selves (Patterson 13). Spillers’ “radically different kind of cultural continuation” finds an articulation of the object status of blackness in the United States, one which impugns the separation of “slave” and “black.” As Jared Sexton and Huey Copeland inquire, “how might it feel to be… a scandal to ontology, an outrage to every marker of the human? What, in the final analysis, does it mean to suffer?” (Sexton and Copeland 53). Blackness functions as a scandal to ontology because, as Wilderson states, black suffering forms the ethical backbone of civil society. He writes, chattel slavery did not simply reterritorialize the ontology of the African. It also created the Human out of cultural disparate identities from Europe to the East… Put another way, through chattel slavery the world gave birth and coherence to both its joys of domesticity and to its struggles of political discontent, and with these joys and struggles, the Human was born, but not before it murdered the Black, forging a symbiosis between the political ontology of Humanity and the social death of Blacks. (Red, White and Black 20 – 21) Again, the African is made black, and in this murder both ontological and physical, humanity gains its coherence. It is not my intention (nor of other Afro-pessimists) to argue that violence has only ever been committed against black individuals and communities in the United States, or in the world, but rather that the structural suffering that defines blackness, the violence enacted against blackness to maintain its positioning outside of civil society, that demarcates the black as slave, has no horizontal equivalent and, indeed, provides the logical ethos of existence for all othered subjectivities; by this I mean that all other subjects (and I use this word quite intentionally) retain a body and not the zero degree of flesh. As Sexton writes, “we might say of the colonized: you may lose your motherland, but you will not ‘lose your mother’ (Hartman 2007)” (“The Curtain of the Sky” 14). This is precisely why Sexton offers the succinct definition of Afro-pessimism as “a political ontology dividing the Slave from the world of the Human in a constitutive way” (“The Social Life of Social Death” 23). Furthermore, Afro-pessimists contest the idea that the modern world is one wherein the price of labor determines the price of being equally for all people. In this capitalistic reading of the world, we summon blacks back into civil society by utilizing Marxism to assume “a subaltern structured by capital, not by white supremacy” (“Gramsci’s Black Marx” 1). While it is undeniable, of course, that black bodies and labor were used to aid in the economic growth of the United States, we return again to the point that what defines enslavement is accumulation and fungibility, alongside natal alienation, general dishonor, and openness to gratuitous violence; the slave, then, is not constituted as part of the class struggle. 8 While it is true “that labor power is exploited and that the worker is alienated in it,” it is also true that “workers labor on the commodity, they are not the commodity itself, their labor power is” (Red, White and Black 50). The slave is, then, invisible within this matrix, and, to a more detrimental effect, invisible within the ontology of lived subjects entirely. The slave cannot be defined as loss – as can the postcolonial subject, the woman, or the immigrant – but can only be configured as lack, as there is no potential for synthesis within a rubric of antagonism. Wilderson sets up the phrase “rubric of antagonism” in opposition to “rubric of conflict” to clarify the positionality of blacks outside relationality. The former is “an irreconcilable struggle between entities, or positions, the resolution of which is not dialectical but entails the obliteration of one of the positions,” whereas the latter is “a rubric of problems that can be posed and conceptually solved” (Red, White and Black 5). He continues, “if a Black is the very antithesis of a Human subject… then his or her paradigmatic exile is not simply a function of repressive practices on the part of institutions” (9). Integrating Hegel and Marx, and returning to Spillers, Wilderson argues that within this grammar of suffering, the slave is not a laborer but what he calls “antiHuman, against which Humanity establishes, maintains, and renews its coherence, its corporeal integrity” (11). In contrast to imagining the black other in opposition to whiteness, Wilderson and other Afro-pessimists theorize blackness as being absent in the dialectic, as “anti-Human.”The alternative is to refuse to affirm through an unflinching paradigmatic analysis of how the world gains its coherence. The affirmatives endless antagonism fails by its operations within civil society. WILDERSON IN 2007 Frank, “Prison Slave as Hegemony’s (Silent) Scandal,” Warfare on the American Homeland, 31-2 *edited for languageIndeed, it means all those things: a phobogenic object, a past without a heritage, the map of gratuitous violence, and a program of complete disorder. Whereas this realization is, and should be, cause for alarm, it should not be cause for lament or, worse, disavowal -- not at least, for a true revolutionary or a for a truly revolutionary movement such as prison abolition. If a social movement is to be neither social-democratic nor Marxist in terms of structure of political desire, then it should grasp the invitation to assume the positionality of subjects of social death. If we are to be honest with ourselves, we must admit that the “Negro” black people have has been inviting whites, as well as civil society’s junior partners, to the dance of social death for hundreds of years, but few have wanted to learn the steps. They have been, and remain today -- even in the most antiracist movements, such as the prison abolition movements -- invested elsewhere. This is not to say that all oppositional political desire today is pro-white, but it is usually antiblack, meaning that it will not dance with death. Black liberation, as a prospect, makes radicalism more dangerous to the United States. This is not because it raises the specter of an alternative polity (such as socialism or community control of existing resources), but because its condition of possibility and gesture of resistance function as a negative dialectic: a politics of refusal and a refusal to affirm, a “program of complete disorder.” One must embrace its disorder, its incoherence, and allow oneself to be elaborated by it if, indeed, one’s politics are to be underwritten by a desire to take down this country. If this is not the desire that underwrites one’s politics, then through what strategy of legitimation is the word “prison” being linked to the word abolition? What are the movement’s lines of political accountability? There is nothing foreign, frightening, or even unpracticed about the embrace of disorder and incoherence. The desire to be embraced, and elaborated, by disorder and incoherence is not anathema in and of itself. No one, for example, has ever been known to say, “Gee-whiz, if only my orgasms would end a little sooner, or maybe not come at all.” Yet few so-called radicals desire to be embraced, and elaborated, by the disorder and incoherence of blackness -- and the state of political movements in the United States today is marked by this very Negrophobogenesis: “Gee-whiz, if only black rage could be more coherent, maybe not come at all.” Perhaps there is something more terrifying about the joy of black black then there is in the joy of sex (unless one is talking sex with a Negro). Perhaps coalitions today prefer to remain in-orgasmic in the face of civil society -- with hegemony as a handy prophylactic, just in case. If through this stasis or paralysis they try to do the work of prison abolition, the work will fail, for it is always work from a position of coherence (i.e. the worker) on behalf of a position of incoherence of the black subject, or prison slave. In this way, social formations on the left remain blind to the contradictions of coalitions between workers and slaves. They remain coalitions operating within the logic of civil society and function less as revolutionary promises than as crowding out scenarios of black antagonisms, simply feeding our frustration. Whereas the positionality of the worker gestures toward the reconfiguration of civil society, the positionality of the black subject (whether a prison slave or a prison slave-in-waiting) gestures toward the disconfiguration of civil society. From the coherence of civil society, the black subject beckons with the incoherence of civil war, a war that reclaims blackness not as positive value but as a political enabling site, to quote Fanon, of “absolute dereliction.” It is a scandal that renders civil society asunder. Civil war, then, becomes the unthought, but never forgotten, understudy of hegemony. It is a black specter waiting in the wings, an endless antagonism that cannot be satisfied (via reform or reparation) but that must, nonetheless, be pursued to the death.Role of the judge is to be an anti-ethical decision maker. All decision calculus must revolve around the ontological entity of the slave. Curry ’13 {Tommy J; Texas AandM; In the Fiat of Dreams; Academia; accessed 8/21/15}AvPAnti-ethics; the call to demystify the present concept of man person as illusion, as delusion, and as stratagem, is the axiomatic rupture of white existence and the multiple global oppressions like capitalism, militarism, genocide, and globalization, that formed the evaluative nexus which allows whites to claim they are the civilized guardians of the world’s darker races. It is the rejection of white virtue, the white’s axiomatic claim to humynity that allows the Black, the darker world to sow the seeds of consciousness towards liberation from oppression. When white (in)humynity is no longer an obstacle weighed against the means for liberation from racism, the oppressed are free to overthrow the principles that suggest their paths to liberation are immoral and hence not possible. To accept the oppressor as is, the white made manifest in empire, is to transform white western (hu)man from semi-deitous sovereign citizen to contingent, mortal, and un-otherable. Exposing the inhumynity of white humynity is the destruction/refusal of the disciplinary imperative for liberal reformism and dialogue as well as a rejection of the social conventions that dictate speaking as if this white person, the white person and her white people before you are in fact not racist white people, but tolerable—not like the racist white people abstracted from reality, but really spoken of in conversations about racism. The revelatory call, the coercively silenced but intuitive yearning to describe the actual reality set before Black people in an anti-Black society, is to simply say there is no negotiating the boundaries of anti-Blackness or the horizons of white supremacy. Racism, the debasement of melaninated bodies and nigger-souls, is totalizing. But such a reality can never be spoken or written about without fear. In order to preserve the possibility of being recognized by whites, be it as citizen-not-terrorist or as a scholar, colleague, human-not-angry-nigger, the Black philosopher, Blackened person must offer to whites vindication—acknowledgement that he recognizes and will speak of-write about whites as having the potentiality for virtue. The revolutionary activity, if that is how we understand the efforts to change the material-physical relationship between the oppressed and the oppressor, making one’s individual assertion of white inhumanity—the local act of critique—real and socially transformative beyond the dialogical (conversations between colleagues, within a discursive space, or disagreements between critics), is not convincing the white subject in dialogue with, the supposed rational ethical subject, that they-it can potentiality to be different, or better. This is a dead end appeal over-determined by trying to “win over,” “be recognized by,” the white subject. The revolutionary activity is to demonstrate as a matter of ontology (this is whiteness as is) that whiteness is irredeemable. In relativizing Western MAN, showing the ethnoclass limitation of Europe’s cultural invention, Black humanity is freed to begin thinking itself anew without the fear of falling into mimicry. In short, seeing whites as they are is the proof that Black consciousness has shifted our present conception of man and has found a new teleological/cultural orientation; an endarkening path towards a new humanity.Theory Bracketsnterpretation – debaters may not bracket cards, or insert any of their own words intoa piece of evidence written by another author in brackets, unless doing so is necessaryto avoid using offensive language.Violation - their cardsMisappropriation – analyticFairness is a voter, analyticNorm setting - analyticStrong norms outweigh – analytic means a. analytic and b. analyticVoter for evidence ethics. Your role as an educator - analyticAcademic rules are A) analytic B)analyticNo RVI for evidence ethicsIt incentives them to read unclear evidence -analytic2. There has to be some way to test the aff’s evidence -analytic12 Brentwood WJ Aff RacePlea bargaining is the criminal justice system and the criminal justice system is the modern plantation. Plea bargaining undergirds the transformation of chattel slavery and black codes to sentencing regimes manifesting as mandatory minimums and the prison industrial complex?Heiner 16 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA);?;?"The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIn his autobiographical texts, … and racially oppressed.?Best and most recent statistics prove plea bargaining is unquestionably discriminatory - it controls black incarceration and criminalizationBerejo 17 Berdejó, Carlos (Before joining the faculty at Loyola Law School, Carlos was a graduate student at Harvard University, where he obtained his PhD in Economics. ?As a doctoral student, he devoted much of his scholarship to the interaction of law and economics, and in particular to understanding the impact of judicial institutions on judges' behavior. ?Prior to beginning his graduate studies, he practiced as a corporate attorney in New York, representing Latin American clients in various types of financings and in related securities law matters. ?His current research employs economic tools to further our understanding of the regulation of securities and other investments and of how legal regimes influence corporations' financing decisions.), Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39. Available at SSRN:? racial disparities … later in the article. 174Plea bargaining is the procedural entrapment that sustains mass incarceration - the unreviewable power of the prosecutor strips bodies of rights and sediments racial dominationHeiner 2 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA);?;?"The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJThe systematic practice of … people of color.82The intricate mechanics of the misdemeanor process racialize crime and mark black folks as criminals absent the presumption of innocence. Prioritizing efficiency over truth creates the stereotype of the black offender and causes mass incarceration.Natapoff 12 Natapoff, Alexandra (Professor of Law UC Irvine Law School; Expertise: Criminal law and procedure, misdemeanors, informants, public defense, law and inequality Background: Professor Natapoff's scholarship has won numerous awards, including a 2016 Guggenheim Fellowship, the 2013 Law and Society Association Article Prize, and two Outstanding Scholarship Awards from the AALS Criminal Justice Section. Her original work on criminal informants has made her a nationally-recognized expert: her book Snitching won the 2010 ABA Silver Gavel Award Honorable Mention for Books. Professor Natapoff's current work-including her new book-focuses on misdemeanors and their powerful influence over the criminal system as a whole. She has presented her misdemeanor work at numerous institutions including Harvard, the University of Chicago, the ABA, and the National Science Foundation. Professor Natapoff is a member of the American Law Institute; in 2015 she was appointed as an Adviser to the ALI Policing Project. She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets. Prior to joining the academy, Professor Natapoff served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. She clerked for the Honorable David S. Tatel, U.S. Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, U.S. District Court, Washington, D.C.), Misdemeanors (February 24, 2012). 85 Southern California Law Review 101 (2012); Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN:? misdemeanor process … the penal system.PlanPlan Text: The Supreme Court of the United States, in the next available test case, ought to rule the practice of plea bargaining unconstitutional on the basis that it violates the equal protection analysis established in State v. Russell.Kruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ?ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993),?, courts could … arbitrary or illegitimate. 27 "Crash the system and let its ruthless efficiency collapse under its own weight. The aff causes a wide scale restructuring of the CJS.Alexander 12 MICHELLE ALEXANDER (Michelle Alexander is a highly acclaimed civil rights lawyer, advocate, and legal scholar. In recent years, she has taught at a number of universities, including Stanford Law School, where she was an associate professor of law and directed the Civil Rights Clinics. In 2005, she won a Soros Justice Fellowship, which supported the writing of The New Jim Crow, and that same year she accepted a joint appointment at the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University. Since its first publication,The New Jim Crow has received rave reviews and has been featured in national radio and television media outlets, including MSNBC, NPR, Bill Moyers Journal, Tavis Smiley, C-SPAN, and Washington Journal, among others. In March, the book won the 2011 NAACP Image Award for best nonfiction.);? 10, 2012; NYTIMES;?BWSWJAFTER years as a … to risk our lives."Absent plea bargaining, the politics of carcerality become unsustainable - the aff opens up space for decriminalization and exposing the contradiction of the lawHeiner 3 ?Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA);?;?"The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIt would be difficult … leased convict laborers.139Davis precedent allows judicial racism to go unchecked - Russell analysis opens the floodgates to challenge discriminatory policiesKruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ?ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993),? State v. Russell, 2 … of many criminal procedures.FramingThis round should be centered on mass incarceration - Ethics in the age of the prison industrial complex require a stance against its specific violence?Roberts 4 Roberts, Dorothy E. (Dorothy Roberts, an acclaimed scholar of race, gender and the law, joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science and Society in the Center for Africana Studies. Her pathbreaking work in law and public policy focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans. Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.), "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. 583.;?, the unprecedented … ' sense of justice.Reject neg args - We're subconsciously primed towards a continuation of plea bargaining?Gocha 16 Alan J. Gocha (Alan's practice is primarily focused on complex intellectual property litigation in electrical, mechanical and software matters. He has experience in both defending against and asserting copyright, trademark, and patent rights. Alan has served as lead counsel in a number of cases, both in state and federal court. He also has experience in appellate advocacy and arbitration. His experience touches a broad range of practice areas, including employment, civil rights, corporations, nonprofit, and bankruptcy law. ?As an attorney, Alan has provided hundreds of hours of pro bono legal services. Alan has a Bachelor of Arts in Philosophy from the University of Michigan and received his Juris Doctor from Georgetown University Law Center in 2016 where he was an editor for the Georgetown Journal of Legal Ethics. He also received a full tuition scholarship to study Communications at Wayne State University, where he ranked nationally on the university policy debate team. While in law school, he was named an Exceptional Pro Bono Pledge Honoree and winner of the first annual Justin Hansford Student Essay Contest, hosted by the Georgetown Journal on Law and Modern Critical Race Perspectives, for his essay titled The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice.), The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 Geo. J. L. and Mod. Critical Race Persp. (2016) Hein?BWSWJAt a cursory glance, the … for state-sponsored oppression. 9Prioritize slow violence---obsession with short timeframe impacts obscures structural factors.?Rob Nixon 10. Rachel Carson Professor of English, University of Wisconsin-Madison. "Slow Violence and the Environmentalism of the Poor." Pages 1-14. 2010.When Lawrence Summers, then president of the World Bank, advocated that the bank develop a scheme to export rich nation garbage, toxic waste, and heavily polluting industries to Africa, he did so in the calm voice of global managerial reasoning.' Such a scheme. Summers elaborated, would help correct an inefficient global imbalance in toxicity. Underlying his plan is an overlooked but crucial subsidiary benefit that he outlined: offloading rich-nation toxins onto the world's poorest continent would help ease the growing pressure from rich-nation environmentalists who were campaigning against garbage dumps and industrial effluent thai they condemned as health threats and found aesthetically offensive. Summers thus rationalized his poison-redistribution ethic as offering a double gain: it would benefit the United States and Europe economically, while helping appease the rising discontent of rich-nation environmentalists. Summers' arguments assumed a direct link between aesthetically unsightly waste and Africa as an out-of-sighl continent, a place remote from green activists' terrain of concern. In Summers' win win scenario for the global North, the African recipients ot his plan were triply discounted: discounted as political agents, discounted as long-term casualties of what 1 call in this book "slow violence," and discounted as cultures possessing environmental practices and concerns … ongoing, belated casualties.No counterplans - negatives must defend the squoPlants 89 COUNTERPLANS RE-VISITED: THE LAST SACRED COW? J. Daniel Plants, Baylor University 1989 - Punishment Paradigms : Pros and Cons;? notion of "as compared … object to such strategies.12 Brentwood WJ Neg Abolish =/= CurtailmentInterpretation: The affirmative must defend an end to all plea bargainingAbolition requires the complete end of a practice Merriam Webster 17 Merriam Webster; Definition of abolish; Retrieved Dec 4, 2017; BWSWJ(v) to end the observance or effect of (something, such as a law) : to completely do away with (something)That's distinct from curtailment - reducing the amount of plea bargaining isn't topicalBlacks Law Dictionary 1990 BLACK'S LAW DICTIONARY, 1990. Retrieved May 28, 2015 from . To cut off the end or any part of; hence to shorten, abridge, diminish, lessen, or reduce; and term has no such meaning as abolish. State v. Edwards, 207 La. 506, 21 So.2d 624, 625.Violation: You defend limiting certain types of plea bargainingT TopicThe aff isn't topical - a white horse isn't a horseLongzi 5 Gongsun Longzi. (Translated in 2005). Readings in Classical Chinese Philosophy, pp. 364-365, p. 364, at Google Books BWSWJCan it be ... not a horse.Vote neg - non-topical affs destroy limits and clash because I can't respond with rigorous preparation and test the aff. Absent a prepared case neg I can't test the truth claims of the aff and you should presume they're false.DA Court ClogUQ - Court ClogCourts not overwhelmed now - reforms like plea bargaining mean judges can handle caseloadPryor 11/29 William Pryor (William H. Pryor Jr. is a judge on the United States Court of Appeals for the 11th Circuit and acting chairman of the United States Sentencing Commission.); NOV. 29, 2017; ; "Conservatives Should Oppose Expanding the Federal Courts"; NYT Op-Ed; BWSWJBIRMINGHAM, Ala. - A prominent ... judgeships should be opposed.UQ - EconEcon goldilocks now - smooth growth prevents inflation - only risk is policy changeCushman and Wakefield 9/27, leading global real estate services firm, 45,000 employees in more than 70 countries, 9/27/2017 (Strong Consumer Confidence, Job Growth and Global Economic Resilience Create "Goldilocks" Economy, article/443721/strong-consumer-confidence-job-growth-and-global-economic-resilience-create-goldilocks-economy)The U.S. economy has ... the post WWII era."Plea bargaining would create a massive jam in the court systemWalsh 17 Dylan Walsh; May 2, 2017; ; Why U.S. Criminal Courts Are So Dependent on Plea Bargaining; BWSWJShondel Church was ... system "less awful."I'll insert this graph into the debateBureau of Prison 10/28 ; Bureau of Prisons; Offenses Statistics based on prior month's data -- -- Last Updated: Saturday, 28 October 2017; BWSWJImpact - Econ LegitimacyCourt clog kills court legitimacy - they can't functionLeahy 12 (Sen. Patrick Leahy, "Statement Of Senator Patrick Leahy On The Nominations Of Mary Elizabeth Phillips To The Western District Of Missouri And Thomas Owen Rice To The Eastern District Of Washington." 3/6/12 )While consensus judicial ... costs taxpayers money."Court legitimacy is key to every aspect of the economy.Dove 15 (John A. Dove, Manuel H. Johnson Center for Political Economy, Troy University, 2015, "The effect of judicial independence on entrepreneurship in the US states," Econ. Syst.)There have also ... on entrepreneurial activity.Economic collapse causes nuclear war T?nnesson 15 - (Stein T?nnesson, Leader of programme on East Asian peace @ Uppsala University, "Deterrence, interdependence and Sino-US peace," International Area Studies Review, 18:3, p.297-311, , accessed 7-13-2017, SagePub, JSO)Several recent works ... Beijing to interveneCP Sex Offender AdmissionCP Text: The United States should have judges only accept pleas from sex offenders if they provide a full and detailed admission of guilt. If the offender denies his or her crime while incriminated, they will participate in therapy programs to encourage the personal admission of guilt.The CP competes through net benefits The CP holds sex offenders accountable for their crimes through diminishing their cognitive distortions and denial.Wexler 93 David B. Wexler (Professor of Law and Director of the International Network on Therapeutic Jurisprudence at the University of Puerto Rico in San Juan, Puerto Rico, and Distinguished Research Professor of Law, Rogers College of Law, Tucson, Arizona), 1993, Wm. and Mary L. Rev. 279, Therapeutic Jurisprudence and the Criminal Courts, BWSKRThe therapeutic potential ... resistance from defendants.A Priori - Curry’s ParadoxProposition: If this sentence is true, then the United States Federal Government should not abolish plea bargaining in court cases involving sexual offenses.The conditional is true if the truth of the antecedent guarantees the truth of the consequent. Assume the antecedent were true; the sentence would be true because the antecedent asserts the truth of the conditional. Because the conditional statement would be true, and its antecedent would also be true, the consequent would follow. Therefore, if the antecedent is true, the consequent is true, and the conditional is true.Because the conditional is in fact true, the antecedent is also true. Therefore, the truth of the consequent follows: the United States Federal Government should not abolish plea bargaining in court cases involving sexual offenses.CP ReformCP Text: The United States criminal justice system should reform plea bargaining to require written plea agreements, prohibit waivers of critical rights, provide broad pre-plea discovery, strengthen judicial oversight, adopt limits on Plea Discounts Courts, and limit sentencing concessions offered by prosecutors. Turner is the solvency advocateTurner 3/17 - Jenia Iontcheva Turner is a professor of law at Southern Methodist University (Dedman School of Law). "Plea Bargaining," March 13, 2017? Written Plea ... to consider them.Theory Spec Plea BargainingInterp: The affirmative must clarify what forms of plea bargaining their plan abolishes with minimally a delineated text in the 1AC. To clarify, it is not sufficient to just say plea bargaining in generalViolation: You don'tNet Benefits:Strat skew - The definition of plea bargaining is super ambiguous, there's no standard definitionSnyman and Toit 2k E SNYMAN (LLM, Senior Lecturer, Centre for Business Law; University of the Free State.) ; SDU TOIT (LecuturorDepartment of Mercantile Law, University of the Free State.); Defining and Evaluating Plea Bargaining, 13 S. Afr. J. Crim. Just. (2000) ; HeinOnline; BWSWJSettling a criminal case ... and judicial restraints.That's a prerequisite to debate - we can't debate the core issues without itGuidorizzi 98 Douglas D. Guidorizzi, Should we Really Ban Plea Bargaining: The Core Concerns of Plea Bargaining Critics, 47 Emory L. J. (1998) BWSWJNo standard definition ... plea bargaining asDA No Test CaseRuling without a case and controversy wrecks court legitimacyEpstein, 98 - professor of political science and professor of law at Washington University (Lee, The Choices Justices Make, p. 160-161)This story suggests ... of the adversarial system.Turns case - the requirement of a test case is the internal link to court legitimacy, enforcement of decisions, and non-partisanshipKing, 2000 (Brian, 10 Kansas Journal of Law and Public Policy 215, ) There must also ... them less political.Wrecks judicial independence and is modeled globallyNickels, 98 (John, Justice, Illinois Supreme Court, "The Need for an Independent Judiciary", 12/11, )A truly independent ... fair and impartial.Court legitimacy is key to every aspect of the economy.Dove 15 (John A. Dove, Manuel H. Johnson Center for Political Economy, Troy University, 2015, "The effect of judicial independence on entrepreneurship in the US states," Econ. Syst.)There have also ... on entrepreneurial activity.Economic collapse causes nuclear war T?nnesson 15 - (Stein T?nnesson, Leader of programme on East Asian peace @ Uppsala University, "Deterrence, interdependence and Sino-US peace," International Area Studies Review, 18:3, p.297-311, , accessed 7-13-2017, SagePub, JSO)Several recent works ... Beijing to interveneIndependent judiciaries are vital to prevent diseaseGreco, 5 (Michael, president of the American Bar Association, Miami Daily Business Review, 12/5, lexis)What makes the ... of such prisoners.ExtinctionDaswani, 96 (Kavita, South China Morning Post, 1/4, lexis)Despite the importance ... race," he said.CP Discounts / CeilingsCounterplan text: The United States state and federal governments ought to reform the plea-bargaining process to include mandatory plea-based ceilings that are consistent with the discount offered in the plea. Covey 8 - Russell D. Covey, Associate Professor, Georgia State University College of Law ("Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings" Tulane Law Review Vol. 82:1237 2008. ) JPThe idea underlying ... in weak cases. This also evades plea tactics designed to coerce defendantsCovey 8 - Russell D. Covey, Associate Professor, Georgia State University College of Law ("Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings" Tulane Law Review Vol. 82:1237 2008. ) JPPlea-based ceilings ... their right to trial.13 HW AM Aff StockACAdvantage 1 DiscretionSessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power.Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, n28 including the right to redress sentencing errors that have not yet occurred. n29 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n32 on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n42 Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire CJS.Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012 What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.This results in cycles of criminalization, dehumanization, and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Interpedently, rights violations result in rampant totalitarianism and an inability to critique power. Inga Ivsan, University of Miami School of Law & Philip E. Heckerling Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. (2017)Plea bargaining is not necessarily bad in and of itself, but its extreme overuse raises concerns about the U.S. criminal justice system.7 The pleabargaining process does not afford any constitutional or ethical protections.' For example, suppose police obtain evidence illegally, without a warrant. Prosecutors would prefer to keep a case built on warrantless evidence out of court rather than have the illegal police conduct exposed at trial. 9 A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.'o Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on questionable evidence, and accepts a lesser punishment in exchange for sacrificing the defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the subjects of bargaining and barter."" The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had indeed incorporated it into the Sixth Amendment.12 While plea bargains originally were used as a practical compromise between an overburdened prosecutor and a defendant of certain guilt, modernday plea bargains resemble one-sided contracts of adhesion 3 favoring a prosecutor too often holding insufficient evidence14 gainst a criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being sentenced to purgatory under current sen- tencing guidelines." A rational defendant, particularly in federal court, cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking additional charges' 6 and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size of the financial loss without any requirement that the defendant be found to have intended the loss.' 7 On average, the defendant who turns down a plea offer and is later convicted receives a sentence three times longer than under a plea agreement." Combined with a growing list of vague and poorly drafted statutes defining various crimes, prosecutors can target individuals and coerce them into plea bargains by promising to drop charges against family members' 9 and freezing assets.20 By punishing the defendant with a sentence three times longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary" and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v. United States.2 ' While acknowledging the utility or impossibility of getting rid of plea bargains in the modem criminal justice system, this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors when coupled with incredibly long sentences for those who risk conviction at trial, especially in complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial legal system. First conceived as a convenient procedural tool of expediency, modem plea bargain practice has supplanted trials altogether, severely punishing those few who dare exercise their Sixth Amendment right to trial.2 2 This article proposes a practical solution, one borrowed from the business world, to restore parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in which the government has absolute, unfettered discretion to selectively punish anyone and every- one.23 Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize government power at the expense of individual rights.24 The government enjoyed immense discretion to apply vaguely-written laws to political opponents and other disfavored individuals. 25 Even today, countries such as Iran continue to exploit such prosecutorial mechanisms to suppress freedom of discourse.2 6 The sad irony is that, while the United States may have won the Cold War, its legal institutions have gravitated toward resembling the inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modem American society can possibly know all of his or her individual legal obligations. For example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print.27 With over 5,000 federal criminal laws on the books, one legal scholar has determined that the average person unknowingly commits three felonies every day. 28 Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers, among other white-collar professionals, often operate in perpetual fear of the regulation state. Should their behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of justice or conspiracy, to threaten in order to gain cooperation.2 9 Thus, under the current system of plea bargaining, the adversary legal system is being severely undermined and an innocent individual is sacrificed for the pretense of the public good and its insatiable need to regulate every aspect of individual life. As the hero in Arthur Koestler's Stalinist critique novel Darkness at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind."3 0Advantage 2 Legitimacy Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. NOVEMBER 21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.2 million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the 2nd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.Perception that court decisions are done through back room deals tanks legitimacy. Stephanos Bibas. 2006 Associate Professor, University of Iowa College of Law; Visiting Associate Professor, University of Chicago Law School; Professordesignate, University of Pennsylvania Law School; former Assistant U.S. Attorney, Criminal Division, U.S. Attorney's Office for the Southern District of New York. B.A., Columbia University; B.A. and M.A., University of Oxford; J.D., Yale Law School NEW YORK UNIVERSITY LAW REVIEW VOLUME 81 JUNE 2006 NUMBER 3 / SMToday, however, criminal justice is the province of professionals. A gulf divides the knowledgeable, powerful participants inside American criminal justice from the poorly informed, powerless people outside of it. The insiders-the judges, prosecutors, police, and defense counsel who regularly handle criminal cases-are professional repeat players who dominate criminal justice. They come to know the kinds of crimes, defendants, and sentences that dominate the justice system. They understand the intricate, technical rules that regulate arrests, searches and seizures, interrogations, discovery, evidence, and sentencing, as well as the going rates in plea bargaining. In short, they are knowledgeable. Insiders control the levers of power, deciding which cases to charge, which crimes and defendants should receive probation, and what prison sentences are appropriate. They reach many of these decisions in private negotiating rooms and conference calls; in-court proceedings are mere formalities that confirm these decisions. In an earlier era, lay juries and the litigants themselves called many of these shots at public trials. In a world in which plea bargaining resolves almost 95% of cases,1 however, professionals (especially lawyers) run the show. 1 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 426-27 tbl.5.24 (2004), available at http:// albany.edu/sourcebook/pdf/t524.pdf (reporting that in fiscal year 2003, 95.4% of criminal defendants in federal district court whose cases were not dismissed pleaded guilty or no-contest); id. at 450 tbl.5.46, available at t546.pdf (reporting that in 2000, 95% of state felony convictions resulted from guilty pleas). These figures exemplify a trend in recent decades away from trials and toward pleas. As recently as 1990, only 83.7% of federal criminal defendants whose cases were not dismissed pleaded guilty or no-contest. Id. at 423 tbl.5.22, available at sourcebook/pdf/t522.pdf (displaying increasing proportion of pleas and decreasing proportion of trials since 1970s); see also BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1994, at 486 tbl.5.49 (1995), available at (reporting that in 1992, 92% of state felony convictions resulted from guilty pleas). While not all guilty pleas result from plea bargains, most felony guilty pleas do. HERBERT S. MILLER ET AL., U.S. DEP'T Reprinted with Permission of New York University School of Law [Vol. 81:911 TRANSPARENCY IN CRIMINAL PROCEDURE Insiders also have a distinct set of incentives and practical concerns. While they may share the public's intuitions about justice and retribution, they also have self-interests in disposing of large caseloads quickly, reducing their own workloads, rewarding cooperative behavior, and ensuring certainty of conviction and sentence at the cost of severity. Dealing face-to-face with offenders, they may develop sympathy and see individualized mitigating and aggravating factors that the public does not. There is also some evidence that insiders mellow with time, perhaps because repeated exposure dulls outrage and makes some crimes seem less heinous.2 Outsiders, namely the general public and many victims, have a very different perspective. To them, the criminal justice system seems opaque, hidden behind closed doors, and cloaked in jargon, technicalities, and euphemism. Public information about criminal justice is notoriously inaccurate and outdated, derived from television and movies in which trials are worlds away from the reality of plea bargaining. Outsiders have few ways to learn about, let alone participate in, the progress of most pending cases unless a newspaper publishes a verdict or sentence after the fact. Instead of participating in jury trials, the public must rely on sensationalist and often distorted media accounts of atypical, high-profile cases, from which citizens overgeneralize about the system as a whole. Politicians seize on these salient examples to whip up popular outrage at what may be an aberration rather than a trend. Thus, surveys show that outsiders consistently underestimate the average nominal sentences for particular crimes and so believe they need to be stiffened. In addition, outsiders do not share insiders' agency costs, their aversion to risking acquittals, and their jadedness or mellowing over time.3 The result is an enduring tension between self-interested insiders and excluded outsiders. The insiders have firsthand knowledge and understanding, run the show, and accommodate their own pragmatic concerns and self-interests. The outsiders find criminal justice opaque, run by lawyers, and more concerned with efficiency and technicalities than with justice. This tension is far from an absolute dichotomy. Insiders bring their senses of justice to bear and not just their self-interests, and outsiders can at least dimly see some of the practical constraints on insiders. Moreover, outsiders are not by nature more harsh or punitive. When surveyed in the abstract, outsiders say they believe the OF JUSTICE, PLEA BARGAINING IN THE UNITED STATES 17 (1978) (basing this finding on field research). 2 See infra note 30 and accompanying text. 3 See infra Part I.C. Reprinted with Permission of New York University School of Law June 2006] NEW YORK UNIVERSITY LAW REVIEW criminal justice system is too lenient. But when confronted with detailed cases, the public is often no more punitive than insiders,4 apart from the jading or mellowing process mentioned earlier. On average, however, insiders are more concerned with and informed about practical constraints, and they are comfortable with the trade-offs and the system that they themselves run. Outsiders, knowing and caring less about practical obstacles and insiders' interests, focus on process values and offenders' just deserts. The gap in information, participation, and self-interests causes insiders' and outsiders' views to diverge. While victims and the public expect police and prosecutors to represent their interests in a sense, each group has a markedly different perspective. A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 1923 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan TextThe Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” 26 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."2 With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.2 " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. 2 History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.FrameworkRights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.182? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'85A focus on purely intent based frameworks crush our ability to respond to violence. McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo(Martha, “How the "Unintended Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi: dx.doi:10.15779/Z381664)By similarly making structures of inequality appear beyond the reach of law reform, the "unintended consequences" message helps update and reinforce the narrowing of protections against intentional racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and in what form and to whom. Power is centrally about being able to act without having to take harm to others into account. This power to gain by harming others is strongest when it operates through systems and structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the "unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice requires careful attention to both harmful intent and to complex harmful effects. But the concept of "unintended consequences" inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that message promotes the theme that those who have power to ignore their harmful effects on others need not-indeed should not-be induced by law to care about this harm, because this caring is what is harmful. One right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites should reject stories of "unintended consequences" and instead scrutinize the power and laws that have so effectively achieved the intention of making devastating losses to so many of us seem natural, inevitable, and beneficial.13 HW AM Neg Defense RightsOnly an embrace of rights can right power. This doesn’t require a fixed concept of rights, but just the recognition that without legal gurantees those with power can trounce on the less powerful. Our stance is the only possible middle ground. Balkin, Jack M. "Critical legal theory today." (2008).The relative autonomy of law from politics – rather than its complete? autonomy – simultaneously poses a threat and a promise. The threat is that law? will fail to do much more than ratify and legitimate the interests of the powerful;? the promise is that it might hold off the worst excesses of power by giving people? discursive and institutional tools to talk back to power, to restrain its selfishness? and inhumanity, and to imagine finer, better visions of human association.? The threat and the promise of law are joined together inseparably. What? gives law its power to legitimate is its ability to re-describe unjust and unfair? events, social practices and institutions in terms of valued ideals of human? association like consent, freedom, dignity, equality and fairness. In the hands of? lawyers and politicians, law can disguise, mystify and legitimate great injustices? using the very ideas and ideals we admire. But law can only do this because it? appeals to these values and claims to try to put them into practice through law.? Recourse to law forces the powerful to talk in terms in which the powerless can? also participate and can also make claims.? From this standpoint, law is not simply an efficient tool of power that? powerful people and powerful groups can wield any way they like. They do not? merely shape the world with it; rather it shapes them and their world, because? they have bought into law as a means of achieving and wielding power. Law? shapes their beliefs and desires, their sense of the appropriate and the? inappropriate, their conceptions of the possible and impossible. Law generates its? own institutions and its own demands; it creates its own culture, it is its own form? of life; it struggles with other forms of knowledge and power for dominance.? That struggle might lead to yet another form of professional power displacing older ones. But it might offer a space for something far more beneficial and? noble.? The critical approach to law—or at any rate, my version of it—has always? been doubled, has always reflected the Janus word “legitimate.” On the one hand,? powerful people have used law to subordinate others and secure their own? interests under the guise of promoting laudable goals like freedom, equality,? liberty, consent, community and human dignity. On the other hand, by choosing? to speak in the language of law, powerful people and interests can sometimes be? called to account because they try to legitimate what they are doing in those? terms. The people they take advantage of can argue that this is a misuse of law,? an illegitimate attempt at mystifying rhetoric. They can appeal to the values that? law seeks to protect to promote better, more just, and more humane practices and? forms of human association.? Important theoretical debates among critical scholars in the 1970s and? 1980s period revolved around which conception of law was the best one. Some? critical scholars adopted a largely pejorative conception, focusing primarily on? law’s defects. They argued that the rule of law was enmeshed in irreconcilable? contradictions; they denounced rights talk as sterile, useless and? counterproductive.5? Others, especially feminist and critical race theory scholars,? pointed out that rights discourse and rule of law values were among the few? resources that disempowered people had.6? Rule of law and rights talk were? potentially emancipatory discourses. They held a limited but important potential? for liberation and for contesting the arbitrary and unjust use of power.? These feminist and critical race theorists understood the deemphasized elements – the other side – of critical claims about the relative autonomy of law.? They well recognized that rule of law values and rights discourse were hardly? perfect – after all, they had been used repeatedly to justify slavery and the? subordination of women – but that they had also allowed people to speak out? against and to restrain the worst excesses of power. Even in a period of deep? skepticism and disillusionment about what law could do, these critical scholars? retained a sense of the political importance of rule of law values and rights? discourse. That is not because they believed in a strict autonomy of law from? politics, but because they understood the political values that legal culture and? rights discourse might serve. The best version of critical theory, I think, employs an ambivalent? conception of law rather than a pejorative conception: it recognizes law’s relative? autonomy from other forms of power in social life, and it understands the dual or? Janus-faced nature of that relative autonomy. It sees both law’s limitations in the? face of power and its possibilities as a means of channeling power and preventing? its most serious injusticesDemands on the state cause crises in the law that solve the K – the alt purposefully cedes the political to keep the left in DA/PIC ImpeachmentPIC/DAPIC: We agree with their rejection of the law except in the use of plea bargains in the Special Counsel 2017 investigation. More plea deals in Trump-Russia are coming – Flynn’s plea and prisoner’s dilemma prove.Jed Handelsman Shugerman 12-1-2017, "How Robert Mueller’s Deal With Michael Flynn Neutralizes Trump’s Pardon Power," Slate Magazine, prisoner’s dilemma is a famous problem in prosecutions and in academic game theory. A prisoner (or more illustratively in this case, a defendant) knows if he holds out against making a deal, and if all his co-defendants in other jail cells also hold out, they will all go free. However, if he holds out and another defendant confesses and implicates him, he will get a much worse sentence. If everyone confesses, everyone gets something in between. So, the dilemma here is whether to assume everyone is holding out or whether to assume someone else is confessing to get a better deal. Up until now, only a very small figure—Papadopoulos—had confessed, not enough to make any central figure rethink his assumptions. But now that Flynn is cooperating with Mueller, all bets are off. Everyone knows the next few cooperators will get deals, but the later you cooperate, the worse deal you get. The last (and biggest) co-conspirators get no deals at all. Flynn’s deal could be a moment that breaks the silence, and opens the gates for others to cooperate with Mueller to get a deal while there are still deals on the table.Mueller probe is close to succeeding now, but plea deals are key to providing prosecutors with the proper tools.Greg Farrell et al 12-7, Tom Schoenberg, Neil Weinberg 17, 12-7-2017, "Mueller’s Investigation Just Got Some Insurance," Bloomberg, Mueller’s probe has gotten closer to Trump’s inner orbit, speculation has risen over whether Trump might find a way to shut it down. The Flynn deal may make that harder. For one thing, it shows that Mueller is making progress. “Any rational prosecutor would realize that in this political environment, laying down a few markers would be a good way of fending off criticism that the prosecutors are burning through money and not accomplishing anything,” says Samuel Buell, a former federal prosecutor now at Duke Law School. The Flynn plea also makes it difficult for Trump to fire Mueller without inviting accusations of a cover-up and sparking a constitutional crisis, says Michael Weinstein, a former Department of Justice prosecutor now at the law firm Cole Schotz. “There would be a groundswell, it would look so objectionable, like the Saturday Night Massacre with Nixon,” Weinstein says, referring to President Richard Nixon’s attempt to derail the Watergate investigation in 1973 by firing special prosecutor Archibald Cox. Even if Mueller goes, his team is providing tools that other prosecutors or investigators can use to continue inquiries. Flynn’s deal requires him to cooperate with state and local officials as well as with federal investigators. That includes submitting to a polygraph test and taking part in “covert law enforcement activities.” Mueller also has provided a road map to state prosecutors interested in pursuing money laundering charges against Trump’s former campaign chairman, Paul Manafort. Mueller’s case against Manafort lays out a series of irregular wire transfers made from Manafort’s bank accounts in Cyprus to a variety of companies in the U.S. The sums that Manafort transferred suggest the possibility that some of the money was diverted for other purposes. Mueller stopped short of filing charges related to where the money went. But by including the details in his indictment, he left open the possibility of bringing charges in a follow-up indictment and perhaps left breadcrumbs for state authorities to pursue. The president can pardon people convicted of federal crimes; only governors can pardon those convicted under state law. For prosecutors in New York, “the Manafort case is like a legal Chia Pet,” says Weinstein. “Just add water, and it grows.” Manhattan District Attorney Cyrus Vance Jr. is investigating the circumstances surrounding unusual real estate loans to Manafort from a bank run by Steve Calk, who served as an adviser to the Trump campaign. New York Attorney General Eric Schneiderman is conducting his own Trump-related probe. Trump’s reaction to Flynn’s plea raised fresh questions about whether the president had obstructed justice. The day after Flynn appeared in court, Trump tweeted that he fired Flynn because he’d lied to the FBI, which some lawyers say provided a new piece of evidence of what the president knew and when he knew it. Legal experts say Mueller’s ability to bring an obstruction case against Trump could hinge on whether the president was aware of Flynn’s illegal activities when he fired FBI Director James Comey. Prosecuting an obstruction case without an underlying crime is problematic. Critics could demand to know what crime Trump or his campaign officials committed to justify the charge. Many have already argued that collusion itself isn’t a crime. And within days of the Flynn agreement, Trump’s personal lawyer, John Dowd, began pushing back against the notion that a sitting president can even be charged with obstruction. Mueller is also looking at conduct before the election, when Trump was a private citizen and not covered by the executive protections afforded by the Oval Office. If Mueller uncovers evidence that the campaign accepted Russian help, that opens up the possibility of charging people in the Trump campaign with conspiracy related to the solicitation of in-kind foreign donations. Mueller’s team would be on stronger ground if it uncovered evidence of any quid pro quo deals struck during the campaign, either in changes to the GOP platform favoring Russia or promises made to entice Moscow’s help against Hillary Clinton. Flynn alone may not be enough to advance an obstruction or collusion case. Prosecutors would likely need evidence against other high-ranking Trump associates, including perhaps Jared Kushner. “Unless you’ve got them on tape, you’re going to need a lot better witnesses than Flynn,” says Raymond Banoun, a former federal prosecutor. Some experts believe that Mueller’s probe is now almost certain to reach a step beyond that. “Before this is wrapped up, Mueller’s going to request an interview with the president, and he may even request it under oath,” says Amy Sabrin, a Washington lawyer who worked for Bill Clinton on the Paula Jones sexual harassment case. “And then what is Trump going to do?” Use of plea deals is specifically key to bring down Trump – it avoids constitutional questions and political battles.Kimberly Wehle 12-8 [professor of law at the University of Baltimore School of Law, former assistant United States attorney], "A presidential plea deal is better than impeachment," are heating up with Robert Mueller’s criminal probe of Russia’s interference with the 2016 presidential election. And the Trump campaign’s ties to that Russian effort continue to prompt questions, including whether — if the evidence shows that he violated the law — the president himself could be held accountable in the criminal justice system. President Trump’s personal attorney has publicly declared that his client cannot as a matter of constitutional law be charged and prosecuted for obstruction of justice. Is he right? This is a highly complex legal question, to be sure. But the likely answer is no, for a number of reasons. To make it short, it is hard to persuasively dispute that the president is not above the law under the Constitution, and that he can certainly act in ways that would legally amount to obstruction of justice. Whether impeachment is the exclusive constitutional route to presidential accountability is doubtful as well, although like much of the Trump presidency, nobody knows for sure what the Supreme Court would say. But more to the point, if this president did, in fact, obstruct justice or violate any other criminal law, the tea leaves suggest that, strategically, neither a public indictment, criminal trial or an impeachment trial are likely. The better course for the country and the Trump family would be for the president to give serious consideration to resignation and a plea deal. Mueller’s predecessors both considered the question of whether a president can be prosecuted and indicted while in office. Both answered yes. In 1998, Ken Starr’s office analyzed whether President Clinton could be indicted after deputies advised him that they had gathered enough evidence to ask a grand jury for an indictment. Starr’s legal ethics counsel concluded that a sitting president is subject to indictment and criminal prosecution, but that he might not be subject to imprisonment during his term. In 1974, Leon Jaworski’s office concluded the same thing about President Nixon: he could be indicted. The question is not a slam-dunk, however, so Jaworski named Nixon an “unindicted co-conspirator” in an apparent ploy to avoid a constitutional showdown. For its part, the Supreme Court held in 1997 that Clinton could be subject to a private civil lawsuit while in office. That effort ultimately led to his impeachment. The Department of Justice’s Office of Legal Counsel concluded in 1973 and again in 2000 that a criminal prosecution would undermine the executive branch’s ability to perform its functions, in the wake of Clinton v. Jones. Trump cannot viably claim that Article II of the Constitution fully insulates him from legal interference with his ability to do his job as president. The question may come down to whether a criminal prosecution is somehow different from a civil claim for money damages, and the Supreme Court would no doubt consider these historical views if Trump’s sky were to fall and the issue to reach the court. In any event, Mueller’s team of career prosecutors will want to see justice done, and it appears that this Republican Congress is ideologically disinclined to take a hard look at impeaching any Republican president, regardless of the charges. Thus, Mueller might do well to avoid a lengthy legal battle over the constitutionality of his prosecutorial authority, and strike a deal with Trump. This maneuver assumes, of course, that Mueller is able to compile an evidentiary dossier of criminal wrongdoing that would put serious pressure on the first family to do a deal. Nobody but Mueller’s team knows for sure what evidence it has (if any) that implicates the president of the United States in criminal wrongdoing. But we do know that Trump’s sons and son-in-law — to some extent, at least — are entangled in the Flynn drama that led to his perjury plea. Nixon and Clinton had their own hides to save. Trump also has family members to think about, and an impeachment process won’t cover them. The Trump children change the stakes in this particular game, and Mueller has shown through Flynn’s son that he is willing to go down the familial path. If the evidence does wind up leading to the White House, therefore, the best outcome for the Trumps might be the president’s resignation and their respective plea(s) to something relatively trivial. (That would still leave the New York Attorney General investigation of Trump’s dealings out there, but Mueller could try to broker a global resolution.) Flynn’s fate is perhaps premonitory. If all that Mueller had against Flynn was a perjury charge, it’s unlikely he would have agreed to plead guilty at this juncture. With the whiff of a presidential pardon in the air, all Flynn had to do was call Mueller’s bluff, force a trial on a diminutive charge, accept a pardon, and paint the entire investigation as much political ado about nothing. Given the tight-lipped ethos of the Mueller operation, we are living in the world of speculation, to be sure. But with Mike Flynn Jr. in the mix, it seems more likely that his dad struck a deal — and one that suggests he has information that hurts people up the chain of command. At the end of the day, as the harsh realities set in for Trump, a constitutional conundrum over whether sitting presidents may be criminally prosecuted could remain but a theoretical footnote in American history.Continued Trump presidency causes extinction – aggressive foreign policy, authoritarianism, isolationism and warming catastrophes.Baum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.K AgambenIn Moulmein, in Lower Burma, I was hated by large numbers of people — the only time in my life that I have been important enough for this to happen to me. I was sub-divisional police officer of the town, and in an aimless, petty kind of way anti-European feeling was very bitter. No one had the guts to raise a riot, but if a European woman went through the bazaars alone somebody would probably spit betel juice over her dress. As a police officer I was an obvious target and was baited whenever it seemed safe to do so. When a nimble Burman tripped me up on the football field and the referee (another Burman) looked the other way, the crowd yelled with hideous laughter. This happened more than once. In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. The young Buddhist priests were the worst of all. There were several thousands of them in the town and none of them seemed to have anything to do except stand on street corners and jeer at Europeans.All this was perplexing and upsetting. For at that time I had already made up my mind that imperialism was an evil thing and the sooner I chucked up my job and got out of it the better. Theoretically — and secretly, of course — I was all for the Burmese and all against their oppressors, the British. As for the job I was doing, I hated it more bitterly than I can perhaps make clear. In a job like that you see the dirty work of Empire at close quarters. The wretched prisoners huddling in the stinking cages of the lock-ups, the grey, cowed faces of the long-term convicts, the scarred buttocks of the men who had been flogged with bamboos — all these oppressed me with an intolerable sense of guilt. But I could get nothing into perspective. I was young and ill-educated and I had had to think out my problems in the utter silence that is imposed on every Englishman in the East. I did not even know that the British Empire is dying, still less did I know that it is a great deal better than the younger empires that are going to supplant it. All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny, as something clamped down, in saecula saeculorum, upon the will of prostrate peoples; with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. Feelings like these are the normal by-products of imperialism; ask any Anglo-Indian official, if you can catch him off duty. One day something happened which in a roundabout way was enlightening. It was a tiny incident in itself, but it gave me a better glimpse than I had had before of the real nature of imperialism — the real motives for which despotic governments act. Early one morning the sub-inspector at a police station the other end of the town rang me up on the phone and said that an elephant was ravaging the bazaar. Would I please come and do something about it? I did not know what I could do, but I wanted to see what was happening and I got on to a pony and started out. I took my rifle, an old .44 Winchester and much too small to kill an elephant, but I thought the noise might be useful in terrorem. Various Burmans stopped me on the way and told me about the elephant's doings. It was not, of course, a wild elephant, but a tame one which had gone ‘must’. It had been chained up, as tame elephants always are when their attack of ‘must’ is due, but on the previous night it had broken its chain and escaped. Its mahout, the only person who could manage it when it was in that state, had set out in pursuit, but had taken the wrong direction and was now twelve hours’ journey away, and in the morning the elephant had suddenly reappeared in the town. The Burmese population had no weapons and were quite helpless against it. It had already destroyed somebody's bamboo hut, killed a cow and raided some fruit-stalls and devoured the stock; also it had met the municipal rubbish van and, when the driver jumped out and took to his heels, had turned the van over and inflicted violences upon it.The Burmese sub-inspector and some Indian constables were waiting for me in the quarter where the elephant had been seen. It was a very poor quarter, a labyrinth of squalid bamboo huts, thatched with palmleaf, winding all over a steep hillside. I remember that it was a cloudy, stuffy morning at the beginning of the rains. We began questioning the people as to where the elephant had gone and, as usual, failed to get any definite information. That is invariably the case in the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes. Some of the people said that the elephant had gone in one direction, some said that he had gone in another, some professed not even to have heard of any elephant. I had almost made up my mind that the whole story was a pack of lies, when we heard yells a little distance away. There was a loud, scandalized cry of ‘Go away, child! Go away this instant!’ and an old woman with a switch in her hand came round the corner of a hut, violently shooing away a crowd of naked children. Some more women followed, clicking their tongues and exclaiming; evidently there was something that the children ought not to have seen. I rounded the hut and saw a man's dead body sprawling in the mud. He was an Indian, a black Dravidian coolie, almost naked, and he could not have been dead many minutes. The people said that the elephant had come suddenly upon him round the corner of the hut, caught him with its trunk, put its foot on his back and ground him into the earth. This was the rainy season and the ground was soft, and his face had scored a trench a foot deep and a couple of yards long. He was lying on his belly with arms crucified and head sharply twisted to one side. His face was coated with mud, the eyes wide open, the teeth bared and grinning with an expression of unendurable agony. (Never tell me, by the way, that the dead look peaceful. Most of the corpses I have seen looked devilish.) The friction of the great beast's foot had stripped the skin from his back as neatly as one skins a rabbit. As soon as I saw the dead man I sent an orderly to a friend's house nearby to borrow an elephant rifle. I had already sent back the pony, not wanting it to go mad with fright and throw me if it smelt the elephant.The orderly came back in a few minutes with a rifle and five cartridges, and meanwhile some Burmans had arrived and told us that the elephant was in the paddy fields below, only a few hundred yards away. As I started forward practically the whole population of the quarter flocked out of the houses and followed me. They had seen the rifle and were all shouting excitedly that I was going to shoot the elephant. They had not shown much interest in the elephant when he was merely ravaging their homes, but it was different now that he was going to be shot. It was a bit of fun to them, as it would be to an English crowd; besides they wanted the meat. It made me vaguely uneasy. I had no intention of shooting the elephant — I had merely sent for the rifle to defend myself if necessary — and it is always unnerving to have a crowd following you. I marched down the hill, looking and feeling a fool, with the rifle over my shoulder and an ever-growing army of people jostling at my heels. At the bottom, when you got away from the huts, there was a metalled road and beyond that a miry waste of paddy fields a thousand yards across, not yet ploughed but soggy from the first rains and dotted with coarse grass. The elephant was standing eight yards from the road, his left side towards us. He took not the slightest notice of the crowd's approach. He was tearing up bunches of grass, beating them against his knees to clean them and stuffing them into his mouth.I had halted on the road. As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant — it is comparable to destroying a huge and costly piece of machinery — and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow. I thought then and I think now that his attack of ‘must’ was already passing off; in which case he would merely wander harmlessly about until the mahout came back and caught him. Moreover, I did not in the least want to shoot him. I decided that I would watch him for a little while to make sure that he did not turn savage again, and then go home.But at that moment I glanced round at the crowd that had followed me. It was an immense crowd, two thousand at the least and growing every minute. It blocked the road for a long distance on either side. I looked at the sea of yellow faces above the garish clothes-faces all happy and excited over this bit of fun, all certain that the elephant was going to be shot. They were watching me as they would watch a conjurer about to perform a trick. They did not like me, but with the magical rifle in my hands I was momentarily worth watching. And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly. And it was at this moment, as I stood there with the rifle in my hands, that I first grasped the hollowness, the futility of the white man's dominion in the East. Here was I, the white man with his gun, standing in front of the unarmed native crowd — seemingly the leading actor of the piece; but in reality I was only an absurd puppet pushed to and fro by the will of those yellow faces behind. I perceived in this moment that when the white man turns tyrant it is his own freedom that he destroys. He becomes a sort of hollow, posing dummy, the conventionalized figure of a sahib. For it is the condition of his rule that he shall spend his life in trying to impress the ‘natives’, and so in every crisis he has got to do what the ‘natives’ expect of him. He wears a mask, and his face grows to fit it. I had got to shoot the elephant. I had committed myself to doing it when I sent for the rifle. A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing — no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at. But I did not want to shoot the elephant. I watched him beating his bunch of grass against his knees, with that preoccupied grandmotherly air that elephants have. It seemed to me that it would be murder to shoot him. At that age I was not squeamish about killing animals, but I had never shot an elephant and never wanted to. (Somehow it always seems worse to kill a large animal.) Besides, there was the beast's owner to be considered. Alive, the elephant was worth at least a hundred pounds; dead, he would only be worth the value of his tusks, five pounds, possibly. But I had got to act quickly. I turned to some experienced-looking Burmans who had been there when we arrived, and asked them how the elephant had been behaving. They all said the same thing: he took no notice of you if you left him alone, but he might charge if you went too close to him.It was perfectly clear to me what I ought to do. I ought to walk up to within, say, twenty-five yards of the elephant and test his behavior. If he charged, I could shoot; if he took no notice of me, it would be safe to leave him until the mahout came back. But also I knew that I was going to do no such thing. I was a poor shot with a rifle and the ground was soft mud into which one would sink at every step. If the elephant charged and I missed him, I should have about as much chance as a toad under a steam-roller. But even then I was not thinking particularly of my own skin, only of the watchful yellow faces behind. For at that moment, with the crowd watching me, I was not afraid in the ordinary sense, as I would have been if I had been alone. A white man mustn't be frightened in front of ‘natives’; and so, in general, he isn't frightened. The sole thought in my mind was that if anything went wrong those two thousand Burmans would see me pursued, caught, trampled on and reduced to a grinning corpse like that Indian up the hill. And if that happened it was quite probable that some of them would laugh. That would never do.There was only one alternative. I shoved the cartridges into the magazine and lay down on the road to get a better aim. The crowd grew very still, and a deep, low, happy sigh, as of people who see the theatre curtain go up at last, breathed from innumerable throats. They were going to have their bit of fun after all. The rifle was a beautiful German thing with cross-hair sights. I did not then know that in shooting an elephant one would shoot to cut an imaginary bar running from ear-hole to ear-hole. I ought, therefore, as the elephant was sideways on, to have aimed straight at his ear-hole, actually I aimed several inches in front of this, thinking the brain would be further forward. When I pulled the trigger I did not hear the bang or feel the kick — one never does when a shot goes home — but I heard the devilish roar of glee that went up from the crowd. In that instant, in too short a time, one would have thought, even for the bullet to get there, a mysterious, terrible change had come over the elephant. He neither stirred nor fell, but every line of his body had altered. He looked suddenly stricken, shrunken, immensely old, as though the frightful impact of the bullet had paralysed him without knocking him down. At last, after what seemed a long time — it might have been five seconds, I dare say — he sagged flabbily to his knees. His mouth slobbered. An enormous senility seemed to have settled upon him. One could have imagined him thousands of years old. I fired again into the same spot. At the second shot he did not collapse but climbed with desperate slowness to his feet and stood weakly upright, with legs sagging and head drooping. I fired a third time. That was the shot that did for him. You could see the agony of it jolt his whole body and knock the last remnant of strength from his legs. But in falling he seemed for a moment to rise, for as his hind legs collapsed beneath him he seemed to tower upward like a huge rock toppling, his trunk reaching skyward like a tree. He trumpeted, for the first and only time. And then down he came, his belly towards me, with a crash that seemed to shake the ground even where I lay. I got up. The Burmans were already racing past me across the mud. It was obvious that the elephant would never rise again, but he was not dead. He was breathing very rhythmically with long rattling gasps, his great mound of a side painfully rising and falling. His mouth was wide open — I could see far down into caverns of pale pink throat. I waited a long time for him to die, but his breathing did not weaken. Finally I fired my two remaining shots into the spot where I thought his heart must be. The thick blood welled out of him like red velvet, but still he did not die. His body did not even jerk when the shots hit him, the tortured breathing continued without a pause. He was dying, very slowly and in great agony, but in some world remote from me where not even a bullet could damage him further. I felt that I had got to put an end to that dreadful noise. It seemed dreadful to see the great beast Lying there, powerless to move and yet powerless to die, and not even to be able to finish him. I sent back for my small rifle and poured shot after shot into his heart and down his throat. They seemed to make no impression. The tortured gasps continued as steadily as the ticking of a clock. In the end I could not stand it any longer and went away. I heard later that it took him half an hour to die. Burmans were bringing dash and baskets even before I left, and I was told they had stripped his body almost to the bones by the afternoon. Afterwards, of course, there were endless discussions about the shooting of the elephant. The owner was furious, but he was only an Indian and could do nothing. Besides, legally I had done the right thing, for a mad elephant has to be killed, like a mad dog, if its owner fails to control it. Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. Criminal justice reform efforts ignore culture and ideology by portraying miscarriages of justice as “accidents” when in reality they are features of the system. Perceived inevitability of the existing legal order is a disciplinary tactic Doyle, JD/LLM, 16(James M., Of Counsel, Bassil, Klovee, & Budreau, ORWELL'S ELEPHANT AND THE ETIOLOGY OF WRONGFUL CONVICTIONS Albany Law Review 2015 / 2016 Albany Law Review 79 Alb. L. Rev. 895)Criminal justice reform is having its moment. The gatekeepers around the public square - the editors, the publishers, the producers, the bloggers, and the "most-followed" social media posters - have decided to grant criminal justice issues some attention. In the accompanying wave of punditry familiar facts are treated as discoveries. The system's impacts are racially biased. n2 The innocent are often convicted. n3 Unwarranted law enforcement violence is common. n4 Legions of unnecessary prisoners fill our prisons. n5 Chronic mental illness has been effectively criminalized. n6 [*896] This media moment will fade; these media moments always do fade. Can something useful be left behind? The criminal justice system is a target-rich environment for empirical study. Many factors await data-oriented examination in (and around) our courtrooms, and it seems natural to seize this opening to mobilize evidence-based inquiries analyzing a range of specific questions. As Michael Jacobson has noted, criminal justice policy is "a field that over the last several decades has been almost immune to evidence and knowledge in the face of its overwhelming politicization." n7 Perhaps in this new atmosphere we are ready to learn the lessons that the data teach. Still, any exclusively data-oriented approach to wrongful convictions will face challenges as a remedial tool where preventing wrongful convictions is concerned. No individual evidence-based exploration of the criminal justice system is likely to minimize the frequency of miscarriages of justice unless it takes place within a general etiology of wrongful conviction that recognizes the reciprocal impacts of the system's components - including its human components - on each other, and the impact on those system components of their surrounding environment. The potential implications of that general etiology - that is, of the manner of causation of criminal justice system errors - are overlooked issues. A version of such an etiology is available for adaptation. n8 Safety experts in aviation, medicine, and other high-risk fields would argue that, like the Challenger launch decision, n9 a "wrong patient" surgery, n10 or the Chernobyl meltdown, n11 wrongful convictions are [*897] system n12 errors: "organizational accidents." n13 In this conception, miscarriages of justice are not single-cause events but, rather, result from discrete, small mistakes, none of which is independently sufficient to cause the harm that combine with each other and with latent system weaknesses, and only then cause a tragedy. Miscarriages of justice can never be fully explained by the failures of a single component or a lone operator. The right answer to the question "Who was responsible for this wrongful conviction?" is usually "Everyone involved, to one degree or another," either by making an error or by failing to anticipate or intercept someone else's error. In this view "everyone" includes actors far from the scene of the event who set the budgets, did the hiring, wrote the laws, developed the jurisprudence, and designed the incentives for the apparent culprits on the frontlines. "Everyone" includes those who created the environment in which the sharp-end actors operated. "Everyone" even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others. The hardest case for this approach is presented by the recurrent situation in which the miscarriage of justice seems to have resulted from a moral failure - often a spectacular one - on the part of an individual criminal justice actor. Even people who accept the organizational accident explanation as a general theory resist applying it to those events. For example, when a prosecutor hides exculpatory Brady n14 material, that act is a proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. n15 Disciplining the individual actor seems to be both a sufficient response and an emergency. To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded: to generate bogus extenuation where all that is required is a plain statement of culpability. The assumption, "Good man, good result," once formed the basis [*898] of medicine's attitude towards its own tragic failures. n16 Even now it characterizes much of the commentary on wrongful convictions. n17 A similar dependence on good men, n18 and therefore on reform strategies focused on the discovery, denunciation, and excision of the bad men, characterizes criminal justice reform discourse. n19 But if wrongful convictions are "organizational accidents," can disciplining and punishing an individual be enough to reduce future risk? Can we punish our way to safe verdicts? Is there a way to balance accountability for misconduct and the non-blaming, "forward-looking accountability" n20 we need in order to minimize future risk? Should we be searching for a new practice rather than a new structure? Can we develop a vehicle for holding the data-rich statistical findings and the complex individual narratives in permanent productive tension? I. A famous essay of George Orwell's, "Shooting an Elephant," focuses on an individual's moral failure: on the bad choice of an actor who zigged when he should have zagged, and who fully understood that he was doing the wrong thing as he acted. n21 Orwell's narrative might illuminate an issue implicit in the organizational accident etiology of error: is the challenge presented by wrongful convictions one best approached as protecting a presumptively safe system from amoral and incompetent people, or one of repairing an inherently vulnerable system that necessarily relies on ordinary human beings? George Orwell has been regarded as the quintessential "good man" for over half a century. To V.S. Pritchett, Orwell was "the [*899] wintry conscience of a generation." n22 Robert Conquest, the historian of Stalin's purges, n23 described Orwell as "[a] moral genius." n24 In 1922, at the age of nineteen, at loose ends after leaving Eton, and unlikely to obtain a university scholarship, Orwell passed the necessary examinations and followed his father into imperial service: in Orwell's case, into the Burma Police. n25 Reflecting on that experience he produced "Shooting an Elephant," n26 first published in New Writing in 1936. n27 "In Moulmein, in Lower Burma, I was hated by large numbers of people - the only time in my life that I have been important enough for this to happen to me," Orwell begins. n28 In an aimless, petty kind of way anti-European feeling was very bitter... . As a police officer I was an obvious target and was baited whenever it seemed safe to do so... . In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. n29 By the time of the incident he describes, Orwell had "made up [his] mind that imperialism was an evil thing and the sooner [he quit his] job ... the better." n30 "Theoretically - and secretly, of course - [he] was all for the Burmese and all against their [*900] oppressors, the British." n31 But that didn't mean Orwell's immediate situation was simple. As he explains in the essay: All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny ... with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. n32 In this state of mind Orwell is called out to deal with a rampaging elephant: a working animal that has been maddened by "must" (heat), broken its chain, and eluded its keeper. n33 Arming himself and arriving in the quarter where the elephant had been destroying everything within reach, Orwell "failed to get any definite information ... . In the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." n34 But soon he is told that the elephant has trampled an Indian coolie to death, and he is shown the corpse. n35 Followed by a growing crowd of Burmese, Orwell tracks the animal down. n36 As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant - it is comparable to destroying a huge and costly piece of machinery - and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow... . Moreover, I did not in the least want to shoot him. n37 But at that moment Orwell looks around at the Burmese who had followed him: a crowd of "two thousand" people and "growing," all - according to Orwell - "happy and excited over this bit of fun, all certain that the elephant was going to be shot." n38 This was a turning point: "And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to [*901] do it; I could feel their two thousand wills pressing me forward, irresistibly." n39 In Orwell's recounting, he zigged when he knew he should have zagged because his role required it: A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing - no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at. n40 Orwell shoots the elephant. n41 Unable to endure the sight of the animal's agonized death throes, Orwell leaves the scene while the elephant is still alive. n42 Later he learns that its body has been stripped to the bone, and that: Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. n43 In the end, the opinions of the Europeans, back in the Club, were what mattered to young Orwell. n44 II. John Thompson was convicted of murder in New Orleans in 1985. n45 After a trial where he opted not to testify, Thompson was sentenced to death and spent the next eighteen years in prison, [*902] fourteen of them on death row. n46 A few weeks before Thompson's scheduled execution in 1999, a defense investigator learned that a cancer-stricken member of the prosecution team had confessed on his deathbed to having withheld crime lab results from the defense, as well as removing a blood sample from the evidence room. n47 In addition, Thompson's defense learned that the New Orleans district attorney's office had failed to disclose that Thompson had been implicated in the murder by a person who received a reward from the victim's family, and that an eyewitness identification did not match Thompson. n48 Thompson's conviction was overturned on appeal. n49 On retrial, a jury exonerated Thompson in thirty-five minutes. n50 Reviewing Thompson's experience with Orwell's in mind suggests that the problem we face is neither people, nor systems, but, rather, people in systems. The rule that prosecutors must turn over exculpatory evidence material to guilt or punishment to defense counsel is a "best practice" that the Supreme Court held in Brady v. Maryland is also a minimum requirement of the Constitution. n51 As Thompson indicates, it is a "best practice" that is not reliably followed. n52 According to at least one noted federal judge, violations of the Brady rule are "epidemic." n53 We tend to think of the Brady violation cases as uncomplicated events: a prosecutor, driven by an excess of the All-American will to win, n54 is encouraged to go too far by the apparently total absence of [*903] accountability, and conceals exculpatory evidence. As Marvin Schechter, chairman of the criminal justice section of the New York State Bar Association and a defense attorney put it: "Prosecutors engage in misconduct because they know they can get away with it." n55 Introducing the credible threat of punishment seems to be the simple answer to this simple problem. n56 But the Brady (and other misconduct) cases are, like the episode in Shooting an Elephant, more complicated. Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream failure by the defenders to uncover the Brady violation or to compensate for its impact, n57 much remains to be explained about the prosecutors' actions. What if the Brady cases involve a problematic - but not abnormal - prosecutor who makes a faulty decision while playing, under intense pressure, the hand he has been dealt by others? What if the problem is not the will to win, but the fear of losing and exposure; not the absence of accountability, but the distorting power of a peculiarly intense, all-embracing, and acutely local accountability that eclipses well-known general constitutional norms? Safety experts in aviation, medicine, and other high risk fields find that these questions indicate that we should pivot from our focus on writing new rules - and punishing the violations of old ones - to a new focus on developing a culture of safety that has reducing future risk through continuous, collaborative, quality improvement as its goal. n58 No system can survive without sanctions for its conscious rule [*904] breakers, and advocates for "non-blaming" approaches to accountability must keep that reality in mind. n59 Still, it ought to be possible to see the young Orwells in the criminal system as potential resources, not exclusively as dangerous toxins. The most productive question could be not why prosecutors believe they can get away with cheating, but why they feel any desire to cheat in the first place. The question that the Thompson narrative raises is not whether the choices of either the District Attorney's office as an agency or the individual frontline prosecutors who hid the evidence were wrong. n60 Of course those choices were wrong. The real question is why did the mistaken choices seem to the agency and to the individuals to be good choices at the time? Or, at least, why did the mistaken choices seem from their perspectives to be the only, or "least bad" choices available. Exculpatory evidence has to be turned over. n61 Why didn't the prosecutors know this? (In fact, as the deathbed confession indicates, at least one did know it.) n62 Why, knowing that withholding the evidence was wrong (as fully as Orwell knew shooting his elephant was wrong) did they decide not to act as the Brady rule required? Safety experts reviewing "operator error" events believe that the operators' choices may have been mistaken, may have violated rules - may even have been immoral - but they were locally rational. n63 They promised to solve, at least for a moment, a pressing local problem, and the same choices will seem rational to the operators who next face the same problems unless their circumstances are changed. To understand why this can happen in a Brady exoneration case it is not enough to go "down and in" to find the broken procedural component or the rogue Assistant District Attorney. The problem [*905] cannot be fully encompassed within the character of any individual prosecutor. That prosecutor is reacting to the conventional demands within his office. And his office is reacting to pressures from the larger society. What we see in the Brady exoneration cases are choices typical of organizations and individuals reacting to the compelling pressure to provide outputs under conditions of resource scarcity. It may be disappointing but it should not be shocking that prosecutors in the wrongful conviction cases, like workers in many production processes, adopted a "covert work system." n64 They decided to evade well-known formal disclosure requirements and buried alternative narratives because they believed sharing the exculpatory facts would interfere with achieving the "real" production goals assigned to them by people to whom they were accountable, namely, superiors who demand "outputs" in the form of convictions, and, therefore, to the unpredictable lay jurors, who will require persuasion before those "outputs" can be generated. n65 Were the prosecutors so starved of resources by the city or state that they felt they could not successfully prosecute guilty violent offenders by following the rules? Had their caseloads crept up to a level where competent, thorough practice seemed impossible? Did they feel that they were so swamped that they needed to bluff Thompson into a guilty plea by withholding the evidence that might have demonstrated his innocence? n66 Did supervisory oversight slacken for the same reasons? Did tunnel vision and other cognitive biases set in? n67 Did the prosecutors feel acutely vulnerable to irresponsible media or political pressure? Or did the prosecutors believe that the police department was so under-resourced or ill-managed that no prosecutors could ever convict anyone, no matter [*906] how guilty, if they dutifully played the woeful cards the police dealt them? Were they right about that? Did the see-no-evil attitude of local trial judges and the vulnerability of overwhelmed appointed defenders encourage them? Had the prosecutors moved by small increments down the inculpatory-to-exculpatory spectrum over the years, withholding progressively more exculpatory material but seeing no negative local impacts (such as exonerations) from doing so? n68 Did they learn to tolerate ever-widening margins of error in making guilt/ innocence judgments? Had deviation from the Brady rule been "normalized"? n69 It is common to speak of the prosecutors' offices as "black boxes," a reference to their characteristic absence of transparency. n70 But it is important to remember that within that black box local norms are well-known and conveyed with great force. n71 Young prosecutors learn very early their local version of "[a] sahib has got to act like a sahib." n72 The prosecutors who figured in the high profile Brady-driven exoneration cases are not lone wolf outcasts in their offices; typically, they are the rising local stars n73 who had successfully managed the conflicts between the formal legal rules and their office culture and have been rewarded with progressively more visible and important case assignments. The prosecutors feel intensely accountable to the role requirements imposed by the [*907] culture n74 within their office. Inevitably, some prosecutors will do what workers in other fields do when confronted by the end-of-process inspections. (In this case, the inspection is provided by adversary trials.) They will develop "workarounds" that allow them to get on with their "real" job, n75 no matter what the formal rules instituted by the Supreme Court at 30,000 feet (or the Board of Bar Overseers at 10,000) require. n76 As Barbara O'Brien has demonstrated, these prosecutors, driven by criteria of outputs (not processes) and persuasion (not comprehension) find themselves in a cognitive position that degrades not only their willingness to turn over Brady material, but their ability to recognize it. n77 A Brady violation seen from this perspective is a mundane workaround; a well-traveled shortcut through a thicket of rules that if meticulously followed would frustrate the attainment of "higher" goals. n78 In fact, within the prosecutors' "black box" familiarity with these workarounds begins to seem to be the essence of veteran workmanship and professionalism. n79 Impose an improved rule without changing either the internal culture or the external demands on that culture and that new rule will be under immediate attack from its environment: new workarounds will be generated very quickly. Encapsulation in a local black box dilutes the deterrent efficacy of punitive gestures applied to other prosecutors outside the local world. n80 The disciplining of a prosecutor in Texas will have limited impact on the conduct of prosecutors in Philadelphia. The informal sanctions for violating the local "covert work rules" and then losing a trial as a consequence are immediate, personal, and public: enforced by the people in the next office. Any official sanction for withholding Brady material is - and will remain even if some novel enthusiasm for disciplining prosecutors gradually takes hold in [*908] scattered jurisdictions - theoretical. n81 Punishment is necessarily contingent on your concealment being discovered by an actually innocent defendant who insisted on a trial, an eventual official finding that the particular defendant really was innocent, that the withheld evidence was "material," and that your violation was knowing. n82 For all of the reasons that disciplinary actions against prosecutors have not become normal (to put it mildly) up until now, some skepticism about the likelihood of their multiplying any time soon is in order. III. We admire George Orwell because of his willingness to subject his own beliefs and actions to unsparing critical examination: a rare quality. This capacity of Orwell's is on full display in "Shooting an Elephant," but that essay also illuminates the limits of even Orwell's very rigorous introspective scrutiny. By focusing on his own experience and canvassing the "within-silo" reactions of his European peers while ignoring the Burmese community he was assigned to serve, Orwell misses the fundamental question underlying his choice: that is, whether it was ever sane to shoot the harmless elephant on the basis of an assumption that, "the people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly." n83 In fact, the first of the Five Precepts accepted by most strains of Buddhism is a requirement to abstain from killing either humans or animals. n84 Orwell's Buddhist crowd likely never wished to see the elephant killed, and believed the killing was wrong. The members of the crowd would not have killed the elephant, or would have been ashamed if they had killed it. But the Buddhist crowd may well have expected Orwell - or any sahib - to do something violent and stupid, and that is exactly what Orwell did, by his own account. By living down to Burmese [*909] expectations Orwell actually undermined the legitimacy of the British colonial rule he believed he was (reluctantly) acting to bolster. He showed (or confirmed) that the best that Burmese could anticipate from the British was the destructive, uncomprehending, exercise of raw power. Like Orwell and his colleagues, young frontline prosecutors in the United States operate in environments devised for them by others, and it is dangerous to ignore the fact that it is the larger American society, not the local district attorney's office, that has contrived a socially constructed reality in which a recognizably colonialist vision of the inner city exerts steady pressure on its frontline criminal justice actors. n85 The unwavering conventions of the news and entertainment media have turned the American inner city - especially the African-American inner city and the criminal justice system - into permanent Elsewheres: places where ordinary white Americans never go, largely because they feel supremely confident of what they would find if they did go. n86 Practitioners who take jobs in this distant zone share with Orwell's peers a rhetoric of isolation, service, sacrifice, burden-bearing. Both groups chose careers that "promised early autonomy in exotic surroundings." n87 Their autobiographical writings recount a disorienting plunge into a world where they struggle to find a role for the values in which they were raised. n88 Similar to the young colonial officers who were thrown into strange and foreign surroundings, a young lawyer's professional life begins "alone, ignorant, and responsible." n89 Isolation and vulnerability plague the functionaries in the courthouses - not unlike Orwell's [*910] "Kipling-haunted little clubs" n90 - and they are menaced by locals and policy-makers, by editorial boards back home or "downtown," who can wreck careers from the safety of their office desks. They feel constrained by wild legalities and utopian standards: "Young Assistant District Attorneys, like young Assistant District Commissioners in the old empires, hurriedly seize, then vehemently defend, a conventional wisdom as protection against these threats." n91 They adopt a "professional code" that sees an environment in which people are divided into collectives. n92 Indeed, instead of seeing individuals, they often see "races, types, and colors" instead. n93 Facing defendants, defenders, even (sometimes) witnesses, and communities, they gradually embrace a "rigidly binomial opposition of "ours' and "theirs.'" n94 A defendant such as John Thompson seems, as did an individual Burmese to Orwell, a featureless face in an anonymous crowd of "them." As William Stuntz put it: One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. n95 In other words, the mental world of our criminal justice practitioners has come to have something in common with that of the White Man whom Kipling extolled and Orwell exemplified. It is not a question of race. In the criminal justice system, there are whites who are not White Men, and African-Americans (and women) who are. n96 Despite the overwhelming statistical evidence of imbalance in the system's treatment of the races, its White Men in deny any racist intent. n97 Very few would ever sign on to an [*911] explicitly racist project, and most read the aggregated figures indicating wildly disparate results for the races with bewilderment and dismay: this is not what they intended. But as Edward Said observed of Orwell's imperial generation: "being a White Man was ... an idea and a reality. It involved a reasoned position towards both the white and the non-white worlds. It meant ... speaking in a certain way, behaving according to a code of regulations, and even feeling certain things and not others." n98 In the criminal justice system, as on the frontiers of empire, something like this "impersonal communal idea of being a White Man rule[s;]" it becomes "a very concrete manner of being-in-the-world, a way of taking hold of reality, language, and thought." n99 This is not a situation that frontline criminal justice practitioners can easily remedy by themselves. It is not obvious that statistical studies of their "outputs" or checklists generated from those studies will remedy it for them either. n100 This is not a situation that more training about, or tinkering with, the Brady rule will resolve. n101 The problem does not lie in our having no rule, or in the nature of the existing rule; it lies in persuading people that personally following the rule is a crucial element of their individual responsibility for a just collective outcome. This looming environment generates perpetual pressure to clear the docket and produce convictions, as well as accelerates the routine dehumanization of the people whose lives the practitioners impact so powerfully. n102 The reduction of defendants, victims, and communities into faceless crowds can allow the practice of mass incarceration to run very smoothly. n103 As bad as its consequences are in the spectacular capital felony exonerations that make news, they may be even worse in the submerged street crime dockets, where factual accuracy is treated as largely irrelevant, guilty pleas are the rule, and thousands of black lives are taken on the [*912] installment plan. n104 Orwell's experience is replayed constantly not only in the courtrooms, but also on the streets, where people, not tame elephants, pay the price. On the streets it is enacted in humiliating stops and frisks; sometimes in fatal violence. n105 Exiling or punishing one erring practitioner, or even a string of erring practitioners, will not change this environment, and the environment will envelope the next practitioner who comes along. This system is in crisis and desperately needs reform, but not because of an explicitly racist ideology. Throughout the system, in many roles, thousands of beleaguered young Orwells are trying to get through their days, doing what they believe is expected of them, with the tools at hand, oblivious to the appalling collateral damage they are inflicting. n106 The lesson that Orwell might have learned by seeking the perspective of the Burmese in his review of his action resonates with the lesson William Stuntz urged us to learn in the final paragraph of his magisterial The Collapse of American Criminal Justice: The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals' neighborhoods. Neither side of this divide is "them." Both sides are us. Democracy and justice alike depend on getting that most basic principle of human relations right. n107 The question is whether by recognizing a deeper etiology of wrongful convictions we might move in that direction. [*913] IV. If it is true as a matter of fundamental etiology that even so seemingly simple an event as a wrongful conviction after a Brady violation is actually a complex "organizational accident" implicating many contributing factors that ultimately combined and cascaded, we are in a position to capitalize on an insight mobilized by Donald Berwick, one of the pioneers of the modern patient safety movement: n108 "Every defect is a treasure." n109 The basic manner of causation of wrongful convictions argues that we should amend our standard criminal justice response to disasters, and say when one occurs, "Something to see here: don't move along." n110 The recognition that there is something to be learned from past criminal justice events has begun to gather some momentum. The National Institute of Justice, borrowing a phrase n111 from the Joint Commission on Hospital Accreditation, has launched a Sentinel Events Initiative n112 that attempts to promote the exploration of non-blaming, all-stakeholders reviews of wrongful convictions, wrongful releases, "near misses" and other meaningful incidents. n113 The National Commission on Forensic Science has recommended "Root Cause Analysis" as a standard practice in forensic laboratory error reviews. n114 The Presidential Task Force on 21st Century Policing [*914] has recommended the practice of Sentinel Event Reviews of critical events. n115 These efforts share a determination to move beyond performance reviews of individuals (including searches for "bad apples") to press for system-oriented event analyses. n116 This approach aims to avoid the tendencies of the "bad apple" disciplinary review or civil lawsuit to drive reports of significant events underground and to narrow the lense to scrutinize only the conduct of a lone individual rather than the system's various contributing weaknesses. n117 It accepts the fact that a full understanding of what went wrong is (to at least a degree) dependent on the insights from the perspective of the "second victim;" n118 for example, the nurse who was the last in the chain that delivered a fatal medication dose, or the defense lawyer who failed to intercept the Brady violation in a wrongful conviction [*915] case, or even - however much it may rankle - a prosecutor who after having been seduced the by local office culture has contributed to a Brady exoneration. The criminal justice system is an organization which, like many others, has a lot invested in its practitioners. As Sidney Dekker argues: Paying off the first victim and sending off the second denies the humanity and reality of the relationship that existed between the two victims... . Where first victims are given the impression that their lives had been entrusted to a dispensable, disposable cog in the organizational machine, what does that say about the organization's own duty ethic in relation to its patients, passengers, clients? n119 The "second victim" focus is one particular example of a general principle of analysis more or less dictated by the organizational accident etiology of error; the need for the perspectives of all of those implicated in the event. As John Chisholm (the District Attorney of Milwaukee County, Wisconsin and a N.I.J. "Sentinel Event" participant) put it: Creating a better justice system requires us to expand our definition of the critical actors involved in any event, from citizens, police, corrections, pretrial services, public defenders and the defense bar, as well as prosecutors and judges. And we have to create a process where everyone feels empowered to speak the truth about his or her role in any given event. n120 Chisholm does not mean by this that he plans to turn the running of his office or the education of his assistants over to outsiders; nor should he: outsiders are not well-equipped for the task. n121 But he does recognize the value to him, and to all criminal justice system leaders, of a new feedback loop that can draw attention to system weaknesses and begin to prepare the way for cultural change. n122 The "all stakeholders" aspect of these reviews requires not only the participation of representatives of all agencies, but also of all ranks from within the implicated "silos." n123 Elements of the foot [*916] soldiers' working environment - for example, caseloads and resource shortages - that would be shrugged off as excuses or evasions in a disciplinary or tort proceeding can be given their deserved explanatory weight in these event reviews. n124 Moreover, the potential contributions of scholars and researchers from a variety of disciplines can be mobilized in these reviews to supplement the basic narratives with insights into the role that, for example, unconscious biases or census pressures may have played. The researchers will receive in return new challenges for empirical research of increased salience: the good questions that are at the heart of the research enterprise. And although we are most concerned with the problem of wrongful convictions, we should not ignore the fact that the universe of available lessons about the sources of wrongful conviction includes not only those learned from completed exonerations, but also others, gathered from "near misses," n125 and other "high frequency/low impact" events. But, perhaps most importantly, the "all-stakeholders" event reviews that the logic of the organizational accident etiology requires access to the perspective of community stakeholders. Among other things, a community presence may indicate that many "low impact" events - humiliating stops and frisks, pretrial detentions, misdemeanor processing and the collateral consequences of records - are not, for defendants, families, and communities the "low impact" practices that from the practitioners' perspective they seem to be. n126 Besides, "Shooting an Elephant" also illustrates why, although the perspectives of the young Orwells at the sharp end of the criminal system are indispensable to an understanding of an event, their professional accounts - even when these seem to be confessional accounts - are not sufficient if our aim is "forward-looking accountability." For all of Orwell's sincere contrition for his role in the imperial project, it is not clear that Orwell's version of this particular event can be trusted. Orwell had lived in Burma for some time and his father was a career imperial civil servant. n127 Orwell was a curious [*917] and intelligent man. Orwell probably knew very well that Buddhism abhors killing, but counted on his audience's ignorance of that fact when he enlisted "the will" of the crowd tactically as a motivator in order to mitigate, even partly obscure, his personal role. n128 If we rely solely on Orwell we will learn that imperialism was a bad thing and that one of its officers was acutely ashamed of his role. n129 We would still not know why Orwell's elephant was destroyed. n130 The presence of community stakeholders in the process can be a crucial guard against the influence of these blind spots in a review: an important tool for preventing reoccurrence. William Stuntz believed that: "the [criminal] justice system stopped working when a particular kind of local democracy - the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets - ceased to govern the ways police officers, prosecutors, and trial judges do their jobs." n131 It may be that the determined, routine practice of including community voices in the learning from error event reviews can begin to repair this situation, and to erode the Manichean separation of "Us" from "Them." It is very easy to sympathize with Joseph Margulies's statement that "reform proposals aimed at population-cutting rather [than] principle are dangerously incomplete," that, "halving the prison population is a laudable goal, but population-cutting initiatives mistake a symptom for [a cause]." n132 If our current reform tide recedes leaving only a drop in prison census behind, we can be pretty sure that the population will soon be replenished. Something more fundamental, something such as Margulies's call for the elevation of the three principles of human dignity, thriving communities, and fair government officials and processes n133 - something that emulates hospital medicine's paradigm shift toward a "culture of safety" n134 - is called for. [*918] Such a sweeping change in the world of American criminal justice cannot be imposed from the rarefied heights of the think tanks and law reviews; it must come from the bottom up. As John Griffith's observations about the early Twentieth Century's doomed attempt to impose a "Family Model" of juvenile justice on the "Battle Model" culture of criminal justice make clear, a culture change of this magnitude cannot be achieved by fiat. n135 The advantage of the practice of non-blaming, all-stakeholders event review is that it enlists the frontline practitioners in a collaborative review of processes, not only outcomes, and with researchers and community members participating as equals. In this process the map of the criminal justice process as it is appears in the vision comprised of statistical findings and the living criminal justice process as it appears in the narratives of the citizens and communities entangled in it are not simply complementary (although they are that) but dynamic and reciprocal. "Narrative," as Edward Said observed, writing about the colonial system that enmeshed Orwell, "asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change ... ." n136 We need the narratives of the Orwells, but also of the Burmese; of the prosecutors, police, defenders, and judges, but also of the exonerees, the crime survivors, the stopped and frisked, their families, and their communities. No "fix" is permanent. We need constantly to gather both narratives and statistical analyses and to take account of them in a continuous practice if we are going to create resilience and heal the system. Criminal justice practitioners have to learn to allow others to learn about our lives: to suffer the pain of being known along with the pleasure of knowing. n137 We also have to learn - as Orwell did, in his dogged, imperfect way - to be willing to risk discovering uncomfortable facts about ourselves.The AC buys into a theory of “constituent power”- this model assumes the state exercises rational, juridical control that can be challenged and overthrown by a legal revolution. But modern societies aren’t disciplinary, they are control based. Legal reform is simply a new mechanism of this control-it is a depoliticized and hollow form of resistance. Instead we need “destituent power”, a strategy that deposes the law permanently to open space for new modes of political engagement Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)You will probably know that Michel Foucault, in his book Surveiller et punir and in his courses at the Collège de France sketched a typological classification of modern States. He shows how the State of the Ancien regime, that he calls territorial or sovereign State and whose motto was faire mourir et laisser vivre, evolves progressively in a population State and in a disciplinary State, whose motto reverses now in faire vivre et laisser mourir, as it will take care of the citizens life in order to produce healthy, well-ordered and manageable bodies. The state in which we live now is no more a disciplinary State. Gilles Deleuze suggested to call it ?Etat de contr?le?, control State, because what it wants, is not to order and to impose discipline, but rather to manage and to control. Deleuze’s definition is correct, because management and control do not necessarily coincide with order and discipline. No one has told it so clearly as the Italian police officer, who, after the turmoil of Genoa in July 2001, declared that the government did not want that the police maintains order, but that it manages disorder. American politologists, who have tried to analyze the constitutional transformation involved in the Patriot Act and in the other laws which followed September 2001, prefer to speak of a Security State. But what does security here mean? It is during the French revolution that the notion of security — sureté, as they used to say — is linked to the definition of police. The laws of March 16, 1791 and August 11, 1792 introduce thus in the French legislation the notion of ?police de sureté? (security police), which was doomed to have a long history in modernity. If you read the debates which preceded the voting of these laws, you will see that police and security define one another, but no one among the speakers (Brissot, Heraut de Séchelle, Gensonné) is able to define police or security by themselves. The debates focused on the situation of the police with respect to justice and judicial power. Gensonné maintains that they are ?two separate and distinct powers?; yet, while the function of the judicial power is clear, it is impossible to define the role of the police. An analysis of the debate shows that the place and function of the police is undecidable and must remain undecidable, because, if it were really absorbed in the judicial power, police could no more exist. This is the discretionary power which still today defines the action of the police officer, who, in a concrete situation of danger for the public security, acts so to speak as a sovereign. But, even when he exerts this discretionary power, he does not really take a decision, nor prepares, as is usually stated, the judge’s decision. Every decision concerns the causes, while the police acts on effects, which are by definition undecidable. The name of this undecidable element is no more today, like it was in XVII century, ?raison d’Etat?, State reason: it is rather ?security reasons?. The Security State is a police State: but, again, in the juridical theory, the police is a kind of black hole. All we can say is that when the so called ?Science of the police? first appears in XVIII century, the ?police? is brought back to its etymology from the Greek ?politeia? and opposed as such to ?politics?. But it is surprising to see that Police coincides now with the true political function, while the term politics is reserved to the foreign policy. Thus Von Justi, in his treatise on Policey Wissenschaft, calls Politik the relationship of a State with other States, while he calls Polizei the relationship of a State with itself. It is worthwhile to reflect upon this definition: (I quote): ?Police is the relationship of a State with itself?. The hypothesis I would like to suggest here is that, placing itself under the sign of security, modern State has left the domain of politics to enter a no man’s land, whose geography and whose borders are still unknown. The Security State, whose name seems to refer to an absence of cares (securus from sine cura) should, on the contrary, make us worry about the dangers it involves for democracy, because in it political life has become impossible, while democracy means precisely the possibility of a political life. But I would like to conclude –or better to simply stop my lecture (in philosophy like in art, no conclusion is possible, you can only abandon your work) with something which, as far as I can see now, is perhaps the most urgent political problem. If the State we have in front of us is the Security State I described, we have to think anew the traditional strategies of political conflicts. What shall we do, what strategy shall we follow? The Security paradigm implies that each dissention, each more or less violent attempt to overthrow its order, become an opportunity to govern them in a profitable direction. This is evident in the dialectics which binds tightly together terrorism and State in an endless vicious spiral. Starting with French revolution, the political tradition of modernity has conceived of radical changes in the form of a revolutionary process that acts as the pouvoir constituant, the ?constituent power? of a new institutional order. I think that we have to abandon this paradigm and try to think something as a puissance destituante, a ?purely destituent power?, that cannot be captured in the spiral of security. It is a destituent power of this sort that Benjamin has in mind in his essay On the critique of violence when he tries to define a pure violence which could ?break the false dialectics of lawmaking violence and law-preserving violence?, an example of which is Sorel’s proletarian general strike. ?On the breaking of this cycle? he writes in the end of the essay ?maintained by mythic forms of law, on the destitution of law with all the forces on which it depends, finally therefore on the abolition of State power, a new historical epoch is founded?. While a constituent power destroys law only to recreate it in a new form, destituent power, in so far as it deposes once and for all the law, can open a really new historical epoch. To think such a purely destituent power is not an easy task. Benjamin wrote once that nothing is so anarchical as the bourgeois order. In the same sense, Pasolini in his last movie has one of the four Salò masters saying to their slaves: ?true anarchy is the anarchy of power?. It is precisely because power constitutes itself through the inclusion and the capture of anarchy and anomy, that it is so difficult to have an immediate access to these dimensions, it is so hard to think today something as a true anarchy or a true anomy. I think that a praxis which would succeed in exposing clearly the anarchy and the anomy captured in the Security government technologies could act as a purely destituent power. A really new political dimension becomes possible only when we grasp and depose the anarchy and the anomy of power. But this is not only a theoretical task: it means first of all the rediscovery of a form-of-life, the access to a new figure of that political life whose memory the Security State tries at any price to cancel.While the AC attempts to criticize the law, it does so within the confines of existing ideological investments and institutions, this is constituent power. Destutuency is an active no: it rejects the terms of the 1AC in order to divest our political and affective investments that sustain this system. Bougtsy-Marshall, JD, 16(Skye, Climate Activist, “Flooding Wall Street: Echoes from the Future of Resistance around Climate Change,” Capitalism Nature Socialism Volume 27, 2016 - Issue 3, Pages 64-82, )The concept of destituent power (poder destituyente), on the other hand, originates from the Colectivo Situaciones’ (2011) analysis of the uprisings in Argentina on 19 and 20 December 2001. Destituent power exhibits potency similar to constituent power, but operates as a continual process of openended withdrawal from, or refusal of, the juridical, institutional order (Laudani 2013, 4). It functions completely outside the law – extrainstitutionally – seeking to dismantle sovereign, constituted power altogether rather than to reform it or overthrow it and then re-institute it in a different form. Destituent power undermines and erodes the obedience that is fundamental to and presupposed by the constituted order for its continued existence. However, destituent power is not a purely reactive or nihilistic force, but instead is creative – not in the sense of producing new institutions to replace the old, but through its deactivation of the legal order. This, in turn, opens new horizons of possibilities for egalitarian and holistic social and ecological relationships far exceeding what is practicable under the current destructive political order (Laudani 2013, xv, n. 23). Benjamin (1978, 300) also envisaged this immanent creative potential within destituent power as he attempted to identify a pure violence that could “break the false dialectics of lawmaking violence and law-preserving violence.” Following this line of reasoning, he argued that: [o]n the breaking of this cycle maintained by mythical forms of law, on the suspension [destitution] of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. Thus, although a constituent power destroys law only to re-institute it again in a new form (merely perpetuating the cycle), insofar as destituent power dismantles and deposes the law once for all, it can function to open onto the terrain of a new epoch characterized by radically new possibilities (Agamben 2014). In deposing the political order, destituent power opens becomings, enabling experimentation with new practices and the development of new knowledges that will, in turn, themselves be de-instituted in the continual and open-ended process unfolding (Colectivo Situaciones 2011, 64, 87). Constituent power’s direct confrontation with the state – through terrorism or revolution – simply reinforces the security apparatus and invites greater levels of repression. As destituent power, disobedience can be conceived not as a direct clash with constituted power but instead as the withdrawal of consent to the political order, as a direct negation of its legitimacy (Laudani 2013, 37). Early twentieth-century German anarchist Gustav Landauer (2010, 214) deployed a similar argument in maintaining that all social and political institutions depend for their existence on the choices of individuals to continue to give them their support, and, thus, removal of this support and constituting ourselves apart from these institutions, thereby rendering them redundant, is the key to dissolving them. Furthermore, Landauer extended this insight concerning the extent to which our obedient practices and behaviors serve as the basis of the state, arguing that “[t]he state is a condition, a certain relationship among human beings, a mode of behavior between men; we destroy it by contracting other relationships, by behaving differently toward one another” (qtd. in Lunn 1973, 226). This view of the basis of the power of the state and capitalism as sets of relations anticipates and finds consonance in the poststructuralist understanding of power articulated by Foucault (referenced above). The network of power relations forms a “dense web that passes through apparatuses and institutions, without being exactly localized in them” (Foucault 1978, 95). Thus, power is not like an object that is acquired or held, but rather it is exercised from innumerable points in a network of shifting relations. This understanding of social and political space as exhaustively comprised by a complex web of intersecting power relationships does not preclude particular lines and points in the network, like the state, from being bolder, so to speak, or more socially determinative than others; however, these points or lines do not act as a central locus from which the other lines emanate or through which they must pass (May 1995, 52–53). The state is not a “thing” exterior to us that can be seized and wielded by a dominant class or group without thereby merely reproducing the intricate network of power relations that manifests in exploitation, domination, irreducible forms of oppression (e.g. patriarchy, racism, heteronormativity, etc.), and deterioration of the biosphere. We are not controlled by a state or capital as institutions apart from us, set above or outside a “civil society,” but instead “we all govern each other Depoliticization spreads annihilating value to life. The affirmative’s conception of free/unfree is based on the physical location of the prison which obscures the omnipresent state “indifference” Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)But the extreme step has been taken only in our days and it is still in the process of full realization. The development of new digital technologies, with optical scanners which can easily record not only finger prints but also the retina or the eye iris structure, biometrical apparatuses tend to move beyond the police stations and immigration offices and spread to everyday life. In many countries, the access to student’s restaurants or even to schools is controlled by a biometric apparatus on which the student just puts his hand. The European industries in this field, which are quickly growing, recommend that citizens get used to this kind of controls from their early youth. The phenomenon is really disturbing, because the European Commissions for the development of security (like the ESPR, European security research program) include among their permanent members the representatives of the big industries in the field, which are just armaments producers like Thales, Finmeccanica, EADS et BAE System, that have converted to the security business. It is easy to imagine the dangers represented by a power that could have at its disposal the unlimited biometric and genetic information of all its citizens. With such a power at hand, the extermination of the jews, which was undertaken on the basis of incomparably less efficient documentation, would have been total and incredibly swift. But I will not dwell on this important aspect of the security problem. The reflections I would like to share with you concern rather the transformation of political identity and of political relationships that are involved in security technologies. This transformation is so extreme, that we can legitimately ask not only if the society in which we live is still a democratic one, but also if this society can be still considered as political. Christian Meier has shown how in fifth century a transformation of the political conceptuality took place in Athens, which was grounded on what he calls a “politisation” (politisierung) of citizenship. While till that moment the fact of belonging to the polis was defined by a number of conditions and social status of different kind — for instance belonging to nobility or to a certain cultual community, to be peasant or merchant, member of a certain family etc — from now on citizenship became the main criterion of social identity. “The result was a specifically greek conception of citizenship, in which the fact that men had to behave as citizens found an institutional form. The belonging to economical or religious communities was removed to a secondary rank. The citizens of a democracy considered themselves as members of the polis, only in so far as they devoted themselves to a political life.Polis and politeia, city and citizenship constituted and defined one another. Citizenship became in that way a form of life, by means of which the polis constituted itself in a domain clearly distinct from the oikos, the house. Politics became therefore a free public space as such opposed to the private space, which was the reign of necessity”. According to Meier, this specifically greek process of politisation was transmitted to western politics, where citizenship remained the decisive element. The hypothesis I would like to propose to you is that this fundamental political factor has entered an irrevocable process that we can only define as a process of increasing depolitisation. What was in the beginning a way of living , an essentially and irreducibly active condition, has now become a purely passive juridical status, in which action and inaction, the private and the public are progressively blurred and become indistinguishable. This process of depolitisation of citizenship is so evident, that I will not dwell on it. I will rather try to show how the paradigm of security and the security apparatuses have played a decisive role in this process. The growing extension to citizens of technologies which were conceived for criminals has inevitably consequences on the political identity of the citizen. For the first time in the history of humanity, identity is no longer a function of the social personality and its recognition by others, but rather a function of biological data, which cannot bear any relation to it, like the arabesques of the fingerprints or the disposition of the genes in the double helix of DNA. The most neutral and private thing becomes the decisive factor of social identity, which lose therefore its public character. If my identity is now determined by biological facts, that in no way depends on my will and over which I have no control, then the construction of something like a political and ethical identity becomes problematic. What relationship can I establish with my fingerprints or my genetic code? The new identity is an identity without the person, as it were, in which the space of politics and ethics loses its sense and must be thought again from the ground up. While the greek citizen was defined through the opposition between the private and the public, the oikos , which is the place of reproductive life, and the polis, place of political action, the modern citizen seems rather to move in a zone of indifference between the private and the public, or , to quote Hobbes terms, the physical and the political body. The materialization in space of this zone of indifference is the video surveillance of the streets and the squares of our cities. Here again an apparatus that had been conceived for the prisons has been extended to public places. But it is evident that a video recorded place is no more an agora and becomes a hybrid of public and private, a zone of indifference between the prison and the forum. This transformation of the political space is certainly a complex phenomenon, that involves a multiplicity of causes, and among them the birth of biopower holds a special place. The primacy of the biological identity over the political identity is certainly linked to the politicization of bare life in modern states. But one should never forget that the leveling of social identity on body identity begun with the attempt to identify the recidivist criminals. We should not be astonished if today the normal relationship between the state and its citizens is defined by suspicion, police filing and control. The unspoken principle which rules our society can be stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a principle? Can we still define it as democratic State? Can we even consider it as being something political? In which kind of State do we live today?Constituent thought is the scaffolding that enables modern violence. Violence is no longer war between states but a war on distinctions themselves- war/peace, guilty/innocent are road bumps on the way to total annihilation. Only a destituent strategy offers a way out of unending destruction Lazzarato and Alliez, PhDs, 16(Maurizio, researcher at Matisse/CNRS, Pantheon-Sorbonne University , Eric, professor at Universite Paris 8 and at the Centre for Research in Modern European Philosophy “To Our Enemies,” e-flux, Journal #78 - December 2016 )22. If the fall of the Wall delivered the death certificate of a mummy whose Communist prehistory ’68 made us forget, and if it is to be considered a nonevent (as the thesis of the End of History states in its melancholic way), the bloody fiasco of the imperial war machine’s first post-Communist wars made history. In part because of the debate that it started inside the military, where a new paradigm of war appeared. An antithesis of the industrial wars of the twentieth century, the new paradigm is defined as a “war amongst the population.” This concept, which inspired an improbable “military humanism,” is one we make our own by returning its meaning to the source and real terrain of wars of capital, and by rewriting this “war within the population” in the plural of our wars. The population is the battlefield in which counter-insurrectional operations of all kinds are underway. At the same time, and indistinguishably, they are both military and nonmilitary because they also carry the new identity of “bloody wars” and “non-bloody wars.” Under Fordism, the State not only guaranteed State territorialization of Capital but also of war. As a result, globalization cannot not free capital from State control without also freeing war, which passes to a superior power of continuity by integrating the plane of capital. Deterritorialized war is no longer inter-State war at all, but an uninterrupted succession of multiple wars against populations, definitively sending “governmentality” to the side of governance in a common enterprise of denial of global civil wars. What is governed and what allows governing are the divisions that project wars into the heart of the population at the level of the real content of biopolitics. A biopolitical governmentality of war as differential distribution of instability and norm of “daily life.” The complete opposite of the Great Narrative of the liberal birth of biopolitics taking place in a famous course at the Collège de France in the break between the 1970s and 1980s. 23. Accentuating divisions, aggravating the polarization of every capitalist society, the debt economy transforms “global civil war” (Schmitt, Arendt) into interconnected civil wars: class wars, neocolonialist wars on “minorities,” wars on women, wars of subjectivity. The matrix of these civil wars is the colonial war. Colonial war was never a war between States but, in essence, a war in and against the population, where the distinctions between war and peace, between combatants and noncombatants, between economy, politics, and military were never used. Colonial war in and against populations is the model of the war that financial Capital unleashed starting in the 1970s in the name of a neoliberalism of combat. Its war is both fractal and transversal: fractal, because it indefinitely produces its invariance by constant changes of scale (its “irregularity” and the “cracks” it introduces operate at different scales of reality); and transversal, because it is simultaneously deployed at the macropolitical level (by playing on all of the major binary oppositions: social classes, whites and nonwhites, men and women) and the micropolitical level (by molecular “engineering” privileging the highest interactions). It can also connect the civilian and military levels in the Global South and North, in the Souths and Norths of everyone (or almost everyone). Its first characteristic is therefore to be less indiscriminate war than irregular war. The war machine of capital which, in the early 1970s, definitively integrated the State, war, science, and technology, clearly declares the strategy of contemporary globalization: to bring to an end the very short history of reforming capital—Full Employment in a Free Society, according to the manifesto of Lord Beveridge published in 1944—by attacking everywhere and with all means available the conditions of reality of the power struggle that imposed it. An infernal creativity is deployed by the neoliberal political project in pretending to grant the “market” superhuman qualities of information processing: the market as the ultimate cyborg. 24. The newfound consistency of neofascisms starting with the financial “crisis” in 2008 represents a turning point in the waging of wars amongst populations. Their dimensions, both fractal and transversal, take on a new and formidable effectiveness in dividing and polarizing. The new fascisms challenge all of the resources of the “war machine,” because if the “war machine” is not necessarily identified with the State, it can also escape the control of Capital. While the war machine of Capital governs through an “inclusive” differentiation of property and wealth, the new fascist war machines function through exclusion based on racial, sexual, and national identity. The two logics seem incompatible. In reality, they inevitably converge (see “national preference”) as the state of economic and political emergency takes residence in the coercive time of global flow. If the capitalist machine continues to be wary of the new fascisms, it is not because of its democratic principles (Capital is ontologically antidemocratic!) or the rule of law, but because, as it happened with Nazism, post-fascism can claim its “autonomy” from the war machine of Capital and escape its control. Isn’t this exactly the same thing that has happened with Islamic fascisms? Trained, armed, and financed by the US, they turned their weapons against the superpower and its allies who had instrumentalized them. From the West to the lands of the Caliphate and back, the neo-Nazis of all allegiances embody the suicidal subjectivation of the capitalist “mode of destruction.” It is also the final scene of the return of the colonial repressed: the jihadists of generation 2.0 haunt Western cities like their most internal enemy. Endocolonization also becomes the generalized conjugation of “topical” violence of the most intense domination of capitalism over populations. As for the process of convergence or divergence between the capitalist and neofascist war machines, it will depend on the evolution of the civil wars now underway and the risks that a future revolutionary process could run for private property, and more generally for the power of Capital. 25. Prohibiting the reduction of Capital and capitalism to a system or a structure, and of the economy to a history of self-enclosed cycles, wars of class, race, sex, and subjectivity also challenge every principle of autonomy in science and technology, every highway to “complexity” or emancipation forged by the progressive (and now accelerationist) idea of the movement of History. Wars constantly inject the indeterminacy of conflict into open strategic relationships, making inoperable every mechanism of self-regulation (of the market) or every regulation by feedback (“man-machine systems” open their “complexity” to the future). The strategic “opening” of war is radically other than the systematic opening of cybernetics, which was not born in/of war for nothing. Capital is not structure or system; it is “machine” and war machine, of which the economy, politics, technology, the State, the media, and so forth are only the articulations informed by strategic relations. In the Marxist/Marxian definition of General Intellect, the war machine integrating science, technology, and communication into its functioning is curiously neglected for the sake of a hardly credible “communism of capital.” 26. Capital is not a mode of production without being at the same time a mode of destruction. The infinite accumulation that constantly moves its limits to recreate them again is at the same time unlimited, widespread destruction. The gains in productivity and gains of destructiveness progress in parallel. They manifest themselves in the generalized war that scientists prefer to call “Anthropocene” rather than “Capitalocene,” even if, in all evidence, the destruction of the environments in and through which we live does not begin with “humans” and their growing needs, but with Capital. The “ecological crisis” is not the result of a modernity and humanity blinded to the negative effects of technological development but the “fruit of the will” of some people to exercise absolute domination over other people through a global geopolitical strategy of unlimited exploitation of all human and nonhuman resources. Capitalism is not only the deadliest civilization in the history of humanity, the one that introduced us to the “shame of being human”; it is also the civilization through which labor, science, and technology have created—another (absolute) privilege in the history of humanity—the possibility of (absolute) annihilation of all species and the planet that houses them. In the meantime, the “complexity” of (saving) “nature” still offers the prospect of healthy profits combining the techno utopia of geoengineering and the reality of the new markets of “polluting rights.” At the confluence of one and the other, the Capitalocene does not send capitalism to the Moon (it has been there and back); it completes the global merchandizing of the planet by asserting its rights to the well-named troposphere. 27. The logic of Capital is the logistics of an infinite valuation. It implies the accumulation of a power that is not merely economic for the simple reason that it is complicated by strategic power and knowledge of the strength and weakness of the classes struggling, to which it is applied and with which they are in constant explanation. Foucault tells us that the Marxists turned their attention to the concept of “class” to the detriment of the concept of “struggle.” Knowledge of strategy is thus evacuated in favor of an alternative enterprise of pacification (Tronti offers the most epic version of this). Who is strong and who is weak? In what way did the strong become weak, and why did the weak become strong? How to strengthen oneself and weaken the other to dominate and exploit it? We propose to follow and reinvent the anticapitalist path of French Nietzscheism. 28. Capital came out the victor in the total wars and in the confrontation with global revolution, for which the number for us is 1968. Since then, it has gone from victory to victory, perfecting its self-cooled motor, where it verifies that the first function of power is to deny the existence of civil wars by erasing even the memory of them (pacification is a scorched earth policy). Walter Benjamin is there to remind us that reactivating the memory of the victories and defeats from which the victors take their domination can only come from the “defeated.” Problem: the “defeated” of ’68 threw out the bath water of civil wars with the old Leninist baby at the end of the “Hot Autumn” sealed by the failure of the dialectic of the “party of autonomy.” Entry into the “winter years” on the edge of a second Cold War that ensures the triumph of the “people of capitalism” (“‘People’s Capitalism’—This IS America!”), the End of History will take the relay without stopping at a Gulf War that “did not take place.” Except there is a constellation of new wars, revolutionary machines, or mutant militants (Chiapas, Birmingham, Seattle, Washington, Genoa …) and new defeats. The new writing generations describe “the missing people” dreaming of insomnia and destituent processes unfortunately reserved for their friends. 29. We will cut it short, in addressing our enemies. Because this text has no other object, under the economy and its “democracy,” behind the technological revolutions and “mass intellectuality” of the General Intellect, than to make heard the “rumble” of real wars now underway in all of their multiplicity. A multiplicity which is not to be made but unmade and remade to charge the “masses or flows,” which are doubly subjects, with new possibilities. On the side of relations of power as subject to war or/and on the side of strategic relationships that are capable of projecting them to the rank of subjects of wars, with “their mutations, their quanta of deterritorialization, their connections, their precipitations.” In short, it is a question of drawing the lessons from what seems to us like the failure of the thought of ’68 which we have inherited, even in our inability to think and construct a collective war machine equal to the civil war unleashed in the name of neoliberalism and the absolute primacy of the economy as exclusive policy of capital. Everything is taking place as if ’68 was unable to think all the way, not its defeat (there are, since the New Philosophers, professionals in the matter), but the warring order of reasons that broke its insistence through a continuous destruction, placed in the present infinitive of the struggles of “resistance.” 30. It is not a question, it is not at all a question of stopping resistance. It is a question of dropping a “theoricism” satisfied with a strategic discourse that is powerless in the face of what is happening. And what has happened to us. Because if the mechanisms of power are constitutive, to the detriment of strategic relationships and the wars taking place there, there can only be phenomena of “resistance” against them. With the success we all know. Graecia docet.Prefer negative evidence- sociolegal study proves incremental reform efforts like the AC are counterproductive- they reinforce tropes/assumptions that undergrid mass incarceration and the CJS Beckett, PhD, et al., 16(Katherine, Sociology@Washington, Anna Reositi, PhD Candidate, Emily Knaphus, PhD Candidate, The End of an Era? Understanding the Contradictions of Criminal Justice Reform The Annals of The American Academy of Political and Social Science March, 2016)There is, then, considerable evidence that the criminal justice zeitgeist is in flux and that meaningful criminal justice reform is under way. On the other hand, sociolegal scholarship provides ample reason to suspect that once created, mass incarceration may prove difficult to reverse, even with the enactment of meaningful reforms. There are several reasons for this. In some cases, reforms simply trigger adaptation by institutional actors. For example, following the Supreme Court's invalidation of vagrancy and loitering statutes, local authorities across the country created novel social control tools that enabled them to regulate the movement of the socially marginal but are comparatively difficult to challenge in the courts n2 (Beckett and Herbert 2010). Similarly, the Supreme Court's 1972 [*241] Furman v. Georgia decision--in which the Court determined that the administration of capital punishment violated several constitutional protections--triggered the widespread adoption of statutes authorizing the imposition of LWOP sentences. Because these statutes were not rescinded after the Court reinstated the death penalty in 1976, n3 the unintended consequence of the temporarily successful challenge to capital punishment was the spread of "the other death penalty" (Gottschalk 2012; McCann and Johnson 2009; Ogletree and Sarat 2012). Similarly, prison litigation efforts in Florida backfired when court orders to reduce overcrowding were (re)interpreted by political actors as mandates to build additional prisons rather than to reduce prison populations (Schoenfeld 2010). And as Petersilia and Cullen (2015, 12) note in their recounting of instances in which good intentions went awry, efforts to reduce prison populations through the adoption of intermediate sanctions in the early 1990s did not reduce prison populations, and in some cases actually increased them. These studies remind us that criminal justice reform may not unfold in a linear or unidirectional manner, and often has paradoxical consequences, in part because institutional dynamics may undercut or complicate criminal justice reform efforts. Indeed, as the vast literature on path dependence shows, developments such as mass incarceration create vested interests that seek to perpetuate favorable institutional arrangements. Path dependence refers to "the tendency for courses of political or social development to 'generate self-reinforcing processes'" (Pierson 2000, 810) that frustrate efforts to change direction. For example, the creation of Sweden's generous social welfare programs created a large population of public sector social service workers who were well suited (and motivated) to mobilize politically around policies that sustained or expanded the national welfare state (Pierson 2000, 810; see also Mahoney 2000). Similarly, institutions that have flourished as a result of mass incarceration often work to ensure its continued existence. For example, private corporations that own and operate prisons (or profit from them), prison officers' unions, the bail industry, and even county clerks often seek to block progressive criminal justice reform (Gottshalk 2015; Mason 2012; Page 2011a, 2011b; Petersilia and Cullen 2015). These policy fights may play out in relatively public ways, as efforts by the prison officers' union to prevent reform of California's "Three Strikes" law did (Page 2011a, 2011b). Organizations such as prison officer unions also make campaign donations, fund victims groups, and engage in effective public relations campaigns in pursuit of their political goals. Institutional developments such as mass incarceration thus create powerful institutions that may engage in overt policy battles to protect their interests. But efforts to blunt or reverse reforms may also take subtler and less visible forms (Beckett and Murakawa 2012; Hacker 2004). As sociolegal scholars have long emphasized, the exercise of legal discretion can create a notable gap between the "law on the books" and the "law in action" (Halliday et al. 2009; Silbey and Sarat 1987). Moreover, legal discretion is ubiquitous throughout the criminal justice process (Davis 2008). For example, police scholars have long noted that police organizations and officers possess significant discretion that shapes not only criminal justice outcomes but urban landscapes as well (Bittner 1967). Similarly, prosecutorial discretion is enormously consequential but notoriously difficult to [*242] monitor (Davis 2008; Stuntz 2011). And in states with in-determinant sentencing systems (in which judges impose open-ended sentences and parole boards determine actual release dates), parole boards also exercise substantial discretion and notably impact the amount of time inmates serve in prison (Gottshalk 2015). In short, institutional dynamics may undermine the impact of criminal justice reform efforts. But sociolegal scholarship also suggests that criminal justice reformers are also likely to encounter--and may even perpetuate--important cultural obstacles. Mass incarceration is a highly racialized phenomenon, one that both reflects and perpetuates racial stereotypes, especially the cultural association between blackness and criminality (Muhammad 2010). Indeed, rhetorical justifications for the wars on crime and drugs have relied heavily on racialized images and discourses (Alexander 2010; Beckett 1997; Provine 2007; Simon 2007); criminal justice institutions now serve, in part, as "race-making" institutions (Pager 2007). Institutional and political actors opposed to criminal justice reforms will therefore find a plethora of racially inflected images and discourses that may be effectively deployed in an effort to buttress antireform efforts. Moreover, there is reason to suspect that these racialized tropes and images will continue to resonate with large sectors of the public (Eberhardt and Goff 2005; Eberhardt et al. 2004). Indeed, recent studies suggest that white citizens actually become more supportive of "tough" criminal justice policies when they are informed that those policies disproportionately impact people of color (Hetey and Eberhardt 2014; see also Ghandnoosh 2014). In addition, as theorists ranging from Durkheim (1984) and Mead (1918) to Garfinkel (1956) and Goffman (1956) have emphasized, penal practices are inherently expressive and symbolic acts. The expressive dimension of penal rituals and the judgment, condemnation, and punishment of criminal offenders means that public discussions of penal practices are emotionally and morally loaded (Garland 1990). Discussions of crime and punishment, then, are intensely symbolic phenomena; crime talk generally, and reassertions of the need to punish "real criminals" and "predators," are highly subject to "symbolic politics" (Edelman 1985). For these reasons, policy-makers may feel compelled to reassert the moral boundaries that differentiate deserving citizens from "predators" and to reassure the public that they remain committed to the idea that "real criminals" must be aggressively punished--even as they embrace certain (limited) criminal justice reforms. Indeed, reformers themselves sometimes juxtapose the comparatively sympathetic target of their reform efforts--usually "nonviolent drug users"--with "serious and violent" criminals (see also Gottshalk 2015). One example of this kind of rhetoric comes from the I75 campaign that took place in Seattle in the early 2000s, in which reformers sought to deprioritize marijuana enforcement. In justifying this policy shift, reformers emphasized that the initiative would save scarce resources and "free our police and prosecutors--who are already over-worked and deserve our strong support--to concentrate on protecting us against serious and violent crime" (Licata et al. n.d.). Similarly, the U.S. Department of Justice's recent (2013) campaign for policies that are "smart on crime" highlights the need to ensure "just punishments" for "non-violent offenders"--implying, it would seem, that unjust punishments for people convicted of a violent offense are "smart" and acceptable. [*243] In short, as Seeds (2015) argues, the national discourse on crime and punishment may reflect a new, bifurcated way of thinking and talking about punishment that draws a sharp line between nonviolent and violent offenders and depicts the former as worthy of reform but the latter as deserving of even greater punishment. These observations lead us to suspect that neither the emergence of discourses associated with the "Right on Crime" and "Smart on Crime" campaigns, nor the recent adoption of drug and parole reforms, nor even the dramatic "realignment" of California's correctional populations, necessarily signal a comprehensive rethinking of the nature, scope, and intensity of U.S. penal practices. Instead, we explore the possibility that these developments may constitute a comparatively minor adjustment of the boundaries that delineate "real criminals" from more sympathetic others. Ironically, reformers may reaffirm the collective commitment to severely punishing those who remain firmly entrenched in the "real criminal" category even as they make the case for particular reforms. For these reasons, the enactment of drug and parole reforms and the spread of discourses that highlight the validity of such reforms may be accompanied by subtle shifts in penal discourse in which the use of nonconfinement sanctions for some offenders is legitimated even as the imposition of increasingly severe penalties for less sympathetic criminal defendants is justified. To the extent that this occurs, the prospects of comprehensive sentencing reform that would significantly reduce levels of incarceration are weakened. These insights leads us to hypothesize that recent calls for criminal justice reform--and policy reforms themselves--are not comprehensive but, rather, consistently identify nonviolent, nonserious, and nonrepeat offenders as the intended beneficiary of penal reform. We also expect that calls for such reforms frequently entail assertions of the need to maintain or intensify the penalties imposed on "serious" and "violent" criminals. Empirical support for these hypotheses would suggest that the reach (and potential impact) of criminal justice reform is circumscribed; it would also suggest that contemporary debates--and even calls for reform--reinforce the idea that penalties for repeat, serious, and violent offenders should be maintained and perhaps even intensified. Finally, we suspect that reforms will be primarily framed as a way of reducing state expenditures on corrections rather than as a way to promote fairness, proportionality, and/or human rights in the criminal justice system. To the extent that this is the case, policy "solutions" aimed at minimizing correctional costs--but not reducing correctional populations or improving prison conditions--may be seen as sufficient. We assess these hypotheses by analyzing recent criminal justice policy reforms as well as newspaper stories about criminal justice reform. In what follows, we briefly describe the data and methods employed in these analyses.The alternative is whatever being: a mode of life that resists political classification. Since sovereignty exercises power through classification, resistance should focus on modes of living rather than acts Caldwell, PhD, 04(Anne, Political/Feministtheory@Louisville, Bio-Sovereignty and the Emergence of Humanity Theory & Event Volume 7, Issue 2, 2004)Can we imagine another form of humanity, and another form of power? The bio-sovereignty described by Agamben is so fluid as to appear irresistible. Yet Agamben never suggests this order is necessary. Bio-sovereignty results from a particular and contingent history, and it requires certain conditions. Sovereign power, as Agamben describes it, finds its grounds in specific coordinates of life, which it then places in a relation of indeterminacy. What defies sovereign power is a life that cannot be reduced to those determinations: a life “that can never be separated from its form, a life in which it is never possible to isolate something such as naked life.” (2.3). In his earlier Coming Community, Agamben describes this alternative life as “whatever being.” More recently he has used the term “forms-of-life.” These concepts come from the figure Benjamin proposed as a counter to homo sacer: the “total condition that is ‘man’.” For Benjamin and Agamben, mere life is the life which unites law and life. That tie permits law, in its endless cycle of violence, to reduce life an instrument of its own power. The total condition that is man refers to an alternative life incapable of serving as the ground of law. Such a life would exist outside sovereignty. Agamben’s own concept of whatever being is extraordinarily dense. It is made up of varied concepts, including language and potentiality; it is also shaped by several particular dense thinkers, including Benjamin and Heidegger. What follows is only a brief consideration of whatever being, in its relation to sovereign power. “Whatever being,” as described by Agamben, lacks the features permitting the sovereign capture and regulation of life in our tradition. Sovereignty’s capture of life has been conditional upon the separation of natural and political life. That separation has permitted the emergence of a sovereign power grounded in this distinction, and empowered to decide on the value, and non-value of life (1998: 142). Since then, every further politicization of life, in turn, calls for “a new decision concerning the threshold beyond which life ceases to be politically relevant, becomes only ‘sacred life,’ and can as such be eliminated without punishment” (p. 139). This expansion of the range of life meriting protection does not limit sovereignty, but provides sites for its expansion. In recent decades, factors that once might have been indifferent to sovereignty become a field for its exercise. Attributes such as national status, economic status, color, race, sex, religion, geo-political position have become the subjects of rights declarations. From a liberal or cosmopolitan perspective, such enumerations expand the range of life protected from and serving as a limit upon sovereignty. Agamben’s analysis suggests the contrary. If indeed sovereignty is bio-political before it is juridical, then juridical rights come into being only where life is incorporated within the field of bio-sovereignty. The language of rights, in other words, calls up and depends upon the life caught within sovereignty: homo sacer. Agamben’s alternative is therefore radical. He does not contest particular aspects of the tradition. He does not suggest we expand the range of rights available to life. He does not call us to deconstruct a tradition whose power lies in its indeterminate status.21 Instead, he suggests we take leave of the tradition and all its terms. Whatever being is a life that defies the classifications of the tradition, and its reduction of all forms of life to homo sacer. Whatever being therefore has no common ground, no presuppositions, and no particular attributes. It cannot be broken into discrete parts; it has no essence to be separated from its attributes; and it has no common substrate of existence defining its relation to others. Whatever being cannot then be broken down into some common element of life to which additive series of rights would then be attached. Whatever being retains all its properties, without any of them constituting a different valuation of life (1993: 18.9). As a result, whatever being is “reclaimed from its having this or that property, which identifies it as belonging to this or that set, to this or that class (the reds, the French, the Muslims) — and it is reclaimed not for another class nor for the simple generic absence of any belonging, but for its being-such, for belonging itself.” (0.1–1.2). Indifferent to any distinction between a ground and added determinations of its essence, whatever being cannot be grasped by a power built upon the separation of a common natural life, and its political specification. Whatever being dissolves the material ground of the sovereign exception and cancels its terms. This form of life is less post-metaphysical or anti-sovereign, than a-metaphysical and a-sovereign. Whatever is indifferent not because its status does not matter, but because it has no particular attribute which gives it more value than another whatever being. As Agamben suggests, whatever being is akin to Heidegger’s Dasein. Dasein, as Heidegger describes it, is that life which always has its own being as its concern — regardless of the way any other power might determine its status. Whatever being, in the manner of Dasein, takes the form of an “indissoluble cohesion in which it is impossible to isolate something like a bare life. In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into existence over which power no longer seems to have any hold” (Agamben 1998: 153). We should pay attention to this comparison. For what Agamben suggests is that whatever being is not any abstract, inaccessible life, perhaps promised to us in the future. Whatever being, should we care to see it, is all around us, wherever we reject the criteria sovereign power would use to classify and value life. “In the final instance the State can recognize any claim for identity — even that of a State identity within the State . . . What the State cannot tolerate in any way, however, is that the singularities form a community without affirming an identity, that humans co-belong without a representable condition of belonging” (Agamben 1993:85.6). At every point where we refuse the distinctions sovereignty and the state would demand of us, the possibility of a non-state world, made up of whatever life, appears.PIC “Structural Violence”Counterplan Text: We advocate the entirety of the aff plan without the use of the words “structural violence”.The counterplan is inherently competitive. Since we defend the entirety of the aff advocacy aside from a change in certain rhetoric a perm would be severance out of both the reps and the language of the 1AC. DefinitionThey misunderstand the meaning of the term “structural violence”. It is a specific term of art used in the sociological field of peace research that has been widely discredited by both critics and the terms creator. Structural violence” is a term coined by Johan Galtung, it refers to violence where no single decision maker is responsible- like poverty which results from the global economy, which ignores that multiple actors are responsible. Gatlung 12 Galtung Institute 12()Theories of structural violence explore how political, economic and cultural structures result in the occurrence of avoidable violence, most commonly seen as the deprivation of basic human needs (will be discussed later). Structural theorists attempt to link personal suffering with political, social and cultural choices. Johan Galtung’s original definition included a lack of human agency; that is the violence is not a direct act of any decision or action made by a particular person but a result of an unequal distribution of resources.Here, we must also understand “institutional violence”. “Institutional violence” is often mistaken for structural violence, but this is not the case. “Institutional violence” should be used to refer to violence perpetrated by institutions like companies, universities, corporations, organisations as opposed to individuals. The fact that women are paid less at an establishment than men is an act of direct violence by that specific establishment. It is true that there is a relationship with structural violence as there is between interpersonal violence and structural violence. And Structural violence is the most problematic area to be addressed for conflict BenefitsReliance on the vague concept of “structural violence” recreates oppression. Subpoint A: Theories of “structural violence” distract solutions to material conditions in favor of vague criticism of poorly defined systems. Existing structures will co-opt your criticism and the process trades off with more effective reforms. 1.Structural violence obscures analysis necessary to reduce poverty and violence- this card is on fire. Boulding 77 Kenneth Boulding, Prof Univ. of Michigan and UC Boulder, Journal of Peace Research 1977; 14; 75 p. Boulding p. 83-4Finally, we come to the great Galtung metaphors of ’structural violence’ and ’positive peace’. They are metaphors rather than models, and for that very reason are suspect. Metaphors always imply models and metaphors have much more persuasive power than models do, for models tend to be the preserve of the specialist. But when a metaphor implies a bad model it can be very dangerous, for it is both persuasive and wrong. The metaphor of structural violence I would argue falls right into this category. The metaphor is that poverty, deprivation, ill health, low expectations of life, a condition in which more than half the human race lives, is ’like’ a thug beating up the victim and taking his money away from him in the street, -or it is ’like’ a conqueror stealing the land of the people and reducing them to slavery. The implication is that poverty and its associated ills are the fault of the thug or the conqueror and the solution is to do away with thugs and conquerors. While there is some truth in the metaphor, in the modem world at least there is not very much. Violence, whether of the streets and the home, or of the guerilla, of the police, or of the armed forces, is a very different phenomenon from poverty. The processes which create and sustain poverty are not at all like the processes which create and sustain violence, although like everything else in the world, everything is somewhat related to everything else. There is a very real problem of the structures which lead to violence, but unfortunately Galtung’s metaphor of structural violence as he has used it has diverted attention from this problem. Violence in the behavioral sense, that is, somebody actually doing damage to somebody else and trying to make them worse off, is a ’threshold’ phenomenon, rather like the boiling over of a pot. The temperature under a pot can rise for a long time without its boiling over, but at some threshold boiling over will take place. The study of the structures which underlie violence are a very important and much neglected part of peace research and indeed of social science in general. Threshold phenomena like violence are difficult to study because they represent ’breaks’ in the system rather than uniformities. Violence, whether between persons or organizations, occurs when the ’strain’ on a system is too great for its ‘~s~trength’. The metaphor here is that violence is like what happens when we break a piece of chalk. Strength and strain, however, especially in social systems, are so interwoven historically that it is very difficulty to separate them. The diminution of violence involves two possible strategies, or a mixture of the two; one is the increase in the strength of the system, ~the other is the diminution of the strain. The strength of systems involves habit, culture, taboos, and sanctions, all these things, which enable a system to stand Increasing strain without breaking down into violence. The strains on the system are largely dynamic in character, such as arms races, mutually stimulated hostility, changes in relative economic position or political power, which are often hard to identify. Conflict of interest are only part of the strain on a system, and not always the most important part. It is very hard for people to know their interests, and misperceptions of interests take place mainly through the dynamic processes, not through the structural ones. It is only perceptions of interest which affect people’s behavior, not the ’real’ interests, whatever these may be, and the gap between perception and reality can be very large and resistant to change. However, what Galitung calls structural violence (which has been defined by one unkind commentator as anything that Galltung doesn’~t like) was originally defined as any unnecessarily low expectation of life, an that assumption that anybody who dies before the allotted span has been killed, however unintentionally and unknowingly, by somebody else. The concept has been expanded to include all the problems off poverty, destitution, deprivation, and misery. These are enormously real and are a very high priority for research and action, but they belong to systems which are only peripherally related to the structures which, produce violence. This is not to say that the cultures of violence and the cultures of poverty are not sometimes related, though not all poverty cultures are culture of violence, and certainly not all cultures of violence are poverty cultures. But the dynamics of poverty and the success or failure to rise out off ’it are of a complexity far beyond anything which the metaphor of structural violence can offer. While the metaphor of structural violence performed a ’service in calling attention to a problem, it may have done a disservice in preventing us from finding the answer.2. Galtung’s theory of structural violence perpetuates the status quo of dominant states by offering an overly vague criticism of oppression. Lawler 89 Peter Lawler (1989) A question of values: A critique of Galtung's peace research, Interdisciplinary Peace Research: formerly Pacifica Review: Peace, Security & Global Change, 1:2, 27-55, DOI: 10.1080/14781158908412711 In the late 1960's Galtung's foundational model of peace research was subjected to considerable criticism as part of a general upheaval within the peace research community. A group of young, mostly Scandinavian, radicals employed a neo-Marxist perspective to attack the assumptions of symmetry and ideological neutrality that formed the core of Galtung's argument (Schmid 1968, 1970; Olsen and Jarvad 1969; Eckhardt 1971; Dencik 1982). Though their primary target was American conflict research and its contribution to the analysis of the Vietnam War, they questioned also Galtung's assumption that the path to peace lay in the principles of integration and cooperation. For the radicals, Galtung's approach neglected the political-economy of relations between the developed and underdeveloped worlds and in its attempt to preserve a sym- metrical approach to violent conflict was guilty of 'idealistic universal- ism'. From the perspective of the oppressed, an argument for the further integration of the international system was tantamount to defending a status quo which reflected the interests of the dominant states and the beneficiaries of the world capitalist economy. Against this, the radicals called for a peace research that openly sided with the exploited and advocated the 'sharpening' of the various latent conflicts of interests that characterised global politics.3. Resolving “structural violence” requires action by international powers, as they are the only bodies capable of amending existing “structures”. This reliance on current institutions preserves existing structures of dominance. Schmid 68Peace Research and Politics; Herman Schmid; Journal of Peace Research, Vol. 5, No. 3, pp. 217-232; 1968; Sage Publications; research is an applied or 'oriented' science. An applied science has to be applied by somebody who has the power to apply it. In the case of peace research, this means there must be some kind of institutionalized link between peace re- searchers and decision-makers on the supranational level. Thus, the universalist ethos of peace research becomes operationalized into identification with the interests of the existing international system, that is the interests of those who have power 229 in the international system. So peace research becomes a factor supporting the status quo of the international power structure, providing the decision-makers of the system with knowledge for control, manipulation and integration of the system. That is the institutional aspect of peace research. The theoretical frame of reference dominating peace research closely cor- responds to the institutional needs: the peace researcher/specialist is trained in an ideology of internationalism; he has learned how to solve conflicts, how to integrate a system, how to avoid manifest organized violence, how to prevent major uprisings against the system; and he believes that what is good for the system is in the long run also good for its elements. His concept of peace is essentially a negative one, stressing the need for stable peace,38 and the 'common interest' he will have to fall back on is the avoidance of catastrophe. His positive concept of peace is not sui generis but a negation of his negative peace concept. The essence of peace research is concentrated in the concepts of control of the international sys- tem to prevent major breakdowns, and integration of the international system to make it more stable. That is the ideological aspect of peace research. The institutional and the ideological aspects presuppose and condition each other. To become applied, peace research must meet the needs of the decision- makers. To satisfy their concern about stable peace, peace researchers must ally themselves with the decision-makers of the international system. Given this situation, change of the system can not be advocated by peace research. Structural change would be a threat to the power-holders of the international system. Only adaptive change within the system is possible.all! But the drive for equality as such is extremely strong in all his writings.Subpoint B: Attempts to resolve “structural violence” inevitably result in the perpetuation of physical violence that shuts off democratic channels for minority representation. 1. The concept of structural violence shuts down democratic debate and justifies violent lash outs to combat inequality. Maley 88 William Maley, Professor and Director of the Asia-Pacific College of Diplomacy at The Australian National University , Australian Journal of International Affairs 42, 1988The deployment of a notion of positive peace has been a far from innocuous development in peace research. A comprehensive theory of needs, where needs are not defined simply as necessary means to an agreed end, can be the basis for a suppression of both democratic and liberal aspirations. Democracy and Liberty are both concerned with personal desires, the former in the sphere of the polity, and the latter in the sphere of the individual. Needs theory subjugates both the individual and the polity to the abstract ideology of the needs theorist. When Maxim Litvinov remarked in Geneva in the 1930s that peace is indivisible, he was referring to the negative sense of the term. 'Negative peace' is one of the few social values in whose name crimes can be committed only at the cost of self-contradiction. However, if 'negative peace' must be associated with 'positive peace' to give rise to peace in totality, then peace is no longer indivisible —since direct violence may be defended as a means of eliminating `structural violence'. This defence is a familiar one, resembling the classic liberal justification for rebellion, and even in certain circumstances intervention. Christian Bay has argued that structural violence `may be so extreme that a limited war must be deemed a lesser evil, if there is no other way to end or mitigate the structural violence, and if the war is sure to remain limited and brief in duration.'" This blithe assumption — that there could ever be circumstances in which one could be absolutely sure that a war would remain limited and brief in duration — is a splendid illustration of Bay's detachment from the real world. Nonetheless, the greatest danger in his claim stems from the extraordinary elasticity of the notion of structural violence. This is best brought out by the Danish peace researcher Lars Dencik, although using slightly different terminology. He defines conflicts as `incompatible interests', and goes on to remark that 'incompatible interests are here defined objectively, i.e. by the observing scientist according to his theory and is [sic] independent of the actual subjective consciousness of the actors involved. This means that incompatible interests are conceived of as structural (actor indepen-dent), the structure defined according to the theory of the scientist.'" He draws the predictable conclusion that 'in certain situations "revolutionary violence" may be the necessary means to obtain conflict resolution proper'." This is irresistibly reminiscent of the conclusion of Georges Sorel's Reflections on Violence, that it is `to violence that Socialism owes those high ethical values by means of which it brings salvation to the modern world'20, and it is instructive, though for peace educators perhaps not very comforting, to recall that Sorel's ideas eventually were used in justification of Italian Fascism." (p. 30)2. Democratic deliberation is key to avoid massive violence. Halperin 11 (Morton H., Senior Advisor – Open Society Institute and Senior Vice President of the Center for American Progress, “Unconventional Wisdom – Democracy is Still Worth Fighting For”, Foreign Policy, January / February, )As the United States struggles to wind down two wars and recover from a humbling financial crisis, realism is enjoying a renaissance. Afghanistan and Iraq bear scant resemblance to the democracies we were promised. The Treasury is broke. And America has a president, Barack Obama, who once compared his foreign-policy philosophy to the realism of theologian Reinhold Niebuhr: "There's serious evil in the world, and hardship and pain," Obama said during his 2008 campaign. "And we should be humble and modest in our belief we can eliminate those things." But one can take such words of wisdom to the extreme-as realists like former Secretary of State Henry Kissinger and writer Robert Kaplan sometimes do, arguing that the United States can't afford the risks inherent in supporting democracy and human rights around the world. Others, such as cultural historian Jacques Barzun, go even further, saying that America can't export democracy at all, "because it is not an ideology but a wayward historical development." Taken too far, such realist absolutism can be just as dangerous, and wrong, as neoconservative hubris. For there is one thing the neocons get right: As I argue in The Democracy Advantage, democratic governments are more likely than autocratic regimes to engage in conduct that advances U.S. interests and avoids situations that pose a threat to peace and security. Democratic states are more likely to develop and to avoid famines and economic collapse. They are also less likely to become failed states or suffer a civil war. Democratic states are also more likely to cooperate in dealing with security issues, such as terrorism and proliferation of weapons of mass destruction. As the bloody aftermath of the Iraq invasion painfully shows, democracy cannot be imposed from the outside by force or coercion. It must come from the people of a nation working to get on the path of democracy and then adopting the policies necessary to remain on that path. But we should be careful about overlearning the lessons of Iraq. In fact, the outside world can make an enormous difference in whether such efforts succeed. There are numerous examples-starting with Spain and Portugal and spreading to Eastern Europe, Latin America, and Asia-in which the struggle to establish democracy and advance human rights received critical support from multilateral bodies, including the United Nations, as well as from regional organizations, democratic governments, and private groups. It is very much in America's interest to provide such assistance now to new democracies, such as Indonesia, Liberia, and Nepal, and to stand with those advocating democracy in countries such as Belarus, Burma, and China. It will still be true that the United States will sometimes need to work with a nondemocratic regime to secure an immediate objective, such as use of a military base to support the U.S. mission in Afghanistan, or in the case of Russia, to sign an arms-control treaty. None of that, however, should come at the expense of speaking out in support of those struggling for their rights. Nor should we doubt that America would be more secure if they succeed.3. Combatting “structural violence” justifies reactionary violence against a system that is poorly defined. This makes conflict inevitable and trades-off with peaceful reform. Quester George H. Quester is chair of the Department of Government and Politics at the University of Maryland, ANNALS, AAPSS, 504, July 1989A third major problem to be raised about some forms of peace research and peace studies, again related to what we have al- ready discussed, arises in the tendency to define peace as much more than an absence of the organized violence of warfare, to define it indeed as the elimination also of poverty and injustice and of prejudice and tyranny, and so on-namely, to define peace simply as a synonym for what is good, for what an economist would call utility. Sometimes we are thus told that an op- position to violence must include an oppo- sition to "structural violence,"7 with the latter phrase presumably meaning any or- ganizational or power relationships that vi- olate the moral standards of the beholder, or we are also told that we must be in favor of "positive peace," which will include all of these good things, accomplished some- how simultaneously, rather than being con- tent with a "negative peace," limited merely to an absence of warfare. Surely there is a great deal that is lost from all of these definitional innovations, but what is there to be gained? If someone assumed, as noted previously, that con- sciousnesses somehow have to be raised, then it may well seem important. as an educational and motivational vehicle, to insist that peace includes an end to poverty or racism. If one assumes that there can never be an avoidance of war unless one simultaneously has an avoidance of pov-erty or racism or other social evils, then this causal link will also suggest a definitional link. But, if there is indeed no such one-to- one link in causal relationships and if mo- tivation is not the entirety of the problem of war and peace, then we surely will have thrown away a great deal of clarity if we insist on calling everything bad "war" or "violence" and if we insist on referring to everything we favor as "peace." This would be a little like telling the American Cancer Society that every disease now has to be referred to as "cancer," including heart disease and cholera and meningitis. Can medicine make any progress at all if it is not allowed to use different words for different ailments? Is it really true that to use different words for war and dictator- ship and poverty is to weaken our motiva- tion or to accept the inevitability of some evils or actually to favor the existence of such evils? If one goes far enough in accepting the definitional innovations produced by some peace studies curricula, it becomes possi- ble then to define violent attacks as peace- ful, as long as they are intended to eliminate racism or injustice, because these attacks are to oppose "structural violence." At the worst, this kind of redefinition is deliberately misleading, as war and vio- lence are defined as being inappropriate for any cause except one's own. At a less du- plicitous level, we simply have some need- less confusion brought into the process, by some relatively honest and well-meaning people.Subpoint C: The term “structural violence” is insufficient for diagnosing the reality of oppression. It is not a method for liberation, just an ivory tower theory. 1. “Structural violence” cannot explain social changes or the exact origins of violence beyond the fact that it simply exists. Lawler 89Peter Lawler (1989) A question of values: A critique of Galtung's peace research, Interdisciplinary Peace Research: formerly Pacifica Review: Peace, Security & Global Change, 1:2, 27-55, DOI: 10.1080/14781158908412711 In his sociological writings Galtung provided no analysis or defence of any specific values, other than to claim that they were empirically held, or to assert that values should be revised in reflection of systemic changes. What was missing was a sense of the politics of social change. Even if consensus could be established as to the direction in which a social system is moving, it is a different matter to evaluate such change. Furth-ermore, how are we to choose between competing and non-commensurable understandings of systemic 'health'? The only answer implicit in Galtung's discussion was that empirical evidence must be produced to show which set of values accorded best with the social system under scrutiny. That brings us back full-circle to the value-contamination of observation and the impact of the political perspective that conditions our analysis of social systems. Functionalism can be wedded to any political ideology, but being a descriptive rather than analytical discourse it cannot provide that ideology. Though aware of the problem of defending values outside of a dis-tinctly normative discourse, Galtung was not apparently perturbed by it. In his discussion of functionalism (1959a) he claimed that there were' fairly inter-subjectively communicable and consensual standards' such as 'sane', 'healthy' or 'normal', against which social systems could be judged. For Galtung, to describe a system as 'healthy' was not a value-judgement, in contrast to the claim that 'healthy is good'. Leaving aside the question as to whether the distinction holds or if 'fairly consensual 'constitutes a scientific category, it became clear that when Galtung turned to peace research the evaluative standard of 'peace' was to be sim-ilarly derived and understood. In its Galtungian mould, peace research was differentiated from earlier forms of normative enquiry into global social relations by the absence of any distinctly normative discourse. 2. Galtung’s theory of structural violence is entirely theoretical. It makes massive leaps in logic and cannot even quantify the violence people suffer. RummelUNDERSTANDING CONFLICT AND WAR: VOL. 5: THE JUST PEACE, Chapter 3, Alternative Concepts Of Peace*; R.J. Rummel; violence appears, for Galtung, when resources, or especially the power to allocate them, are unevenly distributed: when people are starving and this could be avoided; when life expectancy is much greater in the upper class; when a small elite control the entry into high status. Here, without any prior ethical analysis or normative preparation,110 Galtung makes his first intellectual broad jump from the analytical-empirical plane to the ethical, but in a most cavalier manner: "In order not to overwork the word violence we shall sometimes refer to the condition of structural violence as social injustice."111? Then Galtung presents his final two distinctions (dimensions) regarding violence: it may be intended or unintended, or manifest or latent. With these and the other distinctions mentioned, Galtung defines a "typology of violence" in which the personal-structural distinctions are basic. In focusing on the means of personal and structural violence Galtung makes his second broad jump, but now back from the ethical to the analytical-empirical plane--again without analysis and as offhanded: "If we accept that the general formula behind structural violence is inequality, above all in the distribution of power, then this can be measured."112? D. His Concept of "Positive Peace." The above serves as an introduction to six factors maintaining inequalitarian distributions--that is, "mechanisms of structural violence"113--which are of no concern here. Nor need we tarry over Galtung's discussion of the relationship between personal and structural violence, and the trade-offs in emphasizing a system that is higher on one than another. But what I should mention is his conclusion on the definition of peace: ? E. His Political Theory. Thus, structural violence = unactualized human potentials = social injustice = inequality. Therefore, positive peace = equality = social justice = realized human potentials = absence of structural violence. This equation is stipulated; analysis to support the critical relationships are lacking; and the definitional and substantive problems in the formulation are glaring. One should understand, however, that the critical relationships and definitions are entirely theoretical. Even violence, usually an easily measured empirical concept of physical harm and destruction, is converted into a construct meaning unactualized human potential, then equated in theory with injustice and, thence, equality--each of them constructs.PICs GoodTheoryOur interp is that Pics are legitimate as long as they exclude a central component of the AFF that they choose to include. Solves their offense - PICS are only abusive when they moot the 1AC by excluding a trivial or not aff chosen component of implementation. Our offense 1. Fair side balance – PICs offset advantage of case selection, literature biased advantages, and the inherent problems with the status quo. The aff gets infinite prep to write the most strategic AC2. Depth of Education – focusing on intricacies highlights comparative argument quality as well as moving past a vague “good/bad” focus. Prefer in depth strategies over generics that don’t generate clash3. Strategic Research – PICs encourage innovative research that avoids stale debates and bridges different parts of the literature. Our PIC directly engages the literature base of the AC4. Intelligent Plan Writing and AFF Research – AFFs are forced to defend and research every part of the plan through in-depth analysis. No pics guarantees important arguments will be pushed aside in favor of high magnitude nonsense 6. discursive advocacy sills: To be real policymakers people need to be aware of language – this type of education is most useful. WoodsSteve Woods, [Director of Forensics at Western Washington University], “Changing the Game?: Embracing the Advocacy Standard”, [No date given] The world of policy technocrats and public decision makers is bound to strict codes of expectation regarding their public statements about constituencies and members of the public. Racist or gender-insensitive comments would not be tolerated by administrators, especially those who see such comments as public liabilities. In the debate context, making sure that all references or literature introduced into the debate are consistent, and that the in-round rhetoric of the debater in explaining the arguments is consistent with the assumptions of the literature, is a parallel expectation.5. Key to CP Ground – virtually every CP could be classified as a PIC and in the real world PICS are an important part of legislative deliberation- if Obama pushes tax cuts for the poor republicans can counter with tax cuts for the richOutweighs their offense – this is a key form of engagement for negatives to answer well written plans and promotes important policy education. Jourde 2Cedric Jourde * Ph.D., Political Science, University of Wisconsin-Madison, Madison, 2002 * M.A., Political Science, University of Wisconsin-Madison, Madison, 1996 * B.Sc., Political Science, Université de Montréal, Montréal, 1995 Hegemony or Empire?: The redefinition of US Power under George W Bush Ed. David and Grondin p. 182-3 2006 Relations between states are, at least in part, constructed upon representations. Representations are interpretative prisms through which decision-makers make sense of a political reality, through which they define and assign a subjective value to the other states and non-state actors of the international system, and through which they determine what are significant international political issues.2 For instance, officials of a given state will represent other states as 'allies', 'rivals', or simply 'insignificant', thus assigning a subjective value to these states. Such subjective categorizations often derive from representations of these states' domestic politics, which can for instance be perceived as 'unstable*, 'prosperous', or 'ethnically divided'. It must be clear that representations are not objective or truthful depictions of reality; rather they are subjective and political ways of seeing the world, making certain things 'seen' by and significant for an actor while making other things 'unseen' and 'insignificant'.3 In other words, they are founded on each actor's and group of actors' cognitive, cultural-social, and emotional standpoints. Being fundamentally political, representations are the object of tense struggles and tensions, as some actors or groups of actors can impose on others their own representations of the world, of what they consider to be appropriate political orders, or appropriate economic relations, while others may in turn accept, subvert or contest these representations. Representations of a foreign political reality influence how decision-making actors will act upon that reality. In other words, as subjective and politically infused interpretations of reality, representations constrain and enable the policies that decision-makers will adopt vis-a-vis other states; they limit the courses of action that are politically thinkable and imaginable, making certain policies conceivable while relegating other policies to the realm of the unthinkable.4 Accordingly, identifying how a state represents another state or non-state actor helps to understand how and why certain foreign policies have been adopted while other policies have been excluded. To take a now famous example, if a transnational organization is represented as a group of 'freedom fighters', such as the multi-national mujahideen in Afghanistan in the 1980s, then military cooperation is conceivable with that organization; if on the other hand the same organization is represented as a 'terrorist network', such as Al-Qaida, then military cooperation as a policy is simply not an option. In sum. the way in which one sees, interprets and imagines the 'other* delineates the course of action one will adopt in order to deal with this 'other'. Our Defense-1. Doesn’t Skew Ground – the AFF can turn our net benefit by utilizing their AC framing- if they have no ground vs this strategy they should have written a better AC2. No Infinite Regress – competition is an adequate standard and the AFF literature predictably defines what we can run- if our net benefit doesn’t clash we lose anyway 3. Doesn’t Trivialize – our net benefits prove a significant difference and trivial distinctions are often the most important to policy questions4. No right to case harms – debate is about policy making, not about who finds the best impact arguments6. Not a Voting Issue – reject the illegitimate argument, not the negative-you can still vote for the net benefit 7. DA’s aren’t enoughA. CPs are needed to deal with entrenched status quo trends as well as understand different processesB. CPs are a critical part of reciprocity, while DAs alone create unfairnessC. Only CPs test comparative necessity, while DAs test desirabilityT Abolish = AllA. Interpretation and violation: Abolish means all, the aff only bans a subset1. Abolish= WholeSupreme Court of Florida 58(C. W. CHASE, Jr., et al., as Members of and Constituting the Dade County Budget Commission, Appellants, v. Faris COWART et al., as Members of and Constituting the Board of County Commissioners of Dade County, Florida, Appellees. Supreme Court of Florida. 102 So. 2d 147; 1958 Fla. LEXIS 1839 April 18, 1958.)The word abolish in its usual sense means "to do away with wholly, to annul, to make void." See Webster's New International Dictionary, 2d Ed. Having been abolished, as we have held it was, the Budget Commission had no existence after the effective date of its abolishment and could not thereafter exercise any of the powers nor perform any of the duties assigned to it under the laws affecting it.2. No matter the size of the remainder the aff is not abolitionHargrave, JD, 83(Lee, Law@LSU, Copyright (c) 1983 Louisiana Law Review Louisiana Law Review JANUARY, 1983 43 La. L. Rev. 647 LENGTH: 21490 words ARTICLE: "STATUTORY" AND "HORTATORY" PROVISIONS OF THE LOUISIANA CONSTITUTION OF 1974.)The limit on trusts and the prohibition against abolishing forced heirship, provisions which first appeared in the 1921 constitution and which are continued in article XII, section 5, reflect the influence of the civil law preservationists. In an argument often more romantic than realistic, maintenance of the state's unique ties to French culture becomes merged with maintenance of the civil law and a number of its basic institutions. Forced heirship, provided in the state's civil codes from the earliest times, is part of this institutional backdrop and part of the preservationist creed. n41 In the 1921 constitutional convention process, a 1920 statute authorizing trusts apparently provoked introduction of a provision to ban them and, as a related concern, to continue forced heirship. n42 The compromise, which became article 4, section 16, did allow some trusts, but it also prohibited abolition of forced heirship. Subsequent amendments allowed more exceptions. In any event, the constitution adopted the principle, but it had little effect. Virtually any trusts were allowed, and the lesson of the jurisprudence was that the forced heirship provisions of the Civil Code could be amended and the rights of forced heirs lessened, as long as the institution was not "abolished." n43 To the extent that the cases left room for the argument that a substantial, although undefined, level of rights in forced heirs had to be preserved, the text of the new provisions and the record of the 1974 constitutional proceedings undercut this argument. The text simply states that no law may "abolish" forced heirship. The normal meaning of the term abolish is complete destruction, and as long as any kind of forced portion to any class of forced heirs exists, forced heirship is not abolished. The second sentence of article XII, section 5 confirms this view, specifying that the legislature may determine who are forced heirs and the amount of the forced portion. There is not much else to determine. The legislature, under this provision, could limit the forced rights to minor, needy children or could make [*659] the only forced heir the surviving spouse of the decedent. The conclusion is the same as that stated many years ago in a law review comment: "That nothing along these lines is even remotely foreseeable, barring certain proposed changes with respect to the parent's share of community property in a childless marriage, is due more to an almost emotional attachment of Louisiana law makers to the institution of forced heirship than to constitutional restrictions." n44B. Reasons to prefer 1. The affirmative interpretation is unreasonable- once a remainder is allowed there is no logical limit on topic explosionHargrave, JD, 98 (Lee, Wex. S. Malone Professor of Law, LSU. Coordinator of legal research for the Louisiana Constitutional Convention of 1973. Copyright (c) 1998 Louisiana Law Review Louisiana Law Review Winter, 1998 58 La. L. Rev. 389 LENGTH: 11721 words ARTICLE: Ruminations: Mandates in the Louisiana Constitution of 1974; How Did They Fare?)No law shall abolish forced heirship. The determination of forced heirs, the amount of the forced portion, and the grounds for disinherison shall be provided by law. Trusts may be authorized by law, and a forced portion may be placed in trust. The self-enforcing first sentence, read in its normal sense, allowed the legislature to do anything to forced heirship other than "abolish" it. The second [*406] sentence elaborated that, in addition, the legislature was empowered to determine without any limitations the persons who would be forced heirs and the amount of the forced portion. Furthermore, the convention debates revealed the understanding that the legislature was given full discretion to structure the institution of forced heirship as it chose, so long as something remained. No principled means of determining what had to remain was provided. The section contrasted with the tone of voice used in Article I, section 5, the provision dealing with the right to keep and bear arms. It also begins with a strong statement: "the right of each citizen to keep and bear arms shall not be abridged." That statement is also then qualified: "but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." But here, the exception to the right which empowers the legislature to limit the right is itself limited: legislative action to limit carrying concealed weapons is limited to weapons "concealed on the person." In contrast, the language in Article XII, section 5 gives the legislature power to determine forced heirs and the forced portion and the grounds for disinherison without such a limitation. The structure of the two articles thus indicates that the legislative power over forced heirship was meant to be greater than the power to legislate with respect to gun control. Members of the Judiciary Committee and the Committee on Bill of Rights and Elections had before them staff documents which suggested that the 1921 Constitution provision on forced heirship was not an effective limitation on legislative power and did "not prevent the legislature from making changes in the categories of forced heirs or in the portion of the deceased's estate which constitutes the legitime." n76 While the language cited to support this view may have been dictum on the point, the language of Succession of Earhart n77 was accepted as the existing position of the jurisprudence: "The words, 'no law shall be passed abolishing forced heirship,' mean exactly what they say, in other words, that forced heirship cannot be done away with wholly, wiped out or destroyed. This provision does not prohibit the legislature from regulating or restricting the rights of forced heirs." n78 Delegate Ford Stinson, representing the Committee on Bill of Rights and Elections which proposed Article XII, section 5 toward the end of the convention, explained to the delegates: "Neither do they say that children will be forced heirs of fathers and mothers and their ascending line. It will be left up to the legislature." n79 Delegate Max Tobias stated, "As I presently read Louisiana constitution and statutes, the legislature could very simply say that each child is [*407] a forced heir to the extent of one dollar." n80 Delegate Dennery agreed with Delegate Avant, in that "[t]here would be a system of forced heirship, but what it consisted of, and all the refinements thereof, would be up to the legislature." n81 As I stated in 1983: A court which would be inclined to ignore this legislative history (perhaps arguing that it does not necessarily reflect the intent of the voters who adopted the document) and hold that some reasonable fraction of legitime is required would be in a difficult position. There are simply no traditional legal standards as to what share (percentage or amount) of a deceased's patrimony is part of the forced portion, and there are no legal standards as to who must be forced heirs. Lack of certain judicial standards seems to be another reason supporting the view that the legislature can severely erode the institution, as long as it keeps some absolute minimum aspect of forced heirship. n82 Opponents of this view, depending primarily on a word analysis of the term "abolish", argued there was some minimum level of forced heirship that had to be kept. They recognized, of course, "The difficulty is in determining that point." n83 Moreover, the convention debate on forced heirship was cursory, without considering the policy concerns that were sought to be preserved n84 and which might otherwise have been used to explain what the minimum provisions to be kept would be. The absence of such a debate is explained by the fact that the delegates knew they were adopting an unenforceable mandate, and that the issue was to be left to the legislature. When the legislature sought to limit forced heirship by statute, it kept descendants as the favored persons, but limited the class to descendants under 23 years of age or who were incapacitated. n85 Though the language was not clear, apparently the forced portion was not changed. The supreme court, by a 4-3 decision in Succession of Lauga, n86 however, found the statute violated the constitutional provision because it abolished the "essence" or "core values" of forced heirship, which it determined included equality among descendants regardless of age or need. Justice Dennis wrote for the majority and Justice Kimball wrote a strong dissent. n87 The disagreement between the justices was largely one of philosophy: fidelity to constitutional text and purpose versus protecting fundamental rights defined in non-constitutional [*408] texts. Indeed, the majority opinion spends most of its efforts on historical sources of forced heirship and on the 1921 constitutional provision. From those sources, it draws out the core values of forced heirship which are not stated in the 1975 constitutional text or in the debates during CC/73. Indeed, the most interesting part of the opinion is its refusal to accept the message of the convention debates on the basis that such recourse is not necessary when the meaning of the text is clear. This is hardly the approach of the court in scores of other cases, especially the approach in Polk v. Edwards n88 decided almost contemporaneously. As Professor John Devlin wrote at the time, "By coming to opposite conclusions in the two cases, the court sowed confusion regarding how such provisions should be interpreted, and may have left itself open to charges that its decisions in this area are more result-driven than analytically consistent." n89 He then tried to supply some justification for the different results. Perhaps, he says, the case portends of movement away from the maxim of interpretation that the legislature prevails unless the constitutional limiting provision is "explicit." But that can hardly be reconciled with Justice Dennis' opinion in the bond district case. n90 To the extent that the convention debates must be replaced with a look at the intent of the voters rather than the delegates, he correctly points out that the best evidence of that is the intent of the members of the convention. Even if we were to accept the premise, there is evidence that convention debates were widely reported in the print and electronic media. n912. Research Burden- there are too many crimes to list in a single book. Their interp means the aff only has to prepare for 1 but the neg has to prepare for thousandsSPCC no Date(Social Problems: Continuity and Change )Many types of crime exist. Criminologists commonly group crimes into several major categories: (1) violent crime; (2) property crime; (3) white-collar crime; (4) organized crime; and (5) consensual or victimless crime. Within each category, many more specific crimes exist. For example, violent crime includes homicide, aggravated and simple assault, rape and sexual assault, and robbery, while property crime includes burglary, larceny, motor vehicle theft, and arson. Because a full discussion of the many types of crime would take several chapters or even an entire book or more, we highlight here the most important dimensions of the major categories of crime and the issues they raise for public safety and crime control.There are also multiple kinds of plea bargaining NOLO No Date (Nolo, a wholly owned subsidiary of Internet Brands, is the integration of some of the Internet’s first legal sites, including , and . These sites were combined with the ExpertHub technology platform in 2011 to form the Nolo Network.Nolo began publishing do-it-yourself legal guides in 1971. In the 40 years since its founding, Nolo has evolved with technology, developing do-it-yourself software and building into one of the Internet’s leading legal websites. Learn more about Nolo’s history. )There are many ways to strike a deal. Courts use the following terms to describe different forms of plea bargaining: Charge bargaining. The defendant pleads to a crime that’s less serious than the original charge, or than the most serious of the charges. Example: The prosecution charges Andrew with burglary, but he pleads guilty to trespassing and the prosecution dismisses the burglary charge.Count bargaining. Many consider count bargaining to fall under charge bargaining. Here, the defendant pleads to only one or more of the original charges, and the prosecution drops the rest. Example: The prosecution charges Joey with both robbery and simple assault. The parties agree that Joey will plead to the assault charge, and that the prosecution will dismiss the robbery charge.Sentence bargaining. The defendant takes a guilty or no contest plea after the sides agree what sentence the prosecution will recommend. Example: Max agrees to plead to the charge of misdemeanor resisting arrest, and the prosecution agrees to recommend that the judge not sentence him to jail time.Fact bargaining. The defendant pleads in exchange for the prosecutor’s stipulation that certain facts led to the conviction. The omitted facts would have increased the sentence because of sentencing guidelines. Example: The government files an indictment against Cole for drug trafficking. Federal agents caught him with over five kilograms of cocaine. Five kilograms triggers a sentence involving many years in prison, so Cole agrees to plead guilty to the offense in exchange for the prosecution’s stipulation that he possessed less than five kilograms. For further discussion of the kinds of plea bargains—and the process by which judges decide whether to accept or reject them—see How Judges Accept and Reject Plea Deals.C. Topicality is a voting issue for predictable limits- it tells the negative what they do and do not have to be prepared for. It should be evaluated through a lens of competing interpretations- it’s not what you do it’s what you justify No RVIS RVIs turn every debate into theory since it creates a higher layer for the person hitting theory to collapse to – destroys substantive education since debaters are incentivized to go all in on theory. RVIs incentivize abusive practices since people will read obscure abusive arguments and massively prep out the theory debate which their opponent won’t be prepared to answer even if there’s actual abuse, then go all in on the RVINo reason RVI is key – drop the arg and reasonability are more commonly accepted and have the same effectThey can run theory on me too so no RVIs is reciprocalThey shouldn’t win just b/c they were TT TopicF/WA. Interpretation: The affirmative must only defend that plea bargaining is abolished in the US. United States requires either state or federal government actionStone 45 – SCOTUS Chief Justice [Harlan, HOOVEN & ALLISON CO. v. EVATT, 324 U.S. 652 (1945) 324 U.S. 652, decided April 9, 1945, caselaw.lp.scripts/getcase.pl?navby=case&court=us&vol=324&page=652, accessed 7-24-14]The term 'United States' may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States ex- [324 U.S. 652, 672] tends, or it may be the collective name of the states which are united by and under the Constitution. Resolved reflects policy passage before a legislative body. Parcher 01(Jeff, Fmr. Debate Coach at Georgetown University, February, )(1) Pardon me if I turn to a source besides Bill. American Heritage Dictionary: Resolve: 1. To make a firm decision about. 2. To decide or express by formal vote. 3. To separate something into constituent parts See Syns at *analyze* (emphasis in orginal) 4. Find a solution to. See Syns at *Solve* (emphasis in original) 5. To dispel: resolve a doubt. - n 1. Frimness of purpose; resolution. 2. A determination or decision. ?(2) The very nature of the word "resolution" makes it a question. American Heritage: A course of action determined or decided on. A formal statemnt of a deciion, as by a legislature. (3) The resolution is obviously a question. Any other conclusion is utterly inconcievable. Why? Context. The debate community empowers a topic committee to write a topic for ALTERNATE side debating. The committee is not a random group of people coming together to "reserve" themselves about some issue. There is context - they are empowered by a community to do something. In their deliberations, the topic community attempts to craft a resolution which can be ANSWERED in either direction. They focus on issues like ground and fairness because they know the resolution will serve as the basis for debate which will be resolved by determining the policy desireablility of that resolution. That's not only what they do, but it's what we REQUIRE them to do. We don't just send the topic committee somewhere to adopt their own group resolution. It's not the end point of a resolution adopted by a body - it's the prelimanary wording of a resolution sent to others to be answered or decided upon. (4) Further context: the word resolved is used to emphasis the fact that it's policy debate. Resolved comes from the adoption of resolutions by legislative bodies. A resolution is either adopted or it is not. It's a question before a legislative body. Should this statement be adopted or not. (5) The very terms 'affirmative' and 'negative' support my view. One affirms a resolution. Affirmative and negative are the equivalents of 'yes' or 'no' - which, of course, are answers to a question.Plea bargaining. Legal Dictionary by Farfex. Plea BargainingThe process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to court approval.Plea bargaining can conclude a criminal case without a trial. When it is successful, plea bargaining results in a plea agreement between the prosecutor and defendant. In this agreement, the defendant agrees to plead guilty without a trial, and, in return, the prosecutor agrees to dismiss certain charges or make favorable sentence recommendations to the court. Plea bargaining is expressly authorized in statutes and in court rules.B. Fairness- 1. Debate is a game: forced winner/loser, competitive norms, and the tournament invite prove. Alternative impacts like activism or education can be pursued in other forums. This makes fairness the most important impact2. Not defending the topic is not fairA. Preparation- repacking the topic gives the aff a huge edge, they can prepare for 6 months on an issue that catches us by surprise. Preparation is better than thinking on your feet- research demonstrates pedagogical humility and research skills are the only portable debate trainingB. Limits- there area finite amount of government restrictions, but an infinite number of non topical affirmatives. Consider this our “library disad”- not debating the topic allows someone to specialize in one area of the library for 4 years giving them a huge edge over people who switch research focus ever 2 months. C. Causality- debating the resolution forces the affirmative to defend a cause and effect relationship, the state doing x results in y. Non topical affs establish their own barometer “I think x is good for me” that aren’t negateable. Only the neg promotes switch side debateD. Exclusionary rule- you can’t vote on the case outweighs T because lack of preparation prevents rigorous testing of the AC claims. If we win fairness we don’t have to “outweigh” other impacts C. Cede the Political1. The state isn’t monolithic or fixed- it’s a contingent site of political struggle. Blanket rejection empowers right wing policies, while strategic resistance can use cracks in the state as a focal point of transformation Khachaturian 17 Khachaturian, PhD candidate, 17(Rafael, PoliSci@Indiana Bloomington, 2-20, )The Trump administration had a rough first month. On top of mass protests, historically low approval ratings, and staffing disorganization, the various bureaucracies of the federal civil service are riven with conflict and openly resisting the administration’s agenda. Last week, Michael Flynn resigned as national security adviser following leaked reports that he’d met with Russian intelligence prior to the presidential election. If anything, the rebellion within the intelligence community is only escalating. The mounting discord has led many to comment on the persistence of the “deep state” — shorthand for the nexus of corporate power and political and administrative institutions, including the branches of the armed forces, the federal bureaucracy, and the FBI, CIA, NSA, and other secretive intelligence agencies — and its ability to act as a check on the Trump presidency. According to critics — and until recently, references to the “deep state” were rarely positive — these subterranean networks exercise disproportionate influence over public policy. While parts of the Left have long been concerned about the deep state, lately the Right has taken up the term, using it to decry a purported fifth column of Obama loyalists. From Glenn Greenwald to Bill Kristol, Breitbart to Foreign Policy, it seems everyone now accepts the reality of the deep state, even if they disagree about its role in the present controversy. The term’s surge in popularity is understandable. The “deep state” appears to be an appropriate way to describe the complex networks tying together the various state apparatuses. In particular, it can easily be invoked to explain the seemingly invisible, drawn out, and arcane processes by which public policy is actually negotiated and made. Yet for the same reason, references to the deep state obscure more than they clarify. They shed hardly any light on the nature of the power struggle currently roiling the federal government. If we want to fight Trump, we’ll need conceptual and theoretical frameworks with more explanatory power than the “deep state” can provide. The Concept on Everyone’s Mind The notion of the deep state has a long history in American politics. While emanating from different ends of the political spectrum, President Eisenhower’s warnings in 1961 about the “military-industrial complex” and C. Wright Mills’s famous 1956 study of “the power elite” can both be seen as indictments of the deep state as an undemocratic distortion of policymaking. After Vietnam and Watergate, the concept embedded itself even more deeply in the political discourse, as the notion of a pluralistic distribution of power in American society appeared increasingly farcical in the face of structural inequalities. The regulatory state and the entrenched network of intelligence agencies came to be viewed as political actors just like the visible branches of government. With Trump’s ascendance to the White House, the “deep state” is once again on everyone’s mind. Trump — in keeping with his managerial style, which mirrors that of many authoritarian leaders — has attempted to sow discord among rival factions of his cabinet to ensure their direct loyalty. Likewise, he has sought to appoint outsiders to bureaucratic leadership positions, in part to prevent them from identifying with their appointed agencies, and in part to weaken the agencies traditionally favored by Democrats and progressives. A highly mobilized public has slowed down the latter. But so too has the civil service’s active disobedience (including, in the case of the intelligence bureaucracy, leaking highly damaging information). On one level, these sectors are hostile to Trump’s agenda because it seeks, at least in part, to upset the stability of the American political order and thus, of their institutional autonomy. But even if we grant that state agencies have their own interests and domains of authority that they jealously defend against encroachment, it’s unwise to think of the mounting internal opposition to Trump as a “deep state” giant now awake and attempting to restore things to normal. The Problem With the “Deep State” The deep state concept is harmful in two key ways. First, invoking the deep state implies a misleading view of the state as a monolithic, unitary actor. While the deep state is usually said to be a network of individuals and agencies, it is assumed that these component parts are held together by a common will or mission (in this case, something like defending the “national interest” against Trumpism). This leads to a reification of the state as an autonomous and internally coherent force. Yet modern capitalist states are more fragmented than they appear. First, they are composed of class fractions and coalitions that have frequently clashing interests and are motivated by short-term considerations. Often, these internal differences arise from the pressure exerted by various economic interests (such as the competition between the financial, manufacturing, and small business sectors). In addition, these class forces are intersected by other factors, including the different social bases of support behind the major political parties (including voter cleavages based on urban versus rural interests, racial and gender attitudes, and “populist” appeal), the mass media’s role in shaping certain ideological narratives, and competing visions of foreign policy and geopolitical strategy. As the Greek sociologist Nicos Poulantzas wrote in State, Power, Socialism, we need to “discard once and for all the view of the State as a completely united mechanism, founded on a homogeneous and hierarchical distribution of the centers of power moving from top to bottom of a uniform ladder or pyramid.” The state is better understood as a temporary and historically contingent crystallization of social forces, a formation whose institutions are as liable to come into conflict with each other in times of political duress as they are to align seamlessly in times of stability. It is not at all clear, then, that the leaks are a power play by a unified deep state. The rivalry within the White House between the Bannon and Priebus camps, and Trump’s intent to govern by executive order (with little consultation from Congress, the Justice Department, or the federal agencies responsible for implementing these orders) have disturbed the normal functioning of the bureaucracy. As state personnel develop ways of coping with the unpredictable and ad hoc nature of this administration, the dissent within their ranks is a sign of the uncertainty that they have been thrown into since the election, rather than a well-coordinated, conspiratorial effort. Second, to talk of the deep state is to suggest that political power is sealed off from broader social struggles. The state–civil society binary is one of the fundamental bases of liberal political theory. But this distinction is largely a byproduct of the way that political power has represented itself, rather than a social fact. Where the state ends and civil society begins has always been permeable and contested — in other words, subject to politics and political struggle. The state is not an entity standing over and above society, but instead one premised upon the social forces that bring it into being. Loose talk of the “deep state” misses this crucial point, advancing instead a facile vision of institutionalized power that constitutes its own foundation, and is therefore opaque, mysterious, and beyond the reach of citizens. The State and the Struggle Rejecting the deep state framework is not an academic exercise. The way we think about the state shapes how we, as democratic agents, conceive of and relate to organized political power. It affects how we organize and participate in the growing movement against the Trump administration and the GOP’s agenda. Treating the state as a nebulous substratum of bureaucratic networks and institutions — ones that really call the shots behind visible electoral politics — overlooks its potential as a terrain for political struggle. To again quote Poulantzas, “the State is not a monolithic bloc but a strategic field.” Through concerted struggles inside and outside of political institutions, the opposition can displace and alter the state’s internal dynamics. They can attack the hegemonic coalition (currently headed by Trump) at the core. What would this look in practice? What would it entail for the movement against Trumpism to analyze, leverage, and exploit for its own ends the various coalitions, fractions, and hegemonic blocs within the state that are now publicly clashing? First, it would mean embracing the plurality of political resistance, from legislative pressure to marches and public demonstrations, economic boycotts, and civil disobedience. Since the election we have seen a new politicization of civil society, and the proliferation of local initiatives seeking to stem the new administration’s onslaught. Among these are the rapid growth of the Democratic Socialists of America, and the movements for sanctuary cities and campuses. These struggles in civil society always reverberate within the state, turning the latter into a contested ground where these new movements can push back, both directly within and outside of state institutions, against the Trump agenda. Second, it would mean deepening the existing ties between the various popular struggles fighting Trump and the GOP, including the movements for women’s and reproductive rights, immigrant rights, workers’ rights, and environmental justice. In the short term, cultivating a broad coalition around overlapping interests (and seeking to fragment the support behind the Trump coalition, where possible) could encourage a further de-legitimization of the Trump administration’s far-right agenda, and thereby spur more refusals and defections from within the ranks of the civil service. Eventually, this movement building would go a long way in creating a positive common agenda for an already-revitalizing left. In sum, it would mean challenging the state’s ability to establish the new normal envisioned in Trump’s campaign agenda, and to inject popular struggles into the heart of the ruling coalition, which cannot act without the ongoing support of both major parties and the bureaucracy. But for any of this to happen, we first have to abandon the idea of a coherent, unitary deep state that is dictating politics behind the scenes. Relying on an illusory deep state to save us indulges in a fantasy at a time when we can ill afford to do so.2. 2. Filter aff framework offense through the lens of #Drumpf- there is a fragile resistance movement that is expanding up now. Totalizing critique of institutional politics crushes it Aruzza 17 Aruzza, PhD Rome Tor Vergata, 17(Cinzia, MA/PhD Philosophy, Philosophy @New School, )Every single analysis of what happened on January 21 and of what will come next should start with the insight that hundreds of thousands of people with no previous political experience and even with no previous participation in any demonstration whatsoever decided to take to the streets against the Trump administration. January 21 has created the potential for a new mass movement. Granted, it is a very fragile possibility, and the way we handle it will be crucial for its actualization or its irremediable loss. Whatever criticisms we may have of the limitations of this event should be articulated with a sense of political responsibility because the stakes are high. The main criticisms of the women’s march have emphasized that the march was too white, that it was hegemonized by liberals, and that it was an “interest group” or an “identity based” march, when what we really need is a universalistic mobilization involving everybody. The first two criticisms have a point: the march was indeed too white and it was hegemonized by liberals in mainstream media (although this liberal self-representation in the media did not exactly reflect the much more articulated composition of the marches). But the relevant question, here, is the one asked by Alicia Garza: More than a moral question, it is a practical one. Can we build a movement of millions with the people who may not grasp our black, queer, feminist, intersectional, anticapitalist, anti-imperialist ideology but know that we deserve a better life and who are willing to fight for it and win? . . . Hundreds of thousands of people are trying to figure out what it means to join a movement. If we demonstrate that to be a part of a movement, you must believe that people cannot change, that transformation is not possible, that it’s more important to be right than to be connected and interdependent, we will not win. The third criticism, on the contrary, entirely misses the point. It’s useful to recall that women’s marches have started a number of rather important revolutions like the French Revolution and the February revolution in Russia. In Western Europe students and the radicalized youth started the ’68 movement. In the United States the Civil Rights Movement began a wave of struggles that then expanded to campuses and to the 1960s antiwar movement. The connection between the events that triggered or prepared the grounds for subsequent struggles and the struggles themselves is not necessarily a politically coherent one; contingent — and often unpredictable facts — coalesced to determine the specific dynamic of each wave of movements over the course of many years. The relevant question, then, is not “when will we stop mobilizing on the basis of identity or interest groups and start the serious revolutionary mobilization?” It is rather: “Can this mobilization function as a catalyst for a larger struggle and open a new political space that can be inhabited by a number of different political and social subjectivities in solidarity with each other?” We have good reason to believe that this may be the case in the United States today. Indeed, women’s marches around the country have already worked as a catalyst for the convergence of other struggles. For example, Fight for $15 took part in women’s rallies in a number of cities on January 21. Moreover, the women’s march in the United States is part of a global process that has seen women mobilizing in a number of countries — from the women’s strikes in Argentina, Poland, and Ireland to the massive women’s demonstration in Italy last November. What next, then? An international coalition regrouping feminist and women’s groups from around thirty countries has called for an international women’s strike on March 8 against heterosexist violence. Women, trans women, and all the people who support their struggle will strike, march, and protest in Argentina, Brazil, Chile, Costa Rica, Mexico, Uruguay, Ecuador, El Salvador, Honduras, Germany, Italy, Poland, Russia, Turkey, South Korea, and other countries. In this vein, it wouldn’t be absurd to suggest that the first step for women and LGBTQ people after January 21, in the United States, could be the creation of grassroots coalitions and possibly a national coalition to join the international women’s strike on March 8. This would expand the scope of the mobilization beyond opposition to Trump’s administration and would contribute to making the movement less white. It would also help us rethink what a strike means, and how we can include diverse populations, including those outside the formal labor market, in our struggles.Drop the debater on T – the round is already skewed from the beginning because their advocacy excluded by ability to generate NC offense– letting them sever doesn’t solve any of the abuseTheory is an issue of competing interpretations because reasonability invites arbitrary judge intervention based on preference rather than argumentation and encourages a race to the bottom in which debaters will exploit a judge’s tolerance for questionable argumentation.No RVIs b/c they shouldn’t win just because they were topical and encourages debaters to bait theory with abusive affirmatives. 14 Dougherty AB Aff Stock (c&p)Contention 1 is Innocent People:Plea bargains and overcriminalization feed upon each other – efficiency of plea bargains incentivizes more prosecutions. The system allows prosecutors to coerce defendants, including innocents, into pleading guilty.Dervan 11 (Lucian E., Assistant Professor of Law, Southern Illinois University School of Law, and former member of the King and Spalding LLP Special Matters and Government Investigations Team. Special thanks to the Professors Ellen Podgor and Jeffrey Parker, the Journal of Law, Economics and Policy, the Law and Economics Center at George Mason University, the National Association of Criminal Defense Lawyers, and the Foundation for Criminal Justice), “OVERCRIMINALIZATION 2.0: THE SYMBIOTIC RELATIONSHIP BETWEEN PLEA BARGAINING AND OVERCRIMINALIZATION”, accessed from , 8-24-2011 AS- possible framing argument against the CP – the very existence of plea bargaining protects overcriminalization from scrutiny – the cp’s defense of plea bargaining takes away scrutiny to system as a whole, which is plea bargaining itself- example of the Computer Associates company is where the criminal justice system creates new interpretations of laws to criminalize people for the sake of criminalizing them- stats prove – over half the amount of people jailed in 1912 were jailed by reasons that didn’t exist just 25 year before. Along with this was the use of plea bargain increase from 50- 90 percent In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.”1 If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95 of defendants in the federal criminal justice system succumb to the power of bargained justice.2 As such, while Professor Ribstein pays tribute to plea bargaining, this piece provides a more detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence. To illustrate the co-dependent nature of plea bargaining and overcriminalization, consider what it would mean if there were no plea bargaining. Novel legal theories and overly-broad statutes would no longer be tools merely for posturing during charge and sentence bargaining, but would have to be defended and affirmed both morally and legally at trial. Further, the significant costs of prosecuting individuals with creative, tenuous, and technical charges would not be an abstract possibility used in determining how great of an incentive to offer a defendant in return for pleading guilty. Instead, these costs would be a real consideration in determining whether justice is being served by bringing a prosecution at all. Similarly, consider the significant ramifications that would follow should there no longer be overcriminalization. The law would be refined and clear regarding conduct for which criminal liability may attach. Individual benefits, political pressure, and notoriety would not incentivize the invention of novel legal theories upon which to base liability where none otherwise exists, despite the already expansive size of the United States criminal code. Further, novel legal theories and overly-broad statutes would not be used to create staggering sentencing differentials that coerce defendants, even innocent ones, to falsely confess in return for leniency. As these hypothetical considerations demonstrate, plea bargaining and overcriminalization perpetuate each other, as plea bargaining shields overcriminalization from scrutiny and overcriminalization creates the incentives that make plea bargaining so pervasive. For example, take the novel trend toward deputizing corporate America as agents of the government, as illustrated in the case of Computer Associates.3 In 2002, the Department of Justice and the Securities and Exchange Commission began a joint investigation regarding the accounting practices of Computer Associates, an Islandia, New York-based manufacturer of computer software.4 Almost immediately, the government requested that Computer Associates perform an internal investigation.5 As has been noted by numerous commentators, such internal investigations provide invaluable assistance to the government, in part because corporate counsel can more easily acquire confidential materials and gain unfettered access to employees.6 Complying with the government’s request, Computer Associates hired an outside law firm.7 What happened next was both typical and atypical: Shortly after being retained in February 2002, the Company’s Law Firm met with the defendant Sanjay Kumar former CEO and chairman of the board and other Computer Associates executives including Stephen Richards, former head of sales, in order to inquire into their knowledge of the practices that were the subject of the government investigations. During these meetings, Kumar and others did not disclose, falsely denied and otherwise concealed the existence of the 35-day month accounting practice. Moreover, Kumar and others concocted and presented to the company’s law firm an assortment of false justifications, the pur-pose of which was to support their false denials of the 35-day month practice. Kumar and others knew, and in fact intended, that the company’s law firm would present these false justifications to the United States Attorney’s Office, the SEC and the FBI so as to obstruct and impeded (sic) the government investigations. For example, during a meeting with attorneys from the company’s law firm, the defendant Sanjay Kumar and Ira Zar discussed the fact that former Computer Associates salespeople had accused Computer Associates of engaging in the 35-day month practice. Kumar falsely denied that Computer Associates had engaged in such a practice and suggested to the attorneys from the company’s law firm that because quarterly commissions paid to Computer Associates salespeople regularly included commissions on license agreements not finalized until after end of quarter, the salespeople might assume, incorrectly, that revenue associated with those agreements was recognized by Computer Associates within the quarter. Kumar knew that this explanation was false and intended that the company’s law firm would present this false explanation to the United States Attorney’s Office, the SEC and the FBI as part of an effort to persuade those entities that the accusations of the former salespeople were unfounded and that the 35-day month practice never existed.8 The interviewing of employees by private counsel as part of an internal investigation is common practice and few would be surprised to learn that employees occasionally lie during these meetings. Further, information gathered during internal investigations is often passed along to the government in an effort to cooperate.9 What was uncommon in the Computer Associates situation, however, was the government’s response to the employees’ actions. Along with the traditional host of criminal charges related to the accounting practices under investigation, the government indicted Kumar and others with obstruction of justice for lying to Computer Associates’ private outside counsel.10 According to the government, the defendants “did knowingly, intentionally and corruptly obstruct, influence and impede official proceedings, to wit: the Government Investigations,” in violation of 18 U.S.C. § 1512(c)(2).11 This novel and creative use of the obstruction of justice laws, which had recently been amended after the collapse of Enron and the passage of Sarbanes–Oxley, was ill-received by many members of the legal establishment.12 Echoing the unease expressed by the bar, Kumar and his codefen-dants challenged the validity of the government’s creative charging decision and filed a motion to dismiss.13 The district court responded by denying the defendants’ motion without specifically addressing their concerns about the government’s interference with the attorney–client privilege.14 The stage was thus set for this important issue to make its way to the U.S. Court of Appeals for the Second Circuit (and, perhaps, eventually the U.S. Supreme Court) for guidance on the limits of prosecutorial power to manipulate the relationships among a corporation, its employees, and its private counsel. Unfortunately, despite the grave concerns expressed from various corners of the legal establishment about the obstruction of justice charges in the Computer Associates case, the appellate courts never had the opportunity to scrutinize the validity of this novel and heavily criticized expansion of criminal law. The government’s new legal theory went untested in the Computer Associates case due to the symbiotic relationship between plea bargaining and overcriminalization. Three of the five defendants in the Computer Associates case pleaded guilty immediately, while Kumar and Stephens gave in to the pressures of plea bargaining two months after filing their unsuccessful motion to dismiss before the district court.15 As might be expected in today’s enforcement environment, not even the corporation challenged the government in the matter. Computer Associates entered into a deferred prosecution agreement that brought the government’s investigation to an end. 16 Once again, overcriminalization created a situation where the defendants could be charged with obstruction of justice and presented with significant incentives to plead guilty, while plea bargaining ensured these novel legal theories would go untested. Given the symbiotic existence of plea bargaining and overcriminalization, perhaps the answer to overcriminalization does not lie solely in changing imperfect prosecutorial incentives or changing the nature of corporate liability—it may also lie in changing the game itself.17 Perhaps the time has come to reexamine the role of plea bargaining in our criminal justice system. While the right to plead guilty dates back to English common law, the evolution of plea bargaining into a force that consumes over 95 of defendants in the American criminal justice system mainly took place in the nineteenth and twentieth centuries.18 In particular, appellate courts after the Civil War witnessed an influx of appeals involving “bargains” between defendants and prosecutors. 19 While courts uniformly rejected these early attempts at bargained justice, deals escaping judicial review continued to be struck by defendants and prosecutors.20 By the turn of the twentieth century, plea bargaining was on the rise as overcriminalization flourished and courts became weighed down with evergrowing dockets.21 According to one observer, over half of the defendants in at least one major urban criminal justice system in 1912 were charged with crimes that had not existed a quarter century before.22 The challenges presented by the growing number of prosecutions in the early twentieth century accelerated with the passage of the Eighteenth Amendment and the beginning of the Prohibition Era.23 To cope with the strain on the courts, the symbiotic relationship between overcriminalization and plea bargaining was born: Federal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total of all pending federal prosecutions in 1914. In a number of urban districts the enforcement agencies maintain that the only practicable way of meeting this situation with the existing machinery of federal courts . . . is for the United States Attorneys to make bargains with defendants or their counsel whereby defendants plead guilty to minor offenses and escape with light penalties.24 In return for agreeing not to challenge the government’s legal assertions and for assisting in lessening the strain created by overcriminalization, defendants were permitted to plead guilty to reduced charges and in return for lighter sentences.25 The strategy of using plea bargaining to move cases through the system was effective, as the number of defendants relieving the government of its burden at trial swelled. Between the early 1900s and 1916, the number of federal cases concluding with a guilty plea rose sharply from 50 to 72.26 By 1925, the number had reached 90.27 By 1967, the relationship between plea bargaining and overcriminalization had so solidified that even the American Bar Association (ABA) proclaimed the benefits of bargained justice for a system that remained unable to grapple with the continued growth of dockets and the criminal code.28 The ABA stated: A high proportion of pleas of guilty and nolo contendere does benefit the system. Such pleas tend to limit the trial process to deciding real disputes and, consequently, to reduce the need for funds and personnel. If the number of judges, courtrooms, court personnel and counsel for prosecution and defense were to be increased substantially, the funds necessary for such increases might be diverted from elsewhere in the criminal justice process. Moreo-ver, the limited use of the trial process for those cases in which the defendant has grounds for contesting the matter of guilt aids in preserving the meaningfulness of the presumption of innocence. 29 Interestingly, although plea bargaining had gained widespread approval by the 1960s, the U.S. Supreme Court had yet to rule on the constitutionality of bargained justice. Finally, in 1970, the Court took up Brady v. United States,30 a case decided in the shadows of a criminal justice system that had grown reliant on a force that led 90 of defendants to waive their right to trial and confess their guilt in court.31 In Brady, the defendant was charged under a federal kidnapping statute that allowed for the death penalty if a defendant was convicted by a jury.32 This meant that defendants who pleaded guilty could avoid the capital sanction by avoiding a jury verdict altogether.33 According to Brady, this statutory incentive led him to plead guilty involuntarily for fear that he might otherwise be put to death.34 The Brady Court, however, concluded that it is permissible for a criminal defendant to plead guilty in exchange for the probability of a lesser punishment, 35 a ruling likely necessitated by the reality that the criminal justice system would collapse if plea bargaining was invalidated. While the Brady decision signaled the Court’s acceptance of plea bargaining, it contained an important caveat regarding how far the Court would permit prosecutors to venture in attempting to induce guilty pleas. In Brady’s concluding paragraphs, the Court stated that plea bargaining was a tool for use only in cases where the evidence was overwhelming and the defendant, unlikely to succeed at trial, might benefit from the opportunity to bargain for a reduced sentence,36 a stance strikingly similar to the ABA’s at the time. 37 According to the Court, plea bargaining was not to be used to overwhelm defendants and force them to plead guilty where guilt was uncertain: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 avoidance 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.38 According to the Court, if judges, prosecutors, and defense counsel failed to observe these constitutional limitations, the Court would be forced to reconsider its approval of the plea bargaining system altogether: 39 This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.40 Unfortunately, evidence from the last forty years shows that Brady’s attempt to limit plea bargaining has not been successful. For example, as Professor Ribstein noted, today even innocent defendants can be persuaded by the staggering incentives to confess one’s guilt in return for a bargain.41 Importantly, this failure of the Brady limitation is due in part to the fact that overcriminalization, the phenomenon that initially created swelling dockets and the need for plea bargaining, makes creating the incentives to plead guilty easy by propagating a myriad of broad statutes from which staggering sentencing differentials can be created. All the while, plea bargains prevent these incentives, sentencing differentials, and, in fact, overcriminalization itself, from being reviewed. 42 Plea bargaining’s drift into constitutionally impermissible territory under Brady’s express language indicates the existence of both a problem and an opportunity. The problem is that the utilization of large sentencing differentials based, at least in part, on novel legal theories and overly-broad statutes, results in increasingly more defendants pleading guilty. Despite the ever-growing number of Americans captured by the criminal justice system through an increasingly wide application of novel legal theories and overly-broad statutes, these theories and statutes are seldom tested. No one is left to challenge their application—everyone has pleaded guilty instead. The opportunity is to challenge plea bargaining and reject arguments in favor of limitless incentives that may be offered in exchange for pleading guilty. This endeavor is not without support; Brady itself is the guide. By focusing on changing the entire game, it may be possible to restore justice to a system mired in posturing and negotiation about charges and assertions that will never be challenged in court. Such a challenge may also slow or even reverse the subjugation of Americans to the costs, both social and moral, of overcriminalization—plea bargaining’s unfortunate mutualistic symbiont.Hundreds of thousands of innocent people go to Jail – best evidence.Rakoff 14 Jed S. Rakoff, 11-20-2014, "Why Innocent People Plead Guilty," New York Review of Books, AReadye- up to 160 thousand individuals could be guilty and in prison – 8 * 2 million = 160kThe Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict. 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 determined by the prosecutor alone. In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because 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. While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less. It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review. After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials. The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime. Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor. All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place. At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them. In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors. One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since. The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts. The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case. Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case. 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 jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor 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 prosecutor recommends. But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision. The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years. Although under pressure to agree to the first plea bargain offered, prudent defense counsel will try to convince the prosecutor to give her some time to explore legal and factual defenses; but the prosecutor, often overworked and understaffed, may not agree. Defense counsel, moreover, is in no position to abruptly refuse the prosecutor’s proposal, since, under recent Supreme Court decisions, she will face a claim of “ineffective assistance of counsel” if, without consulting her client, she summarily rejects a plea bargain simply as a negotiating ploy. Defense counsel also recognizes that, even if she thinks the plea bargain being offered is unfair compared to those offered by other, similarly situated prosecutors, she has little or no recourse. An appeal to the prosecutor’s superior will rarely succeed, since the superiors feel the need to support their troops and since, once again, the prosecutor can shape the facts so as to make his superior find his proposed plea acceptable. And there is no way defense counsel can appeal to a neutral third party, the judge, since in all but a few jurisdictions, the judiciary is precluded from participating in plea bargain negotiations. In a word, she and her client are stuck. Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a “contract of adhesion” in which one party can effectively force its will on the other party. As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right—well over two million are there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well. A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result? The answer may be found in Jefferson’s perception that a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-determined plea bargaining invites the following objections. First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged? Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner. Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas. It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea. Every criminal defense lawyer (and I was both a federal prosecutor and a criminal defense lawyer before going on the bench) has had the experience of a client who first tells his lawyer he is innocent and then, when confronted with a preview of the government’s proof, says he is guilty. Usually, he is in fact guilty and was previously lying to his lawyer (despite the protections of the attorney–client privilege, which many defendants, suspicious even of their court-appointed lawyers, do not appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is guilty when in fact he is not, because he has decided to “take the fall.” In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are. Indeed, in situations in which the prosecutor and defense counsel themselves recognize that the guilty plea is somewhat artificial, they will have jointly arrived at a written statement of guilt for the defendant to read that cleverly covers all the bases without providing much detail. The Supreme Court, for its part, has gone so far (with the Alford plea of 1970) as to allow a defendant to enter a guilty plea while factually maintaining his innocence. While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent 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 innocent but also could be proven so. Research indicates that young, unintelligent, 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 similar 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. How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit. What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys. Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk. I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation. As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination. The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases. Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program. I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying.This disproportionally affects racial minorities – discretionary prosecutions like plea bargaining promote racial bias Smith and Levinson 12-7 Robert J. Smith and Justin D. Levinson, 12-7-2017, "Implicit Racial Bias Can Operate in Every Phase of Prosecutorial Discretion," Race, Racism and the Law, CSMost criminal cases are resolved by plea bargain, where the defendant admits guilt in exchange for a reduced charge (or a lesser sentencing recommendation). Unlike the disclosure of exculpatory evidence, plea-bargaining is subject to almost zero oversight. We have argued that, in several contexts, implicit racial bias thrives in the midst of discretionary determinations. Plea-bargaining is no exception. Consider a sampling of four "factors" among those the Department of Justice instructs federal prosecutors to consult in deciding whether to pursue a bargained disposition: (1) "The nature and seriousness of the offense or offenses charged"; (2) "the defendant's remorse or contrition and his willingness to assume responsibility"; (3) "the public interest in having the case tried rather than disposed of by a guilty plea"; and (4) "the expense of trial and How might the defendant's (or the victim's) race have an impact on the prosecutor's decision whether to offer a plea bargain, and if a plea is in fact offered, how much of a charging reduction will be offered in exchange for the guilty plea? First, consider prosecutors' assessment of the "seriousness of the offense charged." Imagine a domestic violence case where a man severely abuses his spouse. Does it matter if the spouse is black? Imagine white prosecutors deciding whether to offer the suspect a plea deal on a misdemeanor battery charge. As the prosecutors attempt to quantify the seriousness of the offense, they might not be able to empathize with the fear and pain of a black woman as much as they could empathize with a white woman subjected to domestic abuse. This phenomenon is known as "in-group favoritism," which is defined as "our tendency to favor the groups we belong Justice Scalia might use the term in-group favoritism to label the "undeniable reality" he described in his dissent in Powers v. Ohio"that all groups tend to have particular sympathies ... toward their own group There is experimental support for the existence and power of ingroup favoritism, or bias, as it relates to empathizing with a victim. Alessio Avenanti used a method called transcranial magnetic stimulation (TMS) to measure corticospinal activity level in participants who viewed short video clips of a needle entering into the hand of either a lightskinned or dark-skinned person. Consistent with the in-group empathetic-bias explanation, Avenanti found that region-specific brain activity levels were higher when Caucasian-Italian participants viewed the clip of a light-skinned participant experiencing pain than when they saw a clip of a dark-skinned target being subjected to pain. Returning to the white prosecutors trying to assess the seriousness of the domestic abuse suffered by a black woman, prosecutors might undervalue the extent of the harm caused by the abuse relative to the harm that they would consider a similarly situated white woman--perhaps someone who reminds them of their mothers, sisters, or daughters--to have suffered. The defendant's race (as well as the victim's race) can also influence the plea-bargaining process. Imagine a prosecutor trying to determine whether to offer a defendant a plea to manslaughter (and thus a term of years) or to proceed to trial to try to obtain a second-degree murder conviction (and thus, in many jurisdictions, life without parole). Whether "the public interest" is satisfied by a plea bargain (as opposed to going to trial where the defendant could receive a harsher sentence) and whether "the expense of trial" is worth it turn on how the prosecutor views the defendant. Is this person dangerous and thus likely to commit a future crime? As a white prosecutor reviews the case file of a young white defendant, the prosecutor might be unknowingly affected by positive implicit stereotypes relating to lawfulness and trustworthiness. This could lead to a more lenient evaluation of the defendant--troubled, but not a bad person, for example--and thus a plea offer is more likely to follow. As we have well-covered by now, the opposite will be true when the prosecutor views a black defendant; the prosecutor's mind will likely trigger automatic associations between the defendant and the concepts of violence and hostility. On a related point, as the prosecutor attempts to determine the degree of remorse the defendant has displayed (for example, during plea negotiations), the stereotype that black citizens are less fully human might render the prosecutor less able to detect remorse from a defendant's body language or more likely to reject a black defendant's apology as self-serving or otherwise not genuine. So too might the stereotypes that black citizens are violent, hostile, and prone to criminality have an impact on the degree of remorse that the prosecutor is able to detect in a defendant.Incarceration ruins innocent people’s lives – it’s a positive feedback loop that encourages crime and destroys livesSchrager 15 (Allison Schrager, I graduated from the University of Edinburgh and have a PhD in economics from Columbia University where I specialized in macroeconomics and public finance. I create solutions to make individual pension accounts work for the average investor) "In America, mass incarceration has caused more crime than it’s prevented", accessed from on 12-8-2017. Written 7-22-2015. AS- forces minorities to become career criminalsLast week, president Obama vowed to end mass incarceration, the imprisonment of 2.2 million Americans. He’s commuted the sentences of 46 drug offenders—but ending the practice will require a major policy change at the state and federal level. The sooner this is done, the better. Evidence from the last 40 years suggests the mass imprisonment policy was a tragic failure. Putting more people in prison not only ruined lives, it may have created more new crime than it prevented. There are five times as many people in prison today—nearly 5 of the population will be imprisoned at some point—as there were in the 1970s. The increase in crime during the 1960s and ’70s motivated Americans to get tough on crime, which took several forms. The most striking of these was putting lots of people in prison. Imprisonment is supposed to reduce crime in two ways: it takes criminals off the street so they can’t commit new crimes (incapacitation) and it discourages would-be criminals from committing crime (deterrence). But neither of these outcomes came to pass. A new paper from University of Michigan economics professor Michael Mueller-Smith measures how much incapacitation reduced crime. He looked at court records from Harris County, Texas from 1980 to 2009. Mueller-Smith observed that in Harris County people charged with similar crimes received totally different sentences depending on the judge to whom they were randomly assigned. Mueller-Smith then tracked what happened to these prisoners. He estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6 a quarter. Even people who went to prison for lesser crimes wound up committing more serious offenses subsequently, the more time they spent in prison. His conclusion: Any benefit from taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals. High recidivism rates are not unique to Texas: Within 5 years of release more than 75 of prisoners are arrested again. Why does prison turn people into career criminals? Prison obliterates your earnings potential. Being a convicted felon disqualifies you from certain jobs, housing, or voting. Mueller-Smith estimates that each year in prison reduces the odds of post-release employment by 24 and increases the odds you’ll live on public assistance. Time in prison also lowers the odds you’ll get or stay married. Being in prison and out of the labor force degrades legitimate skills and exposes you to criminal skills and a criminal network. This makes crime a more attractive alternative upon release, even if you run a high risk of returning to prison. You could argue prison is still worth it if long sentences discouraged people from committing crime in the first place. Mueller-Smith estimates a one-year prison sentence would only be worth it (in terms of prison cost and forgone economic potential) if it deterred at least 0.4 fewer rapes, 2.2 assaults, 2.5 robberies, 62 larcenies or prevented 4.8 people from becoming a habitual drug user. And the deterrent effect is not this powerful—not even close. Contention 2 is Solvency:Plan Text: The United States federal government ought to abolish plea bargaining in its criminal justice system.Solvency advocate- it’s modelled after Alaska’s abolition of plea bargaining.Fine 87 (Ralph Adam, American judge, author, and television personality who served on the Wisconsin Court of Appeals from 1988-2014) "Plea Bargaining: An Unnecessary Evil", accessed from on 12-2-2017 ASA. We Should Abolish Plea Bargaining Plea bargaining exists only because it is thought to be essential to the efficient functioning of the criminal justice system: "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system."59 The experiences of Alaska, Ventura County, Oakland County, New Orleans and Judge O'Farrell prove that it is not essential. Perhaps Judge Stern put it best when he compared the system of plea bargaining to a "fish market" that "ought to be hosed down." 60 We do not need plea bargaining - we should not tolerate it. Abolition, however, will require work and dedication. As Robert C. Erwin, then Associate Justice of the Alaskan Supreme Court, told Professor Alschuler in a June, 1976 interview: A no-plea-bargaining policy forces the police to investigate their cases more thoroughly. It forces prosecutors to screen their cases more rigorously and to prepare them more carefully. It forces the courts to face the problem of the lazy judge who comes to court late and leaves early, to search out a good presiding judge, and to adopt a sensible calendaring system. All of these things have in fact happened here., 6 1 They can happen everywhere as well, if those in the system only try. As Judge Stern told me, recalling his days as a federal prosecutor, "It worked for me, and I tell you, it would work for anybody."6 B. A Proposal First, there should be no reduction of a charge unless the prosecutor can demonstrate, and the judge can specifically find on the record, that: (1) There are facts that were unknown to the prosecutor at the time the charge was issued that make a new charge more appropriate or (2) There are other circumstances that may militate against going to trial.64 Second, the prosecutor should certify, on the record, that the charging decision was not based on a defendant's willingness to plead guilty but on his or her independent evaluation of the facts, including any circumstances that may militate against going to trial. Third, the prosecutor should certify, on the record at sentencing, that the recommendation, if any, is based on the prosecutor's independent evaluation of the facts and not a quidpro quo for a guilty plea, except where there are other circumstances that may militate against going to trial.It’s a new policy, but data supports the claim that abolishing plea bargaining solvesSavitsky 9 Douglas, 8-7-2009, “Plea Bargaining as a Cause of Racial Disparity,” Paper at Am. Sociological Assoc. Annual Meeting CSEvidence In the interest of space, the evidence supporting the theory of plea bargaining will be kept to a minimum. The most direct way to test the model would be to simply eliminate plea bargaining in a district and see the outcome. During the 1970's a small number of districts did in fact eliminate plea bargaining. For instance, the State of Alaska's Attorney General's office banned plea bargaining beginning in 1975 for a period of several years (Rubenstein and White 1979). Additionally, beginning in 1976 the city of El Paso, Texas, due to a conflict between the criminal court judges and the district attorney's office, effectively banned many types of plea bargaining (Weninger 1987). Other districts flirted with such bans as well, such as an unnamed county in the Midwest (Church 1976) as well as several others. The results of these “quasi experiments” are mixed, and in many cases difficult to analyze. This is in part because the data sets are limited, in part because much of the data has been lost over the years, and in part because the analyses done in the 1970's and 1980's do not cover the variables necessary to ascertain the questions at issue in this project. As such, only a meta-analysis of the existing reported findings is possible. In general, even with those caveats, dispositions in low level and borderline cases were reduced. The most interesting, and perhaps most directly relevant study, is from Hampton County, 6 “a suburban county located adjacent to a major midwest sic industrial city” (Church 1976). In his 1976 study, Thomas Church examined the effects of the policies implemented by a newly elected county prosecutor. The prosecutor, in an effort to get tough on drug dealers, instituted a policy whereby once a warrant was issued in a drug case, the prosecutor's office was prohibited from lowering the charge. This effectively eliminated plea bargaining in the district as so-called charge bargaining was the preeminent form of plea bargaining. Additionally, after 6 Hampton County is a fictitious name. In a conversation with the author, Hampton County was revealed to be located in Michigan. In the first year of the policy, the prosecutor's office added armed robbery and carrying a concealed weapon to the list of charges for which plea bargaining was prohibited. While the numbers are small, the data clearly shows a trend where total prosecutions are reduced, and the lion’s share of the reduction is culled from low level crimes such as drug crimes. From 1972 to 1974, the rate of guilty pleas in drug cases dropped from 98 to 90, and the number of trials increased from 2 to 4. Most importantly, however, the number of total warrants in these cases dropped by 62 from 109 to 41 while the numbers of warrants for other crimes stayed relatively steady. Indeed, it appears that the numbers of total drug dispositions were reasonably constant before the ban as well as after, except for the huge one time drop. Results from Alaska’s statewide ban are slightly less conclusive, though they are still generally supportive. Prosecutions in severe and violent crimes stayed relatively constant after the plea bargaining ban, with prosecutions in burglary, larceny, and similar property crimes actually increasing. However, prosecutions in fraud, and embezzlement dropped by almost half and prosecutions in drug cases dropped by nearly a quarter. Interestingly, rates of guilty pleas stayed relatively high. Thus, while the data necessary to the current project was not explicitly collected or reported, the data that does exist is generally supportive of the hypothesis.Abolishing plea bargaining doesn’t clog courts – Alaska provesFine 87 (Ralph Adam, justice on the Wisconsin Court of Appeals District I, Tufts University and JD @ Columbia Law School) "Plea Bargaining: An Unnecessary Evil", accessed from on 12-2-2017 ASDavid L. Bazelon, the former Chief Judge for the United States Court of Appeals for the District of Columbia, in a decision written a year before Brady v. United States, recognized that plea bargaining was not the imperative that all seemed to assume: “The arguments that the criminal process would collapse unless substantial inducements are offered to elicit guilty pleas have tended to rely upon assumption rather than empirical evidence. In many jurisdictions lacking sophisticated resources for criminal investigations, a large proportion of suspects apprehended are caught virtually red-handed. The argument 'But what if everyone did not plead guilty?' has force only to the extent that a sizable proportion of defendants have some motivation to plead innocent. If the defendant does have some hope of acquittal, the right to a trial assumes overarching importance. If he does not, there is some presumption that most men will not indulge in a meaningless act.50” Some six years after Judge Bazelon wrote those words, his prediction was tested when Alaska's Attorney General, Avrum M. Gross, abolished plea bargaining statewide. Appointed Attorney General in December of 1973, Alaska's unique centralized criminal justice system gave Gross control over all of the state's district attorneys. His new policy was announced in a memorandum dated July 3, 1975, and was addressed to "all district attorneys." With exceptions for unu-sual circumstances, permission for which "will be given sparingly," there was to be no sentence concessions or charge reductions in exchange for guilty pleas. Sentencing recommendations and charge reductions could still be made, but only if they were warranted by the facts and were not used ''simply to obtain a plea of guilty." Before Gross' plea bargaining ban in August of 1975, the practice was as endemic in Alaska as anywhere else. As one judge related, it was part of the defense lawyer's job to go to the district attorney "to see what could be worked out. 51 Often, a lot "could be worked out." An assistant district attorney told how one of his colleagues had eleven cases set for trial in one week: "He hadn't even looked at one of the files. He dealt them all out on the last day, and he was proud of himself. I'm afraid we were giving away the farm too often. It was a little difficult to sleep at night."' 52 This same prosecutor then put it all in context: The whole system became ridiculous. We were giving away cases we plainly should have tried. We often said to ourselves, 'Hell, I don't want to go to trial with this turkey; I want to go on vacation next week.' We learned that a prosecutor can get rid of everything if he just goes low enough. 3 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. 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 processed 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 practice, it is probably necessary to the efficient administration of justice. The findings of this study sug- gest that, at least in Alaska, both sides were wrong."55 Indeed, the disposition 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 reformation 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 jurisdictions 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 Emmett 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.Abolition key – conflicting motivesAlschuler 13 (Albert W. Alschuler, Albert Alschuler graduated magna cum laude from the Harvard Law School and was Case Editor of the Harvard Law Review. He has been a law clerk to Justice Walter V. Schaefer of the Illinois Supreme Court; a special assistant to the assistant attorney general in charge of the criminal division of the US Justice Department; a professor of law at the University of Texas, the University of Colorado, and the University of Pennsylvania; a visiting professor at the University of Michigan, the University of California at Berkeley, the Brooklyn Law School, and Columbia University; and a visiting scholar at the National Institute of Justice and the American Bar Foundation) "Lafler and Frye: Two Small Band-Aids for aFestering Wound", accessed from on 12-7-2017 ASEven if Lafler and Frye had not fudged the question of remedy and even if these decisions had burst on the scene bold, new, and shiny, they would not warrant the hype bestowed upon them by professors and the press. Three observations about the American legal system I made twenty-seven years ago seem relevant. First, our plea-dominated system makes the kind of justice a “defendant receives more dependent on the quality of his counsel than any other legal system in the world.” Second, this system “subjects defense attorneys to serious temptations to disregard their clients’ interests.” And third, this system “makes it impossible to determine whether defendants have received the effective assistance of counsel.”38 Decisions like Lafler and Frye can neither guarantee effective legal representation in the plea negotiation process nor do much to make it more likely. Defenses of plea negotiation offer sweet pictures of wellinformed defendants making rational assessments of surrender and gain.39 They depend on the assumption that defendants will be well represented. For private attorneys, however, a guilty plea is a quick buck. Defense attorneys have good reasons for collecting their fees in advance, and once they have pocketed their fees, their personal interests lie in disposing of their cases as rapidly as possible. This conflict of interest influences even well-paid, conscientious lawyers, and the bar includes some lawyers who are neither well paid nor conscientious. They handle a high volume of cases for small fees and almost never take a case to trial.40 Plea negotiation also minimizes work and reduces conflict within what organizational theorists call the “courtroom workgroup.”41 Bargaining promotes cordial and comfortable relationships with prosecutors and judges. These interests may influence public defenders even more than they do private lawyers.42 Advising a client to enter a plea agreement can never be proven wrong. Taking a case to trial and losing may appear to have been a bad choice, especially when this decision has produced a sentence two or twenty times more severe than the one the prosecutor offered before trial. A bad outcome at trial may cause both the client’s regard for his lawyer and the lawyer’s self-esteem to suffer. It also may increase the likelihood of a claim of professional ineffectiveness. When one has entered a plea agreement, however, he can always imagine that the outcome of a trial would have been worse. Advising a client to plead guilty is nearly always the safe, secure, comfortable, and profitable course. Everything in our criminal justice system pushes in that direction. A lawyer’s conferences with his client are not public, and neither are his bargaining sessions with the prosecutor. The effectiveness of Lafler and Frye depend on the willingness of lawyers to acknowledge failings so serious that their conduct falls below what the Supreme Court calls “the wide range of reasonable professional assistance.”43 The lawyers whose performances were judged ineffective in Lafler and Frye were appropriately forthcoming,44 but when a defendant says, “my lawyer never told me about the offer,” and the lawyer says, “oh yes I did,” the defendant is almost certain to lose. When a defendant claims that his lawyer misinformed him, many lawyers are likely to respond that the defendant misunderstood. Moreover, the confessions of lawyers must be of a particular kind. Failing to convey critical information (say, about the existence of an offer) may entitle a client to relief, and negligent misstatements of law or fact may too.45 So may ignoring or failing to investigate important evidence, trading the interests of one client for the interests of another, and refusing to bargain at all in a case offering little or no chance of success at trial.46 Self-interested advice to plead guilty, inept negotiating, and erroneous predictions, however, almost certainly will not suffice. In our lawyersupportive legal system, no one need recognize the ineffectiveness of the weakest members of the bar, not even the weak lawyers themselves. One can always conjure up plausible reasons for a default.47 Contention 3 is Framing: Thus, the standard is minimizing structural violence – a. Debate should deal with questions of real-world consequences—ideal theories ignore the concrete nature of the world and legitimize oppression.Curry 14 (Tommy J. Curry is Associate Professor of Philosophy and Affiliate Professor of Africana Studies at Texas AandM University. He is a Ray A. Rothrock Fellow and has commented on social matters in venues ranging from Forbes to Sirius XM. He is the author of 50 articles on issues of racism, Black intellectual history, and Black political theory) “The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century”, from 2014 ASDespite the pronouncement of debate as an activity and intellectual exercise pointing to the real world consequences of dialogue, thinking, and (personal) politics when addressing issues of racism, sexism, economic disparity, global conflicts, and death, many of the discussions concerning these ongoing challenges to humanity are fixed to a paradigm which sees the adjudication of material disparities and sociological realities as the conquest of one ideal theory over the other. In “Ideal Theory as Ideology,” Charles Mills outlines the problem contemporary theoretical-performance styles in policy debate and value-weighing in Lincoln-Douglass are confronted with in their attempts to get at the concrete problems in our societies. At the outset, Mills concedes that “ideal theory applies to moral theory as a whole (at least to normative ethics as against metaethics); since ethics deals by definition with normative/prescriptive/evaluative issues, it is set against factual/descriptive issues.” At the most general level, the conceptual chasm between what emerges as actual problems in the world (e.g.: racism, sexism, poverty, disease, etc.) and how we frame such problems theoretically—the assumptions and shared ideologies we depend upon for our problems to be heard and accepted as a worthy “problem” by an audience—is the most obvious call for an anti-ethical paradigm, since such a paradigm insists on the actual as the basis of what can be considered normatively. Mills, however, describes this chasm as a problem of an ideal-as-descriptive model which argues that for any actual-empirical-observable social phenomenon (P), an ideal of (P) is necessarily a representation of that phenomenon. In the idealization of a social phenomenon (P), one “necessarily has to abstract away from certain features” of (P) that is observed before abstraction occurs. ? This gap between what is actual (in the world), and what is represented by theories and politics of debaters proposed in rounds threatens any real discussions about the concrete nature of oppression and the racist economic structures which necessitate tangible policies and reorienting changes in our value orientations. As Mills states: “What distinguishes ideal theory is the reliance on idealization to the exclusion, or at least marginalization, of the actual,” so what we are seeking to resolve on the basis of “thought” is in fact incomplete, incorrect, or ultimately irrelevant to the actual problems which our “theories” seek to address. Our attempts to situate social disparity cannot simply appeal to the ontologization of social phenomenon—meaning we cannot suggest that the various complexities of social problems (which are constantly emerging and undisclosed beyond the effects we observe) are totalizable by any one set of theories within an ideological frame be it our most cherished notions of Afro-pessimism, feminism, Marxism, or the like. At best, theoretical endorsements make us aware of sets of actions to address ever developing problems in our empirical world, but even this awareness does not command us to only do X, but rather do X and the other ideas which compliment the material conditions addressed by the action X. As a whole, debate (policy and LD) neglects the need to do X in order to remedy our cast-away-ness among our ideological tendencies and politics. How then do we pull ourselves from this seeming ir-recoverability of thought in general and in our endorsement of socially actualizable values like that of the living wage? It is my position that Dr. Martin Luther King Jr.’s thinking about the need for a living wage was a unique, and remains an underappreciated, resource in our attempts to impose value reorientation (be it through critique or normative gestures) upon the actual world. In other words, King aims to reformulate the values which deny the legitimacy of the living wage, and those values predicated on the flawed views of the worker, Blacks, and the colonized (dignity, justice, fairness, rights, etc.) used to currently justify the living wages in under our contemporary moral parameters.b. No act omission distinction for states since their implicit approvals of actions still entail moral responsibilitySunstein and Vermuele Cass R. Sunstein and Adrian Vermeule. The University of Chicago Law School. “Is Capital Punishment Morally Required? The Relevance of Life‐Life Tradeoffs.” JOHN M. OLIN LAW and ECONOMICS WORKING PAPER NO. 239. The Chicago Working Paper Series. March 2005 AJIn our view, both the argument from causation and the argument from intention go wrong by overlooking the distinctive features of government as a moral agent. Whatever the general status of the act-omission distinction as a matter of moral philosophy,38 the distinction is least impressive when applied to government.39 The most fundamental point is that unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference. Most generally, government is in the business of creating creates permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything, or refusing to act.40 Moreover, the distinction between authorized and unauthorized private action—for example, private killing—becomes obscure when the government formally forbids private action, but chooses a set of policy instruments that do not adequately or fully discourage it.Legal reform is the only effective strategy of changeLobel 7 (Orly, PhD, prof of Law at U San Diego, “The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative,” The Harvard Law Review, Vol. 120, No. 4 (Feb., 2007), , pg. 971-978)Practical Failures: When Extralegal Alternatives Are Vehicles for Conservative Agendas We don't want the 1950s back. What we want is to edit them. We want to keep the safe streets, the friendly grocers, and the milk and cookies, while blotting out the political bosses, the tyrannical headmasters, the in- flexible rules, and the lectures on 100 percent Americanism and the sinful- ness of dissent.163 A basic structure of cooptation arguments as developed in relation to the labor and civil rights movements has been to show how, in the move from theory to practice, the ideal that was promoted by a social group takes on unintended content, and the group thus fails to realize the original vision. This risk is particularly high when ideals are framed in broad terms that are open to multiple interpretations. Moreover, the pitfalls of the potential risks presented under the um- brella of cooptation are in fact accentuated in current proposals. Paradoxically, as the extralegal movement is framed by way of opposi- tion to formal legal reform paths, without sufficiently defining its goals, it runs the very risks it sought to avoid by working outside the legal system. Extralegal paths are depicted mostly in negative terms and as re- sorting to new alternative forms of action rather than established mod- els. Accordingly, because the ideas of social organizing, civil society, and legal pluralism are framed in open-ended contrarian terms, they do not translate into specific visions of social justice reform. The idea of civil society, which has been embraced by people from a broad ar- ray of often conflicting ideological commitments, is particularly de- monstrative. Critics argue that "some ideas fail because they never make the light of day. The idea of civil society . . . failed because it 163 Alan Ehrenhalt, Where Have All the Followers Gone?, in COMMUNITY WORKS, supra note 124, at 93-96. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 972 HARVARD LAW REVIEW Vol. 120:937 became too popular."164 Such a broadly conceived ideal as civil society sows the seeds of its own destruction. In former eras, the claims about the legal cooptation of the trans- formative visions of workplace justice and racial equality suggested that through legal strategies the visions became stripped of their initial depth and fragmented and framed in ways that were narrow and often merely symbolic. This observation seems accurate in the contempo- rary political arena; the idea of civil society revivalism evoked by pro- gressive activists has been reduced to symbolic acts with very little substance. On the left, progressive advocates envision decentralized activism in a third, nongovernmental sphere as a way of reviving de- mocratic participation and rebuilding the state from the bottom up. By contrast, the idea of civil society has been embraced by conserva- tive politicians as a means for replacing government-funded programs and steering away from state intervention. As a result, recent political uses of civil society have subverted the ideals of progressive social re- form and replaced them with conservative agendas that reject egalitar- ian views of social provision. In particular, recent calls to strengthen civil society have been ad- vanced by politicians interested in dismantling the modern welfare sys- tem. Conservative civil society revivalism often equates the idea of self-help through extralegal means with traditional family structures, and blames the breakdown of those structures (for example, the rise of the single parent family) for the increase in reliance and dependency on government aid.165 This recent depiction of the third sphere of civic life works against legal reform precisely because state interven- tion may support newer, nontraditional social structures. For conser- vative thinkers, legal reform also risks increasing dependency on social services by groups who have traditionally been marginalized, including disproportionate reliance on public funds by people of color and single mothers. Indeed, the end of welfare as we knew it,166 as well as the 164 Alan Wolfe, Is Civil Society Obsolete? Revisiting Predictions of the Decline of Civil Society in Whose Keeper?, in COMMUNITY WORKS, supra note 124, at 18. 165 See Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 FORDHAM L. REV. 1617, 162 1 (2001). Examples of such claims about the causal connection between the breakdown of traditional civil society/family structures and reli- ance on government aid are found in documents such as COUNCIL ON CIVIL SOC'Y, A CALL TO Civil Society: Why Democracy Needs Moral Truths (1998), and Nat'l Comm'n on Civic Renewal, A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do About It (1998). For a critique from the perspective of racial justice, see Derrick Bell and Preeta Bansal, The Republican Revival and Racial Politics, 97 YaleLJ. 1609(1988). 166 See, e.g., Martha Minow, Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It, 49 DUKE LJ. 493 (1999). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2007 THE PARADOX OF EXTRALEGAL ACTIVISM 973 transformation of work as we knew it,167 is closely related to the quest of thinkers from all sides of the political spectrum for a third space that could replace the traditional functions of work and welfare. Strikingly, a range of liberal and conservative visions have thus con- verged into the same agenda, such as the recent welfare-to-work re- forms, which rely on myriad non-governmental institutions and activi- ties to support them.168 When analyzed from the perspective of the unbundled cooptation critique, it becomes evident that there are multiple limits to the con- temporary extralegal current. First, there have been significant prob- lems with resources and zero-sum energies in the recent campaigns promoting community development and welfare. For example, the ini- tial vision of welfare-to-work supported by liberal reformers was a multifaceted, dynamic system that would reshape the roles and respon- sibilities of the welfare bureaucracy. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996169 (PRWORA), sup- ported by President Clinton, was designed to convert various welfare programs, including Aid to Families with Dependent Children, into a single block grant program. The aim was to transform passive cash assistance into a more active welfare system, in which individuals would be better assisted, by both the government and the community, to return to the labor force and find opportunities to support them- selves. Yet from the broad vision to actual implementation, the pro- gram quickly became limited in focus and in resources. Indeed, PRWORA placed new limits on welfare provision by eliminating eligi- bility categories and by placing rigid time limits on the provision of benefits.170 Moreover, the need to frame questions relating to work, welfare, and poverty in institutional arrangements and professional jargon and to comply with various funding block grants has made some issues, such as the statistical reduction of welfare recipients, more salient, whereas other issues, such as the quality of jobs offered, have been largely eliminated from policymakers' consideration. Despite aspects of the reform that were hailed as empowering for those groups they were designed to help, such as individual private training vouchers, serious questions have been raised about the adequacy of the particu- 167 See generally Orly Lobel, The Four Pillars of Work Law, 104 MICH. L. REV. 1539 (2006) (describing changes in work relations and modes of production in the past several decades and analyzing the way these developments should affect policy). 168 See Scott L. Cummings, Mobilization Lawyering: Community Economic Development in the Figueroa Corridor, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 49, at 302, 307- 08; Matthew Diller, Form and Substance in the Privatization of Poverty Programs, 49 UCLA L. Rev. 1739(2002). 169 Pub. L. No. 104-193, no Stat. 2105 (1996). 17° See id. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 974 HARVARD LAW REVIEW Vol. 120:937 lar policy design because resources and institutional support have been found lacking.171 The reforms require individual choices and rely on the ability of private recipients to mine through a vast range of infor- mation. As in the areas of child care, health care, and educational vouchers, critics worry that the most disadvantaged workers in the new market will not be able to take advantage of the reforms.172 Un- der such conditions, the goal of eliminating poverty may be eroded and replaced by other goals, such as reducing public expenses. Thus, re- calling the earlier cooptation critique, once reforms are envisioned, even when they need not be framed in legalistic terms, they in some ways become reduced to a handful of issues, while fragmenting, ne- glecting, and ultimately neutralizing other possibilities. At this point, the paradox of extralegal activism unfolds. While public interest thinkers increasingly embrace an axiomatic rejection of law as the primary form of progress, their preferred form of activism presents the very risks they seek to avoid. The rejected "myth of the law" is replaced by a "myth of activism" or a "myth of exit," romanti- cizing a distinct sphere that can better solve social conflict. Yet these myths, like other myths, come complete with their own perpetual per- ils. The myth of exit exemplifies the myriad concerns of cooptation. For feminist agendas, for example, the separation of the world into dis- tinct spheres of action has been a continuous impediment to meaning- ful reform. Efforts to create better possibilities for women to balance work and family responsibilities, including relaxing home work rules and supporting stay-at-home parents through federal child care legisla- tion, have been couched in terms of support for individual choice and private decisionmaking.173 Indeed, recent initiatives in federal child care legislation to support stay-at-home parents have been clouded by preconceptions of the separation of spheres and the need to make one- or-the-other life choices. Most importantly, the emergence of a sphere- oriented discourse abandons a critical perspective that distinguishes between valuing traditional gender-based characteristics and celebrat- ing feminine difference in a universalist and essentialist manner.174 171 See Diller, supra note 168, at 1748-49; John Michaels, Deforming Welfare: How the Domi- nant Narratives of Devolution and Privatization Subverted Federal Welfare Reform, 34 SETON HALL L. REV. 573, 604-22 (2004); Peter Edelman, The Worst Thing Bill Clinton Has Done, AT- LANTIC Monthly, Mar. 1997, at 43, 49-50. 172 See, e.g., JOEL F. HANDLER and YEHESKEL HASENFELD, BLAME WELFARE, IGNORE POVERTY AND INEQUALITY 55-63, 133-35, 34345 (2006). 173 See generally Nancy E. Dowd, Work and Family: Restructuring the Workplace, 32 ARIZ. L. REV. 431, 431 (1990) ("Conflict between work and family responsibilities is a critical workplace issue. . . . There exists an ideology of individual choice and individual burdens which masks the nature of the structure and the basis of the conflict."). 174 See Judith Stacey, In The Name of the Family: Rethinking Family Values IN THE POSTMODERN AGE (1996); Frances E. Olsen, The Family and the Market, 96 HARV. L. Rev. 1497 (1983). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2OO7 THE PARADOX OF EXTRALEGAL ACTIVISM 975 Not surprisingly then, some feminist writers have responded to civil society revivalism with great skepticism, arguing that efforts to align feminine values and agendas with classic republican theory of civil so- ciety activism should be understood, at least in part, as a way of le- gitimizing historical social structures that subordinated women.175 The feminist lesson on the law/exit pendulum reveals a broader pattern. In a classic example of cooptation, activists should be con- cerned about the infusion (or indeed confusion) of nonlegal strategies with conservative privatization agendas. Indeed, in significant social policy contexts, legal scholarship oriented toward the exploration of ex- tralegal paths reinforces the exact narrative that it originally resisted - that the state cannot and should not be accountable for sustaining and improving the lifeworld of individuals in the twenty-first-century economy and that we must seek alternative ways to bring about social reform. Whether using the terminology of a path-dependent process, an inevitable downward spiral, a transnational prisoner's dilemma, or a global race to the bottom, current analyses often suggest a lack of control over the forces of new economic realities. Rather than counter- ing the story of lack of control, pointing to the ongoing role of gov- ernment and showing the contradictions between that which is being kept regulated and that which is privatized, alternative extralegal scholarship accepts these developments as natural and inevitable. Similar to the arguments developed in relation to the labor movement - in which focusing on a limited right to collective bargaining demo- bilized workers and stripped them of their voice, participation, and de- cisionmaking power - contemporary extralegal agendas are limited to very narrow and patterned sets of reforms. A striking example has been the focus on welfare reform as the single frontier of economic redistribution without a connection being made between these reforms and social services in which the middle class has a strong interest, such as Social Security and Medicare. Simi- larly, on the legal pluralism frontier, when activists call for more cor- porate social responsibility, the initial expressions are those of broad demands for sustainable development and overall industry obligations for the social and environmental consequences of their activities.176 The discourse, however, quickly becomes coopted by a shift to a narrow focus on charitable donations and corporate philanthropy or 175 See, e.g., Dowd, supra note 173, at 486; Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986). 176 See World Business Council for Sustainable Development, Corporate Social Responsibility: Meeting Changing Expectations (1999), available at (follow "Publications and Reports" hyperlink; then follow "Corporate Social Responsibility: Meeting changing expectations" hyperlink). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 976 HARVARD LAW REVIEW Vol. 120:937 private reporting absent an institutionalized compliance structure.177 Moreover, because of institutional limitations and crowding out effects possible in any type of reform agenda, the focus shifts to the benefits of corporate social responsibility to businesses, as marketing, recruit- ment, public relations, and "greenwashing" strategies.178 Critics therefore become deeply cynical about the industry's real commitments to ethical conduct. A similar process can be described with regard to the literature on globalization. Globalization scholarship often attempts to produce a unifying narrative and an image of unitary struggle when in fact such unity does not exist. Embodied in the aforementioned irony of a "global anti-globalization" movement, social reform activism that re- sides under the umbrella of global movements is greatly diverse, some of it highly conservative. An "anti-globalization" movement can be a defensive nationalist movement infused with xenophobia and protec- tive ideologies.179 In fact, during central instances of collective action, such as those in Seattle, Quebec, Puerto Alegre, and Genoa, competing and conflicting claims were frequently encompassed in the same pro- test.180 Nevertheless, there is a tendency to celebrate and idealize these protests as united and world-altering. Similarly, at the local level, grassroots politics often lack a clear agenda and are particularly ripe for cooptation resulting in far lesser achievements than what may have been expected by the groups in- volved. In a critical introduction to the law and organizing model, Professor Scott Cummings and Ingrid Eagly describe the ways in which new community-based approaches to progressive lawyering privilege grassroots activism over legal reform efforts and the facilita- tion of community mobilization over conventional lawyering.181 After carefully unpacking the ways in which community lawyers embrace 177 See, e.g., Symposium, Corporate Social Responsibility: Paradigm or Paradox?, 84 Cornell L. Rev. 1282, 1311 (1999). 178 See Christine Parker, The Open Corporation: Effective Self-Regulation AND DEMOCRACY 135-67 (2002); John M. Conley and Cynthia A. Williams, Engage, Embed, and Embellish: Theory Versus Practice in the Corporate Social Responsibility Movement, 31 J. CORP. L. 1, 13-18 (2005). On greenwashing, see William A. Laufer, Social Accountability and Corporate Greenwashing, 43 J. BUS. ETHICS 253 (2003) (describing greenwashing as a "form of disinforma- tion from organizations seeking to repair public reputations and further public images"). 179 See Lynch, supra note 132. 180 See, e.g., Richard Bondreaux and Marjorie Miller, Genoa on Minds of Protestors, L.A. TIMES, July 18, 2001, at Ai (noting that the "summit-hopping movement for global justice" that began in Seattle "embraces Greenpeace environmentalists, Greek trade unions, Basque separatists, German punkers, faith-based groups such as Christian Aid and more"); The WTO History Project, Or- ganizations Opposed to the WTO, (last visited Jan. 14, 2007) (listing the over 1400 organizations, representing all sorts of interests, that signed a peti- tion opposing the WTO in connection with the Seattle protest). 181 See Cummings and Eagly, supra note 40. This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 2007 THE PARADOX OF EXTRALEGAL ACTIVISM 977 law and organizing, Professor Cummings and Eagly rightfully warn against "exaggerating the ineffectiveness of traditional legal interven- tions" and "closing off potential avenues for redress."182 Significantly, the strategies embraced by new public interest lawyers have not been shown to produce effective change in communities, and certainly there has been no assurance that these strategies fare comparatively better than legal reform. Moreover, what are meant to be progressive pro- jects of community action and community economic development fre- quently can have a hidden effect of excluding worse-off groups, such as migrant workers, because of the geographical scope and zoning re- strictions of the project.183 In the same way that the labor and corpo- rate social responsibility movements have failed because of their em- brace of a legal framework, the community economic development movement - so diverse in its ideological appeal yet so prominent since the early 1990s as a major approach to poverty relief - may bring about its own destruction by fracture and diffusion.184 In all of these cases, it is the act of engagement, not law, that holds the risks of cooptation and the politics of compromise. It is not the particularities of lawyers as a professional group that create depend- ency. Rather, it is the dynamics between skilled, networked, and re- sourced components and those who need them that may submerge goals and create reliance. It is not the particularities of the structural limitations of the judiciary that threaten to limit the progressive vision of social movements. Rather, it is the essential difficulties of imple- menting theory into practice. Life is simply messier than abstract ideals. Cooptation analysis exposes the broad, general risk of assuming ownership over a rhetorical and conceptual framework of a movement for change. Subsequently, when, in practice, other factions in the po- litical debate embrace the language and frame their projects in similar terms, groups experience a sense of loss of control or possession of "their" vision. In sum, in the contemporary context, in the absence of a more programmatic and concrete vision of what alternative models of social reform activism need to achieve, the conclusions and rhetoric of the contemporary critical legal consciousness are appropriated by advocates representing a wide range of political commitments. Under- 182 Id. at 491. 183 See, e.g., Audrey G. McFarlane, Race, Space, and Place: The Geography of Economic Devel- opment, 36 San Diego L. Rev. 295, 318 (1999). 184 See William H. Simon, The Community Economic Development Movement (2001); Scott L. Cummings, Community Economic Development as Progressive Politics: Toward a Grassroots Movement for Economic Justice, 54 STAN. L. REV. 399 (2001); Louise A. Howells, The Dimensions of Micro enterprise: A Critical Look at Micro enterprise as a Tool To Alleviate Poverty, 9 J. Affordable Housing and Community Dev. L. 161 (2000); Shah, supra note m, at 218; Patricia A. Wilson, Empowerment: Community Economic Development from the Inside Out, 33 Urb. Stud. 617 (1996). This content downloaded from 192.31.105.195 on Fri, 30 Jun 2017 00:08:12 UTC All use subject to 978 HARVARD LAW REVIEW Vol. 120:937 stood from this perspective, cooptation is not the result of the turn to a particular reform strategy. Rather, cooptation occurs when imagined ideals are left unchecked and seemingly progressive rhetoric is repro- duced by a conservative agenda. Dominant interpretations such as privatization and market competitiveness come out ahead, whereas other values, such as group empowerment and redistributive justice, receive only symbolic recognition, and in turn serve to facilitate and stabilize the process.Even under utilitarian calculus, this is the greatest impact in debate. The sheer number effected demands redress. Edelman 13 – MARIAN WRIGHT EDELMAN activist for the rights of children. She has been an advocate for disadvantaged Americans for her entire professional life. She is president and founder of the Children's Defense Fund. (“Dismantle the Cradle to Prison Pipeline—Our Future Depends on It” ) SJDIToday a toxic cocktail of violence, poverty, racial disparities in child-serving systems, poor education, and racially unjust zero-tolerance policies are fueling a Cradle to Prison Pipeline? crisis that is funneling millions of poor children and adults into dead-end, powerless, and hopeless lives.A black boy born in 2001 has a one-in-three chance of going to prison in his lifetime, and a Latino boy has a one-in-six chance of the same fate. $e United States has the highest incarceration rate in the world: 7.1 million adults are under some form of correctional supervision including prison, jail, probation, or parole. Black males have an imprisonment rate that is nearly seven times higher than white males, and Hispanic males have a rate more than twice that of their white counterparts. This epidemic of mass incarceration has created one of the most dangerous crises for the black community since slavery and it affects everyone in our nation.Federal spending on prisons totaled $6.6 billion in 2012 and annual state spending on corrections tops $51 billion. This federal and state spending spree to warehouse prisoners has perverted our nation’s priorities. States spend on average two and half times more per prisoner than they spend per public school student, this at a time when a majority of children of all racial and income backgrounds cannot read or compute at grade level in fourth- or eighth-grade and huge numbers of youth drop out of schools. The privatization of juvenile and adult prisons is yet another added danger. The world’s largest for-profit, private prison corporation, the Corrections Corporation of America, recently offered to run the prison systems in 48 states for 20 years if the states would guarantee a 90 percent occupancy rate.The greatest threat to America’s democracy and economic security comes from no enemy, but rather from our failure to dismantle this Cradle to Prison Pipeline and to invest in and prepare all our children for the future. Tomorrow is today. Children of color, who already are a majority of babies being born in the United States and who will be a majority of our child population within this decade, face bleak futures without high-quality early childhood programs and high-quality, equitable public schools that would prepare them for college and our workforce.Closing the income and racial achievement gaps between poor and non-poor children and between white and nonwhite children is an urgent national priority. Today, every 1.5 seconds during the school year, a public school student is suspended; every 8 seconds during the school year, a public high school student drops out; every 19 seconds a child is arrested; and every 3 hours and 15 minutes, a child or teen is killed by a gun.Advocates for change should exclusively consider the human costs of mass incarceration. Coldly efficient reform narratives are unsustainable solutions to an incalculable evil. Southerland 14 – Vincent. Criminal Justice Practice, NAACP Legal Defense and Education Fund (“The Immorality of Mass Incarceration” May 7 2014, ) SJDI America is finally starting to take its first small steps on the path to curing its decades-long addiction to mass incarceration. Recently, the nation’s top law enforcement officer, Attorney General Eric Holder, testified before the United States Sentencing Commission and called for reductions to federal sentences for certain drug offenses. In doing so, Attorney General Holder declared that “over-reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate,” a statement many of us—who for years have been raising the alarm bell about America’s mass incarceration problem—have long known to be true.Attorney General Holder’s comments strike at the heart of the problem: mass incarceration has devastated African-American communities, families, and lives all around the country. Sustained changes to the policies and attitudes that created this epidemic, however, are the real key. In order for that change to happen, our nation’s moral orientation with mass incarceration and criminal justice will have to adjust accordingly.At bottom, criminal justice reforms need to be driven by the moral imperative of repairing all that is wrong with the current system. As advocates for change, we must make sure that the reform narrative includes the human costs of mass incarceration and a broken criminal justice system, not just the concern over dollars and cents. The Moral Monday movement—a multi-issue, grassroots, multiracial campaign active in the courtroom, streets, and the ballot box—offers a salient example of how ethics and the lived experiences of real people can drive change and incite action. The movement shifted North Carolina’s political discourse toward morality while focusing on individual stories and the damage done to real people by real, and unjust, policies.To date, the financial crisis and the Great Recession have forced a closer look at the financial costs associated with America’s incarceration of 5 percent of the world’s population and 25 percent of the world’s prisoners. Prisons and jails are overcrowded—in the federal system alone, they are operating at 40 percent beyond capacity. Counsel for the poor are under-resourced and over-worked. And across the country, police departments are stretched beyond capacity, having committed resources to America’s misadventure with mass incarceration. To be sure, the financial incentives for progressive change are incredibly powerful. Conservatives and liberals alike have voiced concerns about the expense of continuing down a path of perpetual incarceration. In fact, there has been much discussion over the savings borne of reforms that could be reinvested to improve public safety and police practices, particularly as the costs of prisons and incarceration constitute an increasingly disproportionate share of state and federal budgets. And change—at least in the direction we seem to be slowly moving—is definitely a good thing. Ohio, Georgia, Texas, Kentucky, South Carolina and New York serve as examples of states that have worked to reduce their prison population without sacrificing public safety. Even Congress is getting into the act. Partisan rancor and age-old arguments about the size and role of government have—at least in one instance—have begun to yield to legislative action on mass incarceration. The Smarter Sentencing Act, a piece of bipartisan legislation co-sponsored by Senators Dick Durbin (D-Ill.) and Mike Lee (R-Utah) and supported by senators like Ted Cruz (R-Texas) and Jeff Flake (R-Ariz.), recently cleared the Senate Judiciary Committee, making it ripe for consideration by Congress. The Smarter Sentencing Act would reduce mandatory minimums for federal drug offenses, expand the discretion and authority of federal judges to craft appropriate sentences for low level offenders, and give full effect to Congress’ 2010 reduction of the manifestly unjust and discriminatory 100-to-1 sentencing ratio which treated crack cocaine 100 times more severely than powder cocaine. Currently, nearly 9,000 individuals—almost 90 percent of whom are African-American—are serving federal prison sentences under that old 100-to-1 regime.Yet the impetus for these changes will be short-lived unless America faces the harsh realities—and staggering moral consequences—of its obsession with mass incarceration. For decades, we have responded to a public health problem—drug addiction and abuse—with a criminal justice remedy, failing to fully understand the complex web of conditions that spur drug abuse. In Attorney General Holder’s words late last year, we have grown “coldly efficient” at warehousing generations of people—the majority of them young men of color. Stark racial disparities are apparent at every stage of the system, from encounters with police, to the severity of charges sought by prosecutors, to the sentences handed down by judges. These systems have ravaged communities, hurt families and relegated generations to a hopeless form of second-class citizenship, devoid of any real political or economic power.As the dollars once again begin to flow in the wake of the nation’s financial recovery, the real barometer of change will be America’s continued willingness to grapple with its addiction to incarceration and other criminal justice practices that fuel unfairness and calcify discrimination. Hopefully, we will still be willing to do the right thing—not only because it is fiscally prudent, but because it is simply the right thing to do.14 Dougherty AB Neg Defense Structural ViolenceWar turns structural violenceFolk 78 [Jerry, Professor of Religious and Peace Studies at Bethany College, “Peace Educations – Peace Studies : Towards an Integrated Approach,” Peace & Change, volume V, number 1, Spring, p. 58]Those proponents of the positive peace approach who reject out of hand the work of researchers and educators coming to the field from the perspective of negative peace too easily forget that the prevention of a nuclear confrontation of global dimensions is the prerequisite for all other peace research, education, and action. Unless such a confrontation can be avoided there will be no world left in which to build positive peace. Moreover, the blanket condemnation of all such negative peace oriented research, education or action as a reactionary attempt to support and reinforce the status quo is doctrinaire. Conflict theory and resolution, disarmament studies, studies of the international system and of international organizations, and integration studies are in themselves neutral. They do not intrinsically support either the status quo or revolutionary efforts to change or overthrow it. Rather they offer a body of knowledge which can be used for either purpose or for some purpose in between. It is much more logical for those who understand peace as positive peace to integrate this knowledge into their own framework and to utilize it in achieving their own purposes. A balanced peace studies program should therefore offer the student exposure to the questions and concerns which occupy those who view the field essentially from the point of view of negative peace.Empirics negate; plea bargaining doesn’t increase court leniency and removing plea bargaining would worsen innocent defendant’s chances at acquittal. Squo also solves – there are already check backs in the justice system to prevent misuse of plea-bargaining. Gazal 04.(I’ll do cites)Using the above analysis, we can now address the plea-bargaining opponents' two main arguments. Firstly, the suggestion that plea-bargaining leads to leniency, and thus undermines deterrence, is incorrect. In exchange for offering a degree of leniency to defendants, the prosecutor could increase the number of cases she is able to prosecute, and thus actually increase deterrence.2 Secondly, the plea-bargaining process does not harm innocent defendants, as a defendant would only accept a deal if he believed that a trial provided a real threat of a harsher sentence. Thus, when a defendant could show his innocence in court, the prosecutor would not be able to force him to accept a plea-agreement. When a defendant knows that he might be convicted in atrial, plea-bargaining can serve as an insurance against a more severe sentence. Removing the option of plea-bargaining from an innocent defendant only worsens his already grave situation. In fact, as Grossman & Katz, 1983 showed, the percentage of wrongful convictions actually would be lower in a system where plea-bargaining is available. When agreements are forbidden, both innocent and guilty defendants have a chance of being acquitted in court. Alternatively, in a system that allows plea-bargaining, only defendants that refuse the prosecutor's offer can be found innocent. While a guilty defendant might refuse a plea bargain offer, an innocent defendant is much more likely to refuse such an offer, because he has a better chance at trial. While the defendant knows with assurance whether he is guilty, the prosecutor only has an estimation about his guilt. A guilty defendant knows that the facts revealed in court 2 Similarly, by agreeing to penalties that are lower than the retributively-appropriate penalty, the prosecutor can ensure that more offenders that deserve punishment will be punished. might increase the probability of his conviction. In contrast, an innocent defendant knows that court proceedings could reveal information that would assist his claim of innocence. Thus, the guilty defendant would most likely estimate the chances of his acquittal to be lower than the prosecutor's estimation, while the innocent defendant's estimation of the probability of a not-guilty verdict would be higher than the prosecutor's estimation. Hence, guilty defendants are more likely to accept prosecutors’ offer than innocent defendants. As a result, the percentage of innocent defendants that refuse plea-bargain offers and go to trialis higher than the percentage of guilty ones. Because going to trial provides a chance for acquittal, and since guilty defendants are more likely to accept a deal out of court, the plea-bargaining system actually reduces the rate of wrongful convictions (Scott & Stuntz, 1992). It is important to note that in this sce nario , the actual number of innocent defendants that would be convicted does not decrease. In fact, the number would be higher. This is the result of the fact that the overall number of defendants would rise when plea- bargaining is allowed. As there are always innocent people among indicted defendants, an increase in the number of defendants prosecuted and convicted would increase the number of innocent defendants convicted as well. However, this occurrence does not justify the limitation of plea-bargaining because the most important factor is not the number of wrongful convictions, but their percentage among overall convictions. It is not only bad to convict innocent defendants, it is also good to convict guilty ones. If the percentage of wrongful convictions was less important than the number of innocent defendants convicted, then tevery penal system could be improved by arbitrarily acquitting half of the defendants. Such an action would reduce the number of innocent defendants that were convicted by half. This would not, however, change the percentage of wrongful convictions among those that were declared guilty. Few people would support such a reform. In practice, the complete abolition of the plea-bargaining system has not occurred. Different forms of p le a- agreements are widespread in different common law countries. However, in some jurisdictions the arguments against plea-bargaining systems have become incorporated into its implementation. In the United States, the general rule is that the prosecutor's sentence recommendation does not bind the court. Thus, if the court holds that the suggested sentence is too light, it has the authority to impose a higher one after the defendant has pled guilty. This rule is aimed to address the concern that plea-agreements would lead to excessively lenient sentences. However, the Supreme Court of the United States appears to have adopted the law and economics scholars’ arguments against the "innocent problem". Since the court believes that an innocent defendant is better off with the option to plea-bargain, no judicial measures have been taken to prevent a rational, innocent defendant from pleading guilty in return for leniency. The most striking example of this approach is found in the famous Alford case.3 In this case, the Supreme Court of the United States accepted a guilty plea from a defendant that openly proclaimed his innocence but preferred the more lenient punishment offered to defendants that pled guilty to the risk of a trial.4 CP Reforms3Counterplan text: The United States Federal Government ought to institute the following court reforms:Guidelines: Require written plea agreements and records of themCritical Rights: Enforce important rights which the defendant has, things like the right to DNA testing frequently get ignored through waiversOpen-File Discovery Rules: Mandate that prosecutors disclose a minimum of key plea criteriaJudicial Oversight: Empower judges to strike plea bargaining processes considered coerciveLimit Plea Discounts: Place limits on the sentences prosecutors are allowed to bargain with in exchange for a guilty pleaTurner ’17 /// Turner, Jenia Iontcheva, Plea Bargaining (March 9, 2017). Academy For Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming; SMU Dedman School of Law Legal Studies Research Paper No. 348. Available at SSRN: KDMost of the above proposals address distinct problematic aspects of plea bargaining. They ought to be considered for adoption not in isolation, but as part of a comprehensive package that aims to ensure that plea bargaining produces just and accurate outcomes. 1. Require Written Plea Agreements Perhaps the easiest plea bargaining reform for legislators to undertake is requiring that plea agreements be placed in writing and entered into the record. As noted earlier, several jurisdictions have already adopted such requirements. They help ensure that defendants receive notice of the terms of the agreement, allow for a more informed judicial review of the plea, and make the process more transparent to the public. The California Judicial Council has created a plea form that lists a number of direct and collateral consequences that might follow a guilty plea and invites the parties to identify which of these consequences apply to their case. It also outlines rights that the defendant is waiving by pleading guilty and provides space for the parties to list other terms of the agreement. This form can serve as a blueprint for other jurisdictions.121 With respect to placing plea agreements on the record, the Maryland rule offers a good model: “All proceedings pursuant to this Rule, including the defendant's pleading, advice by the court, and inquiry into the voluntariness of the plea or a plea agreement shall be on the record. If the parties stipulate to the court that disclosure of the plea agreement or any of its terms would cause a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment, the court may order that the record be sealed subject to terms it deems appropriate.”122 In cases where cooperating defendants might frequently be subject to retaliation (e.g., organized crime cases), the recording requirement may be modified or even eliminated. The federal system is currently studying options for balancing these interests in cases where the safety of cooperating witnesses might be compromised.123 2. Prohibit Waivers of Critical Rights Courts or legislatures should prohibit the parties from negotiating waivers of several key rights that help protect the fairness and accuracy of plea bargains—the right to appeal the validity of the guilty plea and the accompanying sentence, the right to discovery, the right to subsequent DNA testing, and the right to effective assistance. Some jurisdictions already restrict or prohibit such waivers, but there is a troubling increase in the waivers negotiated in other systems, especially the federal. These waivers undermine critical protections against uninformed and unfair plea bargains. To restore a measure of due process in plea bargaining, it is critical to prohibit their use by statute, case law or ethical rules. 124 At the very least, prosecutor’s offices ought to restrict the negotiation of such waivers except in special circumstances requiring supervisory approval. 3. Provide Broad Pre-Plea Discovery and Ensure that Defense Attorneys Have the Time and Resources to Review It To ensure that innocent defendants do not plead guilty and to improve the fairness of plea bargains, legislatures should also adopt broad pre-plea discovery.125 Specifically, discovery rules should be amended to require prosecutors to disclose to the defense, before a guilty plea, at a minimum, the following types of evidence: 1) impeachment and exculpatory evidence, without regard to its materiality; 2) witness names and statements, redacted as necessary to protect witnesses from risk of harm; and 3) police reports, again redacted as needed to protect the safety of witnesses. A number of states have already adopted such rules; 126 some, like North Carolina and Texas, have gone even further and adopted open-file pre-plea discovery.127 The evidence so far suggests that broad discovery can be implemented at a reasonable cost and without undue hardship to witnesses. It is the first step toward ensuring that parties are negotiating fair, wellinformed, and factually based plea bargains and that innocent defendants are not coerced into pleading guilty. For open-file discovery to have its intended positive effects, defense counsel must have the time and resources to review and investigate the facts revealed through discovery.128 Open file discovery therefore must be coupled with reforms that ensure adequate funding of criminal defense.129 Legislators, courts, and prosecutors’ offices should also strictly limit or entirely prohibit “exploding” offers. Such offers prevent defendants and their counsel from adequately evaluating the evidence disclosed and conducting further investigations if needed, before making a decision whether to plead guilty or proceed to trial. Therefore, states may require (as Louisiana as done) that guilty pleas be accepted only after a certain period has passed since arrest130 or (as in Texas) that prosecutors make discovery available to the defense before a court can accept a guilty plea. 131 Prosecutors’ offices could also consider adopting internal protocols that discourage “exploding offers.”132 4. Strengthen Judicial Oversight of Plea Bargains and Guilty Pleas Judicial participation in plea negotiations allows a neutral party to assess the terms of the plea bargain and the facts of the case at a point in the proceeding when such oversight can make a real difference. A number of states permit such participation, and recent qualitative studies suggest that it is perceived to provide greater certainty, fairness, and much-needed oversight of the plea bargaining process. The risk of judicial coercion can be minimized through procedures that allow a different judge to preside over trial when plea bargaining falls apart.133 Legislators should therefore expressly permit judicial participation in plea negotiations, but require judicial recusal if a case proceeds to trial after negotiations fail. At a minimum, legislators should demand that judges conduct a more searching inquiry into the facts underlying the guilty plea and accompanying agreement. Judges should not rely merely on factual stipulations or summaries of the evidence presented by the prosecution, but should question the defendant and review any available materials to ensure that the conviction and the proposed plea agreement reflect the true facts of the case. Military courts—as well as courts in continental European systems that have adopted plea bargaining—engage in more thorough vetting of the facts before accepting guilty pleas, and they can offer helpful guidance for civilian U.S. jurisdictions.134 5. Adopt Limits on Plea Discounts Courts and legislatures should also limit the charging and sentencing concessions that prosecutors can offer in exchange for a guilty plea. Enormous discounts heighten the risk of innocent persons pleading guilty and may produce unjust sentencing disparities. Legislatures can address this problem by limiting plea discounts to no more than a third of the expected post-trial sentence; alternatively or in addition, courts can use any sentencing discretion they have to reduce discounts that are more than 30-35%.135 In many U.S. jurisdictions today, prosecutors can circumvent plea discount caps through their charging decisions. But the experience of foreign systems like England and Germany suggests that such limits can be effective if coupled with broader judicial discretion to scrutinize charges and impose proportionate sentences. For that reason, policymakers should consider this proposal in tandem with ideas for comprehensive reform of the criminal justice system. Excising overlapping criminal statutes—a stated goal of reformers—would constrain prosecutorial discretion to evade plea discount limits through charge bargains. Reducing sentencing severity and restoring judicial discretion over sentencing can also help courts ensure that plea discounts remain reasonable. Finally, chief prosecutors themselves can also take the initiative and adopt internal regulations that limit the size of plea discounts line prosecutors can offer. The proposals above offer a range of practical solutions that can help make plea bargaining fairer, more transparent, and more honest. Given the central place of plea bargaining in our criminal justice system, any serious reform of the process ought to consider them.DA Cartels / Drugs (Econ Impact)Operation Raging Bull and new provisions for drug tasks forces decimate organized crime – MS-13 takedown provesFarivar 11/16 (Masood Farivar, fought in the anti-Soviet resistance in the late 1980s before attending Harvard University, from which he received a degree in history and politics. His journalism has appeared in publications including The Wall Street Journal, The Village Voice, and Soldier of Fortune. He lives in Afghanistan, 11-16-2017, "US Announces Arrests of 267 MS-13 Gang Members in Latest Sweep," VOA, )-DSU.S. law enforcement officials announced on Thursday the arrest of 267 members of MS-13, a violent gang the Trump administration has vowed to get off America's streets. The arrests were made in recent weeks as part of a major anti-gang crackdown code-named Operation Raging Bull. Led by U.S. Immigration and Customs Enforcement, the operation swept up 214 MS-13 members in the United States and 53 members in El Salvador, the gang's home base, officials said. The two-phase operation, aimed at MS-13 members and their global financial networks, was begun under the administration of former President Barack Obama but has escalated under President Donald Trump. The initial, 18-month phase ended in September and netted 51 arrests in El Salvador, officials said at a news conference in Washington. The second phase, running from October 8 to November 11, resulted in the latest arrests in the United States and El Salvador. Administration's efforts U.S. Attorney General Jeff Sessions touted the arrests as an important step in the Trump administration's effort to stamp out MS-13, whose members have been implicated in a series of high-profile murders around the country. "President Trump has ordered the Department of Justice to reduce crime and take down transnational criminal organizations, and we will be relentless in our pursuit of these objectives," Sessions said in announcing the arrests. "That's why I have ordered our drug-trafficking task forces to use every law available to arrest, prosecute, convict and defund MS-13." The only street gang designated by the Treasury Department as a transnational criminal organization, MS-13, also known as Mara Salvatrucha, boasts nearly 10,000 members in the United States, mostly immigrants from El Salvador, Guatemala and Honduras. In a statement, the Justice Department said a majority of the 214 MS-13 members arrested in the United States were from El Salvador and that 64 members had illegally en tered the United States as "unaccompanied alien children." Sixteen of the arrestees are U.S. citizens and five have legal status in the United States, the department added. Trump has blamed what he calls the lax immigration policies of the Obama administration for allowing gang members to enter the United States illegally as unaccompanied alien minors. Root out MS-13 In February, Trump directed the Justice Department to redouble its efforts to root out MS-13 and other transnational criminal organizations. The Justice Department said it's trying to do exactly that. Last month, Sessions formally designated MS-13 as a "priority" for the department's Organized Crime Drug Enforcement Task Forces, a collective of several law enforcement agencies, including the FBI. The designation allows the drug task forces that typically focus on organized crime and drug trafficking to use an array of statutes, including gun laws, drug laws and tax laws, to target the gang. The Justice Department said it has secured the convictions of 1,200 gang members and the arrests and indictments of about 4,000 MS-13 members in El Salvador so far this year.Plea bargaining is the lynchpin of maintaining low level informants for drug cases.Natapoff 8 (Natapoff, Alexandra, served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. "Deregulating Guilt: The Information Culture of the Criminal System." Cardozo Law Review 30.3 (2008): 965-1021) AXY The remainder of this piece focuses on the use of criminal informants, a low-tech law enforcement technique that has become increasingly influential in the investigation of drug and street crime, conspiracy, corporate fraud, and, most recently, terrorism. The practice dramatically illustrates the difficult trade-offs inherent in law enforcement discretion, and has altered many aspects of investigation as well as plea bargaining and sentencing. Informant use spans all three informational spheres and affects numerous aspects of the criminal system’s information culture: from its significance as an investigative tool, to its use as a plea bargaining technique, as well as its impact on Supreme Court doctrine. Taken together, these characteristics reveal a complex and troubling informational dynamic in tension with many of the system’s legitimating precepts of informational regulation. VI. CRIMINAL INFORMANTS: THE DEREGULATION OF GUILT The dominance of plea bargaining in conjunction with the war on drugs has made the use of criminal informants a central engine of the criminal justice system.114 Nearly every drug case involves a snitch, and drug cases represent an ever larger proportion of both state and federal dockets. As U.S. District Judge Marvin Shoob once complained, “I can’t tell you the last time I heard a drug case of any substance in which the government did not have at least one informant. . . . Most of the time, there are two or three informants, and sometimes they are worse criminals than the defendant on trial.”115 Moreover, informants are used in the investigation, prosecution, and/or sentencing of every type of offense, from child pornography to antitrust to burglary.116 As the use of informants becomes an increasingly common investigative and case management tool, the impact of the official practice of trading information for liability with criminals becomes of central importance for understanding the system’s changing information culture.117 Criminal informants—i.e., criminal offenders who receive lenient treatment because of their cooperation with the government118—are a longstanding and important part of the criminal system. Certain kinds of cases—drug conspiracies, antitrust, corporate fraud, terrorism—are difficult to investigate or prosecute without them, as the government is in a poor position to obtain incriminating information without inside help. Some kinds of information, for example, are only possessed by participants. Moreover, informants are procedurally simple and cheap. For example, while the government can apply for a wiretap order under Title III, it needs to show probable cause, and the resulting order will include time and other limitations. Alternatively, the government can skip the warrant process altogether and get an informant to wear a wire, without having to show probable cause and without temporal or spatial restrictions.119 Their usefulness and ease have thus made informants a staple of drug and other investigations. Drug trafficking funnels bank into money laundering practicesInsulza 15 (José Miguel Insulza, Chilean politician who served as Secretary General of the Organization of American States from 2005 to 2015,“The Drug Problem in the Americas”, Organization of American States, ) TSThe illegal drug economy needs to cover up the illicit origin of its assets and flows, in order to bring them into the legal economic system. Funds generated in the illegal drug economy enter the legal economy through money laundering, which comprises a set of activities within and outside the financial system aimed at legitimizing ill-gotten gains. A variety of approaches can be used to launder drug proceeds into the formal financial system. These include over-invoicing imports, purchasing open system prepaid cards, exchanging digital currencies, sending money through more than 200 secure online payment systems, and laundering money through cash-intensive businesses—such as hotels, casinos, and construction—that are controlled by organized criminal groups.57 Additionally, drug purchases can be laundered through purchasing and reselling real estate, vehicles, and other luxury goods. Even when various financial regulations are in place, records of property transactions often remain scattered across public notaries and are difficult to trace, making real estate a favored method both for consuming and laundering drug proceeds.58 While there is no agreement as to the volumes of illicit funds fed into the system, a broad consensus does exist as to the corrupting and distorting power of those funds. Given the multiplicity of players involved, the complete absence of transparency in their transactions, and the continually shifting mechanisms devised, the magnitude of the problem is hard to gauge. Furthermore, it is important to mention that although the illegal drug economy is one of the principal drivers of money laundering, this practice comprises multiple and complex illicit activities, including the bribing of government officials and tax evasion. From a security perspective, money laundering helps criminal organizations penetrate different spheres of society, besides wielding enormous power to corrupt civil servants and private sector actors. Money laundering drags “legal” economic agents into illegal activities. It fuels and boosts direct and indirect relations between a number of actors, generating “grey” areas in which apparently legal players take part in clearly illegal actions. Traditionally, the financial sector, and banks in particular, have been used to launder assets. The nature and diversity of the services provided by this sector permit maneuvers that can swiftly and safely channel funds generated by criminal activities, while hiding the origin of the proceeds. However, in response to the implementation of prevention systems in the financial sector, the organizations involved in money laundering have diversified their mechanisms, procedures, and flows and are now using other economic sectors. Currently, building on experiences of cases detected all over the world, prevention systems have been incorporated into a large number of sectors, such as insurance companies, securities brokers, foreign exchange dealers, remittance firms, casinos, minerals and precious stones merchants, real estate, and among independent professionals, such as notaries, accountants, and attorneys. Money laundering triggered by the illegal drug economy has detrimental effects on the economy, social development, and democratic governance. Although money laundering is a crime that often goes unnoticed, its consequences run deep and extend beyond their impact on the economy. In underdeveloped areas with little state presence, the injection of funds stemming from the illegal drug market has a powerful impact, heaping goods and services on segments of the population hitherto cut off from traditional, legal economic circuits. Under such circumstances, organized crime groups develop ties with the communities, who view their activities and investments as opportunities for social and economic integration. The dynamics of this relationship trigger “perverse” development, based on illegally acquired funds and the presence and control of criminal factions that impose order through threats and violence. In this scenario, traditional economic activities are crowded out as being less profitable while those propitious for money laundering and the concentration of resources thrive. Money laundering is not just tied to illegal drugs. Even if it were possible to diminish the funds derived from that illegal economy, the flow of money from administrative corruption, tax evasion, and other illicit activities—extortion, trafficking in persons, illegal arms sales, the smuggling of migrants, and illegal mining, to name a few—would continue to sustain the mechanisms and channels for concealing the sources of ill-gotten gains. Money-laundering laws tend to be weak. All the evidence suggests that new developments in money laundering are always a step or more ahead of the legal schemes devised to combat it, which means that laws have constantly to be revised and replaced. To make headway on this front, consideration should be given to providing more state resources for investigation and stronger penalties, even though that might involve measures that the financial sector, and even migrants remitting funds to their countries of origin, might find uncomfortable. Here it might be worth contemplating the imposition of criminal sanctions on institutions, and not just individuals, so as to avoid today’s situation in which only low-ranking officers are punished when banks or other financial institutions commit crimes. One of the main reasons why this phenomenon is transnational is that, in most cases, the “legalized” money ends up being deposited and used by head offices in the United States or Europe, not in the those financial institutions’ branches in Latin America or the Caribbean. Therefore, the focus should be on enforcing the law in the countries where the money ends up. Equally important and pressing, when it comes to continual updating of the legal schemes for combating money laundering, is ensuring homogeneity in the legislation of the different countries involved, since discrepancies in this area completely cancel out the investigative and punitive capacities developed in countries with more advanced legislation. The possibility of developing common legal ground, at least in relation to this problem, should be explored.Money laundering leads to economic decline Kumar 12 (Vandana Ajay Kumar, Department of Laws, Panjab University, Chandigarh, “Money Laundering: Concept, Significance and its Impact”, European Journal of Business and Management 4:2) TSThe Money laundering has negative effects on economic development. Money laundering constitutes a serious threat to national economies and respective governments. The infiltration and sometimes saturation of dirty money into legitimate financial sectors and nations accounts can threaten economic and political stability. Economic crimes have a devastating effect on a national economy since potential victims of such crimes are far more numerous than those in other forms of crime. Economic crimes also have the potential of adversely affecting people who do not prima-facie, seem to be the victims of the crime. For example, tax evasion results in loss of government revenue, thus affecting the potential of the government to spend on development schemes thereby affecting a large section of the population who could have benefited from such government expenditure. A company fraud not only results in cheating of the people who have invested in that company but may also adversely affects investors’ confidence and eventually the growth of the economy. The negative economic effects of money laundering on economic development are difficult to quantify, yet it is clear that such activity damages the financial-sector institutions that are critical to economic growth, reduces productivity in the economy’s real sector by diverting resources and encouraging crime and corruption, which slow economic growth, and can distort the economy’s external sector international trade and capital flows to the detriment of long-term economic development. Developing countries’ strategies to establish offshore financial centre (hereinafter OFCS) as vehicles for economic development are also impaired by significant money laundering activity through OFC channels. The negative effects of money laundering activities may be on financial sector, real sector of formal agents such as state, financial institutions and banking sector. Financial sector may get negative effects of money laundering especially financial institutions including banking and non –banking financial institutions (NBFIs),and equity markets- may directly or indirectly be affected. Basically,these institutions facilitate concentration of capital resources from domestic savings and funds from abroad. These institutions provide impetus to furtherance of investment prospects by providing conducive environment and efficient allocation of these resources to investment projects which contributes substantially to long run economic growth. Firstly the financial institutions are weakened directly through money laundering as there seems to be a correlation between money laundering and fraudulent activities undertaken by employees of the institutions. Similarly, with the increase in money laundering activities, major parts of financial institutions of a state are vulnerable to crime by criminal elements. This strengthens the criminals and other parallel system of money laundering channels. This may lead to the eviction of less equipped competitors & giving rise to monopoly. Customer trust is fundamental to the growth of sound financial institutions, and the perceived risk to the growth of sound financial institutions, and the perceived risk to depositors and investors from institutional fraud and corruption is an obstacle to such trust. Money laundering adversely affects economic growth through the real sector by diverting resources to less productive activities and by facilitating domestic corruption and crime. Money laundering carried out through the channels other than financial institutions includes more “sterile” investments such as real estate, art, antiques, jewelry and luxury automobiles, or investments of the type that gives lower marginal productivity in an economy. These sub optimal allocations of resource give lower level of economic growth which is a serious detriment to economic growth for developing countries. Criminals reinvest their proceeds in companies and real estate with the purpose to make further profits, legal or illegal. Most of these investments are in sectors that are familiar to the criminal, such as bar, restaurant, prostitution. The real estate sector is the largest and most vulnerable sector for money laundering. Real estate is important for money laundering, because it is a non-transparent market where the values of the objects are often difficult to estimate and where big value increases can happen and is an efficient method to place large amounts of money. The price increase in real estate is profitable and the annual profits on real business create a legal basis for income. The real estate has the following features, which make it attractive for criminal money Money laundering activities may impair any country’s economy through the trade and international capital flows.Excessive illicit capital flight from a state may be facilitated by either domestic financial institutions or by foreign financial institutions.That illicit capital flight drains scarce resources specially from developing economies; so by that way economic growth of respective economy is adversely affected58.Money laundering negatively affects trust of local citizens in their own domestic financial institutions as well as trust of foreign investors and financial institutions in a state’s financial institution which ultimately contributes to economic growth. Money laundering channels may also be associated with distortions of a countrys’ imports and exports. As with the involvement of criminal elements on the import side they may use illicit proceeds to purchase imported luxury goods, either with laundered funds or as part of the process of laundering such funds. Such imports do not generate domestic economic activity or employment, and in some cases can artificially depress domestic prices, thus reducing the profitability of domestic enterprises. The integrity of the banking and financial services market place depends heavily on the perception that it functions within a framework of high legal, professional and ethical standards. A reputation for integrity is the one of the most valuable assets of a financial institution. Dangers for the reputation can occur when a country deliberately declares to want to attract ‘criminal money’. If funds from criminal activity can be easily processed through a particular institution-either because its employees or directors have been bribed or because the institution turns a blind eye to the criminal nature of such funds-the institution could be drawn into active complicity with criminals and become part of the criminal network itself. Evidence of such complicity will have a damaging effect on the attitudes of other financial intermediaries and of regulatory authorities as well as ordinary customers. Money laundering not only threatens the financial system of a country by taking away command of the economic policy from the government, but also deteriorates the moral and social standing of the society by exposing it to activities such as drug trafficking, smuggling, corruption and other criminal activities. Money Laundering has become a global problem. Criminals target foreign jurisdiction with liberal bank secrecy laws and weak anti-money laundering regulatory regimes as they transfer illicit funds through domestic and international financial institutions often with the speed and ease of faceless internet transactions. This easy and vast infiltration of Criminal proceeds into world market can be stabilize them and can have a corrupting effect on those who work within the market system. The penetration of criminals into the legitimate markets can also shift the balance of economic power from responsible and responsive entities to rogue agents who have no political or social accountability. In short, when criminal enterprises are able to enjoy the fruits of the criminal ventures, the world market can be destabilized, leaving some countries vulnerable to persuasion and interference by corrupt organization.*Economic decline drives conflict and destabilizes deterrence structures --- results in nuclear war Stein T?nnesson 15, Research Professor, Peace Research Institute Oslo; Leader of East Asia Peace program, Uppsala University, 2015, “Deterrence, interdependence and Sino–US peace,” International Area Studies Review, Vol. 18, No. 3, p. 297-311Several recent works on China and Sino–US relations have made substantial contributions to the current understanding of how and under what circumstances a combination of nuclear deterrence and economic interdependence may reduce the risk of war between major powers. At least four conclusions can be drawn from the review above: first, those who say that interdependence may both inhibit and drive conflict are right. Interdependence raises the cost of conflict for all sides but asymmetrical or unbalanced dependencies and negative trade expectations may generate tensions leading to trade wars among inter-dependent states that in turn increase the risk of military conflict (Copeland, 2015: 1, 14, 437; Roach, 2014). The risk may increase if one of the interdependent countries is governed by an inward-looking socio-economic coalition (Solingen, 2015); second, the risk of war between China and the US should not just be analysed bilaterally but include their allies and partners. Third party countries could drag China or the US into confrontation; third, in this context it is of some comfort that the three main economic powers in Northeast Asia (China, Japan and South Korea) are all deeply integrated economically through production networks within a global system of trade and finance (Ravenhill, 2014; Yoshimatsu, 2014: 576); and fourth, decisions for war and peace are taken by very few people, who act on the basis of their future expectations. International relations theory must be supplemented by foreign policy analysis in order to assess the value attributed by national decision-makers to economic development and their assessments of risks and opportunities. If leaders on either side of the Atlantic begin to seriously fear or anticipate their own nation’s decline then they may blame this on external dependence, appeal to anti-foreign sentiments, contemplate the use of force to gain respect or credibility, adopt protectionist policies, and ultimately refuse to be deterred by either nuclear arms or prospects of socioeconomic calamities. Such a dangerous shift could happen abruptly, i.e. under the instigation of actions by a third party – or against a third party.Yet as long as there is both nuclear deterrence and interdependence, the tensions in East Asia are unlikely to escalate to war. As Chan (2013) says, all states in the region are aware that they cannot count on support from either China or the US if they make provocative moves. The greatest risk is not that a territorial dispute leads to war under present circumstances but that changes in the world economy alter those circumstances in ways that render inter-state peace more precarious. If China and the US fail to rebalance their financial and trading relations (Roach, 2014) then a trade war could result, interrupting transnational production networks, provoking social distress, and exacerbating nationalist emotions. This could have unforeseen consequences in the field of security, with nuclear deterrence remaining the only factor to protect the world from Armageddon, and unreliably so. Deterrence could lose its credibility: one of the two great powers might gamble that the other yield in a cyber-war or conventional limited war, or third party countries might engage in conflict with each other, with a view to obliging Washington or Beijing to intervene.DA Court Packing2Eliminating plea bargaining decks court efficiency by overburdening prosecutors and judges – they currently settle 95 percent of convicted casesFindLaw 13 (FindLaw, the largest and leading online database for legal information, “Plea Bargaining and the Judicial Economy”, ) AXY The American legal system has used plea bargaining for well over a hundred years, and one of the primary justifications for the use of plea bargaining is the principle of judicial economy. Judicial economy simply means that one goal of the judicial system is to conclude cases in an efficient and speedy manner. Without plea bargaining, it is widely believed that there would be an explosion of cases which in turn would overtax and disrupt the current legal system. Plea Bargains, Judges and Judicial Economy The primary benefit of plea bargains to a judge is that plea bargains reduce their already crowded calendar of court cases. It takes months, if not years, to get a trial date, so judges are always eager to have parties settle the matter between themselves and keep the dispute out of the court room. Many judges also see plea bargains as advantageous because they represent an agreement or bargain between the parties, which makes compliance and adherence to the agreement more likely. This, in turn, reduces potential disputes the parties will have in the future and will hopefully prevent parties from having to come back to court. Finally, most judges are keenly aware that many state's prisons are also overburdened. Many judges see plea bargains as an effective way to deal with less heinous criminals and reserve limited prison space for serious threats to the community. Plea Bargains, Prosecutors and Judicial Economy Prosecutors have their own calendars to worry about, and for the same reason as judges, prefer to keep the calendar as free as possible. Especially in offices where funding and resources are a major issue, prosecutors are open to negotiating a plea agreement rather than spend the time, money and resources on a full trial. Similarly, many prosecutors like plea bargains because they give the prosecutor flexibility and they allow prosecutors to "screen out smaller criminal offenses. By screening out lesser offenses, a prosecutor can bring the full power of their office to bear on serious criminal offenses. This creates new courts and replaces current appointees with trump-selected judgesKlain 11/21 [(Ronald A., Georgetown University & Harvard University (born August 8, 1961) Ronald is an American political operative and lawyer who on October 17, 2014, was named for the newly created position of "Ebola response coordinator" or, less officially, Ebola Czar. He served as Chief of Staff to two U.S. Vice Presidents – Al Gore (1995–99) and Joe Biden (2009–11).) "Opinion", accessed from on 12-4-2017] AS/TS- The aff creates a need for a creation of new courts and judiciaries to deal with court clog, justifying plans such as Calabresi’s proposal that creates NEW judiciary vacancies, which will expand the federal judiciary by 50 percent with Trump appointees under a single year. Also replaces current positions inside regulatory agencies with Trump-selected judges.Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same. The “outer turkey” in the plan is the ongoing Trumpification of the courts. In the final two years of Obama’s presidency, Senate Republicans engaged in tenacious obstruction to leave as many judicial vacancies unfilled as possible. The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, “the number of [judicial] vacancies .?.?. on the table when [Trump] was sworn in was unprecedented,” White House Counsel Donald McGahn recently boasted to the conservative Federalist Society. Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58. Senate Republicans are racing these nominees through confirmation; last week, breaking a 100-year-old tradition, they eliminated the “blue slip” rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, 1 in 8?cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050. But even this plan — to fill approximately 150 judicial vacancies before the 2018 elections — is not enough for conservatives. Enter the next element of the court-packing turducken: a new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled “Undoing President Barack Obama’s Judicial Legacy”), Calabresi proposes to pack the federal courts with a “minimum” of 260 — and possibly as many as 447 — newly created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent. Never mind that Republicans saw no urgency in filling judicial vacancies while Obama was president. Never mind that they ignored pleas from conservative Chief Justice John G. Roberts Jr. to fill positions in courts facing “judicial emergencies.” Now, conservatives want a 30 to 50 percent increase in the number of federal judgeships. And they have a clear idea of who should fill this massive number of new posts: “President Trump and the Republican Senate will need to fill all of these new judgeships in 2018, before the next session of Congress.” Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Donald J. Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump’s nominees to date — more white and more male than any president’s in nearly 30 years — would roll back decades of progress in judicial diversity. But even that isn’t enough for the Turducken Court Packers. They have jammed one more “treat” inside this turkey. Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency, Food and Drug Administration, Federal Communications Commission, and Securities and Exchange Commission, and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life. These new Trump administrative law judges would have vast power over environmental, health and safety, fair competition, communications, labor, financial and consumer regulation for decades. Unlike the existing administrative law judges, selected as nonpartisan members of the civil service, Calabresi’s replacement corps would all be picked in a single year, by a single man: Donald J. Trump. And if this breathtaking transformation of our federal judicial system isn’t jarring enough, Calabresi has one final treat: a proposal that Congress do all of this in the tax-cut bill that Congress is trying to pass before it leaves for the holidays. Progressives need to mount a more cohesive and effective plan to slow down the Trump train of judicial transformation. Otherwise, we’ll have a court-packing turducken for Thanksgiving, and a revolutionary rollback in rights and regulation for Christmas.Courts haven’t expanded yet because it’s unnecessary – aff creates court clog, which justifies court expansionBlackman 11-27 [(Josh Blackman, Josh is an Associate Professor of Law at the South Texas College of Law in Houston who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of the critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016)) "Republicans Should Not Pack the Courts", accessed from on 12-4-2017] AS Earlier this month, a law professor and his former student urged Republicans to increase the size of the federal judiciary by 33 percent, allowing President Trump to appoint 261 new judges, on a party-line vote if necessary. Like most legal scholarship, this proposal was destined to fall by the wayside, but for the identity of its lead author: Steven G. Calabresi, a law professor at Northwestern University, and the co-founder and chairman of the Federalist Society. Yes, the same Federalist Society that has played an essential role in President Trump’s highly successful judicial-nomination strategy. Were Calabresi’s memorandum in fact the official position of the Society, it would indeed be huge news. But it’s not. Not even close. As a non-profit organization, the Society does not, and indeed cannot, lobby in support of legislation. More foundationally, Calabresi’s position does not have anywhere near the monolithic support in conservative legal circles that editorialists in the New York Times, Washington Post, and Slate would suggest. As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded. Calabresi’s primary argument is that that the administration of justice could be improved by reducing the workload of our increasingly taxed judiciary. No argument there, but the size and scope of the expansion he proposes — whereby a single President could transform the judiciary in short order — is entirely disproportionate to the nature of the problem.Republicans support current packing of the courts – squo blockage of democratic judicial appointments and republican leaders pushing for it prove Rosenberg 12-3 [(Paul Rosenberg) "GOP's court-packing spree: It's only the beginning", accessed from on 12-4-2017] AS/TS- answers the argument that trump leaves soon – a. this new law would put these people in courts for life, b. ”It’s the last round, and it’s a fight to the finish.” There wouldn’t be a republic worth saving, and c. it goes on a long spiel of how even if republicans do this type of stuff, democratic party doesn’t have the will to take the courts backFor all of Donald Trump’s hollow bluster about his supposed accomplishments, the one place he’s winning bigly is largely overlooked: packing the federal courts as quickly as possible. As Amanda Marcotte wrote here on Nov. 8, “Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, who chairs the Senate Judiciary Committee, have set up a factory-style assembly line for Trump's judicial nominees and are getting them confirmed at a dizzyingly fast rate.” Thanks to GOP obstruction, Trump entered office well-positioned for the task, as Susannah Jacob explained here in August. “When Obama entered office, there were 54 judicial vacancies. President Trump now has the opportunity to fill over 130,” she wrote, adding: “This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware told Business Insider’s Allan Smith. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, have a significant impact on the shape and trajectory of American law for decades.” Trump has the power, Coons said, to bring about “a wholesale change among the federal judiciary.” But if one leading conservative judicial activist gets his way, that will only be the beginning. Federalist Society founder and board chair Steven Calabresi has written a memo (along with recent graduate Shams Hirji) calling on congressional Republicans to massively expand the lower federal courts, a court-packing scheme of breathtaking proportions for the express purpose of “undoing the judicial legacy of President Barack Obama.” This would actually giving Trump the power to appoint far more judges than any president in recent history — and do it before the 2018 midterms. How many judges, exactly? Calabresi has his eye on three distinct categories. First, he’d like to double or perhaps triple the number of appeals court (i.e., circuit court) judges, who are second only in power to the Supreme Court. Trump could then appoint at least as many appeals court judges as all other presidents combined. Second, he wants to add 185 trial (district court) judgeships, which would bring Trump’s appointments to 40 percent of the total. Third, he’d like to replace 158 nonpartisan, agency-appointed administrative law judges (ALJs) with Trump-appointed judges with lifetime tenure. These come from 20 different executive branch regulatory agencies —the EPA, FCC, SEC, etc. — but almost half come from just two: the Department of Labor (41) and the National Labor Relations Board (34), both of which look out for the rights of workers, whom Trump has a long history of exploiting. Allowing this president to appoint these judges would be a classic case of the fox guarding the henhouse. Calabresi realizes he’s asking for a lot, so he also presents a more modest fallback position. Even that one would allow Trump to exceed Obama’s influence in just one-fourth the time in office. Lest you think he’s going soft, Calabresi has also proposed that Republicans pass his proposal as part of the GOP tax plan — something that still could happen through the conference process. Needless to say, the plan has drawn some sharp criticism, including high-profile pieces by Ronald Klain at the Washington Post and Linda Greenhouse at the New York Times, who carefully picks apart the claims of a judicial emergency (which Republicans, of course, ignored when Obama was in office). Calabresi and Hirji fired back in a National Review article, claiming: “Nothing could be further from the truth” than to call it a court-packing plan. “In fact, it is a court-unpacking plan.” The Democrats started it, you see. They’re the real court-packers. Even some fellow conservatives aren’t buying this plan or its rationale. "As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded," Josh Blackman wrote at the National Review. Libertarian Ilya Somin wrote at the Post's Volokh Conspiracy blog that Calabresi and Hirji "clearly state that one of their goals is 'undoing President Barack Obama’s Judicial Legacy.' Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.” But perhaps the best way to understand the plan is through the eyes of Richard Primus, of the University of Michigan Law School, who wrote a recent post at the Harvard Law Review blog titled “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” At least the proposal is honest, he writes. “The paper’s motivation is entirely out in the open. This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control. It comes as a wolf.” He seeks to elucidate both why and how this is so profoundly dangerous to America’s constitutional system. Primus' terminology is important: "Rulebooks" and "playgrounds" refer to different ways of understanding the Constitution. The "endgame" here, he writes, suggests "a kind of constitutional Armageddon." This proposal means "to end an era,” but not necessarily in the way that Calabresi and Hirji suppose. “The document is remarkable in at least two respects,” Primus begins. “First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution. If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.” The relationship between the formal big-C Constitution and the informal small-c constitution is crucial, Primus notes: “The big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.” There are two ways of understanding the Constitution, Primus says at the end of his analysis. One is as a rulebook: “As long as you stay within the permitted moves, you’re playing the game properly.” In this view, there is no little-c constitution at all. “But the rulebook approach is a dangerously inadequate way to think about constitutional law,” he warns. “A more helpful analogy might go like this: Constitutional government is like playground basketball. If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.” As he sees it, that is the danger the Calabresi-Hirji proposal holds. However “conservative” they might claim to be, these legal activists are actually lighting a fuse that could blow up the whole constitutional system. The reason they might do that brings us to the second remarkable thing Primus notes: Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law. In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power. It’s not an idea in isolation, he notes. It echoes the Republicans' refusal to consider Obama’s nomination of Merrick Garland to the Supreme Court and their decision to confirm only two circuit court justices during his last two years, along with public statements by “Republican Senators from McConnell to Cruz to McCain [who] said publicly that if Hillary Clinton won the election, they wouldn’t consider any of her nominees to the Supreme Court.” In all these cases, Primus writes: The underlying logic, of course, is the same as that of the Calabresi-Hirji proposal. Democratic-appointed judges are not to be considered a normal part of the system, fit to exercise adjudicative authority because they too are honorable servants of the Constitution, even when they understand the Constitution differently from the way we understand it. No. They are to be regarded unfit per se. It’s this assumption, he writes, that “can explain what would otherwise be one of the most puzzling aspects of the proposal — that is, the paper’s seeming unconcern with provoking a judgeship arms race that could make the federal judiciary both unworkable and obviously partisan.” If the proposal passed, he notes, once Democrats again had unified control of the White House and Senate, “they’d enact a bill expanding the lower courts by whatever amount was necessary to swing control right back,” and possibly to expand the size of the Supreme Court as well, to counteract the theft of Garland’s seat. “With the Calabresi-Hirji experience behind them, it would be remarkable for the Democrats in the next round not to go all the way.” Surely “Calabresi and Hirji can foresee this chain of events as easily as I can,” Primus writes, so why make their proposal? There’s one perspective that he says could explain it: We don’t think in terms of the Democrats one day coming back into power. We are building for a world in which they never exercise power. And if the Democrats do return to power, then the Republic won’t be worth saving anyway. In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system. It’s the last round, and it’s a fight to the finish. One flaw in this analysis is the assumption that Democrats will act just like Republicans, but that sort of symmetry simply doesn’t exist — either at the levels of the parties, or at the level of animating ideologies. The willingness to disrupt norms, to violate the small-c constitution, is far more evident on the right than the left. Harvard Law professor Mark Tushnet coined the term “constitutional hardball” to describe it in a 2003 paper, and I wrote four stories about the GOP’s engagement in it between the 2014 midterms and the 2016 election, starting with efforts to subvert the Electoral College by changing the way certain states choose their electors, and ending with an Election Day story on norm erosion dating back to the 1990s. In between, in March 2015, I wrote a deep dive into the concept and how important it’s been to the modern GOP, and in February 2016 I wrote about Republican refusal to let Obama appoint a Supreme Court justice as a prime example of constitutional hardball. Tushnet’s analysis makes it clear that anyone can play the game, but he also gives a reason why Republicans play it much more vigorously. He sees it as an effort to change what he calls “constitutional orders,” and Republicans have been trying to change the constitutional order initiated under Franklin D. Roosevelt for a very long time now. But there are also other perspectives on why there might be such a powerful asymmetry. David Hopkins, co-author of "Asymmetric Politics: Ideological Republicans and Group Interest Democrats" (Salon review here) had several thoughts. “It does seem to be true that the American right is more comfortable playing hardball than the left,” Hopkins told Salon. “One reason, I think, is that there is a greater sense of urgency on the right. Many conservatives are frustrated with their lack of progress over the years in rolling back the modern domestic state, while the leftward drift of American culture further contributes to their disaffection and alienation. If existing norms of governance have helped lead us to this current state of affairs, they reason, then perhaps these norms do not deserve much deference.” There’s also an inhibition working on the other side. “It’s also the case that the center-left in America tends to have a lot of philosophical investment in the practice of procedural ‘fairness,’ which often makes it uncomfortable with aggressive displays of political power even on its own behalf,” Hopkins said. Indeed, ever since the 1950s, there have been comments about how liberals have become de facto conservatives, protectors of the established order. “Finally, I think it’s clear that conservatives prioritize representation in the judicial branch much more than liberals do at this period in history," Hopkins concluded. "Control of the court system, up to and including the Supreme Court, simply matters more these days to conservatives, who view the federal judiciary as broadly hostile to their beliefs and capable of threatening their political values and power via adverse rulings.” Corey Robin, author of "The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump" (Salon review here), took a longer view. “At moments of realignment, for example, American liberalism wasn't thinking in terms of iterative games or Burkeanism,” he said. “It saw itself, and rightly so, as transforming the rules of the game, of permanently altering the terms of discussion. And it saw itself as being the gravediggers of a pathological formation that would never return: the slaveocracy, in the case of Lincoln and the Radical Republicans, and the Gilded Age oligarchy, in the case of the New Deal.” In this larger historical framework, both sides have been equally capable of playing constitutional hardball, as Tushnet argues. “Conversely, what I see in this current proposal from the conservatives is less a feature of permanent conservative thinking — though I can see why you would say that, what with references to ‘the last round’ — than a sign of conservative weakness,” Robin said. “I think conservatives see themselves in a race against time: counterintuitively, and in contrast to [Primus], I think they anticipate that their hold on political power is slipping ... and they see the judiciary as a way of locking in their gains long past the expiration date.” This is certainly in keeping with their wide-ranging voter-suppression efforts, along with the ambitious $30 million gerrymandering scheme described by former Salon editor David Daley in "Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy." “Their model here is the Gilded Age judiciary, which was able to hold the line against growing populist and legislative attacks on economic wealth and power,” Robin said. “So it is a last round, and it is a fight to the finish, but it's a fight they except to lose in every respect save one: their lock on the judiciary. History suggests that is not an irrational way of thinking about their current predicament, insofar as the Lochner-era Supreme Court [from about 1897 to 1937] and lower courts really did strike down progressive legislation for decades.” Yale Law School’s Jack Balkin takes a similar view, at his Balkinization blog, where Primus is also a contributor. He sees little likelihood of Calabresi’s plan being enacted. “I think that we should consider Calabresi's memo for what it is — a dream of a better world,” he writes, adding that it should be examined as Freud would, to make sense of the “predicaments, anxieties, and concerns” that it expresses — especially the stark contrast between the GOP’s dominant formal power and its decaying power as a movement: Indeed, the Republican Party turned to Donald Trump in 2016 precisely because the regime's national coalition is decaying. Trump is both a symptom of decay and an agent of decay. In Stephen Skowronek's terms, Trump is a disjunctive president, brought on board to rejuvenate a dying coalition but who actually furthers its unraveling. This profound weakness is why, even with complete control of the federal government, the party has had more trouble than it should in passing legislation. Of course, nobody knows when the Reagan regime will actually end. ... Even so, as the regime decays, factionalism and radicalism undermine the party's coalition and make even the simplest tasks difficult. But as Robin notes, the Gilded Age oligarchs held onto their power in the courts for decades, long after they had lost electoral credibility. While it may be comforting, in the abstract, to see Trump’s current judicial power grab as a sign of his party’s weakness, that does nothing to soften the blows that will be coming from the bench at the hands of the scores of judges he has already nominated, with many more to come. Progressives damn well ought to be thinking in terms of playing constitutional hardball themselves. At least as far back as Bush v. Gore, conservatives have relied on the courts as an illegitimate source of power. By de facto appointing George W. Bush president (see "Jews for Buchanan" for the multitude of ways in which the election was stolen), the 5-4 Supreme Court decision effectively selected two of its successors, yet another profound violation of constitutional norms. That means we are now up to three Supreme Court justices who can be seen as illegitimate — plus, of course, Clarence Thomas, whose decades-long evasion of accountability for an egregious pattern of sexual harassment surely ought to be brought to a belated end. Plus all the lower court judges Bush appointed during his two terms in office. Primus provides us with an excellent framework for understanding the dangers of allowing constitutional hardball to run amok. We can hope that Calabresi’s plan won’t be enacted, making things incalculably worse. But there are severe dangers of not engaging in constitutional hardball, as well. As Tushnet himself (also at Balkinization) put it: If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective. He went on to say: My current hobby-horse is the small-c norm setting the Court's size at nine. I think -- really, I do think this -- that Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do). The rationale is not (on the surface) to "seize control of the judiciary." Rather, it is to undo the Republicans' theft of the Garland seat. ... The Democratic proposal for changing the small-c constitutional norm about the Court's size would be an offer of a new norm -- "You can't steal a Supreme Court seat and expect to get away with it." Seems like a good new norm to me. The situation is obvious: We’re already living in a badly damaged “normal” state, and a perniciously diminished, self-limiting form of liberalism is largely responsible for that. The Calabresi plan should be a wakeup call for progressive activists, not just to fight back against the ongoing Trump takeover of the courts but to begin crafting a serious, far-reaching constitutional hardball strategy of our own, Tushnet’s Supreme Court proposal is a good starting point — but it’s only a start. We need to see ourselves, to borrow Robin's phrase, as the future gravediggers of this pathological formation, which we fervently hope will never return.Anti-Trump court systems are key to check multiple instances of executive power Leonard 17 (Meghan E. Leonard, Associate Professor of political science at Illinois State University, “Despite Trump’s attempts to delegitimize them, the Courts are checking executive power exactly as they should”, LSE, ) TSThe government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy…It is beyond question, that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. (State of Washington & State of Minnesota v. Trump 2017). The quotes above highlight the narrative in President Trump’s seeming ‘war’ on the power of the federal courts. The President, disheartened by the district court’s temporary restraining order on his executive order, attacked both federal District Court Judge James L. Robart (“so-called judge”) and the power of the federal courts to make this decision. Of course, the federal courts do have the power to halt potentially unconstitutional executive orders and check the other two branches of government. The power of the Supreme Court and federal courts more generally to interpret the Constitution, or ‘say what the law is’ was given to the Court by its own Chief Justice John Marshall in 1803, in Marbury v. Madison. Not explicated in the Constitution itself, judicial review is the heart of judicial power in the United States. While Marbury gives the Court the legal authority to say what the law is, the legitimacy of the courts gives them the political capacity to have their decisions complied with. The legitimacy of the Supreme Court is best understood as a reservoir of goodwill toward the institution, whereby individuals accept the decisions of the Court because they trust the institution. While a debate exists on how ideology and agreement with individual Court decisions affects support for the Court, political scientists have generally concluded the support for the Supreme Court is high and enduring. And given that the courts have neither the ‘power of the purse nor the sword’ it is this diffuse support that leads the other branches of government to comply with and implement the decisions of the Court. Not doing so could lead to backlash from the public, which the elected branches, which are concerned centrally about reelection seek to avoid. The legitimacy of the Court does not mean the president or Congress won’t express their disagreement with judicial decisions. In 2010, then-President Obama infamously challenged the Supreme Court’s decision in Citizens United v. FEC, by suggesting in his state of the union address“[w]ith all due deference to separation of powers, last week the Supreme Court reversed a century of law… that would open up the floodgates to special interests.” This was neither the first nor the last time a sitting president has used their power to ‘go public’ to challenge the decision of the Supreme Court. Yet, while presidents often disagree with Supreme Court decisions on issues most important to their administration, they most often comply with the decision of the Court, even once calling the National Guard to do so. Not always the case, for example, Lincoln ignored the post-Dred Scott Court’s decision in ex parte Merryman, this would be the exception, rather than the rule. In another way to respond to the Court, the president may turn to allies in Congress and attempt to check the power of the court through court-curbing legislation. Most famously used by President Roosevelt in his attempt to add six justices and pack the Court that struck down many pieces of his New Deal legislation, this court–curbing legislation is designed to propose limitations to the power of the federal courts as well as demonstrate to the public response to unpopular decisions. Research demonstrates that the Court is responsive to new court-curbing legislation, and will limit the use of judicial review in response. So, while the Trump White House is arguing the federal courts are too powerful in their ability to check the executive and legislative branches, there are a least some limitations on this power. Given the difference in the comments by President Trump compared to past presidential statements that highlight the importance of trusting the separation of powers, many commenters have raised concern that we might be facing a crisis of the Constitution. At this point, I would conclude rather than a crisis, our system is working exactly the way it is supposed to. The judicial branch is checking the power of the executive branch, in an effort to stop any potential violations of the Constitution. As for the future relationship between Trump and the Courts? New polling hints at what the American people think : 53 percent of Americans trust the courts to make the right decisions, while only 38 percent would trust President Trump more. Only a quarter of voters would want President Trump to have the power to overturn the decisions of the courts, though of Trump voters 51 percent would give the president this power. Almost two-thirds of voters do not believe the president should have the power to overturn judicial decisions. Trump’s most ardent supporters notwithstanding, the American people seem to be happy with the so-called judges fulfilling their Constitutional duties.Unchecked executive causes multiple scenarios for extinction---resistance is keyPrashad 6/21 (Vijay, professor of international studies at Trinity College in Hartford, Connecticut. He is the author of 18 books, “Trump, With a Vicious Temperament, Seems Eager to Hasten the Doomsday Clock,” )Watching U.S. President Donald Trump toss binders of environmental regulations onto the ground underscored the grave dangers of this administration: the final administration. The disregard for the negative social and natural implications of human-induced climate change and warfare is striking. It is not as if Trump has broken fundamentally with a past where the world leadership was somehow truly worried about climate catastrophe and extinction by weapons of mass destruction. There are more continuities here than sharp breaks. Trump has nonetheless moved the needle faster, with a much more vicious temperament, unwilling to bend to liberal hypocrisies, eager to hasten the minute hand of the Doomsday Clock. It would not be too much to expect the Trump administration to propose to use ‘small’ nuclear weapons to blast coal seams and uncover more carbon to power the world to Armageddon. It is not as if the Paris or Kyoto agreements would have been sufficient to stem the tide of adverse climate change. Even those were too mild, too friendly to corporations that make their money destroying the planet. But at least these agreements forced governments to accept that human activity—namely industrial capitalism—had hastened the destruction of nature. Now, Trump’s Energy Secretary Rick Perry says openly that carbon dioxide emissions are not the main drivers of climate change. Perry pointed the finger of blame at ‘ocean waters,’ allowing industrial capitalism an exit from responsibility. Why bother with alternatives to carbon when there is no ‘evidence’ that such energy sources bring the planet closer to annihilation? Meanwhile, at the two ends of Eurasia, Trump has moved closer to war at a planetary scale. Trump has authorized the U.S. military to go after Syrian and Iranian military assets in western Syria that are currently engaged against ISIS. Russia has now warned the United States that any U.S. aircraft in that airspace will be seen as ‘air targets.’ Iran has fired ballistic missiles from Iran into eastern Syria. This sends a message to Israel and Saudi Arabia that they are within range of Iranian missiles. What might be seen as deterrence at any other time could very well be a provocation in these times of the final administration. Trump’s messy entry into the Gulf crisis, backing Saudi Arabia and the United Arab Emirates against Qatar and Turkey, suggests no finesse in contemporary U.S. diplomacy. More firepower and more belligerent talk is the currency of our times. That this might provoke a much greater altercation in West Asia is of little concern to the final administration. That the war might spread from there into other locations, such as Eastern Europe and North Africa, seems to be of no concern. Even more chilling was a tweet Trump sent this week that pertains to the other flank of Eurasia. ‘While I greatly appreciate the efforts of President Xi & China to help with North Korea,’ wrote Trump, ‘it has not worked out. At least I know China tried!’ So now what? Is the United States preparing for war against North Korea? South Korea and the U.S. have increased their military activity near North Korea—all provocations against a government terrified of being attacked. When a North Korean drone drifted into South Korean airspace this week, even the less military-minded new government in the south led by Moon Jae-in suggested that war was on the horizon. Will a ‘small’ nuclear exchange be contemplated for the Korean Peninsula and for Eastern Asia in general? We are between climate catastrophe and wars of extinction, with the final administration provoking both at hyper-speed. Trump plays the role of Judas in Gaudi’s sculpture. Jesus speaks to him about betrayal. But he is looking over Judas’ shoulder. He is asking the rest of us if we are participants in the betrayal. What are you doing today to prevent Trump's agenda from driving our planet closer to extinction? NC ExtinctionMoral equality means even a small risk of preventing extinction outweighs structural violence – future generationsBostrom, 2012 (Mar 6, Nick, director of the Future of Humanity Institute at Oxford, recipient of the 2009 Gannon Award, “We're Underestimating the Risk of Human Extinction,” interview with Ross Andersen, freelance writer in D.C., )some have argued that we ought to be directing our resources toward humanity's existing problems, rather than future existential risks, because many of the latter are highly improbable. You have responded by suggesting that existential risk mitigation may in fact be a dominant moral priority over the alleviation of present suffering. Can you explain why? Bostrom: Well suppose you have a moral view that counts future people as being worth as much as present people. You might say that fundamentally it doesn't matter whether someone exists at the current time or at some future time, just as many people think that from a fundamental moral point of view, it doesn't matter where somebody is spatially---somebody isn't automatically worth less because you move them to the moon or to Africa or something. A human life is a human life. If you have that moral point of view that future generations matter in proportion to their population numbers, then you get this very stark implication that existential risk mitigation has a much higher utility than pretty much anything else that you could do. There are so many people that could come into existence in the future if humanity survives this critical period of time---we might live for billions of years, our descendants might colonize billions of solar systems, and there could be billions and billions times more people than exist currently. Therefore, even a very small reduction in the probability of realizing this enormous good will tend to outweigh even immense benefits like eliminating poverty or curing malaria, which would be tremendous under ordinary standards.Evaluate high magnitude predictions first - best way to communicate threats while facilitating effective responses in the public.Cover ’14 - Assistant Professor of Law at the Case Western Reserve University School of Law, and the Director at the Institute for Global Security Law and Policy, (Avidan Y., “Presumed Imminence: Judicial Risk Assessment in the Post-9/11 World”, )//HHConsider the following study’s findings: “[W]hen people are asked how much they will pay for flight insurance for losses resulting from ‘terrorism,’ they will pay more than if they are asked how much they will pay for flight insurance from all causes.”56 The specter of terrorism and the emotional wallop it entails leads people to make significant judgments in error regarding the likelihood of certain harms.57 Moreover, a psychological study further determined that just the discussion of a low-probability risk, even one in which trustworthy sources elaborate on the minimal risk, increases perceptions of the risk’s probability.58 What are termed “dread risks,” “worst-case scenarios,” or “low-probability, high-consequence events,” powerfully impact human behavior.59 Consider that in the three months after the 9/11 attacks occurred, numerous Americans stopped flying and a good proportion of those people chose to drive instead.60 Flying remains, even with the specter of terrorism, a far less risky endeavor than driving.61 Yet, people disregarded this fact. The increase in road traffic led to 353 more fatalities nationwide “in the last [three] months of 2001” when compared to the last quarter of the preceding five years, 1996–2000.62 Also at work here may be an alarmist bias. When differing accounts of risk are presented, people are more likely to favor the more “alarming” version, crediting the accounts that describe more dangers as more informative. W. Kip Viscusi characterizes this outcome as one of “‘irrational asymmetry: respondents overweigh[] the value of a high risk judgement.’”63 In fact, there may even be reason to believe that the fear engendered by the 9/11 attacks has contagion effects, leading people to fear increased risks from sources well beyond terrorism. For example, a study of ninth graders in California found that adolescents surveyed prior to 9/11 perceived a lesser risk of dying than those surveyed a few weeks after the attacks.64 Specifically, respondents believed there was a 34.62% chance of dying by a tornado before 9/11, but the perception of such a risk increased to 64.33% after the attacks.65 The perceived risk of dying by earthquake increased from 24.64% to 41.94%.66 When seized by fear, people make probability determinations that they would otherwise not make. Moreover, these decisions do not track the variations in probability. One study asked participants what they would pay to avoid participating in an experiment in which there was a chance they would be subjected to a painful electric shock or to a $20 penalty.67 Faced with a 1%, 99%, or 100% risk of shock, participants’ median willingness to pay ranged from $7 to avoid the 1% risk to $10 to avoid the 99% risk.68 In contrast, the willingness to pay to avoid the $20 penalty ranged from $1 to avoid the 1% chance to $18 to avoid the 99% chance.69 The results demonstrate that people are willing to pay a lot to avoid the low probability of an “affect-rich outcome,” but that their willingness to pay does not vary greatly with the probability of the occurrence of the event.70 Similarly, even when the risks of a high outrage occurrence such as nuclear waste radiation, and a low outrage event, like radon exposure, were the same, people perceived the high outrage threat as a higher risk and expressed a greater intention to limit that threat.71 Another study found that people perceived a greater risk from a terrorist event causing the same number of casualties as a non-terrorist propane tank explosion or release of an infectious disease.72Even if security and risk calculation are flawed, engaging in them creates discourse of social welfare and promotes a democratic civic culture that checks political exclusion and loss of value to lifeLoader 7 (Ian Loader, Criminology Prof at Oxford, Civilizing Security, Pg. 5)Faced with such inhospitable conditions, one can easily lapse into fatalistic despair, letting events simply come as they will, or else seek refuge in the consolations offered by the total critique of securitization practices – a path that some critical scholars in criminology and security studies have found all too seductive (e.g. Bigo 2002, 2006; Walters 2003). Or one can, as we have done, supplement social criticism with the hard, uphill, necessarily painstaking work of seeking to specify what it may mean for citizens to live together securely with risk; to think about the social and political arrangements capable of making this possibility more rather than less likely, and to do what one can to nurture practices of collective security shaped not by fugitive market power or by the unfettered actors of (un)civil society, but by an inclusive, democratic politics. Social analysts of crime and security have become highly attuned to, and warned repeatedly of, the illiberal, exclusionary effects of the association between security and political community (Dillon 1996; Hughes 2007). They have not, it should be said, done so without cause, for reasons we set out at some length as the book unfolds. But this sharp sensitivity to the risks of thinking about security through a communitarian lens has itself come at a price, namely, that of failing to address and theorize fully the virtues and social benefits that can flow from members of a political community being able to put and pursue security in common. This, it seems to us, is a failure to heed the implications of the stake that all citizens have in security; to appreciate the closer alignment of self-interest and altruism that can attend the acknowledgement that we are forced to live, as Kant put it, inescapably side-by-side and that individuals simultaneously constitute and threaten one another’s security; and to register the security-enhancing significance and value of the affective bonds of trust and abstract solidarity that political communities depend upon, express and sustain. All this, we think, offers reasons to believe that security offers a conduit, perhaps the best conduit there is, for giving practical meaning to the idea of the public good, for reinventing social democratic politics, even for renewing the activity of politics at all.15 HW KK Aff StockACAdvantage 1 is DiscretionSessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power.Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735 First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, n28 including the right to redress sentencing errors that have not yet occurred. n29 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n32 on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n42 Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire criminal justice system.Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012 What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.This results in cycles of criminalization, dehumanization, and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Interpedently, rights violations results in rampant totalitarianism and an inability to critique power. Inga Ivsan, University of Miami School of Law & Philip E. Heckerling Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. (2017)Plea bargaining is not necessarily bad in and of itself, but its extreme overuse raises concerns about the U.S. criminal justice system.7 The pleabargaining process does not afford any constitutional or ethical protections.' For example, suppose police obtain evidence illegally, without a warrant. Prosecutors would prefer to keep a case built on warrantless evidence out of court rather than have the illegal police conduct exposed at trial. 9 A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.'o Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on questionable evidence, and accepts a lesser punishment in exchange for sacrificing the defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the subjects of bargaining and barter."" The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had indeed incorporated it into the Sixth Amendment.12 While plea bargains originally were used as a practical compromise between an overburdened prosecutor and a defendant of certain guilt, modernday plea bargains resemble one-sided contracts of adhesion 3 favoring a prosecutor too often holding insufficient evidence14 gainst a criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being sentenced to purgatory under current sen- tencing guidelines." A rational defendant, particularly in federal court, cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking additional charges' 6 and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size of the financial loss without any requirement that the defendant be found to have intended the loss.' 7 On average, the defendant who turns down a plea offer and is later convicted receives a sentence three times longer than under a plea agreement." Combined with a growing list of vague and poorly drafted statutes defining various crimes, prosecutors can target individuals and coerce them into plea bargains by promising to drop charges against family members' 9 and freezing assets.20 By punishing the defendant with a sentence three times longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary" and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v. United States.2 ' While acknowledging the utility or impossibility of getting rid of plea bargains in the modem criminal justice system, this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors when coupled with incredibly long sentences for those who risk conviction at trial, especially in complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial legal system. First conceived as a convenient procedural tool of expediency, modem plea bargain practice has supplanted trials altogether, severely punishing those few who dare exercise their Sixth Amendment right to trial.2 2 This article proposes a practical solution, one borrowed from the business world, to restore parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in which the government has absolute, unfettered discretion to selectively punish anyone and every- one.23 Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize government power at the expense of individual rights.24 The government enjoyed immense discretion to apply vaguely-written laws to political opponents and other disfavored individuals. 25 Even today, countries such as Iran continue to exploit such prosecutorial mechanisms to suppress freedom of discourse.2 6 The sad irony is that, while the United States may have won the Cold War, its legal institutions have gravitated toward resembling the inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modem American society can possibly know all of his or her individual legal obligations. For example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print.27 With over 5,000 federal criminal laws on the books, one legal scholar has determined that the average person unknowingly commits three felonies every day. 28 Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers, among other white-collar professionals, often operate in perpetual fear of the regulation state. Should their behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of justice or conspiracy, to threaten in order to gain cooperation.2 9 Thus, under the current system of plea bargaining, the adversary legal system is being severely undermined and an innocent individual is sacrificed for the pretense of the public good and its insatiable need to regulate every aspect of individual life. As the hero in Arthur Koestler's Stalinist critique novel Darkness at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind."3 0Advantage 2 is Legitimacy Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. 11/21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.2 million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the 2nd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.Perception that court decisions are done through back room deals tanks legitimacy. Stephanos Bibas. 2006 Associate Professor, University of Iowa College of Law; Visiting Associate Professor, University of Chicago Law School; Professordesignate, University of Pennsylvania Law School; former Assistant U.S. Attorney, Criminal Division, U.S. Attorney's Office for the Southern District of New York. B.A., Columbia University; B.A. and M.A., University of Oxford; J.D., Yale Law School NEW YORK UNIVERSITY LAW REVIEW VOLUME 81 JUNE 2006 NUMBER 3 / SMToday, however, criminal justice is the province of professionals. A gulf divides the knowledgeable, powerful participants inside American criminal justice from the poorly informed, powerless people outside of it. The insiders-the judges, prosecutors, police, and defense counsel who regularly handle criminal cases-are professional repeat players who dominate criminal justice. They come to know the kinds of crimes, defendants, and sentences that dominate the justice system. They understand the intricate, technical rules that regulate arrests, searches and seizures, interrogations, discovery, evidence, and sentencing, as well as the going rates in plea bargaining. In short, they are knowledgeable. Insiders control the levers of power, deciding which cases to charge, which crimes and defendants should receive probation, and what prison sentences are appropriate. They reach many of these decisions in private negotiating rooms and conference calls; in-court proceedings are mere formalities that confirm these decisions. In an earlier era, lay juries and the litigants themselves called many of these shots at public trials. In a world in which plea bargaining resolves almost 95% of cases,1 however, professionals (especially lawyers) run the show. 1 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 426-27 tbl.5.24 (2004), available at http:// albany.edu/sourcebook/pdf/t524.pdf (reporting that in fiscal year 2003, 95.4% of criminal defendants in federal district court whose cases were not dismissed pleaded guilty or no-contest); id. at 450 tbl.5.46, available at t546.pdf (reporting that in 2000, 95% of state felony convictions resulted from guilty pleas). These figures exemplify a trend in recent decades away from trials and toward pleas. As recently as 1990, only 83.7% of federal criminal defendants whose cases were not dismissed pleaded guilty or no-contest. Id. at 423 tbl.5.22, available at sourcebook/pdf/t522.pdf (displaying increasing proportion of pleas and decreasing proportion of trials since 1970s); see also BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1994, at 486 tbl.5.49 (1995), available at (reporting that in 1992, 92% of state felony convictions resulted from guilty pleas). While not all guilty pleas result from plea bargains, most felony guilty pleas do. HERBERT S. MILLER ET AL., U.S. DEP'T Reprinted with Permission of New York University School of Law [Vol. 81:911 TRANSPARENCY IN CRIMINAL PROCEDURE Insiders also have a distinct set of incentives and practical concerns. While they may share the public's intuitions about justice and retribution, they also have self-interests in disposing of large caseloads quickly, reducing their own workloads, rewarding cooperative behavior, and ensuring certainty of conviction and sentence at the cost of severity. Dealing face-to-face with offenders, they may develop sympathy and see individualized mitigating and aggravating factors that the public does not. There is also some evidence that insiders mellow with time, perhaps because repeated exposure dulls outrage and makes some crimes seem less heinous.2 Outsiders, namely the general public and many victims, have a very different perspective. To them, the criminal justice system seems opaque, hidden behind closed doors, and cloaked in jargon, technicalities, and euphemism. Public information about criminal justice is notoriously inaccurate and outdated, derived from television and movies in which trials are worlds away from the reality of plea bargaining. Outsiders have few ways to learn about, let alone participate in, the progress of most pending cases unless a newspaper publishes a verdict or sentence after the fact. Instead of participating in jury trials, the public must rely on sensationalist and often distorted media accounts of atypical, high-profile cases, from which citizens overgeneralize about the system as a whole. Politicians seize on these salient examples to whip up popular outrage at what may be an aberration rather than a trend. Thus, surveys show that outsiders consistently underestimate the average nominal sentences for particular crimes and so believe they need to be stiffened. In addition, outsiders do not share insiders' agency costs, their aversion to risking acquittals, and their jadedness or mellowing over time.3 The result is an enduring tension between self-interested insiders and excluded outsiders. The insiders have firsthand knowledge and understanding, run the show, and accommodate their own pragmatic concerns and self-interests. The outsiders find criminal justice opaque, run by lawyers, and more concerned with efficiency and technicalities than with justice. This tension is far from an absolute dichotomy. Insiders bring their senses of justice to bear and not just their self-interests, and outsiders can at least dimly see some of the practical constraints on insiders. Moreover, outsiders are not by nature more harsh or punitive. When surveyed in the abstract, outsiders say they believe the OF JUSTICE, PLEA BARGAINING IN THE UNITED STATES 17 (1978) (basing this finding on field research). 2 See infra note 30 and accompanying text. 3 See infra Part I.C. Reprinted with Permission of New York University School of Law June 2006] NEW YORK UNIVERSITY LAW REVIEW criminal justice system is too lenient. But when confronted with detailed cases, the public is often no more punitive than insiders,4 apart from the jading or mellowing process mentioned earlier. On average, however, insiders are more concerned with and informed about practical constraints, and they are comfortable with the trade-offs and the system that they themselves run. Outsiders, knowing and caring less about practical obstacles and insiders' interests, focus on process values and offenders' just deserts. The gap in information, participation, and self-interests causes insiders' and outsiders' views to diverge. While victims and the public expect police and prosecutors to represent their interests in a sense, each group has a markedly different perspective. A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 1923 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan TextThe Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” 26 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."2 With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.2 " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. 2 History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.FrameworkRights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.182? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'85A focus on purely intent based frameworks crush our ability to respond to violence. McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo(Martha, “How the "Unintended Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi: dx.doi:10.15779/Z381664)By similarly making structures of inequality appear beyond the reach of law reform, the "unintended consequences" message helps update and reinforce the narrowing of protections against intentional racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and in what form and to whom. Power is centrally about being able to act without having to take harm to others into account. This power to gain by harming others is strongest when it operates through systems and structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the "unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice requires careful attention to both harmful intent and to complex harmful effects. But the concept of "unintended consequences" inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that message promotes the theme that those who have power to ignore their harmful effects on others need not-indeed should not-be induced by law to care about this harm, because this caring is what is harmful. One right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites should reject stories of "unintended consequences" and instead scrutinize the power and laws that have so effectively achieved the intention of making devastating losses to so many of us seem natural, inevitable, and beneficial.15 HW KK Neg DefenseCaseAbolition arguments are based on flawed “shadow-of-trial” efficiency theory Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Within the constraints of our current system, shadow-of-trial efficiency theory turns out to be an inappropriate measure even for maximizing deserved punishments among plea-bargained cases. The theory posits that expected trial and post-trial sentencing outcomes, accurately discounted to reflect uncertainty and adjudication costs, define efficient plea bargaining. But why 40 should the societal goal be to secure no more than the accurately discounted trial outcome? To maximize deserved punishments, we would prefer the highest deserved punishment the prosecutor could obtain on a plea, regardless of whether the defendant seems sensible in accepting the bargain. Suppose that the prosecutor in our hypothetical could secure plea bargains of fourteen years imprisonment from each defendant. The bargains might be inefficient in the sense that the defendants misjudged their chances of acquittal or their probable post-trial sentences. However, if the societal goal is to maximize deserved punishment, their blunder brings about positive results. The shadow-of-trial efficiency theory misleads us in evaluating plea bargaining. The theory implies that plea bargaining is socially valuable only to the extent that it reflects accurately discounted trial outcomes. However, Professors Schulhofer and Bibas have shown why plea bargaining generally does not produce such outcomes. Their critiques also reveal that it probably 41 never will, regardless of reformefforts. One could easily conclude from this 42 analysis that plea bargaining should be ended. Professor Schulhofer has 43 made this very argument. Even those who have used the shadow-of-trial 44 efficiency theory to defend bargaining have posited that there are “social losses” to inefficient bargains. However, because this efficiency standard 45 actually does not correspond to the social gains and losses associated with plea bargaining, we should not judge the validity of plea bargaining from our 46 failure to achieve it.Despite access barriers PB still in interest of all parties Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )This article defends plea bargaining and, more importantly, shows why shadow-of-trial efficiency theory fails to properly measure its effectiveness.22 The article demonstrates that trial outcomes accurately discounted for uncertainty and adjudication costs are not the appropriate standard of acceptable results from the perspectives of punishing crime or of treating criminal defendants fairly. In light of this conclusion, claims of structural or psychological impediments that interfere with accurate discounting have little relevance to whether to abolish or reform plea bargaining. While shadow-oftrial efficiency theory turns out to imply that plea bargaining is usually inefficient and, thus, highly problematic, this article contends that bargaining serves the interests of both society and criminal defendants.Bench Trials are an all around worse option Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )While Professor Schulhofer urged that the bench trials were usually genuinely adversarial contests in which some acquittals occurred, these points provide weak support for emulating this system. First, plea negotiations themselves are also often adversarial in important respects and often result in the dismissal of questionable charges. Second, Professor Schulhofer’s description of the average length of bench trials, see supra note 50 and accompanying text, demonstrates that bench trials were far more cursory than trials that afford constitutional protections for the defendant. Further, this system hardly honored more than plea-bargaining systems the notion embodied in our Constitution that juries are important, given that only six percent of the cases were resolved by jury trial. See supra note 49.Even if the penalty is harsher than average guilt means it’s still deserved Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )If the bargained sentence is higher than the accurately discounted trial outcome, the defendant still suffers no injustice as long as his sentence does not exceed what he deserves. The defendant simply does not receive the full value of the utilitarian benefits that he confers on the prosecution. However, a bargained sentence that is inefficiently high is not more coercive than an accurately discounted one. The inefficiency also does not mean that the sentence is undeserved. If the defendant receives less than full retribution, he deserves his punishment even if, on utilitarian grounds, one might have expected him to have gotten more value from his barter.149 The defendant who accepts a bargained sentence that is less than an accurately discounted trial outcome presents an especially odd claim of mistreatment. Under classical contract law, the inefficiency does not convert the bargain into a coerced transaction. The defendant only receives an 150 unusually good deal. He receives more than the utilitarian value of his relinquished entitlement. As for the fairness of the outcome, the sentence is far below what the defendant actually deserves. The unimportance of accuracy in the discounting process reveals why structural and psychological impediments to accurate discounting lack practical relevance to whether plea bargaining is fair to defendants who accept deals. Certain basic protections regarding the competence of defense counsel, the discovery of information from the government, and the 151 152 formal receipt of guilty pleas, help ensure that defendants who plead guilty 153 are not seriously duped about their choices. Nonetheless, the structural and psychological deficits noted by critics of plea bargaining surely do impede accurate discounting. These problems often cause trials. Not surprisingly, 154 shadow-of-trial efficiency theory implies that trials result from inefficient bargaining. Likewise, many inefficient deals are struck. The nature of the 155 most important problems that critics have identified suggests that deals tend to be inefficiently punitive rather than inefficiently lenient. Because the 156 efficiency of a bargain is not measurable, we cannot be sure, nor can we know how inaccurate the discounting. However, none of this matters as long as 157 it does not appear that defendants are accepting bargains that impose punishment in excess of the deserts limitation. Critics of bargaining offer no such contention.158CP Ceilings1CP Text: Criminal justice systems within the United States should adopt “Plea Based Ceilings” as per Covey.Contention 1: Theory 1. The CP is not plan inclusive- it doesn’t eliminate any form of plea bargaining, it sets up restrictions on how trial sentences relate to plea bargaining offers2. The CP Competes A. Mutually exclusive- you can’t both abolish plea bargains and reform how they work at the same timeSupreme Court of Illinois 58 (Bernard F. Jordan et al., Appellees, v. Metropolitan Sanitary District of Greater Chicago et al., Appellants No. 3473215 Ill. 2d 369; 155 N.E.2d 297; 1958 Ill. LEXIS 422 November 26, 1958, Filed)No person shall be deprived of life, liberty or property, without due process of law. Ill. Const. art. II.III, § 2; Fourteenth Amendment. However, before a person can properly invoke these clauses he must establish that he is within the ambit of their protection. Generally speaking, public employment does not create property rights subject to the protection of due process. The legislature, having created the office or public position, may alter its terms or abolish it entirely. Positions held under the civil service enactments of the legislature are in the nature of offices and the salary created is not property. The right of compensation arises from the rendition of services and not from a contractual relation.B. Net benefits- any elimination of bargaining links to the disad. A rational policy maker would never take that risk when the CP solves the case. Evaluate solvency through a lens of sufficiency- even if the aff solves better the CP is enough to solve the advantage 3. Interpretation: the aff gets 1 permutation and it must have a written text given to the negative prior to the 1ARA. Permutations are unique- they are functionally advocacies which makes the text uniquely important. A written text is key to prevent aff conditionality and 2AR pivots we can’t respond toB. Reciprocity- we get 1 CP they should get 1 perm. Multiple perms are bad for debate- the aff makes five 2-word arguments in 1 second- its not reasonable to tell us to “flow” because no human can actually record that. Writing it down is not an unjust burden on the aff so they have no offenseC. Pre-emptive theory is a voting issue: the aff is told in advance what they have to do to avoid violating, this makes it uniquely fair. Theory should be evaluated through a lens of competing interpretations- the aff has to win offense for why the need multiple vague perms Contention 2: Solvency The CP solves the case and avoids the disads-PBC’s limit prosecutorial discretion and encourage transparency and equity in plea offers. Aff indicts assume a “fixed discount” system which is the opposite of what the CP does Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )In a standard fixed-discount system, like that incorporated into the Guidelines, the discount for guilty pleas is supposed to be invariable.' 8 But the prosecutor's ability to make near-binding sentencing recommendations and to engage in charge, fact, and cooperation bargaining render actual discounts potentially much greater and substantially more variable.' 9 This variability of course undermines the very purpose of fixed discounts, creating disparity among similarly situated defendants and destabilizing the incentives of innocent defendants to contest charges and of prosecutors to screen out low-probability conviction cases. Because charge and fact bargaining in particular are tactics deployed largely below judges' "radar screens," as long as prosecutors can use these tactics to increase discount size, there is little hope that a workable fixed-discount regime can be implemented. Plea-based ceilings, however, offer a solution to this enforcement problem by limiting prosecutors' ability to offer such inducements. A. How They Work The idea underlying plea-based ceilings is straightforward. Pleabased ceilings guarantee defendants that they will not receive a sentence following a trial conviction that is more severe than any plea offer made to them, adjusted upward by the appropriate fixed discount. To illustrate how this might function in practice, imagine a defendant charged with bank robbery. Say that the defendant's criminal history and the facts of the crime would normally result in a ten-year trial sentence and that the jurisdiction adopted a fixed discount of 33%. During bargaining, prosecutors offer the defendant a five-year deal.' ° With ceilings, the defendant could accept the offer or proceed to trial when, if convicted, he would face a maximum sentence capped by the plea-based ceiling at 7.5 years-that is, the same five-year sentence he would have received had he accepted the plea offer, adjusted upward to reflect the absence of the fixed discount.'51 The plea-based ceiling, in other words, mimics what conventional fixed discounts do (had he pled guilty, he would have received a 33% discount), except it works backwards. As a result, in a ceiling system, the defendant would know exactly what he risked in declining the plea offer, permitting him to calibrate more carefully his decision of whether to risk trial. Like fixed discounts in general, plea-based ceilings would dramatically curtail prosecutors' ability to induce defendants in weak cases to plead guilty. As noted above, because the prosecutor is bound by whatever plea offer she makes, it is very hard for her to make an offer that is sufficiently lenient to induce a defendant in a weak case to plead guilty.'52 If the prosecutor has a 10% chance of convicting the defendant on a charge that carries a ten-year term, her offer of six months might look good in a world without ceilings, but if the sixmonth offer creates a nine-month ceiling on the sentence the defendant could receive upon conviction at trial, then the inducement to plead guilty disappears. The defendant is markedly better off declining the plea offer and holding out for a trial. Although the defendant's initial ETS was one year, the defendant's ceiling-adjusted ETS falls to a mere 0.9 months, or roughly three days, after the plea offer.'53 Rational defendants should be willing to go to trial under these changed conditions. As a result, plea-based ceilings eliminate the power of lenient plea offers to induce guilty pleas in weak cases. The same is not true, however, in strong cases. Consider a defendant with an 80% POC. In that case, if the prosecutor offered the defendant the same five-year deal and the defendant rejected the offer, the maximum trial sentence would still be 7.5 years, and with an 80% POC, the defendant would have a substantially higher ETS of six years. This defendant would be better off (although only marginally) taking the plea offer than going to trial. A defendant who calculated the odds of conviction at near-certain (99%), would have an even stronger incentive to take the plea offer, since his ETS of 7.42 years exceeds the plea offer by nearly 50%. These discounts might well be large enough to induce defendants to plead guilty. Where the probability of conviction is high, experience indicates that defendants do accept plea bargains, even if the offered concessions are minor.'54 A jurisdiction that implemented a ceiling system would of course first need to determine an appropriate "plea discount.""'5 This itself might prove politically difficult.' To achieve a sufficiently high guilty-plea rate, the discount might have to be set much higher than 33%. As the data presented in Part II shows, the typical differential may exceed 100%, and discounts fixed below that range might (indeed, should) generate lower guilty-plea rates and higher trial rates.'57 Jurisdictions would then face the difficult situation of responding to increased trial demands or frankly acknowledging the existence of an embarrassingly high plea discount. Ideally, a compromise might be struck that reduces the differential below its current high rate, while making accommodation for a marginally lower guilty-plea rate.' 8 Because the point at which it is rational for a defendant to plead guilty is a strict function of the size of the posttrial penalty, considerations regarding the kinds of cases that should not settle should govern the size of the discount. If the trial penalty is fixed at 50% (comparable to a 33% plea discount), then the only cases in which accepting the plea offer is the rational strategy are cases in which the defendant will be convicted at least two out of three times (i.e., POC is 0.667 or greater).'5 9 If the trial penalty were increased to 100%, then defendants would be better off pleading guilty rather than going to trial in all cases where the POC was at least 0.50.' 60 With a 100% trial tax, the 80% POC defendant offered a five-year plea deal would have a sizeable incentive to take the deal, because his ETS otherwise is eight years. Ideally, the plea discount should not exceed the point at which prosecutors can induce guilty pleas in cases in which it is more likely than not that the defendant will be acquitted at trial.'6' Precluding guilty pleas in cases where the POC falls below 50% is consistent with prosecutorial guidelines that suggest that prosecuting such cases is unethical.'62 As noted above, the size of the plea discount will predictably determine the number and types of cases resolved through plea bargaining. As such, it will have important effects on both the mix of cases that go to trial and on prosecutorial screening decisions. In addition to setting the discount size, the jurisdiction would also need to ensure that prosecutors memorialize the plea-bargain terms in writing and present them in a way that provides defendants with an adequate opportunity to accept or reject them. The memorialization requirement is necessary to ensure that judges have a clear record to calculate the plea-ceiling sentence. Written plea agreements are also wise because they facilitate enforcement of any disputed terms, regardless of whether the sentence is imposed immediately on the basis of the plea bargain or after a trial, a point which federal policymakers at the DOJ have long recognized.'63 Written plea offers must include all terms. There can be no "secret deals," and prosecutors cannot make a plea offer available only if the defendant agrees first to accept it. 6 " Defendants must remain free to decline plea offers until formal acceptance of the plea. Prosecutors should not be permitted to make the extension of a plea offer contingent on its acceptance. If prosecutors are able to do so, plea ceilings will not work. Finally, ceiling jurisdictions would have to ensure that written plea offers are admissible at sentencing.16The CP avoids circumvention- by creating clear, enforceable requirements it better alters prosecutor behavior than bans Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )Although plea-based ceilings promise many of the benefits that conventional fixed discounts offer, there are important differences. First, plea-based ceilings would be not only far easier for judges to monitor and to enforce but also harder for prosecutors to evade through charge or fact bargaining than conventional fixed discounts. Second, unlike conventional fixed discounts, plea-based ceilings would not circumscribe sentencing discretion by limiting the scope of practical outcomes that can be achieved through plea bargaining. Pleabased ceilings would preserve the flexibility of prosecutors and, to a lesser extent, judges to take a wide range of relevant factors into account in determining the ultimate sentence.' 66 Plea-bargaining reforms that rely on fixed discounts or partial bans require careful judicial scrutiny of prosecutorial decision making to be effective.'67 As noted above, however, such scrutiny is not realistic.'68 Judges are not institutionally suited to evaluate plea bargains to determine whether any particular plea agreement provides the defendant with an overlarge discount from the expected trial sentence. Plea-based ceilings avoid these problems. Judicial oversight is simple in a plea-based ceiling system because ceilings focus judicial attention on hard facts. Upon presentation of a written plea offer at the sentencing hearing, judges would merely need to ensure that the trial sentence did not exceed the plea-offer sentence by more than the fixed discount. Because sentences are capped by the written plea terms offered by prosecutors, judges would not need to speculate about what charges the prosecutor might have brought or what facts the prosecutor might have alleged to determine whether the disparity between the plea-bargained sentence and the trial sentence was excessive. 9 Instead, the judge would only need to review the set of charges and the factual allegations underlying them that the prosecutor would have accepted to dispose of the case, determine what sentencing exposure that package entailed, and ensure that the sentence imposed does not exceed that amount by more than the ceiling permits.'7 ° That type of review falls well within the traditional scope of judicial competence. Not only would judges be able to enforce ceilings easily, prosecutors would have more difficulty evading the plea-based ceilings because they are keyed off the end product that the prosecutor most desires: the plea agreement itself. Prosecutors could not get plea agreements without first making (or acquiescing to) plea offers. With plea-based ceilings, prosecutors with weak cases could not induce defendants to plead guilty by making an excessively large plea offer because the same lenient plea offer would also protect the defendant from receiving a substantially harsher penalty after trial. 17 ' Regardless of whether the prosecutor sought to induce the plea through an overlarge sentence discount or by dismissing charges carrying overly large upward-sentencing exposure, barring imposition at trial of any sentence higher than the plea offer, adjusted upward to reflect the absence of a plea discount, would enforce the fixed discount. As a result, charge concessions would provide prosecutors no more bargaining leverage than sentence concessions. Obviously, plea-based ceilings would have a dramatic impact on the kinds of plea offers a prosecutor would be willing to make in the first instance. In a plea-based ceiling system, the prosecutor could not make extremely lenient plea offers in order to induce a guilty plea because this would simultaneously reduce the defendant's incentive to avoid trial without changing the likelihood of conviction. Because a lenient offer would not result in a plea agreement, the prosecutor will be far less likely to make such an offer, unless she believed it represented a substantively fair outcome.DA Budgets/Growth2A. Uniqueness- states are adopting cautious budgets nowReuters 12-14-17 YORK, Dec 14 (Reuters) - “Cautious” U.S. state budgets enacted for fiscal year 2018 reflect the limitations states faced from two consecutive years of slow revenue growth as well as spending pressure for pensions and healthcare, according to a report released on Thursday. The report from the National Association of State Budget Officers, which details data collected from all 50 states, shows state general fund spending for enacted fiscal 2018 budgets is expected to grow 2.3 percent from fiscal 2017 - the slowest growth rate since fiscal 2010. SPONSORED State general funds are used by most states to draw expenditures and appropriations for services. For fiscal 2018, general fund appropriations ticked up $12.7 billion across program areas, compared with increases totaling $25.8 billion enacted last year. General fund revenues are expected to increase “moderately” at 4 percent in fiscal 2018 from fiscal 2017, the report said. Nearly a quarter of the revenue growth is due to revenue measures, including tax and fee increases, that legislatures enacted in their last legislative session.B. Links 1. Budget Pressure- Abolishing PB upends the entire CJS and introduces massive costs- pressure results in circumvention and WORSE outcomes flipping the case Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Attempting to eliminate plea bargaining would involve costly trade-offs. The previous section assumed a system that would exchange guilty pleas for trials by not proceeding against many defendants who had previously been legitimately charged with crime or by not charging many who should be charged. To attempt to abolish plea bargaining in any other way would require changes in the constraints noted at the outset of this part — the amount of behavior defined as crime, the amount of public resources devoted to fighting crime, and the basic approach to criminal trials. Moreover, bargaining is so central to the current system of adjudicating crime that abolishing it would necessitate extraordinary changes. Some commentators have suggested that abolition could be achieved without major costs, but their proposals are illusory. For example, based on a study of Philadelphia courts, one leading critic of plea bargaining contended that short bench trials could almost entirely replace plea bargains as the secondary means for resolving criminal cases. According to the study itself, 48 this conclusion was probably too optimistic. Nearly half of the cases in the Philadelphia courts ended with a guilty plea based on either explicit concessions from the prosecutor or implicit concessions from the judge.49 Also, the trade-off of guilty pleas for bench trials was arguably only a triumph of form over substance. The bench trials were extremely short — generally only a few minutes longer than a guilty plea — and judges richly rewarded 50 jury waivers through sentencing concessions. The Philadelphia system could 51 be viewed as merely an effort by judges to reward jury waivers and to allow for the correction of prosecutorial overcharging where the prosecutor, for reasons particular to that city, did not provide these functions through bargaining. The system did not eliminate bargaining for actual guilty pleas 52 53 and, to the extent that it reduced such bargaining, arguably only substituted an essentially equivalent method for extending leniency to reward purely strategic behavior by defendants.54 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 prosecutor, Harry Connick. This study showed that Connick had 55 greatly reduced the number of plea bargains offered by his office through a plan of intensive screening at the charging stage. The New Orleans District 56 Attorney’s office rejected many charges that prosecutors 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 57 reduce the need to dismiss questionable charges later. Due to the difficulty of accurately assessing cases, however, attempts at tough screening may allow a large percentage of questionable cases to go forward while also foreclosing many other legitimate charges. This approach may also have little influence on bargaining. The New Orleans District Attorney’s office “reject[ed] for prosecution . . . 52% of all cases and 63% of all charges.” Nonetheless, the 59 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, and some additional bargaining seemed 60 to occur in the form of failures by the prosecution to pursue enhanced penalties under habitual felon statutes. Much more significantly, overt 61 sentence bargaining continued in almost all cases between judges and defense lawyers, a practice historically deemed problematic even by proponents of 62 plea bargaining. In the end, the study failed to show that plea bargaining is 63 eradicable through tough screening practices. Instead, it raised the question 64 whether tough screening forecloses too many valid prosecutions 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 repeatedly 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. More often, they have resulted 66 from the order of the chief prosecutor, such as with the ban imposed by the Alaska Attorney General in 1975. Most have occurred in rural areas with a 67 low volume of criminal prosecutions, although the prosecutor in El Paso, Texas, also attempted to impose such a ban in 1975. Almost all have been 68 limited in major ways, such as to prosecutors alone or to certain stages of the adjudication process or to certain types of crimes. In each case, either the 69 bargaining shifted to other stages in the adjudication process, the provision 70 of bargains merely shifted from prosecutors to judges, or prosecutors 71 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 One leading critic of plea bargaining, Professor John Langbein, has openly confronted the unavoidable trade-offs required to try to eliminate it. He argued in the late 1970s that the United States should emulate the West German system of criminal justice. According to the argument, the West 75 Germans had avoided bargaining by resolving every case through a rapid, nonadversarial trial. This contention later appeared to be inaccurate. Plea 76 77 bargaining reportedly emerged in the West German system in the 1970s and has gained popularity there since that time. In any event, the argument 78 reveals the kind of sacrifice required to try to end the practice. To adopt the German system would eviscerate not only plea bargaining but our basic approach to criminal trials, which the Constitution guarantees to criminal defendants.792. Reverse Goldilocks- the plan won’t reduce bargaining but will collapse budgets and legitimacyHowe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The argument against fundamental systemic change to try to eliminate plea bargaining rests largely on the uncertain, although clearly substantial, costs involved. If jury trials produce results that we like, while plea bargaining produces results that we do not, we may prefer jury trials although they are more expensive. However, achieving a balance between results and costs is preferable where the cost of perfection is exorbitant. The argument for plea bargaining reflects this perspective. The costs of eliminating bargaining, although difficult to quantify, are plausibly thought to far outweigh the costs of leniency in punishment that result from continuing to allow it. The perceived imbalance in costs surely helps explain the lack of truly successful efforts in recent decades to end bargaining.80 All of the options for eliminating plea bargaining are infeasible in practice. Amending the Constitution to entitle criminal defendants to only short, nonadversarial, non-jury trials is too controversial itself to serve as a remedy for leniency in bargaining. The negative consequences associated with this 81 alternative begin with its tendency to promote erroneous trial convictions.82 The notion of decriminalizing a large portion of the behavior currently deemed criminal is at least equally extreme. At best, legislatures might marginally stem the continuing expansion in the use of the criminal sanction. The only 83 remaining option focuses on money, and the increases would have to be enormous. Current police, court, and corrections budgets would have to increase at least several times over. As for the practicalities of this latter 84 approach, the only uncertainty is whether it is significantly less implausible than the other two potential remedies. A large infusion of resources also might not eliminate plea bargaining. The scarcity of resources is not the only driving force behind bargaining, although resource scarcity helps fuel the practice. The key players involved — prosecutors, judges, defense lawyers, and defendants — have incentives to bargain merely because pleas are so much cheaper and easier than trials, and because litigation is fraught with uncertainty. A substantial cost differential 85 between pleas and trials would remain even if there were more resources available for adjudication. Likewise, the uncertainty of litigation would 86 remain. Therefore, the parties would often still want to bargain. Bans might temporarily help deter the practice. However, given the continuing incentives to deal, the parties would likely turn to subterfuges that produced the equivalent of plea bargains.87 Shadow-of-trial efficiency theory does not help decide whether to abolish bargaining. The arguments offered here against such efforts do not build on that theory. Likewise, nothing about that theory undermines these arguments. The shadow-of-trial efficiency theory in no way relates to this larger question because it assumes that the adjudication costs of trials are appropriately traded for leniency in sentencing. Based on that assumption, the theory focuses on 88 the degree of sentencing discount that will produce a purportedly “efficient” bargain. The theory does not address whether bargains should always be disallowed to try to ensure that every criminal defendant receives his maximum deserved punishment. This part of the article has argued against such a trade-off, but its larger point is that shadow-of-trial efficiency theory does not help resolve this question.C. Impacts 1. Depleted state budgets slow economic growth and ensure pension crisisDonlan 17 [Thomas G. Donlan, editor at Barron’s, “There’s a Hole in State Pensions,” Feb 11, 2017, ]Turn away from the lurid deficit spectacles in Washington to examine the declining state of the states. In the eighth year of economic recovery, 23 states are still deep in the financial holes they dug for themselves. Economic growth and tax-revenue growth are slowing. Revenue growth from sales taxes—which are most sensitive to changing economic conditions—have slowed the most, according to the National Association of State Budget Officers. The executive director of that organization explains and complains that online sales across state lines—more popular every year—are often not taxed. Every state has a different tax system, a different tax base, and a different political inclination toward taxes and spending. But slow growth in tax revenue in general has placed many under serious fiscal pressure. In a report on states’ fiscal health issued on Feb. 2, the Pew Charitable Trusts said that after adjusting for inflation, 23 states still have lower tax revenue than they did before the most recent recession, and 18 states have lower employment than they did in 2007. Only 19 states have the kind of fiscal cushion—rainy-day funds and general fund surpluses—that they had in 2007. Analysts at Pew and other watchdog groups are warning that the states are clearly not ready for another recession. MultiState Associates, a consulting firm, estimates 31 state legislatures will have revenue shortfalls to deal with before their next budgets go into effect. The Cavalry Isn’t Coming The states may wish to call Washington for help, but Congress and the White House are busy with their own fiscal quandaries. Newly empowered Republicans want to cut taxes, increase defense and infrastructure spending, and repeal Obamacare to replace it with something better—just to mention a few expensive proposals that nearly all Republicans agree on. All this and more, despite a $559 billion deficit projected for fiscal 2017. There’s no room for helping out the states, and plenty of reasons to say the states are getting more than enough help already. The federal government provides nearly a third of the states’ total revenues, but the federal hand is far more important than direct grants, which totaled $589 billion in 2014. The same year, the federal government paid out $1.1 trillion in retirement benefits and $895 billion in other benefits, chiefly medical, for individuals located in the 50 states. The U.S. government paid its own military and civilian employees $305 billion, and it paid $356 billion on federal contracts. Nearly all of that federal spending is subject to income tax in states that have income taxes, and the recipients use federal money to buy things, generating revenue for states that have sales taxes. Pension Panic Beyond the unfortunate short-term dependence of many states on money that falls from the federal heavens, there are the unfortunate longer-term policies of their own that have put many states in fiscal trouble. Chief among these is the growing crisis in state and municipal pension funds. Importantly, the condition of state and local pensions is worse than officially reported. Pension boards, their advisors, and their actuaries have been using unrealistic estimates of their investment returns that are left over from the years of higher inflation that ended in the 1990s. The National Association of State Retirement Administrators surveyed 132 big government pension plans last year and found the average estimate of future annual investment returns—the discount rate—to be 7.6%. Hard-nosed reformers say they should be using a Treasury rate around 3%, but only seven of the funds in the survey were using discount rates below 7%. The difference is powerful: The funds pretend their investments are strong and that they are a mere $1 trillion short of what they will need to pay benefits that workers have already earned. Cutting the 7.6% investment estimate back to 3% turns the $1 trillion deficit into a $3 trillion hole. Officials around the country are loath to acknowledge the mismatch, and government plans aren’t covered by federal pension law that would make them fess up. Pension officials can use whatever discount rate suits their needs. Excuses abound: Governments don’t go out of business; they have taxing power; they can hold on for a long time before wolves chew their way through the door. This is the Micawber theory of management. Wilkins Micawber, a colorful character in Charles Dickens’ David Copperfield, is a grandiose optimist always flirting with poverty, whose financial maxim is “Something will turn up.” Like the author’s father, he spends some time in debtors’ prison. But, being a charming Dickensian character, something does turn up for him eventually. Actuaries should not be so sanguine, but many know about getting by going along. They want to keep their jobs. The Montana pension systems spoke loudly in 2009 when they were looking for new actuaries. The invitation to actuaries said that a firm arguing for tougher standards “may be disqualified from further consideration.”2. Slow growth makes war more likely – drives tensions and hyper-nationalism Landsay 17 Jonathan Landay, National Security Correspondent at Thomson Reuters. U.S. intelligence study warns of growing conflict risk report also said that while globalization and technological advances had “enriched the richest” and raised billions from poverty, they had also “hollowed out” Western middle classes and ignited backlashes against globalization. Those trends have been compounded by the largest migrant flows in seven decades, which are stoking “nativist, anti-elite impulses.” “Slow growth plus technology-induced disruptions in job markets will threaten poverty reduction and drive tensions within countries in the years to come, fueling the very nationalism that contributes to tension between counties,” it said. 3. Slow growth collapses hegemony – the impact is nuclear war Goure 13 Dr. Daniel Goure is a Vice President with the Lexington Institute, a nonprofit public-policy research organization headquartered in Arlington, Virginia. He is involved in a wide range of issues as part of the institute’s national security program. “How U.S. Military Power Holds the World Together” Nations, like nature, abhor a vacuum. It must be filled. How it is filled, by whom and with what are the challenging questions. Unlike nature, which seeks to fill a vacuum with whatever is handy and can be stuffed or sucked into the space available, nations rely on power, relationships and institutions to fill vacuums that arise in the international system. Political vacuums can readily be filled by raw power and the domination of the strong over the weak. Or they can be filled by the rule of law and a community of nations. Twice in the last 60-plus years the United States chose to fill the vacuum caused by the collapse of old institutions, relationships, and power centers. After World War II, along with key allies, the U.S. created an entirely new international order with a set of democratic institutions and international agreements that have endured to this day. America, again in concert with many allies, also built a security apparatus and military machine of global reach and power unlike any seen in peacetime. When the Soviet Union collapsed, the United States did not simply declare victory and go home. Rather, even while reducing the size of its military, America chose to remain in the world, forward deployed, and committed to maintaining and even expanding long-established alliances and security relationships. As a result, the world was able to weather difficult and dangerous transitions and create or maintain a viable international system. In both cases, nations, including America’s former adversaries, had the opportunity to become part of that system and to flourish. An Increased Role and Decreased Size Ironically, the role of the United States military in maintaining the global order increased with the end of the Cold War. From 1945 to the collapse of the Soviet Union there were between 40 and 50 significant instances of the use of U.S. armed forces abroad. From 1991 to the present, that number nearly tripled to between 100 and 135. These figures do not include several hundred humanitarian operations, support for civil authorities after natural disasters, or the myriad of routine deployments for training purposes or to build partnership capacity. Add these other actions to the total and the activity level for the U.S. military went up by a factor of four after 1991. At the same time, in the 1990s, the size of the U.S. military was reduced by half. With an activity level that increased four-fold and a force reduced by half, the resulting “use rate” or “stress level” on the military increased eight-fold. Two things saved the military from collapse in this period. The first was the overhang of military procurements that had taken place during the Reagan-Bush era. The military has lived off this investment for more than twenty years. The second was selective hollowing in which the services deliberately chose to reduce spending on maintenance and upgrades. For the Army alone this amounted to some $50 billion in the years prior to September 11, 2001. Now again, the prospect of a vacuum in the international order is emerging. Unlike the previous two, this one is not the result of a war or the collapse of erstwhile major powers. Rather, it is the consequence of a gradual diminution of the power and will of those that created the current international system to sustain it. Repeated economic crises, chronic slow growth at home, and the growing burden of social welfare programs have brought most Western counties to the point of military near-irrelevance. The last time U.S. allies “walked away” from the challenge of filling the global space, the United States took up the burden. The Need for Modernization Today, facing some of the same challenges at home as its allies and, simply put, being somewhat tired of carrying the burden, America is also considering a less central role in world affairs. It is not just that the U.S. defense budget is being reduced; it is being gutted. As every senior defense official and an endless parade of academics and experts has testified and written, the current plan to cut $1 trillion from defense spending over the next decade will be devastating to the U.S. military. Moreover, this is not the same military that existed at the end of the Cold War. It doesn’t have the legacy of the Reagan-Bush buildup on which to rely. It is emerging from a decade of conflict that has worn it out. There are new threats, such as the Russian sale of advanced air defense systems to Syria, which must be countered if the U.S. military is to have any future. It is also badly in need of modernization. The reason the United States requires a new strategic bomber to replace the fifty-year-old B-52 and F-22s and F-35s rather than F-15s and F-16s is because the threat is changing and it chooses not to send U.S. airmen into combat with less capable systems. The growing threat from ballistic missiles, including some armed with nuclear weapons, requires advanced missile defenses such as the Aegis BMDS and National Missile Defense system. It is also a power projection military, which must come from the homeland. This means airlift, aerial refueling, sealift, and a Navy with advanced nuclear attack submarines, aircraft carriers, and surface ships to ensure control of the oceans over which American forces must travel. The Call for Cuts The military also faces an internal cost problem. Overhead, administrative and personnel costs have grown to an unsustainable level. A full quarter of all defense spending is to cover administrative costs, a figure which no private enterprise would tolerate. Another 20 percent is a “tax” on all purchases due to government regulations and unique requirements. Given current budget projections, and recent growth rates for medical care, retirement and personnel, within a decade or so there will be no money left in the defense budget for new equipment. The defense of the United States is in danger of being crushed between the jaws of decreased budgets and increased indirect costs. An even greater challenge is political, or perhaps philosophical. The 65-year-old consensus on the role of this country’s military as the central pillar of security for Western civilization and a force for global stability is over. Elements on both ends of the political spectrum have been campaigning for years for a reduced vision of America’s role in the world and a correspondingly large retrenchment in our security commitments. A few years ago, former Congressmen Ron Paul and Barney Frank, two men who could not be more diametrically opposite politically, sponsored a study of American security that proposed in essence, that this country come home and in doing so, reduce its defense burden by nearly half. Now, what was once an extreme position has taken hold of the entire American political system. The desire to win on issues such as reducing the size of the federal government or increasing federal revenues has become so all-consuming that virtually no one is paying attention to the consequences of these absolute positions for the nation’s security. Congress as a whole has responded to warnings of the dire impacts of sequestration on the military with supreme indifference. Even centrists in both political parties are calling for America to reduce its overseas burden, stop acting as a “global cop,” and cut the size and cost of its military. The Centrality of U.S. Power There are three fundamental problems with the argument in favor of abandoning America’s security role in the world. The first problem is that the United States cannot withdraw without sucking the air out of the system. U.S. power and presence have been the central structural feature that holds the present international order together. It flavors the very air that fills the sphere that is the international system. Whether it is the size of the U.S. economy, its capacity for innovation, the role of the dollar as the world’s reserve currency or the contribution of U.S. military power to the stability and peace of the global commons, the present world order has “Made in the USA” written all over it. The international system is not a game of Jenga where the worst thing that can happen is that one’s tower collapses. Start taking away the fundamental building blocks of the international order, particularly American military power, and the results are all but certain to be major instability, increased conflict rates, rapid proliferation of nuclear weapons, economic dislocation and, ultimately, serious and growing threats to security at home. The second problem is the presumption that the country’s global security posture was created and maintained to serve others. In reality, the United States built a global security architecture and the world’s best military because it served our interests. Our network of security ties and treaties, most notably NATO, were instituted to serve a number of functions: prevent another war among the Western powers, deter the Soviet Union and its allies, and ensure that the major economic regions remain free and that global trade flowed. In the 1970s, based on the experience of the oil embargo, the U.S. focused more on the security of the Persian Gulf because of the growing importance of Middle East oil to the national economy and that of the entire industrialized world. While the Soviet Union is no more, the essential self-interestedness of America’s military role in the world remains. Any oil expert would say that even though the U.S. is less dependent than a decade ago on foreign oil, a cutoff of the flow from the Middle East would cause oil prices to go through the ceiling. A war across the Taiwan Straits or between the two Koreas will cost us hundreds of billions in lost trade and investment income, not to mention that it would cut off most of the world’s supply of computer chips and consumer electronics. The world’s economy and America’s well being depend on the independence of a relative handful of nations, most of whom are allies. The third problem with the case for abandoning America’s role as the security linchpin of a democratic world order and an international free trade system is simply this: while this country can run, it cannot hide. The U.S. is still the largest economy—at worst it will be number two behind China some day. America’s major companies are global, have hundreds of billions of dollars invested overseas, and millions of citizens working or traveling abroad. American culture permeates—foreign extremists would say pollutes—the world. To truly avoid international entanglements this nation would have to behave like a cloistered monk with vows of poverty and silence. Too Late to Hide Even if America runs, as the far left and right propose, it is too late to hide. Those who choose to be enemies can come after the United States. This is the lesson of 9-11. It also is the message that North Korea sent with its latest tests of a nuclear weapon and long-range ballistic missile. China, one of America’s largest trading partners and the holder of a trillion dollars in U.S. debt, is conducting a massive and continuous cyber assault on the nation’s private companies, infrastructure, and military facilities. To what mountaintop can America withdraw, how small must it become, and how meekly will it have to behave in order to ensure its security? The irony is that the cost of the U.S. military had for decades represented a small and declining percentage of both overall GDP and total federal spending. Today, defense spending is about 4 percent of GDP and less than 20 percent of federal spending. For this relatively small sum the U.S. had to deter major wars—including nuclear attacks on the homeland—contain innumerable local conflicts, create an environment in which a community of democratic nations emerged, grown, and flourished, and secured literally trillions of dollars of overseas investments, trade flows, and natural resources. It is a tragedy of epic proportions that all this should be put at risk. 4. Turns Case-This collapses the entire justice system Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )As one set of commentators rather blandly observed, "[tihe practice of exchanging punishment discounts for waivers of process is widespread." Nancy J. King et al., Wen Process Affects Punishment. Differences in Sentences After Guilty Plea, Bench Thal, and Jury Trial in Five Guidelines States, 105 COLUM. L. REV. 959, 962 (2005). Nationwide data shows that guilty-plea sentences are the least punitive and jury trial sentences the most punitive. Id at 962-63. Or, as William Stuntz and Dean Scott more colorfully put it: "plea bargaining is ... not some adjunct to the criminal justice system; it is the criminal justice system." Robert E. Scott & William J. Stuntz, Plea Bargaining as Contact, 101 YALE L.J. 1909, 1912 (1992). Without plea bargaining, the number of cases resolved through guilty pleas almost certainly would plummet, potentially resulting in system-wide gridlock. See Susan R. Klein, Enhancing the Judicial Role in Ciminal Plea and Sentence Bargaining, 84 TEX. L. REv. 2023, 2023 (2006) ("[T]he American criminal justice system, like the civil system, would collapse if even a small percentage of suspects... demanded trials.").16 Carmel RA Aff Foucault LegalismBy analyzing relations of power we can discover what makes some dominant. Ethics and history have continued to make the mistake of accepting moral laws at face value, while failing to recognize the role of power in producing often violent regimes of truth—this comes first because allows us to understand meaning of rules or norms which are never binding.Foucault 2 explains, “Emergence is thus ANDof historical process.”The role of the ballot is to endorse the debater who best exposes the inner workings of power of law and race as a dominating mode of thought– this is best for intellectualsBrent Steele (Associate Professor of Political Science at the University of Kansas), Defacing Power: The Aesthetics of Insecurity in Global Politics pg 130-132, dml) gender/ableist language modified with brackets When facing these ANDfor human habitation” (1964 2006: 233).The legal system is subject to racial discrimination and inconsistency in sentencing. Tearing it apart is key to dissolving violence and oppression.Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School (Robert, Adversarial Legalism: The American Way of Law, pg. 67), “LJH”Had Warren McCleskey ANDfor similar offenses (Levin, 1972; Eisenstein et al., 1988).Plea bargaining is a central aspect of our legal system. Vote aff as an acknowledgment of the end of plea bargaining, and as an effect, legalistic approaches to problems.Mary Patrice Brown; Stevan E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 Am. Crim. L. Rev. 1063 (2006)When the editorsANDcriminal justice system.Plea bargaining is a representation of everything wrong with the legal system, and therefore is the best site to start contesting legal representations. I advocate plea bargaining as the specific site for revealing the inadequacies and incoherencies of dominant legal narratives. No diagnosis of the ills of the legal system would be complete without an understanding of how plea bargaining functions within it, and how it holds the structure together. Savitsky, Douglas. “The problem with plea bargaining: differential subjective decision making as an engine of racial disparity in the United States prison system.” Cornell University, 2009.To conclude thisANDon future defendants.Only blanket rejection of the law addresses its inherent inequalities. To vote for the aff is to disrupt the habit – your ballot should critically interrogate legal structures.Knox 12 – PhD Candidate, London School of Economics and Political Science (Robert, paper presented at the Fourth Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law and the Towards a Radical International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and Tactics, , 06/26/15) JGWhat, in this ANDWe are Strategists?Only a complete rejection of the legal system can liberate law from its self-referential ordering, allowing us to better analyze, describe, and utilize law’s sociology to line up with empirical realities. Law operates as a domination of all social beings, and the aff ruptures that view.Walby ‘7 (Kevin Walby, Associate Professor and Chancellor’s Research Chair in the Department of Criminal Justice at University of Winnipeg, “Contributions to a Post-Sovereigntist Understanding of Law: Foucault, Law as Governance, and Legal Pluralism,” SOIAL and LEGAL STUDIES SAGE Publications, Vol. 16(4), 551–571, 12/1/7, ) LADIDSA number of ANDin the everyday.Breaking out of the routine is key.Schlag 90 (Pierre, Professor of Law, University of Colorado, “NORMATIVE AND NOWHERE TO GO”, Stanford Law Review (November 1990), )If there's no ANDdisenchantment process along.Legislative solutions just mask social issues and enable victim-blamingDelgado 91 (Richard, Charles Inglis Thomson Professor of Law, University of Colorado. J.D. 1974, University of California, Berkeley (Boalt Hall), "Norms and Normal Science: Toward a Critique of Normativity in Legal Thought”, University of Pennsylvania Law Review (1991), pp. 933-962, Accessed 7/7/15)LDOrdinary life is ANDthe next section.Legalistic solutions fail to address racial inequality and reify cruel optimism Sarat et al 05 (Austin, William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College in Amherst, Massachusetts. He is also a Five College Fortieth Anniversary Professor) (Lawrence, the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College in Amherst, Massachusetts) (Martha, Professor from Amherst College) “The Limits of Law: A Case of Reparations,” Stanford University Press, 2005 DRDThe legal path ANDlast four decades. This legitimizes structures of colonialism: injustice, racism, and dehumanization.West 11 West, Robin L, Georgetown University Law Center "Tragic Rights: The Rights Critique in the Age of Obama." Wm. and Mary L. Rev. 53 (2011): 713.Rights harm usANDshort: rights alienate. Normative jurisprudence is locked in a dialectic with violence—it relies on and feeds into the perpetuation of violent disorder and lawfare, the use of legal instruments to legitimate coercion—outweighs since it erases the ability of marginal subjects to be anything other than legally recognized—this eliminates the possibility of resisting lawfare in the future, which outweighs on aroff and Comaroff 6 Comaroff, Jean (Bernard E. and Ellen C. Sunny Distinguished Service Professor of Anthropology at the University of Chicago and Honorary Professor at the University of Cape Town) and John L. Comaroff (Harold H. Swift Distinguished Service Professor of Anthropology at the University of Chicago, a Senior Research Fellow at the American Bar Foundation, and Honorary Professor at the University of Cape Town). “Law and Disorder in the Postcolony: An Introduction.” Law and Disorder in the Postcolony. Eds. Jean Comaroff and John L. Comaroff. Chicago: University of Chicago Press, 2006. Print. pp. 29–35 WWXR 2016-5-20It is not ANDagain, their simulacra.16 Carmel RA Neg Baudrillard BallotThe aff’s trading of hypothetical impact scenarios for a ballot which justifies intervention in the name of democracy is an example of charity cannibalism by which misery becomes psychological nourishment for the media and for the class elite.Baudrillard 94 (Jean, ex-Prof of Sociology at Paris X, “The Illusion of the End” p. 66-70shree)We have long ANDthe white raceK BiopowerThe role of scholars should not be to model how to use the law or even how to fix it, but to liberate ourselves from it – reformism only assists sovereign power because it puts faith in the system.Kotsko 13 Adam Kotsko “How To Read Agamben” LA Review of Books June 4th, 2013Now may beANDWestern legal thought. Legal reform is a palliative measure that sutures superficial instances of white supremacy while amplifying their underlying causesSpade 13 (Dean, Associate Professor of Law at Seattle University School of Law. “Intersectional Resistance and Law Reform” (Summer 2013), Signs vol. 38 no. 4, University of Chicago Press)Critical race theory ANDsocial welfare systems ?Harris 2006, 1554–61; United for a Fair Economy 2006).The Criminal Justice System is how sovereign power enforces their biopolitical narrative. The end result of biopower’s underlying logic is bare life and genocide.Brennan 14Philip Khaled Brennan (researcher on human rights and biopower from the UK). “PREVENT: An Exercise in Biopower—Section One.” The Cat House. April 6th, 2014. Medico-Judicial PowerANDof former times4).Politics sustains itself through exclusion, there’s no hope for the aff’s reformism. The dangerous modern combination of biopolitics and bare life leads to governmental management which bedrocks in structural violence towards those that don’t fit the sovereign’s narrative of who is a proper citizen.Ziarek 12Ewa Ziarek (Julian Park Professor of Comparative Literature at The State University of New York at Buffalo). “9. Bare Life.” Impasses of the Post-Global: Theory in the Era of Climate Change, vol. 2. 2012. bare lifeANDprinciple of genocide. This legitimizes structures of colonialism: injustice, racism, and dehumanization.West 11 West, Robin L, Georgetown University Law Center "Tragic Rights: The Rights Critique in the Age of Obama." Wm. and Mary L. Rev. 53 (2011): 713.Rights harm usANDshort: rights alienate. Legalistic solutions fail to address racial inequality and reify cruel optimism Sarat et al 05 (Austin, William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College in Amherst, Massachusetts. He is also a Five College Fortieth Anniversary Professor) (Lawrence, the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College in Amherst, Massachusetts) (Martha, Professor from Amherst College) “The Limits of Law: A Case of Reparations,” Stanford University Press, 2005 DRDThe legal pathANDlast four decades. The affirmative’s epistemic approach to the topic is one of maintaining sovereign power. The alternative is to reject the use of the state to control lawfare in favor of playful interaction with the law—when the law asks us to engage, we should “prefer not to”. We take the potentiality of the law and render it inoperative. Rather than reading the resolution as a question of policy, approach it from the political --- the alt’s affirmation of studious play can reclaim politics from sovereign power. MORGAN ’07.(Benjamin, University of California, Berkeley, “Undoing Legal Violence: Walter Benjamin's and Giorgio Agamben's Aesthetics of Pure Means”, Journal Of Law And Society, volume 34, Number 1, March, academia.edu/1111547/Undoing_Legal_Violence_Walter_Benjamin_s_and_Giorgio_Agamben_s_Aesthetics_of_Pure_MeansGiorgio Agamben's State ANDstate of exception.17 Phillips Andover TC Aff HobbesTruth TestingThe role of the ballot is to vote for the debate who best proves the truth or falsity of the resolution. Textuality: Five dictionaries define to negate as to deny the truth of and affirm as to prove true which means the sole judge obligation is to vote on the resolution’s truth or falsity. Prefer this definition because dictionary definitions are key to linguistical accuracy – thousands of people compile a dictionary to make sure the definitions are accurate, while there is no check for accuracy of your definition. Textuality is the biggest internal link to all impacts because it’s key to jurisdiction - our burden structures constrain how judges can vote. That comes before fairness or education because a judge cannot vote for an argument if it is not within their jurisdiction.Terry Nardin , “International Ethics and International Law”. Review of International Studies, Vol. 18, No. 1 (Jan., 1992), pp. 19-30, published by Cambridge University Press . JStor, Stable URL: . The rules of ANDof behaving lawfully.2. Quantity of ground: Truth testing includes arguments under comparative worlds plus additional arguments, so you always prefer truth testing on risk of offense that my paradigm is more fair and educational because I coopt reasons why comparative worlds is good. Key to education because we can learn about diverse perspectives.3. All other paradigms devolve to truth testing: Truth is a necessary part of any statement since any statement fundamentally asserts that some property is true. For example, saying “I smell the scent of violets” is the same as “it is true that I smell the scent of violets.” Thus when you assert that your role of the ballot is true you concede to the validity of truth testing. 4. Fairness: Anything else moots 6 minutes of 1ac offense – restarts the 1ar. They get a 13-7 minute advantage which means we have worse discussion, which destroys inclusivity by mooting my ability to effectively engage in the discussion. This ROB is uniquely good because it’s reciprocal and includes an equivalent amount of ground for both debaters. FramingConstructivism is true – Moral facts aren’t “out there” to be found but rather linguistic categories created by humans for humans Parrish Parrish, Rick. “Derrida’s Economy of Violence in Hobbes’ Social Contract” Theory and Event 7:4 | ? 2004For Hobbes truth ANDa commonly-held definition.But linguistic categories can never bind us to a normative ethical system: expressing normative ethical claims through language relies on constructing stable truth from the fluidity of linguistic systems. Since the meaning of words constantly evolve, language will never be able to express normative truths. Nietzsche 1. Friedrich Nietzsche, “On Truth and Lying in an Extra-moral Sense”, in Literary Theory: An Anthology. 2nd ed., Julie Rivkin and Michael Ryan. Blackwell Publishing: Oxford (2004). originally published 1873. p. 263. I reject the gendered language in this card. nAKLet us still ANDlonger as coins. This means that normative ethical claims lack truth functionality. Truth-functionality is 1 a prerequisite to debate since the judge assigns the win to whichever debater proved the resolution true, but normative claims cannot be proven or disproven; and 2 lack of truth-functionality kills resolvability since imposing truth values on non-truth functional statements requires arbitrary judge intervention. Ethical statements like the resolution must therefore be understood in a descriptive sense. Only a descriptive account of morality is capable of testing the truth of the resolution. The sovereign is the foundational source of morality. In the state of nature individuals desire to impose their interpretations of what is meaningful upon others, which creates a constitutive violence that drives the state of nature towards chaos. PARRISHParrish, Rick. Violence Inevitable: The Play of Force and Respect in Derrida, Nietzsche, Hobbes, and Berlin. Lexington Books, 2006.“First,” says Hobbes,ANDcreator of meaning.The sovereign is the solution to constitutive violence. Since individuals operate underneath their own different conceptual schemes in the state of nature, only the sovereign has the power to reconcile differences and dictate morality. PARRISH 2:Derrida`s Economy of Violence in Hobbes` Social Contract, Richard ParrishAll of theANDthe natural condition.And, historical analyses of the state confirm that it arose as a product of contractual necessity, which proves our descriptive analysis of morality as a manifestation of power relations between the sovereign and its subjects. Koch Andrew M. Koch, “Dionysian Politics: The Anarchist Implications of Nietzsche’s Critique of Western Epistemology” I am not Man, I am Dynamite!: Fredriech Nietzsche and the Anarchist Tradition, ed. John MooreFollowing has generalANDof that illusion.Thus the standard is consistency with the will of the sovereign. Prefer additionally:Bindingness: to normalize or follow any practice is to mutually agree to the constraints and rules set by that practice which reinforces the creation of a sovereign rule of authority to guide action in the first place. 2. Epistemic Humility: demanding the reductive criteria of knowledge to make universal judgments is epistemic arrogance that’s bad for functioning in the world. Allowing multiple conflicting schemes ensures that people will try to constantly usurp others’ schemes resulting in irresolvable conflict and violence. OffenseI defend the maxim of abolishing plea bargaining in the United States criminal justice system. Neg should check T and theory interps about the plan texts in CX. I will adopt plan texts so long as it’s reasonable to prevent the proliferation of frivolous theory.Contention 1: UniversalityProsecutors can hand out punishment as they see fit changing and altering the sovereign will as necessary. Each prosecutor can interpret the law differently and give their own conception of what plea bargains look like. Plea bargaining gives them the ability to fully control the trial for a defendant. BrightCAPITAL PUNISHMENT: RACE, POVERTY and DISADVANTAGE” Stephen B. Bright As previously notedANDrole of messenger.The sovereign power is absolute: there can never be multiple interpretations of it else there would be no law binding everyone. Only the sovereign can judge what is to be effective. Hobbes Thomas -- philosopher, historian, ethicist, geometrician, squarer of the circle -- Leviathan, selected variants from the Latin edition of 1668, ed. w/ intro by Edwin Curley, Hackett. p. 133This is absoluteANDthe legislative power.Contention 2: Judge AuthorityJudges fail to meet their constitutive burden of upholding the law: plea bargaining gives prosecutors too much power and cuts judges out of the relevant processes limiting their authority. Batra Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective, Rishi Raj Batra, Ohio State Law Journal Compounding the deficiencies ANDof the states.That’s offense for me: judges maintain the will of the sovereign and an absence of the ability to do so risks the state of nature. The Code of Conduct for U.S. Judges independent andANDfear of criticism.Contention 3: MultiplicityPlea bargaining puts prosecutors in an improper position of power: to divide powers and give prosecutors the right to determine what counts as deserved punishment for a criminal is inconsistent with any notion of a sovereign. Hobbes 2 Thomas -- philosopher, historian, ethicist, geometrician, squarer of the circle -- Leviathan, selected variants from the Latin edition of 1668, ed. w/ intro by Edwin Curley, Hackett. p. 133Plea bargaining puts ANDand three sovereignsDeserting the means of absolute control over judging what counts as acceptable punishment is deserting means of control, and thus commonwealth stability. Placing prosecutors in a position to control the law and arbitrarily makes the law susceptible to factors not contingent to the law implicating instability. Hobbes 4 Thomas -- philosopher, historian, ethicist, geometrician, squarer of the circle -- Leviathan, selected variants from the Latin edition of 1668, ed. w/ intro by Edwin Curley, Hackett. p. 133And because, ifANDof the people.Theory UnderviewVote aff if I win a CI to theory or T1) Time skew a) 1AR is split, I only have 2 mins on theory and 2 on substance, 2NR can collapse for 6 mins on either and auto-win – RVIs make theory reciprocal and strategic b) 3 min 2AR doesn’t have enough time for both theory and substance since 2NR is twice as long, we have half the offense at the end – we need to be able to collapse to the higher layer 2) Only the neg can read T – RVI’s compensate 3) Affirming is harder a) 1AC is a shot in the dark and has to pre-empt infinite negs – they get to strategically adapt b) Neg has access to infinitely more arguments since they don’t have to be T. c) Side bias – empirics prove 5 side bias for the neg – all theory or T must be weighed against this rounds that took place in quarterfinals or later. In these rounds, the Neg side-bias was even more pronounced, with Neg winning 61 of elimination rounds, so the ‘expected’ randomization rate on ballots to achieve such an overall win-rate would be 57 for the Neg and 43 for the Aff. This creates the following expected distribution, compared to the actual observed distribution for these late elimination rounds:This also means you presume aff bc I did the better debating if I was able to overcome the structural disadvantages to do as well as the neg.17 Phillips Andover TC Neg Brady RightsThe primary problem with plea bargaining is that it is done in the dark. Defendants are told that a mountain of evidence is being piled against them but then made to believe that there is no evidence supporting their innocence. As a result, people often take plea deals even when they are innocent because they cannot prove it. Brady vs Maryland established key rights for defendants that resolve that because it forces prosecutors to reveal evidence of innocence as well and lay everything on the table. However, a current circuit split is keeping it from being universal as people argue over how to interpret Brady.Michael Nasser Petegorsky, Michael Nasser Petegorsky is an associate in Akin Gump Strauss Hauer and Feld LLP’s intellectual property (IP) litigation practice, where he focuses primarily on patent litigation.. Petegorsky’s practice covers a broad array of technologies in district court litigation, inter partes reviews before the Patent Trial and Appeal Board, and Section 337 investigations before the International Trade Commission. He has a J.D., Fordham University School of Law, cum laude, 2014 and B.A., University of Pennsylvania, magna cum laude, 2011 Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev. 3599 (2013).The key to resolving ANDof the trial.CP Text- The SCOTUS ought to universalize Brady rights in the plea bargain stage via the Ninth Circuit decision thereby mandating all prosecutions to disclose evidence that can be used in the trial.The Ninth Circuit decision would resolve coercion and secrecy in plea bargaining. That makes pleas more effective and restores their original purpose. Any theoretical risk of plea bargaining being potentially good in any alt world means you vote neg.Petergorsky 2 Michael Nasser Petegorsky is an associate in Akin Gump Strauss Hauer and Feld LLP’s intellectual property (IP) litigation practice, where he focuses primarily on patent litigation.. Petegorsky’s practice covers a broad array of technologies in district court litigation, inter partes reviews before the Patent Trial and Appeal Board, and Section 337 investigations before the International Trade Commission. He has a J.D., Fordham University School of Law, cum laude, 2014 and B.A., University of Pennsylvania, magna cum laude, 2011 Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev. 3599 (2013).The totality-of-the-circumstances approach ANDknowing and voluntaryDA Court ClogPlea bargaining is key to reduce court time which is the main constraint to a well-functioning legal system Steeve Mongrain and Joanne Roberts, Published: 2009, Accessed: 12-11-2017. "Plea bargaining with budgetary constraints" In the present U.S. judicial system, few criminal cases are deterANDbecame more preva-lent as these types of constraints became more binding.Plea bargaining would cause trial cases to double or triple, leaving to a collapse of the system Michelle Alexander, Published: 3-10-2012, Accessed: 12-11-2017. "Go to Trial: Crash the Justice System" The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos."Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial "emergency" fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.Proven by even marginal decreases in plea bargaining doubling the number of trials Lucian Dervan, Published: 7-21-2008, Accessed: 12-12-2017. "The Case for Plea Bargaining in South Africa and a Blast from the Past" ( Time Magazine 1978 "Law: Is Plea Bargaining a Cop-Out?" )The strongest argument for deal making, however, is sheer necessity. Approved of ANDa 10 reduction in plea bargaining would double the number of trials.Increase in amount of trial cases leads to processing delays which causes mass incarceration for people who can’t afford to post bail Christopher Ingraham, Published: 6-11-2015, Accessed: 12-15-2017. "Why we spend billions to keep half a million unconvicted people behind bars"'term=.d7b9be8a0653 At any given time, roughly 480,000 people sit in America's local jails awaiting their day in court, according an estimate by the International Centre for Prison Studies, a research group based in England. These are people who have been charged with a crime, but not convicted. They remain innocent in the eyes of the law. Some are certainly violent criminals who need to await their trials behind bars in the interest of public safety — murderers, rapists and the like. But most — three quarters of them, according to the National Conference of State Legislatures — are nonviolent offenders, arrested for traffic violations, or property crimes, or simple drug possession. Some will be given community service, or probation. Many will be found innocent and have their charges dropped completely — a 2013 Bureau of Justice Statistics Report found that one third of felony defendants in the nation's largest counties were not ultimately convicted of any crime. That same report found that the defendants who were detained before trial waited a median of 68 days in jail — that's a long time to spend behind bars, especially if you're found innocent. In many areas, that wait can be even longer — the New York City mayor's office recently found that 400 inmates in the city's Riker's Island facility had waited over two years for their trial. Some had been waiting six years or more for their day in court. Many of these people waiting in jail are forced to wait simply because they can't afford to post bail. A 2013 analysis by the Drug Policy Alliance, a group that advocates for changes in drug laws, found that nearly 40 percent of New Jersey's jail population fell into this category. The Bureau of Justice Statistics report found that among felony defendants in the nation's largest counties, 34 percent were detained before trial because they couldn't make bail. The idea of bail makes a lot of intuitive sense: when someone's charged with a crime, you make them put down a deposit to ensure they show up in court for trial. If they don't put the money down, they have to wait in jail. But in practice, this means that plenty of people sit behind bars not because they're dangerous, or because they're a flight risk, but simply because they can't come up with the cash. A recent analysis by the Vera Institute, a research group advocating for various changes in criminal justice laws, found that 41 percent of New York City's inmates were sitting in jail on a misdemeanor charge because they couldn't meet a bail of $2,500 or less. For low income people, the consequences of a pre-trial detention, even a brief one, can be disastrous. Miss too much work, and you're out of a job. Fall behind on your rent, and you're out of a home too. And in many cases, these people will eventually be found to be innocent. For reasons like this, some civil rights reformers are advocating abolishing bail completely. Maya Schenwar, editor in chief of independent news site Truthout, argues that bail policies are tantamount to "locking people up for being poor." HBO's John Oliver recently noted that while a poor person might not be able to post a $1,000 dollar bail for a minor infraction, a wealthy murder suspect like Robert Durst can post a $250,000 bail and walk free. Eliminating bail is not as radical as it sounds: Washington D.C. effectively stopped using bail back in the late 1960s. Instead, the city's Pretrial Services Agency determines the best option for dealing with defendants before they go to court. According to the agency, 12 to 15 percent of defendants are held before trial for various reasons, like flight risk or danger to others. The others are released. And the overwhelming majority of released defendants — 88 percent of them — make all scheduled court appearances and remain arrest-free while awaiting trial. Last month, my colleague Lydia Depillis did an in-depth profile of how some jurisdictions are also embracing more progressive policies toward dealing with defendants pre-trial. But if you're not convinced by the civil rights argument for this type of system, consider the economic one: we spend somewhere in the ballpark of $17 billion dollars annually to keep innocent people locked up as they await trial. Here's how I arrived at that number: American taxpayers spent $26 billion on county and municipal jails in 2012, the most recent year for which the Bureau of Justice Statistics has data. And those 480,000 people awaiting trials in local jails account for about 64 percent of the total jail population. And 64 percent of that $26 billion works out to $17 billion that we're spending each year on pre-trial detentions, a little less than the annual budget of NASA. That's just a back-of-the-envelope estimate, but it gives a sense of how much we spend on jailing people before they face trial. Beyond that direct cost, a 2013 study by the Laura and John Arnold Foundation, a public policy research organization, found that even short pre-trial detentions were linked to bad outcomes not just for defendants, but for society as a whole. Among low-risk defendants, for example, those who were held in jail for 8 to 14 days before trial had a 51 percent greater likelihood of re-offending after completing their sentences than those who had been held for less than a day pre-trial. Finally, many of the people who can't afford to post bail are living on the margins of society. A short jail stay is all it would take to trigger an avalanche of repercussions — lost job, lost house — that could force them to turn to public assistance to make ends meet, in some cases indefinitely.This harms these people when they actually do go to trial because they are likely to commit new criminal activities in the meantime Christopher Lowenkamp, Published: 11-2013, Accessed: 12-15-2017. "The Hidden Costs of Pretrial Detention"'Report'hidden-costs'FNL.pdf Overall, when other relevant statistical controls are considered, defendants who are detained 2 to 3 days pretrial are slightly more likely to FTA than defendants who are detained 1 day (1.09 times more likely). Examining sub-populations of defendants revealed significant differences, however, in the impact of length of pretrial detention when considering defendant risk level. Specifically, low-risk defendants are more likely to FTA if they are detained 2 to 3 days (1.22 times more likely than low-risk defendants detained 1 day or less), 4 to 7 days (1.22 times more likely), and 15 to 30 days (1.41 times more likely).The analysis of the relationship between length of pretrial detention and NCA revealed that longer pretrial detention periods were associated with an increase in NCA for each category. Similar to FTA, examining sub-populations of defendants revealed significant differences in the impact of length of pretrial detention when considering defendant risk level. All categorizations of days spent in detention are associated with significant increases in the likelihood of NCA for low-risk defendants when compared to low-risk defendants detained for 1 day or less. The longer low-risk defendants are detained, the more likely they are to have new criminal activity pretrial (1.39 times more likely when held 2 to 3 days, increasing to 1.74 when held 31 days or more). For moderate-risk defendants, the lowest three categories of days spent in detention (2 to 3 days, 4 to 7 days, and 8 to 14 days) are associated with significant increases in the likelihood of NCA. None of the days-in-detention categories are significant predictors of NCA for high-risk defendants.And, staying in jail prior to sentencing only increases the risk that people will be sentenced to jail Christopher Lowenkamp, Published: 11-2013, Accessed: 12-15-2017. "Investigating the Impact of Pretrial Detention on Sentencing Outcomes"'Report'state-sentencing'FNL.pdf Being detained for the entire pretrial period is related to the likelihood of being sentenced to jail and prison, as well as the length of the sentence. When other relevant statistical controls are considered, defendants detained until trial or case disposition are 4.44 times more likely to be sentenced to jail and 3.32 times more likely to be sentenced to prison than defendants who are released at some point pending trial. The jail sentence is 2.78 times longer for defendants who are detained for the entire pretrial period, and the prison sentence is 2.36 times longer.2When examining sub-populations, the relationship between pretrial detention and sentence to jail and prison, and the length of the sentence, is significant for all risk levels of defendants but even more pronounced for low-risk defendants.Low-risk defendants detained for the entire pretrial period are 5.41 times more likely to be sentenced to jail when compared to low-risk defendants who are released at some point pending trial. Moderate- and high-risk defendants detained for the entire pretrial period are approximately 4 and 3 times (respectively) more likely to be sentenced to jail than their released counterparts. § The effect of pretrial detention on jail sentence length is also significant. Jail sentences are 2 to 3.5 times longer for those who are detained until trial or disposition, depending on the risk level of the defendant. § Low-risk defendants who are detained for the entire pretrial period are 3.76 times more likely to be sentenced to prison when compared to low-risk defendants who are released; moderate- and high-risk defendants are roughly 3 times as likely. § The effect of pretrial detention on prison sentence length was most significant for low-risk defendants. Prison sentences were 2.84 times longer for low-risk defendants who were detained for the entire pretrial period. For detained moderate- and high-risk defendants, prison sentences were roughly 2 times longer.Theory AllAffirmative debaters may not defend a non-legislative governmental body as a legislative agent.2. The AC cannot require the negative to clarify 1AC advocacy during cross ex and/or ask the neg to check theory interps in cross examination3. Debaters must cite all carded pieces of evidence. The citation must include at least the author, date, and source of the card.4. Affirmative debaters must defend the implementation in a hypothetical world of a policy action by a legislative body.5. Debaters must, on the page with their name and the school they attend, disclose all taglines, full citations, and the first and last three words of the pieces of evidence of all broken case positions on the NDCA LD wiki at least one hour before the round.18 Carmel RR Aff Indigeneity KInvoking the United States criminal justice system is not benign but wedded to a history of indigenous genocide and black slavery-the resolution's call for progress is a settler ruse to solidify the ontological position of the white male.Glenn 15 - Professor of Gender and Women's Studies and of Ethnic Studies at the University of California, Berkeley (Evelyn Nakano, "Settler Colonialism as Structure: A Framework for Comparative Studies of U.S. Race and Gender Formation," Sociology of Race and Ethnicity 2015, Vol. 1(1) 54-74, Gender modified, RRao)In this section, I describe U.S. settler colonialism ANDfor the United States as a nation" (p. 48).Judicial Legitimacy is predicated on colonial negation of natives-the ability of decisions to dictate what is politically meaningful within the "overriding sovereignty" of the US grounds exceptionalist violenceRifkin 9 - Professor of English at UNC Greensboro (Mark, "Indigenizing Agamben: Rethinking Sovereignty in Light of the "Peculiar" Status of Native Peoples," Cultural Critique, No. 73 (Fall, 2009), University of Minnesota Press)ADWhat does "sovereignty" mean in the ANDon, the "peculiar"-ization of Native peoples.Thus I affirm the end of the Settler State-only this act evades the temporal capture of reformDillon 13 (Stephen, PhD in American Studies at U of Minn, Women and Performance: a journal of feminist theory (2013): "It's here, it's that time:" Race, queer futurity, and the temporality of violence in Born in Flames , Women and Performance: a journal of feminist theory, DOI: 10.1080/0740770X.2013.786277, 5/23 )In The Wretched of the Earth, Fanon describes ANDcoming and so the present could not wait.The aff embodies an ethos of impossible realism that overcomes the confines of colonial thoughtChurchill 96 (Ward, ex-Prof of Ethnic Studies @ U of Colorado, "From a Native Son", p.85-90shree)The question which inevitably arises with ANDand to otherwise deny native rights.Even if we don't create material change, our speech acts have intrinsic value - We should be willing to ignore risk to combat racialized violenceWoan 11 Tansy, 20 (Master of Arts in Philosophy, Politics, and Law in the Graduate School of Binghamton University, "THE VALUE OF RESISTANCE IN A PERMANENTLY WHITE, CIVIL SOCIETY", , p. 30-34 emoticon_smileReturning to the infamous fight with ANDits invisibility in all instances possible.Western representation ethnographically constructs indigenous culture as a simulation of the discoverable other, normalizing masked Settler violence in spaces like debate.Ganser 16 - Professor of Philological and Cultural Studies at University of Vienna (Alexandra, "Gerald Vizenor: Transnational Trickster of Theory," Native North American Survivance and Memory: The Vizenor Continuum, Ed. Birgit Daewes and Alexandra Hauke, London: Routledge, 2016, 16-33, Errors due to OCR, RRao)The transnational turn in American studies ANDcolonizer over the colonized (cf. also Mad- sen, Vizenor 30).We shouldn't be constrained to instrumental readings of the resolution-the aff is a re-thinking of thinking that problematizes spatial logics of objective mastery.Marzec 1 (Robert, Teaches Postcolonial Studies @ SUNY Fredonia, An Anatomy of Empire, symploke 9.1-2 (2001) 165-168, museshree)Retrieving crucial foundational shifts in history ANDto Spanos, "most difficult but not impossible."The abstracted knowledge of instrumental propositions effaces internal colonialism.Mignolo 9 (Walter, Prof of Humanities at Duke, "Epistemic Disobedience, Independent Thought and De-Colonial Freedom," Theory, Culture, and Society 26(7-8) shree, language modified in brackets)ONCE UPON a time scholars assumed ANDprivileged position to evaluate and dictate.Injection of indigenous knowledge disrupts Western colonial thought and exists to mess up the order-we play the revolutionary game of debate and use moves in it to transmute the very grammar that renders it possible.Bryant 16 (Levi, Professor of Philosophy at Collin College. "Rupture/Events: Normal and Revolutionary Politics." shree)I am not here endorsing structural linguistics, ANDthat transforms the fabric of language.18 Carmel RR Neg New Affs BadNew affs badTesting - forces us to rely on generics rather than specific strategies - k2 nuance and clash 2. Encourages students to value new above good - that's a bad educational modeOur interpretation is that they get new affs but have to disclose it on the wiki before the round.Theory Old Affs BadYou should reject old affs - not reading a new aff proves they don't think we're worth it which degrades my existence - that's a voter for psychic alienationOff Nietzsche God Double-BindThe God-Nietzsche Double BindEither, the Squo's the ONLY HOLY OPTION-if you trust in God's Plan, God redeems all suffering Meeds 15 (Addressing The Problem Of Evil With Hope. March 10, 2015. Anna Rose Meeds, Catholic Writer/ Speaker. Writing For Catholic Stand, Living The Truths The Church Teaches. shree)Still, Catholic doctrine on evil ANDto partake in that wonder. OR No metaphysical significance-significance is a stock issueNietzsche 1873 (Friedrich Wilhelm, Anti-Christ, "On Truth and Lie in the Extra-Moral Sense," The Nietzsche Reader, ed Keith Ansell-Pearson and Duncan Large, p 114-5shree, gendered language modified in brackets)Once upon a time, in ANDof the same deceitful character.Off No Free WillNo Free WillBaudrillard 90 (Jean, Professor of Philosophy of Culture and Media Criticism at the European Graduate School, Fatal Strategies, p. 111-13shree)"Only the subject desires; only ANDof desire has become myth.Off SoritesYou are faced with a mound of sand. Your task is to remove individual grains of sand from the mound. The paradox: at what point will it no longer be a mound? This has a few implications:They can't prove individual identity exists. We are constantly unraveling and being dismantled cell by cell as our skin flakes and our atoms are being replaced one by one. Failure to prove a coherent subject turns all of their claims of producing rational decision makers.They can't establish brightlines, much less a brink or a threshold for an argument, much less a solution to that argument. At which point is more education reform enough to solve? Without answering this paradox, you have no means of establishing link arguments, uniqueness claims, much less internal link or impact arguments which means you vote negative on presumption.This also applies to their evidence- when do you have data, facts, historical analysis in order to say something is true? Treat their predictions with a grain of salt.Off TaoismThe good traveler has no fixed plans-no alt needed because the joy of life comes spontaneously in accepting the Tao as it is-death is an illusion and social engineering to avoid it results in serial policy failure, is the root cause of endless suffering and accelerates spiritual decay Slabbert 1 (Jos, Taoist teacher, "Tao Te Ching: How to Deal With Suffering," shree, ev under erasure)If you open yourself to loss, ANDthe more damage we will do.Off Zeno’sTo go anywhere, you must go halfway first, and then you must go half of the remaining distance, and half of the remaining distance, and so forth to infinity: Thus, motion is impossible because it necessitates traversing an infinite number of spaces in a finite amount of time - vote negativeDeath is a fantasy: Your interpretation assumes a transition in bodily energy that's rationally impossible - no impact to the affInherency: your entire affirmative presumes time will pass absent the plan - that's impossible because it assumes linearityK Exhaust FeminismThesis: Power and visibility does not function in post-Fordist capitalism merely as repression but also as production- the introduction of feminist scholarship into the affective economy of debate is not a liberation from capitalist exploitation but is its newest form in the idea of the "resilient subject". Capitalism is running out of supplies and must turn to recycling the waste of modernity as the only means to sustain growth - thus their transgression and symbolic rupture aren't radical but a deregulation of debate's sign economy. The impact is semiotic feedback loops which cause nihilism and ressentimentJames 16(Robin James is Associate Professor of Philosophy at UNC Charlotte, FORTHCOMING- Incandescence, Melancholy, and Feminist Bad Vibes: A Response to Ziarek's Feminist Aesthetics and the Politics of Modernism, Differences 25 (2), p. 120-123, philpapers- )//TRA method for overcoming melancholia (97), ANDof capital, political, and aesthetic production.17The neoliberal system feeds on transgression and their symbolic rupture of beauty standards as a deregulation of debate's sign economy. Their performance of the speaking object enforces a mode of debate where feminist scholars must enjoy the presentation and "overcoming" of their pain as political statement, but this is absorbed and recycled as raw material for neoliberal culture industries to exploit and expel unproductive non-resilient third-world bodies. The impact is semiotic feedback loops which cause nihilism and ressentimentJames 15(Robin James- Associate Professor of Philosophy @ UNC Charlotte, Resilience and Melancholy: Pop Music, Feminism, Neoliberalism, Publisher: Zero Books, p. 97-103)TRNeoliberalism upgrades regulatory systems ANDwomen of color in MRWaSP visualization. Multi-Racial White Supremacist Patriarchy is the defining matrix of neoliberalism - the narrative of 'our' resilient women conditionally includes productive bodies to justify racialization and endless genocidal violence against the periphery in the name of saving 'non-resilient' feminine subjectsJames 15(Robin James- Associate Professor of Philosophy @ UNC Charlotte, Resilience and Melancholy: Pop Music, Feminism, Neoliberalism, Publisher: Zero Books, Accessed: google books)TRAnother way of saying that is: MRWaSP ANDin neoliberalism's preferred mode: deregulation.The aff's introduction of killjoy scholarship in search of suturing trauma and the disjunct between their identity and debate structures collapses into a strategy of "feeling political together" which is incapable of creating transformation outside the confines of the existing order- the move towards forming and re-forming community based on affective identification presupposes that all differences are knowable, nameable, and assimilatable - this is the strategy of conservative elites to efface differential subject positions and necessitates an outside of community that is beyond identification, unintelligible.Berlant 11Lauren Berlant, George M. Pullman Professor, Department of English, University of Chicago, Cruel Optimism, Duke University Press, pg. 223-228, 2011Intensely political seasons spawn reveries ANDmany kinds of the cruelest optimism.We must exhaust the 1AC through an act of radical passivity which forces the system to commit suicide - such a project is necessary to prevent the absorption of all resistance into the furthering of the sovereign juridical matrixBerardi 11Franco "Bifo" Berardi, Professor of Social History of Communication at the Accademia di Belle Arti of Milan, After the Future, pg. 104-108Time is in the mind. The essential limit ANDonly subjected to the common good.K Gendered LanguageVote negative to endorse all of the aff except the gendered language in their Shuster evShuster uses the words "he" and "him" THROUGHOUT THE EV to refer to a criminal-~--that reifies gender dichotomies and ascribes characteristics like criminality to particular gendered, authorizing gendered violence in and outside of debate.K OpacityWe fiat a mutually exclusive policy that solves the aff entirely and has a net benefit that outweighs the case.The aff's faith in transparent rational deliberation embodies the logic of unending preemptive warfare.?berg 16. Dr. Dan ?berg, Professor in Department of Military Science, Swedish Defense College, Associate Editor for Journal of Narrative Politics, War, transparency and control: the military architecture of operational warfare, Cambridge Review of International Affairs, October 20, 2016, p. 3-13In what way does warfare relate to ANDglobal battlefield it renders visible.K Race (Kant Link)Kantianism is tainted by racist assumptions. To Kant only Europeans count as fully human, all others must be forced to conform.Eze 97 Emmanuel Chukwudi, Prof. Philosophy DePaul University. Post Colonial African Philosophy: A Critical Reader. "The Color of Reason." Pg. 130-31 "It should be…of human nature." / don't endorse gendered langIt should be obvious that what ANDt fundamental principles of human nature.the 1AC is white science fiction that disavows how extinction is non-unique for enslaved populations-the alternative's mystical grammar imagines a black spirit beyond materiality that transcends the time and space of the World of Man-there is no moral action for the slaveJames 14 (Robin, Assoc. Prof. Philosophy @ UNCC, "Resilience and Melancholy: Pop Music, Feminism, Neoliberalism," November 26, 2014, "Notes on Weheliye's Habeus Viscus: Or Why Some Posthumanisms are Better than Others," shree) -~--don't endorse gendered langA better method, Weheliye argues, ANDsynch with Man's present.reformism specifically in the context of the criminal justice system mystifies the paradigm of anti-blackness which produces the police through white corporealityWilderson 3, Professor of Drama and African American Studies at UC Irvine (Frank B. Wilderson III, "The Prison Slave as Hegemony's (Silent) Scandal" Social Justice 30(2):18-27, accessed via JSTOR 7-9-13 Bosley)THERE IS SOMETHING ORGANIC TO ANDemancipation of the Black prison slave.The 1AC is the fiat of an ahistorical dream which presupposes humanist participation in deliberation-you should be an anti-ethical decisionmakerCurry 13 (Curry, Tommy J. ASSOCIATE PROFESSOR @ DEPARTMENT OF PHILOSOPHY, RAY A. ROTHROCK FELLOW ('13-'16). TEXAS AandM UNIVERSITY "In the Fiat of Dreams: The Delusional Allure of Hope, the Reality of Anti-Black Violence and the Demands of the Anti-Ethical," Situating, Black Existentialism (UK: Cambridge Scholars Press, forthcoming). Available on academia.edu shree)) The Fiat of Dreams: The potentiality of ANDbodies and nigger-souls, is totalizing. Vote neg as an act of political apostasy-renouncing the idolatrous register of political struggle is critical to discern black existential angst. Replace their "Audacity of Hope" with an Audacity of Nope.Warren 15 (Calvin, Assistant Professor of American Studies @ GW, "Black Nihilism and the Politics of Hope." CR: The New Centennial Review, Volume 15, Number 1, Spring 2015, p 223-233 shree) -~--don't endorse gendered languageWithin critical discourses, black nihilism ANDcritique and spiritual practice.Engagement is parasitic on blackness because it monumentalizes lush cartography in proportion to the slave's incapacityWilderson 10 (Frank B. III, MFA @ Columbia University in Fiction Writing, Ph.D. @ University of California, Berkeley in Rhetoric/Film Studies, Prof @ UC Irvine, Red, White, and Black: Cinema and the Structure of U.S. Antagonisms. P 59-67shree)Due to the presence of prior existing ANDan a priori violence of genocide.Abolition linkAbolition Focus link-not only is the aff NOT abolition but a removal of particular technologies of surveillance, but even if they were, the most radical rhetorical frameworks of abolition are co-opted by racial capitalism and justifies more insidious technologies of policing-only hope BEYOND political hope solvesShirley 15 (Neal Shirley has been involved in a range of (anti) prison related groups for about eight years. Most recently he's been involved with a project that corresponds with prisoners and solicits and disseminates their news and analysis across North Carolina's prison system. "Prisons are for Burning: Abolition and Dystopia." shree)Today, we witness an unprecedented renewal ANDquiet beeping of an ankle bracelet.“Equilibrium link”Anti-Black Equilibrium link-Legal strategies like the aff are a cruel optimism that calcifies white authority, visits psychic violence on the colonized, and creates a cycle of "victories" followed by a shift in racial targeting that endlessly projects the specter of political hopeWoan 11 (Tansy, Master of Arts in Philosophy, Politics, and Law in the Graduate School of Binghamton University and JD from UPenn, "The value of resistance in a permanently white, civil society," )Stokely Carmichael and Charles V. Hamilton, ANDcontinuing this cycle of racial politics.K Psychoanalysistheir fantasy of control over the social order projects a better world which culminates in a violent creation of the death drive - there's no alt, voting negative is an interrogation of their research method McGowan 13 --- Associate Professor at the University of Vermont (Todd, Enjoying What We Don't Have, Project Muse)There is no path leading ANDinsofar as it remains lost.19 HW MG Aff StockACAdvantage 1 DiscretionSessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power.Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, n28 including the right to redress sentencing errors that have not yet occurred. n29 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n32 on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n42 Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire CJS.Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012 What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.This results in cycles of criminalization, dehumanization, and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Interpedently, rights violations result in rampant totalitarianism and an inability to critique power. Inga Ivsan, University of Miami School of Law & Philip E. Heckerling Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. (2017)Plea bargaining is not necessarily bad in and of itself, but its extreme overuse raises concerns about the U.S. criminal justice system.7 The pleabargaining process does not afford any constitutional or ethical protections.' For example, suppose police obtain evidence illegally, without a warrant. Prosecutors would prefer to keep a case built on warrantless evidence out of court rather than have the illegal police conduct exposed at trial. 9 A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.'o Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on questionable evidence, and accepts a lesser punishment in exchange for sacrificing the defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the subjects of bargaining and barter."" The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had indeed incorporated it into the Sixth Amendment.12 While plea bargains originally were used as a practical compromise between an overburdened prosecutor and a defendant of certain guilt, modernday plea bargains resemble one-sided contracts of adhesion 3 favoring a prosecutor too often holding insufficient evidence14 against a criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being sentenced to purgatory under current sen- tencing guidelines." A rational defendant, particularly in federal court, cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking additional charges' 6 and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size of the financial loss without any requirement that the defendant be found to have intended the loss.' 7 On average, the defendant who turns down a plea offer and is later convicted receives a sentence three times longer than under a plea agreement." Combined with a growing list of vague and poorly drafted statutes defining various crimes, prosecutors can target individuals and coerce them into plea bargains by promising to drop charges against family members' 9 and freezing assets.20 By punishing the defendant with a sentence three times longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary" and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v. United States.2 ' While acknowledging the utility or impossibility of getting rid of plea bargains in the modem criminal justice system, this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors when coupled with incredibly long sentences for those who risk conviction at trial, especially in complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial legal system. First conceived as a convenient procedural tool of expediency, modem plea bargain practice has supplanted trials altogether, severely punishing those few who dare exercise their Sixth Amendment right to trial.2 2 This article proposes a practical solution, one borrowed from the business world, to restore parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in which the government has absolute, unfettered discretion to selectively punish anyone and every- one.23 Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize government power at the expense of individual rights.24 The government enjoyed immense discretion to apply vaguely-written laws to political opponents and other disfavored individuals. 25 Even today, countries such as Iran continue to exploit such prosecutorial mechanisms to suppress freedom of discourse.2 6 The sad irony is that, while the United States may have won the Cold War, its legal institutions have gravitated toward resembling the inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modem American society can possibly know all of his or her individual legal obligations. For example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print.27 With over 5,000 federal criminal laws on the books, one legal scholar has determined that the average person unknowingly commits three felonies every day. 28 Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers, among other white-collar professionals, often operate in perpetual fear of the regulation state. Should their behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of justice or conspiracy, to threaten in order to gain cooperation.2 9 Thus, under the current system of plea bargaining, the adversary legal system is being severely undermined and an innocent individual is sacrificed for the pretense of the public good and its insatiable need to regulate every aspect of individual life. As the hero in Arthur Koestler's Stalinist critique novel Darkness at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind."3 0Advantage 2 Legitimacy Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. NOVEMBER 21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.2 million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the 2nd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 1923 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan TextThe Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” 26 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."2 With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.2 " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. 2 History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.FrameworkRights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.182? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'85A focus on purely intent based frameworks crush our ability to respond to violence. McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo(Martha, “How the "Unintended Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi: dx.doi:10.15779/Z381664)By similarly making structures of inequality appear beyond the reach of law reform, the "unintended consequences" message helps update and reinforce the narrowing of protections against intentional racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and in what form and to whom. Power is centrally about being able to act without having to take harm to others into account. This power to gain by harming others is strongest when it operates through systems and structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the "unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice requires careful attention to both harmful intent and to complex harmful effects. But the concept of "unintended consequences" inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that message promotes the theme that those who have power to ignore their harmful effects on others need not-indeed should not-be induced by law to care about this harm, because this caring is what is harmful. One right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites should reject stories of "unintended consequences" and instead scrutinize the power and laws that have so effectively achieved the intention of making devastating losses to so many of us seem natural, inevitable, and beneficial.19 HW MG Neg Defense Generic + AgAdvantage 1Despite access barriers PB still in interest of all parties Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )This article defends plea bargaining and, more importantly, shows why shadow-of-trial efficiency theory fails to properly measure its effectiveness.22 The article demonstrates that trial outcomes accurately discounted for uncertainty and adjudication costs are not the appropriate standard of acceptable results from the perspectives of punishing crime or of treating criminal defendants fairly. In light of this conclusion, claims of structural or psychological impediments that interfere with accurate discounting have little relevance to whether to abolish or reform plea bargaining. While shadow-oftrial efficiency theory turns out to imply that plea bargaining is usually inefficient and, thus, highly problematic, this article contends that bargaining serves the interests of both society and criminal defendants.The plan forces the most marginalized to risk LONGER sentences turning them into pawns for the CJR movementReilly, JD, 12(Bruce, , 3-13)The recent article by Michelle Alexander appearing in the New York Times, “Crash the System,” has stirred up a great deal of interest among the activist community. Most of the people I have heard from, however, have been those who never faced imprisonment- including many lawyers and law students… i.e., people who actually read the New York Times or have it shared with them on their Facebook wall. Alexander’s article dangles a theory of overloading and “crashing” the criminal justice system: by everyone refusing the plea bargain and going to trial. This crashing maneuver is nothing new to prisoners. The article itself spawned from a conversation between Alexander and Susan Burton, a formerly incarcerated woman who has since become a trailblazing activist and organizer on criminal justice reform. Having spoken with those who have done time in other states, I know most elements of the system are essentially the same no matter where you go. When I was facing my own sentence, being held without bail for nearly three years, I counseled hundreds of men regarding plea bargains and trials. I could typically anticipate the first offer from the state, what he should counter-offer, and what the state will settle on. It was very formulaic, and a disappointment whenever someone took the first offer just to get out of the hideous conditions of pretrial detention (yet another tactic). And there was always that guy yelling, “People need to take everything to trial. Shut down that whole damn system.” And there is another guy saying, “I came in alone, I’m going out alone.” In hindsight, I could have never organized these men to refuse plea bargains and go to trial for several reasons. First, there is something distinctly personal about one’s own sentence. Unlike conditions of confinement that affects everyone inside, the individual sentences can range from weeks to decades for actions that have nothing to do with each other. That early phase of confinement, in jail or “Intake,” is rife with suspicion, ego, and predatory tactics. Nobody is prepared to take a bullet for the person in the cell next to them. Some of the commentary I have read by activists (who do not live in Highly Policed Communities) suggest that the nation’s arrested (mostly poor People of Color) should take this on. As if we have now found the secret method of change in a nice March On Washington and Occupy Wall Street way. They would put the onus of changing an oppressive system on the lashed backs of the oppressed. Sadly, due to the impotence of the American public at large, it will likely end up being just that. Others have asked the legal community what they can do in this situation, suggesting that a lawyer holds the key to a plea bargain and could actually counsel people to take a stand. A lawyer’s job is to arm a client with as much knowledge as possible so they can make the best decision. This does not always happen, particularly in the world of young Public Defenders with massive caseloads. Not only does the typical lawyer have little knowledge about the totality of the system, from police tactics to prison conditions, parole hearings to probation violations, or employment discrimination to voting rights… most attorneys would not have time to truly explain this to an accused person. Public Defenders, AND prosecutors, need to develop an ethical standard about collateral consequences, sentencing enhancements, and reduced standard of guilt (on violation hearings) so that people can intelligently accept/reject a plea. As of now, the accused generally hears “If you sign this, you can go home today.” or “If you go to trial and are convicted, they will throw the book at you.” One lawyer mentioned to me that he is currently pursuing a strategy against a sentencing enhancement by arguing how, when he was sentenced before, nobody said anything about getting extra time if he were convicted again. Every state has “bonus” time, such as Three Strikes in California, where people can get as much as 20 years to Life tacked on “just because.” Thus, the enhancement is often higher than all their previous sentences combined. This is a good legal strategy, similar to the successful argument in Padilla, holding that someone cannot be deported for a prior guilty plea when they were not told that the plea can result in deportation. Those in best position to fight a criminal conviction by taking it to trial are often facing lighter crimes at a young age. My first plea was for marijuana possession. Four of us were travelling in a car, we were pulled over, and the police found a bag after nearly ten minutes. No warrant, of course. My friends all had families to report to, so I claimed it to be mine. When I went to court, the Public Defender met me in the hallway and never mentioned the Fourth Amendment. Instead she explained how if I pay a few hundred dollars the charge will go away if I stay out of trouble for a year. And I won’t have to do any time on it. Up until that point, I had contact with the police just about every year since I was eleven years old. It did not seem to matter to her whether or not I might have contact over the next year. This was a standard deal. Bargaining was not a concept in this plea. My second plea, within a year of the last, was slightly more complicated, as they offered me five years suspended and five years probation. Same procedure in the hallway, but I insisted two things: I didn’t steal the car, and I was not intoxicated. The prosecutor amended the charge to Receiving Stolen Goods Over $500, and kept the sentence. I took it. Many years later, when trying to get a driver’s license, the DMV told me I was convicted of refusing a breathalyzer. I felt this was ludicrous considering the police brought me unconscious into the hospital after a car wreck. But it was too late to challenge this, so I was told. The total tab to get back on the road was over $3000, including DWI classes and extra insurance. And yet today, this little bonus conviction doesn’t even show up on my record. Such is the ways of the system. My final plea is the most telling. I called their bluff. I knew what I was actually guilty of, under law, and they initially agreed to this, and would ask the court to impose the maximum sentence. When I went to court for the official sentencing, they pulled the rug out and wanted a more severe charge. Apparently the Attorney General wanted to keep his statistics up. I demanded a trial. I told my lawyer, “Going through life as a convicted murderer is likely to be much different than being labeled a convicted manslaughterer.” My lawyer asked what I would take on second degree murder. I told him 15 years. He said they would never go for it. I said “get a jury, let’s go to trial.” He started to explain how summer was coming, nobody wants to do trials, people go on vacation… I reminded him I had been held without bail for almost three years. I wanted my “Speedy Trial,” which is supposed to be within 180 days. My lawyer went back upstairs. The guys in the holding pen were scared for me. “Man, you’re rolling some big dice.” The few who knew me had to remind me I knew the law and wouldn’t get rolled over. Manslaughter itself carried up to 30 years, and I knew if I lost a trial I would get just that, and hopefully be out in 15 or 20 on parole. I would rather get 30 for manslaughter than 25 for murder. I knew it would have a domino effect on my entire life. It only took about fifteen minutes for my lawyer to come back down. The prosecutor was going to ask the court to impose 25 years for second degree murder- they knocked off five. If I plead guilty, the judge could still do whatever he wanted. If he went higher, naturally I would have screamed out in the courtroom about “fraud, deceit” and other such things that would get my “plea” thrown out. Upstairs, the prosecutor who previously recommended a manslaughter conviction, labeled me before the court in as vile terms imaginable. He could have said the same things about Osama bin Laden, as there really isn’t much else to say. After hearing statements all around, the judge gave me 45 years, with 20 years to serve. I didn’t scream out, or anything. I was already numb. That chapter of my life was officially over. Two decades later and I can say with certainty that the label on me does not rest. The label says nothing about what I actually did, but its easy for journalists and others to use- people can attach a set of images and presumptions to it. My lawyer was not overly concerned about this label, nor any collateral consequences. A nice enough guy, it just wasn’t in the cards to discuss anything other than the actual number of years in prison. We did not talk about life on parole, or on probation, and how that will impact me. Ultimately, even a Jailhouse Lawyer like myself who spent years studying the rules of evidence and constitutional provisions, did not make a fully informed choice regarding my plea. The eighteen year old me could have been part of crashing the system. I had a perfect case for trial that carried a light sentence overall. A good lawyer would have taken the extra hour to get it dismissed. A good lawyer would explain to young people that if one takes the statutory maximum sentence, suspended, and goes home today on probation, they are very likely to serve at least five years on that probation violation… because something is likely to happen between ages 20 and 30- particularly in Highly Policed Communities amongst my Black and Brown brothers and sisters. The nineteen year old me, facing serious charges, needed the benefit of those who keep the system in check. Unfortunately, I’ve found that those without criminal records are waiting on me to keep the system in check.The impact is massive and turns the case Heiner, PhD, 16(Brady, AAS@Fullerton, The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition Philosophy and Social Criticism 2016, Vol. 42(6) 594–631 ? The Author(s) 2015)In elaborating the critical and transformative moral, political and socio-economic work that the strategy of mass plea refusal would and could do, one must also squarely confront its acute risks and disadvantages. By calling upon masses of individual defendants, as Susan Burton put it, ‘to refuse to play the game, to refuse to plea out’, such a movement against mass incarceration would effectively be asking those individuals to risk the severe existential burdens meted out by the unconscionably exorbitant ‘trial penalty’ that has been fashioned by the system’s deliberately disproportional sentencing schemes. It would, as an anonymous reviewer of this article noted, ‘dilute the existential situatedness of many criminal defendants who may have good reasons for pleading guilty’. In real human terms, a mass assertion of constitutional due process rights would call upon conscientious objectors to potentially spend years, even lifetimes, in cages cut off from their communities, for the cause of social and racial justice.Advantage 23 alt causes to agriculture prices. Churnyourown 15Churnyourown 15, 6-11-2015, "Why Low Food Prices Hurt the Economy and the Poor," ChurnYourOwn, MGCorn is subsidized by US taxpayers to the tune of ~$20 billion per year. Other crops, like soy, are also subsidized, but for simplicity’s sake I’m focusing only on corn. The subsidies come in a few different forms, one of which is price loss coverage (PLC). If the price of corn drops below a threshold, the government steps in and makes up the difference with payments to farmers. These subsidies encourage farmers to produce more corn than the market would naturally demand. Greater supply pushes prices down further. The food industry then can capitalize on this cheap corn, as they have done. Food processors now use corn as an input to nearly everything: animal feed, sweeteners, fillers, food colorings, texturizers, flavorizers and a shockingly vast number of other uses, which Michael Pollan describes in The Omnivore’s Dilemma. The large-scale food processors are the main beneficiaries of these subsidies. Our food industry’s over-dependence on these two commodities (or three commodities, if you want to also lump in soy) puts the economy at risk, just as your 401K would be at greater risk if the majority of your retirement money were invested in a just 2 or 3 company’s stocks, two of which are in the same industry. The price of corn, oil and therefore most of our foods can fluctuate wildly based on 1) natural events, like droughts or disease outbreaks, 2) Wall Street speculators, who trade corn futures in the same way that they trade oil and gold – often due to hyper-sensitivity to market events, and 3) based on the actions of OPEC, the oil cartel. As you can see from this chart, the price of corn has seen a 400% fluctuation over the past 10 years, with a low of $2 per bushel to a high of $8 per bushel in late 2012. No doubt this contributed to the doubling of the price of milk in the 5 year period starting January 2010, since corn is the major component in feed for factory farm cows (which, btw, is not tolerated by their bodies very well and makes their milk much more susceptible to pathogens so that it can’t be consumed raw – but that is not the subject of this post). Is volatility in food and its raw material inputs such a bad thing? This paper points to several research studies that show that oil price volatility “has several damaging and destabilizing macro-economic impacts that will present a fundamental barrier to future sustainable economic growth if left unchecked.” In other words, when companies notice that a raw material’s price fluctuates wildly, they not only buy less of it at a time, but they end up buying less overall. That hurts the economy in the long run.So many alt causes to prices of agriculture. Van Meijl No DateJcm (Hans) Van Meijl xx, xx-xx-xxxx, "Why are the current global food prices so high?," WUR, MGAgricultural markets In historical terms, global agricultural prices have always been subject to strong fluctuations. This is related to the short-term characteristics of the agricultural markets where supply is heavily dependent on the weather, and demand is relatively stable. In recent years, agricultural prices have increased substantially. The prices for other raw materials such as crude oil have increased even more. Now that both agricultural prices and the price of crude oil are rising, the prices of processed and unprocessed foods are higher. Population growth In order to predict the prices of agricultural products in the future, it is important to take a look at supply and demand. The demand for agricultural products is primarily determined by the growth in the population and prosperity. For the coming decade, a decrease in population growth and a robust economic growth are expected. This means an increase in the demand for agricultural products. In addition, the non-food demand is growing because biomass is replacing fossil raw materials as a fuel source. The supply of agricultural products depends on the area of land used for agriculture and the yield per hectare. During the coming decade, a slight increase in the area of land used for agriculture and productivity are expected. Food prices The high agricultural prices are attributable to a combination of factors. A distinction may be made between the effects of supply, demand, policy and other factors. Over the past several years, the supply of raw materials has dropped as a result of poor harvests caused by extreme weather conditions. Global stocks have also reached unprecedented low levels. The high oil prices are also affecting the food prices. The demand for raw materials has risen worldwide due to the developing economies. The interest in biofuels has also increased the demand for grains and oilseed. Protectionist measures In response to the rising food prices, some countries are taking protectionist measures to limit the food price increases for their own consumers. On the global market, this often means a further increase in prices. The exchange rate of the U.S. dollar also has an impact. Global prices are quoted in dollars and the value of the dollar has dropped against most other currencies. The price increases in dollars were even higher as a result. It is difficult to estimate the influence of speculation. Global market The best remedy for high prices is high prices. Although this may sound contradictory, high food prices ensure that farmers and other market players will start responding. This will in turn cause the prices to drop again. The rise of biofuels ensures a higher demand for raw materials and will thus serve to drive prices up. A rising oil price will also result in a higher food price. This is not only due to the increase in the costs of energy, transport and chemicals, but also because biofuels are becoming more competitive. Produtction capacity low-wage countries Consumers in low-wage countries are affected the most by high food prices due to the high percentage of their income that they spend on food. For this reason, it is necessary to increase food aid in the short term, and to improve production capacity in low-wage countries in the long term. This will allow them to contribute to generating income on the global market as well.Tons of alt causes to Trump deportation—his uniqueness card proves.Trump doesn’t need to use the courts to deport.NC Aggregation + ExtinctionPresume negative- even if we can’t calculate exact costs societal opposition represents aggregation in favor of PB Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The determination of whether to change the current constraints of our criminal justice system to eliminate plea bargaining involves value preferences. The positives and negatives on either side of the equation are not readily calculable in monetary terms and would not be assigned the same value by all persons. What is the value to be placed, for example, on the preservation of the right to jury trial for the criminally accused? What is the value to be placed on the satisfaction that manywould feel in knowing that more criminal defendants received their full deserved punishment? People will disagree about these questions. However, the lack of realistic efforts to eliminate plea bargaining indicates that the costs of elimination are generally deemed too high. Epistemic modesty breaks any tie and answers all AC pre-empts Nick Bostrom, Existential Risk Prevention as a Global Priority, 2012. NSThese reflections on moral uncertainty suggest an alternative, complementary way of looking at existential risk. Let me elaborate. Our present understanding of axiology might well be confused. We may not now know—at least not in concrete detail—what outcomes would count as a big win for humanity; we might not even yet be able to imagine the best ends of our journey. If we are indeed profoundly uncertain about our ultimate aims, then we should recognize that there is a great option value in preserving—and ideally improving—our ability to recognize value and to steer the future accordingly. Ensuring that there will be a future version of humanity with great powers and a propensity to use them wisely is plausibly the best way available to us to increase the probability that the future will contain a lot of value.Extinction justifies moral loopholes Bok, 1988 (Sissela Bok, Professor of Philosophy, Brandeis, Applied Ethics and Ethical Theory, Ed. David Rosenthal and Fudlou Shehadi, 1988)The same argument can be made for Kant’s other formulations of the Categorical Imperative: “So act as to use humanity, both in your own person and in the person of every other, always at the same time as an end, never simply as a means”; and “So act as if you were always through actions a law-making member in a universal Kingdom of Ends.” No one with a concern for humanity could consistently will to risk eliminating humanity in the person of himself and every other or to risk the death of all members in a universal Kingdom of Ends for the sake of justice. To risk their collective death for the sake of following one’s conscience would be, as Rawls said, “irrational, crazy.” And to say that one did not intend such a catastrophe, but that one merely failed to stop other persons from bringing it about would be beside the point when the end of the world was at stake. For although it is true that we cannot be held responsible for most of the wrongs that others commit, the Latin maxim presents a case where we would have to take such a responsibility seriously—perhaps to the point of deceiving, bribing, even killing an innocent person, in order that the world not perish.DA Budget/Growth2 A. Uniqueness- states are adopting cautious budgets nowReuters 12-14-17 YORK, Dec 14 (Reuters) - “Cautious” U.S. state budgets enacted for fiscal year 2018 reflect the limitations states faced from two consecutive years of slow revenue growth as well as spending pressure for pensions and healthcare, according to a report released on Thursday. The report from the National Association of State Budget Officers, which details data collected from all 50 states, shows state general fund spending for enacted fiscal 2018 budgets is expected to grow 2.3 percent from fiscal 2017 - the slowest growth rate since fiscal 2010. SPONSORED State general funds are used by most states to draw expenditures and appropriations for services. For fiscal 2018, general fund appropriations ticked up $12.7 billion across program areas, compared with increases totaling $25.8 billion enacted last year. General fund revenues are expected to increase “moderately” at 4 percent in fiscal 2018 from fiscal 2017, the report said. Nearly a quarter of the revenue growth is due to revenue measures, including tax and fee increases, that legislatures enacted in their last legislative session.B. Links 1. Budget Pressure- Abolishing PB upends the entire CJS and introduces massive costs- pressure results in circumvention and WORSE outcomes flipping the case Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Attempting to eliminate plea bargaining would involve costly trade-offs. The previous section assumed a system that would exchange guilty pleas for trials by not proceeding against many defendants who had previously been legitimately charged with crime or by not charging many who should be charged. To attempt to abolish plea bargaining in any other way would require changes in the constraints noted at the outset of this part — the amount of behavior defined as crime, the amount of public resources devoted to fighting crime, and the basic approach to criminal trials. Moreover, bargaining is so central to the current system of adjudicating crime that abolishing it would necessitate extraordinary changes. Some commentators have suggested that abolition could be achieved without major costs, but their proposals are illusory. For example, based on a study of Philadelphia courts, one leading critic of plea bargaining contended that short bench trials could almost entirely replace plea bargains as the secondary means for resolving criminal cases. According to the study itself, 48 this conclusion was probably too optimistic. Nearly half of the cases in the Philadelphia courts ended with a guilty plea based on either explicit concessions from the prosecutor or implicit concessions from the judge.49 Also, the trade-off of guilty pleas for bench trials was arguably only a triumph of form over substance. The bench trials were extremely short — generally only a few minutes longer than a guilty plea — and judges richly rewarded 50 jury waivers through sentencing concessions. The Philadelphia system could 51 be viewed as merely an effort by judges to reward jury waivers and to allow for the correction of prosecutorial overcharging where the prosecutor, for reasons particular to that city, did not provide these functions through bargaining. The system did not eliminate bargaining for actual guilty pleas 52 53 and, to the extent that it reduced such bargaining, arguably only substituted an essentially equivalent method for extending leniency to reward purely strategic behavior by defendants.54 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 prosecutor, Harry Connick. This study showed that Connick had 55 greatly reduced the number of plea bargains offered by his office through a plan of intensive screening at the charging stage. The New Orleans District 56 Attorney’s office rejected many charges that prosecutors 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 57 reduce the need to dismiss questionable charges later. Due to the difficulty of accurately assessing cases, however, attempts at tough screening may allow a large percentage of questionable cases to go forward while also foreclosing many other legitimate charges. This approach may also have little influence on bargaining. The New Orleans District Attorney’s office “reject[ed] for prosecution . . . 52% of all cases and 63% of all charges.” Nonetheless, the 59 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, and some additional bargaining seemed 60 to occur in the form of failures by the prosecution to pursue enhanced penalties under habitual felon statutes. Much more significantly, overt 61 sentence bargaining continued in almost all cases between judges and defense lawyers, a practice historically deemed problematic even by proponents of 62 plea bargaining. In the end, the study failed to show that plea bargaining is 63 eradicable through tough screening practices. Instead, it raised the question 64 whether tough screening forecloses too many valid prosecutions 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 repeatedly 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. More often, they have resulted 66 from the order of the chief prosecutor, such as with the ban imposed by the Alaska Attorney General in 1975. Most have occurred in rural areas with a 67 low volume of criminal prosecutions, although the prosecutor in El Paso, Texas, also attempted to impose such a ban in 1975. Almost all have been 68 limited in major ways, such as to prosecutors alone or to certain stages of the adjudication process or to certain types of crimes. In each case, either the 69 bargaining shifted to other stages in the adjudication process, the provision 70 of bargains merely shifted from prosecutors to judges, or prosecutors 71 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 One leading critic of plea bargaining, Professor John Langbein, has openly confronted the unavoidable trade-offs required to try to eliminate it. He argued in the late 1970s that the United States should emulate the West German system of criminal justice. According to the argument, the West 75 Germans had avoided bargaining by resolving every case through a rapid, nonadversarial trial. This contention later appeared to be inaccurate. Plea 76 77 bargaining reportedly emerged in the West German system in the 1970s and has gained popularity there since that time. In any event, the argument 78 reveals the kind of sacrifice required to try to end the practice. To adopt the German system would eviscerate not only plea bargaining but our basic approach to criminal trials, which the Constitution guarantees to criminal defendants.792. Reverse Goldilocks- the plan won’t reduce bargaining but will collapse budgets and legitimacyHowe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )The argument against fundamental systemic change to try to eliminate plea bargaining rests largely on the uncertain, although clearly substantial, costs involved. If jury trials produce results that we like, while plea bargaining produces results that we do not, we may prefer jury trials although they are more expensive. However, achieving a balance between results and costs is preferable where the cost of perfection is exorbitant. The argument for plea bargaining reflects this perspective. The costs of eliminating bargaining, although difficult to quantify, are plausibly thought to far outweigh the costs of leniency in punishment that result from continuing to allow it. The perceived imbalance in costs surely helps explain the lack of truly successful efforts in recent decades to end bargaining.80 All of the options for eliminating plea bargaining are infeasible in practice. Amending the Constitution to entitle criminal defendants to only short, nonadversarial, non-jury trials is too controversial itself to serve as a remedy for leniency in bargaining. The negative consequences associated with this 81 alternative begin with its tendency to promote erroneous trial convictions.82 The notion of decriminalizing a large portion of the behavior currently deemed criminal is at least equally extreme. At best, legislatures might marginally stem the continuing expansion in the use of the criminal sanction. The only 83 remaining option focuses on money, and the increases would have to be enormous. Current police, court, and corrections budgets would have to increase at least several times over. As for the practicalities of this latter 84 approach, the only uncertainty is whether it is significantly less implausible than the other two potential remedies. A large infusion of resources also might not eliminate plea bargaining. The scarcity of resources is not the only driving force behind bargaining, although resource scarcity helps fuel the practice. The key players involved — prosecutors, judges, defense lawyers, and defendants — have incentives to bargain merely because pleas are so much cheaper and easier than trials, and because litigation is fraught with uncertainty. A substantial cost differential 85 between pleas and trials would remain even if there were more resources available for adjudication. Likewise, the uncertainty of litigation would 86 remain. Therefore, the parties would often still want to bargain. Bans might temporarily help deter the practice. However, given the continuing incentives to deal, the parties would likely turn to subterfuges that produced the equivalent of plea bargains.87 Shadow-of-trial efficiency theory does not help decide whether to abolish bargaining. The arguments offered here against such efforts do not build on that theory. Likewise, nothing about that theory undermines these arguments. The shadow-of-trial efficiency theory in no way relates to this larger question because it assumes that the adjudication costs of trials are appropriately traded for leniency in sentencing. Based on that assumption, the theory focuses on 88 the degree of sentencing discount that will produce a purportedly “efficient” bargain. The theory does not address whether bargains should always be disallowed to try to ensure that every criminal defendant receives his maximum deserved punishment. This part of the article has argued against such a trade-off, but its larger point is that shadow-of-trial efficiency theory does not help resolve this question.C. Impacts 1. Depleted state budgets slow economic growth and ensure pension crisisDonlan 17 [Thomas G. Donlan, editor at Barron’s, “There’s a Hole in State Pensions,” Feb 11, 2017, ]Turn away from the lurid deficit spectacles in Washington to examine the declining state of the states. In the eighth year of economic recovery, 23 states are still deep in the financial holes they dug for themselves. Economic growth and tax-revenue growth are slowing. Revenue growth from sales taxes—which are most sensitive to changing economic conditions—have slowed the most, according to the National Association of State Budget Officers. The executive director of that organization explains and complains that online sales across state lines—more popular every year—are often not taxed. Every state has a different tax system, a different tax base, and a different political inclination toward taxes and spending. But slow growth in tax revenue in general has placed many under serious fiscal pressure. In a report on states’ fiscal health issued on Feb. 2, the Pew Charitable Trusts said that after adjusting for inflation, 23 states still have lower tax revenue than they did before the most recent recession, and 18 states have lower employment than they did in 2007. Only 19 states have the kind of fiscal cushion—rainy-day funds and general fund surpluses—that they had in 2007. Analysts at Pew and other watchdog groups are warning that the states are clearly not ready for another recession. MultiState Associates, a consulting firm, estimates 31 state legislatures will have revenue shortfalls to deal with before their next budgets go into effect. The Cavalry Isn’t Coming The states may wish to call Washington for help, but Congress and the White House are busy with their own fiscal quandaries. Newly empowered Republicans want to cut taxes, increase defense and infrastructure spending, and repeal Obamacare to replace it with something better—just to mention a few expensive proposals that nearly all Republicans agree on. All this and more, despite a $559 billion deficit projected for fiscal 2017. There’s no room for helping out the states, and plenty of reasons to say the states are getting more than enough help already. The federal government provides nearly a third of the states’ total revenues, but the federal hand is far more important than direct grants, which totaled $589 billion in 2014. The same year, the federal government paid out $1.1 trillion in retirement benefits and $895 billion in other benefits, chiefly medical, for individuals located in the 50 states. The U.S. government paid its own military and civilian employees $305 billion, and it paid $356 billion on federal contracts. Nearly all of that federal spending is subject to income tax in states that have income taxes, and the recipients use federal money to buy things, generating revenue for states that have sales taxes. Pension Panic Beyond the unfortunate short-term dependence of many states on money that falls from the federal heavens, there are the unfortunate longer-term policies of their own that have put many states in fiscal trouble. Chief among these is the growing crisis in state and municipal pension funds. Importantly, the condition of state and local pensions is worse than officially reported. Pension boards, their advisors, and their actuaries have been using unrealistic estimates of their investment returns that are left over from the years of higher inflation that ended in the 1990s. The National Association of State Retirement Administrators surveyed 132 big government pension plans last year and found the average estimate of future annual investment returns—the discount rate—to be 7.6%. Hard-nosed reformers say they should be using a Treasury rate around 3%, but only seven of the funds in the survey were using discount rates below 7%. The difference is powerful: The funds pretend their investments are strong and that they are a mere $1 trillion short of what they will need to pay benefits that workers have already earned. Cutting the 7.6% investment estimate back to 3% turns the $1 trillion deficit into a $3 trillion hole. Officials around the country are loath to acknowledge the mismatch, and government plans aren’t covered by federal pension law that would make them fess up. Pension officials can use whatever discount rate suits their needs. Excuses abound: Governments don’t go out of business; they have taxing power; they can hold on for a long time before wolves chew their way through the door. This is the Micawber theory of management. Wilkins Micawber, a colorful character in Charles Dickens’ David Copperfield, is a grandiose optimist always flirting with poverty, whose financial maxim is “Something will turn up.” Like the author’s father, he spends some time in debtors’ prison. But, being a charming Dickensian character, something does turn up for him eventually. Actuaries should not be so sanguine, but many know about getting by going along. They want to keep their jobs. The Montana pension systems spoke loudly in 2009 when they were looking for new actuaries. The invitation to actuaries said that a firm arguing for tougher standards “may be disqualified from further consideration.”2. Slow growth makes war more likely – drives tensions and hyper-nationalism Landsay 17 Jonathan Landay, National Security Correspondent at Thomson Reuters. U.S. intelligence study warns of growing conflict risk report also said that while globalization and technological advances had “enriched the richest” and raised billions from poverty, they had also “hollowed out” Western middle classes and ignited backlashes against globalization. Those trends have been compounded by the largest migrant flows in seven decades, which are stoking “nativist, anti-elite impulses.” “Slow growth plus technology-induced disruptions in job markets will threaten poverty reduction and drive tensions within countries in the years to come, fueling the very nationalism that contributes to tension between counties,” it said. 3. Slow growth collapses hegemony – the impact is nuclear war Goure 13 Dr. Daniel Goure is a Vice President with the Lexington Institute, a nonprofit public-policy research organization headquartered in Arlington, Virginia. He is involved in a wide range of issues as part of the institute’s national security program. “How U.S. Military Power Holds the World Together” Nations, like nature, abhor a vacuum. It must be filled. How it is filled, by whom and with what are the challenging questions. Unlike nature, which seeks to fill a vacuum with whatever is handy and can be stuffed or sucked into the space available, nations rely on power, relationships and institutions to fill vacuums that arise in the international system. Political vacuums can readily be filled by raw power and the domination of the strong over the weak. Or they can be filled by the rule of law and a community of nations. Twice in the last 60-plus years the United States chose to fill the vacuum caused by the collapse of old institutions, relationships, and power centers. After World War II, along with key allies, the U.S. created an entirely new international order with a set of democratic institutions and international agreements that have endured to this day. America, again in concert with many allies, also built a security apparatus and military machine of global reach and power unlike any seen in peacetime. When the Soviet Union collapsed, the United States did not simply declare victory and go home. Rather, even while reducing the size of its military, America chose to remain in the world, forward deployed, and committed to maintaining and even expanding long-established alliances and security relationships. As a result, the world was able to weather difficult and dangerous transitions and create or maintain a viable international system. In both cases, nations, including America’s former adversaries, had the opportunity to become part of that system and to flourish. An Increased Role and Decreased Size Ironically, the role of the United States military in maintaining the global order increased with the end of the Cold War. From 1945 to the collapse of the Soviet Union there were between 40 and 50 significant instances of the use of U.S. armed forces abroad. From 1991 to the present, that number nearly tripled to between 100 and 135. These figures do not include several hundred humanitarian operations, support for civil authorities after natural disasters, or the myriad of routine deployments for training purposes or to build partnership capacity. Add these other actions to the total and the activity level for the U.S. military went up by a factor of four after 1991. At the same time, in the 1990s, the size of the U.S. military was reduced by half. With an activity level that increased four-fold and a force reduced by half, the resulting “use rate” or “stress level” on the military increased eight-fold. Two things saved the military from collapse in this period. The first was the overhang of military procurements that had taken place during the Reagan-Bush era. The military has lived off this investment for more than twenty years. The second was selective hollowing in which the services deliberately chose to reduce spending on maintenance and upgrades. For the Army alone this amounted to some $50 billion in the years prior to September 11, 2001. Now again, the prospect of a vacuum in the international order is emerging. Unlike the previous two, this one is not the result of a war or the collapse of erstwhile major powers. Rather, it is the consequence of a gradual diminution of the power and will of those that created the current international system to sustain it. Repeated economic crises, chronic slow growth at home, and the growing burden of social welfare programs have brought most Western counties to the point of military near-irrelevance. The last time U.S. allies “walked away” from the challenge of filling the global space, the United States took up the burden. The Need for Modernization Today, facing some of the same challenges at home as its allies and, simply put, being somewhat tired of carrying the burden, America is also considering a less central role in world affairs. It is not just that the U.S. defense budget is being reduced; it is being gutted. As every senior defense official and an endless parade of academics and experts has testified and written, the current plan to cut $1 trillion from defense spending over the next decade will be devastating to the U.S. military. Moreover, this is not the same military that existed at the end of the Cold War. It doesn’t have the legacy of the Reagan-Bush buildup on which to rely. It is emerging from a decade of conflict that has worn it out. There are new threats, such as the Russian sale of advanced air defense systems to Syria, which must be countered if the U.S. military is to have any future. It is also badly in need of modernization. The reason the United States requires a new strategic bomber to replace the fifty-year-old B-52 and F-22s and F-35s rather than F-15s and F-16s is because the threat is changing and it chooses not to send U.S. airmen into combat with less capable systems. The growing threat from ballistic missiles, including some armed with nuclear weapons, requires advanced missile defenses such as the Aegis BMDS and National Missile Defense system. It is also a power projection military, which must come from the homeland. This means airlift, aerial refueling, sealift, and a Navy with advanced nuclear attack submarines, aircraft carriers, and surface ships to ensure control of the oceans over which American forces must travel. The Call for Cuts The military also faces an internal cost problem. Overhead, administrative and personnel costs have grown to an unsustainable level. A full quarter of all defense spending is to cover administrative costs, a figure which no private enterprise would tolerate. Another 20 percent is a “tax” on all purchases due to government regulations and unique requirements. Given current budget projections, and recent growth rates for medical care, retirement and personnel, within a decade or so there will be no money left in the defense budget for new equipment. The defense of the United States is in danger of being crushed between the jaws of decreased budgets and increased indirect costs. An even greater challenge is political, or perhaps philosophical. The 65-year-old consensus on the role of this country’s military as the central pillar of security for Western civilization and a force for global stability is over. Elements on both ends of the political spectrum have been campaigning for years for a reduced vision of America’s role in the world and a correspondingly large retrenchment in our security commitments. A few years ago, former Congressmen Ron Paul and Barney Frank, two men who could not be more diametrically opposite politically, sponsored a study of American security that proposed in essence, that this country come home and in doing so, reduce its defense burden by nearly half. Now, what was once an extreme position has taken hold of the entire American political system. The desire to win on issues such as reducing the size of the federal government or increasing federal revenues has become so all-consuming that virtually no one is paying attention to the consequences of these absolute positions for the nation’s security. Congress as a whole has responded to warnings of the dire impacts of sequestration on the military with supreme indifference. Even centrists in both political parties are calling for America to reduce its overseas burden, stop acting as a “global cop,” and cut the size and cost of its military. The Centrality of U.S. Power There are three fundamental problems with the argument in favor of abandoning America’s security role in the world. The first problem is that the United States cannot withdraw without sucking the air out of the system. U.S. power and presence have been the central structural feature that holds the present international order together. It flavors the very air that fills the sphere that is the international system. Whether it is the size of the U.S. economy, its capacity for innovation, the role of the dollar as the world’s reserve currency or the contribution of U.S. military power to the stability and peace of the global commons, the present world order has “Made in the USA” written all over it. The international system is not a game of Jenga where the worst thing that can happen is that one’s tower collapses. Start taking away the fundamental building blocks of the international order, particularly American military power, and the results are all but certain to be major instability, increased conflict rates, rapid proliferation of nuclear weapons, economic dislocation and, ultimately, serious and growing threats to security at home. The second problem is the presumption that the country’s global security posture was created and maintained to serve others. In reality, the United States built a global security architecture and the world’s best military because it served our interests. Our network of security ties and treaties, most notably NATO, were instituted to serve a number of functions: prevent another war among the Western powers, deter the Soviet Union and its allies, and ensure that the major economic regions remain free and that global trade flowed. In the 1970s, based on the experience of the oil embargo, the U.S. focused more on the security of the Persian Gulf because of the growing importance of Middle East oil to the national economy and that of the entire industrialized world. While the Soviet Union is no more, the essential self-interestedness of America’s military role in the world remains. Any oil expert would say that even though the U.S. is less dependent than a decade ago on foreign oil, a cutoff of the flow from the Middle East would cause oil prices to go through the ceiling. A war across the Taiwan Straits or between the two Koreas will cost us hundreds of billions in lost trade and investment income, not to mention that it would cut off most of the world’s supply of computer chips and consumer electronics. The world’s economy and America’s well being depend on the independence of a relative handful of nations, most of whom are allies. The third problem with the case for abandoning America’s role as the security linchpin of a democratic world order and an international free trade system is simply this: while this country can run, it cannot hide. The U.S. is still the largest economy—at worst it will be number two behind China some day. America’s major companies are global, have hundreds of billions of dollars invested overseas, and millions of citizens working or traveling abroad. American culture permeates—foreign extremists would say pollutes—the world. To truly avoid international entanglements this nation would have to behave like a cloistered monk with vows of poverty and silence. Too Late to Hide Even if America runs, as the far left and right propose, it is too late to hide. Those who choose to be enemies can come after the United States. This is the lesson of 9-11. It also is the message that North Korea sent with its latest tests of a nuclear weapon and long-range ballistic missile. China, one of America’s largest trading partners and the holder of a trillion dollars in U.S. debt, is conducting a massive and continuous cyber assault on the nation’s private companies, infrastructure, and military facilities. To what mountaintop can America withdraw, how small must it become, and how meekly will it have to behave in order to ensure its security? The irony is that the cost of the U.S. military had for decades represented a small and declining percentage of both overall GDP and total federal spending. Today, defense spending is about 4 percent of GDP and less than 20 percent of federal spending. For this relatively small sum the U.S. had to deter major wars—including nuclear attacks on the homeland—contain innumerable local conflicts, create an environment in which a community of democratic nations emerged, grown, and flourished, and secured literally trillions of dollars of overseas investments, trade flows, and natural resources. It is a tragedy of epic proportions that all this should be put at risk. DA Impeachment2 A. More plea deals in Trump-Russia are coming – Flynn’s plea and prisoner’s dilemma prove.Jed Handelsman Shugerman 12-1-2017, "How Robert Mueller’s Deal With Michael Flynn Neutralizes Trump’s Pardon Power," Slate Magazine, prisoner’s dilemma is a famous problem in prosecutions and in academic game theory. A prisoner (or more illustratively in this case, a defendant) knows if he holds out against making a deal, and if all his co-defendants in other jail cells also hold out, they will all go free. However, if he holds out and another defendant confesses and implicates him, he will get a much worse sentence. If everyone confesses, everyone gets something in between. So, the dilemma here is whether to assume everyone is holding out or whether to assume someone else is confessing to get a better deal. Up until now, only a very small figure—Papadopoulos—had confessed, not enough to make any central figure rethink his assumptions. But now that Flynn is cooperating with Mueller, all bets are off. Everyone knows the next few cooperators will get deals, but the later you cooperate, the worse deal you get. The last (and biggest) co-conspirators get no deals at all. Flynn’s deal could be a moment that breaks the silence, and opens the gates for others to cooperate with Mueller to get a deal while there are still deals on the table.B. Mueller probe is close to succeeding now, but plea deals are key to providing prosecutors with the proper tools.Greg Farrell et al 12-7, Tom Schoenberg, Neil Weinberg 17, 12-7-2017, "Mueller’s Investigation Just Got Some Insurance," Bloomberg, Mueller’s probe has gotten closer to Trump’s inner orbit, speculation has risen over whether Trump might find a way to shut it down. The Flynn deal may make that harder. For one thing, it shows that Mueller is making progress. “Any rational prosecutor would realize that in this political environment, laying down a few markers would be a good way of fending off criticism that the prosecutors are burning through money and not accomplishing anything,” says Samuel Buell, a former federal prosecutor now at Duke Law School. The Flynn plea also makes it difficult for Trump to fire Mueller without inviting accusations of a cover-up and sparking a constitutional crisis, says Michael Weinstein, a former Department of Justice prosecutor now at the law firm Cole Schotz. “There would be a groundswell, it would look so objectionable, like the Saturday Night Massacre with Nixon,” Weinstein says, referring to President Richard Nixon’s attempt to derail the Watergate investigation in 1973 by firing special prosecutor Archibald Cox. Even if Mueller goes, his team is providing tools that other prosecutors or investigators can use to continue inquiries. Flynn’s deal requires him to cooperate with state and local officials as well as with federal investigators. That includes submitting to a polygraph test and taking part in “covert law enforcement activities.” Mueller also has provided a road map to state prosecutors interested in pursuing money laundering charges against Trump’s former campaign chairman, Paul Manafort. Mueller’s case against Manafort lays out a series of irregular wire transfers made from Manafort’s bank accounts in Cyprus to a variety of companies in the U.S. The sums that Manafort transferred suggest the possibility that some of the money was diverted for other purposes. Mueller stopped short of filing charges related to where the money went. But by including the details in his indictment, he left open the possibility of bringing charges in a follow-up indictment and perhaps left breadcrumbs for state authorities to pursue. The president can pardon people convicted of federal crimes; only governors can pardon those convicted under state law. For prosecutors in New York, “the Manafort case is like a legal Chia Pet,” says Weinstein. “Just add water, and it grows.” Manhattan District Attorney Cyrus Vance Jr. is investigating the circumstances surrounding unusual real estate loans to Manafort from a bank run by Steve Calk, who served as an adviser to the Trump campaign. New York Attorney General Eric Schneiderman is conducting his own Trump-related probe. Trump’s reaction to Flynn’s plea raised fresh questions about whether the president had obstructed justice. The day after Flynn appeared in court, Trump tweeted that he fired Flynn because he’d lied to the FBI, which some lawyers say provided a new piece of evidence of what the president knew and when he knew it. Legal experts say Mueller’s ability to bring an obstruction case against Trump could hinge on whether the president was aware of Flynn’s illegal activities when he fired FBI Director James Comey. Prosecuting an obstruction case without an underlying crime is problematic. Critics could demand to know what crime Trump or his campaign officials committed to justify the charge. Many have already argued that collusion itself isn’t a crime. And within days of the Flynn agreement, Trump’s personal lawyer, John Dowd, began pushing back against the notion that a sitting president can even be charged with obstruction. Mueller is also looking at conduct before the election, when Trump was a private citizen and not covered by the executive protections afforded by the Oval Office. If Mueller uncovers evidence that the campaign accepted Russian help, that opens up the possibility of charging people in the Trump campaign with conspiracy related to the solicitation of in-kind foreign donations. Mueller’s team would be on stronger ground if it uncovered evidence of any quid pro quo deals struck during the campaign, either in changes to the GOP platform favoring Russia or promises made to entice Moscow’s help against Hillary Clinton. Flynn alone may not be enough to advance an obstruction or collusion case. Prosecutors would likely need evidence against other high-ranking Trump associates, including perhaps Jared Kushner. “Unless you’ve got them on tape, you’re going to need a lot better witnesses than Flynn,” says Raymond Banoun, a former federal prosecutor. Some experts believe that Mueller’s probe is now almost certain to reach a step beyond that. “Before this is wrapped up, Mueller’s going to request an interview with the president, and he may even request it under oath,” says Amy Sabrin, a Washington lawyer who worked for Bill Clinton on the Paula Jones sexual harassment case. “And then what is Trump going to do?” C. Use of plea deals is specifically key to bring down Trump – it avoids constitutional questions and political battles.Kimberly Wehle 12-8 [professor of law at the University of Baltimore School of Law, former assistant United States attorney], "A presidential plea deal is better than impeachment," are heating up with Robert Mueller’s criminal probe of Russia’s interference with the 2016 presidential election. And the Trump campaign’s ties to that Russian effort continue to prompt questions, including whether — if the evidence shows that he violated the law — the president himself could be held accountable in the criminal justice system. President Trump’s personal attorney has publicly declared that his client cannot as a matter of constitutional law be charged and prosecuted for obstruction of justice. Is he right? This is a highly complex legal question, to be sure. But the likely answer is no, for a number of reasons. To make it short, it is hard to persuasively dispute that the president is not above the law under the Constitution, and that he can certainly act in ways that would legally amount to obstruction of justice. Whether impeachment is the exclusive constitutional route to presidential accountability is doubtful as well, although like much of the Trump presidency, nobody knows for sure what the Supreme Court would say. But more to the point, if this president did, in fact, obstruct justice or violate any other criminal law, the tea leaves suggest that, strategically, neither a public indictment, criminal trial or an impeachment trial are likely. The better course for the country and the Trump family would be for the president to give serious consideration to resignation and a plea deal. Mueller’s predecessors both considered the question of whether a president can be prosecuted and indicted while in office. Both answered yes. In 1998, Ken Starr’s office analyzed whether President Clinton could be indicted after deputies advised him that they had gathered enough evidence to ask a grand jury for an indictment. Starr’s legal ethics counsel concluded that a sitting president is subject to indictment and criminal prosecution, but that he might not be subject to imprisonment during his term. In 1974, Leon Jaworski’s office concluded the same thing about President Nixon: he could be indicted. The question is not a slam-dunk, however, so Jaworski named Nixon an “unindicted co-conspirator” in an apparent ploy to avoid a constitutional showdown. For its part, the Supreme Court held in 1997 that Clinton could be subject to a private civil lawsuit while in office. That effort ultimately led to his impeachment. The Department of Justice’s Office of Legal Counsel concluded in 1973 and again in 2000 that a criminal prosecution would undermine the executive branch’s ability to perform its functions, in the wake of Clinton v. Jones. Trump cannot viably claim that Article II of the Constitution fully insulates him from legal interference with his ability to do his job as president. The question may come down to whether a criminal prosecution is somehow different from a civil claim for money damages, and the Supreme Court would no doubt consider these historical views if Trump’s sky were to fall and the issue to reach the court. In any event, Mueller’s team of career prosecutors will want to see justice done, and it appears that this Republican Congress is ideologically disinclined to take a hard look at impeaching any Republican president, regardless of the charges. Thus, Mueller might do well to avoid a lengthy legal battle over the constitutionality of his prosecutorial authority, and strike a deal with Trump. This maneuver assumes, of course, that Mueller is able to compile an evidentiary dossier of criminal wrongdoing that would put serious pressure on the first family to do a deal. Nobody but Mueller’s team knows for sure what evidence it has (if any) that implicates the president of the United States in criminal wrongdoing. But we do know that Trump’s sons and son-in-law — to some extent, at least — are entangled in the Flynn drama that led to his perjury plea. Nixon and Clinton had their own hides to save. Trump also has family members to think about, and an impeachment process won’t cover them. The Trump children change the stakes in this particular game, and Mueller has shown through Flynn’s son that he is willing to go down the familial path. If the evidence does wind up leading to the White House, therefore, the best outcome for the Trumps might be the president’s resignation and their respective plea(s) to something relatively trivial. (That would still leave the New York Attorney General investigation of Trump’s dealings out there, but Mueller could try to broker a global resolution.) Flynn’s fate is perhaps premonitory. If all that Mueller had against Flynn was a perjury charge, it’s unlikely he would have agreed to plead guilty at this juncture. With the whiff of a presidential pardon in the air, all Flynn had to do was call Mueller’s bluff, force a trial on a diminutive charge, accept a pardon, and paint the entire investigation as much political ado about nothing. Given the tight-lipped ethos of the Mueller operation, we are living in the world of speculation, to be sure. But with Mike Flynn Jr. in the mix, it seems more likely that his dad struck a deal — and one that suggests he has information that hurts people up the chain of command. At the end of the day, as the harsh realities set in for Trump, a constitutional conundrum over whether sitting presidents may be criminally prosecuted could remain but a theoretical footnote in American history.D. Continued Trump presidency causes extinction – aggressive foreign policy, authoritarianism, isolationism and warming catastrophes.Baum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.CP Ceilings1 CP Text: Criminal justice systems within the United States should adopt “Plea Based Ceilings” as per Covey.Contention 1: Theory 1. The CP is not plan inclusive- it doesn’t eliminate any form of plea bargaining, it sets up restrictions on how trial sentences relate to plea bargaining offers2. The CP Competes A. Mutually exclusive- you can’t both abolish plea bargains and reform how they work at the same timeSupreme Court of Illinois 58 (Bernard F. Jordan et al., Appellees, v. Metropolitan Sanitary District of Greater Chicago et al., Appellants No. 3473215 Ill. 2d 369; 155 N.E.2d 297; 1958 Ill. LEXIS 422 November 26, 1958, Filed)No person shall be deprived of life, liberty or property, without due process of law. Ill. Const. art. II.III, § 2; Fourteenth Amendment. However, before a person can properly invoke these clauses he must establish that he is within the ambit of their protection. Generally speaking, public employment does not create property rights subject to the protection of due process. The legislature, having created the office or public position, may alter its terms or abolish it entirely. Positions held under the civil service enactments of the legislature are in the nature of offices and the salary created is not property. The right of compensation arises from the rendition of services and not from a contractual relation.B. Net benefits- any elimination of bargaining links to the disad. A rational policy maker would never take that risk when the CP solves the case. Evaluate solvency through a lens of sufficiency- even if the aff solves better the CP is enough to solve the advantage 3. Interpretation: the aff gets 1 permutation and it must have a written text given to the negative prior to the 1ARA. Permutations are unique- they are functionally advocacies which makes the text uniquely important. A written text is key to prevent aff conditionality and 2AR pivots we can’t respond toB. Reciprocity- we get 1 CP they should get 1 perm. Multiple perms are bad for debate- the aff makes five 2-word arguments in 1 second- its not reasonable to tell us to “flow” because no human can actually record that. Writing it down is not an unjust burden on the aff so they have no offenseC. Pre-emptive theory is a voting issue: the aff is told in advance what they have to do to avoid violating, this makes it uniquely fair. Theory should be evaluated through a lens of competing interpretations- the aff has to win offense for why they need multiple vague perms Contention 2: Solvency The CP solves the case and avoids the disads-PBC’s limit prosecutorial discretion and encourage transparency and equity in plea offers. Aff indicts assume a “fixed discount” system which is the opposite of what the CP does Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )In a standard fixed-discount system, like that incorporated into the Guidelines, the discount for guilty pleas is supposed to be invariable.' 8 But the prosecutor's ability to make near-binding sentencing recommendations and to engage in charge, fact, and cooperation bargaining render actual discounts potentially much greater and substantially more variable.' 9 This variability of course undermines the very purpose of fixed discounts, creating disparity among similarly situated defendants and destabilizing the incentives of innocent defendants to contest charges and of prosecutors to screen out low-probability conviction cases. Because charge and fact bargaining in particular are tactics deployed largely below judges' "radar screens," as long as prosecutors can use these tactics to increase discount size, there is little hope that a workable fixed-discount regime can be implemented. Plea-based ceilings, however, offer a solution to this enforcement problem by limiting prosecutors' ability to offer such inducements. A. How They Work The idea underlying plea-based ceilings is straightforward. Pleabased ceilings guarantee defendants that they will not receive a sentence following a trial conviction that is more severe than any plea offer made to them, adjusted upward by the appropriate fixed discount. To illustrate how this might function in practice, imagine a defendant charged with bank robbery. Say that the defendant's criminal history and the facts of the crime would normally result in a ten-year trial sentence and that the jurisdiction adopted a fixed discount of 33%. During bargaining, prosecutors offer the defendant a five-year deal.' ° With ceilings, the defendant could accept the offer or proceed to trial when, if convicted, he would face a maximum sentence capped by the plea-based ceiling at 7.5 years-that is, the same five-year sentence he would have received had he accepted the plea offer, adjusted upward to reflect the absence of the fixed discount.'51 The plea-based ceiling, in other words, mimics what conventional fixed discounts do (had he pled guilty, he would have received a 33% discount), except it works backwards. As a result, in a ceiling system, the defendant would know exactly what he risked in declining the plea offer, permitting him to calibrate more carefully his decision of whether to risk trial. Like fixed discounts in general, plea-based ceilings would dramatically curtail prosecutors' ability to induce defendants in weak cases to plead guilty. As noted above, because the prosecutor is bound by whatever plea offer she makes, it is very hard for her to make an offer that is sufficiently lenient to induce a defendant in a weak case to plead guilty.'52 If the prosecutor has a 10% chance of convicting the defendant on a charge that carries a ten-year term, her offer of six months might look good in a world without ceilings, but if the sixmonth offer creates a nine-month ceiling on the sentence the defendant could receive upon conviction at trial, then the inducement to plead guilty disappears. The defendant is markedly better off declining the plea offer and holding out for a trial. Although the defendant's initial ETS was one year, the defendant's ceiling-adjusted ETS falls to a mere 0.9 months, or roughly three days, after the plea offer.'53 Rational defendants should be willing to go to trial under these changed conditions. As a result, plea-based ceilings eliminate the power of lenient plea offers to induce guilty pleas in weak cases. The same is not true, however, in strong cases. Consider a defendant with an 80% POC. In that case, if the prosecutor offered the defendant the same five-year deal and the defendant rejected the offer, the maximum trial sentence would still be 7.5 years, and with an 80% POC, the defendant would have a substantially higher ETS of six years. This defendant would be better off (although only marginally) taking the plea offer than going to trial. A defendant who calculated the odds of conviction at near-certain (99%), would have an even stronger incentive to take the plea offer, since his ETS of 7.42 years exceeds the plea offer by nearly 50%. These discounts might well be large enough to induce defendants to plead guilty. Where the probability of conviction is high, experience indicates that defendants do accept plea bargains, even if the offered concessions are minor.'54 A jurisdiction that implemented a ceiling system would of course first need to determine an appropriate "plea discount.""'5 This itself might prove politically difficult.' To achieve a sufficiently high guilty-plea rate, the discount might have to be set much higher than 33%. As the data presented in Part II shows, the typical differential may exceed 100%, and discounts fixed below that range might (indeed, should) generate lower guilty-plea rates and higher trial rates.'57 Jurisdictions would then face the difficult situation of responding to increased trial demands or frankly acknowledging the existence of an embarrassingly high plea discount. Ideally, a compromise might be struck that reduces the differential below its current high rate, while making accommodation for a marginally lower guilty-plea rate.' 8 Because the point at which it is rational for a defendant to plead guilty is a strict function of the size of the posttrial penalty, considerations regarding the kinds of cases that should not settle should govern the size of the discount. If the trial penalty is fixed at 50% (comparable to a 33% plea discount), then the only cases in which accepting the plea offer is the rational strategy are cases in which the defendant will be convicted at least two out of three times (i.e., POC is 0.667 or greater).'5 9 If the trial penalty were increased to 100%, then defendants would be better off pleading guilty rather than going to trial in all cases where the POC was at least 0.50.' 60 With a 100% trial tax, the 80% POC defendant offered a five-year plea deal would have a sizeable incentive to take the deal, because his ETS otherwise is eight years. Ideally, the plea discount should not exceed the point at which prosecutors can induce guilty pleas in cases in which it is more likely than not that the defendant will be acquitted at trial.'6' Precluding guilty pleas in cases where the POC falls below 50% is consistent with prosecutorial guidelines that suggest that prosecuting such cases is unethical.'62 As noted above, the size of the plea discount will predictably determine the number and types of cases resolved through plea bargaining. As such, it will have important effects on both the mix of cases that go to trial and on prosecutorial screening decisions. In addition to setting the discount size, the jurisdiction would also need to ensure that prosecutors memorialize the plea-bargain terms in writing and present them in a way that provides defendants with an adequate opportunity to accept or reject them. The memorialization requirement is necessary to ensure that judges have a clear record to calculate the plea-ceiling sentence. Written plea agreements are also wise because they facilitate enforcement of any disputed terms, regardless of whether the sentence is imposed immediately on the basis of the plea bargain or after a trial, a point which federal policymakers at the DOJ have long recognized.'63 Written plea offers must include all terms. There can be no "secret deals," and prosecutors cannot make a plea offer available only if the defendant agrees first to accept it. 6 " Defendants must remain free to decline plea offers until formal acceptance of the plea. Prosecutors should not be permitted to make the extension of a plea offer contingent on its acceptance. If prosecutors are able to do so, plea ceilings will not work. Finally, ceiling jurisdictions would have to ensure that written plea offers are admissible at sentencing.16The CP avoids circumvention- by creating clear, enforceable requirements it better alters prosecutor behavior than bans Covey, JD Yale, 98(Russel D., Law@GSU, Fixed Justice: Reforming Plea Bargainingwith Plea-Based Ceilings TULANE LA WRE VIEW [Vol. 82:1237 )Although plea-based ceilings promise many of the benefits that conventional fixed discounts offer, there are important differences. First, plea-based ceilings would be not only far easier for judges to monitor and to enforce but also harder for prosecutors to evade through charge or fact bargaining than conventional fixed discounts. Second, unlike conventional fixed discounts, plea-based ceilings would not circumscribe sentencing discretion by limiting the scope of practical outcomes that can be achieved through plea bargaining. Pleabased ceilings would preserve the flexibility of prosecutors and, to a lesser extent, judges to take a wide range of relevant factors into account in determining the ultimate sentence.' 66 Plea-bargaining reforms that rely on fixed discounts or partial bans require careful judicial scrutiny of prosecutorial decision making to be effective.'67 As noted above, however, such scrutiny is not realistic.'68 Judges are not institutionally suited to evaluate plea bargains to determine whether any particular plea agreement provides the defendant with an overlarge discount from the expected trial sentence. Plea-based ceilings avoid these problems. Judicial oversight is simple in a plea-based ceiling system because ceilings focus judicial attention on hard facts. Upon presentation of a written plea offer at the sentencing hearing, judges would merely need to ensure that the trial sentence did not exceed the plea-offer sentence by more than the fixed discount. Because sentences are capped by the written plea terms offered by prosecutors, judges would not need to speculate about what charges the prosecutor might have brought or what facts the prosecutor might have alleged to determine whether the disparity between the plea-bargained sentence and the trial sentence was excessive. 9 Instead, the judge would only need to review the set of charges and the factual allegations underlying them that the prosecutor would have accepted to dispose of the case, determine what sentencing exposure that package entailed, and ensure that the sentence imposed does not exceed that amount by more than the ceiling permits.'7 ° That type of review falls well within the traditional scope of judicial competence. Not only would judges be able to enforce ceilings easily, prosecutors would have more difficulty evading the plea-based ceilings because they are keyed off the end product that the prosecutor most desires: the plea agreement itself. Prosecutors could not get plea agreements without first making (or acquiescing to) plea offers. With plea-based ceilings, prosecutors with weak cases could not induce defendants to plead guilty by making an excessively large plea offer because the same lenient plea offer would also protect the defendant from receiving a substantially harsher penalty after trial. 17 ' Regardless of whether the prosecutor sought to induce the plea through an overlarge sentence discount or by dismissing charges carrying overly large upward-sentencing exposure, barring imposition at trial of any sentence higher than the plea offer, adjusted upward to reflect the absence of a plea discount, would enforce the fixed discount. As a result, charge concessions would provide prosecutors no more bargaining leverage than sentence concessions. Obviously, plea-based ceilings would have a dramatic impact on the kinds of plea offers a prosecutor would be willing to make in the first instance. In a plea-based ceiling system, the prosecutor could not make extremely lenient plea offers in order to induce a guilty plea because this would simultaneously reduce the defendant's incentive to avoid trial without changing the likelihood of conviction. Because a lenient offer would not result in a plea agreement, the prosecutor will be far less likely to make such an offer, unless she believed it represented a substantively fair outcome.20 Brentwood EB Aff Race (c&p)Plea bargaining is the criminal justice system and the criminal justice system is the modern plantation. Plea bargaining undergirds the transformation of chattel slavery and black codes to sentencing regimes manifesting as mandatory minimums and the prison industrial complex Heiner 16 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIn his autobiographical texts, … and racially oppressed. Best and most recent statistics prove plea bargaining is unquestionably discriminatory - it controls black incarceration and criminalizationBerejo 17 Berdejó, Carlos (Before joining the faculty at Loyola Law School, Carlos was a graduate student at Harvard University, where he obtained his PhD in Economics. As a doctoral student, he devoted much of his scholarship to the interaction of law and economics, and in particular to understanding the impact of judicial institutions on judges' behavior. Prior to beginning his graduate studies, he practiced as a corporate attorney in New York, representing Latin American clients in various types of financings and in related securities law matters. His current research employs economic tools to further our understanding of the regulation of securities and other investments and of how legal regimes influence corporations' financing decisions.), Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39. Available at SSRN: BWSWJThe racial disparities … later in the article. 174Plea bargaining is the procedural entrapment that sustains mass incarceration - the unreviewable power of the prosecutor strips bodies of rights and sediments racial dominationHeiner 2 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJThe systematic practice of … people of color.82The intricate mechanics of the misdemeanor process racialize crime and mark black folks as criminals absent the presumption of innocence. Prioritizing efficiency over truth creates the stereotype of the black offender and causes mass incarceration.Natapoff 12 Natapoff, Alexandra (Professor of Law UC Irvine Law School; Expertise: Criminal law and procedure, misdemeanors, informants, public defense, law and inequality Background: Professor Natapoff's scholarship has won numerous awards, including a 2016 Guggenheim Fellowship, the 2013 Law and Society Association Article Prize, and two Outstanding Scholarship Awards from the AALS Criminal Justice Section. Her original work on criminal informants has made her a nationally-recognized expert: her book Snitching won the 2010 ABA Silver Gavel Award Honorable Mention for Books. Professor Natapoff's current work-including her new book-focuses on misdemeanors and their powerful influence over the criminal system as a whole. She has presented her misdemeanor work at numerous institutions including Harvard, the University of Chicago, the ABA, and the National Science Foundation. Professor Natapoff is a member of the American Law Institute; in 2015 she was appointed as an Adviser to the ALI Policing Project. She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets. Prior to joining the academy, Professor Natapoff served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. She clerked for the Honorable David S. Tatel, U.S. Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, U.S. District Court, Washington, D.C.), Misdemeanors (February 24, 2012). 85 Southern California Law Review 101 (2012); Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: BWSWJThe misdemeanor process … the penal system.PlanPlan Text: The Supreme Court of the United States, in the next available test case, ought to rule the practice of plea bargaining unconstitutional on the basis that it violates the equal protection analysis established in State v. Russell.Kruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJSimilarly, courts could … arbitrary or illegitimate. 27 "Crash the system and let its ruthless efficiency collapse under its own weight. The aff causes a wide scale restructuring of the CJS.Alexander 12 MICHELLE ALEXANDER (Michelle Alexander is a highly acclaimed civil rights lawyer, advocate, and legal scholar. In recent years, she has taught at a number of universities, including Stanford Law School, where she was an associate professor of law and directed the Civil Rights Clinics. In 2005, she won a Soros Justice Fellowship, which supported the writing of The New Jim Crow, and that same year she accepted a joint appointment at the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University. Since its first publication,The New Jim Crow has received rave reviews and has been featured in national radio and television media outlets, including MSNBC, NPR, Bill Moyers Journal, Tavis Smiley, C-SPAN, and Washington Journal, among others. In March, the book won the 2011 NAACP Image Award for best nonfiction.); ; MARCH 10, 2012; NYTIMES; BWSWJAFTER years as a … to risk our lives."Absent plea bargaining, the politics of carcerality become unsustainable - the aff opens up space for decriminalization and exposing the contradiction of the lawHeiner 3 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIt would be difficult … leased convict laborers.139Davis precedent allows judicial racism to go unchecked - Russell analysis opens the floodgates to challenge discriminatory policiesKruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJIn State v. Russell, 2 … of many criminal procedures.FramingThis round should be centered on mass incarceration - Ethics in the age of the prison industrial complex require a stance against its specific violence Roberts 4 Roberts, Dorothy E. (Dorothy Roberts, an acclaimed scholar of race, gender and the law, joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science and Society in the Center for Africana Studies. Her pathbreaking work in law and public policy focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans. Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.), "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. 583.; BWSWJThus, the unprecedented … ' sense of justice.Reject neg args - We're subconsciously primed towards a continuation of plea bargaining Gocha 16 Alan J. Gocha (Alan's practice is primarily focused on complex intellectual property litigation in electrical, mechanical and software matters. He has experience in both defending against and asserting copyright, trademark, and patent rights. Alan has served as lead counsel in a number of cases, both in state and federal court. He also has experience in appellate advocacy and arbitration. His experience touches a broad range of practice areas, including employment, civil rights, corporations, nonprofit, and bankruptcy law. As an attorney, Alan has provided hundreds of hours of pro bono legal services. Alan has a Bachelor of Arts in Philosophy from the University of Michigan and received his Juris Doctor from Georgetown University Law Center in 2016 where he was an editor for the Georgetown Journal of Legal Ethics. He also received a full tuition scholarship to study Communications at Wayne State University, where he ranked nationally on the university policy debate team. While in law school, he was named an Exceptional Pro Bono Pledge Honoree and winner of the first annual Justin Hansford Student Essay Contest, hosted by the Georgetown Journal on Law and Modern Critical Race Perspectives, for his essay titled The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice.), The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 Geo. J. L. and Mod. Critical Race Persp. (2016) Hein BWSWJAt a cursory glance, the … for state-sponsored oppression. 9Prioritize slow violence---obsession with short timeframe impacts obscures structural factors. Rob Nixon 10. Rachel Carson Professor of English, University of Wisconsin-Madison. "Slow Violence and the Environmentalism of the Poor." Pages 1-14. 2010.When Lawrence Summers, then president of the World Bank, advocated that the bank develop a scheme to export rich nation garbage, toxic waste, and heavily polluting industries to Africa, he did so in the calm voice of global managerial reasoning.' Such a scheme. Summers elaborated, would help correct an inefficient global imbalance in toxicity. Underlying his plan is an overlooked but crucial subsidiary benefit that he outlined: offloading rich-nation toxins onto the world's poorest continent would help ease the growing pressure from rich-nation environmentalists who were campaigning against garbage dumps and industrial effluent thai they condemned as health threats and found aesthetically offensive. Summers thus rationalized his poison-redistribution ethic as offering a double gain: it would benefit the United States and Europe economically, while helping appease the rising discontent of rich-nation environmentalists. Summers' arguments assumed a direct link between aesthetically unsightly waste and Africa as an out-of-sighl continent, a place remote from green activists' terrain of concern. In Summers' win win scenario for the global North, the African recipients ot his plan were triply discounted: discounted as political agents, discounted as long-term casualties of what 1 call in this book "slow violence," and discounted as cultures possessing environmental practices and concerns … ongoing, belated casualties.No counterplans - negatives must defend the squoPlants 89 COUNTERPLANS RE-VISITED: THE LAST SACRED COW? J. Daniel Plants, Baylor University 1989 - Punishment Paradigms : Pros and Cons; BWSWJThe notion of "as compared … object to such strategies.20 Brentwood EB Neg Discovery FirstPlan Text: The United States federal and state governments ought to mandate prosecutorial open-file discovery of all exculpatory and impeachment evidence prior to plea bargainingPetegorsky 12 Petegorsky, Michael Nasser. "Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining." Fordham L. Rev. 81 (2012): 3599. BWSWJBeyond waiting for...the guilty plea.A right to information pre-plea is necessary to correct information imbalancesHashimoto 8 Erica J. Hashimoto (University of Georgia School of Law), Toward Ethical Plea Bargaining (2008), Available at: h p://digitalcommons.law.uga.edu/fac_artchop/819 BWSWJUnfortunately, the reality...of that right.That solves the innocence problem and false pleasO’Brien 3 O'Brien, Andrew P. "Reconcilable Differences: The Supreme Court Should Allow the Marriage of Brady and Plea Bargaining." Ind. LJ 78 (2003): 899. BWSWJOne argument that...when factually innocent.DA Court Clog (Econ Impact)Courts not overwhelmed now – reforms like plea bargaining mean judges can handle caseloadPryor 11/29 William Pryor (William H. Pryor Jr. is a judge on the United States Court of Appeals for the 11th Circuit and acting chairman of the United States Sentencing Commission.); NOV. 29, 2017; ; “Conservatives Should Oppose Expanding the Federal Courts”; NYT Op-Ed; BWSWJBIRMINGHAM, Ala. — A prominent conservative...judgeships should be opposed.Abolishing plea bargaining would increase resource demand by 1,000- 10 reduction in guilty pleas = doubling in resources- 10 x 10 = 1000 increaseSavitsky 9 Savitsky, Douglas (Department of Economics, University of Conneticut), 2009, Doctoral Thesis, The problem with plea bargaining: Differential subjective decision making as an engine of racial disparity in the United States prison system. Cornell University. BWSWJPlea bargaining is...percentage of victories.Court clog kills court legitimacy – they can’t functionLeahy 12 (Sen. Patrick Leahy, “Statement Of Senator Patrick Leahy On The Nominations Of Mary Elizabeth Phillips To The Western District Of Missouri And Thomas Owen Rice To The Eastern District Of Washington.” 3/6/12 )While consensus judicial...costs taxpayers money.”Court legitimacy is key to every aspect of the economy.Dove 15 (John A. Dove, Manuel H. Johnson Center for Political Economy, Troy University, 2015, “The effect of judicial independence on entrepreneurship in the US states,” Econ. Syst.)There have also...on entrepreneurial activity.US economic collapse causes nuclear war between all nations.T?nnesson 15 — (Stein T?nnesson, Leader of programme on East Asian peace @ Uppsala University, “Deterrence, interdependence and Sino–US peace,” International Area Studies Review, 18:3, p.297-311, , accessed 7-13-2017, SagePub, JSO)Several recent works...Beijing to interveneDA Crime & TerrorOrganized crime and terrorism are growing and becoming intertwined -Josh Rollins, Liana Sun Wyler, and Seth Rosen, January 5, 2010 Congressional Researchers - Specialist in Terrorism and National Security; Analyst in International Crime and Narcotics; Research Associate 'International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress' Congressional Research Service Report for Congress. BWSEKLTerrorist and transnational criminal...of strategic value. The intersection between organized crime and terrorism makes acquisition of WMD easier than ever BUT ALSO makes detection and prosecution easier - Josh Rollins, Liana Sun Wyler, and Seth Rosen, January 5, 2010 Congressional Researchers - Specialist in Terrorism and National Security; Analyst in International Crime and Narcotics; Research Associate 'International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress' Congressional Research Service Report for Congress. BWSEKLPotential links between...most terrorist financing.Plea bargaining is vital to stopping organized crime – there are a legion of empirical examplesBenjamin Wagner and Leslie Jacobs 2008 Assistant U.S. Attorney and Chief of the Special Prosecutions Unit for Eastern District of California; Professor of Law ad University of the Pacific McGeorge School of Law 'Retooling Law Enforcement to Investigate and Prosecute Entrenched Corruption: Kep Criminal Procedure Reforms for Indonesia and Other Nations' University of Pennsylvania Journal of International Law Vol 30:1 'lL.183(2008).pdf BWSEKLCollectively, the statutes...several public officials.168Plea bargaining is independently critical to get cooperation from terrorist informants – informants are key to stop attacksAdam Goldman and Benjamin Weiser, 1-27-2017, "How Civilian Prosecution Gave the U.S. a Key Informant," New York Times, BWSEKLCurrent and former...that chance meeting.”Nuclear terrorism is an existential threat—it escalates to nuclear war with Russia and China.Robert Ayson, 2010 Professor of Strategic Studies and Director of the Centre for Strategic Studies: New Zealand at the Victoria University of Wellington, (“After a Terrorist Nuclear Attack: Envisaging Catalytic Effects,” Studies in Conflict and Terrorism, Volume 33, Issue 7, July, Available Online to Subscribing Institutions via InformaWorld)A terrorist nuclear...the chances of nuclear restraint.21 Massa (Broward) EM Aff KantI value morality. The standard is consistency with equal outer freedom. Identifying yourself as the cause of your actions is contained in the idea of agency. Korsgaard, The first step is this: To conceive yourself as the cause of your actions is to identify with the principle of choice on which you act. A rational will is a self-conscious causality, and a self-conscious causality is aware of itself as a cause. To be aware of yourself as a cause is to identify yourself with something in the scenario that gives rise to the action, and this must be the principle of choice. For instance, suppose you experience a conflict of desire: you have a desire to do both A and B, and they are incompatible. You have some principle which favors A over B, so you exercise this principle, and you choose to do A. In this kind of case, you do not regard yourself as a mere passive spectator to the battle between A and B. You regard the choice as yours, as the product of your own activity, because you regard the principle of choice as expressive, or representative, of yourself. You must do so, for the only alternative to identifying with the principle of choice is regarding the principle of choice as some a third thing in you, another force on a par with the incentives to do A and to do B, which happened to throw in its weight in favor of A, in a battle at which you were, after all, a mere passive spectator. But then you are not the cause of the action. Self- conscious or rational agency, then, requires identification with the principle of choice on which you act.Only constitutivism provides an internal standard of success-which solves infinite regress. Katsafanas, Paul (Boston University) “Constitutivism about practical reasons” March 6th 2014 Normative claims make demands on us: they tell us which actions to perform and which to avoid. But what justifies this authority? Put differently, if a skeptic asks why he should accept of the form “you have reason to φ,” what can we say to him? Constitutivism has an easy way of answering this question: insofar as you are committed to an activity with constitutive standards, you are committed to those standards. For example, a person who is playing chess has a good reason to govern her activities with the standard of achieving checkmate: if she doesn’t, she won’t be playing chess. To see why this is important, it helps to contrast standards generated by constitutive aims with other types of standards. Consider a normative claim such as “you should obey the posted speed limit.” Suppose someone asks why he should conform to this standard. Of course, there are answers to this question—we can invoke the financial penalties that the exceeding the speed limit may produce, the danger to the other drivers created by excessive speeds, respect for the law, and so on. But notice that these answers invoke external standards. The standards apply because obeying the speed limit is related to other activities, goals, and practices that the agent accepts or cares about. The standard of checkmate doesn’t need to rely on these external features: we can answer the question “why should I care about capturing your queen?” simply by referring to the activity’s constitutive aim. Thus, the chess player should care about capturing the queen because if she doesn’t govern herself by the standard of achieving checkmate, she won’t be playing chess. So this is the second intriguing feature of constitutive standards: they are internal to the activities that they regulate. Accordingly, we need not invoke external facts in order to legitimate their claim to authority.15Contained in the form of action is that I hold myself capable of pursuing a given end-freedom is necessary. Engstrom, Stephen (Professor of Ethics at UPitt). “Universal Legislation As the Form of Practical Knowledge.” Kant holds that to set something as one’s end is to represent it in practical judgment as one’s effect, or, in other words, to represent oneself as its cause: “an end”, he says, “is the object of a concept, so far as the latter is regarded as the cause of the former (the real ground of its possibility)” (KU 220; cf. MS 384). Thus the act of practical representation that constitutes the setting of an object as an end essentially includes an understanding of itself as the cause whereby that object is to be brought about. It’s therefore essential to an end that to will something as one’s end is to regard oneself, in one’s representation of that end, as the cause that, through that same representation, is to realize it. Hence every representation of an end—and so every maxim—contains two components: information the representation of the object, and (ii) the representation of the relation of causal dependency in which that object stands to the subject, as the latter’s effect, or (what comes to the same thing) the representation of the subject’s causal sufficiency in respect of the object, that is, the sufficiency of the subject’s action to produce it. And since what is represented in cognition must correspond to the cognition of it, to these two components in the representation of an end there must correspond two components in the end itself.Reason is inevitable- external events do not create reason but rather trigger the applications of those reasons which means contestations of reasons are key. Enoch, Enoch, David. "Giving Practical Reasons." Philosophers Imprint. The Hebrew University, Mar. 2011. Web. suppose your neighborhood grocer raised the price of milk. It is natural to say that she has thereby given you a reason to reduce your milk consumption. It is, after all, true that you didn’t have this reason before her relevant action, that you do after it, and furthermore that you have this reason because of her raising the price. In a perfectly ordinary sense, then, she has created this reason: she has given you a reason to buy less milk. But there is nothing mysterious — no normative magic here. The obvious thing to say about this case is that the giving here is a much less radical giving or creating than in cases of requests, commands, and promises. What the grocer did, it seems natural to say, is merely to manipulate the non-normative circumstances in such a way as to trigger a dormant reason that was there all along, independently of the grocer’s actions. Arguably, you have a general reason (roughly) to save money. There will always be competing reason, that does not mean all reasons are relevant, I can take an action under one set of reasons. Enoch 2, Enoch, David. "Giving Practical Reasons." Philosophers Imprint. The Hebrew University, Mar. 2011. Web. . I should also note something it does not take for the role played by the given reason in the receiver’s practical reasoning to be appropriate. It is not required that the role be, as it were, ultimate. In other words, it is perfectly consistent with robust reason-giving thus understood that there be a further, fuller, perhaps more basic story of why it is that B does and should take A’s relevant intentions as reason-giving. Perhaps, for instance, B is a simple utilitarian, and let’s further assume that simple utilitarianism is indeed the true fundamental story about all reasons for action. If so, B will take A’s request as a reason to act if and only if, and because, doing so will maximize utility. But this does not mean that she doesn’t take, in those cases, A’s request to be a (nonultimate) reason. The crucial question is whether the ultimate (or perhaps just more basic) story here is one that goes through the reasongiver’s special intentions identified above (and the receiver’s recognition thereof), as in the case of the utilitarian request-receiver, in which case we may have a case of robust reason-giving; or whether the more basic story here works directly, leaving no role for the specific intentions that make reason-giving robust (as is the case in the dictator’s child example). Cases of this latter type are not, on the account I’m suggesting here, cases of robust reason-giving. And this seems to me the independently plausible result here. Notice that the intentions mentioned above do not include something like the intention that B actually Φs. This is so because A can give B a reason to act Φ knowing well that other reasons may be relevant, including possibly stronger reasons not to act Φ.52 Indeed, it seems to me A can make a genuine request that B Φs, all the time acknowledging that if certain other considerations bear on the case, B should not (all things considered) Φ. We do not want to restrict robust reason-giving to just the cases in which the reason-giver intends the given reason to outweigh all others. For similar reasons, A need not intend that the given reason be the only reason for which B Φs.Moral maxims must be universal and avoid contradictions. Engstrom 2, Stephen. “Universal Legislation as the Form of Practical Knowledge.” N.d. Available from . Given the preceding considerations, it’s a straightforward matter to see how a maxim of action that assaults the freedom of others with a view to furthering one’s own ends results in a contradiction when we attempt to will it as a universal law in accordance with the foregoing account of the formula of universal law. Such a maxim would lie in a practical judgment that deems it good on the whole to act to limit others’ outer freedom, and hence their self-sufficiency, their capacity to realize their ends, where doing so augments, or extends, one’s own outer freedom and so also one’s own self-sufficiency. Now on the interpretation we’ve been entertaining, applying the formula of universal law involves considering whether it’s possible for every person—every subject capable of practical judgment—to share the practical judgment asserting the goodness of every person’s acting according to the maxim in question. Thus in the present case the application of the formula involves considering whether it’s possible for every person to deem good every person’s acting to limit others’ freedom, where practicable, with a view to augmenting their own freedom. Since here all persons are on the one hand deeming good both the limitation of others’ freedom and the extension of their own freedom, while on the other hand, insofar as they agree with the similar judgments of others, also deeming good the limitation of their own freedom and the extension of others’ freedom, they are all deeming good both the extension and the limitation of both their own and others’ freedom. These judgments are inconsistent insofar as the extension of a person’s outer freedom is incompatible with the limitation of that same freedoma) analyticb) analytica) analyticb) analyticc) analyticd) analytica) analyticb) analyticc) analyticd) analyticAdvocacy Text: I defend that all forms of plea bargaining violates a Kantian system of equal outer freedom via the structure of the action.The inherent structure of plea bargaining requires a sacrifice of a freedom of the right to a fair trial. McCoy, McCoy, Candace. “Plea Bargaining as Coercion.” Criminal Law Quarterly , vol. 50, 2005, pp. 1–41. Following along with DiLuca’s outline, it is useful to begin with a common definition of the subject to be analyzed. Plea bargaining in the United States has been defined as “the process by which the defendant in a criminal case relinquishes the right to go to trial in exchange for a reduction in charge and/or sen- tence”.4 This definition is somewhat narrower than that of the Law Reform Commission of Canada, which is “any agreement by the accused to plead guilty in return for the promise of a bene- fit”. The former definition assumes that plea bargains trade the right to trial for lesser punishment, while the latter says that a defendant confesses (pleads guilty) in return for any “benefit”.5 There are many benefits other than a lowered sentence or charge that a defendant could desire, as Cohen and Doob have listed and DiLuca has recounted; therefore, this somewhat broader definition of the benefit that the state relinquishes on its side of the bargain is welcome. But what does the defendant relinquish? The bedrock element of a plea bargain is the same in both definitions: the defendant’s confession and therefore waiver of the right to trial. DiLuca described an effort by the Martin Committee to find a definition of this pretrial practice that would not emphasize its basic nature as an exchange of things of value between two parties — valuable things such as the defendant’s right to trial and the prosecution’s power to press for the heaviest sentence possible. But the committee’s definition of “plea negotiation” as something that “competent and competent and informed counsel” do when discussing evidence (with a view towards “reasonable” case disposition) concerns the process by which a guilty plea is accomplished, not the actual outcome: a confession. The outcome may indeed “result in the reasonable advancement of the administration of justice”, but it occurs because there has been a trade of things of value — an enforceable bargain — no matter how you look at it. The one common feature to all plea bargains is that there will be a confession, and consequently no trial.View plea bargaining as a contract is revisionist history- the structure of plea bargaining has always and will always contain coercion. McCoy 2, McCoy, Candace. “Plea Bargaining as Coercion.” Criminal Law Quarterly , vol. 50, 2005, pp. 1–41. As set out in a series of law review articles with contrasting visions of the nature of plea bargaining and what to do about it, policy prescriptions flow from whether the critic sees plea bargaining as a “contract”, a “compromise”, or a “disaster”. Placing these observations in historical perspective as described above, it is most probable that the system began as principled compromise, hardened into contract, and has devolved into disaster. Attempting to patch over the fundamental inequities of the system with contract analogies are inappropriate in the contemporary era, because the parties are not equal in bargaining positions when coercive power is possible and, lately, probable. This is a system in which confessions are obtained under conditions in which evidence is not publicly aired or tested, and in which penalties get worse the more the defendant tries to challenge the evidence — in short, at this point the system should be titled “Plea Bargaining as Coercion”. Plea bargaining violates freedom by keeping those in jail without the resources to post bail and are coerced into forcing to plea guilty when innocent. Yoffe, Yoffe, Emily. “Innocence Is Irrelevant.” The Atlantic, Atlantic Media Company, 7 Aug. 2017, magazine/archive/2017/09/innocence-is-irrelevant/534171/. As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.” According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and 443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some therefore feel compelled to take whatever deal the prosecutor offers, even if they are innocent. Writing in 2016 in the William and Mary Law Review, Donald Dripps, a professor at the University of San Diego School of Law, illustrated the capricious and coercive nature of plea bargains. Dripps cited the case of Terrance Graham, a black 16-year-old who, in 2003, attempted to rob a restaurant with some friends. The prosecutor charged Graham as an adult, and he faced a life sentence without the possibility of parole at trial. The prosecutor offered Graham a great deal in exchange for a guilty plea: one year in jail and two more years of probation. Graham took the deal. But he was later accused of participating in another robbery and violated his probation—at which point the judge imposed the life sentence. What’s startling about this case, Dripps noted, is that Graham faced two radically different punishments for the same crime: either be put away for life or spend minimal time behind bars in exchange for a guilty plea. In 2010, the Supreme Court ruled, in Graham v. Florida, that the punishment Graham faced at trial was so cruel and unusual as to be unconstitutional. The Court found that a juvenile who did not commit homicide cannot face life without parole.21 Massa (Broward) EM Neg Plea JuriesCP Text: Courts will establish plea juries to listen to plea deals and decide whether they are a fair outcome. It’s competitive- you abolish plea bargaining- the cp simply provides a check on it. It solves the aff better- prosecutors mindsets toward defendants change and make courts more transparent without bogging down the system. Neyfakh, Neyfakh, Leon. “Should Prosecutors Be Forced to Have Their Plea Bargains Approved by Juries?” Slate Magazine, 7 Apr. 2015, articles/news_and_politics/crime/2015/04/plea_bargains_should_prosecutors_be_forced_to_have_their_plea_bargains_approved.html.There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise. But critics see it as a coercive end run around the rights of the accused—especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them—as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done. One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process—by convening a “plea jury.” Members of the plea jury would consider the terms of each plea deal brought before the court and then decide whether it’s fair. They would be selected from the jury rolls just like regular jurors and would serve for periods of at least two weeks at a time, returning to the same courtroom day after day. As Appleman imagines it, members of the plea jury would hear the underlying facts of each case, along with the charges that were brought against the defendant by the district attorney’s office, before deciding whether the punishment being proposed as part of the plea deal fits the crime and whether the defendant is agreeing to it knowingly and voluntarily. In this way, Appleman told me, the plea jury would give the public a voice in a process that usually takes place out of sight and would allow the community to provide a check on prosecutors who might otherwise bring egregiously inflated charges as a way of pressuring defendants to plead guilty. “The problem with the plea bargaining process is that all the power is with the prosecutors,” said Appleman. “We’ve gone from an adversarial system to what I’d call an inquisitorial system, meaning there’s one person—i.e., the prosecutor—putting defendants through their paces.” And while in principle, Appleman said, it’s the job of defense attorneys to make sure their clients aren’t taken advantage of, the fact is that most people accused of crimes can’t afford lawyers and have to rely on public defenders who are no less motivated than the prosecutor or the presiding judge—who also has a burdensome docket to get through—to resolve each case as fast as they can. The introduction of a jury with the power to reject plea deals—or at least recommend that the judge do so—would subject the plea bargaining process to the scrutiny of people who have no interest in maximizing efficiency at the expense of justice. Plea juries might also give prosecutors an incentive to be more restrained in their charging decisions, according to Appleman, by harnessing their desire to get through cases quickly. “Practically, if you’re a line prosecutor, and you’re constantly getting sent back by the plea jury, that’s going to make you less efficient,” she said. “If you’re always the person whose deals get rejected, your superiors are going to notice. So just knowing that there’s this all-seeing eye that’s going to reject your overcharging would maybe motivate you as a prosecutor to be more fair.”DA Court Clog (SOP Impact)Plea bargaining helps speed up the justice system- without it the system is massively bogged down- multiple warrants. ConnectUS, Connectusfundadmin. “15 Serious Advantages and Disadvantages of Plea Bargaining.” ConnectUS, 24 July 2015, 15-serious-advantages-and-disadvantages-of-plea-bargaining. 1. It helps deal with case loads. In plea bargaining, the state and the court are aided in dealing with case loads. Also, the process decreases the prosecutors’ work load by letting them prepare for more serious cases by leaving effortless and petty charges in order to settle through. 2. It makes trial scheduling uncongested. For the judge, the key benefit of accepting a plea bargain agreement is that he can alleviates the need to schedule and hold the trial on a docket that is already overcrowded. Judges are also aware of overcrowding in jails, so they might be receptive to process out offenders who are unlikely to do much jail time anyway. This means cases will be closed much quicker, which is good for the society as the method de-clogs court systems for more serious cases. 3. It hastens the process of trials. Plea bargains are a significant factor in restructuring offenders by letting them agree to the blame for their trial and by letting them voluntarily submit before the law—without having expensive and time-consuming trials.The impact is massive- 95 of the cjs consists of plea bargaining- the aff leads to a massive court clog that shuts down the cjs. NPR, Writing for the majority, Justice Anthony Kennedy noted that 95 percent of all convictions in this country are the result of plea bargains, not trials. The reality, he said, is that the criminal justice system is a system of pleas. And the right to competent assistance of counsel at trial that is guaranteed by the Constitution cannot exclude the central role plea bargaining plays at the pre-trial stage of the proceedings. In all but a very few cases, said Kennedy, the pre-trial horse trading between prosecution and defense lawyers determines who goes to jail and for how long. It's not some adjunct to the criminal justice system. It is the criminal justice system.Court clog undermines just enforcement of laws- turns the case. Bannon,Alicia Bannon (serves as counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts. Ms. Bannon also previously served as a Liman Fellow and Counsel in the Brennan Center’s Justice Program. J.D. from Yale Law School in 2007, where she was a Comments Editor of the Yale Law Journal). “Testimony: More Judges Needed in Federal Courts.” Brennan Center for Justice at NYU School of Law. September 10, 2013. The growing workload in district courts around the country negatively impacts judges’ ability to effectively dispense justice, particularly in complex and resource-intensive civil cases, where litigants do not enjoy the same “speedy trial” rights as criminal defendants. For example, the median time for civil cases to go from filing to trial has increased by more than 70 percent since 1992, from 15 months to more than two years (25.7 months). Older cases are also increasingly clogging district court dockets. Since 2000, cases that are more than three years old have made up an average of 12 percent of the district court civil docket, compared to an average of 7 percent from 1992-1999. For a small company in a contract dispute or a family targeted by consumer fraud, these kind of delays often mean financial uncertainty and unfilled plans, putting lives on hold as cases wind through the court system. All too often, justice delayed in these circumstances can mean justice denied. These patterns of delay are starkly reflected in the districts for which additional judgeships are recommended, many of which lag behind the national average in key metrics. In the Eastern District of California, for example, the median time for civil cases to go from filing to trial is almost four years (46.4 months). This district would receive six additional permanent judgeships and one additional temporary judgeship under the Act. In the Middle District of Florida, over 23 percent of the civil docket is more than three years old. This district would receive five additional permanent judgeships and one additional temporary judgeship under the Act. The federal courts are a linchpin of our democracy, protecting individual rights from government overreach, providing a forum for resolving individual and commercial disputes, and supervising the fair enforcement of criminal laws. In order for judges to perform their jobs effectively, however, they must have manageable workloads. The Brennan Center urges Congress to promptly pass the Federal Judgeship Act of 2013, so as to ensure the continued vitality of our federal courts. Impact is magnified on minorities, they’re already locked into the CJS because of implicit biases, this just makes it worse. Federal court clog causes collapses the federal judiciary – overburdens dockets, expansion can't keep pace Oakley, John B. Oakley, Distinguished Professor of Law Emeritus US Davis School of Law, 1996 The Myth of Cost-Free Jurisdictional Reallocation Personal effects: The hidden costs of greater workloads. The hallmark of federal justice traditionally has been the searching analysis and thoughtful opinion of a highly competent judge, endowed with the time as well as the intelligence to grasp and resolve the most nuanced issues of fact and law. Swollen dockets create assembly-line conditions, which threaten the ability of the modern federal judge to meet this high standard of quality in federal adjudication. No one expects a federal judge to function without an adequate level of available tangible resources: sufficient courtroom and chambers space, competent administrative and research staff, a good library, and a comfortable salary that relieves the judge from personal financial pressure. Although salary levels have lagged—encouraging judges to engage in the limited teaching and publication activities that are their sole means of meeting such newly pressing financial obligations as the historically high mortgage expenses and college tuitions of the present decade—in the main, federal judges have received a generous allocation of tangible resources. It is unlikely that there is any further significant gain to be realized in the productivity of individual federal judges through increased levels of tangible resources,13 other than by redressing the pressure to earn supplemental income.14 ?On a personal level, the most important resource available to the federal judge is time.15 Caseload pressures secondary to the indiscriminate federalization of state law are stealing time from federal judges, shrinking the increments available for each case. Federal judges have been forced to compensate by operating more like executives and less like judges. They cannot read their briefs as carefully as they would like, and they are driven to rely unduly on law clerks for research and writing that they would prefer to do themselves.16 If federal judges need more time to hear and decide each case, an obvious and easy solution is to spread the work by the appointment of more and more federal judges. Congress has been generous in the recent creation of new judgeships, and enlargement of the federal judiciary is likely to continue to be the default response, albeit a more grudging one, to judicial concern over the caseload consequences of jurisdictional reallocation. Systemic effects: The hidden costs of adding more judges. Increasing the size of the federal judiciary creates institutional strains that reduce and must ultimately rule out its continued acceptability as a countermeasure to caseload growth. While the dilution of workload through the addition of judges is always incrementally attractive, in the long run it will cause the present system to collapse. I am not persuaded by arguments that the problem lies in the declining quality of the pool of lawyers willing to assume the federal bench18 or in the greater risk that, as the ranks of federal judges expand, there will be more frequent lapses of judgment by the president and the Senate in seating the mediocre on the federal bench.19 In my view, the diminished desirability of federal judicial office is more than offset by the rampant dissatisfaction of modern lawyers with the excessive commercialization of the practice of law. There is no shortage of sound judicial prospects will?ing and able to serve, and no sign that the selection process—never the perfect meritocracy—is becoming less effective in screening out the unfit or undistinguished. Far more serious are other institutional effects of continuously compounding the number of federal judges. Collegiality among judges, consistency of decision, and coherence of doctrine across courts are all imperiled by the growth of federal courts to cattle-car proportions. Yet the ability of the system to tolerate proliferation of courts proportional to the proliferation of judges is limited, and while collapse is not imminent, it cannot be postponed indefinitely. Congress could restructure the federal trial and appellate courts without imperiling the core functions, but the limiting factor is the capacity of the Supreme Court to maintain overall uniformity in the administration and application of federal law. That Court is not only the crown but the crowning jewel of a 200-year-old system of the rule of law within a constitutional democracy, and any tinkering with its size or jurisdiction would raise the most serious questions of the future course of the nation.Separation of power solves unaccountable decisions to go to war – causes extinction. Adler, (David, professor of political science at Idaho State, The Constitution and Conduct of American Foreign Policy, p. 23-25) The structure of shared powers in foreign relations serves to deter the abuse of power, misguided policies, irrational action, and unaccountable behavior. As a fundamental structural matter, the emphasis on joint policymaking permits the airing of sundry political, social, and economic values and concerns. In any event, the structure wisely ensures that the ultimate policies will not reflect merely the private preferences or the short-term political interests of the president. Of course this arrangement has come under fire in the postwar period on a number of policy grounds. Some critics have argued, for example, that fundamental political and technological changes in the character of international relations and the position of the United States in the world have rendered obsolete an eighteenth-century document designed for a peripheral, small state in the European system of diplomatic relations. Moreover, it has been asserted that quick action and a single, authoritative voice are necessary to deal with an increasingly complex, interdependent, and technologically linked world capable of massive destruction in a very short period of time. Extollers of presidential dominance have also contended that only the president has the qualitative information, the expertise, and the capacity to act with the necessary dispatch to conduct U.S. foreign policy. These policy arguments have been reviewed, and discredited, elsewhere; space limitations here permit only a brief commentary. Above all else, the implications of U.S. power and action in the twentieth century have brought about an even greater need for institutional accountability and collective judgment that existed 200 years ago. The devastating, incomprehensible destruction of nuclear war and the possible extermination of the human race demonstrate the need for joint participation, as opposed to the opinion of one person, in the decision to initiate war. Moreover, most of the disputes at stake between the executive and legislative branches in foreign affairs, including the issues discussed in this chapter, have virtually nothing to do with the need for rapid response to crisis. Rather, they are concerned only with routine policy formulation and execution, a classic example of the authority exercised under the separation of powers doctrine. But these functions have been fused by the executive branch and have become increasingly unilateral, secretive, insulated from public debate, and hence unaccountable. In the wake of Vietnam, Watergate, and the Iran-Contra scandal, unilateral executive behavior has become even more difficult to defend. Scholarly appraisals have exploded arguments about intrinsic executive expertise and wisdom on foreign affairs and the alleged superiority of information available to the president. Moreover, the inattentiveness of presidents to important details and the effects of “group-think” that have dramatized and exacerbated the relative inexperience of various presidents in international relations have also devalued the extollers arguments. Finally, foreign policies, like domestic policies, are a reflection of values. Against the strength of democratic principles, recent occupants of the White House have failed to demonstrate the superiority of their values in comparison to those of the American people and their representatives in CongressPrecludes a) reversibility – death cannot be reversed while things like oppression are always subject to change b) ontology – death ontologically destroys the subject so we cannot engage in preventing oppressionK BiopowerThe 1AC is a flawed ethic. Institutional models like the criminal justice system endorse a politics of recognition that seek to destroy stability and create a mass surveillance system capable of classification. Taylor, Charles, Amy Gutmann, and Charles Taylor. Multiculturalism: Examining the Politics of Recognition. Princeton, N.J: Princeton University Press, 1994. Print. A NUMBER of strands in contemporary politics turn on the need, sometimes the demand, for recognition. The need, it can be argued, is one of the driving forces behind nationalismt movements in politics. And the demand comes to the fore in a number of ways in today’s politics, on behalf of minority or “subaltern” groups, in some forms of feminism and in what is today called the politics of “multiculturalism.” The demand for recognition in these latter cases is given urgency by the supposed links between recognition and identity, where this latter term designates something like a person’s understanding of who they are, of their fundamental defining characteristics as a human being. The thesis is that our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirrors back to them a confining or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being. Thus some feminists have argued that women in patriarchal societies have been induced to adopt a depreciatory image of themselves. They have internalized a picture of their own inferiority, so that even when some of the objective obstacles to their advancement fall away, they may be incapable of taking advantage of the new opportunities. And beyond this, they are condemned to suffer the pain of low self-esteem. An analogous point has been made in relation to blacks: that white society has for generations projected a demeaning image of them, which some of them have been unable to resist adopting. Their own self-depreciation, on this view, becomes one of the most potent instruments of their own oppression. Their first task ought to be to purge themselves of this imposed and destructive identity. Recently, a similar point has been made in relation to indigenous and colonized people in general. It is held that since 1492 Europeans have projected an image of such people as somehow inferior, “uncivilized,” and through the force of conquest have often been able to impose this image on the conquered. The figure of Caliban has been held to epitomize this crushing portrait of contempt of New World aboriginals.They recreate unrelenting oppression- the idea of universality targets individuals who represent deviancy; Abolishing plea bargains is just another way for the apparatus to classify you as the pitiful subject that needs its help. Evans, Brad Evans, 2010 “Foucault’s Legacy: Security, War, and Violence in the 21st Century,” Security Dialogue vol.41, no. 4, August 2010, pg. 422-424. Imposing liberalism has often come at a price. That price has tended to be a continuous recourse to war. While the militarism associated with liberal internationalization has already received scholarly attention (Howard, 2008), Foucault was concerned more with the continuation of war once peace has been declared.4 Denouncing the illusion that ‘we are living in a world in which order and peace have been restored’ (Foucault, 2003: 53), he set out to disrupt the neat distinctions between times of war/military exceptionalism and times of peace/civic normality. War accordingly now appears to condition the type of peace that follows. None have been more ambitious in map- ping out this war–peace continuum than Michael Dillon and Julian Reid (2009). Their ‘liberal war’ thesis provides a provocative insight into the lethality of making live. Liberalism today, they argue, is underwritten by the unreserved righteousness of its mission. Hence, while there may still be populations that exist beyond the liberal pale, it is now taken that they should be included. With ‘liberal peace’ therefore predicated on the pacification/ elimination of all forms of political difference in order that liberalism might meet its own moral and political objectives, the more peace is commanded, the more war is declared in order to achieve it: ‘In proclaiming peace . . . liberals are nonetheless committed also to making war.’ This is the ‘martial face of liberal power’ that, contrary to the familiar narrative, is ‘directly fuelled by the universal and pacific ambitions for which liberalism is to be admired’ (Dillon and Reid, 2009: 2). Liberalism thus stands accused here of universalizing war in its pursuit of peace: However much liberalism abjures war, indeed finds the instrumental use of war, especially, a scandal, war has always been as instrumental to liberal as to geopolitical thinkers. In that very attempt to instrumentalize, indeed universalize, war in the pursuit of its own global project of emancipation, the practice of liberal rule itself becomes profoundly shaped by war. However much it may proclaim liberal peace and freedom, its own allied commitment to war subverts the very peace and freedoms it proclaims (Dillon and Reid, 2009: 7). While Dillon and Reid’s thesis only makes veiled reference to the onto- theological dimension, they are fully aware that its rule depends upon a certain religiosity in the sense that war has now been turned into a veritable human crusade with only two possible outcomes: ‘endless war or the transformation of other societies and cultures into liberal societies and cul- tures’ (Dillon and Reid, 2009: 5). Endless war is underwritten here by a new set of problems. Unlike Clausewitzean confrontations, which at least provided the strategic comforts of clear demarcations (them/us, war/peace, citizen/soldier, and so on), these wars no longer benefit from the possibility of scoring outright victory, retreating, or achieving a lasting negotiated peace by means of political compromise. Indeed, deprived of the prospect of defining enmity in advance, war itself becomes just as complex, dynamic, adaptive and radically interconnected as the world of which it is part. That is why ‘any such war to end war becomes a war without end. . . . The project of removing war from the life of the species becomes a lethal and, in principle, continuous and unending process’ (Dillon and Reid, 2009: 32). Duffield, building on from these concerns, takes this unending scenario a stage further to suggest that since wars for humanity are inextricably bound to the global life-chance divide, it is now possible to write of a ‘Global Civil War’ into which all life is openly recruited: Each crisis of global circulation . . . marks out a terrain of global civil war, or rather a tableau of wars, which is fought on and between the modalities of life itself. . . . What is at stake in this war is the West’s ability to contain and manage international poverty while maintaining the ability of mass society to live and consume beyond its means (Duffield, 2008: 162). Setting out civil war in these terms inevitably marks an important depar- ture. Not only does it illustrate how liberalism gains its mastery by posing fundamental questions of life and death – that is, who is to live and who can be killed – disrupting the narrative that ordinarily takes sovereignty to be the point of theoretical departure, civil war now appears to be driven by a globally ambitious biopolitical imperative (see below). Liberals have continuously made reference to humanity in order to justify their use of military force (Ignatieff, 2003). War, if there is to be one, must be for the unification of the species. This humanitarian caveat is by no means out of favour. More recently it underwrites the strategic rethink in contemporary zones of occupation, which has become biopolitical (‘hearts and minds’) in everything but name (Kilcullen, 2009; Smith, 2006). While criticisms of these strategies have tended to focus on the naive dangers associated with liberal idealism (see Gray, 2008), insufficient attention has been paid to the contested nature of all the tactics deployed in the will to govern illiberal populations. Foucault returns here with renewed vigour. He understood that forms of war have always been aligned with forms of life. Liberal wars are no exception. Fought in the name of endangered humanity, humanity itself finds its most meaningful expression through the battles waged in its name: At this point we can invert Clausewitz’s proposition and say that politics is the continuation of war by other means. . . . While it is true that political power puts an end to war and establishes or attempts to establish the reign of peace in civil society, it certainly does not do so in order to suspend the effects of power or to neutralize the disequilibrium revealed in the last battle of war (Foucault, 2003: 15). What in other words occurs beneath the semblance of peace is far from politically settled: political struggles, these clashes over and with power, these modifications of relations of force – the shifting balances, the reversals – in a political system, all these things must be interpreted as a continuation of war. And they are interpreted as so many episodes, fragmentations, and displacements of the war itself. We are always writing the history of the same war, even when we are writing the history of peace and its institutions (Foucault, 2003: 15). David Miliband (2009), without perhaps knowing the full political and philo- sophical implications, appears to subscribe to the value of this approach, albeit for an altogether more committed deployment: NATO was born in the shadow of the Cold War, but we have all had to change our thinking as our troops confront insurgents rather than military machines like our own. The mental models of 20th century mass warfare are not fit for 21st century counterinsurgency. That is why my argument today has been about the centrality of politics. People like quoting Clausewitz that warfare is the continuation of politics by other means. . . . We need politics to become the continuation of warfare by other means. Miliband’s ‘Foucauldian moment’ should not escape us. Inverting Clausewitz on a planetary scale – hence promoting the collapse of all meaningful distinctions that once held together the fixed terms of Newtonian space (i.e. inside/outside, friend/enemy, citizen/soldier, war/peace, and so forth), he firmly locates the conflict among the world of peoples. With global war there- fore appearing to be an internal state of affairs, vanquishing enemies can no longer be sanctioned for the mere defence of things. A new moment has arrived, in which the destiny of humanity as a whole is being wagered on the success of humanity’s own political strategies. No coincidence, then, that authors like David Kilcullen – a key architect in the formulation of counterinsurgency strategies in Iraq and Afghanistan, argue for a global insurgency paradigm without too much controversy. Viewed from the perspective of power, global insurgency is after all nothing more than the advent of a global civil war fought for the biopolitical spoils of life. Giving primacy to counter- insurgency, it foregrounds the problem of populations so that questions of security governance (i.e. population regulation) become central to the war effort (RAND, 2008). Placing the managed recovery of maladjusted life into the heart of military strategies, it insists upon a joined-up response in which sovereign/militaristic forms of ordering are matched by biopolitical/devel- opmental forms of progress (Bell and Evans, forthcoming). Demanding in other words a planetary outlook, it collapses the local into the global so that life’s radical interconnectivity implies that absolutely nothing can be left to chance. While liberals have therefore been at pains to offer a more humane recovery to the overt failures of military excess in current theatres of operation, warfare has not in any way been removed from the species. Instead, humanized in the name of local sensitivities, doing what is necessary out of global species necessity now implies that war effectively takes place by every means. Our understanding of civil war is invariably recast. Sovereignty has been the traditional starting point for any discussion of civil war. While this is a well-established Eurocentric narrative, colonized peoples have never fully accepted the inevitability of the transfixed utopian prolificacy upon which sovereign power increasingly became dependent. Neither have they been completely passive when confronted by colonialism’s own brand of warfare by other means. Foucault was well aware of this his- tory. While Foucauldian scholars can therefore rightly argue that alternative histories of the subjugated alone permit us to challenge the monopolization of political terms – not least ‘civil war’ – for Foucault in particular there was something altogether more important at stake: there is no obligation whatsoever to ensure that reality matches some canonical theory. Despite what some scholars may insist, politically speaking there is nothing that is necessarily proper to the sovereign method. It holds no distinct privilege. Our task is to use theory to help make sense of reality, not vice versa. While there is not the space here to engage fully with the implications of our global civil war paradigm, it should be pointed out that since its biopolitical imperative removes the inevitability of epiphenomenal tensions, nothing and nobody is necessarily dangerous simply because location dictates. With enmity instead depending upon the complex, adaptive, dynamic account of life itself, what becomes dangerous emerges from within the liberal imaginary of threat. Violence accordingly can only be sanctioned against those newly appointed enemies of humanity – a phrase that, immeasurably greater than any juridical category, necessarily affords enmity an internal quality inherent to the species complete, for the sake of planetary survival. Vital in other words to all human existence, doing what is necessary out of global species necessity requires a new moral assay of life that, pitting the universal against the particular, willingly commits violence against any ontological commitment to political difference, even though universality itself is a shallow disguise for the practice of destroying political adversaries through the contingency of particular encounters. Necessary Violence Having established that the principal task set for biopolitical practitioners is to sort and adjudicate between the species, modern societies reveal a distinct biopolitical aporia (an irresolvable political dilemma) in the sense that making life live – selecting out those ways of life This necessitates a thought space that critically interrogates the problem of stability. The solution is imperceptibilty. An endorsement of the desires that drive an understanding that we are more than the “I” and refuse politics of recognition. Braidotti, Rosi. “The Ethics of Becoming-Imperceptible.” Deleuze and Philosophy, 2006, pp. 133–159., doi:10.3366/edinburgh/9780748624799.003.0009. The becoming-imperceptible is an eruption of desire for the future which reshapes the present. Maybe it is a mistake to call it ‘the future’, also because it smacks of new-age optimism. So let me re-phrase this: it is a time sequence based on Aion, not on Chronos: it marks the time of becoming. It is a qualitative leap which precipitates a change of existential gear, an acceleration, a creative speed. All of this is literally invisible and cannot be perceived by the naked eye- some would call it spiritual, and yet in philosophical nomadism this movement can be conceptualized in terms of immanence. There is no imaginary available to re-present these shifts, so no identification possible. In this sense they mark the death of the self to any notion of identity: it cannot be recognized, it is a radical displacement what traces patterns of estrangement and de territorialization. Deleuze describes this in terms of ‘assemblages”, that is to say “agencements”, which indicates modes of perception which are is not subject-based, but are rather 27 beyond intentionality and identification. Nonetheless, they constitute agency (as in: “agencement”). These processes push the subject to deferral, they are inescapable, ungraspable and beyond reflexivity; the becoming-imperceptible opens up towards the unexpected and unprogrammed. The process of becoming-imperceptible is cosmic, but not in any sentimental or holistic sense of the term. In philosophical nomadism this mode of becoming is rather linked to a sense of inter-connectedness which can be rendered in terms of an ethics of eco-philosophical empathy and affectivity which cuts across species, space and time. Bio-centered egalitarianism is an ethics of sustainable becomings, of affirmative qualitative shifts which de-center and displace the human. The becoming-imperceptible is about reversing the subject towards the outside: a sensory and spiritual stretching of our boundaries. It is away of living more intensively and of increasing one’s potentia with it, but in manner which aims at framing, sustaining and enduring these processes by pushing them to the limit. It is the absolute form of deterritorialization and its horizon is beyond the immediacy of life.NC Action TheoryIdentifying yourself as the cause of your actions is contained in the idea of agency. Korsgaard, The first step is this: To conceive yourself as the cause of your actions is to identify with the principle of choice on which you act. A rational will is a self-conscious causality, and a self-conscious causality is aware of itself as a cause. To be aware of yourself as a cause is to identify yourself with something in the scenario that gives rise to the action, and this must be the principle of choice. For instance, suppose you experience a conflict of desire: you have a desire to do both A and B, and they are incompatible. You have some principle which favors A over B, so you exercise this principle, and you choose to do A. In this kind of case, you do not regard yourself as a mere passive spectator to the battle between A and B. You regard the choice as yours, as the product of your own activity, because you regard the principle of choice as expressive, or representative, of yourself. You must do so, for the only alternative to identifying with the principle of choice is regarding the principle of choice as some a third thing in you, another force on a par with the incentives to do A and to do B, which happened to throw in its weight in favor of A, in a battle at which you were, after all, a mere passive spectator. But then you are not the cause of the action. Self- conscious or rational agency, then, requires identification with the principle of choice on which you act.Moral theories must judge action as a unified whole. If they did not, the separate steps in the chain of action would not be justified. In the process of doing a whole action, the steps are not disconnected, but rather so connected that one interruption would disrupt the entire action. Rodl,Rodl I (R?dl, Sebastian. Self-Consciousness, Harvard University Press, 2000) Suppose I walked from a to c, via b. It may be that I decided to walk from a to b, and, having got there, decided to walk from b to c. Or I decided to walk from a to c, and did. In the former case, I was walking from a to b, and then I was walking from b to c. But only in the latter case, not in the former, was I walking from a to c. As a movement, an action is not an aggregate, but a unity of phases. Negate:NC Social PracticesI value morality. Actions can only make sense in terms of a practice. Korsgaard, The first step is this: To conceive yourself as the cause of your actions is to identify with the principle of choice on which you act. A rational will is a self-conscious causality, and a self-conscious causality is aware of itself as a cause. To be aware of yourself as a cause is to identify yourself with something in the scenario that gives rise to the action, and this must be the principle of choice. For instance, suppose you experience a conflict of desire: you have a desire to do both A and B, and they are incompatible. You have some principle which favors A over B, so you exercise this principle, and you choose to do A. In this kind of case, you do not regard yourself as a mere passive spectator to the battle between A and B. You regard the choice as yours, as the product of your own activity, because you regard the principle of choice as expressive, or representative, of yourself. You must do so, for the only alternative to identifying with the principle of choice is regarding the principle of choice as some a third thing in you, another force on a par with the incentives to do A and to do B, which happened to throw in its weight in favor of A, in a battle at which you were, after all, a mere passive spectator. But then you are not the cause of the action. Self- conscious or rational agency, then, requires identification with the principle of choice on which you act.Thus, the standard is consistency with the form of social practices. Prefer the standard,Plea bargains are a constitutive part of the criminal justice system, which means they are consistent with the social practice of the CJS. NPR, Writing for the majority, Justice Anthony Kennedy noted that 95 percent of all convictions in this country are the result of plea bargains, not trials. The reality, he said, is that the criminal justice system is a system of pleas. And the right to competent assistance of counsel at trial that is guaranteed by the Constitution cannot exclude the central role plea bargaining plays at the pre-trial stage of the proceedings. In all but a very few cases, said Kennedy, the pre-trial horse trading between prosecution and defense lawyers determines who goes to jail and for how long. It's not some adjunct to the criminal justice system. It is the criminal justice system.The government’s constitutive role is to enforce the law, if it were not, then there is no point in a government; which means that the social practice of government must rest assure addressing violations of the law. It would not be possible for the government to do so without bargaining which necessitates inconsistency with the standard. OSBA, “What You Should Know about Plea Bargains in Criminal and Traffic Cases.” Ohio State Bar Association,ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-587.aspx. Trials are both time-consuming and expensive. For the government to conduct a trial for even a relatively minor traffic offense can require a trial by jury, involving eight jurors and several witnesses. Such a trial can take a day or more to conduct, and the government must pay the participants jurors, the judge, the prosecutor and the police officers’ salaries or overtime. In 2011, 120,964 criminal misdemeanor and traffic cases were filed in the Franklin County Municipal Court alone. That court has 15 judges and about 30 prosecutors, and the prosecutors and judges handle civil cases as well. It would not be possible for the government to try all of these cases in a year, so plea bargaining is one way to makes sure violations of law are addressed, given the limited prosecutorial and judicial resources available.22 MVLA MS Aff KantFirst, Ideal theory’s A) inevitable, which non-uniques disads and B) frames non-ideal judgments. Arvan ’14: Posted by Marcus Arvan on 05/03/2014 at 11:05 AM What's not wrong with ideal theory is fallacious. I entirely agree that it is important not to confuse the ANDto do nonideal theory inevitably -- if only tacitly -- appeals to ideals.Second, Moral claims must be a priori—our perceptions are inherently suspect, since we can’t verify if our experiences are correct except through these experiences Kant: We have therefore wantedANDcan be very different.Thus, the meta-ethic is procedural moral realism. Korsgaard ONE clarifies:What distinguishes substantive from procedural realism is a view about the relationship between the answers ANDfacts that exist independently of those procedures, which those procedures track.35Prefer since substantive realism relies on an implausible epistemology. Korsgaard TWO:Substantive realism conceivesANDhe meant to make.Here’s the procedure: it’s practical reason. Korsgaard THREE: The reflective structureAND arises from reflective rejection.Implications: Analytic2. AnalyticThat implies intersubjectivity—Reasons must be public, explaining why we can understand the reasons others have, while still identifying primarily with our own. Thus reasons must be universal since they stem from humanity. Korsgaard FOUR: There are reasons for caring ANDwho have them.Implications: A) analyticB) analyticAnalyticIndependent warrants:1) The nature of laws implies the state must look to the united will. Ripstein 09 Bracketed for clarityAll people have the ANDbind everyone it governs.Impacts:A) analyticB) analytic Thus, the standard is consistency with a system of equal and outer freedom.Retribution is the only form of punishment that satisfies autonomy. ShusterShuster, Arthur. “Kant on the Role of the Retributive Outlook in Moral and Political Life.” The Review of Politics, vol. 73, no. 3, 2011, pp. 425–448. JSTOR, JSTOR, stable/23016518. MSIn the section of the...his three Critiques). Plea bargaining can’t be retributive. KipnisKipnis, Kenneth. “Plea Bargaining: A Critic's Rejoinder.” Law and Society Review, vol. 13, no. 2, 1979, pp. 555–564. JSTOR, JSTOR, stable/3053268. MSIn my earlier article...the le gitimacy of plea bargain.And, it’s intrinsically coercive. BrunkBrunk, Conrad G. “The Problem of Voluntariness and Coercion in the Negotiated Plea.” Law and Society Review, vol. 13, no. 2, 1979, pp. 527–553. JSTOR, JSTOR, stable/3053267. MSCritics of plea bargaining,... physical constraint" (North Carolina v. Alford, 400 U.S. 25, 40, 196th amendment guarantees defendants’ rights to a jury trial. US Constitution: all criminal prosecutions, ... counsel for his defense.Plea bargaining offers defendants incentives to waive their right to a jury trial – that’s not constitutional. Penn Law ReviewConstitutional Alternatives to Plea Bargaining: A New Waive.”University of Pennsylvania Law Review, vol. 132, no. 2, Jan. 1984, pp. 327–329., scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627andcontext=penn_law_review. MSThe right, to a 0 ... of the issue before it."'"Constitution first. Korsgaard:Pages 8-9 SELF-CONSTITUTION CHRISTINE M. KORSGAARD SELF—CONSTITUTION IN THE ETHICS OF PLATO AND KANT ’ (Received and accepted 15 September 1998In fact, the main ... Book 1 turns out to be true.22 MVLA MS Neg Court ClogFederal judicial caseloads are stable and declining nowAdministrative Office of the U.S. Courts 16 (United States Courts, "Federal Judicial Caseload Statistics 2016", ) This report presents data on the work of the appellate, district, and bankruptcy courts and on the probation and pretrial services systems. Below is a summary of key findings provided for the year ending March 31, 2016. In the U.S. courts of appeals, filings held steady, dropping 1 percent. The bankruptcy appellate panels reported a 20 percent reduction in filings. Filings in the U.S. Court of Appeals for the Federal Circuit grew 6 percent. In the U.S. district courts, filings of civil cases decreased 2.5 percent, while filings for defendants charged with crimes fell less than 1 percent. The U.S. bankruptcy courts received 9 percent fewer petitions. The number of persons under supervision by the federal probation system on March 31, 2015, was 3 percent higher than the total reported one year earlier. The number of pretrial services cases activated in the past 12 months dropped 3 percent. U.S. Courts of Appeals Filings in the 12 regional courts of appeals remained relatively stable, falling by 595 to 53,649 (down 1 percent). Plea bargaining props up the courts now – abolitions results in collapseDevers 11 Lindsey, Ph.D and Research Analyst of Criminal Justice for CSR Incorporated, "Plea and Charge Bargaining: Research Summary", Published by the Bureau of Justice Assistance for the U.S. Department of Justice, Summary.pdf, Date Published: January 24, Date Accessed: December 13, 2017The overwhelming majority (90 to 95 percent) of cases result in plea bargaining. f Prosecutorial discretion in plea bargaining is known to cause discrepancies in sentencing outcomes. f Those who go to trial rather than accept a plea are more likely to receive harsher sentences. f Legal variables, including the seriousness of the current offense and prior record, are important factors in determining whether a charge will be reduced and by how much. f The majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas. f Evidence concerning gender and age in this research has been inconclusive. f Both legal and extralegal characteristics are heavily influenced by prosecutorial discretion and by the region where the case is processed. POLICY IMPLICATIONS AND FUTURE RESEARCH Prosecutorial discretion and legal and extralegal characteristics affect the plea bargaining process. Several avenues of concern arise when abolishing or reforming this process is considered. To date, two studies have investigated the impact of what happens to the system when plea bargaining is abolished. These studies found an increase in the number of cases brought to trial when plea bargaining was limited, and over time the number of convictions became more consistent (Heumann and Loftin, 1979; Holmes et al., 1992). Plea bargaining is an inherent part of the criminal justice system. An official ban on plea bargaining is therefore impractical. This has even been recognized by various scholars and policymakers who argue that the system is in need of reform (Barkow, 2006; Bibas, 2001, 2004; Bohm, 2006; Bowen, 2009; Brown, 2005; Gorr, 2000; Guidorizzi, 1998; Ma, 2002; Stuntz, 2004; Wright, 2005; Zacharias, 1998).Turns case: court clog means no justice. Bannon 13 (Alicia Bannon Counsel, Brennan Center for Justice at NYU School of Law, 9-10-2013, "Testimony: More Judges Needed in Federal Courts," Brennan Center, )The growing workload in district courts around the country negatively impacts judges’ ability to effectively dispense justice, particularly in complex and resource-intensive civil cases, where litigants do not enjoy the same “speedy trial” rights as criminal defendants. For example, median time for civil cases to go from filing to trial has increased by more than 70 percent since 1992, from 15 months to the more than two years (25.7 months). Older cases are also increasingly clogging district court dockets. Since 2000, cases that are more than three years old have made up an average of 12 percent of the district court civil docket, compared to an average of 7 percent from 1992-1999. For a small company in a contract dispute or a family targeted by consumer fraud, these kind of delays often mean financial uncertainty and unfilled plans, putting lives on hold as cases wind through the court system. All too often, justice delayed in these circumstances can mean justice denied. These patterns of delay are starkly reflected in the districts for which additional judgeships are recommended, many of which lag behind the national average in key metrics. In the Eastern District of California, for example, the median time for civil cases to go from filing to trial is almost four years (46.4 months). This district would receive six additional permanent judgeships and one additional temporary judgeship under the Act. In the Middle District of Florida, over 23 percent of the civil docket is more than three years old. This district would receive five additional permanent judgeships and one additional temporary judgeship under the Act. The federal courts are a linchpin of our democracy, protecting individual rights from government overreach, providing a forum for resolving individual and commercial disputes, and supervising the fair enforcement of criminal laws. In order for judges to perform their jobs effectively, however, they must have manageable workloads. The Brennan Center urges Congress to promptly pass the Federal Judgeship Act of 2013, so as to ensure the continued vitality of our federal courts. Spills over internationallyKommers ’09 Donald P. Kommers, professor of political science and law, Notre Dame, M.A. and Ph.D. in political science, Wisconsin-Madison. : "US Supreme Court: International Impact of Court Decisions,” written: 7/19/09 v. Madison (1803) held that the power of a court to say what the Constitution means was implicit in an independent judiciary. This power of judicial review was a unique feature of American constitutionalism well into the twentieth century. The perceived success of this experiment prompted several nations emerging from the ruins of World War II to include explicit provisions for courts of judicial review in their new constitutions. By the end of the century, almost every constitutional democracy in the world had adopted judicial review in one form or another. In explicit recognition of the American tradition of judicial review, many nations conferred this power on special constitutional courts. But several common law countries, following the American model, empowered all judges to decide constitutional issues subject to final review by their highest appellate courts. Among the world's most notable constitutional tribunals, apart from the United States Supreme Court, are the constitutional courts of Germany, Italy, Hungary, and South Africa, along with the highest appellate courts of countries such as Canada, India, Australia, and Japan. In the beginning, as fledgling institutions, these courts had few if any precedents to look to when interpreting their constitutions. It was only natural, then, that many of them would turn to the American experience for guidance in shaping their own law. As Aharon Barak, president of Israel's Supreme Court, said in 2003, “We foreign jurists all look to developments in the United States as a source of inspiration.” The constitutional case law of Canada, Australia, India, South Africa, and other national high courts is studded with references to American judicial precedents, especially in the areas of speech, press, association, and criminal procedure. New York Times Co. v. Sullivan (1964)—a free speech decision—is just one example of an important case that has received substantial attention in nearly all these courts. Even when such decisions are not cited, foreign courts often employ terminology clearly borrowed from American case law; they have also borrowed heavily from the rhetoric of liberty found in the judicial dissents of justices like Louis Brandeis, Oliver Wendell Holmes, Earl Warren, and William Brennan. The fierce independence associated with the exercise of judicial review by these and other justices has served as a model of constitutional justice around the world.NC ContractualismanalyticanalyticanalyticFirst, what is good must motivate us. Scanlon ONE:Attempts to explain how ... external incentives for being moral).analyticSecond, contractualism meets this obligation. Scanlon TWO: So we need a further ... virtue of being a person.analyticanalyticIndividuals choose plea bargaining as the best option available – foreclosing that path denies a) their choice and b) removes an opportunity they currently haveEasterbrook 69Frank H. Easterbrook, "Plea Bargaining as Compromise," 101 Yale Law Journal 1969 (1992)Part I of the Scott and Stuntz ... convicted and receive a sentencePIC Death Penalty CasesText: In the United States criminal justice system, plea bargaining ought to be abolished except in post-trial death sentences.Adam M. Gershowitz 16, Post-Trial Plea Bargaining in Capital Cases: Using Conditional Clemency to Remove Weak Cases from Death Row, 73 Wash. and Lee L. Rev. 1359 (2016), bargaining accounts for ... decades of unruly litigation.The CP is uniquely key to ending the death penalty- other methods don't have the political impetus.Adam M. Gershowitz 16, Post-Trial Plea Bargaining in Capital Cases: Using Conditional Clemency to Remove Weak Cases from Death Row, 73 Wash. and Lee L. Rev. 1359 (2016), system in which the ... judges, prosecutors, legislators, or jurors.There's a unanimous consensus- the death penalty is racist.Row '11 (David R. Row. "Death Penalty, Still Racist and Arbitrary." July 8, 2011. Accessed December 15, 2017. )Several years after the death penalty... because the victim was white).The death penalty is rooted in lynching culture.Leah '17 (Rachel Leah. "The Death Penalty's Ugly, Racist Roots." October 11, 2017. Accessed December 15, 2017. )"There’s a long, ugly...really positive thing."XT No GitmoA. Interpretation: The affirmative may only derive offense from resolutional action, not extra-resolutional action.B. Violation:You generate offense from plea bargaining in places like Guantanamo Bay where the US has control, but where our criminal justice system does not exist. Finn ’12: High-value Guantanamo Bay detainee, in first, reaches plea deal By Peter Finn February 22, 2012A former Baltimore ... familiar with the case.C. Prefer:Limits.Theory Spec PBInterpretation: Debaters on the Jan/Feb 2017 Topic must specify the kind of plea bargain There are two types of plea bargains that vary drasticallyCornell Law 11 LII / Legal Information Institute. "Rule 11. Pleas." LII / Legal Information Institute. 30 Nov. 2011. Web. 15 Dec. 2017. (c) Plea Agreement Procedure...plea agreement contemplated.Standards:Ground 2. Strat Skew 3. Resolvability23 Harker AM Aff Util w/ Balkans & South Africa AdvFrameworkI affirm the resolution – Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.Palmer 99 (Jeff Palmer (Executive Editor, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law.), “Abolishing Plea Bargaining: An End to the Same Old Song and Dance,” American Journal of Criminal Law 26:505, University of Texas School of Law, 1999 //MW)IV. New Arguments for Abolishing Plea Bargaining in Light of Bailey 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 bargaining that induces it as simply another type of contractual transaction." n126 The problem arises when a defendant'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. n127 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 n128 and its effect on the criminal justice system illustrate the problem and dilemma with plea bargaining. Title 18, United States Code, section 924(c) (1), provides for a sePte offense when a defendant carries or uses a firearm during or in relation to a violent crime or drug trafficking. n129 The statute states: (c) (1) (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use [*529] of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. n130 The Court in Bailey v. United States, interpreted the word "use" in the statute to require active employment of a firearm. n131 In May 1989, Roland Bailey was stopped for a traffic violation when police officers noticed that his car lacked a front license plate and an inspection sticker. n132 After Bailey failed to produce a driver's license, the police ordered him out of the car and saw him place something between the front console and the seat. n133 Upon searching the passenger compartment, the officers found "one round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine." n134 Once Bailey was arrested, the officers searched the trunk of the vehicle and found a large sum of cash and a bag containing a loaded 9-mm pistol. n135 "Bailey was charged on several counts, including using and carrying a firearm in violation of 18 U.S.C. 924 (c) (1)." n136 He was convicted by a jury in the trial court on all charges n137 and the Court of Appeals for the District of Columbia affirmed his conviction under the statute holding that the jury could have reasonably inferred that the gun facilitated Bailey's commission of the drug offense. n138 The Supreme Court reversed both lower court judgments holding that "use" of a firearm requires active employment and "the inert presence of a firearm, without more, is not enough to trigger 924(c) (1)." n139 This new interpretation and retroactive application of the meaning of the word "use" under Bailey allowed many prisoners to use a writ of habeas corpus to attack their convictions which were based on the passive use of a firearm. Courts have taken two approaches to collateral attacks of plea [*530] agreements under Bailey. Some courts allow the defendant to be reindicted after a successful collateral attack of the plea agreement. n140 Other courts have upheld the plea agreement as a contract and allowed the defendant to go free. n141 Both of these approaches leave a lot to be desired. Allowing the reindictment of the defendant seems to be almost unconscionable and would appear to violate the notion of double jeopardy. Enforcing the plea agreement and allowing the defendant to go free seems to distort the perceptions of justice and just punishment. The majority of courts have allowed the defendant to be reindicted after a successful collateral attack based on Bailey. The courts have offered several reasons for allowing reindictment: 1) breach of contract, 2) frustration of purpose, 3) mutual mistake, and 4) statutory language. Courts have held that a defendant breaches the plea agreement by his voluntary choice to challenge his conviction.n142 Other courts have held that a successful collateral attack on a plea agreement discharges the government's contractual obligations under the frustration of purpose doctrine. n143 The government's purpose for the plea agreement is to ensure that the defendant will substantially serve the sentence for his offense, which is frustrated by a successful collateral attack of the conviction. At least one court has allowed reindictment under a theory of mutual mistake. n144 The plea agreement is voided because both parties were mistaken about the law and what actions constituted an offense. Finally, courts have looked to the statutory language of Title 28, United States Code, section 2255, which gives the court discretion to resentence the defendant. n145 Section 2255 provides: [*531] A prisoner in custody under sentence of a court ... may move the court which imposed the sentence to vacate, set aside or correct the sentence... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, ... the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. n146 Courts using the statutory language to reindict the defendant stress that when a conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture ... if that appears necessary in order to ensure that the punishment still fits both crime and criminal. n147 Other courts allow the conviction to be vacated after a successful collateral attack. n148 These courts rely on theories of impracticability, double jeopardy, and due process. Courts have held that a defendant was excused from performance under the plea agreement because of an intervening impracticability - the change in the law. n149 Some courts have also recognized that the Double Jeopardy Clause prevents the court from resentencing "once the defendant has developed a legitimate "expectation of finality in the original sentence' imposed on his unsuccessfully appealed, or non-appealed, convictions." n150 Further, notions of due process and [*532] fundamental fairness have caused some courts to refuse to reindict defendants. n151 Lastly, the Ninth Circuit in an attempt to distinguish their use of statutory language in United States v. Barron, has held that defendants can challenge the validity of their convictions without breaching the plea agreement but cannot attack the plea agreements themselves. n152 Congress has just recently attempted to close the loophole created by the Bailey decision. n153 On November 13, 1998, the President signed Public Law 105-386, which changes section 924(c) by striking the current "uses or carries" standard and replacing it with the terms "possessing, brandishing, or discharging." n154 Presumably, the term "possessing" will do away with Bailey's requirement for active use of the firearm. Nevertheless, Bailey helps illustrate the problem of inconsistent treatment of plea agreements. It is only a matter of time before another statute is interpreted by the Court or a new law passed which will start the vicious cycle of collateral attacks on plea agreements again. n155 The end result of the inconsistent treatment of plea agreements is that plea bargaining becomes more and more a gamble for the defendant. The defendant not only gambles that he will receive a lenient sentence by plea bargaining but also that the court will not allow reindictment in stituations similiar to Bailey. Plea bargaining is transformed into a game of Russian [*533] roulette, where the state may or may not be permitted to put more than one bullet in the revolver. Likewise, even if the defendant was lucky enough to win the game of chance, many people would still view society as the loser. Plea bargaining must be abolished because there are no other suitable reforms to the criminal justice system.The standard is maximizing expected wellbeing as contextualized by impacts on case – maximizing wellbeing is the theory of the good. The constitutive obligation of the state is to protect citizen interest—individual obligations are not applicable in the public sphere. Goodin 95 Robert E. Goodin. Philosopher of Political Theory, Public Policy, and Applied Ethics. Utilitarianism as a Public Philosophy. Cambridge University Press, 1995. p. 26-7The great adventure of utilitarianism as a guide to public conduct is that it avoids gratuitous sacrifices, it ensures as best we are able to ensure in the uncertain world of public policy-making that policies are sensitive to people’s interests or desires or preferences. The great failing of more deontological theories, applied to those realms, is that they fixate upon duties done for the sake of duty rather than for the sake of any good that is done by doing one’s duty. Perhaps it is permissible (perhaps it is even proper) for private individuals in the course of their personal affairs to fetishize duties done for their own sake. It would be a mistake for public officials to do likewise, not least because it is impossible. The fixation on motives makes absolutely no sense in the public realm, and might make precious little sense in the private one even, as Chapter 3 shows. The reason public action is required at all arises from the inability of uncoordinated individual action to achieve certain morally desirable ends. Individuals are rightly excused from pursuing those ends. The inability is real; the excuses, perfectly valid. But libertarians are right in their diagnosis, wrong in their prescription. That is the message of Chapter 2. The same thing that makes those excuses valid at the individual level – the same thing that relieves individuals of responsibility – makes it morally incumbent upon individuals to organize themselves into collective units that are capable of acting where they as isolated individuals are not. When they organize themselves into these collective units, those collective deliberations inevitably take place under very different circumstances and their conclusions inevitably take very different forms. Individuals are morally required to operate in that collective manner, in certain crucial respects. But they are practically circumscribed in how they can operate, in their collective mode. And those special constraints characterizing the public sphere of decision-making give rise to the special circumstances that make utilitarianism peculiarly apt for public policy-making, in ways set out more fully in Chapter 4. Government house utilitarianism thus understood is, I would argue, a uniquely defensible public philosophy.Util is axiomatically true - all value stems from experienced wellbeing. Harris 10Sam Harris 2010. CEO Project Reason; PHD UCLA Neuroscience; BA Stanford Philosophy. ?The Moral Landscape: How Science Can Determine Human Values.”I believe that we will increasingly understand good and evil, right and wrong, in scientific terms, because moral concerns translate into facts about how our thoughts and behaviors affect the well-being of conscious creatures like ourselves. If there are facts to be known about the well-being of such creatures—and there are—then there must be right and wrong answers to moral questions. Students of philosophy will notice that this commits me to some form of moral realism (viz. moral claims can really be true or false) and some form of consequentialism viz. the rightness of an act depends on how it impacts the well-being of conscious creatures). While moral realism and consequentialism have both come under pressure in philosophical circles, they have the virtue of corresponding to many of our intuitions about how the world works. Here is my (consequentialist) starting point: all questions of value (right and wrong, good and evil, etc.) depend upon the possibility of experiencing such value. Without potential consequences at the level of experience—happiness, suffering, joy, despair, etc. —all talk of value is empty. Therefore, to say that an act is morally necessary, or evil, or blameless, is to make (tacit) claims about its consequences in the lives of conscious creatures (whether actual or potential).I am unaware of any interesting exception to this rule. Needless to say, if one is worried about pleasing God or His angels, this assumes that such invisible entities are conscious (in some sense) and cognizant of human behavior. It also generally assumes that it is possible to suffer their wrath or enjoy their approval, either in this world or the world to come. Even within religion, therefore, consequences and conscious states remain the foundation of all values.?Moral uncertainty means we default to preventing extinction under any ethical frameworkBOSTROM 11(2011) Nick Bostrom, Future of Humanity Institute, Oxford Martin School & Faculty of PhilosophyThese reflections on moral uncertainty suggest[s] an alternative, complementary way of looking at existential risk. Let me elaborate. Our present understanding of axiology might well be confused. We may not now know—at least not in concrete detail—what outcomes would count as a big win for humanity; we might not [or] even yet be able to imagine the best ends of our journey. If we are indeed profoundly uncertain about our ultimate aims, then we should recognize that there is a great option value in preserving—and ideally improving—our ability to recognize value and to steer the future accordingly. Ensuring that there will be a future version of humanity with great powers and a propensity to use them wisely is plausibly the best way available to us to increase the probability that the future will contain a lot of value. To do this, we must prevent any existential catastrophe.Death is the worst form of evil since it destroys the subject itself.Paterson 03 – Department of Philosophy, Providence College, Rhode Island (Craig, “A Life Not Worth Living?”, Studies in Christian Ethics.Contrary to those accounts, I would argue that it is death per se that is really the objective evil for us, not because it deprives us of a prospective future of overall good judged better than the alter- native of non-being. It cannot be about harm to a former person who has ceased to exist, for no person actually suffers from the sub-sequent non-participation. Rather, death in itself is an evil to us because it ontologically destroys the current existent subject — it is the ultimate in metaphysical lightening strikes.80 The evil of death is truly an ontological evil borne by the person who already exists, independently of calculations about better or worse possible lives. Such an evil need not be consciously experienced in order to be an evil for the kind of being a human person is. Death is an evil because of the change in kind it brings about, a change that is destructive of the type of entity that we essentially are. Anything, whether caused naturally or caused by human intervention (intentional or unintentional) that drastically interferes in the process of maintaining the person in existence is an objective evil for the person. What is crucially at stake here, and is dialectically supportive of the self-evidency of the basic good of human life, is that death is a radical interference with the current life process of the kind of being that we are. In consequence, death itself can be credibly thought of as a ‘primitive evil’ for all persons, regardless of the extent to which they are currently or prospectively capable of participating in a full array of the goods of life.81 ?In conclusion, concerning willed human actions, it is justifiable to state that any intentional rejection of human life itself cannot therefore be warranted since it is an expression of an ultimate disvalue for the subject, namely, the destruction of the present person; a radical ontological good that we cannot begin to weigh objectively against the travails of life in a rational manner. To deal with the sources of disvalue (pain, suffering, etc.) we should not seek to irrationally destroy the person, the very source and condition of all human possibility.82?InherencyPlea bargaining is spreading to international courts because of US, but hasn’t been fully accepted yet – the time to act is nowTurner 17 (Jenia Iontcheva, 2/27/2017, Professor of Law at SMU Dedman School of Law, “Plea Bargaining and International Criminal Justice” The University of the Pacific Law Review, Vol. 48. DA: 12/14/17)Over the last two decades, plea bargaining has spread beyond the countries where it originated—the United States and other common law jurisdictions—and has become a global phenomenon. Plea bargaining is spreading rapidly to civil law countries that previously viewed the practice with skepticism. And it has now arrived at international criminal courts. While domestic plea bargaining is often limited to non-violent crimes, the international courts allow sentence negotiations for even the most heinous offenses, including genocide and crimes against humanity.4 Its use remains highly controversial, and debates about plea bargaining in international courts continue in court opinions and academic commentary: is it appropriate to offer sentencing concessions to a defendant who pleads guilty to a heinous crime involving thousands of victims? How can the avoidance of a public trial be reconciled with some of the professed goals of international criminal law, including the goal of creating a more accurate historical record of the atrocities and that of providing victims with a voice in the process? Conversely, given the very limited resources and enforcement powers of international criminal courts, could these courts achieve any of their goals effectively without the use of plea bargaining? The guilty plea of Biljana Plav?i? at the International Criminal Tribunal for the former Yugoslavia (ICTY) illustrates some of the potential pitfalls of plea bargaining in international crimes cases. As co-president of the Serbian Republic in Bosnia and Herzegovina, Plav?i? assisted in the campaign of ethnic cleansing against Bosnian Muslims and Croats, which resulted in the killing of more than 50,000 non-Serbs and the expulsion of many more. She was indicted on two counts of genocide and six counts of crimes against humanity. In return for her guilty plea to persecution as a crime against humanity, prosecutors dropped both genocide counts and five of the lesser crimes against humanity counts and recommended a sentence of 15 to 25 years of imprisonment. Yet the Trial Chamber sentenced Plav?i? to 11 years, noting that her guilty plea made a significant contribution to uncovering the truth about the crimes and promoting reconciliation in the region. The court’s leniency enraged Bosnian Muslims, and their outrage was reignited when, just before her early release for “good behavior,” Plav?i? publicly renounced her admission of guilt and stated that she had pleaded guilty simply to get a break in her sentence. Plav?i?’s case was by no means the only one in which international prosecutors offered to drop serious charges and recommend a more lenient sentence to obtain a defendant’s guilty plea.13 Nor was it the only one in which defendants offered statements of remorse and the court rewarded them with leniency, but their sincerity and effect on reconciliation remained in question.14 Plav?i?’s case was also one of several in which the defendant received significant sentencing or charging reductions even though he or she did not cooperate with the prosecution in other cases. Plav?i?’s guilty plea—and others like it—may help explain why international criminal courts have not fully embraced plea bargaining. Indeed, ICTY judges have on several occasions refused to follow the parties’ sentence agreements and in some cases have attempted to place limits on charge bargaining.16 While judges have recognized the potential of plea bargaining to contribute to truthseeking and reconciliation (particularly when the defendant cooperates with the prosecution in other cases), they have also remained skeptical of guilty pleas that are rewarded for nothing more than their efficiency.BalkansUS plea bargaining is modeled globally and we actively export it through legal aid and training- including to the Balkans right nowThe Economist, 17 ["The troubling spread of plea-bargaining from America to the world," 11-9-17, , accessed 12-15-17]The troubling spread of plea-bargaining from America to the world A tool for making justice swifter too often snares the innocent A PROTEST in Madrid about the cost of the pope’s visit in 2011, when Spain’s economy was moribund, was not the first Flavia Totoro had attended. Marching alongside families, she was unconcerned about her safety. But after an altercation with police she and seven others were arrested. She was charged with assaulting an officer. Just before her trial she was offered the chance to plead guilty, in which case she could avoid a possible 18-month prison sentence and merely pay a fine. If all the defendants pleaded guilty, none would be imprisoned, the prosecutor said. But if she insisted on going to trial, the others would go, too. Unwilling to jeopardise other people’s freedom, she accepted, though she still maintains she was innocent and could have proved it in court. In plea-bargaining, as the promise of a lesser penalty in return for a guilty plea is commonly known, prosecutors offer to drop some charges, to replace the original charge with a less serious one or to seek a lower sentence. It has long been central to America’s criminal-justice system. But over the past three decades it has spread across the world. A study of 90 countries by Fair Trials International, a campaigning group, found that in 1990 just 19 used some form of plea-bargaining. Now 66 do. Plea-bargaining took off in America around 1920 with Prohibition, which led to a steep increase in the number of criminal offences. By 1930 the number of federal prosecutions under the Prohibition Act alone was eight times the total figure for all federal prosecutions in 1914. Bargaining with defendants to plead guilty in return for lighter punishment seemed like the only way to cope. Prohibition ended in 1933, but plea bargains did not. Since 1970, when the Supreme Court ruled that they were permissible, they have become ubiquitous. In 1980 some 19% of federal defendants went to trial. In 2010 the share was below 3%, where it remains. Practice in other countries varies widely. In Australia, England and Russia more than 60% of cases are resolved with plea bargains. In Chile, India and Italy, the share is less than 10%. Some recent converts to plea bargains have adopted them with vim. In Georgia, which has allowed them since 2004, the share of convictions that involved a plea bargain rose from 13% in 2005 to 88% in 2012. Export deals The central role of plea-bargaining in America goes some way to explaining its spread elsewhere. America’s criminal-justice system has a big influence globally, with legal training often forming part of its foreign-aid efforts. The Office of Overseas Prosecutorial Development Assistance and Training (OPDAT), part of the Department of Justice, was established in 1991, after the break-up of the Soviet Union and as the war on drugs in Latin America intensified. Among the countries where America helped new governments with legal reforms are Bolivia, Colombia, Poland and Russia. Plea-bargaining was often among the suggested reforms. OPDAT is now helping to write guidance on criminal procedures, including plea-bargaining, in Croatia and the western Balkans. In Ukraine it trains justice officials in the system. Last year it started work with Guatemala on introducing plea-bargaining to clear a backlog of cases.US exporting plea bargaining to the Balkans collapses rule of law- the public sees it as corruption and social psychology literature proves public perception of legitimacy is key to the rule of lawAlkon, 2010 -- Appalachian School of Law assistant professor of law [Cynthia "Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?," Transnational Law & Contemporary Problems, Vol 19:355, Spring 2010, , accessed 12-15-17]Countries struggling with overburdened criminal justice systems often decide to introduce U.S.-style plea bargaining as part of a larger process of criminal procedure reform. Plea bargaining, however, is not simply a technical change in process.' Policymakers and rule of law assistance providers should consider the consequences of this new procedure beyond simple case processing. The introduction of plea bargaining requires legal professionals to adapt to a new way of doing their jobs. It potentially changes how defendants and victims view the system. It also carries the potential to change how the general public views the legal system. This can be of particular concern in countries struggling to establish the rule of law. Plea bargaining requires informal negotiation. This informal negotiation may look like another form of corruption in countries whose legal systems already suffer from endemic corruption and serious legitimacy problems. This Article will examine the potential consequences of this emerging trend on rule of law development in countries lacking a strong human rights tradition, focusing particularly on countries of the former Soviet Union and the former Yugoslavia. 2 This Article questions whether it is advisable for policymakers and rule of law assistance providers to recommend and encourage troubled criminal justice systems, a term defined in Part II, to adopt plea bargaining.3 Part III provides two examples of countries that recently adopted U.S.-style plea bargaining: the Republic of Georgia and Bosnia and Herzegovina. Both countries illustrate the potential concerns and pitfalls of transplanting plea bargaining into a troubled criminal justice system.4 The Republic of Georgia provides an example of how plea bargaining's informal negotiation may look like another form of corruption in a country where the legal system already suffers from endemic corruption and serious legitimacy problems. Bosnia and Herzegovina provides an example of how difficult it is to integrate a new practice into an existing criminal justice system and the challenge to not repeat existing bad practices within the new process. A key question is how this new process impacts the overall development of the rule of law. Part IV explores the importance of public attitudes and perceptions in developing the rule of law and looks to the social psychology literature on legitimacy and procedural justice. This literature suggests that troubled criminal justice systems should not introduce procedures that cause further erosion of public perceptions of legitimacy.Judicial legitimacy and rule of law is key to state stability – decline in credibility causes civil conflict and backsliding to authoritarianismIqbal and Starr 16 – Zaryab Iqbal, Harvey Starr (“Recurrent Collapse and Its Causes,” Chapter 5 in State Failure in the Modern World, Stanford University Press, Pages 58-60, Google Books)While the level of democracy may be used to complement other factors that represent state involvement with other actors in the global system, it might also be seen as part of a cluster of factors related to governmental performance and legitimacy. This is not the place to join the debate over exactly what makes a democracy a democracy, and what data sets best tap into those core features of the concept, or the de facto structure and behavior of democracies. One dimension of this highly complex and contested concept is, however, the existence and level of judicial independence. For example, Gibler and Randazzo (2011) discuss the various ways courts build legitimacy, and argue that courts with legitimacy can be a powerful constraining actor within governmental structures. To achieve such legitimacy, courts must have judicial independence. Gibler and Randazzo (2011, 698) describe a weak version of judicial independence based on a selection effect: “Courts matter by providing constraints on the crafting of legislation.” A stronger version is based on the courts maintaining the rule of law: “The stronger version of judicial independence argues that courts can play a central role in guaranteeing democratic stability.” Their analysis indicates that “established independent judiciaries prevent regime changes toward authoritarianism across all types of states. Established courts are also capable of thwarting regime collapses in nondemocracies” (696). We can look at our matched cases using a composite score for judicial in- dependence. Scores run from zero (no independence) to I (complete independence) and were calculated based on a Bayesian latent variable measurement model.“ As seen in Table 5.3, although many of the scores are quite low, the lowest scores belong to double-failure cases, and each of the single-failure countries does better on judicial independence than its double-failure counterpart. Governmental performance, a government’s ability to meet the basic needs of its population, has been, as noted, one view of what makes a failed state “failed.” Murph-Schwarzer (2011), notes that human security goes beyond freedom from need or freedom from fear, but must include freedom from want. Directly touching on state failure, she also notes: “As the insecurity threshold becomes unbearable, individuals are presented with two options: to either force the government to act on their behalf (often resulting in civil con?ict) or to move." The growing literature on human security (for example, United Nations Development Programme 1994; Hampson et a1. 2002; Mack 2005; Murph- Schwarzer 2011) has pointed to a number of indicators of “quality of life” that could operationalize human security, with many arguing that the UN Human Development Programme’s Human Development Index is as good a summary measure as we have. Here, we can use HDI in only a limited way. There are major gaps in the HDI data especially for the initial failures of the double- failure group. However, using HDl scores that occur at the times of the second failures, the set of matched cases look very similar. All of them sit in the UNDP “low human development” category for the years involved. The one pair with data that approximate the ?rst failure and the date of the matched case—Ivory Coast and the Solomon Islands—does show a bit of a gap in favor of the single-failure country: the Solomon Islands with 0.479 against Ivory Coast’s 0.397 (again, both in the “low” category). A related comparison, which, again, is available only for this pair (approximating the dates for the failure cases) is life expectancy at birth. For both males and females, the Solomon Islands clearly does better than the Ivory Coast: Specifially, the Balkans are a fragile powder keg- instability will pull in outside powers- causes US-Russia conflictGeopolitical Futures, 16 [Think tank founded by George Friedman, who also founded the geopolitical intelligence firm Stratfor,"The Balkans: Still the Powder Keg of Europe?," 9-22-16, gonzaloraffoinfonews.2016/10/the-balkans-still-powder-keg-of-europe.html, accessed 12-15-17]The Balkan Peninsula is at the intersection of crises in Eurasia. Russia, Turkey, the European Union and the United States all have stakes in the region’s stability. But their national interests diverge. In times of crisis, the Balkans’ internal problems tend to pull in outside powers. If the rest of Eurasia looks similar to how it looked before WWII, the Balkans look similar to how they looked prior to WWI. The various rivalries in the region are still quite active, and the hatred between the Serbs, Croats, Bosniaks and Kosovars keeps tension high in the region. Economically, the Balkan region is by far the least developed and most strained of any region in Europe. High unemployment rates coupled with the region’s dependency on exports contribute to rising social problems. Outside powers’ influence is nothing new to the Balkans. Foreign countries have used trade and investment to establish their influence in the region, which, in turn, brings new vulnerabilities to Balkan countries. The resolution of the current Balkan crisis depends on the way these countries decide to act – and they all have very little room to maneuver considering the complexity of their problems. Introduction Russia is under severe economic strain and faces a strategic challenge in Ukraine, but a bear is often most dangerous when it is cornered. Turkey is a power on the rise. The EU’s credibility is shot. Western European countries have serious domestic economic problems that make them apathetic to the concerns of the rest of Europe. At the center of this is Germany, which is sitting on an export bubble and trying to hold the EU together through sheer force. Muslim migrants continue to pour in from the Middle East, North Africa and South Asia. Nationalism is rising. And the U.S. is trying to extricate itself from conflicts in Eurasia. There is a part of Europe that sits directly at the intersection of all of these dynamics: the Balkans. The Balkans are often lost in the shuffle when people consider the current state of European geopolitics. But the Balkan region has always had a way of dragging outside powers into its own instability – and right now the Balkans seem to be a powder keg waiting to blow. The Balkan countries suffer disproportionately from the slowdown in Europe’s economy. Identity is still hotly contested in multiple ways: national, ethnic, religious and tribal. There is a substantial Muslim population in the Balkans susceptible to all sorts of transnational cross-currents, and the region’s poor, isolated, unemployed young people make for potentially fertile recruiting ground for radical groups. New states are still being created here, and not with universal understanding or approval. The post-Yugoslavia Balkans are already unstable, but the forces fighting around and through these countries could exacerbate the situation and turn garden variety instability into a crisis that would affect the interests of multiple regional powers.South AfricaSouth Africa models US plea bargaining – that damages public trustBowcott, 17 -- Guardian legal affairs correspondent [Owen, "'Global epidemic' of US-style plea bargaining prompts miscarriage warning," The Guardian, 4-27-17, , accessed 12-15-17]'Global epidemic' of US-style plea bargaining prompts miscarriage warningHuman rights group says use of trial-waiver procedures has increased by 300% worldwide since 1990 The adoption of US-style plea bargaining has reached “epidemic proportions” as more and more countries persuade defendants to plead guilty and renounce traditional trial rights, a survey of international justice systems warns. The study of 90 countries by the human rights organisation Fair Trials reveals that use of such procedures has increased by 300% since 1990, boosting, it is alleged, the risk of miscarriages of justice. In the United States – which houses a fifth of the world’s prison population – as many as 97% of federal criminal cases are resolved through guilty pleas involving unregulated negotiations between prosecutors and defendants. In 2015, 44% of documented US miscarriages of justice involved cases where the defendant had pleaded guilty. Popular television culture may be flooded with US courtroom dramas, the report says, but it increasingly represents an outdated view of the American justice system where even juveniles, who are less able to understand the legal consequences, are encouraged to plead guilty. The US model has been the ideological inspiration for adopting trial-waiver systems worldwide, the study notes. The US government has provided development funding and technical support for rule of law projects, primarily through the Office of Overseas Prosecutorial Development and Training sending out American prosecutors to train foreign judges and lawyers. Fair Trials says that use of trial waivers in some countries has skyrocketed over the course of a few years because they are promoted as providing a more efficient form of justice. In Georgia, 12.7% of cases were resolved through plea bargaining in 2005 but that figure had soared to 87.8% of cases by 2012. In Russia, deployment of plea bargaining deals shot up from 37% in 2008 to 64% in 2014. In the first instance courts in Chongqing, one of China’s major cities, use of ‘summary procedures’ – equivalent to trial waivers – increased from 61% in 2011, to 82% two years later. In South Africa, the number of similar “plea and sentence agreements” increased by a third in 2014-15. The Fair Trials report, The Disappearing Trial, was written with the international law firm Freshfields Bruckhaus Deringer. It acknowledges that there can be some merit in plea bargaining – such as waiting times, pre-trial detention, costs and protecting vulnerable victims from having to relive their ordeals – but it argues there should be more safeguards such as mandatory access to lawyers. The organisation suggests that judges could also be involved in negotiations and evidence review to ensure that convictions are not imposed on the basis of unreliable confessions or guilty pleas alone. There is insufficient judicial scrutiny of sentence reduction procedures in the UK, it suggests. In some countries such as Argentina, the report says, trial waiver systems have been adopted to improve conviction rates. One prosecutor in South Africa told the survey that “plea and sentence agreements” were useful in boosting performance rates “in courts where judges tend to acquit”. Jago Russell, chief executive of Fair Trials said: “We need to wake up to how justice is now being delivered around the world. The trial still dominates in media portrayals but, in reality, the trial is being overtaken by guilty pleas agreed after ‘deals’ are struck behind closed doors. “It can save time and money to persuade a defendant to plead guilty, but it can also produce miscarriages of justice and damage public trust. At its most extreme people have been coerced into pleading guilty to offences they did not commit, and guilty pleas have been used to prevent serious misconduct by the police or prosecutors being exposed.Perception of the rule of law is key to South African stability- criminal justice is keyBurger, 16 -- Institute for Security Studies (Pretoria) Governance, Crime and Justice Division consultant [Johan, "Political Interference Weakening the Rule of Law in SA," 9-29-16, article/2016/09/29/political-interference-weakening-rule-law-sa, accessed 12-15-17]One of the founding values of democratic South Africa is ‘the supremacy of the Constitution and the rule of law’. The World Justice Project defines ‘rule of law’ as ‘the process by which the laws [in a democracy] are enacted, administered, and enforced is accessible, fair, and efficient’. This means that the level of a country’s democracy is determined by its adherence to the basic principles in which all people – regardless of their economic or political status – are subject to equal legal rules. This principle is critically important for the success of any country. It provides a clear national system that is to be applied fairly to every group and person. Without this, the system will increasingly lose credibility and public trust. Criminality and instability increase; putting everyone at risk. The criminal justice system is the cornerstone for ensuring the rule of law functions in an effective and healthy way. This is why South Africa’s Constitution places primacy on the independence of various institutions, such as the National Prosecuting Authority (NPA), the Hawks and the Independent Police Investigative Directorate (IPID).Public trust in domestic rule of law is key to effective South African diplomacy- key to soft power and avoiding backlash to a strong international roleMarthoz, 13 -- Université Catholique de Louvain (Brussels) international journalism professor [Jean-Paul, Human Rights Watch’s Europe and Central Asia advisory committee deputy chair, associate editor of the policy journal Europe’s World, "South Africa's Global Ambitions," 2-21-13, thebrokeronline.eu/Articles/South-Africa-s-global-ambitions, accessed 3-15-13]South Africa has established itself as an influential international actor, especially in Africa, based on its size, population, economic strength and military capabilities. Besides this hard power, “it has drawn on its soft power to take on the role of an international norm entrepreneur”, says Geldenhuys. “It has been remarkably successful in getting its ideas adopted in Africa – witness the new institutions of continental governance.” 14 In the next years South Africa’s relevance on the continental and global scenes will depend increasingly on its economic assets and its political choices more than on the nostalgic memory of its long liberation struggle. It will be linked in particular to its capacity to solve its deep-rooted domestic problems, particularly its acute levels of social injustice. A peacebuilding diplomacy will lack credibility if the country is seared by social violence, and it will lack sustainability if such efforts are seen by public opinion as a waste of resources and a distraction from pressing domestic issues.South Africa is key to global cooperation- it has unique negotiating leverageChevallier, 11 -- Governance of Africa’s Resources Programme senior researcher [Romy, "COP 17: What Role for South Africa as an Agent of Change?" .za/images/stories/pubs/briefings/saia_spb_38_chevallier_20111108.pdf, accessed 2013]South African diplomats will try their utmost to move beyond these North–South divisions, re-focusing the debate on substantive issues and promoting an equitable sharing of effort by countries, albeit differentiated according to capacity and capabilities. Through serious preparation and strategy-building, South Africa has the ability to shape the course of the negotiations. It has already engaged in a series of informal consultations at ministerial, negotiator and stakeholder levels in an attempt to forge political consensus and facilitate a credible and balanced outcome. South Africa, through its experience as a conflict mediator in other multilateral discussions, has developed a positive reputation for its use of negotiating tactics and bridge-building skills. South Africa has years of experience in understanding the UNFCCC’s working methods and participating in complex discussions. It also has a well-respected and professionally diverse negotiating team, fostering the trust of the international community in the ability and integrity of its leadership. Maite NkoanaMashabane, Minister of International Relations and Cooperation, will chair the meeting, while Edna Molewa, Minister of Water and Environmental Affairs, will lead the national delegation. South Africa’s choice of COP president indicates an emphasis on climate-change diplomacy.Effective multilat checks great-power nuclear war- multiple crisesDyer, 4 – PhD in Military History at King's College London(Gwynne, "The End of War," Toronto Star, 12-30-4, l/n, accessed 10-21-12)War is deeply embedded in our history and our culture, probably since before we were even fully human, but weaning ourselves away from it should not be a bigger mountain to climb than some of the other changes we have already made in the way we live, given the right incentives. And we have certainly been given the right incentives: The holiday from history that we have enjoyed since the early '90s may be drawing to an end, and another great-power war, fought next time with nuclear weapons, may be lurking in our future.. The "firebreak" against nuclear weapons use that we began building after Hiroshima and Nagasaki has held for well over half a century now. But the proliferation of nuclear weapons to new powers is a major challenge to the stability of the system. So are the coming crises, mostly environmental in origin, which will hit some countries much harder than others, and may drive some to desperation. Add in the huge impending shifts in the great-power system as China and India grow to rival the United States in GDP over the next 30 or 40 years and it will be hard to keep things from spinning out of control. With good luck and good management, we may be able to ride out the next half-century without the first-magnitude catastrophe of a global nuclear war, but the potential certainly exists for a major die-back of human population. We cannot command the good luck, but good management is something we can choose to provide. It depends, above all, on preserving and extending the multilateral system that we have been building since the end of World War II. The rising powers must be absorbed into a system that emphasizes co-operation and makes room for them, rather than one that deals in confrontation and raw military power. If they are obliged to play the traditional great-power game of winners and losers, then history will repeat itself and everybody loses. Our hopes for mitigating the severity of the coming environmental crises also depend on early and concerted global action of a sort that can only happen in a basically co-operative international system. When the great powers are locked into a military confrontation, there is simply not enough spare attention, let alone enough trust, to make deals on those issues, so the highest priority at the moment is to keep the multilateral approach alive and avoid a drift back into alliance systems and arms races. And there is no point in dreaming that we can leap straight into some never-land of universal brotherhood; we will have to confront these challenges and solve the problem of war within the context of the existing state system.UnderviewPut away your Court Clog DA – Banning plea bargaining leads to abbreviated trials, which frees up the courts. It also avoids the?informal negotiations?that collapse rule of law and trigger our impactsAlkon 10 [Cynthia Alkon – Appalachian School of Law assistant professor of law , "Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?," Transnational Law & Contemporary Problems, Vol 19:355, Spring 2010,, accessed?12-15-17]V.?PLEA BARGAINING AND ABBREVIATED TRIALS Most countries?in the world?face overloaded?criminal court?dockets and need to handle large numbers of cases efficiently.?This?pressure contributes to the development of alternative procedures. 94 As Stephen Thaman noted, "The reality of?all?modern criminal procedures is?that?the 'normal' trial is rapidly becoming?the?'alternative'?procedure." 95?Plea bargaining and abbreviated trials are the two?most widely adopted?forms to shortcut the procedure of formal trials.?196 Discussions of alternative criminal procedures often use these terms interchangeably. 9 7?There is,?however,?a?significant difference?between the two?procedures, which, depending on the country,?might be?important in?the context of?rule of law development.?That difference is whether the system is based on?informal negotiations?between the prosecutor and defense,?or?on?a?more?formalized?procedure that includes?standard?statutory sentence reductions?in exchange for guilty pleas. A. Plea Bargaining Defined For the purposes of this Article, plea bargaining is defined as "a form of negotiation by which the prosecutor and defense counsel enter into an agreement resolving one or more criminal charges against the defendant without a trial."198 In the United States, two basic types of plea bargaining exist: charge bargaining and sentence bargaining. 99 In charge bargaining, the prosecutor may agree to dismiss one or more of the charges or to not charge particular offenses.200 Sentence bargaining occurs when the prosecution and defense negotiate the sentence or punishment, while agreeing to the charges as filed. 20' Plea negotiations often include both sentence and charge bargaining. 202 Depending on the seriousness and complexity of the case, plea negotiations can be simple and fast or complex and drawn out.203 Scholars only recently have begun analyzing plea bargaining under negotiation theory. 204 Under this theory, parties consider their "best alternative to a negotiated agreement" ("BATNA"). 205 In criminal cases, the parties usually do not have the option, or BATNA, of "lumping it" or walking away from the case. 206 The prosecutor has the power to dismiss the case; however, this is not a commonly used option once the state files charges. 207 Therefore, if the case is not dismissed, the only possible BATNA for both sides is a trial. 208 In the United States, the defendant's most common leverage in the plea negotiation process is his agreement to waive his right to a jury trial.209 In more complicated cases, agreeing not to go forward with trial represents a significant cost savings to the system-saving days or weeks of court time and expense. Within the United States, the prosecutor has greater power (or leverage) in the plea negotiation relative to the defendant.210 A defendant who goes to trial and is found guilty can expect a harsher sentence. 211 Many plea bargaining critics consider this aspect of plea bargaining coercive. 212 Plea bargaining proponents tend to classify this difference as a "reward" or "inducement" for defendants who waive their right to trial.213 B. Abbreviated Trial Defined Abbreviated trials exist in various forms and under various terms. This Article defines?an abbreviated trial?as?a?shortened?procedure?whereby the judge reviews evidence, in addition to the defendant's guilty plea, and gives the defendant a statutorily determined reduced sentence upon a finding of guilt. 2 14?What distinguishes the?abbreviated trial from plea bargaining is?that?the law does not provide for?or require?negotiation?between the prosecutor and the defense regarding either the charge or the sentence.215 In addition, under most forms of abbreviated trials,?the law clearly states the length of the sentence reduction in exchange for the defendant agreeing to waive?his?right to?a full trial.216 Many countries, such as Russia, specifically limit the use of abbreviated trials to less serious crimes. 217 The 2001 Russian Criminal Procedure Code ("GPC") limited abbreviated trials to defendants facing a maximum of five years imprisonment. 218 Russia seems to have adopted abbreviated trials due to concern that jury trials would require more court time and further crowd the courts, rather than a desire to develop a procedure aiding in complex prosecutions. 2 19 In 2003, the Russian legislature amended the GPC and expanded the list of cases that would be eligible for abbreviated trials to include charges with a maximum punishment of up to ten years imprisonment. 2 20 In 2004, 16.4 percent of all criminal cases in Russia were resolved through this alternative procedure. 221 The Russian CPC allows a judge to sentence the defendant to a maximum of two-thirds of the sentence allowable under the law if the case is resolved through an abbreviated trial.2 22 If the defendant, prosecutor, victim, or judge objects to an abbreviated trial, it will not proceed. 223 C. Negotiation and Discretion Negotiation is the key?element?that distinguishes plea bargaining?from other forms of case resolution in the context of troubled criminal justice systems.?224?Plea bargaining requires?some sort of?negotiation?between the prosecutor and the defense.?225?As the Georgian example illustrates, the general public distrusts this informality, or the appearance of informality, in plea bargaining.?226 This distrust may be due to the lack of transparency in the process since lawyers generally negotiate plea bargains in relative secrecy. 227?In the absence of clear guidelines?and policies, this secrecy combined with?the informality creates the appearance that plea bargaining occurs outside the law.228 If prosecutors fail to explain the procedures and their policies, the general public may view plea bargaining negatively.229?From this perspective, abbreviated trials provide a clear advantage, particularly if the law clearly states the specific sentence reduction in exchange for an abbreviated trial.?Under those circumstances, it is less likely?that?the general public will view abbreviated trials as a process involving informal negotiation outside the law. 230 In addition, in systems where the prosecutor holds disproportionate power, the defendant might be at such a disadvantage that there is no real negotiation. 231 In the United States, the threat of a jury trial carries tangible consequences in a system that depends on most defendants pleading guilty. 232 A defendant threatening to go to trial in a system that expects most cases to do so, with a near 100 percent conviction rate, may not be much of a threat and may mean the defendant has no meaningful leverage in the negotiation. 2331ARCourt clog is inevitable because of many immigration cases and judge retirementsBecker 17 – Andrew Becker (“Nearly 600,000 immigration cases clog courts, study finds,” Reveal, June 4th, )Racked with a backlog approaching 600,000 cases, the nation’s 58 immigration courts over the last decade have taken longer to rule on deportations, asylum claims and other matters despite hiring more judges and more than doubling their annual budget, according to a new Government Accountability Office report. Government auditors said that the Justice Department’s Executive Office for Immigration Review, which oversees the immigration court system, has been plagued by inefficiencies, its own foot-dragging in hiring new judges and an increasingly complex and changing legal landscape spurred by recent U.S. Supreme Court decisions and lawsuits brought by immigrants facing deportation. Between 2006 and 2015 the court system’s caseload more than doubled, growing steadily each year under the Obama administration, while judges completed nearly one-third fewer cases, the report states. The study was conducted at the request of congressional Republicans and Democrats. That spells bad news for President Donald Trump as he pushes his central political agenda to crack down on illegal immigration and beef up border security. The report underscores that the already bogged-down immigration courts could become a major obstacle to his objective of removing 2 million to 3 million people from the country. But the good news for immigrants is that judges are ordering deportation for a smaller percentage of immigrants, down to 52 percent in 2015 compared to 77 percent in 2006. Judges are also more frequently ending cases, or ruling in an immigrant’s favor. Overall, judges now decide fewer cases based on the actual merits of arguments than they did a decade ago. Despite smaller individual caseloads for judges, immigration hearings are being scheduled years into the future, including five years out in at least one court, according to the report. Such delays also put a strain on immigrants’ legal rights by making it more difficult to produce witnesses or documents in their defense, potentially jeopardizing their legitimate claims to avoid deportation. Sometimes people who may have had a good claim against deportation lost their eligibility over time because their circumstances changed, the report states. In other instances, immigrants who don’t have a solid argument to stay in the country avoid deportation longer because their hearings are delayed. “The effects of the case backlog are significant and wide-ranging, from some respondents waiting years to have their cases heard to immigration judges being able to spend less time considering cases,” the report concludes, adding that technology could help the court tackle the backlog. A surge of unaccompanied children arriving at the border starting in 2014 has also exacerbated the challenges faced by immigration judges. Those cases, which usually take longer because of different legal options, are given priority over matters that may be resolved faster. The median number of days to complete a deportation case, accounting for nearly all of the court system’s caseload between 2006 and 2015, grew 700 percent from 42 days to 336 days. Auditors concluded that those delays are also due to judges delaying decisions more by continuing cases. Continuances are grouped into about 70 different categories, including more time needed because of illness of an immigrant, their witness or attorney, delays in background investigations or security checks, and insufficient time to complete a hearing. While apprehensions of border jumpers have ebbed to their lowest point in decades, immigration enforcement jumped 37.6 percent in the first 100 days of the Trump administration compared to the same time period a year before, according to U.S. Immigration and Customs Enforcement. Deportations, however, were down about 12 percent. Although the Trump administration has called for hiring dozens of additional judges, the mounting caseload could be further intensified by a wave of judges retiring. Almost 40 percent of immigration judges are now eligible for retirement. The office’s budget is about $440 million for the fiscal year ending Sept. 30, up from $199 million in 2005.Abolishing plea bargains won’t drain resources -- there will still be guilty pleas and plea bargains strain resources as wellWan 07 (Tina Wan (J.D. Candidate, University of Southern California Gould School of Law, 2008; B.A., Criminology, Law & Society, University of California, Irvine, 2005.) NOTE: THE UNNECESSARY EVIL OF PLEA BARGAINING: AN UNCONSTITUTIONAL CONDITIONS PROBLEM AND A NOT-SO-LEAST RESTRICTIVE ALTERNATIVE, Southern California Review of Law and Social Justice 17:33, Fall 2007 //MW)There are many reasons why this is possible. First, those concerned that a ban on plea bargaining would cause a collapse of the legal system often forget to take into account two important factors. One, there is no indication that a prohibition on plea bargaining would mean that defendants would no longer plead guilty. n205 There will always be some defendants who will plead guilty on their own accord for a number of reasons, such as the futility of going to trial, the costs of going to trial or remorse. n206 Two, supporters of plea bargaining fail to take into consideration the fact that plea bargaining also uses many judicial resources commonly thought to be used only in trials. n207 In plea bargaining, time and costs are associated not only with the negotiation between the prosecution and the defense, but with preliminary investigations and preparation, presentence reports and the process of actually entering the plea in court, which includes presenting a guilty plea colloquy, reading the factual basis for the plea and waiting time. n208No Terrorism - No retaliationMueller 5(John, Professor of Political Science – Ohio State University, Reactions and Overreactions to Terrorism, )However, history clearly demonstrates that overreaction is not necessarily inevitable. Sometimes,?in fact, leaders have been able to restrain their instinct to overreact. Even more important, restrained?reaction--or even capitulation to terrorist acts--has often proved to be entirely acceptable politically. That?is, there are many instances where leaders did nothing after a terrorist attack (or at least refrained from?overreacting) and did not suffer politically or otherwise.?Similarly, after an unacceptable loss of American lives in Somalia in 1993, Bill Clinton responded?by withdrawing the troops without noticeable negative impact on his 1996 re-election bid. Although Clinton?responded with (apparently counterproductive) military retaliations after the two U.S. embassies were?bombed in Africa in 1998 as discussed earlier, his administration did not have a notable response to?terrorist attacks on American targets in Saudi Arabia (Khobar Towers) in 1996 or to the bombing of the?U.S.S. Cole in 2000, and these non-responses never caused it political pain. George W. Bush's response to?the anthrax attacks of 2001 did include, as noted above, a costly and wasteful stocking-up of anthrax?vaccine and enormous extra spending by the U.S. Post Office. However, beyond that, it was the same as?Clinton's had been to the terrorist attacks against the World Trade Center in 1993 and in Oklahoma City in?1995 and the same as the one applied in Spain when terrorist bombed trains there in 2004 or in Britain after attacks in 2005: the dedicated application of police work to try to apprehend the perpetrators. This?approach was politically acceptable even though the culprit in the anthrax case (unlike the other ones) has?yet to be found.?The demands for retaliation may be somewhat more problematic in the case of suicide terrorists?since the direct perpetrators of the terrorist act are already dead, thus sometimes impelling a vengeful?need to seek out other targets. Nonetheless, the attacks in Lebanon, Saudi Arabia, Great Britain, and?against the Cole were all suicidal, yet no direct retaliatory action was taken.?Thus, despite short-term demands that some sort of action must be taken, experience suggests?politicians can often successfully ride out this demand after the obligatory (and inexpensive) expressions of?outrage are prominently issued.23 Harker AM Neg Defense – Function Aff1. Multiple possible functions of something like the criminal justice system takes out their framework - means no way to weigh between possible functions because I could violate one and not violate the other which is a logical contradiction 2. Their framework collapses to util bc you need another framework to determine the function of something, which defaults to util3. Ought is moral obligation – a. common usage – Merriam Webster 17 of ought —used to express obligation [eg] ought to pay our debts, advisability ought to take care of yourself, natural expectation ought to be here by now, or logical consequence the result ought to be infinityb. Even if you look to the function of something, the function of the resolution is that of the people, which would be a moral theory, which defaults to utilpurpose of cjs is rehabilitation and deterring crime Wikipedia 17 Justice?is the system of practices and institutions of?governments?directed at upholding?social control,?deterring?and mitigating?crime, or sanctioning those who violate?laws?with criminal penalties and?rehabilitation?efforts. Criminal justice is also a field of study. Those accused of crime have some?protections?against abuse of investigatory and prosecution powers. Criminal justice systems are very different around the world depending on the country. In the United States when a person or individual is charged of a crime they are given rights. In some countries when someone is charged with a crime there is no trial and they are immediately sentenced with no rights. In the United States the criminal justice system was taken from the British criminal justice system. Today a lot of modern countries also have adopted the British criminal justice system. In less developed countries and war-torn countries no justice system is in use. These countries often use military powers to enforce their laws, this is often the result of the killing of the individual that supposedly committed this crime with no trial given.Case Defense – KantAnd, the intention-foresight distinction is morally irrelevant; it’s nothing more than an attempt to evade moral responsibility. Enoch 07David Enoch, Associate Professor of Philosophy, and Jacob I. Berman, Associate Professor of Law, The Hebrew University in Jerusalem, “Intending, Foreseeing, and the State,” 2007. JCThink again of the appropriate question test. What is the moral flaw exhibited by the person asking – while deliberating – about the causal order of the relevant consequences? Intuitively, the flaw exhibited seems to me to be a kind of an attempt to evade responsibility. Attempting to find out about the causal order of the (foreseen) consequences looks here not so much as an honest attempt to unearth the morally relevant features of the circumstances but as an attempt to prepare a line of defense 24 . Once you know about the consequences of your actions (or inactions), an attempt to pick and choose among them those you are more and those you are less responsible for (those you intend and those you merely foresee, respectively) looks like an attempt to evade (full) responsibility for the merely foreseen consequences. A responsible agent, it can be argued, accepts responsibility for all (foreseen) consequences of her actions, both intended and unintended. This suspicion – that hiding behind the intending-foreseeing distinction is really just evading responsibility – is arguably at least a part of the rationale for the entrenched doctrine of the criminal law, according to which under certain circumstances foresight can substitute for intention 25 . The point here is not an empirical one, namely that people invoking the intending foreseeing distinction are, as a matter of sociological fact, merely attempting to evade responsibility, and are being disingenuous in invoking the distinction. My point here, rather, is that thinking about such cases in terms of responsibility (and not just in terms of permissibility) helps to emphasize a feature of the moral situation that is perhaps not as clear otherwise. Thinking in terms of responsibility, it just seems overwhelmingly plausible that agents are responsible for all the foreseen consequences of their actions. Furthermore, it seems just as plausible that they are equally responsible for all the foreseen consequences of their actions.Controls strongest internal link to deont b/c making a judgment after the fact to choose your intentions is an attempt to avoid responsibility for wrongdoing, which implies consequentialism.And, calculation indicts are just impact defense- doesn’t prove util false, three reasons.No impact- it’s never an issue in practice b/c we can make educated predictions. Even if calculation is hard that doesn’t mean it’s not possible. Their args are defense on the contention b/c it questions the probability of my util impacts, so they need to beat back my ev for it to matter. We can only guess at an individual's intentions, whereas we can use empirical data to make predictions under util.[insert case defense stock card]That negates – overthrow violates freedom and is a contradictionVarden: Helga Varden [Associate Professor of Philosophy, University of Illinois] “A Kantian Conception of Free Speech” Springer. 2010To understand Kant’s condemnation of seditious speech, remember that Kant, as mentioned above, takes himself to have shown that justice is impossible in the state of nature or that there is no natural executive right. Since Kant considers himself to have successfully refuted any defense of the natural executive right, he takes himself also to have shown that no one has the right to stay in the state of nature. This, in turn, explains why Kant can and does consider seditious speech a public crime. The intention behind seditious speech is not merely to criticize the government or to discuss theories of government critically, say. In order to qualify as seditious, the speaker’s inten[ds]tion must be to encourage and support efforts to subvert the government or to instigate its violent overthrow, namely revolution. To have such a right would be to have the right to destroy the state. Since the state is the means through which right is possible, such a right would involve having the right to annihilate right (6: 320). That is, since right is impossible in the state of nature, to have a right to subversion would be to have the right to replace right with might. Since the state is the only means through which right can replace might, the state outlaws it. And since it is a crime that “endanger[s] the commonwealth” rather than citizens qua private citizens, it is a public crime (6: 331). Plea bargaining is not coercive. Dripps 16 summarizes Dripps, Donald A. Warren Distinguished Professor of Law and clerked for the Honorable Amalya Kears of the Second Circuit Court of Appeals in New York City. "Guilt, Innocence, and Due Process of Plea Bargaining,"?William & Mary Law Review?vol. 57, no. 4 (March 2016): p. 1343-1394. [Premier]If we consult the philosophical literature on coercion, we may sympathize with the evasive nature of the jurisprudence. 0 ' The standard modern view emerged only with Alan Wertheimer's Coercion in 1987.102 On that view, "coercion" refers to threats (in a technical sense) that would induce compliance from any reasonable person.' 3 Wertheimer distinguishes threats from offers by whether the inducer's proposal makes the inducee worse off rather than better off.'0 4 Wertheimer then posits a moralized or normative baseline for determining worse or better off.' 5 Only if the inducer acts wrongly does he threaten, rather than make an offer to, the inducee.' °6 If the threat would overcome the will of a reasonable person, it is coercive.' 7 Wertheimer devoted a chapter to plea bargaining, concluding that plea bargaining is not coercive because the prosecutor has a right to bring either set of charges.'08 It follows that the prosecutor's proposal is an offer, not a threat. Abusive interrogation methods, by contrast, violate the legal and moral duties of the interrogators. Only threats can coerce, so plea bargaining is not coercive. The Supreme Court's plea bargaining cases, reviewed in the next Part, are not inconsistent with this view and are widely seen to support 100. See Miller v. Fenton, 474 U.S. 104, 115-18 (1985) (holding that when the defendant challenged his post-Miranda-waiver admission as coerced, the voluntariness of the confession was a question of law on which the federal habeas court had a duty to decide without deferring to the state court conclusion). 101 So this account of plea bargains as noncoercive offers is the standard view. SCOTUS ruled that not only that plea bargains are a constitutional right but also that the guarantee of effective legal counsel also extends to plea deals.Barnes 12. Barnes, Robert. Robert Barnes has been a Washington Post reporter and editor since 1987. He joined the paper to cover Maryland politics, and has served in various editing positions including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. “Supreme Court expands plea bargain rights of criminal defendants.” The Washington Post. March 21, 2012. [Premier]A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system. In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases. “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain. Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution. “It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.” Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact. “What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said. The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure. Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.” He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”AT Practical ReasonMissing link: Reason doesn't explain all cognition; not everyone is rational, and even rational agents act on impulse and emotional outbursts at certain points—they make an unjustified assumption about human psychology.Fallacy of origin: Even if things are dependent on reason that doesn't mean it needs to be respected, we all use logic to derive arguments but logic isn't valuable—my framework also provides reason for action.AT UniversalizabilityI don’t need to accept the reasons of others; I can value my own humanity but no one else’s—their framework doesn’t generate true normative obligations.Surgener 11Kirk Surgener, Neo-Kantian Constructivism and Metaethics, Department of Philosophy, The University of Birmingham, September 2011. p. 279. JCThere are a number of problems with this argument. The first is the move I’ve outlined in the last paragraph. Korsgaard’s reasoning for the essential publicity of reasons is extremely hard to follow (see 1996 Ch. 4). Trying to get clear on what she is doing would take a whole thesis. All I can do here is simply assert that Korsgaard seems to confuse the question of whether a reason is public with the question of whether a reason is self-directed. She may be able to show that reasons have to be public, but not that their content cannot be self- directed. If so, then it’s perfectly consistent for me to value my own humanity (and thus be forced to respect the, quite weak, FU) without valuing anyone else’s, and thus the step to the full-blown categorical imperative fails.Case Defense – LGBT K1 – State is accessible for LGBTQ – recent ruling and trajectory proveEdgar 8 ENGAGING WITH THE STATE: CITIZENSHIP, INJUSTICE, AND THE PROBLEM WITH QUEER Edgar, Gemma. is a research fellow at The Australia Institute Gay and Lesbian Issues and Psychology Review4.3 (2008): 176-187. response to the worry that LGBTI individuals and other minorities will be subsumed by heteronormativity is that the inclusion of LGBTI and other non-mainstream individuals into the body politic also reconstitutes citizenship. It is my position that the work performed by Twenty10 evidences the ability of citizenship claims to both challenge heteronormativity and redress redistributive injustice. Twenty10 engages with the state through the receipt of both Federal and NSW State Government funding. In a Marshellian vein it takes advantage of the redistributive capacity of the state in order to provide programmes that redress both the socio-economic and identity based disadvantages experienced by its young people. Financial support from government has allowed Twenty10 to provide significant services to its young people, including: medium term supported accommodation; counselling; case management; social and support groups; family support services; and community-based early intervention. That is, a politics of citizenship, of engaging with the state, has allowed Twenty10 to attempt to address injustices of both redistribution and recognition. One example of this work is Twenty10's provision of six medium-term, LGBTI specific units. As medium-term housing, these units offer the young people who live in them a safe and secure place to live for 3-18 months. I interviewed one young person who was living in one of these apartments. She described what it was like as: I guess it just feels more familiar and safe you know ... I've been to like different youth centres that aren't queer and like here I just feel like I can make myself at home and like feel safe ... And it's just nice to have queer people all around you like you know people that you identify with (God Pie).13 God Pie's comments highlight the value of LGBTI specific accommodation for queer young people, which is that 'mainstream' services are not always safe places for LGBTI people. LGBTI specific accommodation is one way to create safer places for LGBTI individuals experiencing homelessness. These units, however, would be extremely difficult for Twenty10 to provide if it did not have the financial support of the state. In this example, we can see how relying upon a mechanism to redistribute economic resources is a valuable way to address redistributive injustice experienced by LGBTI young people. More, however, is occurring in this example than just a response to redistributive injustice. By funding Twenty10, the Government recognises the citizenship of LGBTI young people. Receiving government funding is a symbol of community inclusion, as well as being a redress to redistributive injustice. If you are concerned about community embrace, acknowledgment and ultimately, belonging, then it matters that the welfare of young LGBTI people is supported by the government, because it means that they are being acknowledged. Another example of how engaging with the state has allowed Twenty10 to address the injustices experienced by their young people is their community-based early intervention programme called Ready or Not. Ready or Not is funded through the Federal Government's Reconnect programme. This funds Twenty10 staff to travel throughout NSW to conduct training sessions with key community members, such as police, teachers and health, youth and welfare workers. This training is intended to resource communities so that queer young people are less likely to become isolated. The idea is that if key community members know how to work with and support queer young people, then these young people are less likely to turn up on the doorstep of Twenty10 needing help. Ready or Not is one way Twenty10 attempts to create community change, and it is able to provide it only because of the financial support of the state. One staff member explained the impact of it as: ... the Ready Or Not training ... we certainly get our message across and we do talk about, we talk about how homophobia hurts, so we talk about things like, increased rates of suicidality and a whole range of things, so we don't just gloss it over so it's in a nice little tidy package, so people find it palatable. But at the same time I think the way that we do it, in that professional way has more of an impact, people can actually take it and I kind of think that by the way that we are doing, I think if we were running around with banners here and there, that maybe that would make people a little bit more defensive about hearing our message. Ready or Not again highlights the advantages of Twenty10's relationship with the state. In this example, Twenty10 addresses injustices of both recognition and redistribution because by challenging heteronormativity and homophobia (recognition), they are also attempting to address the causes of LGBTI youth homelessness (redistribution). What is occurring is not to do with LGBTI individuals conforming to the demands of the state. Rather, the 'mainstream' community is being challenged by Twenty10 staff to itself change. Rather than the demand that young LGBTI people must become 'like' the majority, the majority itself is what is being disrupted. Ready or Not fits squarely with the argument that engaging with the 'mainstream' in order to make it more accepting, and relying upon the state to do so, can reconstitute citizenship and is hence an effective way to address both recognition and redistributive based injustice. Twenty10 is, I would posit, only able to provide LGBTI specific housing and the Ready or Not programme because it presents a face that is not "at odds with the normal, the legitimate, the dominant" (Halperin, 1995, p. 62). That is, Twenty10 appears to be the good gay citizen that the governmental thesis warns us of, in that it works in the 'mainstream' community and relies upon the state to support it. However, Twenty10 still confronts heteronormative notions of citizenship through challenging youth and community workers to recognise the needs of LGBTI young people. Further, Twenty10 uses state funds to assist young LGBTI people experiencing homelessness. It also provides further services, including: counseling, case management, social and support groups and family support services. All of these examples highlight how a reliance upon the state can help to address the injustices of redistribution and recognition experienced by LGBTI young people. As queer theorists warn us, there are costs to this and the constraints of the purchaser-provider contracts required by government evidence this. But the idea of citizenship as always being heteronormative and exclusionary is difficult to maintain when citizenship tools are able to provide a response to the injustices experienced by the young people at Twenty10. Twenty10 would not be able to do this work if it engaged in the style of politics suggested by queer, that is, if it was suspicious of the state. As Altman writes, "queer theories are relatively unhelpful in constructing this sort of politics because of their lack of emphasis on political institutions as distinct from discourse" (2001, p. 158). It is Twenty10's emphasis on political institutions, its demand to fully belong, that has allowed it to do the work it does.Case Defense – Theory and SkepUse competing interps most objective – reasonability is arbitrary, means judges will intervene on what's subjectively “reasonable” rather than looking at it in a simple offense/defense paradigmreasonability collapses to competing interps because we end up debating the brightline. reasonability encourages debaters to get away with increasingly unfair strategies through defense on theory and creates a race to the bottomrace to the top – offense/defense means the best interp wins, not the one that’s most favorable to one sidethey are not reasonable – the standards debate above would prove thatDon’t give them an RVIRVI’s kill topic based education because it encourages debaters to collapse into theory and take advantage of the RVI instead of salvaging the substantive debate in the case where they actually win the theory debate. Even if they win arguments for why fairness come first, prefer strength of link weighing over magnitude because it is specific to in round abuse.RVI’s are logically nonsense:One ought not win a round for being fair--This is an expectation of the affirmative, which means counter interps aren’t offense, theyre defense – turns your reciprocity argRVIs make a round with multiple theory shells impossible to evaluate, because you weigh how “potentially” more fair each of you are, if you are weighing the counterinterps Checking abuse: Negative debaters are afraid to challenge borderline offensive cases because it forces negative debaters to either go for 7 minutes of theory or none, because if they do go for theory, the entire round becomes theoryThe 1AR RVI completely skews NR strategy because it becomes a 7-6 time advantage where the aff ALSO speaks last, giving me no effective way to engage with the rest of the flow and essentially forcing me to split my time when they don’t have to in the 2AR.) Skepticism can never completely deny the existence of morality—risk of morality existing by virtue of framework contestation is a reason to reject skepticism because skepticism does not imply any disvalue in the affirmative. Ross ‘06Ross, Jacob. “Rejecting Ethical Deflationism”. Ethics 116. July 2006.Another kind of nondiscriminating theory is ethical nihilism. This is the view that the notions of good and bad and of right and wrong are illusions and that, objectively speaking, no option or state of affairs is better than any other, nor are any two options or states of affairs equally good. Thus, while uniform theories assign the same value to all of our options, nihilistic theories don’t assign values to any of our options. Now suppose once again that I have a degree of credence of .01 in TL from the previous example, but this time I have a degree of credence of .99 in a nihilistic theory, TN. And again suppose that I must decide between sending the trolley to the right and sending it to the left. In this case we could reason as follows. According to TL, it would be better for me to send the trolley to the left than to send it to the right. And so my credence in TL gives me pro tanto subjective reason to send the trolley to the left. The only way this could fail to be the most rational option would be if my credence in TN gave me a sufficiently strong countervailing subjective reason to send the trolley to the right. But TN implies that there would be nothing valuable or disvaluable about either alternative. And so my credence in TN gives me no subjective reason to favor either alternative. Hence the pro tanto subjective reason to send the trolley to the left is unopposed, and so this is the rational option. I would choose this same option if I were to deliberate on the basis of TL alone. Thus, taking into account TN has no effect on what I ultimately choose, and so TN can harmlessly be excluded from consideration in deciding how to act. That is, I can harmlessly reject the nihilistic theory and deliberate on the supposition that the nondeflationary theory, T, is true.This means skep is just defense – not offense – no reason to vote on itCase Defense – StockBanning plea bargaining is infeasible and comes with a laundry list of DAs on top of completely overloading the court system and collapsing it – underground bargains, victims have to relive their experiences in court, and violent criminals get the chance to be free on bailAljabri 13 (Fuad Aljabri – National University, 5/5/13, “Should Plea Bargaining Be Abolished?”, , pgs. 5 – 7, EmmieeM)The proponents of plea bargaining contend that the most prevalent advantage plea bargaining afford is the reduction of high caseload. They argue that trials are very costly and time-consuming. For example, “judges and prosecutors want high disposition rates in order to prevent case backlogs and to present a public impression that the process is running smoothly. Public defenders prefer quick dispositions because they lack the personnel to handle the caseload” (Neubauer & Fradella, 2012, p. 317). In addition, a research study led by Howe (2005) maintains that “to attempt to abolish plea bargaining in any other way would require changes in the constraints noted at the outset of this part – the amount of behavior defined as crime, the amount of public resources devoted to fighting crime, and the basic approach to criminal trials”. Furthermore, Chief Justice Burger mentioned the potential devastating effects of abolishing plea bargaining; he stated, “the consequences of what might seem on its face a small percentage change in the rate of guilty pleas can be tremendous. A reduction from 90 percent to 80 percent in guilty pleas requires the assignment of twice the judicial manpower and facilities – judges, court reports, bailiffs, clerks, jurors and courtrooms” (Palmer, 1999). Given the advantages of plea bargains in terms of money and time saving, it is quite predictable that this practice may prove to be beneficial to keep court budges low and help get cases resolved in a timely manner. According to the Bureau of Justice Assistance (BJA), “Some argue that the plea bargaining process is more cost efficient than having all cases go to trial. Furthermore, some researchers and legal scholars have reiterated that the practice is fair, just, and procedurally sound” (Devers, 2011). Furthermore, there is some evidence to suggest that plea bargaining may have some benefits for the prosecutor, defendant, the victims as well as the society. For instance, plea bargaining allows defendants to get quick and certain dispositions of their cases. Victims also may benefit by eluding the hassles of trial which revives the horrors of victimization in their memories. Finally, the public is protected from the potential dangers posed by violent offenders who are free on bail while awaiting their trial (Acevedo, 1995). Another research study conducted by Howe (2005) who argued that “all of the options for eliminating plea bargaining are infeasible in practice”. He further added that “a large infusion of resources also might not eliminate plea bargaining. The scarcity of resources is not the only driving force behind bargaining, although resource scarcity helps fuel the practice”. Moreover, a recent research study has demonstrated that “the magnitude of the jury trial penalty is stunningly high. In serious cases, the sentence imposed on a defendant who is found guilty after trial will often be more than five times more severe than the expected sentence for the same offense for a guilty plea” (Neubauer & Fradella, 2008, p. 323). As noted above, it seems that the proponents of plea bargaining argue that ‘the abolishment of plea bargaining will create pressures for hidden negotiations, thus causing a regression to those days where the process was completely hidden from view, with no safeguards” (Miller, McDonald, & Cramer, 1978).War fuels structural violence Goldstein ’01 (PROF OF INTERNATIONAL RELATIONS @ AMERICAN UNIV (JOSHUA, WAR AND GENDER, P. 412)First, peace activists face a dilemma in thinking about causes of war and working for peace. Many peace scholars and activists support the approach, “if you want peace, work for justice.” Then, if one believes that sexism contributes to war one can work for gender justice specifically (perhaps among others) in order to pursue peace. This approach brings strategic allies to the peace movement (women, labor, minorities), but rests on the assumption that injustices cause war. The evidence in this book suggests that causality runs at least as strongly the other way. War is not a product of capitalism, imperialism, gender, innate aggression, or any other single cause, although all of these influence wars’ outbreaks and outcomes. Rather, war has in part fueled and sustained these and other injustices. 9 So,”if you want peace, work for peace.” Indeed, if you want justice (gender and others), work for peace. Causality does not run just upward through the levels of analysis, from types of individuals, societies, and governments up to war. It runs downward too. Enloe suggests that changes in attitudes towards war and the military may be the most important way to “reverse women’s oppression.” The dilemma is that peace work focused on justice brings to the peace movement energy, allies, and moral grounding, yet, in light of this book’s evidence, the emphasis on injustice as the main cause of war seems to be empirically inadequate. ROB – Best DebaterThe role of the ballot is to vote for the debater that does the best debating:Our model is good Institutional Details – engagement is an inevitable part of any activist position and the legal system is a unique focal point for resistance – understanding details for something that effects everyone is necessary for resistance because details are the foundation of resistance – that precision is key to successful targeted responses to state violence – turns the affSolution Focus – goals are key to mobilizing the public with real goals that people can rally behind – abstract theories are alienating and can’t appeal to people trying to make ends meat – only we solve the affLegislative informativism -- it is necessary to solve the alternative –the right is rolling back equal rights efforts like voter protections and increasing segregation now – only a fast response in regards to understanding legal reform allows us to secure equal protections and stop cascading inequality All of our offense about debating individuals are responsive to this claim – anyone making arguments about how a certain structure affects them as a person is impossible to negate and will only be more violent as a form of controversyTopicality isn’t a link to psychic violence – it’s a false equivalency because we haven’t forced individuals to change the way they view or act themselves even if we’ve said that the point of stasis in this debate should be distinctK Capitalism (Identity Aff)2Modern society has moved from a site of autonomy to a space controlled by post-consumption ethics -- our self-sovereign ideals have made way for a new form of identity politics based on material and immaterial types of consumption. The notion of an autonomous subject has not only been coopted by Western methods of thinking, but has turned into a branded form of a buy-and-sell mindset which underlies the belief of self-construction. Bluhdorn 06 (2006, Ingolfur, PhD, Reader in Politics/Political Sociology, University of Bath, “Self-Experience in the Theme Park of Radical Action? Social Movements and Political Articulation in the Late-Modern Condition,” European Journal of Social Theory 9(1): 23–42, google scholar)The concept of late modernity has been used by Giddens (1991), Touraine (2000) and others. In the present context, the distinctive characteristic of latemodern society in comparison to earlier phases of modernity is understood to be the unprecedented extent to which economic rationality and the market system have colonized all other forms of thinking and permeated all other societal subsystems. Processes of commodi?cation and colonization have been observed and criticized ever since the beginnings of the Marxian tradition. Yet, if the writings of best-selling authors such as Naomi Klein (2000), Noreena Hertz (2001) or Susan George (2004) are a standard to go by, there is a widespread perception that in the era of globalization, the breadth of marketization has reached unprecedented levels, signalling the end of any cultural diversity, the end of democratic politics and indeed the end of authenticity (Baudrillard, 2001; Boyle, 2004). Ecological (ecologist) thinking had, particularly in European countries, emerged as the single most important challenger of economic thinking (Dobson, 2000). Yet, as the discourses of environmental economics and ecological modernization are increasingly successful in repackaging ecological issues as economic, technical and managerial issues, thereby overcoming the erstwhile assumed incompatibility between ecological and economic thinking and inaugurating a debate on ‘the end of environmentalism’ (Blühdorn, 2000; Shellenberger and Nordhaus, 2004; Wissenburg and Levy, 2004), the economic system has developed into an ever more all-integrating and unchallenged coherence.Late-modern society is, thus, coming closer than at any earlier point in time to the realization of the modernist dream of an all-embracing systematic coherence. Yet the emerging system is not the one that is integrated by the Kantian notion of intrinsically meaningful absolute reason, and that centres on the ideal of the autonomous human subject. Instead, in line with the Marxian prediction that in the capitalist system Hegel’s world spirit would be replaced by the world market, this system is integrated by the formal logic of economic pro?tability. It centres on a set of rules and imperatives that instrumentalizes and marginalizes human beings; which regards them as human resources, as a means rather than an end. ‘Within the commodi?ed political economy life is, so to speak, only a coincidental side-effect’ (Turner and Brownhill, 2001: 107); or using Dierckxsens’ terms, ‘the principle of ef?ciency has replaced that of vitality’ (2000: 17).Of course, this does not mean that human beings or their needs and concerns have become completely irrelevant. It merely means that in late-modern society, despite all modernist pleas and reassurances to the contrary, the sociological category of the (idealist) autonomous subject has de facto abdicated, and that the identity of human individuals is being rede?ned in economic terms as the unique consumer pro?le. As the market has entered and transformed even the most private spheres and dimensions of the lifeworlds of late-modern individuals, identity formation and self-experience have become, ?rst and foremost, a matter of product choices and acts of consumption (Featherstone, 1991; Du Gay, 1996; Baudrillard, 2001). Human thinking and self-perception have been remoulded by the images and advertising campaigns of the consumer industry. Every imaginable, supposedly self-determined, human activity, ranging from sexuality or parenting to mobility or gardening, is governed by the range of options which the market has available for the respective purpose; and the market itself also generates the criteria by which product choices are supposed to be made. Accordingly, any emerging identity is assembled through product choices: it is no longer prior to, distinct from, and autonomous vis-à-vis the market, but identical with it. This speci?cally, i.e. the abdication of the autonomous subject and the dissolution of the distinction and dualism between the individual and its environment, the subject and the system, the Self and the Other, is the de?ning criterion of what may be called denucleated modernity (Blühdorn, 2003, 2004).In denucleated modernity, the individual and the system are constituted and governed by the same logic. Denucleated modernity represents a systemic coherence that has lost its purpose, value and centre – its nucleus – which once was the idealist notion of the autonomous subject. Of course, the notion of denucleated modernity is – just like any other conceptualization of contemporary society – no more than a social-theoretical model. It offers an ideal-type description that consciously reduces complexity. It ought to be understood as a heuristic device that aims to highlight particular characteristics and to draw attention to particular problems of advanced consumer democracies. It does not claim to offer an exhaustive description of advanced capitalist societies. But the speci?c condition that it aims to capture has grave implications for contemporary individuals living in these societies, as well as for democratic politics and the capitalist economy. With a view to the interpretation of contemporary social movements and nonconventional forms of political articulation, it is useful to at least brie?y sketch these implications:First, since the Enlightenment, the notion of the autonomous individual as the ultimate source and subject of value, as the centre of modern society and the purpose of societal development has been deeply rooted in European and Western culture. It is the way in which contemporary individuals still like to conceive of themselves, and political campaigning strategists as well as consumer product marketing are eagerly reinforcing this self-perception. The opposite idea that the individual might be no more than an exploitable resource, i.e. a means rather than an end, is entirely unacceptable, even though in their everyday lives and social relations, contemporary individuals constantly experience themselves as marginalized, powerless and subject to systemic imperatives. In order to con?rm or regain their autonomy vis-à-vis the system, in order to reassure themselves of their subject-status and experience themselves as distinct from the market, individuals are constantly engaged in activities of self-construction, self-expression and self-experience. As noted above, in advanced capitalist consumer democracies the dominant strategy for this identity construction and self-experience is by means of acts of consumption. For obvious reasons, however, the hopes and expectations of the identity-seeking individual are constantly frustrated: acts of consumption can at best provide evidence of an already existing autonomous identity but they can never constitute one. Nevertheless, ever more and ever accelerated consumption suggests itself as the only way forward. In a type of society where every human activity has been fully permeated by the market, alternative patterns of identity construction are neither readily available nor equally attractive. Yet, the particular problem of this practice of ever more and ever accelerated consumption is not just that it necessarily fails to reach its objective, but beyond this it is limited by the ?niteness of resources. For both the individual as well as society at large, it quickly leads into problems of economic and ecological unsustainability.Second, for democratic politics, the late-modern scenario of the single all-embracing economic coherence implies that politics no longer centres on the negotiation and implementation of social values and societal visions emerging from autonomous individuals and cultural communities. Instead, politics is reduced to the execution of market imperatives which the political system processes in accordance with its logic of power. This is the condition which radical critics of corporate globalization have described as the end of politics or the silent take-over (Boggs, 2000; Gamble, 2000; Hertz, 2001). Of course, different conceptions of the economically necessary and promising con?icts between different economic interests or priorities, and the mobilization of the marginalized or excluded continue to regenerate political competition. But in advanced consumer democracies, politics has turned into the competition between big campaigning budgets, election strategists and spin doctors rather than between alternative visions of the common good. In order to fend off suspicions that they are pursuing power for power’s sake, politicians undertake frantic efforts to convince the electorate that politics is still about competing ideals and visions for a better society. Untiringly, they reassure the public that politics has not been emasculated by economic imperatives, and that parliamentarians do listen to and represent the concerns of their voters. But by reproducing the belief in the autonomous subject (voter) which supposedly is its external point of reference, the system of politics is in danger of reinforcing rather than resolving the problem: Its promises heighten the horizon of expectations and, by implication, raise the potential for disappointment. In the effort to stabilize its own foundations, the system of politics may therefore even reinforce the experience of disempowerment and exclusion.Third, as regards the economic system, it is becoming ever more dif?cult to conceptualize and justify the contemporary race for competitiveness, ef?ciency and pro?tability as the ful?lment of pre-existing values or goals rooted in the autonomous individual or human communities. Economic innovation and modernization pursue ef?ciency and competitiveness as intrinsic values. The maximization of earning capacities and spending power provides late-modern individuals with the means to pursue their consumption-centred pattern of identity construction, yet it is the economic system itself which charges consumer products with the values which make them desirable and supposedly legitimize their price. In a way that is directly comparable to the efforts of the political system, the economic system, too, responds to these threats of systemic self-referentiality by undertaking major efforts to reassure consumers that they are the real centre of power and control, i.e. that the economy is only serving their preexisting desires and needs, and that the market merely provides the means for the realization of the customer’s entirely autonomous self. At the macro-level, the ever repeated promises that economic innovation and growth are pursued primarily in order to combat poverty, famine or cancer represent prominent examples of the economic system’s desperate attempt to portray itself as serving the real needs of individuals and humanity at large. At the micro-level, advertising and marketing are fully focused on reconstructing the autonomous ego which is conscious of its entirely independent interests, values and needs, and determined to make producers and markets respond to them. Of course, as in the case of the political system, the tireless efforts of the economic system to stabilize the external legitimation for its logic of pro?tability, and to highlight its service role and customer orientation can never really be convincing and invariably breed cynicism.Obviously, these simplifying sketches are not supposed to be fully adequate and exhaustive descriptions of the individual, politics and the economy in advanced consumer societies. They aim to capture and emphasize speci?c characteristics of these societies which are, however, regarded as suf?ciently important to justify the talk of a distinctive late-modern condition and denucleated modernity. On the basis of these sketches, the speci?c condition of late-modern society can be described as a crisis of self-referentiality. This crisis is fundamental and inescapable. It could be resolved only by overcoming the late-modern uni-dimensionality and reinstating an external point of reference. For this, however, latemodern society does not seem to have the cultural resources. For the appropriate understanding of contemporary social movements and new forms of political articulation, the full appreciation of this fundamental crisis is, arguably, absolutely essential. Because of its self-referentiality, the system of denucleated modernity is highly fragile and vulnerable. It can be sustained only as long as its problems of self-referentiality which obviously cannot be resolved, can at least be managed, i.e. as long as the marginalization or even dissolution of the autonomous subject can be concealed. For sociological research that does not want to con?ne itself either to the agendas of traditional critical theory or to the role of service provider to the established system, this raises important questions: How does late-modern society manage the problem of self-referentiality that it obviously cannot resolve? What strategies does it develop in order to stabilize or regenerate the external point of reference, the dualism of modernity on which it depends? In response to these questions, the next section will develop the argument that one such strategy is to cultivate designated spaces in which the central features of traditional modernity can be simulated (Blühdorn, 2003, 2004). Without asserting that this is an exhaustive interpretation of contemporary social movements and new forms of political articulation, it is suggested that they ful?l, inter alia, exactly this function.This buy-sell mindset subconsciously works through the modern subject in an attempt to bring about a truly autonomous being -- in an attempt to break away from the system, subjects seek to create an oppositional identity to align with through radical alternatives to the status quo. However, these performances -- no matter how radical -- simply serve to temporarily pacify dissenters and create a placebo effect which allows for the continued management of unsustainable practices, from environmental abuse to hierarchal inequality to overseas invasions in the name of “new queer anarchy”Bluhdorn 07 (May 2007, Ingolfur, PhD, Reader in Politics/Political Sociology, University of Bath, “Self-description, Self-deception, Simulation: A Systems-theoretical Perspective on Contemporary Discourses of Radical Change,” Social Movement Studies, Vol. 6, No. 1, 1–20, May 2007, google scholar)Yet the established patterns of self-construction, which thus have to be defended and further developed at any price, have fundamental problems attached to them: ?rstly, the attempt to constitute, on the basis of product choices and acts of consumption, a Self and identity that are distinct from and autonomous vis-a`-vis the market is a contradiction in terms. Secondly, late-modern society’s established patterns of consumption are known to be socially exclusive and environmentally destructive. Despite all hopes for ecological modernization and revolutionary improvements in resource ef?ciency (e.g. Weizsa¨cker et al., 1998; Hawkenet al., 1999; Lomborg, 2001), physical environmental limits imply that the lifestyles and established patterns of consumption cherished by advanced modern societies cannot even be extended to all residents of the richest countries, let alone to the populations of the developing world. For the sake of the (re)construction of an ever elusive Self, in their struggle against self-referentiality and in pursuit of the regeneration of difference, late-modern societies are thus locked into the imperative of maintaining and further developing the principle of exclusion (Blu¨hdorn, 2002, 2003). At any price they have to, and indeed do, defend a lifestyle that requires ever increasing social inequality, environmental degradation, predatory resource wars, and the tight policing of potential internal and external enemies.14 For this effort, military and surveillance technology provide ever more sophisticated and ef?cient means. Nevertheless, the principle of exclusion is ultimately still unsustainable, not only because of spiralling ‘security’ expenses but also because it directly contradicts the modernist notion of the free and autonomous individual that late-modern society desperately aims to sustain. For this reason, late-modern society is confronted with the task of having to sustain both the late-modern principle of exclusion as well as its opposite, i.e. the modernist principle of inclusion. Very importantly, the con?ict between the principles of exclusion and inclusion is not simply one between different individuals, political actors or sections of society. Instead, it is a politically irresolvable con?ict that resides right within the late-modern individual, the late-modern economy and late-modern politics. And if, as Touraine notes, late-modern society no longer believes in nor even desires political transcendence, the particular challenge is that the two principles can also no longer be attributed to different dimensions of time, i.e. the former to the present, and the latter to some future society. Instead, late-modern society needs to represent and reproduce itself and its opposite at the same time.If considered within this framework of this analysis, the function of Luhmann’s system of protest communication, or in the terms of this article, the signi?cance of late-modern societies’ discourses of radical change becomes immediately evident. At a stage when the possibility and desirability of transcending the principle of exclusion has been pulled into radical doubt but when, at the same time, the principle of inclusion is vitally important, these discourses simulate the validity of the latter as a social ideal. In other words, latemodern society reconciles the tension between the cherished but exclusive status quo – for which there is no alternative – and the non-existent inclusive alternative – on whose existence it depends – by means of simulation. The analysis of Luhmann’s work has demonstrated how the societal self-descriptions produced by the system of protest communication, or late-modern society’s discourses of radical change, ful?l this function exactly. They are an indispensable function system not so much because they help to resolve late-modern society’s problems of mal-coordination, but because by performing the possibility of the alternative they help to cope with the fundamental problem of self-referentiality. In this sense, late-modern society’s discourses of sustainability, democratic renewal, social inclusion or global justice, to name but a few, suggest that advanced modern society is working towards an environmentally and socially inclusive alternative – genuinely modern – society, but they do not deny the fact that the big utopia and project of late-modern society is the reproduction and further enhancement of the status quo, i.e. the sustainability of the principle of exclusion.Protest movements as networks of physical actors and actions complement the purely communicative discourses of radical change in that they bring their narrative and societal selfdescription to life. Whilst the declarations of institutionalized mainstream politics cannot escape the generalized suspicion that they are purely rhetorical, social movements provide an arena for the physical expression and experience of the authenticity and reality of the alternative, or at least of the reality of its possibility and the authenticity of the commitment to its realization. For late-modern individuals who seek to find their elusive identity in ever new acts of consumption, protest movements offer an opportunity to experience themselves as autonomous, as subjects, as actors, as distinct from and opposed to the all-embracing market. Social movements and the more or less institutionalized discourses of radical change thus transmute from germ cells of the alternative society into reserves of alterity, or theme-parks for simulated alterity (Blu¨hdorn, 2005a). This interpretation reflects Luhmann’s suggestion that contemporary discourses of radical change are not so much about the actual implementation of radical social change as about the ‘symbolism of the alternative’. And it nowappears that the societal self-descriptions they generate fulfil a vital function not in so far as they increase the reflexivity of late-modern society but in so far as they are arenas for the experience of simulated subjectivity, duality and modernity. They provide an opportunity to reconcile the cherished but exclusive status quo with the equally cherished but unsustainable belief in the inclusive alternative. Protest movements and discourses of radical change are the implantation of the alternative into the system itself, or the simulated reproduction of alterity fromthe system’s own resources. As the real alternatives to the system are utterly unattractive, disappearing fast, and indeed resisted and annihilated at any price, this internal simulation of alterity is becoming late-modern society’s only remaining way of coping with the threat of self-referentiality.Critiques of heteronormativity re-entrench existing subject identity roles and unknowingly manifest the harmful aspects of capitalismMcNamara 2k (Liam, PhD student in English Literature at Royal Holloway, University of London, “Review: The Political economy of Sex”, )In Chapter Three, Hennessey attacks the current reigning ideology of neoliberalism, which involves an increasing drive for profits, globalization, and a general cultural turn in theory, leading to the assimilation of critical theory by the academy. This has lead to the abandonment of Marxism and its substitution by cultural materialism. Hennessey tries to turn the argument back to theories of exploitation, ultimately rejecting overdetermination in favour of commodity fetishism. She explicitly links heteronormativity to the emergence of the commodity form, since it is the division of labour that has allowed the formation of new sexual subjectivities in the consumer society. This liberation of productive forces has enabled the emergence of new desiring subjects that escape the heterosexual norm, but this development is underpinned by a new patriarchal hierarchy ushering in a renascent form of heteronormativity. Hennessey points out how in the nineteenth century sexology and psychoanalytic discourses allowed for new divergent sexual identities that were swiftly reterritorialized under the ‘perversions’. Heteronormative paradigms have gone on to manage desire by restricting queer desire to the perversions. Basically Hennessey is trying to historicize Cixous’ ideas of a ‘patriarchal binary logic’ and the persistence of gendered active/passive roles of sexuality.6 Hennessey links sexual liberation to economic imperatives and the division of labour in addition to the conventional cultural explanations, and suggests that desire has been managed and moved away from procreative norms due to the demands of the new productive forces found in mass consumption. Hennessey’s stance shows a critical understanding of sexual liberation, by the introduction of the theory of class. Hennessey points out: ‘capitalism does not require heteronormative families or even a gendered division of labour. What it does require is an unequal division of labour’ (P&P, 105). Some gay men have adopted the ideology of the family, but this ideology is generally compulsory for the disadvantaged. At bottom, what is needed is commodity exchange and surplus value for the few not many. Capitalism still relies on heterosexuality for the poor, and the new non-normative forms of sexuality are generally reserved for the affluent consumer subjectivities. These emergent ‘postmodern sexualities’ are compatible with the new liquescent forms of the commodity, possessing a fluidity that has an affinity with the new consumer ethos.The aff ignores the effects of capitalism on identities -- queerness and sexual identity was marked as less valuable because queer bodies could not reproduce in the same way heterosexual bodies could -- we are winning a sequencing argument that should frame how you view the 1ar responsesHennessy 2k(Rosemary, professor at SUNY Albany, “Profit and Pleasure: Sexual Identities in Late Capitalism”, published by Routledge)By the early nineties AIDS had already reaped a staggering harvest of lives and mobilized the gay community in the United States, fueling cam paigns for social change that extended gay politics beyond demands for tolerance or "a place at the table." Many middle-class lesbians and gay men were in fact gradually if grudgingly being offered places — tolerated and profitably eased into the newer, hipper currents of mainstream com modity culture. In this context, Bill Clinton's "don't ask, don't tell" policy on gays in the military was only one very prominent articulation of a new backhanded change in the public face of gay tolerance and its link to na tional identity and state control. Indeed, tolerance was gaining more air time; in the streets, in the media, and in the academy, "queer" was being promoted as a badge of pride and a standpoint for a new sexual politics that would extend beyond a liberal civil rights agenda. In the academy, and in the humanities especially, new knowledges — some of them under the signature "queer theory"—challenged traditional humanist under standings of the self and were nudging their way out of the embattled margins, moving closer onto center stage. British cultural studies had al ready crossed the Atlantic to join indigenous variants in the United States; in critical concert with the voices of feminist and race theorists, postcolo nial, and lesbian and gay critics were redrawing the boundaries of tradi tional disciplines and redefining what counted as legitimate objects of study. Inside and outside the academy, capital accumulation was being pumped up with new cyber subjects as its prime promoters, even as profits continued to rely on a very traditional source— the gendered and racial?ized division of labor. As I will argue throughout this book, these and other contradictions are not so disparate as they may seem. Yet the complex social structures and power relations they span and that undergird the lived reality of late capitalism often remain invisible. This problem of visibility—which in cludes how we know and recognize certain identities (a very basic feature of the history of sexual identity)— will be one of the recurring issues in this book. It is now a given that we cannot see homosexualtiy as a monolithic or universal identity, and it has become axiomatic that all sexual identities as they are lived and experienced are intimately inflected by gender, race, nationality, ability, age. How these markers of difference have shaped lesbian and gay history and the history of sexuality in general is finally being studied, and in the process many of the cultural presuppo sitions and divisions on which the very concept of sexual identity is premised are being questioned. But often this work still leaves unexamined why the cultural differences that shape identities are organized as they are, and the relationship between sexual identities and capitalism re mains for the most part an unexplored—even unspeakable—area of in quiry.' Against this trend, I begin with the assumption that the history of sexual identity—in all of the varied ways it has been culturally differenti ated and lived—has been fundamentally, though never simply, affected In several aspects by capitalism: wage labor, commodity production and consumption.' Because the relationship between capitalism and sexual identity is complex, indirect, and historically variable, and because there is not a readily accessible conceptual vocabulary for explaining these connec taccid.. I give some extended attention to concepts (late capitalism, gendered divisions ions of labor, ideology, patriarchal structures) that may not seem to 'be related to sexual identity in any obvious way. I invite the reader to be patient with these seeming detours. I offer them because I hope they as interventions into the power of more obvious and perhaps more compelling ways of seeing. The alternative is to orient our politics around the way the forces of production operate on both a micro- and macropolitical scale -- this is the only way to effectively break free of the subconscious control imposed by the buy-sell mindset that plagues even the best of the false revolutionaries.McLaren 4(Peter, Education and Urban Schooling Division prof, UCLA—and Valerie Scatamburlo-D'Annibale; University of Windsor, Educational Philosophy and Theory, Vol. 36, No. 2, 2004, articles/node%2065/RCGS/class_dismissed-val-peter.10.pdf)These are the concrete realities of our time—realities that require a vigorous class analysis, an unrelenting critique of capitalism and an oppositional politics capable of confronting what Ahmad (1998, p. 2) refers to as ‘capitalist universality.’ They are realities that require something more than that which is offered by the prophets of ‘difference’ and post-Marxists who would have us relegate socialism to the scrapheap of history and mummify Marxism along with Lenin's corpse. Never before has a Marxian analysis of capitalism and class rule been so desperately needed. That is not to say that everything Marx said or anticipated has come true, for that is clearly not the case. Many critiques of Marx focus on his strategy for moving toward socialism, and with ample justification; nonetheless Marx did provide us with fundamental insights into class society that have held true to this day. Marx's enduring relevance lies in his indictment of capitalism which continues to wreak havoc in the lives of most. While capitalism's cheerleaders have attempted to hide its sordid underbelly, Marx's description of capitalism as the sorcerer's dark power is even more apt in light of contemporary historical and economic conditions. Rather than jettisoning Marx, decentering the role of capitalism, and discrediting class analysis, radical educators must continue to engage Marx's oeuvre and extrapolate from it that which is useful pedagogically, theoretically, and, most importantly, politically in light of the challenges that confront us.The urgency which animates Amin’s call for a collective socialist vision necessitates, as we have argued, moving beyond the particularism and liberal pluralism that informs the ‘politics of difference.’ It also requires challenging the questionable assumptions that have come to constitute the core of contemporary ‘radical’ theory, pedagogy and politics. In terms of effecting change, what is needed is a cogent understanding of the systemic nature of exploitation and oppression based on the precepts of a radical political economy approach (outlined above) and one that incorporates Marx’s notion of ‘unity in difference’ in which people share widely common material interests. Such an understanding extends far beyond the realm of theory, for the manner in which we choose to interpret and explore the social world, the concepts and frameworks we use to express our sociopolitical understandings, are more than just abstract categories. They imply intentions, organizational practices, and political agendas. Identifying class analysis as the basis for our understandings and class struggle as the basis for political transformation implies something quite different than constructing a sense of political agency around issues of race, ethnicity, gender, etc. Contrary to ‘Shakespeare’s assertion that a rose by any other name would smell as sweet,’ it should be clear that this is not the case in political matters. Rather, in politics ‘the essence of the ?ower lies in the name by which it is called’ (Bannerji, 2000, p. 41).The task for progressives today is to seize the moment and plant the seeds for a political agenda that is grounded in historical possibilities and informed by a vision committed to overcoming exploitative conditions. These seeds, we would argue, must be derived from the tree of radical political economy. For the vast majority of people today—people of all ‘racial classi?cations or identities, all genders and sexual orientations’—the common frame of reference arcing across ‘difference’, the ‘concerns and aspirations that are most widely shared are those that are rooted in the common experience of everyday life shaped and constrained by political economy’ (Reed, 2000, p. xxvii). While post-Marxist advocates of the politics of ‘difference’ suggest that such a stance is outdated, we would argue that the categories which they have employed to analyze ‘the social’ are now losing their usefulnesss, particularly in light of actual contemporary ‘social movements.’ All over the globe, there are large anti-capitalist movements afoot. In February 2002, chants of ‘Another World Is Possible’ became the theme of protests in Porto Allegre. It seems that those people struggling in the streets haven’t read about T.I.N.A., the end of grand narratives of emancipation, or the decentering of capitalism. It seems as though the struggle for basic survival and some semblance of human dignity in the mean streets of the dystopian metropoles doesn’t permit much time or opportunity to read the heady proclamations emanating from seminar rooms. As E. P. Thompson (1978, p. 11) once remarked, sometimes ‘experience walks in without knocking at the door, and announces deaths, crises of subsistence, trench warfare, unemployment, in?ation, genocide.’ This, of course, does not mean that socialism will inevitably come about, yet a sense of its nascent promise animates current social movements. Indeed, noted historian Howard Zinn (2000, p. 20) recently pointed out that after years of single-issue organizing (i.e. the politics of difference), the WTO and other anti-corporate capitalist protests signaled a turning point in the ‘history of movements of recent decades,’ for it was the issue of ‘class’ that more than anything ‘bound everyone together.’ History, to paraphrase Thompson (1978, p. 25) doesn’t seem to be following Theory’s script.Our vision is informed by Marx's historical materialism and his revolutionary socialist humanism, which must not be conflated with liberal humanism. For left politics and pedagogy, a socialist humanist vision remains crucial, whose fundamental features include the creative potential of people to challenge collectively the circumstances that they inherit. This variant of humanism seeks to give expression to the pain, sorrow and degradation of the oppressed, those who labor under the ominous and ghastly cloak of ‘globalized’ capital. It calls for the transformation of those conditions that have prevented the bulk of humankind from fulfilling its potential. It vests its hope for change in the development of critical consciousness and social agents who make history, although not always in conditions of their choosing. The political goal of socialist humanism is, however, ‘not a resting in difference’ but rather ‘the emancipation of difference at the level of human mutuality and reciprocity.’ This would be a step forward for the ‘discovery or creation of our real differences which can only in the end be explored in reciprocal ways’ (Eagleton, 1996, p. 120). Above all else, the enduring relevance of a radical socialist pedagogy and politics is the centrality it accords to the interrogation of capitalism. We can no longer afford to remain indifferent to the horror and savagery committed by capitalist's barbaric machinations. We need to recognize that capitalist democracy is unrescuably contradictory in its own self-constitution. Capitalism and democracy cannot be translated into one another without profound efforts at manufacturing empty idealism. Committed Leftists must unrelentingly cultivate a democratic socialist vision that refuses to forget the ‘wretched of the earth,’ the children of the damned and the victims of the culture of silence—a task which requires more than abstruse convolutions and striking ironic poses in the agnostic arena of signifying practices. Leftists must illuminate the little shops of horror that lurk beneath ‘globalization’s’ shiny fa?ade; they must challenge the true ‘evils’ that are manifest in the tentacles of global capitalism's reach. And, more than this, Leftists must search for the cracks in the edifice of globalized capitalism and shine light on those fissures that give birth to alternatives. Socialism today, undoubtedly, runs against the grain of received wisdom, but its vision of a vastly improved and freer arrangement of social relations beckons on the horizon. Its unwritten text is nascent in the present even as it exists among the fragments of history and the shards of distant memories. Its potential remains untapped and its promise needs to be redeemed.K Capitalism (Framework Aff)ethical frameworks that dictate universal obligations ignore the inequality produced by the application of rules in class-divided societies—means attempts at universal ethics in a capitalist society are ineffective. Llorente ‘03 Renzo Llorente. “Maurice Cornforth’s Contribution to Marxist Metaethics.” NATURE, SOCIETY, AND THOUGHT Vol. 16, No. 3 (2003). me begin with what is undoubtedly the central feature of Cornforth’s critique of analytic moral philosophy in Marxism and the Linguistic Philosophy (and a basic component of what I have called a Marxist metaethics), namely his insistence on the inherent injustice of attempting to universalize ethical norms in class-divided societies. Before reviewing the substance and scope of Cornforth’s criticism, however, it will be helpful to say a word about the principle of universalizability and its importance in ethics.In moral philosophy, or ethics (for our present purposes we may use the two terms synonymously), we say that a judgment is universalizable if, to quote R. M. Hare, “it logically commits the speaker to making a similar judgment about anything which is either exactly like the subject of the original judgment or like it in the relevant respects” (1963, 139, cited in Cornforth 1965, 214).8 Put more simply, this principle holds that “what is right (or wrong) for one person is right (or wrong) for any similar person in similar circumstances” (Singer 1999, 941); the mere fact that individuals differ from one another—as opposed to finding themselves in situations that are dissimilar (or being themselves dissimilar) in a morally relevant sense9—in and of itself never justifies the application of different moral standards or the imposition of different moral duties. Universal applicability is, according to this thesis, a formal feature of all moral principles, indeed, a necessary condition for any proposition or judgment to qualify as a moral principle. While the basic intuition reflected in this criterion was first explicitly developed by Immanuel Kant, we owe the stron- gest modern statement and elucidation of this principle to R. M. Hare, who is for this reason—and because of his stature as one of the leading figures in twentieth-century analytical moral philoso- phy—the main target of Cornforth’s criticism in the pages devoted to ethics within Marxism and the Linguistic Philosophy.Cornforth does not take exception to the principle of universalizability as such. To the contrary, he, like the great majority of contemporary philosophers, acknowledges its validity, noting that it “is a consequence of the essentially social nature of morality. . . . [I]t is simply the result of the fact that such principles are enunciated for the purpose of regulating social life” (1965, 235). The problem, argues Cornforth, concerns the contradiction between a demand for, and injunction to, universalizability as the guarantee of fairness and impartiality, on the one hand, and the inherent injustice and unfairness of seeking to universalize moral norms and precepts in class-divided societies. For the insistence on universalizability, save in a situation of rough equality of condition, imposes very different burdens on the agents subject to this demand, and thus proves inherently unfair, a violation of the fundamental moral precept, already formulated by Aristotle, of equality of treatment for equals.10 As Cornforth puts it, “How, in a class-divided society in which the profits of one class are derived from the labour of another, can public policies and social aims be judged by a criterion of universal acceptability?” (228). Or again, putting the same point a bit differently (i.e., in terms of interests): “Until all exploitation of man by man is ended, morality cannot be based on a generalised human standpoint, expressing a common human point of view and interest” (357). We shall return to Cornforth’s remarks on interests shortly. Before doing so, let us first consider Cornforth’s discussion of the consequences attending the attempt to comply with the imperative of universalizability in class-divided societies. As Cornforth shows, two outcomes are possible. On the one hand, insofar as determinate moral principles are established as universally valid and used to regulate social life, the result is the enshrinement of a system of moral rules that is intrinsically unfair and inevitably class-biased. As Cornforth observes, “Where there are class divisions and one class interest is dominant within the given form of association, the corresponding obligations and rights express the dominant class interest, and the corresponding moral code becomes class-biased, not a code of universal but of class-biased morality” (1965, 354).11 In other words, if class divisions preclude the rough equality of condition necessary for the principle of universalizability to function properly (i.e., impartially), then the prevailing moral code will normally comprise duties, obligations, and so on that favor the dominant classes,12 since their interests are sure to take precedence in a situation in which there exist divergent, mutually exclusive interests and they alone possess the economic and political resources to ensure that their interests prevail.13The critique independently outweighs the case - neoliberalism causes extinction and massive social inequalities – you don’t solve the rc. Farbod 15 ( Faramarz Farbod , PhD Candidate @ Rutgers, Prof @ Moravian College, Monthly Review, , 6-2)Global capitalism is the 800-pound gorilla. The twin ecological and economic crises, militarism, the rise of the surveillance state, and a dysfunctional political system can all be traced to its normal operations. We need a transformative politics from below that can challenge the fundamentals of capitalism instead of today's politics that is content to treat its symptoms. The problems we face are linked to each other and to the way a capitalist society operates. We must make an effort to understand its real character. The fundamental question of our time is whether we can go beyond a system that is ravaging the Earth and secure a future with dignity for life and respect for the planet. What has capitalism done to us lately? The best science tells us that this is a do-or-die moment. We are now in the midst of the 6th mass extinction in the planetary history with 150 to 200 species going extinct every day, a pace 1,000 times greater than the 'natural' extinction rate.1 The Earth has been warming rapidly since the 1970s with the 10 warmest years on record all occurring since 1998.2 The planet has already warmed by 0.85 degree Celsius since the industrial revolution 150 years ago. An increase of 2° Celsius is the limit of what the planet can take before major catastrophic consequences. Limiting global warming to 2°C requires reducing global emissions by 6% per year. However, global carbon emissions from fossil fuels increased by about 1.5 times between 1990 and 2008.3 Capitalism has also led to explosive social inequalities. The global economic landscape is littered with rising concentration of wealth, debt, distress, and immiseration caused by the austerity-pushing elites. Take the US. The richest 20 persons have as much wealth as the bottom 150 million.4 Since 1973, the hourly wages of workers have lagged behind worker productivity rates by more than 800%.5 It now takes the average family 47 years to make what a hedge fund manager makes in one hour.6 Just about a quarter of children under the age of 5 live in poverty.7 A majority of public school students are low-income.8 85% of workers feel stress on the job.9 Soon the only thing left of the American Dream will be a culture of hustling to survive. Take the global society. The world's billionaires control $7 trillion, a sum 77 times the debt owed by Greece to the European banks.10 The richest 80 possess more than the combined wealth of the bottom 50% of the global population (3.5 billion people).11 By 2016 the richest 1% will own a greater share of the global wealth than the rest of us combined.12 The top 200 global corporations wield twice the economic power of the bottom 80% of the global population.13 Instead of a global society capitalism is creating a global apartheid. What's the nature of the beast? Firstly, the "egotistical calculation" of commerce wins the day every time. Capital seeks maximum profitability as a matter of first priority. Evermore "accumulation of capital" is the system's bill of health; it is slowdowns or reversals that usher in crises and set off panic. Cancer-like hunger for endless growth is in the system's DNA and is what has set it on a tragic collision course with Nature, a finite category. Secondly, capitalism treats human labor as a cost. It therefore opposes labor capturing a fair share of the total economic value that it creates. Since labor stands for the majority and capital for a tiny minority, it follows that classism and class warfare are built into its DNA, which explains why the "middle class" is shrinking and its gains are never secure. Thirdly, private interests determine massive investments and make key decisions at the point of production guided by maximization of profits. That's why in the US the truck freight replaced the railroad freight, chemicals were used extensively in agriculture, public transport was gutted in favor of private cars, and big cars replaced small ones. What should political action aim for today? The political class has no good ideas about how to address the crises. One may even wonder whether it has a serious understanding of the system, or at least of ways to ameliorate its consequences. The range of solutions offered tends to be of a technical, legislative, or regulatory nature, promising at best temporary management of the deepening crises. The trajectory of the system, at any rate, precludes a return to its post-WWII regulatory phase. It's left to us as a society to think about what the real character of the system is, where we are going, and how we are going to deal with the trajectory of the system -- and act accordingly. The critical task ahead is to build a transformative politics capable of steering the system away from its destructive path. Given the system's DNA, such a politics from below must include efforts to challenge the system's fundamentals, namely, its private mode of decision-making about investments and about what and how to produce. Furthermore, it behooves us to heed the late environmentalist Barry Commoner's insistence on the efficacy of a strategy of prevention over a failed one of control or capture of pollutants. At a lecture in 1991, Commoner remarked:?"Environmental pollution is an incurable disease; it can only be prevented"; and he proceeded to refer to "a law," namely:?"if you don't put a pollutant in the environment it won't be there." What is nearly certain now is that without democratic control of wealth and social governance of the means of production, we will all be condemned to the labor of Sisyphus. Only we won't have to suffer for all eternity, as the degradation of life-enhancing natural and social systems will soon reach a point of no return. Turns Ethics – You have an ethical obligation to reject capitalism because it makes its victims anonymous.Zizek & Daly 04[Glyn. Lecturer in International Studies at the University College Northampton; Slavoj Zizek, world famous philosophy on psychoanalysis and capitalism; Conversations with ?i?ek. 14-19]For ?i?ek it is imperative that we cut through this Gordian knot of postmodern protocol and recognize that our ethico-political responsibility is to confront the constitutive violence of today's global capitalism and its obscene naturalization/anonymization of the millions who are subjugated by it throughout the world. Against the standardized positions of postmodern culture - with all its pieties concerning 'multiculturalist' etiquette - ?i?ek is arguing for a politics that might be called 'radically incorrect' in the sense that it breaks with these types of positions and focuses instead on the very organizing principles of today's social reality: the principles of global liberal capitalism. This requires some care and subtlety. For too long, Marxism has been bedevilled by an almost fetishistic economism that has tended towards political morbidity. With the likes of Hilferding and Gramsci, and more recently Laclau and Mouffe, crucial theoretical advances have been made that enable the trascendence of all forms of economism. In this new context, however, ?i?ek argues that the problem that now presents itself is almost that of the opposite fetish. That is to say, the prohibitive anxieties surrounding the taboo of economism can function as a way of not engaging with the economic reality and as a way of implicitly accepting the latter as a basic horizon of existence. In an ironic Freudian-Lacanian twist, the fear of economism can end up reinforcing a de facto economic necessity in respect of contemporary capitalism (i.e. the initial prohibition conjures up the very thing it fears). This is not to endorse any retrograde return to economism. ?i?ek's point is rather that in rejecting economism we should not lose sight of the systemic power of capital in shaping the lives and destinies of humanity and our very sense of the possible. In particular, we should not overlook Marx's central insight that in order to create a universal global system the forces of capitalism seek to conceal the politico-discursive violence of its construction through a kind of gentrification of that system. What is persistently denied by neo-liberals such as Rorty (1989) and Fukuyama (1992) is that the gentrification of global liberal capitalism is one whose 'universalism' fundamentally reproduces and depends upon a disavowed violence that excludes vast sectors of the world's population. In this way, neo-liberal ideology attempts to naturalize capitalism by presenting its outcomes of winning and losing as if they were simply a matter of chance and sound judgement in a neutral marketplace. Capitalism does indeed create a space for a certain diversity, at least for the central capitalist regions, but it is neither neutral nor ideal and its price in terms of social exclusion is exorbitant. That is to say, the human cost in terms of inherent global poverty and degraded 'life-chances' cannot be calculated within the existing economic rationale and, in consequence, social exclusion remains mystified and nameless (viz. the patronizing reference to the developing world). And ?i?ek's point is that this mystification is magnified through capitalism's profound capacity to ingest its own excesses and negativity; to redirect (or misdirect) social antagonisms and to absorb them within a culture of differential affirmation. Instead of Bolshevism, the tendency of today is towards a kind of political boutiquism that is readily sustained by postmodern forms of consumerism and lifestyle. Alt: “vote negative to stop participating in capitalism”Herod 04(James, , Getting Free, 4th Edition)It is time to try to describe, at first abstractly and later concretely, a strategy for destroying capitalism. This strategy, at its most basic, calls for pulling time, energy, and resources out of capitalist civilization and putting them into building a new civilization. The image then is one of emptying out capitalist structures, hollowing them out, by draining wealth, power, and meaning out of them until there is nothing left but shells. This is definitely an aggressive strategy. It requires great militancy, and constitutes an attack on the existing order. The strategy clearly recognizes that capitalism is the enemy and must be destroyed, but it is not a frontal attack aimed at overthrowing the system, but an inside attack aimed at gutting it, while simultaneously replacing it with something better, something we want. Thus capitalist structures (corporations, governments, banks, schools, etc.) are not seized so much as simply abandoned. Capitalist relations are not fought so much as they are simply rejected. We stop participating in activities that support (finance, condone) the capitalist world and start participating in activities that build a new world while simultaneously undermining the old. We create a new pattern of social relations alongside capitalist relations and then we continually build and strengthen our new pattern while doing every thing we can to weaken capitalist relations. In this way our new democratic, non-hierarchical, non-commodified relations can eventually overwhelm the capitalist relations and force them out of existence. This is how it has to be done. This is a plausible, realistic strategy. To think that we could create a whole new world of decent social arrangements overnight, in the midst of a crisis, during a so-called revolution, or during the collapse of capitalism, is foolhardy. Our new social world must grow within the old, and in opposition to it, until it is strong enough to dismantle and abolish capitalist relations. Such a revolution will never happen automatically, blindly, determinably, because of the inexorable, materialist laws of history. It will happen, and only happen, because we want it to, and because we know what we’re doing and know how we want to live, and know what obstacles have to be overcome before we can live that way, and know how to distinguish between our social patterns and theirs. But we must not think that the capitalist world can simply be ignored, in a live and let live attitude, while we try to build new lives elsewhere. (There is no elsewhere.) There is at least one thing, wage-slavery, that we can’t simply stop participating in (but even here there are ways we can chip away at it). Capitalism must be explicitly refused and replaced by something else. This constitutes War, but it is not a war in the traditional sense of armies and tanks, but a war fought on a daily basis, on the level of everyday life, by millions of people. It is a war nevertheless because the accumulators of capital will use coercion, brutality, and murder, as they have always done in the past, to try to block any rejection of the system. They have always had to force compliance; they will not hesitate to continue doing so. Nevertheless, there are many concrete ways that individuals, groups, and neighborhoods can gut capitalism, which I will enumerate shortly. We must always keep in mind how we became slaves; then we can see more clearly how we can cease being slaves. We were forced into wage-slavery because the ruling class slowly, systematically, and brutally destroyed our ability to live autonomously. By driving us off the land, changing the property laws, destroying community rights, destroying our tools, imposing taxes, destroying our local markets, and so forth, we were forced onto the labor market in order to survive, our only remaining option being to sell, for a wage, our ability to work. It’s quite clear then how we can overthrow slavery. We must reverse this process. We must begin to reacquire the ability to live without working for a wage or buying the products made by wage-slaves (that is, we must get free from the labor market and the way of living based on it), and embed ourselves instead in cooperative labor and cooperatively produced goods. Another clarification is needed. This strategy does not call for reforming capitalism, for changing capitalism into something else. It calls for replacing capitalism, totally, with a new civilization. This is an important distinction, because capitalism has proved impervious to reforms, as a system. We can sometimes in some places win certain concessions from it (usually only temporary ones) and win some (usually short-lived) improvements in our lives as its victims, but we cannot reform it piecemeal, as a system. Thus our strategy of gutting and eventually destroying capitalism requires at a minimum a totalizing image, an awareness that we are attacking an entire way of life and replacing it with another, and not merely reforming one way of life into something else. Many people may not be accustomed to thinking about entire systems and social orders, but everyone knows what a lifestyle is, or a way of life, and that is the way we should approach it. The thing is this: in order for capitalism to be destroyed millions and millions of people must be dissatisfied with their way of life. They must want something else and see certain existing things as obstacles to getting what they want. It is not useful to think of this as a new ideology. It is not merely a belief-system that is needed, like a religion, or like Marxism, or Anarchism. Rather it is a new prevailing vision, a dominant desire, an overriding need. What must exist is a pressing desire to live a certain way, and not to live another way. If this pressing desire were a desire to live free, to be autonomous, to live in democratically controlled communities, to participate in the self-regulating activities of a mature people, then capitalism could be destroyed. Otherwise we are doomed to perpetual slavery and possibly even to extinction.[2NR]Policy fixes cannot resolve structural problems in the capitalist system—their framework and solvency claims actively exclude anti-capitalist discourses—ensures serial policy failure and turns caseWolff 08 (Rick Wolff, Professor of Economics at University of Massachusetts at Amherst, 2008 “Policies to "Avoid" Economic Crises,” MR Zine—a publication of The Monthly Review, November 6th, Available Online at )The whole idea of policy is bizarre. The "right policy" represents an absurd claim that this or that law or regulation can somehow undo the many different factors that cumulatively produced this crisis. Policies are "magic potions" offered to populations urgently demanding solutions to real problems. Whether cynically advocated for ulterior motives or actually believed by the politicians, promoters, and professors themselves, policy is the secular cousin of religion. These days, the conservative policy amounts, as usual, to "let the private economy solve the problems" and "minimize state intervention because it only makes matters worse." Conservatives protect the freedoms of private enterprise, market transactions, and the wealthy from state regulations and controls and from taxes. The liberals' policy, also as usual, wants the state to limit corporate behavior, control and shape market transactions, and tilt the tax system more toward benefiting middle and lower income groups. Both policies can no more overcome this economic crisis than they overcame past crises. Historically, both conservative and liberal policies fail at least as often as they succeed. Which outcome happens depends on all the factors shaping them and not on the policy a government pursues. Yet, both sides endlessly claim otherwise in desperate efforts at self-justification. Each side trots out its basic philosophy – dressed up as "a policy to achieve solutions." Conservatives and liberals keep debating. Today's crisis simply provides an urgent sort of context for the old debate to continue. Each side hopes to win converts by suggesting that its approach will "solve the economic crisis" while the other's approach will make it worse. Thus the liberals displaced the conservatives in the depths of the Great Depression, the reverse happened in the recession of the 1970s, and the liberals may now regain dominance. In no instance were adopted policies successful in solving the crises in any enduring way. The unevenness and instability of capitalism as a system soon brought another crisis crashing down on our economy and society. The basic conservative message holds that the current economic crisis is NOT connected to the underlying economic system. The crisis does NOT emerge from the structure of the corporate system of production. It is NOT connected to the fact that corporate boards of directors, responsible to the minority that owns most of their shares, make all the key economic decisions while the enterprise's employees and the vast majority of the citizenry have to live with the consequences. The very undemocratic nature of the capitalist system of production is NOT related to crisis in the conservative view. The basic liberal message likewise disconnects today's crisis from the capitalist production system. Rather, each side insists that all crises would have been and would now be "avoidable" if only the right policy were in place. Conservatives and liberals share more than a careful avoidance of connecting the crisis to the underlying capitalist system. They are also complicit in blocking those who do argue for that connection from making their case in politics, the media, or the schools. While conservative and liberal policies do little to solve crises, the debate between them has largely succeeded in excluding anti-capitalist analyses of economic crises from public discussion. Perhaps that exclusion – rather than solving crises – is the function of those endlessly rehashed policy debates between liberals and conservatives.CP ReformsCP Text: The United States Federal Government should implement moratoriums on new prison constructions, provide amnesty for prisoners convicted of nonviolent crimes, repeal sentences for drug offenses, abolish capital punishment, and identify and punish police abuse. The saved funds should be redirected to rebuild neighborhoods and help residents build local institutions, support social networks, and create social citizenship.This solves – pragmatic strategies to reform the criminal justice system force us to envision a radically different society disengaged from white supremacy. Roberts ‘08Dorothy E. Roberts [Kirkland & Ellis Professor, Northwestern University School of Law]. CONSTRUCTING A CRIMINAL JUSTICE SYSTEM FREE OF RACIAL BIAS: AN ABOLITIONIST FRAMEWORK. 2008.Mass imprisonment, capital punishment, and police terror are not universally associated with racial subjugation. But these barbaric practices can be traced to the enslavement of Africans in the United States and their endurance in modern America serves to sustain the racial order. Racism explains what would otherwise be an intolerable contradiction of their existence in an enlightened democracy. If we see capital punishment, mass incarceration, and police terror as modern extensions of a caste system that originated in slavery and that continues to subjugate black people, eliminating racial bias from the criminal justice system requires their abolition. Conversely, efforts to abolish these institutions should place their racist function at the center of their advocacy. The goals of an abolitionist movement would be: to drastically reduce the prison population by seeking state and federal moratoriums on new prison constructions, amnesty for most prisoners convicted of nonviolent crimes, and repeal of excessive, mandatory sentences for drug offenses;121 to abolish capital punishment; and to implement new procedures to identify and punish patterns of police abuse. I distinguish my abolitionist approach from the one described by Austin Sarat that “argue[s] against the death penalty not by claiming that it is immoral or cruel but by pointing out that it has not been, and cannot be, administered in a manner that is compatible with our legal system’s fundamental commitments to fair and equal treatment.”122 According to Sarat, these abolitionists see the linkage of race and capital punishment “through the lens of discrimination.”123 My claim against mass incarceration, capital punishment, and police terror is not that they are imposed in a discriminatory fashion. Rather, I argue that these immoral practices have flourished in the United States in order to impose a racist order. Understanding their racial origins and function helps to explain their endurance and the need to abolish them.124 Abolishing these institutions should be accompanied by a redirection of criminal justice spending to rebuild the neighborhoods that they have devastated. There should be a massive infusion of resources to poor and low-income neighborhoods to help residents build local institutions, support social networks, and create social citizenship.125 Abolishing them will also force us to envision a radically different approach to crime disengaged from the racist logic of black enslavement and white supremacy. An abolitionist movement opens the possibility of creating alternatives to prison as the dominant means of punishment, as well as alternatives to criminal punishment as a dominant means of addressing social inequities.126 Instead of fearing “too much justice,” we should accept the challenge posed in McCleskey to envision a criminal justice system free of racial bias.DA Court Clog (IP Impact)The aff creates a 30x increase in trialsKim 2015, Andrew Chongseh Kim (Assistant Professor, Concordia University School of Law; B.A., University of Chicago), “UNDERESTIMATING THE TRIAL PENALTY: AN EMPIRICAL ANALYSIS OF THE FEDERAL TRIAL PENALTY AND CRITIQUE OF THE ABRAMS STUDY,” Mississippi Law Journal, 2015, The greatest and most obvious benefit of plea bargaining is that it allows prosecutors and courts to secure convictions without the time and expense of a full trial.31 Where trials can require days or weeks to prepare and resolve, prosecutors can often secure guilty plea convictions with a few hours, or, in routine cases, a few minutes of “negotiations”with public defenders. Without plea bargaining, federal courts would need to conduct over thirty times as many trials to secure the same number of convictions they currently do. Although such an outcome might improve employment rates among recent law school graduates, scholars universally acknowledge that it would dramatically raise the cost of criminal adjudications and, in the short term, grind the entire judicial system nearly to a halt.32Public defenders are already strained, leading to long pre-trial jail times, higher conviction rates, and rampant biases against people of color from low socio-economic backgrounds. The AFF exacerbates this. Brunt 15 (Alexa Van Brunt – attorney and clinical assistant professor with the Roderick and Solange MacArthur Justice Center at Northwestern University Law School; Public Voices Fellow with The OpEd Project, “Poor People Rely On Public Defenders Who Are Too Overworked To Defend Them”, 6/17/15, , EmmieeM)Money can buy you a great defense team, but what if you can’t afford one? More than 80 of those charged with felonies are indigent. As a result, they are unable to hire an attorney and instead rely on representation by a public defender. ?Public defenders are, as a general matter, the hardest working sect of the legal bar. But our nation’s public defender systems have long been plagued by underfunding and excessive caseloads. In Florida in 2009, the annual felony caseload per attorney was over 500 felonies and 2,225 misdemeanors. According to the US Department of Justice, in 2007, about 73% of county public defender offices exceeded the maximum recommended limit of cases (150 felonies or 400 misdemeanors). Too often, those who are poor receive lower quality defense than those who have the means to pay. The on-going decimation of public defense prevents defense attorneys from conducting “core functions,” including factual investigation into the underlying charges. In a lawsuit brought in Washington State, it emerged that publicly appointed defense attorneys were working less than an hour per case, with caseloads of 1,000 misdemeanors per year. This state of affairs also leads to exorbitant trial delays. Consequently, roughly 500,000 pre-trial detainees sit in jail year after year before being adjudged guilty of any crime. This makes a mockery of the innocent-until-proven-guilty principle so sacred to our system of justice. Just two years ago, then-Attorney General Eric Holder acknowledged that the country’s indigent defense systems were “in a state of crisis.” Overworked and poorly prepared attorneys were unable to provide effective representation to those they counsel, in violation of their ethical obligations to provide competent and diligent representation and their clients’ rights under the Sixth Amendment. ?Holder’s words came on the 50th anniversary of Gideon v Wainwright, in which the Supreme Court held that states are constitutionally required to provide counsel to defendants unable to afford to hire their own. Four years later, the Supreme Court ensured the same right for juveniles. Gideon prompted the widespread creation of public defender systems on which so many rely. Yet, the conditions underlying Holder’s condemnation of public defense systems persist. Though funding for indigent defense systems vary by state, such systems are unified in being cash-strapped. Louisiana has had ongoing problems with the funding of its public defender systems since at least 1986 (controversially, Louisiana public defense is supported by the court costs and fines paid by public defenders’ own clients). Ten judicial districts in the state are slated to run out of funds to pay their public defenders as early as this month. ?Other parishes have already implemented “restricted services plans” – meaning public defenders are refusing to take on new cases. Indeed, in recent years public defenders in Missouri, Kentucky and Pennsylvania have also refused to represent new clients due to an overload of cases. The costs of relying on such overburdened attorneys to provide the primary assurance of a fair trial are significant. 95 of criminal cases end in plea bargaining. Excessive caseloads contribute to this trend, and result in a “meet ‘em and plead ‘em” system of justice, in which clients have little more than a brief conversation in the courtroom with a harried public defender before pleading guilty. In Chicago, where I practice as a civil rights litigator, people are spending longer stints in jail (an average of 56 days for those in on drug charges.) Part of the reason is the rampant use of continuances, a sign of an overworked public defender system. Consequently, pre-trial detainees incur a “trial tax” – those who decide to fight their case are forced to stay in jail longer than those who plead guilty. Rikers island survivor Kalief Browder faced this same dilemma. There are also clear racial implications to the poor health of public defender systems. Black people are disproportionately caught up in the criminal justice system. In 2011, black Americans – 12% of the US population – constituted 30% of persons arrested for a property offense and 38% of persons arrested for a violent offense. This group bears the brunt of our public defender systems’ underfunding and overwork.Increasing the federal circuit court's workload would hinder current courts ability to guarantee IP protectionKirk 06 – Michael K. Kirk, Executive Director of the American Intellectual Property Law Association, Chairman, Senate Judiciary Committee; United States Senate Kirk.pdf pg.1-2 KKCI am writing to you on behalf of the American Intellectual Property Law Association (AIPLA) regarding the pending immigration reform legislation that would transfer jurisdiction over immigration appeals to the U.S. Court of Appeals for the Federal Circuit. We believe that such broadening of the Federal Circuit's jurisdiction would seriously hinder the court's ability to render high quality, timely decisions on patent appeals from district courts, and patent and trademark appeals from the U.S. Patent and Trademark Office. This runs directly counter to the present efforts of Congress to otherwise reform and improve this nation's patent system. We take no position on other specific elements of the legislation or on the underlying need for immigration reform. Our concern focuses solely on the proposed shift in appellate jurisdiction, which we believe will do more harm than good. AIPLA is a national bar association whose approximately 16,000 members are primarily lawyers in private and corporate practice, in government service, and in the academic community. AIPLA represents a wide and diverse spectrum of individuals, companies, and institutions involved directly or indirectly in the practice of patent, trademark, copyright, and unfair competition law, as well as other fields of law affecting intellectual property. Our members represent both owners and users of intellectual property, and have a keen interest in an efficient federal judicial system. The Court of Appeals for the Federal Circuit was established in 1982 after more than a decade of deliberate study and Congressional consideration. The Hruska Commission (chaired by Senator Roman Hruska) conducted a study lasting nearly three years before recommending to Congress the establishment of a national appeals court to consider patent cases. It took two Administrations, several Congresses, and a number of hearings in both the House and Senate before legislation establishing the Federal Circuit was finally enacted. Over the past 26 years the Court, through its thoughtful and deliberate opinions, has made great progress in providing stability and consistency in the patent law. Removing immigration appeals from the general jurisdiction of the twelve regional Courts of Appeals and centralizing it in the Federal Circuit is an enormous change. Leaving aside the impact, both pro and con, on the affected litigants, the Federal Circuit is simply not equipped to undertake the more than 12,000 requests for review of deportation orders that twelve courts now share each year. The Federal Circuit currently has no expertise or experience in the field of immigration law. While the legislation envisions adding three judges to the twelve currently on the Court, we have serious concerns whether this increase will be adequate. Judge Posner has calculated that, even with the three additional judges proposed in the legislation, each of the fifteen Federal Circuit judges would be responsible for about 820 immigration cases per year, on the average—an incredibly large number that we believe will have a significant adverse impact on the remainder of the court's docket. It seems inevitable that the proposed legislation will have a dramatic, negative impact on Federal Circuit decisions in patent cases and appeals from the USPTO. Such an increased caseload will necessarily delay decisions in these appeals, which in turn will cause uncertainty over patent and trademark rights and interfere with business investments in technological innovation. Beyond mere delay, the Federal Circuit's ability to issue consistent, predictable opinions in patent cases will be complicated by an increase in the number of judges. If conflicts in panel opinions increase, the inefficient and often contentious en banc process will have to be used more often, further adding to the overall burden on the court. Business can effectively deal with decisions, positive or negative, but it cannot deal with protracted uncertainty caused by inconsistent opinions or long delays in judicial review. Demand for reform of the patent system has been the topic of considerable public debate of late. Congress held extensive hearings on this subject last year, and more are scheduled in coming weeks. The House is currently considering legislation that would dramatically change the patent statute, and we understand that patent reform legislation may soon be introduced in the Senate as well. It would be unfortunate for Congress to inadvertently compound the challenges facing the patent system by weakening the ability of the Federal Circuit to give timely and consistent consideration to patent cases. We appreciate your attention to this matter and urge you to reconsider this proposed expansion of Federal Circuit Court jurisdiction.IP innovation and IPR protection is key to the economy – the AFF collapses thisBird, American Legislative Exchange Council, 12 – Tom Bird October 8, 2012, an intern for the International Relations Task Force. "Intellectual Property: The Innovation Economy's Engine for Growth and Job Creation" for-growth-and-job-creation/ KKCIntellectual Property (IP) is work or an invention resulting from creativity and innovation and can be used to define anything from a piece of art to the latest technological gadget. Intellectual property rights (IPR) have always been part of the American legal landscape and were so important to the Framers that they enshrined them in Article I, Section 8, Clause 8 of our Constitution. To promote the progress of science and useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their Respective Writings and Discoveries The Framers realized that protecting IPR was vital to encourage invention, creativity, and innovation, and the U.S. has relied on ingenuity to drive our economy ever since! According to the World Intellectual Property Organization over one fifth of all patents issued in 2006 were granted by the U.S. Patent Office, and the U.S. Chamber' s Global Intellectual Property Center (GIPC) found that over one-third of U.S. gross output originated from IP-centered companies and accounted for 74% of U.S. exports. Twenty-first century America is as cognizant as the Framers of the importance of protecting IP and has enacted laws making our nation second to none in protecting IPR. IP also creates high-paying American jobs! A recent GIPC study "IP Creates Jobs for America" has a state by state breakdown of what IP means in your state with state-specific statistics illustrating just how significant IP's effects are from coast to coast. The study results indicate that wages in IP-intensive industries are 30% higher than similar jobs in non-IP industries. These jobs are found in numerous business sectors, including fashion, automotive, medical, energy, entertainment, electronics, biotech, consumer goods, and green technologies and account for 55 million U.S. jobs and over 45% of total employment. Globalization presents a number of challenges to IPR including the counterfeiting and piracy of American IP. In 2011, Business Software Alliance estimated that over half of the world's computer users have used pirated software. Additionally, some national governments and large numbers of non-state actors do not enforce IP protections or do not have them at all. While testifying to the Senate Finance Committee last March US Trade Representative, Ambassador Ron Kirk observed that over 90% of Chinese government software is pirated. Inside ALEC underscores the importance of trade frameworks with strong IP provisions. Recognizing this threat to our nation's economy, ALEC's International Relations Task Force has a body of policy calling for the protection of IPR. We support the negotiation of high standard trade agreements with strong IP provisions; understand the threat that rogue internet sites pose to consumer health and safety as well as IP; and recognize the roles that all stakeholders including government at all levels, NGOs and the private sector can play in IPR protection. Some of these ideas are explored in Inside ALEC's "Theft is Not a Free Market Principle" and "America's Economic Freedom Depends on Protecting Our Intellectual Property." Innovation drives our economy and the protection of the IP underpinning innovation is the key to spurring economic growth nationally and, of course, in the states. In order to reap IP's benefits we must protect IPR.Economic decline causes multiple war scenarios – the impact is extinctionHarris and Burrows - 2009 (Counselor in the National Intelligence Council, Member at the National Intelligence Council - Mathew J. Burrows, Global Trends 2025: A Transformed World—an unclassified report by the NIC published every four years that projects trends over a 15-year period, has served in the Central Intelligence Agency since 1986, holds a Ph.D. in European History from Cambridge University, and Jennifer Harris, Member of the Long Range Analysis Unit at the National Intelligence Council, holds an M.Phil. in International Relations from Oxford University and a J.D. from Yale University, 2009 (“Revisiting the Future: Geopolitical Effects of the Financial Crisis,” The Washington Quarterly, Volume 32, Issue 2, April, Available Online at , Accessed 08-22-2011, p. 35-37)Of course, the report encompasses more than economics and indeed believes the future is likely to be the result of a number of intersecting and interlocking forces. With so many possible permutations of outcomes, each with ample [end page 35] opportunity for unintended consequences, there is a growing sense of insecurity.? Even so, history may be more instructive than ever. While we continue to believe that the Great Depression is not likely to be repeated, the lessons to be drawn from that period include the harmful effects on fledgling democracies and multiethnic societies (think Central Europe in 1920s and 1930s) and on the sustainability of multilateral institutions (think League of Nations in the same period). There is no reason to think that this would not be true in the twenty-first as much as in the twentieth century. For that reason, the ways in which the potential for greater conflict could grow would seem to be even more apt in a constantly volatile economic environment as they would be if change would be steadier. In surveying those risks, the report stressed the likelihood that terrorism and nonproliferation will remain priorities even as resource issues move up on the international agenda. Terrorism’s appeal will decline if economic growth continues in the Middle East and youth unemployment is reduced. For those terrorist groups that remain active in 2025, however, the diffusion of technologies and scientific knowledge will place some of the world’s most dangerous capabilities within their reach. Terrorist groups in 2025 will likely be a combination of descendants of long established groups—inheriting organizational structures, command and control processes, and training procedures necessary to conduct sophisticated attacks—and newly emergent collections of the angry and disenfranchised that become self-radicalized, particularly in the absence of economic outlets that would become narrower in an economic downturn. The most dangerous casualty of any economically-induced drawdown of U.S. military presence would almost certainly be the Middle East. Although Iran’s acquisition of nuclear weapons is not inevitable, worries about a nuclear-armed Iran could lead states in the region to develop new security arrangements with external powers, acquire additional weapons, and consider pursuing their own nuclear ambitions. It is not clear that the type of stable deterrent relationship that existed between the great powers for most of the Cold War would emerge naturally in the Middle East with a nuclear Iran. Episodes of low intensity conflict and terrorism taking place under a nuclear umbrella could lead to an unintended escalation and broader conflict if clear red lines between those states involved are not well established. The close proximity of potential nuclear rivals combined with underdeveloped surveillance capabilities and mobile dual-capable Iranian missile systems also will produce inherent difficulties in achieving reliable indications and warning of an impending nuclear attack. The lack of strategic depth in neighboring states like Israel, short warning and missile flight times, and uncertainty of Iranian intentions may place more focus on preemption rather than defense, potentially leading to escalating crises. [end page 36] Types of conflict that the world continues to experience, such as over resources, could reemerge, particularly if protectionism grows and there is a resort to neo-mercantilist practices. Perceptions of renewed energy scarcity will drive countries to take actions to assure their future access to energy supplies. In the worst case, this could result in interstate conflicts if government leaders deem assured access to energy resources, for example, to be essential for maintaining domestic stability and the survival of their regime. Even actions short of war, however, will have important geopolitical implications. Maritime security concerns are providing a rationale for naval buildups and modernization efforts, such as China’s and India’s development of blue water naval capabilities. If the fiscal stimulus focus for these countries indeed turns inward, one of the most obvious funding targets may be military. Buildup of regional naval capabilities could lead to increased tensions, rivalries, and counterbalancing moves, but it also will create opportunities for multinational cooperation in protecting critical sea lanes. With water also becoming scarcer in Asia and the Middle East, cooperation to manage changing water resources is likely to be increasingly difficult both within and between states in a more dog-eat-dog world. DA Court Packing (SOP Impact)She says that she wants to have more trials-however, instead of collapsing the system, this creates new courts and replaces current appointees with trump-selected judgesKlain 11/21 [(Ronald A., Georgetown University & Harvard University (born August 8, 1961) Ronald is an American political operative and lawyer who on October 17, 2014, was named for the newly created position of "Ebola response coordinator" or, less officially, Ebola Czar. He served as Chief of Staff to two U.S. Vice Presidents – Al Gore (1995–99) and Joe Biden (2009–11).) "Opinion", accessed from on 12-4-2017] AS/TS- The aff creates a need for a creation of new courts and judiciaries to deal with court clog, justifying plans such as Calabresi’s proposal that creates NEW judiciary vacancies, which will expand the federal judiciary by 50 percent with Trump appointees under a single year. Also replaces current positions inside regulatory agencies with Trump-selected judges.Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same. The “outer turkey” in the plan is the ongoing Trumpification of the courts. In the final two years of Obama’s presidency, Senate Republicans engaged in tenacious obstruction to leave as many judicial vacancies unfilled as possible. The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, “the number of [judicial] vacancies .?.?. on the table when [Trump] was sworn in was unprecedented,” White House Counsel Donald McGahn recently boasted to the conservative Federalist Society. Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58. Senate Republicans are racing these nominees through confirmation; last week, breaking a 100-year-old tradition, they eliminated the “blue slip” rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, 1 in 8?cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050. But even this plan — to fill approximately 150 judicial vacancies before the 2018 elections — is not enough for conservatives. Enter the next element of the court-packing turducken: a new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled “Undoing President Barack Obama’s Judicial Legacy”), Calabresi proposes to pack the federal courts with a “minimum” of 260 — and possibly as many as 447 — newly created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent. Never mind that Republicans saw no urgency in filling judicial vacancies while Obama was president. Never mind that they ignored pleas from conservative Chief Justice John G. Roberts Jr. to fill positions in courts facing “judicial emergencies.” Now, conservatives want a 30 to 50 percent increase in the number of federal judgeships. And they have a clear idea of who should fill this massive number of new posts: “President Trump and the Republican Senate will need to fill all of these new judgeships in 2018, before the next session of Congress.” Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Donald J. Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump’s nominees to date — more white and more male than any president’s in nearly 30 years — would roll back decades of progress in judicial diversity. But even that isn’t enough for the Turducken Court Packers. They have jammed one more “treat” inside this turkey. Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency, Food and Drug Administration, Federal Communications Commission, and Securities and Exchange Commission, and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life. These new Trump administrative law judges would have vast power over environmental, health and safety, fair competition, communications, labor, financial and consumer regulation for decades. Unlike the existing administrative law judges, selected as nonpartisan members of the civil service, Calabresi’s replacement corps would all be picked in a single year, by a single man: Donald J. Trump. And if this breathtaking transformation of our federal judicial system isn’t jarring enough, Calabresi has one final treat: a proposal that Congress do all of this in the tax-cut bill that Congress is trying to pass before it leaves for the holidays. Progressives need to mount a more cohesive and effective plan to slow down the Trump train of judicial transformation. Otherwise, we’ll have a court-packing turducken for Thanksgiving, and a revolutionary rollback in rights and regulation for Christmas.Republicans support current packing of the courts – squo blockage of democratic judicial appointments and republican leaders pushing for it prove-the aff provides an excuse for Republicans ot pack courtsRosenberg 12-3 [(Paul Rosenberg) "GOP's court-packing spree: It's only the beginning", accessed from on 12-4-2017] AS/TS- answers the argument that trump leaves soon – a. this new law would put these people in courts for life, b. ”It’s the last round, and it’s a fight to the finish.” There wouldn’t be a republic worth saving, and c. it goes on a long spiel of how even if republicans do this type of stuff, democratic party doesn’t have the will to take the courts backFor all of Donald Trump’s hollow bluster about his supposed accomplishments, the one place he’s winning bigly is largely overlooked: packing the federal courts as quickly as possible. As Amanda Marcotte wrote here on Nov. 8, “Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, who chairs the Senate Judiciary Committee, have set up a factory-style assembly line for Trump's judicial nominees and are getting them confirmed at a dizzyingly fast rate.” Thanks to GOP obstruction, Trump entered office well-positioned for the task, as Susannah Jacob explained here in August. “When Obama entered office, there were 54 judicial vacancies. President Trump now has the opportunity to fill over 130,” she wrote, adding: “This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware told Business Insider’s Allan Smith. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, have a significant impact on the shape and trajectory of American law for decades.” Trump has the power, Coons said, to bring about “a wholesale change among the federal judiciary.” But if one leading conservative judicial activist gets his way, that will only be the beginning. Federalist Society founder and board chair Steven Calabresi has written a memo (along with recent graduate Shams Hirji) calling on congressional Republicans to massively expand the lower federal courts, a court-packing scheme of breathtaking proportions for the express purpose of “undoing the judicial legacy of President Barack Obama.” This would actually giving Trump the power to appoint far more judges than any president in recent history — and do it before the 2018 midterms. How many judges, exactly? Calabresi has his eye on three distinct categories. First, he’d like to double or perhaps triple the number of appeals court (i.e., circuit court) judges, who are second only in power to the Supreme Court. Trump could then appoint at least as many appeals court judges as all other presidents combined. Second, he wants to add 185 trial (district court) judgeships, which would bring Trump’s appointments to 40 percent of the total. Third, he’d like to replace 158 nonpartisan, agency-appointed administrative law judges (ALJs) with Trump-appointed judges with lifetime tenure. These come from 20 different executive branch regulatory agencies —the EPA, FCC, SEC, etc. — but almost half come from just two: the Department of Labor (41) and the National Labor Relations Board (34), both of which look out for the rights of workers, whom Trump has a long history of exploiting. Allowing this president to appoint these judges would be a classic case of the fox guarding the henhouse. Calabresi realizes he’s asking for a lot, so he also presents a more modest fallback position. Even that one would allow Trump to exceed Obama’s influence in just one-fourth the time in office. Lest you think he’s going soft, Calabresi has also proposed that Republicans pass his proposal as part of the GOP tax plan — something that still could happen through the conference process. Needless to say, the plan has drawn some sharp criticism, including high-profile pieces by Ronald Klain at the Washington Post and Linda Greenhouse at the New York Times, who carefully picks apart the claims of a judicial emergency (which Republicans, of course, ignored when Obama was in office). Calabresi and Hirji fired back in a National Review article, claiming: “Nothing could be further from the truth” than to call it a court-packing plan. “In fact, it is a court-unpacking plan.” The Democrats started it, you see. They’re the real court-packers. Even some fellow conservatives aren’t buying this plan or its rationale. "As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded," Josh Blackman wrote at the National Review. Libertarian Ilya Somin wrote at the Post's Volokh Conspiracy blog that Calabresi and Hirji "clearly state that one of their goals is 'undoing President Barack Obama’s Judicial Legacy.' Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.” But perhaps the best way to understand the plan is through the eyes of Richard Primus, of the University of Michigan Law School, who wrote a recent post at the Harvard Law Review blog titled “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” At least the proposal is honest, he writes. “The paper’s motivation is entirely out in the open. This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control. It comes as a wolf.” He seeks to elucidate both why and how this is so profoundly dangerous to America’s constitutional system. Primus' terminology is important: "Rulebooks" and "playgrounds" refer to different ways of understanding the Constitution. The "endgame" here, he writes, suggests "a kind of constitutional Armageddon." This proposal means "to end an era,” but not necessarily in the way that Calabresi and Hirji suppose. “The document is remarkable in at least two respects,” Primus begins. “First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution. If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.” The relationship between the formal big-C Constitution and the informal small-c constitution is crucial, Primus notes: “The big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.” There are two ways of understanding the Constitution, Primus says at the end of his analysis. One is as a rulebook: “As long as you stay within the permitted moves, you’re playing the game properly.” In this view, there is no little-c constitution at all. “But the rulebook approach is a dangerously inadequate way to think about constitutional law,” he warns. “A more helpful analogy might go like this: Constitutional government is like playground basketball. If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.” As he sees it, that is the danger the Calabresi-Hirji proposal holds. However “conservative” they might claim to be, these legal activists are actually lighting a fuse that could blow up the whole constitutional system. The reason they might do that brings us to the second remarkable thing Primus notes: Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law. In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power. It’s not an idea in isolation, he notes. It echoes the Republicans' refusal to consider Obama’s nomination of Merrick Garland to the Supreme Court and their decision to confirm only two circuit court justices during his last two years, along with public statements by “Republican Senators from McConnell to Cruz to McCain [who] said publicly that if Hillary Clinton won the election, they wouldn’t consider any of her nominees to the Supreme Court.” In all these cases, Primus writes: The underlying logic, of course, is the same as that of the Calabresi-Hirji proposal. Democratic-appointed judges are not to be considered a normal part of the system, fit to exercise adjudicative authority because they too are honorable servants of the Constitution, even when they understand the Constitution differently from the way we understand it. No. They are to be regarded unfit per se. It’s this assumption, he writes, that “can explain what would otherwise be one of the most puzzling aspects of the proposal — that is, the paper’s seeming unconcern with provoking a judgeship arms race that could make the federal judiciary both unworkable and obviously partisan.” If the proposal passed, he notes, once Democrats again had unified control of the White House and Senate, “they’d enact a bill expanding the lower courts by whatever amount was necessary to swing control right back,” and possibly to expand the size of the Supreme Court as well, to counteract the theft of Garland’s seat. “With the Calabresi-Hirji experience behind them, it would be remarkable for the Democrats in the next round not to go all the way.” Surely “Calabresi and Hirji can foresee this chain of events as easily as I can,” Primus writes, so why make their proposal? There’s one perspective that he says could explain it: We don’t think in terms of the Democrats one day coming back into power. We are building for a world in which they never exercise power. And if the Democrats do return to power, then the Republic won’t be worth saving anyway. In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system. It’s the last round, and it’s a fight to the finish. One flaw in this analysis is the assumption that Democrats will act just like Republicans, but that sort of symmetry simply doesn’t exist — either at the levels of the parties, or at the level of animating ideologies. The willingness to disrupt norms, to violate the small-c constitution, is far more evident on the right than the left. Harvard Law professor Mark Tushnet coined the term “constitutional hardball” to describe it in a 2003 paper, and I wrote four stories about the GOP’s engagement in it between the 2014 midterms and the 2016 election, starting with efforts to subvert the Electoral College by changing the way certain states choose their electors, and ending with an Election Day story on norm erosion dating back to the 1990s. In between, in March 2015, I wrote a deep dive into the concept and how important it’s been to the modern GOP, and in February 2016 I wrote about Republican refusal to let Obama appoint a Supreme Court justice as a prime example of constitutional hardball. Tushnet’s analysis makes it clear that anyone can play the game, but he also gives a reason why Republicans play it much more vigorously. He sees it as an effort to change what he calls “constitutional orders,” and Republicans have been trying to change the constitutional order initiated under Franklin D. Roosevelt for a very long time now. But there are also other perspectives on why there might be such a powerful asymmetry. David Hopkins, co-author of "Asymmetric Politics: Ideological Republicans and Group Interest Democrats" (Salon review here) had several thoughts. “It does seem to be true that the American right is more comfortable playing hardball than the left,” Hopkins told Salon. “One reason, I think, is that there is a greater sense of urgency on the right. Many conservatives are frustrated with their lack of progress over the years in rolling back the modern domestic state, while the leftward drift of American culture further contributes to their disaffection and alienation. If existing norms of governance have helped lead us to this current state of affairs, they reason, then perhaps these norms do not deserve much deference.” There’s also an inhibition working on the other side. “It’s also the case that the center-left in America tends to have a lot of philosophical investment in the practice of procedural ‘fairness,’ which often makes it uncomfortable with aggressive displays of political power even on its own behalf,” Hopkins said. Indeed, ever since the 1950s, there have been comments about how liberals have become de facto conservatives, protectors of the established order. “Finally, I think it’s clear that conservatives prioritize representation in the judicial branch much more than liberals do at this period in history," Hopkins concluded. "Control of the court system, up to and including the Supreme Court, simply matters more these days to conservatives, who view the federal judiciary as broadly hostile to their beliefs and capable of threatening their political values and power via adverse rulings.” Corey Robin, author of "The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump" (Salon review here), took a longer view. “At moments of realignment, for example, American liberalism wasn't thinking in terms of iterative games or Burkeanism,” he said. “It saw itself, and rightly so, as transforming the rules of the game, of permanently altering the terms of discussion. And it saw itself as being the gravediggers of a pathological formation that would never return: the slaveocracy, in the case of Lincoln and the Radical Republicans, and the Gilded Age oligarchy, in the case of the New Deal.” In this larger historical framework, both sides have been equally capable of playing constitutional hardball, as Tushnet argues. “Conversely, what I see in this current proposal from the conservatives is less a feature of permanent conservative thinking — though I can see why you would say that, what with references to ‘the last round’ — than a sign of conservative weakness,” Robin said. “I think conservatives see themselves in a race against time: counterintuitively, and in contrast to [Primus], I think they anticipate that their hold on political power is slipping ... and they see the judiciary as a way of locking in their gains long past the expiration date.” This is certainly in keeping with their wide-ranging voter-suppression efforts, along with the ambitious $30 million gerrymandering scheme described by former Salon editor David Daley in "Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy." “Their model here is the Gilded Age judiciary, which was able to hold the line against growing populist and legislative attacks on economic wealth and power,” Robin said. “So it is a last round, and it is a fight to the finish, but it's a fight they except to lose in every respect save one: their lock on the judiciary. History suggests that is not an irrational way of thinking about their current predicament, insofar as the Lochner-era Supreme Court [from about 1897 to 1937] and lower courts really did strike down progressive legislation for decades.” Yale Law School’s Jack Balkin takes a similar view, at his Balkinization blog, where Primus is also a contributor. He sees little likelihood of Calabresi’s plan being enacted. “I think that we should consider Calabresi's memo for what it is — a dream of a better world,” he writes, adding that it should be examined as Freud would, to make sense of the “predicaments, anxieties, and concerns” that it expresses — especially the stark contrast between the GOP’s dominant formal power and its decaying power as a movement: Indeed, the Republican Party turned to Donald Trump in 2016 precisely because the regime's national coalition is decaying. Trump is both a symptom of decay and an agent of decay. In Stephen Skowronek's terms, Trump is a disjunctive president, brought on board to rejuvenate a dying coalition but who actually furthers its unraveling. This profound weakness is why, even with complete control of the federal government, the party has had more trouble than it should in passing legislation. Of course, nobody knows when the Reagan regime will actually end. ... Even so, as the regime decays, factionalism and radicalism undermine the party's coalition and make even the simplest tasks difficult. But as Robin notes, the Gilded Age oligarchs held onto their power in the courts for decades, long after they had lost electoral credibility. While it may be comforting, in the abstract, to see Trump’s current judicial power grab as a sign of his party’s weakness, that does nothing to soften the blows that will be coming from the bench at the hands of the scores of judges he has already nominated, with many more to come. Progressives damn well ought to be thinking in terms of playing constitutional hardball themselves. At least as far back as Bush v. Gore, conservatives have relied on the courts as an illegitimate source of power. By de facto appointing George W. Bush president (see "Jews for Buchanan" for the multitude of ways in which the election was stolen), the 5-4 Supreme Court decision effectively selected two of its successors, yet another profound violation of constitutional norms. That means we are now up to three Supreme Court justices who can be seen as illegitimate — plus, of course, Clarence Thomas, whose decades-long evasion of accountability for an egregious pattern of sexual harassment surely ought to be brought to a belated end. Plus all the lower court judges Bush appointed during his two terms in office. Primus provides us with an excellent framework for understanding the dangers of allowing constitutional hardball to run amok. We can hope that Calabresi’s plan won’t be enacted, making things incalculably worse. But there are severe dangers of not engaging in constitutional hardball, as well. As Tushnet himself (also at Balkinization) put it: If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective. He went on to say: My current hobby-horse is the small-c norm setting the Court's size at nine. I think -- really, I do think this -- that Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do). The rationale is not (on the surface) to "seize control of the judiciary." Rather, it is to undo the Republicans' theft of the Garland seat. ... The Democratic proposal for changing the small-c constitutional norm about the Court's size would be an offer of a new norm -- "You can't steal a Supreme Court seat and expect to get away with it." Seems like a good new norm to me. The situation is obvious: We’re already living in a badly damaged “normal” state, and a perniciously diminished, self-limiting form of liberalism is largely responsible for that. The Calabresi plan should be a wakeup call for progressive activists, not just to fight back against the ongoing Trump takeover of the courts but to begin crafting a serious, far-reaching constitutional hardball strategy of our own, Tushnet’s Supreme Court proposal is a good starting point — but it’s only a start. We need to see ourselves, to borrow Robin's phrase, as the future gravediggers of this pathological formation, which we fervently hope will never return.Anti-Trump court systems are key to check multiple instances of executive power Leonard 17 (Meghan E. Leonard, Associate Professor of political science at Illinois State University, “Despite Trump’s attempts to delegitimize them, the Courts are checking executive power exactly as they should”, LSE, ) TSThe government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy…It is beyond question, that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. (State of Washington & State of Minnesota v. Trump 2017). The quotes above highlight the narrative in President Trump’s seeming ‘war’ on the power of the federal courts. The President, disheartened by the district court’s temporary restraining order on his executive order, attacked both federal District Court Judge James L. Robart (“so-called judge”) and the power of the federal courts to make this decision. Of course, the federal courts do have the power to halt potentially unconstitutional executive orders and check the other two branches of government. The power of the Supreme Court and federal courts more generally to interpret the Constitution, or ‘say what the law is’ was given to the Court by its own Chief Justice John Marshall in 1803, in Marbury v. Madison. Not explicated in the Constitution itself, judicial review is the heart of judicial power in the United States. While Marbury gives the Court the legal authority to say what the law is, the legitimacy of the courts gives them the political capacity to have their decisions complied with. The legitimacy of the Supreme Court is best understood as a reservoir of goodwill toward the institution, whereby individuals accept the decisions of the Court because they trust the institution. While a debate exists on how ideology and agreement with individual Court decisions affects support for the Court, political scientists have generally concluded the support for the Supreme Court is high and enduring. And given that the courts have neither the ‘power of the purse nor the sword’ it is this diffuse support that leads the other branches of government to comply with and implement the decisions of the Court. Not doing so could lead to backlash from the public, which the elected branches, which are concerned centrally about reelection seek to avoid. The legitimacy of the Court does not mean the president or Congress won’t express their disagreement with judicial decisions. In 2010, then-President Obama infamously challenged the Supreme Court’s decision in Citizens United v. FEC, by suggesting in his state of the union address“[w]ith all due deference to separation of powers, last week the Supreme Court reversed a century of law… that would open up the floodgates to special interests.” This was neither the first nor the last time a sitting president has used their power to ‘go public’ to challenge the decision of the Supreme Court. Yet, while presidents often disagree with Supreme Court decisions on issues most important to their administration, they most often comply with the decision of the Court, even once calling the National Guard to do so. Not always the case, for example, Lincoln ignored the post-Dred Scott Court’s decision in ex parte Merryman, this would be the exception, rather than the rule. In another way to respond to the Court, the president may turn to allies in Congress and attempt to check the power of the court through court-curbing legislation. Most famously used by President Roosevelt in his attempt to add six justices and pack the Court that struck down many pieces of his New Deal legislation, this court–curbing legislation is designed to propose limitations to the power of the federal courts as well as demonstrate to the public response to unpopular decisions. Research demonstrates that the Court is responsive to new court-curbing legislation, and will limit the use of judicial review in response. So, while the Trump White House is arguing the federal courts are too powerful in their ability to check the executive and legislative branches, there are a least some limitations on this power. Given the difference in the comments by President Trump compared to past presidential statements that highlight the importance of trusting the separation of powers, many commenters have raised concern that we might be facing a crisis of the Constitution. At this point, I would conclude rather than a crisis, our system is working exactly the way it is supposed to. The judicial branch is checking the power of the executive branch, in an effort to stop any potential violations of the Constitution. As for the future relationship between Trump and the Courts? New polling hints at what the American people think : 53 percent of Americans trust the courts to make the right decisions, while only 38 percent would trust President Trump more. Only a quarter of voters would want President Trump to have the power to overturn the decisions of the courts, though of Trump voters 51 percent would give the president this power. Almost two-thirds of voters do not believe the president should have the power to overturn judicial decisions. Trump’s most ardent supporters notwithstanding, the American people seem to be happy with the so-called judges fulfilling their Constitutional duties.Unchecked executive causes multiple scenarios for extinction---resistance is key-also serves as a turn to the affPrashad 6/21 (Vijay, professor of international studies at Trinity College in Hartford, Connecticut. He is the author of 18 books, “Trump, With a Vicious Temperament, Seems Eager to Hasten the Doomsday Clock,” )Watching U.S. President Donald Trump toss binders of environmental regulations onto the ground underscored the grave dangers of this administration: the final administration. The disregard for the negative social and natural implications of human-induced climate change and warfare is striking. It is not as if Trump has broken fundamentally with a past where the world leadership was somehow truly worried about climate catastrophe and extinction by weapons of mass destruction. There are more continuities here than sharp breaks. Trump has nonetheless moved the needle faster, with a much more vicious temperament, unwilling to bend to liberal hypocrisies, eager to hasten the minute hand of the Doomsday Clock. It would not be too much to expect the Trump administration to propose to use ‘small’ nuclear weapons to blast coal seams and uncover more carbon to power the world to Armageddon. It is not as if the Paris or Kyoto agreements would have been sufficient to stem the tide of adverse climate change. Even those were too mild, too friendly to corporations that make their money destroying the planet. But at least these agreements forced governments to accept that human activity—namely industrial capitalism—had hastened the destruction of nature. Now, Trump’s Energy Secretary Rick Perry says openly that carbon dioxide emissions are not the main drivers of climate change. Perry pointed the finger of blame at ‘ocean waters,’ allowing industrial capitalism an exit from responsibility. Why bother with alternatives to carbon when there is no ‘evidence’ that such energy sources bring the planet closer to annihilation? Meanwhile, at the two ends of Eurasia, Trump has moved closer to war at a planetary scale. Trump has authorized the U.S. military to go after Syrian and Iranian military assets in western Syria that are currently engaged against ISIS. Russia has now warned the United States that any U.S. aircraft in that airspace will be seen as ‘air targets.’ Iran has fired ballistic missiles from Iran into eastern Syria. This sends a message to Israel and Saudi Arabia that they are within range of Iranian missiles. What might be seen as deterrence at any other time could very well be a provocation in these times of the final administration. Trump’s messy entry into the Gulf crisis, backing Saudi Arabia and the United Arab Emirates against Qatar and Turkey, suggests no finesse in contemporary U.S. diplomacy. More firepower and more belligerent talk is the currency of our times. That this might provoke a much greater altercation in West Asia is of little concern to the final administration. That the war might spread from there into other locations, such as Eastern Europe and North Africa, seems to be of no concern. Even more chilling was a tweet Trump sent this week that pertains to the other flank of Eurasia. ‘While I greatly appreciate the efforts of President Xi & China to help with North Korea,’ wrote Trump, ‘it has not worked out. At least I know China tried!’ So now what? Is the United States preparing for war against North Korea? South Korea and the U.S. have increased their military activity near North Korea—all provocations against a government terrified of being attacked. When a North Korean drone drifted into South Korean airspace this week, even the less military-minded new government in the south led by Moon Jae-in suggested that war was on the horizon. Will a ‘small’ nuclear exchange be contemplated for the Korean Peninsula and for Eastern Asia in general? We are between climate catastrophe and wars of extinction, with the final administration provoking both at hyper-speed. Trump plays the role of Judas in Gaudi’s sculpture. Jesus speaks to him about betrayal. But he is looking over Judas’ shoulder. He is asking the rest of us if we are participants in the betrayal. What are you doing today to prevent Trump's agenda from driving our planet closer to extinction? [2NR]Defense is wrong – no checksBruce Blair 16, Nuclear security expert, Research scholar at the Program on Science and Global Security at Princeton University', 6/11/2016, What Exactly Would It Mean to Have Trump’s Finger on the Nuclear Button?, Politico, a degree we haven’t seen, perhaps, since the candidacy of Senator Barry Goldwater in 1964, the question of Donald Trump’s temperament and judgment on matters of war and peace is stirring attention—and trepidation, particularly when the subject of nuclear weapons comes up. Some people believe that Trump himself is the maniac, the madman with nukes that appears in Trump’s own worst nightmare. And it’s not just Trump’s general-election opponent, Hillary Clinton, who’s hinting at this; his former GOP rival, Marco Rubio, repeated his earlier concerns about Trump only this week, saying America can't give "the nuclear codes of the United States to an erratic individual." Others would side with Trump’s view that the weapons themselves—which pack a destructive force amounting to “Hiroshima times a thousand,” as he put it—are the evil. But these points are not mutually exclusive.? What would it mean to have Trump’s fingers on the nuclear button? We don't really know, but we do know this: In the atomic age, when decisions must be made very quickly, the presidency has evolved into something akin to a nuclear monarchy. With a single phone call, the commander in chief has virtually unlimited power to rain down nuclear weapons on any adversarial regime and country at any time. You might imagine this awesome executive power would be hamstrung with checks and balances, but by law, custom and congressional deference there may be no responsibility where the president has more absolute control. There is no advice and consent by the Senate. There is no second-guessing by the Supreme Court. Even ordering the use of torture—which Trump infamously once said he would do, insisting the military “won’t refuse. They’re not gonna refuse me”—imposes more legal constraints on a president than ordering a nuclear attack.? If he were president, Donald Trump—who likes to say he doesn't spend a lot of time conferring with others ("My primary consultant is myself," he declared in March)—would be free to launch a civilization-ending nuclear war on his own any time he chose.? The “nuclear button” is a metaphor for a complex apparatus that has the president’s brain at its apex. The image of a commander in chief simply pressing a button captures none of the machinery, people and procedures designed to inform the president and translate his or her decisions into coherent action. Although it remains shrouded in secrecy, we actually know a great deal about it, beginning with the president’s first task of opening the “nuclear suitcase” in an emergency to review his nuclear attack options. If we shine our light at the tactical and timing considerations of how a first- or second-strike attack would unfold, and at the inner workings of the nuclear decision process from the standpoint of the White House, we gain a much better idea of a presidential candidate’s fitness for this responsibility. And here it is essential to consider a candidate’s temperament and character—especially in situations of extreme stress. Decisiveness is important, but so is prudence.? Let us say the president is awakened in the middle of the night (the proverbial 3 a.m. phone call) by his or her top nuclear adviser and told of an incoming nuclear strike. Since the flight time of missiles fired from launch stations in Russia or China to the White House is 30 minutes, and 12 minutes or less for missiles fired from submarines lurking in the Western Atlantic Ocean (Russian subs historically favor a patrol area to the west of Bermuda), the steadiness and brainpower of the commander in chief in such circumstances are serious questions indeed. The voting public must ask whether a given candidate would remain calm—or panic, become discombobulated and driven to order an immediate nuclear response on the basis of false information.? This call has never happened, but if it ever does, the situation would be as stressful and dangerous as things ever get inside the Oval Office. The closest we came to such a call occurred in 1979, when the consoles at our early warning hub in Colorado lit up with indications of a large-scale Soviet missile attack. President Jimmy Carter’s national security adviser, Zbigniew Brzezinski, received back-to-back calls in the middle of the night informing him of the imminent nuclear destruction of the United States. The second call reported an all-out attack. Brzezinski was seconds away from waking Carter to pass on the dreadful news and convince him of the need to order retaliation without delay (within a six-minute deadline). Brzezinski was sure the end was near.? Just before he picked up the phone to call Carter, Brzezinski received a third call, this time canceling the alarm. It was a mistake caused by human and technical error. A training tape simulating an all-out Soviet attack had inadvertently slipped into the actual real-time attack early warning network. The impending nuclear holocaust was a mirage that confused the duty crew. (They were fired for taking eight minutes instead of the required three minutes to declare their degree of confidence that an attack against North America was underway.)? How would a President Trump behave under such duress, informed of the attack and the imminent destruction of the nation’s capital and himself? He would have only a few minutes to consider the reliability of the attack report and decide whether and how to retaliate. If the attack is real, and he hesitates, a president will likely be killed and the chain of command decapitated, perhaps permanently. During the short countdown to impact, he also will be advised by the head of the Strategic Command in Omaha (or the officer on duty that night if the four-star head of Strategic Command cannot get onto the conference call on time) that the incoming attack will destroy the bulk of the U.S. land-based strategic missile force unless the president makes a timely decision ordering their egress from their underground silos before incoming warheads arrive. Furthermore, he will hear that the loss of this land-based force will mean that the goals of the U.S. war plan will not be realizable. (These goals require the ability to destroy the vast bulk of the Russia target base consisting of just under 1,000 aim points and of the China target base of just under 500 aim points.)? Yet if the president yields to this pressure and orders immediate retaliation, then he risks launching on false warning.? Voters should want to consider whether Trump or any other candidate possesses the steely nerves and competence to deliberate intelligently and calmly at the moment of truth. How does the candidate process ambiguity? Does he or she interpret ambiguous or contradictory data in black-and-white terms or in ways that reinforce his or her bias? Does the candidate rush to conclusions? Does he or she appear to place too much stock and faith in the performance of technical systems, such as the sensor systems in early warning networks, and underestimate the fallibility of people and machines?? It is of course not unreasonable to believe that the nuclear responsibilities of any president are above the pay grade of every living human being—that no one is really up to the task. The only real protection against nuclear disaster is total elimination of nuclear weapons.? And yet until that far-off day we expect our president at least not to act rashly under pressure, and to ensure with near-absolute certainty that the United States never launches a nuclear strike on the basis of spurious indications of an incoming attack. It is possibly asking too much, however, because even the most level-headed commander in chief simply cannot process all that he or she needs to absorb under the short deadlines imposed by warheads flying inbound at the speed of 4 miles per second. The risks of mistaken launch based on false warning, human error in control systems, and panic in the face of imminent death are very real and probably inherent in the hair-trigger nuclear postures of the United States and Russia.? Most presidents during the Cold War lived in dread of this moment knowing all too well the attendant risks. Ronald Reagan expressed incredulity that he would be allowed only six minutes to decide whether to trigger Armageddon based on blips on a radar screen. There is no guarantee that the next president will exercise due caution when the balloon appears to have gone up.? Although no president during the atomic age appears to have ever lost his grip on reality to such an extent that an insane nuclear act might have resulted, top advisers to President Richard Nixon tried to constrain his launch authority during the Watergate scandal that ultimately forced his resignation. His secretary of Defense, James Schlesinger, quietly instructed the Pentagon war room to double check with him if Nixon contacted it to order up a nuclear strike. Nixon’s mental stability, and his heavy drinking, caused concern within his inner circle that he might behave erratically out of despair and depression. Alcoholism in a future nuclear monarch is of course quite beyond the pale.? Trump’s teetotaling lays that concern to rest, but his quick temper, defensiveness bordering on paranoia and disdain for anyone who criticizes him do not inspire deep confidence in his prudence. Can we trust a President Trump to remain grounded and sensible under extraordinary pressure in a crisis that appears to be crossing the nuclear Rubicon?? Yet a harried decision to launch on warning in the belief that the United States is under nuclear attack is not even the most plausible scenario a President Trump might face today. That is more likely to be a crisis that escalates by design or inadvertence to the nuclear brink and then spins out of control. To be sure, the U.S. and Russian launch on warning postures have certainly put them at the mercy of false alarms. (Russia adopted the practice during the Cold War and maintains it today despite having a decrepit early warning network that has shortened President Vladimir Putin’s decision time to two to four minutes.) Computer glitches and human error have generated serious false alarms in the past, and every day events happen that trigger the sensors and require a closer look—peaceful space launches (satellites and astronauts), missile test launches, conventional combat missile launches, fighter jets taking off on after-burners, and even wildfires. But close calls have been fairly rare—about three serious false alarms in the United States and three in the Soviet Union/Russia that could have led to a very bad call by their leaders have occurred.? By comparison, there have been dozens of intense confrontations between the nuclear adversaries in the past, almost all of which tested the mettle, composure and restraint of their leaders. The next president will become embroiled in ongoing low-boil nuclear standoffs with Russia, China and North Korea that could morph quickly into a full-blown nuclear crisis. In such situations, actions thought to be defensive and reassuring to allies are often viewed as offensive by the opponent, whose reaction starts another cycle of action-reaction.? The United States and Russia today are entwining themselves in this trap over Ukraine, U.S. missile defenses in Europe and other disputes. Military buildups with nuclear dimensions are underway, and nuclear threats have been made explicitly by Russian officials including Putin and implicitly by each side’s nuclear force operations—for instance, flying strategic bombers close to each side’s territory. Both Putin and President Barack Obama are reminding each other, to a degree we haven’t seen since the Cold War, that they have nuclear buttons at hand.? ***? Trump would actually have not one but several fingers on the nuclear button. One finger would be an active digit ready to point up or down for an attack to his nuclear commanders. Other fingers would shape the size and composition of U.S. nuclear forces and the strategy for their use. Additional fingers would determine nuclear actions taken in his absence or demise by presidential successors from his vice president, the Cabinet that he appoints or by generals to whom he may pre-delegate his launch authority.? As with his predecessors, Trump’s power over the life and death of entire nations would be practically unbounded. Today, the nuclear deluge he could command would consist of thousands of weapons, each 10 or 20 times more deadly than the bomb dropped on Hiroshima. Nearly 2,000 U.S. strategic nuclear weapons aimed primarily at Russia and China (at a ratio of roughly 2 to 1), with additional dozens aimed at each of several other nations—North Korea, Iran and Syria—would be at a President Trump’s disposal from his first minutes in office. The city of Moscow alone lies in the bore sights of more than 100 U.S. nuclear warheads.? There are no restraints that can prevent a willful president from unleashing this hell.? If he gave the command, his executing commanders would have no legal or procedural grounds to defy it no matter how inappropriate it might seem. As long as the president can establish his or her true identity by his or her personal presence in the Pentagon’s nuclear war room or its alternates (places like Site R at Fort Richie near Camp David), or by phone or other means of communications linking him or her to these war rooms using a special identification card (colloquially known as “the biscuit” containing “the nuclear codes”) in his or her possession (or, alternatively, kept inside the “nuclear briefcase” carried by his or her military aide who shadows the president everywhere he or she works, travels and plays), a presidential nuclear decision is lawful (putting international humanitarian law aside). It must be obeyed as long as it is constitutional—i.e., the president as commander in chief believes he or she is acting to protect and defend the nation against an actual or imminent attack.? But within these broad constraints there is no wiggle room for evasion or defiance of the president’s orders. That’s true even if the national security adviser, the secretary of defense (who along with the president makes up the “national command authority”) and other top appointees and advisers disagree with the president’s decision. It does not matter whether the United States has already come under attack by nuclear or non-nuclear weapons. It does not even matter if the commander in chief simply orders the use of nuclear weapons on an ordinary day for reasons unknown to all but him or her. Under the president’s open-ended mandate to decide when the national interest is threatened, ordering up a nuclear strike is his or her prerogative, and obeying the order is incumbent upon the military servants of civilian authority. DA Impeachment/DemocracyThe Russia probe will lead to an criminal indictment or impeachment of Trump because of plea bargains from Trump admin officials that cause people to flip and reveal unrelated crimes – the plan wrecks this by getting rid of plea bargains which are our best shot at getting 45 out of office Scahill 11-3 — (Jeremy Scahill, Scahill is one of the three founding editors of The Intercept. He is an investigative reporter, war correspondent, and author of the international bestselling books Dirty Wars: The World Is a Battlefield and Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He has reported from Afghanistan, Iraq, Somalia, Yemen, Nigeria, the former Yugoslavia, and elsewhere across the globe. Scahill has served as the national security correspondent for The Nation and Democracy Now!. Scahill’s work has sparked several congressional investigations and won some of journalism’s highest honors. He was twice awarded the prestigious George Polk Award, in 1998 for foreign reporting and in 2008 for Blackwater. Scahill is a producer and writer of the award-winning film Dirty Wars, which premiered at the 2013 Sundance Film Festival and was nominated for an Academy Award, “Moscow Mueller: What the Indictments and Plea Agreements Mean for Donald Trump“, Intercept, 11-3-2017, Available Online at , accessed 12-1-2017, AM)THIS WEEK, SPECIAL Prosecutor Robert Mueller revealed the opening blows in his investigation into potential collusion between members of Donald Trump’s presidential campaign and operatives working for or on behalf of Russia. On Monday, things kicked off with Trump’s former campaign manager Paul Manafort turning himself in to the Justice Department after being indicted on 12 counts stemming from his financial dealings, including with pro-Russian Ukrainian entities. While the indictments allege a wide range of criminal activity, they do not cite anything related to the Trump campaign and Russia. In fact, the indictment overwhelmingly deals with shady deals Manafort allegedly made throughout an extended period of years before he joined the Trump campaign. But that, of course, does not mean Manafort is not implicated in potential attempts by Trump officials to work with Russian sources to obtain damaging information on Hillary Clinton and the Democratic National Committee, or other unknown offers from Russia to help Trump. The investigation has not provided the public of evidence of that, but it may well exist. Perhaps more significant than Manafort’s actual charges is the fact that Mueller revealed to the public that a Trump foreign policy adviser named George Papadopoulos had pled guilty to lying to the FBI in an interview about his contacts with a professor who claimed to have links to Russian sources closely connected to the Kremlin or Vladimir Putin. Papadopoulos’s plea agreement portrays him as a first-class imbecile on multiple fronts. First, someone clearly told him that he was going to be hooking up with Russians closely connected to Putin — including someone he believed was a relative of Putin. Turns out, that part was false. It is clear from the indictment and his guilty plea about lying that Papadopoulos thought he could get dirt on Clinton in the form of stolen emails in the possession of his contact’s Russian sources. Maybe that professor had good connections to Moscow, or maybe he didn’t. We don’t know. It is possible that Papadopoulos was also trying to make himself seem more connected and valuable to Trump’s senior people than he actually was and inflated his connections and his ability to deliver. Papadopoulos has a track record of dishonesty regarding his resume and past work. Papadopoulos hardly seems to be the criminal mastermind of some grand plot to get the Russians to hack the elections. But it is still significant. Papadopolous’s guilty plea and the fact that he is cooperating in the investigation could mean serious trouble for actual senior members of the Trump campaign, including but not limited to Attorney General Jeff Sessions, Jared Kushner, Donald Trump Jr., Sam Clovis, Paul Manafort, and possibly Trump himself. The key question in all of this is what Trump and his senior officials believed Russia had to offer, what they tried to do to get it, what they did with it if they did get it, and on and on. But both Papadopoulos and Manafort could also provide testimony that alleges that Trump and others lied about a whole range of issues, including what they knew and when. For someone like Sessions who testified under oath about his knowledge of or involvement in dealings with Russia, this could be extremely bad news. Papadopolous and Manafort could testify that Sessions was lying to Congress or made intentionally misleading statements. So that could be a big deal. Trump may have lied about a whole series of things, but Trump didn’t say any of it under oath, so Trump can fall back on his well-worn “fake news” defense with no legal consequence. What is clear at this point is that Mueller is just getting started. Papadopolous’s plea agreement and the Manafort indictment should cause serious concern for Trump just based on what they know and the fact that they are under tremendous high stakes, legal pressure from an aggressive prosecutor who has threatened to make Manafort’s life a living hell. But neither Papandopolous nor Manafort have pled guilty to or been charged with conspiracy or espionage related to Russian election interference. All of this matters because the only relevant legal point on any of this was: Did Trump or his campaign break the law? The new term du jour “collusion” has no real, widely accepted legal definition. Details about such collusion could come out that make it very clear there was a plot here, but it might just be condemned in public opinion and not the courts. So that is what a lot of this boils down to: Was there criminal conduct or simply what many people seem to believe should be criminal conduct but isn’t under the law? There will almost certainly be more indictments coming down the pike. And other cooperating witnesses. We know there are some sealed indictments filed in sequential order with the Manafort and Papadopolous filings. It will be interesting to see what they say and who the defendants are. Remember, we have Gen. Mike Flynn, Trump’s short-lived national security adviser, floating around. He definitely knows where some bodies are buried. Is he cooperating? Wearing a wire? Or is he going to be charged with a crime? Same questions apply to his son, Mike Flynn Jr. Lying to the FBI and being a corrupt businessman are not what this investigation is really about. It is a probe into possible links between the Trump camp and Russia in an effort to influence the election. The government may never prove there was criminal activity by Trump’s people related to this election, but rather that they engaged in activity many Americans find offensive, immoral, unpatriotic. But to prove it is criminal is a totally different beast. Many investigations into a major issue often produce indictments that have little to no relation to the bigger probe. They were crimes uncovered during the course of the probe or, in the case of lying, as a result of the investigation. Catching people in lies can lead to bigger things, and that is why Papadopolous ultimately matters. What passes as fact in the court of public opinion doesn’t necessarily hold up in the court of law. And none of us can simply will something to be true. That’s what the courts are supposed to do, including in cases involving cartoonish villains like Donald Trump. Now maybe this will lead to indictments showing a criminal conspiracy between Trump’s campaign and Russia. Or maybe it will simply uncover non-criminal activities that are offensive to a lot of Americans. Time and evidence will tell.Shoring up the U.S. democratic model’s key to all aspects of U.S. leadership and global liberal norms James Traub 17, Fellow at the Center on International Cooperation, 1/3/17, “Donald Trump: Making the World Safe for Dictators,” keep returning to these formulations because Wilson was right about the relationship between democracy and the modern world order. There’s another reason as well: At least since the end of World War II, the idea that the United States stands for something more than its own self-interest has underwritten its claims to world leadership. That idea is the basis of America’s “soft power.” The Marshall Plan, to take the most famous example, did almost as much for the United States, by enhancing its global prestige, as it did for its European beneficiaries.So what happens if we abandon this tradition? The silver lining of Trump’s chilly agnosticism toward democratic values might be this: No more hypocrisy. The Obama administration has shaken a finger at autocratic allies in the Middle East without inflicting or even threatening serious consequences, thus offending foreign governments without mitigating their brutalities. On the other side, Obama has halfheartedly supported Syrian rebels without making any effort to tip the scales of the horrendous civil war there. Trump will deliver no lectures, and may openly join Syrian President Bashar al-Assad in his alleged campaign against Islamic extremism. Honesty bought at such a price, however, is a commodity not worth having.President Trump might well feel more comfortable with the increasingly illiberal states of Eastern Europe — including Russia, the fountainhead of anti-liberal doctrine — than with the social democratic West. One can all too easily imagine him launching a fusillade of tweets at Atlantic allies who stubbornly persist in using the language of universal rights, including German Chancellor Angela Merkel, who not-so-subtly warned the incoming president to abide by Western values. How long will it be, in fact, before “Western values” can no longer be used as a taken-for-granted synonym for secularism, individual freedom, or tolerance for diverse opinion?But there’s a more subtle consequence to forswearing America’s traditional moral claims about its global role. The United States is able to serve as honest broker in disputes all over the world because it is not seen, as for example China is, as a prop to existing regimes, however odious. Thus the Obama administration’s patient diplomacy in Myanmar has given the United States influence with both new democratic leaders and the former military regime. What happens if any of Trump’s favorite strongmen are overthrown or, God help them, voted out of office? What influence will Washington have with the successor regime? How, more broadly, will America compete with China’s growing soft power, or even Russia’s?Putin’s greatest windfall in recent years has not been his stealth conquest of Crimea or winning the war in Syria for Assad, but rather the growing eclipse of liberal values across the West. Trump’s election is a crucial part of that bounty. (It seems increasingly clear that Putin deserves some credit for that outcome thanks to Russia’s hacking of damaging emails from Democratic Party leaders.) The prestige of liberal democracy has not sunk so low since the 1930s. Anti-liberal parties lead the polls in much of Western Europe and now govern in Hungary, Poland, and Slovakia. It is a matter of greater urgency today than it was after 9/11, that the United States act as a beacon of, and spokesman for, democracy. Yet under a President Trump it will cede that role. Who will inherit it? Germany, perhaps. But Merkel, gravely weakened by her open-door policy toward refugees, may well lose her bid to return as chancellor in September. In any case, Germany is a lesser power that in any case has very strong historical reasons for speaking softly and modestly.If the United States does not lead in the promotion of democratic and liberal principles, as it has for the last century, no one else will. And that vacuum will be filled by someone else whose values are neither democratic nor liberal. Donald Trump’s promise to make American great again will have descended to tragic farce.ExtinctionChas W. Freeman 17, served in the United States Foreign Service, the State and Defense Departments in many different capacities over the course of thirty years, past president of the Middle East Policy Council, co-chair of the U.S. China Policy Foundation and a Lifetime Director of the Atlantic Council, 3/9/17, “Reimagining Great Power Relations,” the globe, the lessened security that results from the erosion of rule-bound order has been compounded by hysteria over attacks by terrorists. The spread of Islamophobia has paved the way for the revival of other forms of xenophobia, like racism and anti-Semitism. Illiberalism looks like the wave of the future. We are witnessing the consolidation of national security-obsessed garrison states.Some sub-global powers—like Iran, Turkey, Russia, and China—are demanding deference to their power by the countries in their "near abroad" or "near seas." They thus negate the near-universal sphere of influence that America asserted during the so-called "unipolar moment" of worldwide U.S. hegemony that followed the Cold War. They are imposing their own military precautionary zones ("cordons sanitaires") to manage and reduce external threats from other powers. This pushback is resented by the United States, which— with no sense of irony, given its own insistence on exclusive control of the Americas—charges them with attempts to project illegitimate "spheres of influence" beyond their borders.By disavowing longstanding U.S. commitments, the Trump administration has inadvertently confirmed foreign doubts about American reliability. Efforts to allay these concerns have garnered little credence. The ebb of U.S. influence is forcing countries previously dependent on Washington's protection to make unwelcome choices between diversifying their international relationships, decoupling their foreign policies from America's, forming their own ententes and coalitions to buttress deterrence, or accommodating more powerful neighbors. Whatever mix of actions they choose, they also boost spending to build more impressive armed forces.Almost all countries still under U.S. protection continue to affirm their alliance with the United States even as they ramp up a capacity to go it alone. Arms races are becoming the norm in most regions of the world. Global military expenditures grew by fifty percent from 2001 to 2015.Not long ago, geopolitics was largely explicable in bipolar terms of US-Soviet rivalry. After a unipolar moment, the political and economic orders have gone fractal—understandable only in terms of evolving complexities at the regional or sub-regional level. Intra-regional rivalries now fuel huge purchases by middle-ranking powers of state-of-the-art weaponry produced by the great powers. No one should confuse increased weapons purchases with a deepening of alliance commitments.So, for example, Saudi Arabia's arms purchases have tripled in the past five years. Trends in other Gulf Cooperation Council (GCC) member countries are similar. At the same time, the Gulf Arabs are reaching out to China, the EU, India, Indonesia, Japan, Russia, and Turkey and convening pan-Muslim coalitions against Islamist terrorism and Iran. They have undertaken unprecedentedly unilateral and aggressive military interventions in places like Libya, Syria, and Yemen. As they have done so, the countries of the Fertile Crescent—Iraq, Lebanon, and Syria—have drawn ever closer to Iran. Iraqi Kurdistan has become a de facto Turkish dependency.Before a Western-supported coup ousted Ukraine's elected president2, that country wobbled between East and West but was on its way into the Russian embrace. The Philippines has distanced it from the United States and bundled with China. So has Thailand. Myanmar and Vietnam, by contrast, are seeking partners to balance China. The Baltic states of Estonia, Latvia, and Lithuania have doubled down on their reliance on NATO, which they joined in 2004 to secure their independence from Russia. Cuba and Venezuela look to Russia and China for support against ongoing American policies of regime change.Meanwhile, international governance of trade and investment continues to devolve to the regional level and configure itself to supply chains. Examples include new trade pacts, like the RCEP,3 the Pacific Alliance,4 and the Eurasian Economic Union;5 preexisting blocs like the GCC,6 Mercosur,7 and the Shanghai Cooperation Organization;8 as well as well-established confederations like the 27-member post-Brexit EU and the Economic Community of West African States (ECOWAS)9 . Each of these groupings has one or two heavyweight members at its core, constituting a natural leadership.Where such regional arrangements have been implemented, rules are made and enforced without much, if any, reference to external powers. Thus, the EU has had no role to speak of in shaping relations between Canada, Mexico, and the United States under the North American Free Trade Agreement (NAFTA). Conversely, the United States has had very little say in decisions made in Brussels on rules for trade and investment in the EU and its associated economies. Given the Trump administration's aversion to multilateralism, the United States will have no say at all in the standard-setting that will take place in either the RCEP or the 65-country pan-Eurasian economic community that is beginning to emerge from China's "belt and road" initiative. Regionalism limits the reach of great powers. Bilateralism limits it even more.The decentralization of authority over global economic, political, and defense issues represents a net loss of influence by the U.S. and other great powers over the evolution of the international state system. But it presents both a challenge and an opportunity for middle-ranking powers. On the one hand, as U.S. and EU influence atrophies, they have an expanding role in international rule-making. On the other, they are now subject to pressure from neighboring great powers that is unmoderated by any global rules.Take Mexico as an example. This is a proud nation of nearly 130 million people, the world's 13th largest country geographically and its 11th most populous. It has the world's 11th largest economy. By every measure, Mexico is a middle-ranking power. As such, even if it were not a member of NAFTA and the Pacific Alliance, it would have a significant voice in the G-20, the WTO, the United Nations, Latin America, the Caribbean, and the Asia-Pacific.Interdependence has mitigated but not erased historic Mexican resentment of domineering American behavior. Mexicans have not forgotten that the United States invaded their country and annexed 55 percent of its territory in 1846–1848. But, since the entry into force of NAFTA in January 1994, Mexico's economy has become almost fully integrated with the American economy through complex supply chains. Eighty percent of Mexican exports now go to the U.S. Mexico has become the United States' second largest export market and its third largest trading partner (after China and Canada). It has also quietly transformed itself into a reliably pro-American bulwark against influences from extra-hemispheric powers like Russia and China. It has proven the efficacy of economic opening and reform and has become an influential advocate of liberal economics as opposed to the perennial statism and mercantilism of most other Latin American nations.Now Mexico is faced with demands from the Trump administration to cooperate in dismantling its interdependence with the United States. At the same time, the U.S. president is denigrating Mexicans, proposing to wall them out, and threatening to deport masses of undocumented migrants and alleged criminals to Mexico, whether they are Mexican or not and whether Mexico has any legal reason to accept them or not. Not surprisingly, Mexican opinion is now hostile to the United States. Mexico's government has little leeway for compromise. Surrender to American demands is not an option. But Mexico currently has little leverage over Washington.So Mexico faces highly unwelcome choices. It can bargain as best it can on its own, risking its prosperity and stability on what is almost certainly a bad bet. It can seek leverage over the United States by suspending cooperation against transit by illegal migrants and the supply of narcotics to American addicts. It can make common cause against the United States by forming a global united front with other economies targeted by the Trump administration for their bilateral trade surpluses, like China, Germany, Japan, and south Korea. It can adopt Cuban-style defiance of Washington's efforts to bring it to heel, allying itself with extra-hemispheric powers like China and/or Russia or Iran. Or it could choose some mixture of all of these options. It is too early to predict what course Mexican-American relations will take in the age of Trump. They will be affected by many factors, including the state of relations between the United States and other great powers – especially China and Russia.Mexico is far from the only middle-ranking power now of necessity maneuvering between the world's great powers. Ukraine has yet to find its place between Russia, the EU, and the United States. Turkey has distanced itself from the EU and America and formed an entente (limited partnership for limited purposes) with Russia. Iran has reached out to India as well as Russia in order to counter the United States and the Gulf Arabs. Saudi Arabia—once exclusively attached to the United States—is actively courting China, India, Indonesia, Japan, and Russia. Pakistan is seeking to avoid having to choose between Saudi Arabia and Iran. At the same time, it has accepted the task of coordinating the activities of a pan-Islamic military alliance that implicitly counters both Iran and an ever more assertively Islamophobic India. To reduce dependence on the United States and the GCC, Egypt is courting cooperation with Iran, Russia, and Turkey. Old global alignments are everywhere giving way to more complex patterns.Despite an unprecedented degree of interdependence between them, relations between the great powers are also in motion. Brazil, China, the EU, India, Japan, Russia, and the United States are each one another's largest or second largest trading partners and sources of foreign direct investment. They are linked to each other in global supply chains, which tend to converge in and between large economies. All are members of the Bretton Woods legacy institutions – the International Monetary Fund (IMF), World Bank, and WTO. These institutions earlier accommodated the rise of Japan. More recently, they have lagged in reflecting the rapidly increasing weight of other non-Western economies in world trade and finance.The formation of the "BRICS" group was a collective effort by Brazil, Russia, India, and China (soon joined by South Africa) to develop institutions to reflect the current distribution of global commercial and financial power and contemporary governance requirements. When Bretton Woods took place the world had just been crushed by World War II. America dominated the world economy, justifying its preeminent role in global governance. Recent shifts in economic balances of power have not been reflected in legacy institutions. Washington remains the nominal leader in them but finds itself increasingly sidelined as others feel obliged to work around it. The Trump administration's skepticism about the value of the international economic institutions that earlier generations of Americans created has accelerated the diminishment of U.S. managerial control over the global economy.Similar erosion of U.S. primacy is evident in international politics. China, India, and Russia have met annually since 2002 to discuss how to establish a multipolar world order in which U.S. unilateralism cannot hold sway. Antagonism between the world's greatest powers is growing. With the United States pushing back against Russia in the West and China in the East, the two are being nudged together to counter America.To offset Sino-Russian partnership, Japan seeks rapprochement with India and Russia, leavening its longstanding exclusive reliance on the United States. China, Europe, Russia, and the United States are also courting India, which is, as always, playing hard to get. Meanwhile, China is reaching out to Europe and the EU is attempting to work with it to fill the leadership vacuum in the Asia-Pacific created by the sudden U.S. abandonment of the economic leg of its "pivot to Asia." No region is immune from realignment in its international relationships. Brazil's membership in the BRICS group symbolizes its cultivation of relationships with emerging powers to balance those it has with the United States and middle-ranking powers in the Western Hemisphere.As a consequence of these trends, we are now well into a world of many competing power centers and regional balances. Long-term vision and short-term diplomatic agility are at a premium. Neither is anywhere evident. In their absence, territorial disputes rooted in World War II and Cold War troop movements and lines of control, arms races (nuclear as well as conventional), shifting balances of prestige, and the reduced moderating effect of international organizations are helping to escalate alienation and tension between the great powers.The stakes are high. Trade wars that could wreck the global economy and degrade the prosperity of all are now all too easy to imagine. Armed conflict could break out at any time along the unsettled borders between China and India and China and Japan. The U.S. and Chinese navies are maneuvering against each other in the South China Sea. The two countries appear to be headed for a military confrontation over Taiwan. The Peloponnesian War and World War I remind us that squabbles between lesser powers can drag their patrons into existential strife despite their better judgment.Notwithstanding ample opportunity to do so, the U.S., EU, and Russia failed to craft a cooperative post-Cold War order to regulate their interaction in Europe. There is no agreement on where NATO ends and Russia begins. We now face the possibility that it will take an armed face-down to define a dividing line between them.All great powers now share an avowed interest in containing Islamist terrorism and remediating its causes. Escalating antipathies born of territorial disputes and Chinese and Russian opposition to U.S. primacy prevent cooperation to this end. The politically expedient demonization of strategic rivals in democracies like the United States inhibits cooperation even where specific interests nearly completely coincide. The same factors diminish the likelihood of cooperation on other matters where interests substantially overlap —like Syria and Korea.Meanwhile, U.S. deployments of ballistic missile defenses and the increasing lethality of American nuclear warheads have convinced both Russia and China that Washington is reaching for the ability to decapitate them in a first strike. Russia and the United States are in a nuclear arms race again. China seems to have been provoked to develop a second-strike capability that, like Russia's, will be able to annihilate, not just maim America. The Bulletin of the Atomic Scientists has moved its "Doomsday Clock" the closest to midnight since 1954.The risks the world now faces were not (and are not) inevitable. They are the product of lapses of statesmanship and failures to consider how others see and react to us. The setbacks to America's ability to shape the international environment to its advantage are not the result of declining capacity on its part. They are the consequence of a failure to adapt to new realities and shifting power balances. Raging against change will not halt it. Pulling down the frameworks and trashing the rules on which North American and global prosperity were built is far more likely to prove counterproductive than empowering. Buying more military hardware will not remedy the national strategy deficit. Gutting the foreign affairs agencies and doubling down on diplomacy-free foreign policy will deepen it.Americans are badly in need of a national conversation about their aspirations in foreign affairs and how to take advantage of the changing world order to realize them. That conversation did not take place during the run-up to the 2016 election. The inauguration did not mark an end to the chaos of the presidential transition. Forty-eight days later, most government policy positions remain unfilled. Policy processes have yet to be defined.In the current atmosphere, slogans displace considered judgments, intelligence about the outside world is unwelcome, expertise is dismissed as irrelevant or worse, and policy pronouncements appease the delusions of political constituencies instead of addressing verifiable realities. The Congress has walked off the job. Some sort of order must eventually reassert itself in the U.S. government, but the prospects for intelligent dialogue about the implications for American interests of developments abroad seem exceptionally poor.But such dialogue cannot be deferred for another four years. It seems ever clearer that it will not originate in Washington. It must begin somewhere. Why not here? Why not now?NC UtilThe standard is maximizing expected wellbeing as contextualized by impacts on case – maximizing wellbeing is the theory of the good. The constitutive obligation of the state is to protect citizen interest—individual obligations are not applicable in the public sphere. Goodin 95 Robert E. Goodin. Philosopher of Political Theory, Public Policy, and Applied Ethics. Utilitarianism as a Public Philosophy. Cambridge University Press, 1995. p. 26-7The great adventure of utilitarianism as a guide to public conduct is that it avoids gratuitous sacrifices, it ensures as best we are able to ensure in the uncertain world of public policy-making that policies are sensitive to people’s interests or desires or preferences. The great failing of more deontological theories, applied to those realms, is that they fixate upon duties done for the sake of duty rather than for the sake of any good that is done by doing one’s duty. Perhaps it is permissible (perhaps it is even proper) for private individuals in the course of their personal affairs to fetishize duties done for their own sake. It would be a mistake for public officials to do likewise, not least because it is impossible. The fixation on motives makes absolutely no sense in the public realm, and might make precious little sense in the private one even, as Chapter 3 shows. The reason public action is required at all arises from the inability of uncoordinated individual action to achieve certain morally desirable ends. Individuals are rightly excused from pursuing those ends. The inability is real; the excuses, perfectly valid. But libertarians are right in their diagnosis, wrong in their prescription. That is the message of Chapter 2. The same thing that makes those excuses valid at the individual level – the same thing that relieves individuals of responsibility – makes it morally incumbent upon individuals to organize themselves into collective units that are capable of acting where they as isolated individuals are not. When they organize themselves into these collective units, those collective deliberations inevitably take place under very different circumstances and their conclusions inevitably take very different forms. Individuals are morally required to operate in that collective manner, in certain crucial respects. But they are practically circumscribed in how they can operate, in their collective mode. And those special constraints characterizing the public sphere of decision-making give rise to the special circumstances that make utilitarianism peculiarly apt for public policy-making, in ways set out more fully in Chapter 4. Government house utilitarianism thus understood is, I would argue, a uniquely defensible public philosophy.Util is axiomatically true - all value stems from experienced wellbeing. Harris 10Sam Harris 2010. CEO Project Reason; PHD UCLA Neuroscience; BA Stanford Philosophy. ?The Moral Landscape: How Science Can Determine Human Values.”I believe that we will increasingly understand good and evil, right and wrong, in scientific terms, because moral concerns translate into facts about how our thoughts and behaviors affect the well-being of conscious creatures like ourselves. If there are facts to be known about the well-being of such creatures—and there are—then there must be right and wrong answers to moral questions. Students of philosophy will notice that this commits me to some form of moral realism (viz. moral claims can really be true or false) and some form of consequentialism viz. the rightness of an act depends on how it impacts the well-being of conscious creatures). While moral realism and consequentialism have both come under pressure in philosophical circles, they have the virtue of corresponding to many of our intuitions about how the world works. Here is my (consequentialist) starting point: all questions of value (right and wrong, good and evil, etc.) depend upon the possibility of experiencing such value. Without potential consequences at the level of experience—happiness, suffering, joy, despair, etc. —all talk of value is empty. Therefore, to say that an act is morally necessary, or evil, or blameless, is to make (tacit) claims about its consequences in the lives of conscious creatures (whether actual or potential).I am unaware of any interesting exception to this rule. Needless to say, if one is worried about pleasing God or His angels, this assumes that such invisible entities are conscious (in some sense) and cognizant of human behavior. It also generally assumes that it is possible to suffer their wrath or enjoy their approval, either in this world or the world to come. Even within religion, therefore, consequences and conscious states remain the foundation of all values.?Moral uncertainty means we default to preventing extinction under any ethical frameworkBOSTROM 11(2011) Nick Bostrom, Future of Humanity Institute, Oxford Martin School & Faculty of PhilosophyThese reflections on moral uncertainty suggest[s] an alternative, complementary way of looking at existential risk. Let me elaborate. Our present understanding of axiology might well be confused. We may not now know—at least not in concrete detail—what outcomes would count as a big win for humanity; we might not [or] even yet be able to imagine the best ends of our journey. If we are indeed profoundly uncertain about our ultimate aims, then we should recognize that there is a great option value in preserving—and ideally improving—our ability to recognize value and to steer the future accordingly. Ensuring that there will be a future version of humanity with great powers and a propensity to use them wisely is plausibly the best way available to us to increase the probability that the future will contain a lot of value. To do this, we must prevent any existential catastrophe.Death is the worst form of evil since it destroys the subject itself.Paterson 03 – Department of Philosophy, Providence College, Rhode Island (Craig, “A Life Not Worth Living?”, Studies in Christian Ethics.Contrary to those accounts, I would argue that it is death per se that is really the objective evil for us, not because it deprives us of a prospective future of overall good judged better than the alter- native of non-being. It cannot be about harm to a former person who has ceased to exist, for no person actually suffers from the sub-sequent non-participation. Rather, death in itself is an evil to us because it ontologically destroys the current existent subject — it is the ultimate in metaphysical lightening strikes.80 The evil of death is truly an ontological evil borne by the person who already exists, independently of calculations about better or worse possible lives. Such an evil need not be consciously experienced in order to be an evil for the kind of being a human person is. Death is an evil because of the change in kind it brings about, a change that is destructive of the type of entity that we essentially are. Anything, whether caused naturally or caused by human intervention (intentional or unintentional) that drastically interferes in the process of maintaining the person in existence is an objective evil for the person. What is crucially at stake here, and is dialectically supportive of the self-evidency of the basic good of human life, is that death is a radical interference with the current life process of the kind of being that we are. In consequence, death itself can be credibly thought of as a ‘primitive evil’ for all persons, regardless of the extent to which they are currently or prospectively capable of participating in a full array of the goods of life.81 ?In conclusion, concerning willed human actions, it is justifiable to state that any intentional rejection of human life itself cannot therefore be warranted since it is an expression of an ultimate disvalue for the subject, namely, the destruction of the present person; a radical ontological good that we cannot begin to weigh objectively against the travails of life in a rational manner. To deal with the sources of disvalue (pain, suffering, etc.) we should not seek to irrationally destroy the person, the very source and condition of all human possibility.82?Failing to prevent a horrible outcome is just as bad as causing it – the aff is moral evasion Nielsen – philosophy prof, Calgary - 93Kai Nielsen, Professor of Philosophy, University of Calgary, Absolutism and Its Consequentialist Critics, ed. Joram Graf Haber, 1993, p. 170-2 Forget the levity of the example and consider the case of the innocent fat man. If there really is no other way of unsticking our fat man and if plainly, without blasting him out, everyone in the cave will drown, then, innocent or not, he should be blasted out. This indeed overrides the principle that the innocent should never be deliberately killed, but it does not reveal a callousness toward life, for the people involved are caught in a desperate situation in which, if such extreme action is not taken, many lives will be lost and far greater misery will obtain. Moreover, the people who do such a horrible thing or acquiesce in the doing of it are not likely to be rendered more callous about human life and human suffering as a result. Its occurrence will haunt them for the rest of their lives and is as likely as not to make them more rather than less morally sensitive. It is not even correct to say that such a desperate act shows a lack of respect for persons. We are not treating the fat man merely as a means. The fat man's personhis interests and rights are not ignored. Killing him is something which is undertaken with the greatest reluctance. It is only when it is quite certain that there is no other way to save the lives of the others that such a violent course of action is justifiably undertaken. Alan Donagan, arguing rather as Anscombe argues, maintains that "to use any innocent man ill for the sake of some public good is directly to degrade him to being a mere means" and to do this is of course to violate a principle essential to morality, that is, that human beings should never merely be treated as means but should be treated as ends in themselves (as persons worthy of respect)." But, as my above remarks show, it need not be the case, and in the above situation it is not the case, that in killing such an innocent man we are treating him merely as a means. The action is universalizable, all alternative actions which would save his life are duly considered, the blasting out is done only as a last and desperate resort with the minimum of harshness and indifference to his suffering and the like. It indeed sounds ironical to talk this way, given what is done to him. But if such a terrible situation were to arise, there would always be more or less humane ways of going about one's grim task. And in acting in the more humane ways toward the fat man, as we do what we must do and would have done to ourselves were the roles reversed, we show a respect for his person. In so treating the fat mannot just to further the public good but to prevent the certain death of a whole group of people (that is to prevent an even greater evil than his being killed in this way)the claims of justice are not overriden either, for each individual involved, if he is reasonably correct, should realize that if he were so stuck rather than the fat man, he should in such situations be blasted out. Thus, there is no question of being unfair. Surely we must choose between evils here, but is there anything more reasonable, more morally appropriate, than choosing the lesser evil when doing or allowing some evil cannot be avoided? That is, where there is no avoiding both and where our actions can determine whether a greater or lesser evil obtains, should we not plainly always opt for the lesser evil? And is it not obviously a greater evil that all those other innocent people should suffer and die than that the fat man should suffer and die? Blowing up the fat man is indeed monstrous. But letting him remain stuck while the whole group drowns is still more monstrous. The consequentialist is on strong moral ground here, and, if his reflective moral convictions do not square either with certain unrehearsed or with certain reflective particular moral convictions of human beings, so much the worse for such commonsense moral convictions. One could even usefully and relevantly adapt herethough for a quite different purposean argument of Donagan's. Consequentialism of the kind I have been arguing for provides so persuasive "a theoretical basis for common morality that when it contradicts some moral intuition, it is natural to suspect that intuition, not theory, is corrupt."" Given the comprehensiveness, plausibility, and overall rationality of consequentialism, it is not unreasonable to override even a deeply felt moral conviction if it does not square with such a theory, though, if it made no sense or overrode the bulk of or even a great many of our considered moral convictions, that would be another matter indeed. Anticonsequentialists often point to the inhumanity of people who will sanction such killing of the innocent, but cannot the compliment be returned by speaking of the even greater inhumanity, conjoined with evasiveness, of those who will allow even more death and far greater misery and then excuse themselves on the ground that they did not intend the death and misery but merely forbore to prevent it? In such a context, such reasoning and such forbearing to prevent seems to me to constitute a moral evasion. I say it is evasive because rather than steeling himself to do what in normal circumstances would be a horrible and vile act but in this circumstance is a harsh moral necessity, he allows, when he has the power to prevent it, a situation which is still many times worse. He tries to keep his `moral purity' and avoid `dirty hands' at the price of utter moral failure and what Kierkegaard called `doublemindedness.' It is understandable that people should act in this morally evasive way but this does not make it right.[separate db8] Moral uncertainty means we default to preventing extinction under any ethical frameworkBOSTROM 11(2011) Nick Bostrom, Future of Humanity Institute, Oxford Martin School & Faculty of PhilosophyThese reflections on moral uncertainty suggest[s] an alternative, complementary way of looking at existential risk. Let me elaborate. Our present understanding of axiology might well be confused. We may not now know—at least not in concrete detail—what outcomes would count as a big win for humanity; we might not [or] even yet be able to imagine the best ends of our journey. If we are indeed profoundly uncertain about our ultimate aims, then we should recognize that there is a great option value in preserving—and ideally improving—our ability to recognize value and to steer the future accordingly. Ensuring that there will be a future version of humanity with great powers and a propensity to use them wisely is plausibly the best way available to us to increase the probability that the future will contain a lot of value. To do this, we must prevent any existential catastrophe.Theory DisclosureA. Interpretation: Debaters may only read positions that are disclosed before the debate on their NDCA wiki page under their own name with full citations, tags, and first three/last three words.B. Violation: They didn’t disclose the citations for the affC. Standards:1 – Quality engagement—disclosure allows in-depth preparation before the round which checks back against unpredictable positions and allows debaters to effectively write case negs and blocks—allows for reciprocal engagement where each side has an equal opportunity to prepare as opposed to scouting capacity to determine success, and incentivizes in-depth debates which is key to clash and good topic education.2 – Reciprocity—the majority of national circuit buys into disclosure and put stuff on the wiki. They get access to cites and cards for cases and prep, which improves quality ground and means they can predict what other people are running, but we can’t predict them. This outweighs—a) every reason disclosure is good is an advantage for them and not me, b) view their counter-interp with a grain of salt since it’s self-serving.3 – Academic Ethics—disclosure deters mis-cutting, power-tagging, abuse of brackets and ellipses, and plagiarism since it allows debaters to check for those issues out of round. Academic honesty outweighs—it’s a real-world norm and debate loses all educational value if we can just make up cards.4 – Deep Research—disclosure incentivizes specific, in-depth researchNails ’13 (Jacob, “A Defense of Disclosure (Including Third-Party Disclosure)”, 10/10/2013) I fall squarely on the side of disclosure. I find that the largest advantage of widespread disclosure is the educational value it provides. First, disclosure streamlines research. Rather than every team and every lone wolf researching completely in the dark, the wiki provides a public body of knowledge that everyone can contribute to and build off of. Students can look through the different studies on the topic and choose the best ones on an informed basis without the prohibitively large burden of personally surveying all of the literature. The best arguments are identified and replicated, which is a natural result of an open marketplace of ideas. Quality of evidence increases across the board. In theory, the increased quality of information could trade off with quantity. If debaters could just look to the wiki for evidence, it might remove the competitive incentive to do one’s own research. Empirically, however, the opposite has been true. In fact, a second advantage of disclosure is that it motivates research. Debaters cannot expect to make it a whole topic with the same stock AC – that is, unless they are continually updating and frontlining it. Likewise, debaters with access to their opponents’ cases can do more targeted and specific research. Students can go to a new level of depth, researching not just the pros and cons of the topic but the specific authors, arguments, and adovcacies employed by other debaters. The incentive to cut author-specific indicts is low if there’s little guarantee that the author will ever be cited in a round but high if one knows that specific schools are using that author in rounds. In this way, disclosure increases incentive to research by altering a student’s cost-benefit analysis so that the time spent researching is more valuable, i.e. more likely to produce useful evidence because it is more directed. In any case, if publicly accessible evidence jeopardized research, backfiles and briefs would have done LD in a long time ago.5 – Small Schools—non-disclosure helps big schools—they have more coaches, debaters, and larger networks to scout and generate prep—disclosure checks back so everyone’s on the same playing field, and lets smaller schools get access to more prep—outweighs since it’s a structual inequality in debate. D. Voter Fairness is a voter, debate’s a competitive activity with wins and losses-if the round is skewed towards once debater you can longer test debate skill.Education’s a voter since it’s the end goal of debate and provides portable skills.Drop the debater Recourse – Drop the arg discourages me from reading theory to check back abuse since I lose speech time, making abuse strategic.T Topic1Interpretation and violation – the affirmative should defend the hypothetical enactment of topical actionMost predictable—the agent and verb indicate a debate about hypothetical government actionEricson 3 (Jon M., Dean Emeritus of the College of Liberal Arts – California Polytechnic U., et al., The Debater’s Guide, Third Edition, p. 4)The Proposition of Policy: Urging Future Action In policy propositions, each topic contains certain key elements, although they have slightly different functions from comparable elements of value-oriented propositions. 1. An agent doing the acting ---“The United States” in “The United States should adopt a policy of free trade.” Like the object of evaluation in a proposition of value, the agent is the subject of the sentence. 2. The verb should—the first part of a verb phrase that urges action. 3. An action verb to follow should in the should-verb combination. For example, should adopt here means to put a program or policy into action though governmental means. 4. A specification of directions or a limitation of the action desired. The phrase free trade, for example, gives direction and limits to the topic, which would, for example, eliminate consideration of increasing tariffs, discussing diplomatic recognition, or discussing interstate commerce. Propositions of policy deal with future action. Nothing has yet occurred. The entire debate is about whether something ought to occur. What you agree to do, then, when you accept the affirmative side in such a debate is to offer sufficient and compelling reasons for an audience to perform the future action that you propose. Second, Resolved implies a policy Louisiana House 3-8-2005, Resolution A legislative instrument that generally is used for making declarations, stating policies, and making decisions where some other form is not required. A bill includes the constitutionally required enacting clause; a resolution uses the term "resolved". Not subject to a time limit for introduction nor to governor's veto. ( Const. Art. III, §17(B) and House Rules 8.11 , 13.1 , 6.8 , and 7.4) My interpretation is that the resolution should define the division of affirmative and negative ground. It was negotiated and announced in advance, providing both sides with a reasonable opportunity to prepare to engage one another’s arguments. This does not require the use of any particular style, type of evidence, or assumption about the role of the judge — only that the topic should determine the debate’s subject matter – must be a concrete, fiated policy. – its not meant to forclose your identityB is the violation: The affirmative violates this interpretation because they call for a queer abolition of the pic and do not defend fiatTVA solves: You could have – (1) Read this on the neg (2) you can be whole rez and cromulent by using plea bargaining to undermine the state and the PIC – 1AC alexander 12 is the solvency advocateimpacts1. Limits – their interpretation obfuscates the role of the negative by setting the baseline for discussion – allowing the aff to arbitrarily define the topic based on an infinite number of critiques about the resolution ensures that our research is always irrelevant – they always pick the true topic – fairness is a prior question to whether their discussion is good becauseit determines whether we can adequately participate in the debate – fairness is also key to motivating the best research practices and innovation to engage in specific strategies2. Predictable clash – Fair debate around a stable stasis point creates an incentive for argumentative refinement that ensures that we learn more about what we’re debating and have a closer, more informed debate – this practice of defending our position against well prepared opponents is valuable regardless of the content because it makes us more persuasive, informed and capableStasis is the internal link to solving the aff – Debate has the ability to change people’s attitudes because it forces pre-round internal deliberation on a focused topic of debateGoodin & Niemeyer 3 – Australian National University (Robert and Simon, “When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy” Political Studies, Vol 50, p 627-649, WileyInterscience)What happened in this particular case, as in any particular case, was in some respects peculiar unto itself. The problem of the Bloomfield Track had been well known and much discussed in the local community for a long time. Exaggerated claims and counter-claims had become entrenched, and unreflective public opinion polarized around them. In this circumstance, the effect of the information phase of deliberative processes was to brush away those highly polarized attitudes, dispel the myths and symbolic posturing on both sides that had come to dominate the debate, and liberate people to act upon their attitudes toward the protection of rainforest itself. The key point, from the perspective of ‘democratic deliberation within’, is that that happened in the earlier stages of deliberation – before the formal discussions (‘deliberations’, in the discursive sense) of the jury process ever began. The simple process of jurors seeing the site for themselves, focusing their minds on the issues and listening to what experts had to say did virtually all the work in changing jurors’ attitudes. Talking among themselves, as a jury, did very little of it. However, the same might happen in cases very different from this one. Suppose that instead of highly polarized symbolic attitudes, what we have at the outset is mass ignorance or mass apathy or non-attitudes. There again, people’s engaging with the issue – focusing on it, acquiring information about it, thinking hard about it – would be something that is likely to occur earlier rather than later in the deliberative process. And more to our point, it is something that is most likely to occur within individuals themselves or in informal interactions, well in advance of any formal, organized group discussion. There is much in the large literature on attitudes and the mechanisms by which they change to support that speculation.31 Consider, for example, the literature on ‘central’ versus ‘peripheral’ routes to the formation of attitudes. Before deliberation, individuals may not have given the issue much thought or bothered to engage in an extensive process of reflection.32 In such cases, positions may be arrived at via peripheral routes, taking cognitive shortcuts or arriving at ‘top of the head’ conclusions or even simply following the lead of others believed to hold similar attitudes or values (Lupia, 1994). These shorthand approaches involve the use of available cues such as ‘expertness’ or ‘attractiveness’ (Petty and Cacioppo, 1986) – not deliberation in the internal-reflective sense we have described. Where peripheral shortcuts are employed, there may be inconsistencies in logic and the formation of positions, based on partial information or incomplete information processing. In contrast, ‘central’ routes to the development of attitudes involve the application of more deliberate effort to the matter at hand, in a way that is more akin to the internal-reflective deliberative ideal. Importantly for our thesis, there is nothing intrinsic to the ‘central’ route that requires group deliberation. Research in this area stresses instead the importance simply of ‘sufficient impetus’ for engaging in deliberation, such as when an individual is stimulated by personal involvement in the issue.33 The same is true of ‘on-line’ versus ‘memory-based’ processes of attitude change.34 The suggestion here is that we lead our ordinary lives largely on autopilot, doing routine things in routine ways without much thought or reflection. When we come across something ‘new’, we update our routines – our ‘running’ beliefs and pro cedures, attitudes and evaluations – accordingly. But having updated, we then drop the impetus for the update into deep-stored ‘memory’. A consequence of this procedure is that, when asked in the ordinary course of events ‘what we believe’ or ‘what attitude we take’ toward something, we easily retrieve what we think but we cannot so easily retrieve the reasons why. That more fully reasoned assessment – the sort of thing we have been calling internal-reflective deliberation – requires us to call up reasons from stored memory rather than just consulting our running on-line ‘summary judgments’. Crucially for our present discussion, once again, what prompts that shift from online to more deeply reflective deliberation is not necessarily interpersonal discussion. The impetus for fixing one’s attention on a topic, and retrieving reasons from stored memory, might come from any of a number sources: group discussion is only one. And again, even in the context of a group discussion, this shift from ‘online’ to ‘memory-based’ processing is likely to occur earlier rather than later in the process, often before the formal discussion ever begins. All this is simply to say that, on a great many models and in a great many different sorts of settings, it seems likely that elements of the pre-discursive process are likely to prove crucial to the shaping and reshaping of people’s attitudes in a citizens’ jury-style process. The initial processes of focusing attention on a topic, providing information about it and inviting people to think hard about it is likely to provide a strong impetus to internal-reflective deliberation, altering not just the information people have about the issue but also the way people process that information and hence (perhaps) what they think about the issue. What happens once people have shifted into this more internal-reflective mode is, obviously, an open question. Maybe people would then come to an easy consensus, as they did in their attitudes toward the Daintree rainforest.35 Or maybe people would come to divergent conclusions; and they then may (or may not) be open to argument and counter-argument, with talk actually changing minds. Our claim is not that group discussion will always matter as little as it did in our citizens’ jury.36 Our claim is instead merely that the earliest steps in the jury process – the sheer focusing of attention on the issue at hand and acquiring more information about it, and the internal-reflective deliberation that that prompts – will invariably matter more than deliberative democrats of a more discursive stripe would have us believe. However much or little difference formal group discussions might make, on any given occasion, the pre-discursive phases of the jury process will invariably have a considerable impact on changing the way jurors approach an issue. From Citizens’ Juries to Ordinary Mass Politics? In a citizens’ jury sort of setting, then, it seems that informal, pre-group deliberation – ‘deliberation within’ – will inevitably do much of the work that deliberative democrats ordinarily want to attribute to the more formal discursive processes. What are the preconditions for that happening? To what extent, in that sense, can findings about citizens’ juries be extended to other larger or less well-ordered deliberative settings? Even in citizens’ juries, deliberation will work only if people are attentive, open and willing to change their minds as appropriate. So, too, in mass politics. In citizens’ juries the need to participate (or the anticipation of participating) in formally organized group discussions might be the ‘prompt’ that evokes those attributes. But there might be many other possible ‘prompts’ that can be found in less formally structured mass-political settings. Here are a few ways citizens’ juries (and all cognate micro-deliberative processes)37 might be different from mass politics, and in which lessons drawn from that experience might not therefore carry over to ordinary politics: ? A citizens’ jury concentrates people’s minds on a single issue. Ordinary politics involve many issues at once. ? A citizens’ jury is often supplied a background briefing that has been agreed by all stakeholders (Smith and Wales, 2000, p. 58). In ordinary mass politics, there is rarely any equivalent common ground on which debates are conducted. ? A citizens’ jury separates the process of acquiring information from that of discussing the issues. In ordinary mass politics, those processes are invariably intertwined. ? A citizens’ jury is provided with a set of experts. They can be questioned, debated or discounted. But there is a strictly limited set of ‘competing experts’ on the same subject. In ordinary mass politics, claims and sources of expertise often seem virtually limitless, allowing for much greater ‘selective perception’. ? Participating in something called a ‘citizens’ jury’ evokes certain very particular norms: norms concerning the ‘impartiality’ appropriate to jurors; norms concerning the ‘common good’ orientation appropriate to people in their capacity as citizens.38 There is a very different ethos at work in ordinary mass politics, which are typically driven by flagrantly partisan appeals to sectional interest (or utter disinterest and voter apathy). ? In a citizens’ jury, we think and listen in anticipation of the discussion phase, knowing that we soon will have to defend our views in a discursive setting where they will be probed intensively.39 In ordinary mass-political settings, there is no such incentive for paying attention. It is perfectly true that citizens’ juries are ‘special’ in all those ways. But if being special in all those ways makes for a better – more ‘reflective’, more ‘deliberative’ – political process, then those are design features that we ought try to mimic as best we can in ordinary mass politics as well. There are various ways that that might be done. Briefing books might be prepared by sponsors of American presidential debates (the League of Women Voters, and such like) in consultation with the stakeholders involved. Agreed panels of experts might be questioned on prime-time television. Issues might be sequenced for debate and resolution, to avoid too much competition for people’s time and attention. Variations on the Ackerman and Fishkin (2002) proposal for a ‘deliberation day’ before every election might be generalized, with a day every few months being given over to small meetings in local schools to discuss public issues. All that is pretty visionary, perhaps. And (although it is clearly beyond the scope of the present paper to explore them in depth) there are doubtless many other more-or-less visionary ways of introducing into real-world politics analogues of the elements that induce citizens’ jurors to practice ‘democratic deliberation within’, even before the jury discussion gets underway. Here, we have to content ourselves with identifying those features that need to be replicated in real-world politics in order to achieve that goal – and with the ‘possibility theorem’ that is established by the fact that (as sketched immediately above) there is at least one possible way of doing that for each of those key features.2 – Fallibility – vote negative on presumption independently - presume every 1AC truth claim false because it hasn’t been properly tested.Dame and Gedmin 13John Dame, Chief Executive Officer of Dame Management Strategies, and Jeffrey Gedmin, Chief Executive Officer of the Legatum Institute, 2013 (“Three Tips For Overcoming Your Blind Spots,” Harvard Business Review blog, October 2nd, Available Online at , Accessed 10-10-2013)To fight confirmation bias, have a devil’s advocate. Confirmation bias refers to our tendency, when receiving new information, to process it in a way that it fits our pre-existing narrative about a situation or problem. Simply put, if you’re already inclined to believe that the French are rude, you will find the examples on your trip to Paris to validate your thesis. Disconfirming evidence – the friendly waiter, the helpful bellman – gets pushed aside. They’re just “the exception.” Warren Buffett says, “What the human being is best at doing, is interpreting all new information so that their prior conclusions remain intact.” He knows he is prone to it himself. Attorneys, debaters, and politicians engage in a kind of confirmation bias when, in order to make a case, they select certain data while deliberately neglecting or deemphasizing other data. But confirmation bias can cause disaster in business and policy when it leads a decision-maker to jump to conclusions, fall prey to misguided analogies, or simply exclude information that inconveniently disturbs a desired plan of action. What to do? The only remedy is to make sure you have a full and accurate picture available when making important decisions. When you have a theory about someone or something, test it. When you smell a contradiction – a thorny issue, an inconsistency or problem – go after it. Like the orchestral conductor, isolate it, drill deeper. When someone says – or you yourself intuit – “that’s just an exception,” be sure it’s just that. Thoroughly examine the claim. Dealing with confirmation bias is about reining in your impulses and challenging your own assumptions. It’s difficult to stick to it day in and out. That’s why it’s important to have in your circle of advisers a brainy, tough-as-nails devil’s advocate who – perhaps annoyingly, but valuably – checks you constantly.5 – Fairness – Procedural fairness first A – Internal link to AFF solvency – you turn this round into a monologue, not a dialogue, which prevents actual discussion of the issues you critique. Procedural fairness is key to actual discourse and clash, not me trying to apply crappy generics to your specific AFF B – You make debate as a game inaccessible, especially to marginalized students – only big schools will have you prepped. Small, underfunded schools, or more local urban leagues with debaters of color or who are otherwise marginalized are especially excluded from the round. C – Turns your AFF – an agreed upon stasis point allows for minorities to come together and discuss the best strategies for change – your AFF forces the oppression Olympics where you can only win if you prove that your oppression is worse, which reinscribes power relations because it pits marginalized groups against other marginalized groups instead of having a collective resistance.D is the voter --- this is a voter for education (1) it’s a turn to the AFF methodology (2) voter for portable skills – spills over. Voter for fairness because debate is a game and all of the offense links back to your AFFT Topic / LawA is the interpretation - The affirmative must implement a law that plea bargaining ought to be abolished in the United States criminal justice system – this must be a fiated, concrete policy. Resolved implies a policy Louisiana House 3-8-2005, Resolution A legislative instrument that generally is used for making declarations, stating policies, and making decisions where some other form is not required. A bill includes the constitutionally required enacting clause; a resolution uses the term "resolved". Not subject to a time limit for introduction nor to governor's veto. ( Const. Art. III, §17(B) and House Rules 8.11 , 13.1 , 6.8 , and 7.4) Abolish means a law that gets rid of – its distinct from reformPendakis 17 (Andrew, Pf @ Brock University English Language & Literature, Dialectics of Determinism: Echoes of Necessity in Hobbes, Hegel, Marx and Ruda,” Provocations 1 (2017), pp. 27-42, )Abolition is not just an intensified rejection, nor is it the brute destruction of something merely loathed. To abolish is to liquidate politically: it is negation passed through the medium of law or collective struggle, an act of the state (or a revolting “people”) that aims to comprehensively withdraw from circulation a toxic form or practice. Abolition is not a tweaked legal postulate, an act open to reversal by a future sovereign: it proudly envisions itself (perhaps even undialectically) as forever. The classic political imaginary of abolition is that of a negation undertaken in the name of an entirely new socius: no revolution, in other words, without the accompanying smash of things ended once and for all. Despite its title, Ruda’s book has little to say about abolition understood in this properly political sense. abolition refers to using a lawVanderveken 90 (D., professor University of Quebec at Trois-Rivières , Department of Philosophy, “SEMANTIC ANALYSIS OF ENGLISH PERFORMATIVE VERBS”, )To cancel an order or an authorization or any other speech act is to declare it to be no longer in effect. There is a preparatory condition to the effect that an act had been made and is in effect, and a propositional content condition to the effect that this is terminated. To annul is to cancel a formal agreement (such as a contract or a marriage, for example), and thereby render it "null" and void. Since it is a formal agreement, there is added formality in the mode of achievement of its being annulled. To abolish is to cancel laws, sentences, rights, or other more general institutions (propositional content conditions). To abrogate is to abolish a particular law.B is the violation – they didn’t defend the fiated use of a lawC is the standards:Ground – I can’t engage with them substantively – the only thing I can engage in is 7 minutes of abstract phil debate and turns which kills neg ground because I can’t access DA’s or CP’s which are a core part of neg strategy – holding them to a law uniquely solves because then I can engage with them on the details layer – their abstractness also allows them to shift out of my links in the 1ar – key to fairness and education because it determines access to argumentsPolicymaking edu – without da’s or cp’s we don’t learn about the policymaking process, which is uniquely key to education because it teaches us about how to be a policymaker and how to have advocacy skills, which spill over – o/ws phil education because it teaches us to advocate for policies for real change, not spending half an hour bastardizing a 2000 year old debateLegal precision – the definitions above prove how legal definitions flow neg – prefer because that’s how any potential policy would be evaluated in the first place and determine the semantics of the resolution. Legal precision is key to education because we learn about legal system and how to work through law which comes first and spills overDepth first – having in depth law debates are better than phil ones because instead of rehashing the same 2000 year old debate we learn about the specificity and particularity of each method – key to education because we have more discussion about issues and key to fairness because otherwise one side is much more prepared than the otherTVA solves – you could have read this and defended implementationD is the votersVote on Jurisdiction independent of fairness and education – the judge can only vote for cases which affirm the res since the ballot asks who did the better debating in context of a resolution. Vote off fairness - You could never evaluate the better debater if the round is skewed. Education is a voter. It provides portable skills that make debate impactful and is the reason why schools fund debate. Drop the debater on T. 1) The judge has no jurisdiction to vote for an advocacy that doesn’t affirm the res. 2) Drop the arg is severance as the aff can restart in the 1AR. 3) Drop the arg is not worth the opportunity cost for the neg to initiate T—this promotes nontopical peting interps because it maximizes education while reasonability creates a race to the bottom and sets mediocre norms for debate. Reasonability also invites judge intervention.No RVI’s. 1) It’s illogical—If you can win by proving you’re fair then both debaters would win absent T or theory which undermines competition. 2) RVI’s create a chilling effect and deters checks against nontopical affs. 3) RVI’s encourage good tech debaters to be intentionally nontopical so they can win off the RVI.24 HW AG Aff Stock (c&p)ACAdvantage 1 DiscretionSessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power.Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, n28 including the right to redress sentencing errors that have not yet occurred. n29 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n32 on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n42 Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire CJS.Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012 What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.This results in cycles of criminalization, dehumanization, and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Interpedently, rights violations result in rampant totalitarianism and an inability to critique power. Inga Ivsan, University of Miami School of Law & Philip E. Heckerling Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. (2017)Plea bargaining is not necessarily bad in and of itself, but its extreme overuse raises concerns about the U.S. criminal justice system.7 The pleabargaining process does not afford any constitutional or ethical protections.' For example, suppose police obtain evidence illegally, without a warrant. Prosecutors would prefer to keep a case built on warrantless evidence out of court rather than have the illegal police conduct exposed at trial. 9 A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.'o Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on questionable evidence, and accepts a lesser punishment in exchange for sacrificing the defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the subjects of bargaining and barter."" The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had indeed incorporated it into the Sixth Amendment.12 While plea bargains originally were used as a practical compromise between an overburdened prosecutor and a defendant of certain guilt, modernday plea bargains resemble one-sided contracts of adhesion 3 favoring a prosecutor too often holding insufficient evidence14 against a criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being sentenced to purgatory under current sen- tencing guidelines." A rational defendant, particularly in federal court, cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking additional charges' 6 and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size of the financial loss without any requirement that the defendant be found to have intended the loss.' 7 On average, the defendant who turns down a plea offer and is later convicted receives a sentence three times longer than under a plea agreement." Combined with a growing list of vague and poorly drafted statutes defining various crimes, prosecutors can target individuals and coerce them into plea bargains by promising to drop charges against family members' 9 and freezing assets.20 By punishing the defendant with a sentence three times longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary" and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v. United States.2 ' While acknowledging the utility or impossibility of getting rid of plea bargains in the modem criminal justice system, this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors when coupled with incredibly long sentences for those who risk conviction at trial, especially in complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial legal system. First conceived as a convenient procedural tool of expediency, modem plea bargain practice has supplanted trials altogether, severely punishing those few who dare exercise their Sixth Amendment right to trial.2 2 This article proposes a practical solution, one borrowed from the business world, to restore parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in which the government has absolute, unfettered discretion to selectively punish anyone and every- one.23 Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize government power at the expense of individual rights.24 The government enjoyed immense discretion to apply vaguely-written laws to political opponents and other disfavored individuals. 25 Even today, countries such as Iran continue to exploit such prosecutorial mechanisms to suppress freedom of discourse.2 6 The sad irony is that, while the United States may have won the Cold War, its legal institutions have gravitated toward resembling the inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modem American society can possibly know all of his or her individual legal obligations. For example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print.27 With over 5,000 federal criminal laws on the books, one legal scholar has determined that the average person unknowingly commits three felonies every day. 28 Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers, among other white-collar professionals, often operate in perpetual fear of the regulation state. Should their behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of justice or conspiracy, to threaten in order to gain cooperation.2 9 Thus, under the current system of plea bargaining, the adversary legal system is being severely undermined and an innocent individual is sacrificed for the pretense of the public good and its insatiable need to regulate every aspect of individual life. As the hero in Arthur Koestler's Stalinist critique novel Darkness at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind."3 0Advantage 2 Legitimacy Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. NOVEMBER 21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.2 million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the 2nd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 1923 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan TextThe Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” 26 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."2 With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.2 " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. 2 History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.FrameworkRights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.182? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'85A focus on purely intent based frameworks crush our ability to respond to violence. McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo(Martha, “How the "Unintended Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi: dx.doi:10.15779/Z381664)By similarly making structures of inequality appear beyond the reach of law reform, the "unintended consequences" message helps update and reinforce the narrowing of protections against intentional racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and in what form and to whom. Power is centrally about being able to act without having to take harm to others into account. This power to gain by harming others is strongest when it operates through systems and structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the "unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice requires careful attention to both harmful intent and to complex harmful effects. But the concept of "unintended consequences" inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that message promotes the theme that those who have power to ignore their harmful effects on others need not-indeed should not-be induced by law to care about this harm, because this caring is what is harmful. One right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites should reject stories of "unintended consequences" and instead scrutinize the power and laws that have so effectively achieved the intention of making devastating losses to so many of us seem natural, inevitable, and beneficial.24 HW AG Neg DefenseCaseTheir focus on mass incarceration as a part of the prison industrial complex is a diversionary tactic that normalizes broader forms of population control utilized by neoliberal governments. This is not a semantic point – this mindset informs of how they view non-prison labor and replicates class based racism. Ertel 15 - JACOB ERTEL Jacob Ertel is a graduate of Oberlin College (Oberlin), where he studied Political Economy. Ertel was an organizer for Students for a Free Palestine (SFP), an affiliate of Students for Justice in Palestine (SJP), on the Oberlin campus. AUGUST 10, 2015 a rhetorical tool, the notion of the PIC has been central in galvanizing public interest in the country’s astounding incarceration boom—and the 2.2 million people enveloped by it, over 60 percent of who are people of color—since the 1980s. In self-referentially positioning itself in relation to the more widely known ‘military-industrial complex,’ moreover, the PIC effectively calls attention to the state’s capacity to reproduce itself through a range of disciplinary institutions crucial to capitalism’s functioning. Though the PIC is useful in its ability to accessibly demonstrate the conjoined interests of capital and the state, some have argued that the term glosses over key historical, theoretical, and material conditions that can negatively affect our ability to understand the prison system and ultimately act against it. French sociologist Lo?c Wacquant is among the most brazen of the term’s critics. Though Wacquant obnoxiously dismisses the PIC as an “activist myth,” various elements of his critique should merit our attention, if for no other reason than their provocatively counterintuitive framing. First and perhaps most surprisingly, Wacquant explains that only a miniscule percentage of incarcerated people actually work for private firms. In 2009, for example, only 0.3 percent of inmates nation-wide were employed by such companies. Even if this trend were to develop exponentially in the coming years, it would still fail to account for the fundamental features of the prison system, as no single economic sector relies principally or even significantly on prison labor, however disturbing this dynamic may be. Prisons likewise do not actually constitute a significant boon to the United States’ economy; in fact, inmates are generally employed at a net loss to the government (though their activity is heavily subsidized and regulated), and US corrections-based spending at local, municipal, and federal levels constitutes only a small fraction of the GDP. None of this is to discount the disturbing reality of private prisons. And the private prison industry is growing: Corrections Corporation of America’s profits alone have increased by 500 percent in the past twenty years, and the three largest private prison corporations have spent over $45 million combined in lobbying efforts, giving some credence to Critical Resistance’s explication of the PIC. Yet despite increasing profit margins and appalling moral bankruptcy, private prisons are hardly the norm, and they likely won’t be anytime soon. One must also wonder whether the specific demonization of the private prison industry implicitly naturalizes the much larger and much more encompassing public prison nexus in the United States, one which has grown 790 percent since 1980 and which is not immune from the grave abuses (sexualized violence, correctional officer misconduct, food rationing, etc.) frequently cited as byproducts of the private prison industry. Such an analysis can tend towards a conspiratorial view of history that, regardless of whether or not it ultimately rings true, misses the central dynamic undergirding state involvement vis-à-vis both institutions of social welfare and institutions of imprisonment, detention, and poverty under neoliberalism. Wacquant identifies such a dynamic in Punishing the Poor as a “paradox of neoliberal rationality” in which “the state stridently reasserts its responsibility, potency, and efficiency in the narrow register of crime management at the very moment when it proclaims and organizes its own impotence on the economic front, thereby revitalizing the twin historical-cum-scholarly myths of the efficient police and the free market.” This trend is illustrated by dramatically changing state expenses—for instance, by 1995 US corrections budget appropriations exceeded funding for public housing by a factor of three, resembling the inverse relationship of 1980 funding allocations. In other words, explains Wacquant, the prison system has over time become the United States’ largest public housing initiative for the poor. This reframing of the PIC thus positions the state in a slightly different light, portraying the heightened capacity for incarceration within a frankly more grotesque functionality. If, as opposed to the traditional PIC framing in which labor done in both private and public prisons is conceived as a major economic boon, Black labor (which alone disproportionally constitutes roughly 36 percent of the prison population) is even more ineluctably characterized as surplus labor under post-Fordism, then the state can simply endow itself with the power to hyper-criminalize without pretext in order to deal with those who both serve no use to the economy and frustrate the largely white middle class whose labor does provide such a benefit. The heightening of aggressive, ‘zero-tolerance’ policing functions associated with gentrification is case in point, as those who are shut out of the deteriorating welfare system and forced to turn to informal economies become even more vulnerable to warehousing or police brutality, thus aiding in the production of ‘renewed’ urban space for the gentrifying middle-class. These critiques of the contemporary framing of the ‘prison-industrial complex’ are not simply a practice in detached pseudo-intellectualization; they are important because they frame the role of Black labor to the US economy in a fundamentally different way, one that can be instructive for current struggles and movements. Rather than assuming that the hyper-exploited production process occurring in prisons is central to the growth of the economy and the private corporations that contribute to it, for example, perhaps it is worthwhile to consider prison labor’s actual relative lack of productivity as symptomatic of a post-Fordist economy that deals with its “relatively redundant population of laborers…of greater extant than suffices for the average needs of the self-expansion of capital” (in the words of Marx) through mass warehousing. Contrary to the popular slogan then, ontologically speaking, Black lives cannot matter under neoliberalism because they have been cast as inessential to the quotidian functioning of the economy. Any critique of the current iteration of the PIC, however, must seriously reckon with the not at all insignificant rise of privatized detention centers. Private prison companies are responsible for 62 percent of the beds used by the Department of Homeland Security’s Immigrations and Customs Enforcement branch, and private firms such as the Corrections Corporation of America and GEO Group operate nine out of ten of the country’s largest immigration detention centers. Both of these companies have lobbied the Department of Homeland Security on immigration policy, and thus constitute a formidable force in shaping the fate of undocumented migrants largely driven to cross the border due to free trade agreements and the drug war. For this reason, the PIC as depicted by Critical Resistance may more accurately describe a ‘security-industrial’ or ‘detention-industrial’ complex. One might incorrectly read this imputation as implying that the recent success of Columbia Prison Divest’s campaign is ultimately inessential or futile. One might also infer that a call to reframe the prison-industrial complex may necessarily entail solely Keynesian or social democratic solutions, as opposed to the explicitly abolitionist stance put forth by radical groups such as Critical Resistance. On the contrary, such a reframing affirms the importance of (for now) symbolic initiatives such as divestment from the private prison industry, and is in fact entirely compatible with the notion of abolition and the prescriptions for restorative and transformative justice platforms often associated with radical adherents to the traditional usage of the PIC. For one, if for no other purpose, the PIC is useful in its function as effective political propaganda that has and should continue to pique a widespread interest in, at the very least, prison expansion. The primary short-term goal of any abolitionist movement must be to call attention to injustice, and there is no reason why the PIC should be abandoned, even if its empirical grounding may be questioned and readjusted. Likewise, the movement to divest from the private prison industry carries not merely symbolic import, but the potential to unify a range of (unfortunately) often-disparate divestment movements. For instance, Group4Securicor (more commonly referred to as G4S), which was targeted by Columbia’s private prison divestment campaign, operates in 125 countries and manages prisons and detention centers in Israel and the occupied West Bank, often in contravention of the Fourth Geneva Convention. One can thus read a refreshingly global and intersectional element into the prison divestment movement, one that makes use of the traditional and incomplete formulation of the PIC. While the success of private prison divestment at Columbia should certainly be seen as a tremendous victory for all divestment movements, reframing the prison-industrial complex as suggested above could prove useful in the seemingly perennial and fraught struggle to build a unified Left in the United States. Such potential exists because this reframing of the prison system cuts across multiple dimensions of neoliberalism to explicitly address the rise of incarceration rates and prison expansion within the context of economic deregulation and the state’s reneging on social protections since the 1980s. It prompts us not to be satisfied when Obama mentions the ‘school-to-prison pipeline’ once every seven years, to strive beyond incomplete iterations of abolition that might inadvertently limit themselves to ultimately reformist paradigms, and above all to form stronger connections between the prison abolition movement and the labor movement, between the immigration movement and the Boycott, Divestment, and Sanctions (BDS) movement.Circumvention is in the rational self-interest of judicial actors Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )While large caseloads and the promise of cumbersome, expensive jury trials help explain the appeal of plea bargains from a societal perspective, some commentators have found the more driving explanation in the motivations of key courtroom actors. These theories vary in emphasis, but center around a persistent preference for cooperation to achieve self-serving benefits among trial judges, prosecutors, defense lawyers, and defendants. Compare Malcolm M. Feeley, Two Models of the Criminal Justice System: An Organizational Perspective, 7 LAW & SOC’Y REV. 407 (1973) (presenting a theory based on the structure of relationships and functions among courtroom participants), with MILTON HEUMANN, PLEA BARGAINING 2-6 (1978) (proposing an adaptation theory focusing on a socialization process of courtroom actors). Further, some have argued that plea bargaining became entrenched in our system through a complex set of developments, including the rise of probation and of the public defender, along with the failure of indeterminate sentencing. See GEORGE FISHER, PLEA BARGAINING’S TRIUMPH 2-3 (2003). Nonetheless, it appears that plea bargaining started to develop a firm toe-hold in America around 1850, after Massachusetts passed liquor laws that vastly increased criminal prosecutions. Prosecutors sought “to manage their crushing workloads and to gain an occasional effortless conviction.” Id. at 230.Studies of EVERY REGION that has banned PB go neg- circumvention takes out the entire case and triggers presumption Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )69. For another example, see Milton Heumann & Colin Loftin, Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute, 13 LAW &SOC’Y REV. 393 (1979), discussing an effort by the Wayne County (Detroit) prosecutor to eliminate plea bargaining by his office in any case involving a recently promulgated law that imposed a mandatory add-on sentence of two years for the use of a firearm while committing a felony. 70. In California, for example, the ban did not eliminate plea bargaining, because it only applied in Superior Court. As a result, plea bargaining shifted to the earlier stages of adjudication — the municipal or district courts — where most cases began. CANDACEMCCOY, POLITICS AND PLEA BARGAINING: VICTIM’S RIGHTS IN CALIFORNIA 37-38 (1993). 71. For example, in Alaska, judges gave implicit bargains to those who pled guilty. For violent crimes, a study found that sentences after trial were, on average, “445 per cent longer than those given after pleas” and for fraud crimes, “334 per cent longer.” Rubinstein & White, supra note 67, at 278. A subsequent study also showed that charge bargaining again became increasingly more common in Alaska beginning in the mid-1980s. See Theresa White Carns & Dr. John A. Kruse, A Re-Evaluation of Alaska’s Plea Bargaining Ban, 8 ALASKA L.REV. 27, 64 (1991). 72. In El Paso, for example, a study found that, during the two years after the ban was initially implemented, “the trial rate doubled and the two judges [assigned to criminal cases] found that they could not move a much enlarged caseload.” Weninger, supra note 68, at 311. Soon, ten judges in the city began helping with criminal cases, but, nonetheless, the ban essentially fell apart due to sub rosa bargaining at all levels of the prosecutor’s office and the tendency of judges to bargain. Id. at 312. 73. When the prosecutor in Detroit tried to ban plea bargaining in felony cases involving firearms,see Heumann & Loftin,supra note 69, judges participated in subterfuges of two sorts. First, often by preagreement, they held short jury-waived trials in which the defendant was found not guilty of the felony, thus nullifying the mandatory additional penalty of two years applicable to felony cases involving firearms. See id. at 417-19. Second, they simply reduced two years from the sentence that would otherwise have been given for the underlying felony. See id. at 417-24.Recent studies how reform efforts sustain mass incarcerationBeckett, PhD, et al., 16(Katherine, Sociology@Washington, Anna Reositi, PhD Candidate, Emily Knaphus, PhD Candidate, The End of an Era? Understanding the Contradictions of Criminal Justice Reform The Annals of The American Academy of Political and Social Science March, 2016)In this article, we explore the possibility that contemporary public discourse and legislation regarding crime and punishment are most accurately characterized by complexity and contradiction rather than by a comprehensive rejection of the ideas and policies that fueled mass incarceration. Specifically, we explore the possibility that many of the ideas, assumptions, and policies that have historically buttressed mass incarceration persist and continue to enjoy cultural traction. We also consider the possibility that the cultural dynamics surrounding the reform process itself may work to legitimate and solidify some of the practices and policies that fuel mass incarceration. To assess these hypotheses, we analyze trends in criminal justice policy reform from 2000 to 2013 through a content analysis of state corrections and sentencing legislation. We also analyze mainstream newspaper stories and editorials on criminal justice and correctional reform since 2008. The findings suggest that contemporary discourse and reform strategies are characterized by contradiction rather than by an unequivocal rejection of the policies and ideas that have sustained mass incarceration. Moreover, we find evidence that the cultural dynamics surrounding the reform process may actually reify some of the assumptions, rhetoric, and images that buttress mass incarceration.No discrimination: Berdejo doesn’t account for the proper controls, and the study doesn’t take into account Wisconsin’s politics. Oliver 11-26Pamela Oliver, 11-26-2017, "Racial Disparities in Plea Bargaining in Dane County 2000-2006 – Race, Politics, Justice," No Publication, Oliver is a Conway-Bascom Professor of Sociology at the University of Wisconsin, where she has worked since 1980. Her research has two main branches: collective action and social movements, and racial disparities in criminal justice. She is bringing these two lines of work together in a current project on the relation between Black protest and policing and mass incarceration.A forthcoming published research article, by Carlos Berdejó a professor of Law at Loyola of Los Angeles who also has a PhD in economics, has documented racial disparities in the plea bargaining process in Dane County, Wisconsin (home of the University of Wisconsin – Madison) in the years 2000-2006. While the data from this study are now over 10 years old, this will motivate local people to take a closer look at plea bargaining here, as well as call attention to the plea bargaining process everywhere. The data come from CCAP, the computerized court record system. Berdejó found that although there was no racial difference in how people charged with serious felonies were treated, there were large racial differences in how people charged with their first misdemeanor were treated, and significant racial differences in treatment for low-level felonies. He also found that the racial differences were largest for first offenders, while the racial differences for people with prior convictions were small. He concludes that prosecutors seems to be treating Blacks with no prior convictions as somehow inherently more criminal than Whites with similar records. The largest proportional difference is that Whites were 75% more likely than Blacks (37% of White defendants vs. 21% of Black defendants) to have all misdemeanor charges dropped or amended to lesser charges that might carry a risk of a jail or prison sentence (table 3A). Some of this difference is due to prior records, but even looking only at people who had no prior convictions, Whites were 46% more likely than Blacks to have all misdemeanor charges dropped that risked incarceration (58% for Whites vs. 39% for Blacks, Table 4), and there substantial racial differences in misdemeanor plea bargaining for those with prior convictions as well. There were smaller but significant differences in charge reductions for lesser felonies (defined as those having a maximum sentence of five years in prison), where Whites were 25% more likely to experience a reduction in charges. Moreover, among those with no prior conviction, Whites originally charged with a lesser felony were 22% more likely than Blacks to have all felony charges dropped (59% for Whites vs. 48% for Blacks, table 4). This study also found racial disparities in sentencing, with more use of incarceration sentences for Blacks than Whites and, when sentenced to incarceration, slightly longer sentence lengths. Berdejó believes these differences were due to judicial discretion, although I learned informally through my interactions with local prosecutors, judges, and public defenders that the custom in Dane County was that sentences were never argued before the judge, so that the judge nearly always just ratified the sentence recommendation from the plea bargain. Multivariate analyses reported in the article show significant race effects on charge reductions after controls for specific crime characteristics, prior convictions, sex, age, and concurrent charges. Separate analyses also check for the effects of specific prosecutors and defense attorneys. These “controls” for prosecutors and defense attorneys did not say whether the controls added significant explanatory power. I have always wondered whether there were attorney effects. Rumors at the time suggested there were some assistant district attorneys in the prosecutor’s office who were especially problematic about racial issues. And it is widely believed that there are differences in quality among the three classes of defense attorneys: public defenders, private attorneys paid by the client, and court-appointed attorneys. Also, misdemeanor offenders who cannot afford an attorney are not provided one for free. One wonders whether not having an attorney at all might be a big factor in the misdemeanor cases. Having debated these issues with judges and prosecutors for years, I can also report that they insist that prosecutors may have access to juvenile records or records from other states that would justify differential treatment and that using Wisconsin’s court records to identify previous records is inadequate. I have always found these arguments to be frustrating, as they use unverifiable claims about hidden data as an excuse to ignore actual empirical data about how their own systems operate, but I will make this point so others know I have heard it. The author apparently knows little about Wisconsin’s racial disparities or its politics. He says in the article that he decided to study Dane County instead of Milwaukee County because he seemed to think Dane would be more typical of the rest of the state. By most measures, bad as it is, Milwaukee County is less racially disparate in its criminal justice statistics than Dane County, and Dane County is one of the most disparate counties in the country, so his arguments for choosing Dane as somehow more typical of the US were probably misguided, although his choice makes the study of greater local interest.Budget Pressure- Abolishing PB upends the entire CJS and introduces massive costs- pressure results in circumvention and WORSE outcomes flipping the case Howe, JD Michigan, 05(Scott W. Howe, Law@Chapman The Value of Plea Bargaining, 58 Okla. L. Rev. 599 (2005), )Attempting to eliminate plea bargaining would involve costly trade-offs. The previous section assumed a system that would exchange guilty pleas for trials by not proceeding against many defendants who had previously been legitimately charged with crime or by not charging many who should be charged. To attempt to abolish plea bargaining in any other way would require changes in the constraints noted at the outset of this part — the amount of behavior defined as crime, the amount of public resources devoted to fighting crime, and the basic approach to criminal trials. Moreover, bargaining is so central to the current system of adjudicating crime that abolishing it would necessitate extraordinary changes. Some commentators have suggested that abolition could be achieved without major costs, but their proposals are illusory. For example, based on a study of Philadelphia courts, one leading critic of plea bargaining contended that short bench trials could almost entirely replace plea bargains as the secondary means for resolving criminal cases. According to the study itself, 48 this conclusion was probably too optimistic. Nearly half of the cases in the Philadelphia courts ended with a guilty plea based on either explicit concessions from the prosecutor or implicit concessions from the judge.49 Also, the trade-off of guilty pleas for bench trials was arguably only a triumph of form over substance. The bench trials were extremely short — generally only a few minutes longer than a guilty plea — and judges richly rewarded 50 jury waivers through sentencing concessions. The Philadelphia system could 51 be viewed as merely an effort by judges to reward jury waivers and to allow for the correction of prosecutorial overcharging where the prosecutor, for reasons particular to that city, did not provide these functions through bargaining. The system did not eliminate bargaining for actual guilty pleas 52 53 and, to the extent that it reduced such bargaining, arguably only substituted an essentially equivalent method for extending leniency to reward purely strategic behavior by defendants.54 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 prosecutor, Harry Connick. This study showed that Connick had 55 greatly reduced the number of plea bargains offered by his office through a plan of intensive screening at the charging stage. The New Orleans District 56 Attorney’s office rejected many charges that prosecutors 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 57 reduce the need to dismiss questionable charges later. Due to the difficulty of accurately assessing cases, however, attempts at tough screening may allow a large percentage of questionable cases to go forward while also foreclosing many other legitimate charges. This approach may also have little influence on bargaining. The New Orleans District Attorney’s office “reject[ed] for prosecution . . . 52% of all cases and 63% of all charges.” Nonetheless, the 59 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, and some additional bargaining seemed 60 to occur in the form of failures by the prosecution to pursue enhanced penalties under habitual felon statutes. Much more significantly, overt 61 sentence bargaining continued in almost all cases between judges and defense lawyers, a practice historically deemed problematic even by proponents of 62 plea bargaining. In the end, the study failed to show that plea bargaining is 63 eradicable through tough screening practices. Instead, it raised the question 64 whether tough screening forecloses too many valid prosecutions 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 repeatedly 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. More often, they have resulted 66 from the order of the chief prosecutor, such as with the ban imposed by the Alaska Attorney General in 1975. Most have occurred in rural areas with a 67 low volume of criminal prosecutions, although the prosecutor in El Paso, Texas, also attempted to impose such a ban in 1975. Almost all have been 68 limited in major ways, such as to prosecutors alone or to certain stages of the adjudication process or to certain types of crimes. In each case, either the 69 bargaining shifted to other stages in the adjudication process, the provision 70 of bargains merely shifted from prosecutors to judges, or prosecutors 71 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 One leading critic of plea bargaining, Professor John Langbein, has openly confronted the unavoidable trade-offs required to try to eliminate it. He argued in the late 1970s that the United States should emulate the West German system of criminal justice. According to the argument, the West 75 Germans had avoided bargaining by resolving every case through a rapid, nonadversarial trial. This contention later appeared to be inaccurate. Plea 76 77 bargaining reportedly emerged in the West German system in the 1970s and has gained popularity there since that time. In any event, the argument 78 reveals the kind of sacrifice required to try to end the practice. To adopt the German system would eviscerate not only plea bargaining but our basic approach to criminal trials, which the Constitution guarantees to criminal defendants.79K Agamben (c&p)K AgambenIn Moulmein, in Lower Burma, I was hated by large numbers of people — the only time in my life that I have been important enough for this to happen to me. I was sub-divisional police officer of the town, and in an aimless, petty kind of way anti-European feeling was very bitter. No one had the guts to raise a riot, but if a European woman went through the bazaars alone somebody would probably spit betel juice over her dress. As a police officer I was an obvious target and was baited whenever it seemed safe to do so. When a nimble Burman tripped me up on the football field and the referee (another Burman) looked the other way, the crowd yelled with hideous laughter. This happened more than once. In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. The young Buddhist priests were the worst of all. There were several thousands of them in the town and none of them seemed to have anything to do except stand on street corners and jeer at Europeans.All this was perplexing and upsetting. For at that time I had already made up my mind that imperialism was an evil thing and the sooner I chucked up my job and got out of it the better. Theoretically — and secretly, of course — I was all for the Burmese and all against their oppressors, the British. As for the job I was doing, I hated it more bitterly than I can perhaps make clear. In a job like that you see the dirty work of Empire at close quarters. The wretched prisoners huddling in the stinking cages of the lock-ups, the grey, cowed faces of the long-term convicts, the scarred buttocks of the men who had been flogged with bamboos — all these oppressed me with an intolerable sense of guilt. But I could get nothing into perspective. I was young and ill-educated and I had had to think out my problems in the utter silence that is imposed on every Englishman in the East. I did not even know that the British Empire is dying, still less did I know that it is a great deal better than the younger empires that are going to supplant it. All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny, as something clamped down, in saecula saeculorum, upon the will of prostrate peoples; with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. Feelings like these are the normal by-products of imperialism; ask any Anglo-Indian official, if you can catch him off duty.One day something happened which in a roundabout way was enlightening. It was a tiny incident in itself, but it gave me a better glimpse than I had had before of the real nature of imperialism — the real motives for which despotic governments act. Early one morning the sub-inspector at a police station the other end of the town rang me up on the phone and said that an elephant was ravaging the bazaar. Would I please come and do something about it? I did not know what I could do, but I wanted to see what was happening and I got on to a pony and started out. I took my rifle, an old .44 Winchester and much too small to kill an elephant, but I thought the noise might be useful in terrorem. Various Burmans stopped me on the way and told me about the elephant's doings. It was not, of course, a wild elephant, but a tame one which had gone ‘must’. It had been chained up, as tame elephants always are when their attack of ‘must’ is due, but on the previous night it had broken its chain and escaped. Its mahout, the only person who could manage it when it was in that state, had set out in pursuit, but had taken the wrong direction and was now twelve hours’ journey away, and in the morning the elephant had suddenly reappeared in the town. The Burmese population had no weapons and were quite helpless against it. It had already destroyed somebody's bamboo hut, killed a cow and raided some fruit-stalls and devoured the stock; also it had met the municipal rubbish van and, when the driver jumped out and took to his heels, had turned the van over and inflicted violences upon it.The Burmese sub-inspector and some Indian constables were waiting for me in the quarter where the elephant had been seen. It was a very poor quarter, a labyrinth of squalid bamboo huts, thatched with palmleaf, winding all over a steep hillside. I remember that it was a cloudy, stuffy morning at the beginning of the rains. We began questioning the people as to where the elephant had gone and, as usual, failed to get any definite information. That is invariably the case in the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes. Some of the people said that the elephant had gone in one direction, some said that he had gone in another, some professed not even to have heard of any elephant. I had almost made up my mind that the whole story was a pack of lies, when we heard yells a little distance away. There was a loud, scandalized cry of ‘Go away, child! Go away this instant!’ and an old woman with a switch in her hand came round the corner of a hut, violently shooing away a crowd of naked children. Some more women followed, clicking their tongues and exclaiming; evidently there was something that the children ought not to have seen. I rounded the hut and saw a man's dead body sprawling in the mud. He was an Indian, a black Dravidian coolie, almost naked, and he could not have been dead many minutes. The people said that the elephant had come suddenly upon him round the corner of the hut, caught him with its trunk, put its foot on his back and ground him into the earth. This was the rainy season and the ground was soft, and his face had scored a trench a foot deep and a couple of yards long. He was lying on his belly with arms crucified and head sharply twisted to one side. His face was coated with mud, the eyes wide open, the teeth bared and grinning with an expression of unendurable agony. (Never tell me, by the way, that the dead look peaceful. Most of the corpses I have seen looked devilish.) The friction of the great beast's foot had stripped the skin from his back as neatly as one skins a rabbit. As soon as I saw the dead man I sent an orderly to a friend's house nearby to borrow an elephant rifle. I had already sent back the pony, not wanting it to go mad with fright and throw me if it smelt the elephant.The orderly came back in a few minutes with a rifle and five cartridges, and meanwhile some Burmans had arrived and told us that the elephant was in the paddy fields below, only a few hundred yards away. As I started forward practically the whole population of the quarter flocked out of the houses and followed me. They had seen the rifle and were all shouting excitedly that I was going to shoot the elephant. They had not shown much interest in the elephant when he was merely ravaging their homes, but it was different now that he was going to be shot. It was a bit of fun to them, as it would be to an English crowd; besides they wanted the meat. It made me vaguely uneasy. I had no intention of shooting the elephant — I had merely sent for the rifle to defend myself if necessary — and it is always unnerving to have a crowd following you. I marched down the hill, looking and feeling a fool, with the rifle over my shoulder and an ever-growing army of people jostling at my heels. At the bottom, when you got away from the huts, there was a metalled road and beyond that a miry waste of paddy fields a thousand yards across, not yet ploughed but soggy from the first rains and dotted with coarse grass. The elephant was standing eight yards from the road, his left side towards us. He took not the slightest notice of the crowd's approach. He was tearing up bunches of grass, beating them against his knees to clean them and stuffing them into his mouth.I had halted on the road. As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant — it is comparable to destroying a huge and costly piece of machinery — and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow. I thought then and I think now that his attack of ‘must’ was already passing off; in which case he would merely wander harmlessly about until the mahout came back and caught him. Moreover, I did not in the least want to shoot him. I decided that I would watch him for a little while to make sure that he did not turn savage again, and then go home.But at that moment I glanced round at the crowd that had followed me. It was an immense crowd, two thousand at the least and growing every minute. It blocked the road for a long distance on either side. I looked at the sea of yellow faces above the garish clothes-faces all happy and excited over this bit of fun, all certain that the elephant was going to be shot. They were watching me as they would watch a conjurer about to perform a trick. They did not like me, but with the magical rifle in my hands I was momentarily worth watching. And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly. And it was at this moment, as I stood there with the rifle in my hands, that I first grasped the hollowness, the futility of the white man's dominion in the East. Here was I, the white man with his gun, standing in front of the unarmed native crowd — seemingly the leading actor of the piece; but in reality I was only an absurd puppet pushed to and fro by the will of those yellow faces behind. I perceived in this moment that when the white man turns tyrant it is his own freedom that he destroys. He becomes a sort of hollow, posing dummy, the conventionalized figure of a sahib. For it is the condition of his rule that he shall spend his life in trying to impress the ‘natives’, and so in every crisis he has got to do what the ‘natives’ expect of him. He wears a mask, and his face grows to fit it. I had got to shoot the elephant. I had committed myself to doing it when I sent for the rifle. A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing — no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at.But I did not want to shoot the elephant. I watched him beating his bunch of grass against his knees, with that preoccupied grandmotherly air that elephants have. It seemed to me that it would be murder to shoot him. At that age I was not squeamish about killing animals, but I had never shot an elephant and never wanted to. (Somehow it always seems worse to kill a large animal.) Besides, there was the beast's owner to be considered. Alive, the elephant was worth at least a hundred pounds; dead, he would only be worth the value of his tusks, five pounds, possibly. But I had got to act quickly. I turned to some experienced-looking Burmans who had been there when we arrived, and asked them how the elephant had been behaving. They all said the same thing: he took no notice of you if you left him alone, but he might charge if you went too close to him.It was perfectly clear to me what I ought to do. I ought to walk up to within, say, twenty-five yards of the elephant and test his behavior. If he charged, I could shoot; if he took no notice of me, it would be safe to leave him until the mahout came back. But also I knew that I was going to do no such thing. I was a poor shot with a rifle and the ground was soft mud into which one would sink at every step. If the elephant charged and I missed him, I should have about as much chance as a toad under a steam-roller. But even then I was not thinking particularly of my own skin, only of the watchful yellow faces behind. For at that moment, with the crowd watching me, I was not afraid in the ordinary sense, as I would have been if I had been alone. A white man mustn't be frightened in front of ‘natives’; and so, in general, he isn't frightened. The sole thought in my mind was that if anything went wrong those two thousand Burmans would see me pursued, caught, trampled on and reduced to a grinning corpse like that Indian up the hill. And if that happened it was quite probable that some of them would laugh. That would never do.There was only one alternative. I shoved the cartridges into the magazine and lay down on the road to get a better aim. The crowd grew very still, and a deep, low, happy sigh, as of people who see the theatre curtain go up at last, breathed from innumerable throats. They were going to have their bit of fun after all. The rifle was a beautiful German thing with cross-hair sights. I did not then know that in shooting an elephant one would shoot to cut an imaginary bar running from ear-hole to ear-hole. I ought, therefore, as the elephant was sideways on, to have aimed straight at his ear-hole, actually I aimed several inches in front of this, thinking the brain would be further forward.When I pulled the trigger I did not hear the bang or feel the kick — one never does when a shot goes home — but I heard the devilish roar of glee that went up from the crowd. In that instant, in too short a time, one would have thought, even for the bullet to get there, a mysterious, terrible change had come over the elephant. He neither stirred nor fell, but every line of his body had altered. He looked suddenly stricken, shrunken, immensely old, as though the frightful impact of the bullet had paralysed him without knocking him down. At last, after what seemed a long time — it might have been five seconds, I dare say — he sagged flabbily to his knees. His mouth slobbered. An enormous senility seemed to have settled upon him. One could have imagined him thousands of years old. I fired again into the same spot. At the second shot he did not collapse but climbed with desperate slowness to his feet and stood weakly upright, with legs sagging and head drooping. I fired a third time. That was the shot that did for him. You could see the agony of it jolt his whole body and knock the last remnant of strength from his legs. But in falling he seemed for a moment to rise, for as his hind legs collapsed beneath him he seemed to tower upward like a huge rock toppling, his trunk reaching skyward like a tree. He trumpeted, for the first and only time. And then down he came, his belly towards me, with a crash that seemed to shake the ground even where I lay.I got up. The Burmans were already racing past me across the mud. It was obvious that the elephant would never rise again, but he was not dead. He was breathing very rhythmically with long rattling gasps, his great mound of a side painfully rising and falling. His mouth was wide open — I could see far down into caverns of pale pink throat. I waited a long time for him to die, but his breathing did not weaken. Finally I fired my two remaining shots into the spot where I thought his heart must be. The thick blood welled out of him like red velvet, but still he did not die. His body did not even jerk when the shots hit him, the tortured breathing continued without a pause. He was dying, very slowly and in great agony, but in some world remote from me where not even a bullet could damage him further. I felt that I had got to put an end to that dreadful noise. It seemed dreadful to see the great beast Lying there, powerless to move and yet powerless to die, and not even to be able to finish him. I sent back for my small rifle and poured shot after shot into his heart and down his throat. They seemed to make no impression. The tortured gasps continued as steadily as the ticking of a clock.In the end I could not stand it any longer and went away. I heard later that it took him half an hour to die. Burmans were bringing dash and baskets even before I left, and I was told they had stripped his body almost to the bones by the afternoon.Afterwards, of course, there were endless discussions about the shooting of the elephant. The owner was furious, but he was only an Indian and could do nothing. Besides, legally I had done the right thing, for a mad elephant has to be killed, like a mad dog, if its owner fails to control it. Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. Criminal justice reform efforts ignore culture and ideology by portraying miscarriages of justice as “accidents” when in reality they are features of the system. Perceived inevitability of the existing legal order is a disciplinary tactic Doyle, JD/LLM, 16(James M., Of Counsel, Bassil, Klovee, & Budreau, ORWELL'S ELEPHANT AND THE ETIOLOGY OF WRONGFUL CONVICTIONS Albany Law Review 2015 / 2016 Albany Law Review 79 Alb. L. Rev. 895)Criminal justice reform is having its moment. The gatekeepers around the public square - the editors, the publishers, the producers, the bloggers, and the "most-followed" social media posters - have decided to grant criminal justice issues some attention. In the accompanying wave of punditry familiar facts are treated as discoveries. The system's impacts are racially biased. n2 The innocent are often convicted. n3 Unwarranted law enforcement violence is common. n4 Legions of unnecessary prisoners fill our prisons. n5 Chronic mental illness has been effectively criminalized. n6 [*896] This media moment will fade; these media moments always do fade. Can something useful be left behind? The criminal justice system is a target-rich environment for empirical study. Many factors await data-oriented examination in (and around) our courtrooms, and it seems natural to seize this opening to mobilize evidence-based inquiries analyzing a range of specific questions. As Michael Jacobson has noted, criminal justice policy is "a field that over the last several decades has been almost immune to evidence and knowledge in the face of its overwhelming politicization." n7 Perhaps in this new atmosphere we are ready to learn the lessons that the data teach. Still, any exclusively data-oriented approach to wrongful convictions will face challenges as a remedial tool where preventing wrongful convictions is concerned. No individual evidence-based exploration of the criminal justice system is likely to minimize the frequency of miscarriages of justice unless it takes place within a general etiology of wrongful conviction that recognizes the reciprocal impacts of the system's components - including its human components - on each other, and the impact on those system components of their surrounding environment. The potential implications of that general etiology - that is, of the manner of causation of criminal justice system errors - are overlooked issues. A version of such an etiology is available for adaptation. n8 Safety experts in aviation, medicine, and other high-risk fields would argue that, like the Challenger launch decision, n9 a "wrong patient" surgery, n10 or the Chernobyl meltdown, n11 wrongful convictions are [*897] system n12 errors: "organizational accidents." n13 In this conception, miscarriages of justice are not single-cause events but, rather, result from discrete, small mistakes, none of which is independently sufficient to cause the harm that combine with each other and with latent system weaknesses, and only then cause a tragedy. Miscarriages of justice can never be fully explained by the failures of a single component or a lone operator. The right answer to the question "Who was responsible for this wrongful conviction?" is usually "Everyone involved, to one degree or another," either by making an error or by failing to anticipate or intercept someone else's error. In this view "everyone" includes actors far from the scene of the event who set the budgets, did the hiring, wrote the laws, developed the jurisprudence, and designed the incentives for the apparent culprits on the frontlines. "Everyone" includes those who created the environment in which the sharp-end actors operated. "Everyone" even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others. The hardest case for this approach is presented by the recurrent situation in which the miscarriage of justice seems to have resulted from a moral failure - often a spectacular one - on the part of an individual criminal justice actor. Even people who accept the organizational accident explanation as a general theory resist applying it to those events. For example, when a prosecutor hides exculpatory Brady n14 material, that act is a proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. n15 Disciplining the individual actor seems to be both a sufficient response and an emergency. To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded: to generate bogus extenuation where all that is required is a plain statement of culpability. The assumption, "Good man, good result," once formed the basis [*898] of medicine's attitude towards its own tragic failures. n16 Even now it characterizes much of the commentary on wrongful convictions. n17 A similar dependence on good men, n18 and therefore on reform strategies focused on the discovery, denunciation, and excision of the bad men, characterizes criminal justice reform discourse. n19 But if wrongful convictions are "organizational accidents," can disciplining and punishing an individual be enough to reduce future risk? Can we punish our way to safe verdicts? Is there a way to balance accountability for misconduct and the non-blaming, "forward-looking accountability" n20 we need in order to minimize future risk? Should we be searching for a new practice rather than a new structure? Can we develop a vehicle for holding the data-rich statistical findings and the complex individual narratives in permanent productive tension? I. A famous essay of George Orwell's, "Shooting an Elephant," focuses on an individual's moral failure: on the bad choice of an actor who zigged when he should have zagged, and who fully understood that he was doing the wrong thing as he acted. n21 Orwell's narrative might illuminate an issue implicit in the organizational accident etiology of error: is the challenge presented by wrongful convictions one best approached as protecting a presumptively safe system from amoral and incompetent people, or one of repairing an inherently vulnerable system that necessarily relies on ordinary human beings? George Orwell has been regarded as the quintessential "good man" for over half a century. To V.S. Pritchett, Orwell was "the [*899] wintry conscience of a generation." n22 Robert Conquest, the historian of Stalin's purges, n23 described Orwell as "[a] moral genius." n24 In 1922, at the age of nineteen, at loose ends after leaving Eton, and unlikely to obtain a university scholarship, Orwell passed the necessary examinations and followed his father into imperial service: in Orwell's case, into the Burma Police. n25 Reflecting on that experience he produced "Shooting an Elephant," n26 first published in New Writing in 1936. n27 "In Moulmein, in Lower Burma, I was hated by large numbers of people - the only time in my life that I have been important enough for this to happen to me," Orwell begins. n28 In an aimless, petty kind of way anti-European feeling was very bitter... . As a police officer I was an obvious target and was baited whenever it seemed safe to do so... . In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. n29 By the time of the incident he describes, Orwell had "made up [his] mind that imperialism was an evil thing and the sooner [he quit his] job ... the better." n30 "Theoretically - and secretly, of course - [he] was all for the Burmese and all against their [*900] oppressors, the British." n31 But that didn't mean Orwell's immediate situation was simple. As he explains in the essay: All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny ... with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. n32 In this state of mind Orwell is called out to deal with a rampaging elephant: a working animal that has been maddened by "must" (heat), broken its chain, and eluded its keeper. n33 Arming himself and arriving in the quarter where the elephant had been destroying everything within reach, Orwell "failed to get any definite information ... . In the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." n34 But soon he is told that the elephant has trampled an Indian coolie to death, and he is shown the corpse. n35 Followed by a growing crowd of Burmese, Orwell tracks the animal down. n36 As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant - it is comparable to destroying a huge and costly piece of machinery - and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow... . Moreover, I did not in the least want to shoot him. n37 But at that moment Orwell looks around at the Burmese who had followed him: a crowd of "two thousand" people and "growing," all - according to Orwell - "happy and excited over this bit of fun, all certain that the elephant was going to be shot." n38 This was a turning point: "And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to [*901] do it; I could feel their two thousand wills pressing me forward, irresistibly." n39 In Orwell's recounting, he zigged when he knew he should have zagged because his role required it: A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing - no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at. n40 Orwell shoots the elephant. n41 Unable to endure the sight of the animal's agonized death throes, Orwell leaves the scene while the elephant is still alive. n42 Later he learns that its body has been stripped to the bone, and that: Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. n43 In the end, the opinions of the Europeans, back in the Club, were what mattered to young Orwell. n44 II. John Thompson was convicted of murder in New Orleans in 1985. n45 After a trial where he opted not to testify, Thompson was sentenced to death and spent the next eighteen years in prison, [*902] fourteen of them on death row. n46 A few weeks before Thompson's scheduled execution in 1999, a defense investigator learned that a cancer-stricken member of the prosecution team had confessed on his deathbed to having withheld crime lab results from the defense, as well as removing a blood sample from the evidence room. n47 In addition, Thompson's defense learned that the New Orleans district attorney's office had failed to disclose that Thompson had been implicated in the murder by a person who received a reward from the victim's family, and that an eyewitness identification did not match Thompson. n48 Thompson's conviction was overturned on appeal. n49 On retrial, a jury exonerated Thompson in thirty-five minutes. n50 Reviewing Thompson's experience with Orwell's in mind suggests that the problem we face is neither people, nor systems, but, rather, people in systems. The rule that prosecutors must turn over exculpatory evidence material to guilt or punishment to defense counsel is a "best practice" that the Supreme Court held in Brady v. Maryland is also a minimum requirement of the Constitution. n51 As Thompson indicates, it is a "best practice" that is not reliably followed. n52 According to at least one noted federal judge, violations of the Brady rule are "epidemic." n53 We tend to think of the Brady violation cases as uncomplicated events: a prosecutor, driven by an excess of the All-American will to win, n54 is encouraged to go too far by the apparently total absence of [*903] accountability, and conceals exculpatory evidence. As Marvin Schechter, chairman of the criminal justice section of the New York State Bar Association and a defense attorney put it: "Prosecutors engage in misconduct because they know they can get away with it." n55 Introducing the credible threat of punishment seems to be the simple answer to this simple problem. n56 But the Brady (and other misconduct) cases are, like the episode in Shooting an Elephant, more complicated. Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream failure by the defenders to uncover the Brady violation or to compensate for its impact, n57 much remains to be explained about the prosecutors' actions. What if the Brady cases involve a problematic - but not abnormal - prosecutor who makes a faulty decision while playing, under intense pressure, the hand he has been dealt by others? What if the problem is not the will to win, but the fear of losing and exposure; not the absence of accountability, but the distorting power of a peculiarly intense, all-embracing, and acutely local accountability that eclipses well-known general constitutional norms? Safety experts in aviation, medicine, and other high risk fields find that these questions indicate that we should pivot from our focus on writing new rules - and punishing the violations of old ones - to a new focus on developing a culture of safety that has reducing future risk through continuous, collaborative, quality improvement as its goal. n58 No system can survive without sanctions for its conscious rule [*904] breakers, and advocates for "non-blaming" approaches to accountability must keep that reality in mind. n59 Still, it ought to be possible to see the young Orwells in the criminal system as potential resources, not exclusively as dangerous toxins. The most productive question could be not why prosecutors believe they can get away with cheating, but why they feel any desire to cheat in the first place. The question that the Thompson narrative raises is not whether the choices of either the District Attorney's office as an agency or the individual frontline prosecutors who hid the evidence were wrong. n60 Of course those choices were wrong. The real question is why did the mistaken choices seem to the agency and to the individuals to be good choices at the time? Or, at least, why did the mistaken choices seem from their perspectives to be the only, or "least bad" choices available. Exculpatory evidence has to be turned over. n61 Why didn't the prosecutors know this? (In fact, as the deathbed confession indicates, at least one did know it.) n62 Why, knowing that withholding the evidence was wrong (as fully as Orwell knew shooting his elephant was wrong) did they decide not to act as the Brady rule required? Safety experts reviewing "operator error" events believe that the operators' choices may have been mistaken, may have violated rules - may even have been immoral - but they were locally rational. n63 They promised to solve, at least for a moment, a pressing local problem, and the same choices will seem rational to the operators who next face the same problems unless their circumstances are changed. To understand why this can happen in a Brady exoneration case it is not enough to go "down and in" to find the broken procedural component or the rogue Assistant District Attorney. The problem [*905] cannot be fully encompassed within the character of any individual prosecutor. That prosecutor is reacting to the conventional demands within his office. And his office is reacting to pressures from the larger society. What we see in the Brady exoneration cases are choices typical of organizations and individuals reacting to the compelling pressure to provide outputs under conditions of resource scarcity. It may be disappointing but it should not be shocking that prosecutors in the wrongful conviction cases, like workers in many production processes, adopted a "covert work system." n64 They decided to evade well-known formal disclosure requirements and buried alternative narratives because they believed sharing the exculpatory facts would interfere with achieving the "real" production goals assigned to them by people to whom they were accountable, namely, superiors who demand "outputs" in the form of convictions, and, therefore, to the unpredictable lay jurors, who will require persuasion before those "outputs" can be generated. n65 Were the prosecutors so starved of resources by the city or state that they felt they could not successfully prosecute guilty violent offenders by following the rules? Had their caseloads crept up to a level where competent, thorough practice seemed impossible? Did they feel that they were so swamped that they needed to bluff Thompson into a guilty plea by withholding the evidence that might have demonstrated his innocence? n66 Did supervisory oversight slacken for the same reasons? Did tunnel vision and other cognitive biases set in? n67 Did the prosecutors feel acutely vulnerable to irresponsible media or political pressure? Or did the prosecutors believe that the police department was so under-resourced or ill-managed that no prosecutors could ever convict anyone, no matter [*906] how guilty, if they dutifully played the woeful cards the police dealt them? Were they right about that? Did the see-no-evil attitude of local trial judges and the vulnerability of overwhelmed appointed defenders encourage them? Had the prosecutors moved by small increments down the inculpatory-to-exculpatory spectrum over the years, withholding progressively more exculpatory material but seeing no negative local impacts (such as exonerations) from doing so? n68 Did they learn to tolerate ever-widening margins of error in making guilt/ innocence judgments? Had deviation from the Brady rule been "normalized"? n69 It is common to speak of the prosecutors' offices as "black boxes," a reference to their characteristic absence of transparency. n70 But it is important to remember that within that black box local norms are well-known and conveyed with great force. n71 Young prosecutors learn very early their local version of "[a] sahib has got to act like a sahib." n72 The prosecutors who figured in the high profile Brady-driven exoneration cases are not lone wolf outcasts in their offices; typically, they are the rising local stars n73 who had successfully managed the conflicts between the formal legal rules and their office culture and have been rewarded with progressively more visible and important case assignments. The prosecutors feel intensely accountable to the role requirements imposed by the [*907] culture n74 within their office. Inevitably, some prosecutors will do what workers in other fields do when confronted by the end-of-process inspections. (In this case, the inspection is provided by adversary trials.) They will develop "workarounds" that allow them to get on with their "real" job, n75 no matter what the formal rules instituted by the Supreme Court at 30,000 feet (or the Board of Bar Overseers at 10,000) require. n76 As Barbara O'Brien has demonstrated, these prosecutors, driven by criteria of outputs (not processes) and persuasion (not comprehension) find themselves in a cognitive position that degrades not only their willingness to turn over Brady material, but their ability to recognize it. n77 A Brady violation seen from this perspective is a mundane workaround; a well-traveled shortcut through a thicket of rules that if meticulously followed would frustrate the attainment of "higher" goals. n78 In fact, within the prosecutors' "black box" familiarity with these workarounds begins to seem to be the essence of veteran workmanship and professionalism. n79 Impose an improved rule without changing either the internal culture or the external demands on that culture and that new rule will be under immediate attack from its environment: new workarounds will be generated very quickly. Encapsulation in a local black box dilutes the deterrent efficacy of punitive gestures applied to other prosecutors outside the local world. n80 The disciplining of a prosecutor in Texas will have limited impact on the conduct of prosecutors in Philadelphia. The informal sanctions for violating the local "covert work rules" and then losing a trial as a consequence are immediate, personal, and public: enforced by the people in the next office. Any official sanction for withholding Brady material is - and will remain even if some novel enthusiasm for disciplining prosecutors gradually takes hold in [*908] scattered jurisdictions - theoretical. n81 Punishment is necessarily contingent on your concealment being discovered by an actually innocent defendant who insisted on a trial, an eventual official finding that the particular defendant really was innocent, that the withheld evidence was "material," and that your violation was knowing. n82 For all of the reasons that disciplinary actions against prosecutors have not become normal (to put it mildly) up until now, some skepticism about the likelihood of their multiplying any time soon is in order. III. We admire George Orwell because of his willingness to subject his own beliefs and actions to unsparing critical examination: a rare quality. This capacity of Orwell's is on full display in "Shooting an Elephant," but that essay also illuminates the limits of even Orwell's very rigorous introspective scrutiny. By focusing on his own experience and canvassing the "within-silo" reactions of his European peers while ignoring the Burmese community he was assigned to serve, Orwell misses the fundamental question underlying his choice: that is, whether it was ever sane to shoot the harmless elephant on the basis of an assumption that, "the people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly." n83 In fact, the first of the Five Precepts accepted by most strains of Buddhism is a requirement to abstain from killing either humans or animals. n84 Orwell's Buddhist crowd likely never wished to see the elephant killed, and believed the killing was wrong. The members of the crowd would not have killed the elephant, or would have been ashamed if they had killed it. But the Buddhist crowd may well have expected Orwell - or any sahib - to do something violent and stupid, and that is exactly what Orwell did, by his own account. By living down to Burmese [*909] expectations Orwell actually undermined the legitimacy of the British colonial rule he believed he was (reluctantly) acting to bolster. He showed (or confirmed) that the best that Burmese could anticipate from the British was the destructive, uncomprehending, exercise of raw power. Like Orwell and his colleagues, young frontline prosecutors in the United States operate in environments devised for them by others, and it is dangerous to ignore the fact that it is the larger American society, not the local district attorney's office, that has contrived a socially constructed reality in which a recognizably colonialist vision of the inner city exerts steady pressure on its frontline criminal justice actors. n85 The unwavering conventions of the news and entertainment media have turned the American inner city - especially the African-American inner city and the criminal justice system - into permanent Elsewheres: places where ordinary white Americans never go, largely because they feel supremely confident of what they would find if they did go. n86 Practitioners who take jobs in this distant zone share with Orwell's peers a rhetoric of isolation, service, sacrifice, burden-bearing. Both groups chose careers that "promised early autonomy in exotic surroundings." n87 Their autobiographical writings recount a disorienting plunge into a world where they struggle to find a role for the values in which they were raised. n88 Similar to the young colonial officers who were thrown into strange and foreign surroundings, a young lawyer's professional life begins "alone, ignorant, and responsible." n89 Isolation and vulnerability plague the functionaries in the courthouses - not unlike Orwell's [*910] "Kipling-haunted little clubs" n90 - and they are menaced by locals and policy-makers, by editorial boards back home or "downtown," who can wreck careers from the safety of their office desks. They feel constrained by wild legalities and utopian standards: "Young Assistant District Attorneys, like young Assistant District Commissioners in the old empires, hurriedly seize, then vehemently defend, a conventional wisdom as protection against these threats." n91 They adopt a "professional code" that sees an environment in which people are divided into collectives. n92 Indeed, instead of seeing individuals, they often see "races, types, and colors" instead. n93 Facing defendants, defenders, even (sometimes) witnesses, and communities, they gradually embrace a "rigidly binomial opposition of "ours' and "theirs.'" n94 A defendant such as John Thompson seems, as did an individual Burmese to Orwell, a featureless face in an anonymous crowd of "them." As William Stuntz put it: One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. n95 In other words, the mental world of our criminal justice practitioners has come to have something in common with that of the White Man whom Kipling extolled and Orwell exemplified. It is not a question of race. In the criminal justice system, there are whites who are not White Men, and African-Americans (and women) who are. n96 Despite the overwhelming statistical evidence of imbalance in the system's treatment of the races, its White Men in deny any racist intent. n97 Very few would ever sign on to an [*911] explicitly racist project, and most read the aggregated figures indicating wildly disparate results for the races with bewilderment and dismay: this is not what they intended. But as Edward Said observed of Orwell's imperial generation: "being a White Man was ... an idea and a reality. It involved a reasoned position towards both the white and the non-white worlds. It meant ... speaking in a certain way, behaving according to a code of regulations, and even feeling certain things and not others." n98 In the criminal justice system, as on the frontiers of empire, something like this "impersonal communal idea of being a White Man rule[s;]" it becomes "a very concrete manner of being-in-the-world, a way of taking hold of reality, language, and thought." n99 This is not a situation that frontline criminal justice practitioners can easily remedy by themselves. It is not obvious that statistical studies of their "outputs" or checklists generated from those studies will remedy it for them either. n100 This is not a situation that more training about, or tinkering with, the Brady rule will resolve. n101 The problem does not lie in our having no rule, or in the nature of the existing rule; it lies in persuading people that personally following the rule is a crucial element of their individual responsibility for a just collective outcome. This looming environment generates perpetual pressure to clear the docket and produce convictions, as well as accelerates the routine dehumanization of the people whose lives the practitioners impact so powerfully. n102 The reduction of defendants, victims, and communities into faceless crowds can allow the practice of mass incarceration to run very smoothly. n103 As bad as its consequences are in the spectacular capital felony exonerations that make news, they may be even worse in the submerged street crime dockets, where factual accuracy is treated as largely irrelevant, guilty pleas are the rule, and thousands of black lives are taken on the [*912] installment plan. n104 Orwell's experience is replayed constantly not only in the courtrooms, but also on the streets, where people, not tame elephants, pay the price. On the streets it is enacted in humiliating stops and frisks; sometimes in fatal violence. n105 Exiling or punishing one erring practitioner, or even a string of erring practitioners, will not change this environment, and the environment will envelope the next practitioner who comes along. This system is in crisis and desperately needs reform, but not because of an explicitly racist ideology. Throughout the system, in many roles, thousands of beleaguered young Orwells are trying to get through their days, doing what they believe is expected of them, with the tools at hand, oblivious to the appalling collateral damage they are inflicting. n106 The lesson that Orwell might have learned by seeking the perspective of the Burmese in his review of his action resonates with the lesson William Stuntz urged us to learn in the final paragraph of his magisterial The Collapse of American Criminal Justice: The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals' neighborhoods. Neither side of this divide is "them." Both sides are us. Democracy and justice alike depend on getting that most basic principle of human relations right. n107 The question is whether by recognizing a deeper etiology of wrongful convictions we might move in that direction. [*913] IV. If it is true as a matter of fundamental etiology that even so seemingly simple an event as a wrongful conviction after a Brady violation is actually a complex "organizational accident" implicating many contributing factors that ultimately combined and cascaded, we are in a position to capitalize on an insight mobilized by Donald Berwick, one of the pioneers of the modern patient safety movement: n108 "Every defect is a treasure." n109 The basic manner of causation of wrongful convictions argues that we should amend our standard criminal justice response to disasters, and say when one occurs, "Something to see here: don't move along." n110 The recognition that there is something to be learned from past criminal justice events has begun to gather some momentum. The National Institute of Justice, borrowing a phrase n111 from the Joint Commission on Hospital Accreditation, has launched a Sentinel Events Initiative n112 that attempts to promote the exploration of non-blaming, all-stakeholders reviews of wrongful convictions, wrongful releases, "near misses" and other meaningful incidents. n113 The National Commission on Forensic Science has recommended "Root Cause Analysis" as a standard practice in forensic laboratory error reviews. n114 The Presidential Task Force on 21st Century Policing [*914] has recommended the practice of Sentinel Event Reviews of critical events. n115 These efforts share a determination to move beyond performance reviews of individuals (including searches for "bad apples") to press for system-oriented event analyses. n116 This approach aims to avoid the tendencies of the "bad apple" disciplinary review or civil lawsuit to drive reports of significant events underground and to narrow the lense to scrutinize only the conduct of a lone individual rather than the system's various contributing weaknesses. n117 It accepts the fact that a full understanding of what went wrong is (to at least a degree) dependent on the insights from the perspective of the "second victim;" n118 for example, the nurse who was the last in the chain that delivered a fatal medication dose, or the defense lawyer who failed to intercept the Brady violation in a wrongful conviction [*915] case, or even - however much it may rankle - a prosecutor who after having been seduced the by local office culture has contributed to a Brady exoneration. The criminal justice system is an organization which, like many others, has a lot invested in its practitioners. As Sidney Dekker argues: Paying off the first victim and sending off the second denies the humanity and reality of the relationship that existed between the two victims... . Where first victims are given the impression that their lives had been entrusted to a dispensable, disposable cog in the organizational machine, what does that say about the organization's own duty ethic in relation to its patients, passengers, clients? n119 The "second victim" focus is one particular example of a general principle of analysis more or less dictated by the organizational accident etiology of error; the need for the perspectives of all of those implicated in the event. As John Chisholm (the District Attorney of Milwaukee County, Wisconsin and a N.I.J. "Sentinel Event" participant) put it: Creating a better justice system requires us to expand our definition of the critical actors involved in any event, from citizens, police, corrections, pretrial services, public defenders and the defense bar, as well as prosecutors and judges. And we have to create a process where everyone feels empowered to speak the truth about his or her role in any given event. n120 Chisholm does not mean by this that he plans to turn the running of his office or the education of his assistants over to outsiders; nor should he: outsiders are not well-equipped for the task. n121 But he does recognize the value to him, and to all criminal justice system leaders, of a new feedback loop that can draw attention to system weaknesses and begin to prepare the way for cultural change. n122 The "all stakeholders" aspect of these reviews requires not only the participation of representatives of all agencies, but also of all ranks from within the implicated "silos." n123 Elements of the foot [*916] soldiers' working environment - for example, caseloads and resource shortages - that would be shrugged off as excuses or evasions in a disciplinary or tort proceeding can be given their deserved explanatory weight in these event reviews. n124 Moreover, the potential contributions of scholars and researchers from a variety of disciplines can be mobilized in these reviews to supplement the basic narratives with insights into the role that, for example, unconscious biases or census pressures may have played. The researchers will receive in return new challenges for empirical research of increased salience: the good questions that are at the heart of the research enterprise. And although we are most concerned with the problem of wrongful convictions, we should not ignore the fact that the universe of available lessons about the sources of wrongful conviction includes not only those learned from completed exonerations, but also others, gathered from "near misses," n125 and other "high frequency/low impact" events. But, perhaps most importantly, the "all-stakeholders" event reviews that the logic of the organizational accident etiology requires access to the perspective of community stakeholders. Among other things, a community presence may indicate that many "low impact" events - humiliating stops and frisks, pretrial detentions, misdemeanor processing and the collateral consequences of records - are not, for defendants, families, and communities the "low impact" practices that from the practitioners' perspective they seem to be. n126 Besides, "Shooting an Elephant" also illustrates why, although the perspectives of the young Orwells at the sharp end of the criminal system are indispensable to an understanding of an event, their professional accounts - even when these seem to be confessional accounts - are not sufficient if our aim is "forward-looking accountability." For all of Orwell's sincere contrition for his role in the imperial project, it is not clear that Orwell's version of this particular event can be trusted. Orwell had lived in Burma for some time and his father was a career imperial civil servant. n127 Orwell was a curious [*917] and intelligent man. Orwell probably knew very well that Buddhism abhors killing, but counted on his audience's ignorance of that fact when he enlisted "the will" of the crowd tactically as a motivator in order to mitigate, even partly obscure, his personal role. n128 If we rely solely on Orwell we will learn that imperialism was a bad thing and that one of its officers was acutely ashamed of his role. n129 We would still not know why Orwell's elephant was destroyed. n130 The presence of community stakeholders in the process can be a crucial guard against the influence of these blind spots in a review: an important tool for preventing reoccurrence. William Stuntz believed that: "the [criminal] justice system stopped working when a particular kind of local democracy - the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets - ceased to govern the ways police officers, prosecutors, and trial judges do their jobs." n131 It may be that the determined, routine practice of including community voices in the learning from error event reviews can begin to repair this situation, and to erode the Manichean separation of "Us" from "Them." It is very easy to sympathize with Joseph Margulies's statement that "reform proposals aimed at population-cutting rather [than] principle are dangerously incomplete," that, "halving the prison population is a laudable goal, but population-cutting initiatives mistake a symptom for [a cause]." n132 If our current reform tide recedes leaving only a drop in prison census behind, we can be pretty sure that the population will soon be replenished. Something more fundamental, something such as Margulies's call for the elevation of the three principles of human dignity, thriving communities, and fair government officials and processes n133 - something that emulates hospital medicine's paradigm shift toward a "culture of safety" n134 - is called for. [*918] Such a sweeping change in the world of American criminal justice cannot be imposed from the rarefied heights of the think tanks and law reviews; it must come from the bottom up. As John Griffith's observations about the early Twentieth Century's doomed attempt to impose a "Family Model" of juvenile justice on the "Battle Model" culture of criminal justice make clear, a culture change of this magnitude cannot be achieved by fiat. n135 The advantage of the practice of non-blaming, all-stakeholders event review is that it enlists the frontline practitioners in a collaborative review of processes, not only outcomes, and with researchers and community members participating as equals. In this process the map of the criminal justice process as it is appears in the vision comprised of statistical findings and the living criminal justice process as it appears in the narratives of the citizens and communities entangled in it are not simply complementary (although they are that) but dynamic and reciprocal. "Narrative," as Edward Said observed, writing about the colonial system that enmeshed Orwell, "asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change ... ." n136 We need the narratives of the Orwells, but also of the Burmese; of the prosecutors, police, defenders, and judges, but also of the exonerees, the crime survivors, the stopped and frisked, their families, and their communities. No "fix" is permanent. We need constantly to gather both narratives and statistical analyses and to take account of them in a continuous practice if we are going to create resilience and heal the system. Criminal justice practitioners have to learn to allow others to learn about our lives: to suffer the pain of being known along with the pleasure of knowing. n137 We also have to learn - as Orwell did, in his dogged, imperfect way - to be willing to risk discovering uncomfortable facts about ourselves.The AC buys into a theory of “constituent power”- this model assumes the state exercises rational, juridical control that can be challenged and overthrown by a legal revolution. But modern societies aren’t disciplinary, they are control based. Legal reform is simply a new mechanism of this control-it is a depoliticized and hollow form of resistance. Instead we need “destituent power”, a strategy that deposes the law permanently to open space for new modes of political engagement Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)You will probably know that Michel Foucault, in his book Surveiller et punir and in his courses at the Collège de France sketched a typological classification of modern States. He shows how the State of the Ancien regime, that he calls territorial or sovereign State and whose motto was faire mourir et laisser vivre, evolves progressively in a population State and in a disciplinary State, whose motto reverses now in faire vivre et laisser mourir, as it will take care of the citizens life in order to produce healthy, well-ordered and manageable bodies. The state in which we live now is no more a disciplinary State. Gilles Deleuze suggested to call it ?Etat de contr?le?, control State, because what it wants, is not to order and to impose discipline, but rather to manage and to control. Deleuze’s definition is correct, because management and control do not necessarily coincide with order and discipline. No one has told it so clearly as the Italian police officer, who, after the turmoil of Genoa in July 2001, declared that the government did not want that the police maintains order, but that it manages disorder. American politologists, who have tried to analyze the constitutional transformation involved in the Patriot Act and in the other laws which followed September 2001, prefer to speak of a Security State. But what does security here mean? It is during the French revolution that the notion of security — sureté, as they used to say — is linked to the definition of police. The laws of March 16, 1791 and August 11, 1792 introduce thus in the French legislation the notion of ?police de sureté? (security police), which was doomed to have a long history in modernity. If you read the debates which preceded the voting of these laws, you will see that police and security define one another, but no one among the speakers (Brissot, Heraut de Séchelle, Gensonné) is able to define police or security by themselves. The debates focused on the situation of the police with respect to justice and judicial power. Gensonné maintains that they are ?two separate and distinct powers?; yet, while the function of the judicial power is clear, it is impossible to define the role of the police. An analysis of the debate shows that the place and function of the police is undecidable and must remain undecidable, because, if it were really absorbed in the judicial power, police could no more exist. This is the discretionary power which still today defines the action of the police officer, who, in a concrete situation of danger for the public security, acts so to speak as a sovereign. But, even when he exerts this discretionary power, he does not really take a decision, nor prepares, as is usually stated, the judge’s decision. Every decision concerns the causes, while the police acts on effects, which are by definition undecidable. The name of this undecidable element is no more today, like it was in XVII century, ?raison d’Etat?, State reason: it is rather ?security reasons?. The Security State is a police State: but, again, in the juridical theory, the police is a kind of black hole. All we can say is that when the so called ?Science of the police? first appears in XVIII century, the ?police? is brought back to its etymology from the Greek ?politeia? and opposed as such to ?politics?. But it is surprising to see that Police coincides now with the true political function, while the term politics is reserved to the foreign policy. Thus Von Justi, in his treatise on Policey Wissenschaft, calls Politik the relationship of a State with other States, while he calls Polizei the relationship of a State with itself. It is worthwhile to reflect upon this definition: (I quote): ?Police is the relationship of a State with itself?. The hypothesis I would like to suggest here is that, placing itself under the sign of security, modern State has left the domain of politics to enter a no man’s land, whose geography and whose borders are still unknown. The Security State, whose name seems to refer to an absence of cares (securus from sine cura) should, on the contrary, make us worry about the dangers it involves for democracy, because in it political life has become impossible, while democracy means precisely the possibility of a political life. But I would like to conclude –or better to simply stop my lecture (in philosophy like in art, no conclusion is possible, you can only abandon your work) with something which, as far as I can see now, is perhaps the most urgent political problem. If the State we have in front of us is the Security State I described, we have to think anew the traditional strategies of political conflicts. What shall we do, what strategy shall we follow? The Security paradigm implies that each dissention, each more or less violent attempt to overthrow its order, become an opportunity to govern them in a profitable direction. This is evident in the dialectics which binds tightly together terrorism and State in an endless vicious spiral. Starting with French revolution, the political tradition of modernity has conceived of radical changes in the form of a revolutionary process that acts as the pouvoir constituant, the ?constituent power? of a new institutional order. I think that we have to abandon this paradigm and try to think something as a puissance destituante, a ?purely destituent power?, that cannot be captured in the spiral of security. It is a destituent power of this sort that Benjamin has in mind in his essay On the critique of violence when he tries to define a pure violence which could ?break the false dialectics of lawmaking violence and law-preserving violence?, an example of which is Sorel’s proletarian general strike. ?On the breaking of this cycle? he writes in the end of the essay ?maintained by mythic forms of law, on the destitution of law with all the forces on which it depends, finally therefore on the abolition of State power, a new historical epoch is founded?. While a constituent power destroys law only to recreate it in a new form, destituent power, in so far as it deposes once and for all the law, can open a really new historical epoch. To think such a purely destituent power is not an easy task. Benjamin wrote once that nothing is so anarchical as the bourgeois order. In the same sense, Pasolini in his last movie has one of the four Salò masters saying to their slaves: ?true anarchy is the anarchy of power?. It is precisely because power constitutes itself through the inclusion and the capture of anarchy and anomy, that it is so difficult to have an immediate access to these dimensions, it is so hard to think today something as a true anarchy or a true anomy. I think that a praxis which would succeed in exposing clearly the anarchy and the anomy captured in the Security government technologies could act as a purely destituent power. A really new political dimension becomes possible only when we grasp and depose the anarchy and the anomy of power. But this is not only a theoretical task: it means first of all the rediscovery of a form-of-life, the access to a new figure of that political life whose memory the Security State tries at any price to cancel.While the AC attempts to criticize the law, it does so within the confines of existing ideological investments and institutions, this is constituent power. Destutuency is a an active no: it rejects the terms of the 1AC in order to divest our political and affective investments that sustain this system. Bougtsy-Marshall, JD, 16(Skye, Climate Activist, “Flooding Wall Street: Echoes from the Future of Resistance around Climate Change,” Capitalism Nature Socialism Volume 27, 2016 - Issue 3, Pages 64-82, )The concept of destituent power (poder destituyente), on the other hand, originates from the Colectivo Situaciones’ (2011) analysis of the uprisings in Argentina on 19 and 20 December 2001. Destituent power exhibits potency similar to constituent power, but operates as a continual process of openended withdrawal from, or refusal of, the juridical, institutional order (Laudani 2013, 4). It functions completely outside the law – extrainstitutionally – seeking to dismantle sovereign, constituted power altogether rather than to reform it or overthrow it and then re-institute it in a different form. Destituent power undermines and erodes the obedience that is fundamental to and presupposed by the constituted order for its continued existence. However, destituent power is not a purely reactive or nihilistic force, but instead is creative – not in the sense of producing new institutions to replace the old, but through its deactivation of the legal order. This, in turn, opens new horizons of possibilities for egalitarian and holistic social and ecological relationships far exceeding what is practicable under the current destructive political order (Laudani 2013, xv, n. 23). Benjamin (1978, 300) also envisaged this immanent creative potential within destituent power as he attempted to identify a pure violence that could “break the false dialectics of lawmaking violence and law-preserving violence.” Following this line of reasoning, he argued that: [o]n the breaking of this cycle maintained by mythical forms of law, on the suspension [destitution] of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. Thus, although a constituent power destroys law only to re-institute it again in a new form (merely perpetuating the cycle), insofar as destituent power dismantles and deposes the law once for all, it can function to open onto the terrain of a new epoch characterized by radically new possibilities (Agamben 2014). In deposing the political order, destituent power opens becomings, enabling experimentation with new practices and the development of new knowledges that will, in turn, themselves be de-instituted in the continual and open-ended process unfolding (Colectivo Situaciones 2011, 64, 87). Constituent power’s direct confrontation with the state – through terrorism or revolution – simply reinforces the security apparatus and invites greater levels of repression. As destituent power, disobedience can be conceived not as a direct clash with constituted power but instead as the withdrawal of consent to the political order, as a direct negation of its legitimacy (Laudani 2013, 37). Early twentieth-century German anarchist Gustav Landauer (2010, 214) deployed a similar argument in maintaining that all social and political institutions depend for their existence on the choices of individuals to continue to give them their support, and, thus, removal of this support and constituting ourselves apart from these institutions, thereby rendering them redundant, is the key to dissolving them. Furthermore, Landauer extended this insight concerning the extent to which our obedient practices and behaviors serve as the basis of the state, arguing that “[t]he state is a condition, a certain relationship among human beings, a mode of behavior between men; we destroy it by contracting other relationships, by behaving differently toward one another” (qtd. in Lunn 1973, 226). This view of the basis of the power of the state and capitalism as sets of relations anticipates and finds consonance in the poststructuralist understanding of power articulated by Foucault (referenced above). The network of power relations forms a “dense web that passes through apparatuses and institutions, without being exactly localized in them” (Foucault 1978, 95). Thus, power is not like an object that is acquired or held, but rather it is exercised from innumerable points in a network of shifting relations. This understanding of social and political space as exhaustively comprised by a complex web of intersecting power relationships does not preclude particular lines and points in the network, like the state, from being bolder, so to speak, or more socially determinative than others; however, these points or lines do not act as a central locus from which the other lines emanate or through which they must pass (May 1995, 52–53). The state is not a “thing” exterior to us that can be seized and wielded by a dominant class or group without thereby merely reproducing the intricate network of power relations that manifests in exploitation, domination, irreducible forms of oppression (e.g. patriarchy, racism, heteronormativity, etc.), and deterioration of the biosphere. We are not controlled by a state or capital as institutions apart from us, set above or outside a “civil society,” but instead “we all govern each other through a complex web of capillary relations of power” (Day 2005, 124–125). This is not to say the state or capital are not real or do not have material effects, that the profane violence wrought by each and in tandem is an illusion, or that they can simply be wished away. Rather it is to reveal the critical foundation of their existence. Macropolitical practices or relations like the state and global capitalism are products of the manifold intersections and confluence of specific local, or micropolitical, practices, and must be understood and assayed on their basis. The intersecting local power relations and practices on which the macropolitical is founded cannot be subsumed and absorbed by the latter. This recognition is crucial to avoiding the theoretical and historical error of assuming that the destruction or replacement of dominating macropolitical arrangements will result in the dissolution of the composite power relations and the oppressive effects reflected in them. There remains a heterogeneity between micropolitical and macropolitical practices notwithstanding their entanglement through reflexive interplay and mutual supposition and reinforcement (May 1995, 99–100). Even as the relations comprising the state and global capital are traceable to and constituted by myriad local practices and power relationships, the macropolitical is not completely reducible to these local dynamics either. Rather it is an agglomeration of different lines in the network of mobile power relations that makes it more than the sum of its parts – not a mere mechanical transposition in scale of the local practices on which it is founded – but also not separate from the microrelations, from the confluence of micropolitical practices that constitute it and on which it depends for its functioning. In analyzing capitalism and the state form not as “things” but as particular sets of relations among subjects and the local practices yielded through the innumerable interactions of such relations, we can see how deactivating and reconceiving these relationships through the connection of experiments (even if initially small in scale) in the construction of alternative modes of social, political, and economic relations and organization can offer a way to avoid both the indefinite wait for the ripening of the moment for revolution to arrive – which, in aspiring to totalizing transformation through enacting a changing of the guard at the helm of the state, will leave unaddressed the underlying power relations – and the perpetuation of existing forms of domination by injecting energy into them anew through reformist demands (Day 2005, 16). To the extent that we continue to come to the state to mediate and redress our grievances, we remain circumscribed within the horizons of state logic. We perpetuate the set of relationships constitutive of the state each time we make claims or demands upon it for the conferral of recognition, inclusion, or gifts of heretofore denied rights. This is not necessarily to maintain that struggling for reforms can never be advantageous – perhaps to achieve short-term palliatives to mitigate the most severe depravities of capitalism – but it is to accentuate the consequences of this politics of demand that both provides the state system with positive energy which could be directed towards building alternatives, and serves to relegitimize and further sediment the set of social relationships constituting the dominant global political order. Armed with this conceptual lens for apprehending the manifold ways local power relations constitute macropolitical practices of the state and global capital, we can orient ourselves to evaluate the various molecular bonds, specific practices, psychic attachments, idealizations, investments of desire, modes of subjectification that traverse individuals, and the social order as specifically contributing to the macropolitical functioning of the state and capital or, in contrast, as eroding and undermining their operation, weaving different relationships that do not sustain those constituting capitalism and the state. Destituent power deposes the political order through withdrawing the vital energy and reconfiguring the social relationships and practices on which the system depends and which serve as its basis for perpetuation. If we are the state and capitalism and each is in all of us, then we must disentangle ourselves from this condition thereby creating openings in which we can begin to define ourselves through alternative relations (Day 2005, 188). The state and capitalism will persist only and as long as individuals continue to relinquish their autonomy to give their support to them, as their existence is sustained through psychic attachments to and codependency on their power, through the persistent acknowledgement and idealization of the dominant authority of each, and the local microrelations that crisscross the social body constituting these attachments, dependencies, and idealizations (Newman 2010, 42). Change will come through individuals withdrawing their collective support and deactivating at a micropolitical level the multifarious ways in which we are bound to the prevailing organization of power at the level of our social relationships and subjectivities. Thus, against the criticism that this approach of destituent power merely evinces an impotent allergy to state power, we can see we cannot reestablish a legal and political order without reproducing the subjectivities and power relations on which the former is predicated and from which the latter are derived in a dynamic relation of mutual codetermination. Some may also worry that embracing destituent power is naively unrealistic, that we need a legal and institutional order to functionally organize the social, especially at increasing geographic scales. While undoubtedly a critical challenge for the coming communities, this issue of administering complex systems is ultimately more a problem of imagination rather than logistics (though it is certainly that too). Destituent power pushes our collective imaginaries to develop approaches to organize political life that do not rely on establishing a legal and institutional order. Constituted power, wielding its law-preserving violence, functions as a machine for its own reproduction. Distancing itself from the historical and theoretical trappings of constituent power, destituent power operates ceaselessly to disperse power – for example, through developing mechanisms for rotating individuals who temporarily occupy a position of executing the communal will, or of “leading by obeying” (mandar obedeciendo), as with the Zapatistas or Aymaras in Bolivia – to prevent its accumulation, concentration, and reinstitutionalization (Zibechi 2010, 14–16). Drawing on these autonomous and indigenous communal forms can help us imagine modes of community that are non-institutional, non-legal, nonorganizational, in which the ostensibly distinct domains of the economic, social, political, cultural, etc. are not separated but woven together in the same field of the unfolding, indefinite communities-in-process. We do not yet know what a destituent body is capable of. The concept of destitution should be understood as a “positive no” rather than a pure negation, a “no” that in rejecting representation at once “produces a ‘self-changing’ affirmation that engenders new practices and modes of subjectification, from which the ‘no’ first derives its force” (Nowotny 2007). Destituent power dissolves sovereignty, institutions, and representation, thereby expanding “the field of the thinkable” as if manipulating an aperture (Colectivo Situaciones 2011, 53). The flight from the system does not carry with it a hegemonic, universal program for constructing new social and ecological relations in destituent territories, but will be a ceaseless process of experimentation with alternatives developed through recursive (re)negotiation of common social values using participatory democratic practices.(7-11)Depoliticization spreads annihilating value to life. The affirmative’s conception of free/unfree is based on the physical location of the prison which obscures the omnipresence state “indifference” Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)But the extreme step has been taken only in our days and it is still in the process of full realization. The development of new digital technologies, with optical scanners which can easily record not only finger prints but also the retina or the eye iris structure, biometrical apparatuses tend to move beyond the police stations and immigration offices and spread to everyday life. In many countries, the access to student’s restaurants or even to schools is controlled by a biometric apparatus on which the student just puts his hand. The European industries in this field, which are quickly growing, recommend that citizens get used to this kind of controls from their early youth. The phenomenon is really disturbing, because the European Commissions for the development of security (like the ESPR, European security research program) include among their permanent members the representatives of the big industries in the field, which are just armaments producers like Thales, Finmeccanica, EADS et BAE System, that have converted to the security business. It is easy to imagine the dangers represented by a power that could have at its disposal the unlimited biometric and genetic information of all its citizens. With such a power at hand, the extermination of the jews, which was undertaken on the basis of incomparably less efficient documentation, would have been total and incredibly swift. But I will not dwell on this important aspect of the security problem. The reflections I would like to share with you concern rather the transformation of political identity and of political relationships that are involved in security technologies. This transformation is so extreme, that we can legitimately ask not only if the society in which we live is still a democratic one, but also if this society can be still considered as political. Christian Meier has shown how in fifth century a transformation of the political conceptuality took place in Athens, which was grounded on what he calls a “politisation” (politisierung) of citizenship. While till that moment the fact of belonging to the polis was defined by a number of conditions and social status of different kind — for instance belonging to nobility or to a certain cultual community, to be peasant or merchant, member of a certain family etc — from now on citizenship became the main criterion of social identity. “The result was a specifically greek conception of citizenship, in which the fact that men had to behave as citizens found an institutional form. The belonging to economical or religious communities was removed to a secondary rank. The citizens of a democracy considered themselves as members of the polis, only in so far as they devoted themselves to a political life.Polis and politeia, city and citizenship constituted and defined one another. Citizenship became in that way a form of life, by means of which the polis constituted itself in a domain clearly distinct from the oikos, the house. Politics became therefore a free public space as such opposed to the private space, which was the reign of necessity”. According to Meier, this specifically greek process of politisation was transmitted to western politics, where citizenship remained the decisive element. The hypothesis I would like to propose to you is that this fundamental political factor has entered an irrevocable process that we can only define as a process of increasing depolitisation. What was in the beginning a way of living , an essentially and irreducibly active condition, has now become a purely passive juridical status, in which action and inaction, the private and the public are progressively blurred and become indistinguishable. This process of depolitisation of citizenship is so evident, that I will not dwell on it. I will rather try to show how the paradigm of security and the security apparatuses have played a decisive role in this process. The growing extension to citizens of technologies which were conceived for criminals has inevitably consequences on the political identity of the citizen. For the first time in the history of humanity, identity is no longer a function of the social personality and its recognition by others, but rather a function of biological data, which cannot bear any relation to it, like the arabesques of the fingerprints or the disposition of the genes in the double helix of DNA. The most neutral and private thing becomes the decisive factor of social identity, which lose therefore its public character. If my identity is now determined by biological facts, that in no way depends on my will and over which I have no control, then the construction of something like a political and ethical identity becomes problematic. What relationship can I establish with my fingerprints or my genetic code? The new identity is an identity without the person, as it were, in which the space of politics and ethics loses its sense and must be thought again from the ground up. While the greek citizen was defined through the opposition between the private and the public, the oikos , which is the place of reproductive life, and the polis, place of political action, the modern citizen seems rather to move in a zone of indifference between the private and the public, or , to quote Hobbes terms, the physical and the political body. The materialization in space of this zone of indifference is the video surveillance of the streets and the squares of our cities. Here again an apparatus that had been conceived for the prisons has been extended to public places. But it is evident that a video recorded place is no more an agora and becomes a hybrid of public and private, a zone of indifference between the prison and the forum. This transformation of the political space is certainly a complex phenomenon, that involves a multiplicity of causes, and among them the birth of biopower holds a special place. The primacy of the biological identity over the political identity is certainly linked to the politicization of bare life in modern states. But one should never forget that the leveling of social identity on body identity begun with the attempt to identify the recidivist criminals. We should not be astonished if today the normal relationship between the state and its citizens is defined by suspicion, police filing and control. The unspoken principle which rules our society can be stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a principle? Can we still define it as democratic State? Can we even consider it as being something political? In which kind of State do we live today?Constituent thought is the scaffolding that enables modern violence. Violence is no longer war between states but a war on distinctions themselves- war/peace, guilty/innocent are roadbumps on the way to total annihilation. Only a destitutent strategy offers a way out of unending destruction Lazzarato and Alliez, PhDs, 16(Maurizio, researcher at Matisse/CNRS, Pantheon-Sorbonne University , Eric, professor at Universite Paris 8 and at the Centre for Research in Modern European Philosophy “To Our Enemies,” e-flux, Journal #78 - December 2016 )22. If the fall of the Wall delivered the death certificate of a mummy whose Communist prehistory ’68 made us forget, and if it is to be considered a nonevent (as the thesis of the End of History states in its melancholic way), the bloody fiasco of the imperial war machine’s first post-Communist wars made history. In part because of the debate that it started inside the military, where a new paradigm of war appeared. An antithesis of the industrial wars of the twentieth century, the new paradigm is defined as a “war amongst the population.” This concept, which inspired an improbable “military humanism,” is one we make our own by returning its meaning to the source and real terrain of wars of capital, and by rewriting this “war within the population” in the plural of our wars. The population is the battlefield in which counter-insurrectional operations of all kinds are underway. At the same time, and indistinguishably, they are both military and nonmilitary because they also carry the new identity of “bloody wars” and “non-bloody wars.” Under Fordism, the State not only guaranteed State territorialization of Capital but also of war. As a result, globalization cannot not free capital from State control without also freeing war, which passes to a superior power of continuity by integrating the plane of capital. Deterritorialized war is no longer inter-State war at all, but an uninterrupted succession of multiple wars against populations, definitively sending “governmentality” to the side of governance in a common enterprise of denial of global civil wars. What is governed and what allows governing are the divisions that project wars into the heart of the population at the level of the real content of biopolitics. A biopolitical governmentality of war as differential distribution of instability and norm of “daily life.” The complete opposite of the Great Narrative of the liberal birth of biopolitics taking place in a famous course at the Collège de France in the break between the 1970s and 1980s. 23. Accentuating divisions, aggravating the polarization of every capitalist society, the debt economy transforms “global civil war” (Schmitt, Arendt) into interconnected civil wars: class wars, neocolonialist wars on “minorities,” wars on women, wars of subjectivity. The matrix of these civil wars is the colonial war. Colonial war was never a war between States but, in essence, a war in and against the population, where the distinctions between war and peace, between combatants and noncombatants, between economy, politics, and military were never used. Colonial war in and against populations is the model of the war that financial Capital unleashed starting in the 1970s in the name of a neoliberalism of combat. Its war is both fractal and transversal: fractal, because it indefinitely produces its invariance by constant changes of scale (its “irregularity” and the “cracks” it introduces operate at different scales of reality); and transversal, because it is simultaneously deployed at the macropolitical level (by playing on all of the major binary oppositions: social classes, whites and nonwhites, men and women) and the micropolitical level (by molecular “engineering” privileging the highest interactions). It can also connect the civilian and military levels in the Global South and North, in the Souths and Norths of everyone (or almost everyone). Its first characteristic is therefore to be less indiscriminate war than irregular war. The war machine of capital which, in the early 1970s, definitively integrated the State, war, science, and technology, clearly declares the strategy of contemporary globalization: to bring to an end the very short history of reforming capital—Full Employment in a Free Society, according to the manifesto of Lord Beveridge published in 1944—by attacking everywhere and with all means available the conditions of reality of the power struggle that imposed it. An infernal creativity is deployed by the neoliberal political project in pretending to grant the “market” superhuman qualities of information processing: the market as the ultimate cyborg. 24. The newfound consistency of neofascisms starting with the financial “crisis” in 2008 represents a turning point in the waging of wars amongst populations. Their dimensions, both fractal and transversal, take on a new and formidable effectiveness in dividing and polarizing. The new fascisms challenge all of the resources of the “war machine,” because if the “war machine” is not necessarily identified with the State, it can also escape the control of Capital. While the war machine of Capital governs through an “inclusive” differentiation of property and wealth, the new fascist war machines function through exclusion based on racial, sexual, and national identity. The two logics seem incompatible. In reality, they inevitably converge (see “national preference”) as the state of economic and political emergency takes residence in the coercive time of global flow. If the capitalist machine continues to be wary of the new fascisms, it is not because of its democratic principles (Capital is ontologically antidemocratic!) or the rule of law, but because, as it happened with Nazism, post-fascism can claim its “autonomy” from the war machine of Capital and escape its control. Isn’t this exactly the same thing that has happened with Islamic fascisms? Trained, armed, and financed by the US, they turned their weapons against the superpower and its allies who had instrumentalized them. From the West to the lands of the Caliphate and back, the neo-Nazis of all allegiances embody the suicidal subjectivation of the capitalist “mode of destruction.” It is also the final scene of the return of the colonial repressed: the jihadists of generation 2.0 haunt Western cities like their most internal enemy. Endocolonization also becomes the generalized conjugation of “topical” violence of the most intense domination of capitalism over populations. As for the process of convergence or divergence between the capitalist and neofascist war machines, it will depend on the evolution of the civil wars now underway and the risks that a future revolutionary process could run for private property, and more generally for the power of Capital. 25. Prohibiting the reduction of Capital and capitalism to a system or a structure, and of the economy to a history of self-enclosed cycles, wars of class, race, sex, and subjectivity also challenge every principle of autonomy in science and technology, every highway to “complexity” or emancipation forged by the progressive (and now accelerationist) idea of the movement of History. Wars constantly inject the indeterminacy of conflict into open strategic relationships, making inoperable every mechanism of self-regulation (of the market) or every regulation by feedback (“man-machine systems” open their “complexity” to the future). The strategic “opening” of war is radically other than the systematic opening of cybernetics, which was not born in/of war for nothing. Capital is not structure or system; it is “machine” and war machine, of which the economy, politics, technology, the State, the media, and so forth are only the articulations informed by strategic relations. In the Marxist/Marxian definition of General Intellect, the war machine integrating science, technology, and communication into its functioning is curiously neglected for the sake of a hardly credible “communism of capital.” 26. Capital is not a mode of production without being at the same time a mode of destruction. The infinite accumulation that constantly moves its limits to recreate them again is at the same time unlimited, widespread destruction. The gains in productivity and gains of destructiveness progress in parallel. They manifest themselves in the generalized war that scientists prefer to call “Anthropocene” rather than “Capitalocene,” even if, in all evidence, the destruction of the environments in and through which we live does not begin with “humans” and their growing needs, but with Capital. The “ecological crisis” is not the result of a modernity and humanity blinded to the negative effects of technological development but the “fruit of the will” of some people to exercise absolute domination over other people through a global geopolitical strategy of unlimited exploitation of all human and nonhuman resources. Capitalism is not only the deadliest civilization in the history of humanity, the one that introduced us to the “shame of being human”; it is also the civilization through which labor, science, and technology have created—another (absolute) privilege in the history of humanity—the possibility of (absolute) annihilation of all species and the planet that houses them. In the meantime, the “complexity” of (saving) “nature” still offers the prospect of healthy profits combining the techno utopia of geoengineering and the reality of the new markets of “polluting rights.” At the confluence of one and the other, the Capitalocene does not send capitalism to the Moon (it has been there and back); it completes the global merchandizing of the planet by asserting its rights to the well-named troposphere. 27. The logic of Capital is the logistics of an infinite valuation. It implies the accumulation of a power that is not merely economic for the simple reason that it is complicated by strategic power and knowledge of the strength and weakness of the classes struggling, to which it is applied and with which they are in constant explanation. Foucault tells us that the Marxists turned their attention to the concept of “class” to the detriment of the concept of “struggle.” Knowledge of strategy is thus evacuated in favor of an alternative enterprise of pacification (Tronti offers the most epic version of this). Who is strong and who is weak? In what way did the strong become weak, and why did the weak become strong? How to strengthen oneself and weaken the other to dominate and exploit it? We propose to follow and reinvent the anticapitalist path of French Nietzscheism. 28. Capital came out the victor in the total wars and in the confrontation with global revolution, for which the number for us is 1968. Since then, it has gone from victory to victory, perfecting its self-cooled motor, where it verifies that the first function of power is to deny the existence of civil wars by erasing even the memory of them (pacification is a scorched earth policy). Walter Benjamin is there to remind us that reactivating the memory of the victories and defeats from which the victors take their domination can only come from the “defeated.” Problem: the “defeated” of ’68 threw out the bath water of civil wars with the old Leninist baby at the end of the “Hot Autumn” sealed by the failure of the dialectic of the “party of autonomy.” Entry into the “winter years” on the edge of a second Cold War that ensures the triumph of the “people of capitalism” (“‘People’s Capitalism’—This IS America!”), the End of History will take the relay without stopping at a Gulf War that “did not take place.” Except there is a constellation of new wars, revolutionary machines, or mutant militants (Chiapas, Birmingham, Seattle, Washington, Genoa …) and new defeats. The new writing generations describe “the missing people” dreaming of insomnia and destituent processes unfortunately reserved for their friends. 29. We will cut it short, in addressing our enemies. Because this text has no other object, under the economy and its “democracy,” behind the technological revolutions and “mass intellectuality” of the General Intellect, than to make heard the “rumble” of real wars now underway in all of their multiplicity. A multiplicity which is not to be made but unmade and remade to charge the “masses or flows,” which are doubly subjects, with new possibilities. On the side of relations of power as subject to war or/and on the side of strategic relationships that are capable of projecting them to the rank of subjects of wars, with “their mutations, their quanta of deterritorialization, their connections, their precipitations.” In short, it is a question of drawing the lessons from what seems to us like the failure of the thought of ’68 which we have inherited, even in our inability to think and construct a collective war machine equal to the civil war unleashed in the name of neoliberalism and the absolute primacy of the economy as exclusive policy of capital. Everything is taking place as if ’68 was unable to think all the way, not its defeat (there are, since the New Philosophers, professionals in the matter), but the warring order of reasons that broke its insistence through a continuous destruction, placed in the present infinitive of the struggles of “resistance.” 30. It is not a question, it is not at all a question of stopping resistance. It is a question of dropping a “theoricism” satisfied with a strategic discourse that is powerless in the face of what is happening. And what has happened to us. Because if the mechanisms of power are constitutive, to the detriment of strategic relationships and the wars taking place there, there can only be phenomena of “resistance” against them. With the success we all know. Graecia docet.Prefer negative evidence- sociolegal study proves incremental reform efforts like the AC are counterproductive- they reinforce tropes/assumptions that underly mass incarceration and the CJS Beckett, PhD, et al., 16(Katherine, Sociology@Washington, Anna Reositi, PhD Candidate, Emily Knaphus, PhD Candidate, The End of an Era? Understanding the Contradictions of Criminal Justice Reform The Annals of The American Academy of Political and Social Science March, 2016)There is, then, considerable evidence that the criminal justice zeitgeist is in flux and that meaningful criminal justice reform is under way. On the other hand, sociolegal scholarship provides ample reason to suspect that once created, mass incarceration may prove difficult to reverse, even with the enactment of meaningful reforms. There are several reasons for this. In some cases, reforms simply trigger adaptation by institutional actors. For example, following the Supreme Court's invalidation of vagrancy and loitering statutes, local authorities across the country created novel social control tools that enabled them to regulate the movement of the socially marginal but are comparatively difficult to challenge in the courts n2 (Beckett and Herbert 2010). Similarly, the Supreme Court's 1972 [*241] Furman v. Georgia decision--in which the Court determined that the administration of capital punishment violated several constitutional protections--triggered the widespread adoption of statutes authorizing the imposition of LWOP sentences. Because these statutes were not rescinded after the Court reinstated the death penalty in 1976, n3 the unintended consequence of the temporarily successful challenge to capital punishment was the spread of "the other death penalty" (Gottschalk 2012; McCann and Johnson 2009; Ogletree and Sarat 2012). Similarly, prison litigation efforts in Florida backfired when court orders to reduce overcrowding were (re)interpreted by political actors as mandates to build additional prisons rather than to reduce prison populations (Schoenfeld 2010). And as Petersilia and Cullen (2015, 12) note in their recounting of instances in which good intentions went awry, efforts to reduce prison populations through the adoption of intermediate sanctions in the early 1990s did not reduce prison populations, and in some cases actually increased them. These studies remind us that criminal justice reform may not unfold in a linear or unidirectional manner, and often has paradoxical consequences, in part because institutional dynamics may undercut or complicate criminal justice reform efforts. Indeed, as the vast literature on path dependence shows, developments such as mass incarceration create vested interests that seek to perpetuate favorable institutional arrangements. Path dependence refers to "the tendency for courses of political or social development to 'generate self-reinforcing processes'" (Pierson 2000, 810) that frustrate efforts to change direction. For example, the creation of Sweden's generous social welfare programs created a large population of public sector social service workers who were well suited (and motivated) to mobilize politically around policies that sustained or expanded the national welfare state (Pierson 2000, 810; see also Mahoney 2000). Similarly, institutions that have flourished as a result of mass incarceration often work to ensure its continued existence. For example, private corporations that own and operate prisons (or profit from them), prison officers' unions, the bail industry, and even county clerks often seek to block progressive criminal justice reform (Gottshalk 2015; Mason 2012; Page 2011a, 2011b; Petersilia and Cullen 2015). These policy fights may play out in relatively public ways, as efforts by the prison officers' union to prevent reform of California's "Three Strikes" law did (Page 2011a, 2011b). Organizations such as prison officer unions also make campaign donations, fund victims groups, and engage in effective public relations campaigns in pursuit of their political goals. Institutional developments such as mass incarceration thus create powerful institutions that may engage in overt policy battles to protect their interests. But efforts to blunt or reverse reforms may also take subtler and less visible forms (Beckett and Murakawa 2012; Hacker 2004). As sociolegal scholars have long emphasized, the exercise of legal discretion can create a notable gap between the "law on the books" and the "law in action" (Halliday et al. 2009; Silbey and Sarat 1987). Moreover, legal discretion is ubiquitous throughout the criminal justice process (Davis 2008). For example, police scholars have long noted that police organizations and officers possess significant discretion that shapes not only criminal justice outcomes but urban landscapes as well (Bittner 1967). Similarly, prosecutorial discretion is enormously consequential but notoriously difficult to [*242] monitor (Davis 2008; Stuntz 2011). And in states with in-determinant sentencing systems (in which judges impose open-ended sentences and parole boards determine actual release dates), parole boards also exercise substantial discretion and notably impact the amount of time inmates serve in prison (Gottshalk 2015). In short, institutional dynamics may undermine the impact of criminal justice reform efforts. But sociolegal scholarship also suggests that criminal justice reformers are also likely to encounter--and may even perpetuate--important cultural obstacles. Mass incarceration is a highly racialized phenomenon, one that both reflects and perpetuates racial stereotypes, especially the cultural association between blackness and criminality (Muhammad 2010). Indeed, rhetorical justifications for the wars on crime and drugs have relied heavily on racialized images and discourses (Alexander 2010; Beckett 1997; Provine 2007; Simon 2007); criminal justice institutions now serve, in part, as "race-making" institutions (Pager 2007). Institutional and political actors opposed to criminal justice reforms will therefore find a plethora of racially inflected images and discourses that may be effectively deployed in an effort to buttress antireform efforts. Moreover, there is reason to suspect that these racialized tropes and images will continue to resonate with large sectors of the public (Eberhardt and Goff 2005; Eberhardt et al. 2004). Indeed, recent studies suggest that white citizens actually become more supportive of "tough" criminal justice policies when they are informed that those policies disproportionately impact people of color (Hetey and Eberhardt 2014; see also Ghandnoosh 2014). In addition, as theorists ranging from Durkheim (1984) and Mead (1918) to Garfinkel (1956) and Goffman (1956) have emphasized, penal practices are inherently expressive and symbolic acts. The expressive dimension of penal rituals and the judgment, condemnation, and punishment of criminal offenders means that public discussions of penal practices are emotionally and morally loaded (Garland 1990). Discussions of crime and punishment, then, are intensely symbolic phenomena; crime talk generally, and reassertions of the need to punish "real criminals" and "predators," are highly subject to "symbolic politics" (Edelman 1985). For these reasons, policy-makers may feel compelled to reassert the moral boundaries that differentiate deserving citizens from "predators" and to reassure the public that they remain committed to the idea that "real criminals" must be aggressively punished--even as they embrace certain (limited) criminal justice reforms. Indeed, reformers themselves sometimes juxtapose the comparatively sympathetic target of their reform efforts--usually "nonviolent drug users"--with "serious and violent" criminals (see also Gottshalk 2015). One example of this kind of rhetoric comes from the I75 campaign that took place in Seattle in the early 2000s, in which reformers sought to deprioritize marijuana enforcement. In justifying this policy shift, reformers emphasized that the initiative would save scarce resources and "free our police and prosecutors--who are already over-worked and deserve our strong support--to concentrate on protecting us against serious and violent crime" (Licata et al. n.d.). Similarly, the U.S. Department of Justice's recent (2013) campaign for policies that are "smart on crime" highlights the need to ensure "just punishments" for "non-violent offenders"--implying, it would seem, that unjust punishments for people convicted of a violent offense are "smart" and acceptable. [*243] In short, as Seeds (2015) argues, the national discourse on crime and punishment may reflect a new, bifurcated way of thinking and talking about punishment that draws a sharp line between nonviolent and violent offenders and depicts the former as worthy of reform but the latter as deserving of even greater punishment. These observations lead us to suspect that neither the emergence of discourses associated with the "Right on Crime" and "Smart on Crime" campaigns, nor the recent adoption of drug and parole reforms, nor even the dramatic "realignment" of California's correctional populations, necessarily signal a comprehensive rethinking of the nature, scope, and intensity of U.S. penal practices. Instead, we explore the possibility that these developments may constitute a comparatively minor adjustment of the boundaries that delineate "real criminals" from more sympathetic others. Ironically, reformers may reaffirm the collective commitment to severely punishing those who remain firmly entrenched in the "real criminal" category even as they make the case for particular reforms. For these reasons, the enactment of drug and parole reforms and the spread of discourses that highlight the validity of such reforms may be accompanied by subtle shifts in penal discourse in which the use of nonconfinement sanctions for some offenders is legitimated even as the imposition of increasingly severe penalties for less sympathetic criminal defendants is justified. To the extent that this occurs, the prospects of comprehensive sentencing reform that would significantly reduce levels of incarceration are weakened. These insights leads us to hypothesize that recent calls for criminal justice reform--and policy reforms themselves--are not comprehensive but, rather, consistently identify nonviolent, nonserious, and nonrepeat offenders as the intended beneficiary of penal reform. We also expect that calls for such reforms frequently entail assertions of the need to maintain or intensify the penalties imposed on "serious" and "violent" criminals. Empirical support for these hypotheses would suggest that the reach (and potential impact) of criminal justice reform is circumscribed; it would also suggest that contemporary debates--and even calls for reform--reinforce the idea that penalties for repeat, serious, and violent offenders should be maintained and perhaps even intensified. Finally, we suspect that reforms will be primarily framed as a way of reducing state expenditures on corrections rather than as a way to promote fairness, proportionality, and/or human rights in the criminal justice system. To the extent that this is the case, policy "solutions" aimed at minimizing correctional costs--but not reducing correctional populations or improving prison conditions--may be seen as sufficient. We assess these hypotheses by analyzing recent criminal justice policy reforms as well as newspaper stories about criminal justice reform. In what follows, we briefly describe the data and methods employed in these analyses.The alternative is whatever being: a mode of life that resists political classification. Since sovereignty exercises power through classification, resistance should focus on modes of living rather than acts Caldwell, PhD, 04(Anne, Political/Feministtheory@Louisville, Bio-Sovereignty and the Emergence of Humanity Theory & Event Volume 7, Issue 2, 2004)Can we imagine another form of humanity, and another form of power? The bio-sovereignty described by Agamben is so fluid as to appear irresistible. Yet Agamben never suggests this order is necessary. Bio-sovereignty results from a particular and contingent history, and it requires certain conditions. Sovereign power, as Agamben describes it, finds its grounds in specific coordinates of life, which it then places in a relation of indeterminacy. What defies sovereign power is a life that cannot be reduced to those determinations: a life “that can never be separated from its form, a life in which it is never possible to isolate something such as naked life.” (2.3). In his earlier Coming Community, Agamben describes this alternative life as “whatever being.” More recently he has used the term “forms-of-life.” These concepts come from the figure Benjamin proposed as a counter to homo sacer: the “total condition that is ‘man’.” For Benjamin and Agamben, mere life is the life which unites law and life. That tie permits law, in its endless cycle of violence, to reduce life an instrument of its own power. The total condition that is man refers to an alternative life incapable of serving as the ground of law. Such a life would exist outside sovereignty. Agamben’s own concept of whatever being is extraordinarily dense. It is made up of varied concepts, including language and potentiality; it is also shaped by several particular dense thinkers, including Benjamin and Heidegger. What follows is only a brief consideration of whatever being, in its relation to sovereign power. “Whatever being,” as described by Agamben, lacks the features permitting the sovereign capture and regulation of life in our tradition. Sovereignty’s capture of life has been conditional upon the separation of natural and political life. That separation has permitted the emergence of a sovereign power grounded in this distinction, and empowered to decide on the value, and non-value of life (1998: 142). Since then, every further politicization of life, in turn, calls for “a new decision concerning the threshold beyond which life ceases to be politically relevant, becomes only ‘sacred life,’ and can as such be eliminated without punishment” (p. 139). This expansion of the range of life meriting protection does not limit sovereignty, but provides sites for its expansion. In recent decades, factors that once might have been indifferent to sovereignty become a field for its exercise. Attributes such as national status, economic status, color, race, sex, religion, geo-political position have become the subjects of rights declarations. From a liberal or cosmopolitan perspective, such enumerations expand the range of life protected from and serving as a limit upon sovereignty. Agamben’s analysis suggests the contrary. If indeed sovereignty is bio-political before it is juridical, then juridical rights come into being only where life is incorporated within the field of bio-sovereignty. The language of rights, in other words, calls up and depends upon the life caught within sovereignty: homo sacer. Agamben’s alternative is therefore radical. He does not contest particular aspects of the tradition. He does not suggest we expand the range of rights available to life. He does not call us to deconstruct a tradition whose power lies in its indeterminate status.21 Instead, he suggests we take leave of the tradition and all its terms. Whatever being is a life that defies the classifications of the tradition, and its reduction of all forms of life to homo sacer. Whatever being therefore has no common ground, no presuppositions, and no particular attributes. It cannot be broken into discrete parts; it has no essence to be separated from its attributes; and it has no common substrate of existence defining its relation to others. Whatever being cannot then be broken down into some common element of life to which additive series of rights would then be attached. Whatever being retains all its properties, without any of them constituting a different valuation of life (1993: 18.9). As a result, whatever being is “reclaimed from its having this or that property, which identifies it as belonging to this or that set, to this or that class (the reds, the French, the Muslims) — and it is reclaimed not for another class nor for the simple generic absence of any belonging, but for its being-such, for belonging itself.” (0.1–1.2). Indifferent to any distinction between a ground and added determinations of its essence, whatever being cannot be grasped by a power built upon the separation of a common natural life, and its political specification. Whatever being dissolves the material ground of the sovereign exception and cancels its terms. This form of life is less post-metaphysical or anti-sovereign, than a-metaphysical and a-sovereign. Whatever is indifferent not because its status does not matter, but because it has no particular attribute which gives it more value than another whatever being. As Agamben suggests, whatever being is akin to Heidegger’s Dasein. Dasein, as Heidegger describes it, is that life which always has its own being as its concern — regardless of the way any other power might determine its status. Whatever being, in the manner of Dasein, takes the form of an “indissoluble cohesion in which it is impossible to isolate something like a bare life. In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into existence over which power no longer seems to have any hold” (Agamben 1998: 153). We should pay attention to this comparison. For what Agamben suggests is that whatever being is not any abstract, inaccessible life, perhaps promised to us in the future. Whatever being, should we care to see it, is all around us, wherever we reject the criteria sovereign power would use to classify and value life. “In the final instance the State can recognize any claim for identity — even that of a State identity within the State . . . What the State cannot tolerate in any way, however, is that the singularities form a community without affirming an identity, that humans co-belong without a representable condition of belonging” (Agamben 1993:85.6). At every point where we refuse the distinctions sovereignty and the state would demand of us, the possibility of a non-state world, made up of whatever life, appears.25 Brentwood DW Aff RacePlea bargaining is the criminal justice system and the criminal justice system is the modern plantation. Plea bargaining undergirds the transformation of chattel slavery and black codes to sentencing regimes manifesting as mandatory minimums and the prison industrial complex Heiner 16 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIn his autobiographical texts, … and racially oppressed. Best and most recent statistics prove plea bargaining is unquestionably discriminatory - it controls black incarceration and criminalizationBerejo 17 Berdejó, Carlos (Before joining the faculty at Loyola Law School, Carlos was a graduate student at Harvard University, where he obtained his PhD in Economics. As a doctoral student, he devoted much of his scholarship to the interaction of law and economics, and in particular to understanding the impact of judicial institutions on judges' behavior. Prior to beginning his graduate studies, he practiced as a corporate attorney in New York, representing Latin American clients in various types of financings and in related securities law matters. His current research employs economic tools to further our understanding of the regulation of securities and other investments and of how legal regimes influence corporations' financing decisions.), Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39. Available at SSRN: BWSWJThe racial disparities … later in the article. 174Plea bargaining is the procedural entrapment that sustains mass incarceration - the unreviewable power of the prosecutor strips bodies of rights and sediments racial dominationHeiner 2 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJThe systematic practice of … people of color.82The intricate mechanics of the misdemeanor process racialize crime and mark black folks as criminals absent the presumption of innocence. Prioritizing efficiency over truth creates the stereotype of the black offender and causes mass incarceration.Natapoff 12 Natapoff, Alexandra (Professor of Law UC Irvine Law School; Expertise: Criminal law and procedure, misdemeanors, informants, public defense, law and inequality Background: Professor Natapoff's scholarship has won numerous awards, including a 2016 Guggenheim Fellowship, the 2013 Law and Society Association Article Prize, and two Outstanding Scholarship Awards from the AALS Criminal Justice Section. Her original work on criminal informants has made her a nationally-recognized expert: her book Snitching won the 2010 ABA Silver Gavel Award Honorable Mention for Books. Professor Natapoff's current work-including her new book-focuses on misdemeanors and their powerful influence over the criminal system as a whole. She has presented her misdemeanor work at numerous institutions including Harvard, the University of Chicago, the ABA, and the National Science Foundation. Professor Natapoff is a member of the American Law Institute; in 2015 she was appointed as an Adviser to the ALI Policing Project. She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets. Prior to joining the academy, Professor Natapoff served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. She clerked for the Honorable David S. Tatel, U.S. Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, U.S. District Court, Washington, D.C.), Misdemeanors (February 24, 2012). 85 Southern California Law Review 101 (2012); Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: BWSWJThe misdemeanor process … the penal system.PlanPlan Text: The Supreme Court of the United States, in the next available test case, ought to rule the practice of plea bargaining unconstitutional on the basis that it violates the equal protection analysis established in State v. Russell.Kruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJSimilarly, courts could … arbitrary or illegitimate. 27 "Crash the system and let its ruthless efficiency collapse under its own weight. The aff causes a wide scale restructuring of the CJS.Alexander 12 MICHELLE ALEXANDER (Michelle Alexander is a highly acclaimed civil rights lawyer, advocate, and legal scholar. In recent years, she has taught at a number of universities, including Stanford Law School, where she was an associate professor of law and directed the Civil Rights Clinics. In 2005, she won a Soros Justice Fellowship, which supported the writing of The New Jim Crow, and that same year she accepted a joint appointment at the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University. Since its first publication,The New Jim Crow has received rave reviews and has been featured in national radio and television media outlets, including MSNBC, NPR, Bill Moyers Journal, Tavis Smiley, C-SPAN, and Washington Journal, among others. In March, the book won the 2011 NAACP Image Award for best nonfiction.); ; MARCH 10, 2012; NYTIMES; BWSWJAFTER years as a … to risk our lives."Absent plea bargaining, the politics of carcerality become unsustainable - the aff opens up space for decriminalization and exposing the contradiction of the lawHeiner 3 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIt would be difficult … leased convict laborers.139Davis precedent allows judicial racism to go unchecked - Russell analysis opens the floodgates to challenge discriminatory policiesKruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJIn State v. Russell, 2 … of many criminal procedures.FramingThis round should be centered on mass incarceration - Ethics in the age of the prison industrial complex require a stance against its specific violence Roberts 4 Roberts, Dorothy E. (Dorothy Roberts, an acclaimed scholar of race, gender and the law, joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science and Society in the Center for Africana Studies. Her pathbreaking work in law and public policy focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans. Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.), "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. 583.; BWSWJThus, the unprecedented … ' sense of justice.Reject neg args - We're subconsciously primed towards a continuation of plea bargaining Gocha 16 Alan J. Gocha (Alan's practice is primarily focused on complex intellectual property litigation in electrical, mechanical and software matters. He has experience in both defending against and asserting copyright, trademark, and patent rights. Alan has served as lead counsel in a number of cases, both in state and federal court. He also has experience in appellate advocacy and arbitration. His experience touches a broad range of practice areas, including employment, civil rights, corporations, nonprofit, and bankruptcy law. As an attorney, Alan has provided hundreds of hours of pro bono legal services. Alan has a Bachelor of Arts in Philosophy from the University of Michigan and received his Juris Doctor from Georgetown University Law Center in 2016 where he was an editor for the Georgetown Journal of Legal Ethics. He also received a full tuition scholarship to study Communications at Wayne State University, where he ranked nationally on the university policy debate team. While in law school, he was named an Exceptional Pro Bono Pledge Honoree and winner of the first annual Justin Hansford Student Essay Contest, hosted by the Georgetown Journal on Law and Modern Critical Race Perspectives, for his essay titled The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice.), The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 Geo. J. L. and Mod. Critical Race Persp. (2016) Hein BWSWJAt a cursory glance, the … for state-sponsored oppression. 9Prioritize slow violence---obsession with short timeframe impacts obscures structural factors. Rob Nixon 10. Rachel Carson Professor of English, University of Wisconsin-Madison. "Slow Violence and the Environmentalism of the Poor." Pages 1-14. 2010.When Lawrence Summers, then president of the World Bank, advocated that the bank develop a scheme to export rich nation garbage, toxic waste, and heavily polluting industries to Africa, he did so in the calm voice of global managerial reasoning.' Such a scheme. Summers elaborated, would help correct an inefficient global imbalance in toxicity. Underlying his plan is an overlooked but crucial subsidiary benefit that he outlined: offloading rich-nation toxins onto the world's poorest continent would help ease the growing pressure from rich-nation environmentalists who were campaigning against garbage dumps and industrial effluent thai they condemned as health threats and found aesthetically offensive. Summers thus rationalized his poison-redistribution ethic as offering a double gain: it would benefit the United States and Europe economically, while helping appease the rising discontent of rich-nation environmentalists. Summers' arguments assumed a direct link between aesthetically unsightly waste and Africa as an out-of-sighl continent, a place remote from green activists' terrain of concern. In Summers' win win scenario for the global North, the African recipients ot his plan were triply discounted: discounted as political agents, discounted as long-term casualties of what 1 call in this book "slow violence," and discounted as cultures possessing environmental practices and concerns … ongoing, belated casualties.No counterplans - negatives must defend the squoPlants 89 COUNTERPLANS RE-VISITED: THE LAST SACRED COW? J. Daniel Plants, Baylor University 1989 - Punishment Paradigms : Pros and Cons; BWSWJThe notion of "as compared … object to such strategies.25 Brentwood DW Neg Discovery FirstPlan Text: The United States federal and state governments ought to mandate prosecutorial open-file discovery of all exculpatory and impeachment evidence prior to plea bargainingPetegorsky 12 Petegorsky, Michael Nasser. "Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining." Fordham L. Rev. 81 (2012): 3599. BWSWJBeyond waiting for...the guilty plea.A right to information pre-plea is necessary to correct information imbalancesHashimoto 8 Erica J. Hashimoto (University of Georgia School of Law), Toward Ethical Plea Bargaining (2008), Available at: h p://digitalcommons.law.uga.edu/fac_artchop/819 BWSWJUnfortunately, the reality..of that right.That solves the innocence problem and false pleasO’Brien 3 O'Brien, Andrew P. "Reconcilable Differences: The Supreme Court Should Allow the Marriage of Brady and Plea Bargaining." Ind. LJ 78 (2003): 899.One argument that...when factually innocent.CP ReformCP Text: Instead of abolishing plea bargaining, the United States criminal justice system should reform plea bargaining to require written plea agreements, prohibit waivers of critical rights, provide broad pre-plea discovery, strengthen judicial oversight, adopt limits on Plea Discounts Courts, and limit sentencing concessions offered by prosecutors. Turner is the solvency advocateTurner 3/17 – Jenia Iontcheva Turner is a professor of law at Southern Methodist University (Dedman School of Law). “Plea Bargaining,” March 13, 2017 Written...to consider them.“Crashing the system” is unrealistic—reform is much better and has already been successful on the state level.Walsh 12/17 – Daniel Walsh is a writer for the Atlantic. “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” May 2, 2017 theory, abolishing...however that’s defined.”CP War on DrugsCounter Plan Text: The United States Federal Government should end the “War on Drugs” including the abolition of the DEA, eliminating all federal enforcement of illicit drug laws and stopping all federal assistance of drug law enforcement by state and local governments, except for the enforcement of illicit prescription drugs.Drug laws are the primary driver of mass incarceration, and it’s racially disproportionate.Drug Policy Alliance 16 Alliance, Drug Policy. “The Drug War, Mass Incarceration And Race.” February, 2016. Web. December 09, 2017. 20Mass20Incarceration20and20Race_28Feb.20201629_0.pdf.The Drug War…drug law violations.DA Court ClogCourts not overwhelmed now – reforms like plea bargaining mean judges can handle caseloadPryor 11/29 William Pryor (William H. Pryor Jr. is a judge on the United States Court of Appeals for the 11th Circuit and acting chairman of the United States Sentencing Commission.); NOV. 29, 2017; ; “Conservatives Should Oppose Expanding the Federal Courts”; NYT Op-Ed; BWSWJBIRMINGHAM, Ala. — A...should be opposed.The aff creates a 30x increase in trialsKim 2015, Andrew Chongseh Kim (Assistant Professor, Concordia University School of Law; B.A., University of Chicago), “UNDERESTIMATING THE TRIAL PENALTY: AN EMPIRICAL ANALYSIS OF THE FEDERAL TRIAL PENALTY AND CRITIQUE OF THE ABRAMS STUDY,” Mississippi Law Journal, 2015, The greatest and...to a halt.32Abolishing plea bargaining would increase resource demand by 1,000- 10 reduction in guilty pleas = doubling in resources- 10 x 10 = 1000 increaseSavitsky 9 Savitsky, Douglas (Department of Economics, University of Conneticut), 2009, Doctoral Thesis, The problem with plea bargaining: Differential subjective decision making as an engine of racial disparity in the United States prison system. Cornell University. BWSWJPlea bargaining is...percentage of victories.Plea bargaining would create a massive jam in the court systemWalsh 17 Dylan Walsh; May 2, 2017; ; Why U.S. Criminal Courts Are So Dependent on Plea Bargaining; BWSWJShondel Church was...system “less awful.”Court clog turns caseRoss 6 Ross, Jaqueline E. (2006). The Entrenched Position of Plea Bargaining in United States Legal Practice. The American Journal of Comparative Law, 54, 717-732. Retrieved from BWSWJRobert Scott and ...trials and illegitimacy. A clogged court creates shoddy trials and illegitimacy. Stern 03, J.D. Candidate, 2003, (Toby J. Stern, “Federal Judges and Fearing The ‘Floodgates of Litigation’,” University of Pennsylvania Law School; B.A., 2001, The Johns Hopkins University, (2003).pdf, accessed on 7/12) ABThere are myriad effects of the rise in litigation over the past forty years. This section considers some of the effects that the caseload rise has had on federal judges and their work.In analyzing the...of profound uncertainty."0 8 sDA Crime and TerrorThe intersection between organized crime and terrorism makes access to biological weapons easier than ever. However it ALSO makes terrorist cells easier to detect and prosecute - Josh Rollins, Liana Sun Wyler, and Seth Rosen, January 5, 2010 Congressional Researchers - Specialist in Terrorism and National Security; Analyst in International Crime and Narcotics; Research Associate 'International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress' Congressional Research Service Report for Congress. BWSEKLPotential links between…most terrorist financing.Plea bargaining is critical to get cooperation from terrorist informants – informants are key to stopping attacksAdam Goldman and Benjamin Weiser, 1-27-2017, "How Civilian Prosecution Gave the U.S. a Key Informant," New York Times, BWSEKLCurrent and former…that chance meeting.”Bioterror is possible and an existential riskVon Hippel 17 – Frank Von Hippel, Professor of Public and International Affairs at the Woodrow Wilson School of Public and International Affairs, former assistant director for national security in the White House Office of Science and Technology, Ph.D. in Physics from Oxford University (“Bioweapons Then and Now,” Nuclear Futures Lab @ Princeton University, February 19th, ) Thanks to Harvard MS Opencaselist Wiki“Bioterrorism could kill…seriously considered yet.DA ImpeachmentTrump’s impeachment odds are at an all time high – betting markets proveJason Le Miere, 12-1-2017, "Trump impeachments odds skyrocket after Michael Flynn agrees to cooperate with Mueller investigation," Newsweek, BWSEKLThe odds of…first four-year term.Prediction markets are exceptionally accurate - Pavel Atanasov, et al 10/8/2015. ‘Distilling the Wisdom of Crowds: Prediction Markets vs. Prediction Polls’ ResearchGate. BWSEKLSince the work…against each other.”Mueller’s investigation is fueled by plea bargains – first Papadopolous, now Flynn. Each plea brings the investigation closer to Trump, where more leverage will be needed to get testimony -Brent Budowsky, 12-1-2017 Former aide to Sen. Lloyd Bentsen and Rep. Bill Alexander; LLM in international financial law from LSE, "Trump’s Russian winter grows colder with Flynn plea deal," As former national…and for all.We are on the brink of nuclear war with North KoreaMark Seddon, 12-7-2017 formerly a speechwriter for Ban Ki-moon; a visiting professor of IR at Columbia, "Have we just three months to avert a US attack on North Korea?," GulfNews, BWSEKLThe drumbeat for…towards North Korea.Trump’s delusions and recklessness will compel him to start a nuclear war with North Korea – multiple psychiatrists agreeJason Le Miere, 11-29-2017, "Trump’s conspiracy theory delusions will likely lead to nuclear war with North Korea, psychiatrists warn," Newsweek, BWSEKLPresident Donald Trump’s…millions of lives.”26 Loyola LA Aff KantI value morality the meta ethic is practical reason prefer: 1 analytic 2 analytic 3 analyticOnly a priori practical reason solves, Furrow: This is because AND morality requires freedom.And from practical reason it follows that we must act on universalizable principles or else we arbitrarily obey principles - only universal principles creates intents that everyone can follow Korsgaard:Christine M. Korsgaard “Self-Constitution in the Ethics of Plato and Kant”The first step is this: to conceive ANDcause of the action.Analytic1 All knowledge must be applicable to all reasoners. Engstrom ONE:As I mentioned, ANDwhich the particular judgment is based.2 To be able to assign value to moral decisions, our value must be unconditionalTwo Distinctions in Goodness, Christine M. Korsgaard (Harvard University), Pg. 14-15 Korsgaard The argument ANDstatus of objective goodsThus the standard is consistency with universalizable maxims two more reasons to prefer:1 The Universalizable maxims framework takes into accounts material conditions that are necessary for real application of morals Farr The attack on ANDother moral agents.2 An intent unifies the end of an action so the intent is a side constraint on all consequentialist theories –Rodl writes Calculation from desireAND, be doing B.I defend the resolution as a general principle implementation is irrelevant Analytic1 analytic2 analytic analyticanalyticI contend that plea bargaining is a non universalizable maxim three warrants1 A It’s coercive - forcing a terrible cost for not giving up your rights is the definition of coercion Langbein ONE In twentieth-century America ANDembodies the involuntariness.B Willing coercion as a universal law is contradictory.Engstrom Stephen (Professor of Ethics at UPitt). “Universal Legislation As the Form of Practical Knowledge.”Given the preceding ANDand others’ freedom.2 Uses people as a means to an end Childress WritesThe attorney may ANDthe ethical dilemma.3 A It’s a contradiction in the will because it promotes lying in a place that desires truth Cassidy explains This problem also ANDagent of the truth.B Contradictions in the rational will make actions become unintelligible since the intent determines the action. Christine Korsgaard 14 (Professor at Harvard University) “How to be an Aristotelian Kantian Constitutivist.” 2014 “First of all, ANDpossession to yours.”Aff VirtuesEthics must be motivating understanding why we may ought to do things is not enough to ought to do it. Only virtue ethics meet this requirement. We act morally because we think of ourselves as virtuous people. If we did not aspire to be virtuous, we would have no reason to follow moral demands.Jason Kawall 09 “In Defense of the Primacy of Virtues,” Jason Kawall. Journal of Ethics and Social Philosophy. Vol 3, Num. 2. 2009.One of the major ANDhis or her moral environment.The standard is promoting virtues.Proving an alternative index that negates doesn’t deny the truth of the obligation from aff index, so the neg wouldn’t meet their burden of denying the truth of the resolution without disproving the aff’s end. Weighing indexes is also incoherent because it relies on an assessment of ends, which relies on a further assessment. Thus, an end that negates is not contradictory to an end that affirms, and thus proving my end affirms is sufficient. R?dl Sebastian R?dl, Self-Consciousness, Harvard University Press, 2007This view is untenable for reasons this is analogousAND true—is so affixing myself to p.We must view ethics not as what we ought to do but rather who we ought to be this ensures values with social context not just universal rules that don’t always apply MAYO:Mayo, Bernard (Professor of Moral Philosophy at University of St. Andrews). “Ethics and the Moral Life.” St. Martin’s Press. 1958.No doubt the ANDexamples to follow. And, absolutist moral theories fail—moral knowledge is ultimately uncodifiable. Silva 11 (Rui Silva, University of the Azores. “VIRTUE ETHICS AND COMMUNITARIANISM” 2011. DIACR?TICA)But what went ANDapproaches to ethics. Finally, virtues are constitutive of willing any action so it’s a side constraint on ethics because it presumes a conception of action for it to be able to guide action. KORSGAARD:“How to be an Aristotelian Kantian Constitutivist” Christine M. Korsgaard On this interpretation, ANDof her will. (26-27)I defend the text of the resolution. Impact CalcAnalyticI contend that Plea Bargaining is not virtuous therefore it must be abolished: 1 Plea bargaining encourages prosecutors to not have courage in their own case Cassidy ONE bracketed for gendered language R. Michael, Professor R. Michael Cassidy teaches and writes in the areas of Criminal Law, Evidence, and Professional Responsibility. He is considered an expert on the subject of prosecutorial ethics, and provides training nationally to public sector attorneys on their responsibilities under the Rules of Professional Conduct, Character and Context: What Virtue Theory Can Teach Us about a Prosecutor 's Ethical Duty to Seek Justice, December 1 2006 LAWhat might ANDon reasonable terms.2 It also Promotes lying and exaggerating for a reduced charge that destroys honesty Cassidy TWO bracketed for gendered language R. Michael, Professor R. Michael Cassidy teaches and writes in the areas of Criminal Law, Evidence, and Professional Responsibility. He is considered an expert on the subject of prosecutorial ethics, and provides training nationally to public sector attorneys on their responsibilities under the Rules of Professional Conduct, Character and Context: What Virtue Theory Can Teach Us about a Prosecutor 's Ethical Duty to Seek Justice, December 1 2006 LAThis problem also ANDagent of the truth.26 Loyola LA Neg SkepThe aff triggers regress skepticism – to justify any proposition, you must suspend belief in it and ask why, but that test fails when applied to core beliefs like “there are good reasons” which cannot be further justified,Williamson, n.d.Timothy Williamson, philosopher, “Knowledge and Scepticism,” in F. Jackson and M. Smith, The Oxford Handbook of Analytic Philosophy, Oxford: Oxford University Press.Sometimes to test a belief ANDregress of justifications.analyticIgnoring skep just triggers meta-skepticism about all knowledge and all philosophical reflectionWilliams 13Williams, Michael. "Skepticism, Evidence and Entitlement." Philosophy and Phenomenological Research LXXXVII.1 (2013): 36-72. Web.I find the ANDI think we can.DA Court Clog (IP/Food Impact)UQCourts have heavy burdens now and are on the brink—one big push causes collapse of the judiciary and democracy. Bannon '13:(Alicia Bannon, serves as counsel for the Brennan Center's Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts. Ms. Bannon also previously served as a Liman Fellow and Counsel in the Brennan Center's Justice Program. J.D. from Yale Law School in 2007, where she was a Comments Editor of the Yale Law Journal, "Testimony: More Judges Needed in Federal Courts," September 10, 2013, )While the current high level of judicial vacancies partially explains this high per-judge AND2013, so as to ensure the continued vitality of our federal courts.LinksEmpirics prove: even local bans on plea bargaining lead to massive backlogs. Henry 79Diane. "Plea-Bargaining Ban is Clogging Courts in New Haven, State Says" Sept. 5, 1979. accessed 12/15/17 ~ AOSTAMFORD, Conn. Sept. 4 — An eightmonth moratorium on plea bargaining in ANDof the state's court system and a justice of the State Supreme Court. Plea bargain bans lead to massive drains and rushed trials. Hessick and Saujani 02Hessick and Saujani 02 F. Andrew III Hessick; Reshma M. Saujani. Andrew Hessick-A.B. 1998, Dartmouth College; J.D. Candidate 2002, Yale Law School. Fall 2002, a clerk for Judge Raymond Randolph of the United States Court of Appeals for the District of Columbia Circuit. Reshma Saujani-B.A. 1996, University of Illinois, Urbana-Champaign; M.P.P. 1999, John F. Kennedy School of Government, Harvard University; J.D. Candidate 2002, Yale Law School. Fall 2002, an associate at Davis Polk and Wardwell. "Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense Counsel, and the Judge." 16 BYU J. Pub. L. 189 (2002) ~Premier~The rising caseload of each individual state and federal judge has created a disincentive for ANDcasual, thereby increasing the possibility that innocents will be found guilty. 241ImpactEffective IPR enforcement is key to agricultural biotech. Oestreich 8Vice President for DuPont, 3-28-8 (Dean, "Nurture agriculture success: Protect patent rights", ) Innovation and invention take time and resources. To bring a seed variety from the ANDCongress know that America needs patent reform that encourages innovation and promotes invention. Biotech key to food security. Brown 8:Molly E. Brown 8 ~NASA Goddard Space Flight Center Biospheric Sciences Branch~ and Christopher C. Funk ~University of California – Berkeley~, "Food Security Under Climate Change", NASA Publications, 1 Feb 2008, BEClimate change impacts on farmers will vary by region, depending on their use of ANDin food access and availability, reducing hunger while providing for more people.Food shortages outweigh on magnitude – causes structural violence, resource wars, and environment. Cribb '10:Cribb 10 (Julian Cribb is a Fellow of the Academy of Technological Sciences and Engineering. He is former Director, National Awareness for CSIRO and Science Editor of The Australian newspaper. He was national foundation president of the Australian Science Communicators (ASC), president of the National Rural and Resources Press Club, a member of CSIRO advisory committees for agriculture, fisheries and entomology. He has served as a Director of the Australian Centre for International Agricultural Research (ACIAR), the Crawford Fund, the Secretariat for International Landcare, CSIRO Publishing, the Australian Minerals and Energy Environment Foundation and the National Science and Technology Centre, Questacon. He was the creator of "Future Harvest" the global public awareness campaign for the Consultative Group on International Agricultural Research (CGIAR). Cribb, Julian. "Coming Famine : The Global Food Crisis and What We Can Do to Avoid It." Berkeley, CA, USA: University of California Press, 2010. 15-6. ebrary collections. Ghs-kw)Some observers also claim a link between food insecurity and terrorism, pointing out that ANDdonors may unintentionally have laid the foundation for future government failure and conflict.Food Shortage causes extinctionBrown, 9 (Lester R – founder of the Worldwatch Institute and the Earth Policy Institute, "Can Food Shortages Bring Down Civilization?" Scientific American, May)The biggest threat to global stability is the potential for food crises in poor countries ANDstates disintegrate, their fall will threaten the stability of global civilization itself.K Afropessimism/RaceThe supposition of the state as ethical actor is foundational to blackness as slave – the 1ac renders civil society coherent Sexton 10 (Jared, Associate Professor at UC Irvine in African American Studies People of Color Blindness; published in 1998; p. 40-41)Agamben is incorrect ANDcategory of nonblackness.There is no hope for progress via the political – politics are structurally anti-black – searching for solutions within politics constitutes a “politics of hope” that leads to pursuit of the impossible for Blacks. Attempts to solve are just cruel optimismWarren 15: Calvin L. Warren Professor in the American Studies department at George Washington University “Black Nihilism and the Politics of Hope” Michigan State University Press. CR: The New Centennial Review, Vol. 15, No. 1, 2015, pp. 215–248 BWSWJPerverse juxtapositions structure ANDbecause it is the object of political fantasy.Our alternative is to enter a constant interrogation of the black positionality to render civil society incoherent. We create a political cognizance endorsed by every negative ballot that spreads the word to break down civil white society.Wilderson, ’10 2010, Frank B. Wilderson is an Associate Professor of African-American Studies at UC Irvine and has a Ph.D. from UC Berkeley, “Red, White and Black: Cinema and the Structure of U.S. Antagonisms,”STRANGE AS it might seemANDthrough the social fields.Rejecting racism is a priori – it prevents ethicality and sets the groundwork for all violence – 3 warrants.Wilderson TWO award-winning author of Incognegro: A Memoir of Exile and Apartheid. He is one of two Americans to hold elected office in the African National Congress and is a former insurgent in the ANC’s armed wing (Frank B. III “Chapter One: The Ruse of Analogy” Red, White, and Black: Cinema and the Structure of U.S. Antagonisms, 2003) Two tensions are at work here. AND, in the eyes of HumanityLink – civil society is preconditioned on the destruction of the black positionalityWilderson, Professor UCI, 2003 (Frank B., “The Prison Slave as Hegemony’s (Silent) Scandal”, Soc Justice 30 no2 2003, Accessed 8-4-12, MR)There is something ANDobligation, are oxymorons. Ontological status rests in capacities. Wilderson 10Frank Wilderson III, Film Critic and PhD, “Red, White, and Black: Cinema and the Structure of U.S. Antagonisms.” Duke University Press. Durham and London 2010. Page 8In leftist metacommentaries ANDeyes of the Slave.NC ContractarianismI value morality Morality as a guide to action must be internally motivating Katsafanas :While externalism captures ANDdirection of internalism.analyticThe standard is consistency with principles of mutual restraint. Prefer: 1 Ethics need to answer why people would accept morality in the first place, since persons are inherently self-interested. Only a contractarian system of ethics prevents skep. Gauthier ONE Moral principles are ANDin their affairs.analytic 2 And, only by grounding morality in practical rationality may we get around circularity. Gauthier TWO A contractarian theoryAND, or morally neutral, base.I contend that a contract exists between prosecutors and defendants though plea bargaining Scott and Stutz writeThe affirmative case AND its associated risks.analyticNo contracts can exist between unequal parties Gauthier FOUR But the strengths ANDrationally grounded morality.AnalyticAnalyticPIC Child AbuseCP Text: abolish plea bargaining in all instances except for child rape and abuse casesDemarest 94- United States Supreme Court Justice Carolyn E., Plea Bargaining Can Often Protect the Victim, April 15, 1994, , December 9, 2017 CLI believe the ANDplea be accepted.Children experience lasting psychological and emotional trauma from having to testify with their abusers in court- having access to plea bargains in this instance means these children will never face the courtoomWeiss and Burg 80- associate clinical professor of psychiatry, Georgetown, coordinator of clinical services, Child Sexual Abuse Victim Assistance Project Edward and Regina, Child Victims of Sexual Assault: Impact of Court Procedures, October 1980, (09)60804-9/pdf, 9 December 2017 CLBecause of the AND and her mother.Analyticanalytic27 Loyola JC Aff Race (Foucault hooks)FramingI defend the resolution Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.My method of resistance involves a lens of power relations. We must account for the subject – without doing so, it is impossible to guide action since there would be no actor’s action to guide in the first place and thus action would be impossible.Resistance begins with an account of power, since it guides our actions and functions as constitutive of our identities.Dreyfus and Rabinow 14 : Foucault’s next proposals…of sexuality, ranking, individuation and so on)Resistance is contingent on the prevention of total domination – in this state, power relations collapse and the subject is simply reduced to an object.Foucault 97 :This brings us back to the…cannot be attributed to me.1) analytic2) analytic3) analytic The static oppressed-oppressor dichotomy is constitutive of oppression – we need to look towards breaking these boundaries.hooks 13 :Casting blame and…— resist seeing the larger picture.Impact analysis:analytic2. analyticAdditionally, any attempts to solve oppression from a single standpoint will always fail.Crenshaw 91 :The problem with identity…location that resists telling.analytic The only possible solution is to approach power relations from the view of white supremacist capitalist patriarchy or WSCP – no other framework is sufficiently intersectional – solves both for perspective by acting as a master narrative for oppression and the dichotomy because it’s specifically targeted towards the ways in which forms of oppression interlock.hooks 02 :I began to use the…accounting of identity.Thus, the role of the ballot and standard is resisting white supremacist capitalist patriarchy. Advantage 1 is Prison Industrial ComplexPlea bargaining supercharges by charge-stacking and overcharging – plea bargaining allows prosecutors to coerce minorities into guilt and fuels mandatory minimums that are the lynchpin of the prison industrial complex.Heiner:Heiner, Brady. "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition." Philosophy and Social Criticism 42.6 (2016): 594-631.Prosecutors admit to…criminal convictions, holding resources constant.”47Plea bargaining is a key form of procedural entrapment – the claim is not that racism will be solved instantly, but the elimination of plea bargaining is the elimination of a pillar of the structure of wscp.Heiner:Heiner, Brady. "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition." Philosophy and Social Criticism 42.6 (2016): 594-631.One could imagine an…imprisoned.Plea bargaining is the perfection of social death, entrapping women of color in a cycle of incarceration that functionally amounts to a life sentence and is unavoidable from the instant they are born into their communities. Due to hypercriminalization and racist and sexist prosecutors the only bargaining is the initial sentence, but they will serve a life sentence.Lipsitz 12:Lipsitz, George. " “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights." UCLA Law Review 59 (2012): 1746-1809.The women of color…of their criminal records.1) analytic2) analytic The solvency is obvious and massive – plea bargaining is necessary to and the lynchpin of mass incarceration and represents the reinscription of postbellum social death for black and brown bodies. Ending the plea-bargaining regime would collapse the prison-industrial complex.Heiner:Heiner, Brady. "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition." Philosophy and Social Criticism 42.6 (2016): 594-631.First, the procedural…behind closed doors, In the wake of social death, ending plea bargaining is try-or-die: solvency for the prison-industrial complex is functionally guaranteed – empirics prove.Heiner:Heiner, Brady. "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition." Philosophy and Social Criticism 42.6 (2016): 594-631.Painfully and personaly…, and departmental organizations. And, support for the plan is high now – groundswell of organic movements means spillover is highly probable and will devastate the prison-industrial complex.Heiner:Heiner, Brady. "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition." Philosophy and Social Criticism 42.6 (2016): 594-631.Executive desistence in the…generative employment and investment.27 Loyola JC Neg Court ClogUQCourts have heavy burdens now and are on the brink—one big push causes collapse of the judiciary and democracy. Bannon ’13:(Alicia Bannon, serves as counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts. Ms. Bannon also previously served as a Liman Fellow and Counsel in the Brennan Center’s Justice Program. J.D. from Yale Law School in 2007, where she was a Comments Editor of the Yale Law Journal, “Testimony: More Judges Needed in Federal Courts,” September 10, 2013, )While the current high level of judicial vacancies partially explains this high per-judge burden, even if every existing vacancy were filled, the existing workload per sitting judge would still exceed historical levels, as reflected by the red line in Figure 2. In contrast, the green line estimates what per-judge caseloads would be if all 2009-2013 vacancies had been filled and Congress had created 85 additional district court judgeships (the number of additional permanent and temporary judgeships proposed in the Act). As Figure 2 demonstrates, authorizing these additional 85 judgeships is necessary to restore the number of pending cases per sitting judge to the level of the late 1990s. The growing workload in district courts around the country negatively impacts judges’ ability to effectively dispense justice, particularly in complex and resource-intensive civil cases, where litigants do not enjoy the same “speedy trial” rights as criminal defendants. For example, the median time for civil cases to go from filing to trial has increased by more than 70 percent since 1992, from 15 months to more than two years (25.7 months). Older cases are also increasingly clogging district court dockets. Since 2000, cases that are more than three years old have made up an average of 12 percent of the district court civil docket, compared to an average of 7 percent from 1992-1999. For a small company in a contract dispute or a family targeted by consumer fraud, these kind of delays often mean financial uncertainty and unfilled plans, putting lives on hold as cases wind through the court system. All too often, justice delayed in these circumstances can mean justice denied. These patterns of delay are starkly reflected in the districts for which additional judgeships are recommended, many of which lag behind the national average in key metrics. In the Eastern District of California, for example, the median time for civil cases to go from filing to trial is almost four years (46.4 months). This district would receive six additional permanent judgeships and one additional temporary judgeship under the Act. In the Middle District of Florida, over 23 percent of the civil docket is more than three years old. This district would receive five additional permanent judgeships and one additional temporary judgeship under the Act. The federal courts are a linchpin of our democracy, protecting individual rights from government overreach, providing a forum for resolving individual and commercial disputes, and supervising the fair enforcement of criminal laws. In order for judges to perform their jobs effectively, however, they must have manageable workloads. The Brennan Center urges Congress to promptly pass the Federal Judgeship Act of 2013, so as to ensure the continued vitality of our federal courts.LinksEmpirics prove: even local bans on plea bargaining lead to massive backlogs. Henry 79Diane. “Plea-Bargaining Ban is Clogging Courts in New Haven, State Says” Sept. 5, 1979. accessed 12/15/17 AOSTAMFORD, Conn. Sept. 4 — An eightmonth moratorium on plea bargaining in criminal cases in the State Judicial District headquartered in New Haven has produced the largest backlog of cases a year or more old in any judicial district in the state, according to the state's chief court administrator. The number of such cases in the New Haven district rose from 181 to 310 between the imposition of the ban and Aug. 1, according to John A. Speziale, the chief administrator of the state's court system and a justice of the State Supreme Court. Plea bargain bans lead to massive drains and rushed trials. Hessick and Saujani 02 Hessick and Saujani 02 F. Andrew III Hessick; Reshma M. Saujani. Andrew Hessick-A.B. 1998, Dartmouth College; J.D. Candidate 2002, Yale Law School. Fall 2002, a clerk for Judge Raymond Randolph of the United States Court of Appeals for the District of Columbia Circuit. Reshma Saujani-B.A. 1996, University of Illinois, Urbana-Champaign; M.P.P. 1999, John F. Kennedy School of Government, Harvard University; J.D. Candidate 2002, Yale Law School. Fall 2002, an associate at Davis Polk and Wardwell. “Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense Counsel, and the Judge.” 16 BYU J. Pub. L. 189 (2002) PremierThe rising caseload of each individual state and federal judge has created a disincentive for a more exacting analysis by the judge. Since 1938, the federal courts have experienced an increasingly large caseload. 235 This growth can be attributed to the increase in the population, the creation of new rights and wrongs, the increase of lawyers, and the expansion of attorney fee incentives to litigate.236 Beginning in the 1960s, social scientists and commentators began to describe the judiciary's looming backlog as a "crisis in the courts" created by "lazy judges devoting little time to their work., 237 It has been said that most trial judges look for guilty pleas the way "a salesman looks for orders."2'38 The pressures for judges to be efficient and effective have led many judges to embrace the plea bargaining process. While judges point to their administrative need to process a large number of cases with limited resources as their greatest reason for plea bargains, growing criticism of case backlog has undoubtedly pressured widespread acceptance. 239 A judicial system that works at a maximum level of efficiency generates social utility in an already overloaded judicial system. A mere reduction of ten percent in the number of defendants plea bargaining would require more than twice the amount of judicial manpower and resources.240 While a surge in new trials would generate administrative complications for the judiciary, the utility of foregoing this cost is contingent upon the assumption that citizens spend fewer resources for pleas than trials while getting the same result. If scholars and commentators are correct in maintaining that plea bargaining facilitates the incarceration of innocent defendants, then this perverse result would reduce any social utility gained by cost savings from foregoing trial. Additionally, some supporters of plea bargaining may argue that if caseloads were increased they would prevent judges from making an exacting analysis of the facts. This obstacle would have devastating effects for the plight of innocents because it would hinder the search for actual guilt or innocence. Some commentators argue that trials would become less stringent and more casual, thereby increasing the possibility that innocents will be found guilty. 241ImpactEffective IPR enforcement is key to agricultural biotech. Oestreich 8Vice President for DuPont, 3-28-8 (Dean, “Nurture agriculture success: Protect patent rights”, ) Innovation and invention take time and resources. To bring a seed variety from the lab to the farm typically takes an organization like Pioneer nearly a decade and millions of dollars in research and development. The current patent system helps make that kind of commitment worthwhile, because once an inventor is granted a patent, he or she has the security of knowing it cannot be frivolously overturned or ignored. The proposed legislation would establish a new administrative procedure that significantly lowers the standard for challenging a patent, and allows a challenge for an indefinite period. This would invite would-be infringers to initiate and maintain patent challenges that have no merit, holding the true innovator hostage. The legislation also alters the formula for calculating damages in patent-infringement cases, putting patent owners at a serious disadvantage. These changes would only encourage patent infringement and harm U.S. innovators. Improvements to the patent system are needed, and Pioneer supports changes to allow for fair, timely and substantive challenges to patents, and to modify patent-damages law - provided patent owners are adequately compensated when infringement has been established. Pioneer and our parent company, DuPont, are willing to work with lawmakers to ensure our nation's patent system is improved, not undermined. America's farmers are facing challenges like never before, with rapidly evolving food, feed and fuel needs around the globe. We at Pioneer are proud of our nearly 80-year history of providing Iowa's farmers with the tools they need to continue America's leadership role in agriculture. That is why we urge those who share our concerns to let your representatives in Congress know that America needs patent reform that encourages innovation and promotes invention. Biotech key to food security. Brown 8:Molly E. Brown 8 NASA Goddard Space Flight Center Biospheric Sciences Branch and Christopher C. Funk University of California – Berkeley, “Food Security Under Climate Change”, NASA Publications, 1 Feb 2008, BEClimate change impacts on farmers will vary by region, depending on their use of tech- nology. Technological sophistication determines a farm’s productivity far more than its climatic and agricultural endowments. Food insecurity, therefore, is not solely a product of “climatic determinism” and can be addressed by improvements in economic, political, and agricultural policies at local and global scales. In currently food-insecure regions, farming is typically conducted manually, using a hoe and planting stick with few inputs. The difference between the productivity of these farms and those using petroleum-based fertilizer and pesticides, biotechnology-enhanced plant varieties, and mechanization is extreme (5). Not only will climate change have a differen- tial effect on ecosystems in the tropics due to their already warmer climates, but also poor farmers in the tropics will be less able to cope with changes in climate because they have far fewer options in their agricultural system to begin with. These handicaps can be exacer- bated by macro-economic policies that create disincentives for agricultural development,? such as agricultural subsidies in the United States and Europe and poorly implemented cash transfer programs (6).? The study by Lobell et al. suggests that communities can cope with climate change, for example, by switching from producing corn to producing sorghum, whose lower water requirements and higher temperature tolerances are better suited to a warmer and drier climate. However, this adaptation mea- sure may be impossible to implement in many parts of the developing world. For example, it assumes markets for millet in regions where only maize is eaten, and technology and know-how about how to process and consume sorghum in maize zones. Communities may nevertheless be forced, as they are today, to consume what they produce regardless of cul- tural preferences.? Today, millions of hungry people subsist on what they produce. If climate change reduced production while populations increase, there is likely to be more hunger. However, it may still be possible to reduce world hunger through programs that feed the poor during crises and by investing in agricultural inputs such as fer- tilizer and improved varieties that can dramati- cally increase yields (2). Improved environ- mental monitoring and prediction systems can provide more effective early warnings, which may help governments to take action to pre- serve the thin agriculture production margins by which many make ends meet (7). Early warning systems involve extensive climate monitoring and prediction tools that could be used to enhance agricultural development pro- grams. Crop insurance programs that are trig- gered by remote sensing data products may ensure farmer’s livelihoods even in drought years. Investments in improved seeds and vari- etals and an augmented use of inorganic fertil- izer (2, 6) can increase yields. Improved local governance, reduced developed-world agricul-? tural subsidies, and more nuanced food aid policies that protect local markets could together produce rapid improvements in food access and availability, reducing hunger while providing for more people.Food shortages outweigh on magnitude – causes structural violence, resource wars, and environment. Cribb ’10:Cribb 10 (Julian Cribb is a Fellow of the Academy of Technological Sciences and Engineering. He is former Director, National Awareness for CSIRO and Science Editor of The Australian newspaper. He was national foundation president of the Australian Science Communicators (ASC), president of the National Rural and Resources Press Club, a member of CSIRO advisory committees for agriculture, fisheries and entomology. He has served as a Director of the Australian Centre for International Agricultural Research (ACIAR), the Crawford Fund, the Secretariat for International Landcare, CSIRO Publishing, the Australian Minerals and Energy Environment Foundation and the National Science and Technology Centre, Questacon. He was the creator of “Future Harvest” the global public awareness campaign for the Consultative Group on International Agricultural Research (CGIAR). Cribb, Julian. “Coming Famine : The Global Food Crisis and What We Can Do to Avoid It.” Berkeley, CA, USA: University of California Press, 2010. 15-6. ebrary collections. Ghs-kw)Some observers also claim a link between food insecurity and terrorism, pointing out that hungry countries are among those most likely to furnish terrorism recruits. In 2002, heads of state from fifty countries met at a development summit in Mexico where they discussed the role of poverty and hunger as a breeding ground for terrorism. “No-one in this world can feel comfortable or safe while so many are suffering and deprived,” UN secretary general Kofi Annan told them. The president of the UN General Assembly, Han Seung-Soo, added that the world’s poorest countries were a breeding ground for violence and despair. The Peruvian president Alejandro Toledo added, “To speak of development is to speak also of a strong and determined fight against terrorism.” 10 Around the world many guerrilla and insurgent causes—such as Shining Path, the Tamil Tigers, and Abu Sayyaf—have claimed injustice in land ownership and use as one of their motivating causes. A lack of water is a key factor in encouraging terrorism. Mona El Kody, the chair of the National Water Research Unit in Egypt told the Third World Water Forum that living without an adequate level of access to water created a “non-human environment” that led to frustration, and from there to terrorism. “A non-human environment is the worst experience people can live with, with no clean water, no sanitation,” she said, adding that this problem was at its most acute in the Middle East, where 1 percent of the world’s freshwater is shared by 5 percent of the world’s population. Ms. El Kody added that inadequate water resources had the additive effect of reducing farming and food production, thereby increasing poverty—another factor that can lead to terrorism. 11 Most of the “new” conflicts are to be found in Africa, the Middle East, and parts of Asia—the result of a cycle of constant famine, deprivation, and periodic violence, leading in inevitable sequence to worse hunger, greater deprivation, and more vicious fighting. Food and economic insecurity and natural resource scarcities . . . can be major sources of conflict. When politically dominant groups seize land and food resources, deny access to other culturally or economically marginalized groups, and cause hunger and scarcities, violence often flares. In Ethiopia, Rwanda, and Sudan, food crises resulting from drought and mismanagement of agriculture and relief and development aid led to rebellion and government collapse, followed by even greater food shortfalls in ensuing years of conflict. Denial of the right to food has been linked to uprisings and civil war in Central America and Mexico. Food insecurity is also integral to civil conflicts in Asia. Competition for resources has generated cycles of hunger and hopelessness that have bred violence in Sri Lanka as well as Rwanda. 12 These afflicted regions are generally places disconnected from the global economic mainstream, where strong-man governments arise and just as quickly crumble, having only political quicksand on which to build a foundation for stability and progress. This is vital to an understanding of what is going wrong with global food production: in nearly all these countries, food is of the first importance, and only after you have enough food can you form a government stable enough to deliver water, health care, education, opportunity for women, justice, and economic development. By neglecting or reducing support for basic food production— as many have during the past twenty-five years—in order to spread aid across these equally deserving causes, the world’s aid donors may unintentionally have laid the foundation for future government failure and conflict.Food shortages cause nuclear world war 3FDI 12, Future Directions International, a Research institute providing strategic analysis of Australia’s global interests; citing Lindsay Falvery, PhD in Agricultural Science and former Professor at the University of Melbourne’s Institute of Land and Environment, “Food and Water Insecurity: International Conflict Triggers and Potential Conflict Points,” is a growing appreciation that the conflicts in the next century will most likely be fought over a lack of resources.? Yet, in a sense, this is not new. Researchers point to the French and Russian revolutions as conflicts induced by a lack of food. More recently, Germany’s World War Two efforts are said to have been inspired, at least in part, by its perceived need to gain access to more food. Yet the general sense among those that attended FDI’s recent workshops, was that the scale of the problem in the future could be significantly greater as a result of population pressures, changing weather, urbanisation, migration, loss of arable land and other farm inputs, and increased affluence in the developing world.? In his book, Small Farmers Secure Food, Lindsay Falvey, a participant in FDI’s March 2012 workshop on the issue of food and conflict, clearly expresses the problem and why countries across the globe are starting to take note. .? He writes (p.36), “…if people are hungry, especially in cities, the state is not stable – riots, violence, breakdown of law and order and migration result.”? “Hunger feeds anarchy.”? This view is also shared by Julian Cribb, who in his book, The Coming Famine, writes that if “large regions of the world run short of food, land or water in the decades that lie ahead, then wholesale, bloody wars are liable to follow.” ? He continues: “An increasingly credible scenario for World War 3 is not so much a confrontation of super powers and their allies, as a festering, self-perpetuating chain of resource conflicts.” He also says: “The wars of the 21st Century are less likely to be global conflicts with sharply defined sides and huge armies, than a scrappy mass of failed states, rebellions, civil strife, insurgencies, terrorism and genocides, sparked by bloody competition over dwindling resources.”? As another workshop participant put it, people do not go to war to kill; they go to war over resources, either to protect or to gain the resources for themselves.? Another observed that hunger results in passivity not conflict. Conflict is over resources, not because people are going hungry.? A study by the International Peace Research Institute indicates that where food security is an issue, it is more likely to result in some form of conflict. Darfur, Rwanda, Eritrea and the Balkans experienced such wars. Governments, especially in developed countries, are increasingly aware of this phenomenon.? The UK Ministry of Defence, the CIA, the US Center for Strategic and International Studies and the Oslo Peace Research Institute, all identify famine as a potential trigger for conflicts and possibly even nuclear war.DA CrimeCrime DA – murders, rapists, and child molesters should be in prisonEsperian 10 - John Esperian, December 2010 ("The Effect of Prison Education Programs on Recidivism", Journal of Correctional Education, Vol 61, No 4, pp 316-334, Accessed Online at .ololo.stable/23282764?seq=1#page_scan_tab_contents, Accessed on 8-13-2017, SV)Undoubtedly, some individuals-murderers, rapists, child molesters-are either unwilling or unable to live and work as honest, hard working brokers within the framework of society. These dangerous anti-social cases need to be kept in confinement permanently for the safety of the community. As Jeffrey Rosen and Stephen Richards point out, however, in "Beyond Bars", more than 600,000 men and women are released from prison each year. The significance of these numbers is compounded by the fact that the U S represents 5 of the world's population and nearly 25 of the world's prison population. (Rosen 38) Common sense would suggest that it is in society's best interest to do whatever it can to prepare released felons to function successfully in the outside world. Fortunately, the numbers of those beyond rehabilitation are comparatively small, and most criminals, there is reason to believe, can turn from crime and live a productive, law-abiding life. Unfortunately, there is no litmus test to determine which individuals have the potential to change or to recidivate. And that, it would seem, is the primary reason that the opportunity must be extended to all incarcerated felons. For, as the research suggests, an education is the cornerstone to a structured life of work and learning-for former felons especially. "In a country," writes Vivian Nixon, "where second chances and opportunity are professed values, democratic access to high-quality higher education must include access for people in prison. We cannot bar the most vulnerable people from the very thing that has the greatest potential to change their lives" (qtd in Brazzell et al 41). An article on inmate participants baseball at San Quentin, by Scott Ostler, concludes that getting prisoners involved in meaningful activity pays valuable dividends. (Clapp)'Every inmate I talk to," he writes," swears this (SQ) is the Shangri-La of state prisons." Along with the many sports opportunities and work programs, he goes on to say, San Quentin offers the system's only college education program. The result? According to Ostler, the inmates all say San Quentin has fewer racial and gang problems than other prisons. This is due, in part, to the liberalism of San Francisco and Berkeley, "which manifests itself in an army (300-plus) of outside volunteers who believe in rehabilitation and who man the various programs." inmate Chris Rich says that "San Quentin is a life changing situation for any inmate who recognizes the need to change. You get here and you see some hope."Prefer reform – the plan just increases crimeHerbert 8 (Nick Herbert - Conservative MP for Arundel and South Downs – “The abolitionists' criminal conspiracy” – 7/27/08 - )/TKLast week saw an International Conference on Penal Abolition. With such a heady ambition, what can be next? A global conference to abolish crime? The ambition of an eccentric minority to abolish prison isn't just dotty. It's a distraction from a real and pressing agenda, which is to reform prisons which simply aren't working. ? A century ago, prisons had hard labour and treadmills. Today, they have colour TVs in cells. Jails may have changed, but the enduring truth that they are necessary has not. We will always have a small minority of offenders who, by their behaviour, pose so great a threat to the lives and property of the law-abiding majority that they must be kept apart from us. Ignoring this reality and arguing for the total abolition of prison is a hopelessly utopian goal that does the credibility of penal reformers no service.? The case for penal abolition rests on a series of tenuous assertions. Let's set aside the obvious, if uncomfortable, fact that part of the purpose of prison is to punish. It's said that short-term prison sentences don't work, because recidivism rates are shockingly high and there is little time for any restorative programmes to work. But since the evidence is that longer sentences have lower recidivism rates, and provide the opportunity to rehabilitate offenders, this might be an argument to lengthen sentences, not abolish them altogether. After all, another purpose of prison is to incapacitate offenders.? Of course, overcrowded prisons that are awash with drugs, and a system which gives short-term prisoners no supervision or support on release, is almost calculated to fail. But this could equally be an argument – the one which the modern Conservative party is making – for a complete transformation of prison regimes and a system of support for offenders when they are released from jail. It's a logical non sequitur on a grand scale to argue that because short-term prison sentences currently aren't working, we should therefore stop using them at all.? Abolitionists say that short-term prison sentences have a poorer recidivism rate than community sentences. In fact, both have a lamentable record – and one that has deteriorated in the last ten years. But the difference is hardly surprising, since the worst recidivists are bound to end up in jail. According to Home Office figures (pdf), only 12 of those sentenced to prison have no previous convictions. Over half have five or more previous convictions, and over a third have ten or more. Those who say that prison should be reserved for serious or serial offenders tend to ignore the fact that it already is.? Serial offenders who end up with custodial sentences have usually run through the gamut of weak community sentences already. If we want to avoid magistrates having little choice but to send them down, the logical thing to do is to make community sentences far more effective. Yet the perverse reaction of the abolitionists is to recommend that the very community disposals that have, by definition, already failed are used again.? Over a third of unpaid work requirements are not completed. Drug rehabilitation requirements have an even worse record – fewer than half are completed. If a fraction of the energy and resources that are being devoted to the cause of penal abolition were directed to thinking seriously about how better to design non-custodial punishments, short-term prison sentences would be less necessary.? What do the abolitionists really want? If it's the end of all custody, including for the most serious and dangerous offenders, then we can dismiss their demands as truly silly. If it's the abolition of short-term custodial sentences, then the effect on the overall prison population will be minimal. Justice ministry tables show (pdf) that over 87 of the current prison population are serving sentences of over 12 months. Abolishing prison for those serving, say, six months or less would mean watering down 60,000 sentences – but it would reduce the prison population by less than 7,000. The more effective and sustainable way to reduce the prison population in the long term is to reduce re-offending, as the Conservative party's radical "rehabilitation revolution" proposes.? It would be nice to live in a society where there were no prisons, just as it would be nice if there were no hospitals because there was no illness. But until someone steps forward with a ten-year plan to Make Crime History, jails are here to stay. The challenge is to create prisons with a purpose – not to hold lazy conferences making futile calls for their abolition.Immediate, revolutionary abolition fails – it gets coopted and recreates the same systemsBen-Moshe 2013 – Ph.D. in Sociology from Syracuse, Postdoctoral fellow at the department of Disability and Human Development at the University of Illinois at Chicago, Assistant Professor in Disability Studies, University of Toledo Liat Ben-Moshe, 2013, Academia.edu, “The End of Prisons.: Reflections from the Decarceration Movement”, 7/7/2015, BDWhen a system is abolished there is a danger that other systems with the same goals would arise to fill the void left by the abolished system. Famedsociologist W.E.B. Du Bois, in his book ? Black Reconstruction? (1999 1935),discusses abolition not as a mere negative process, one of tearing down. It isultimately about creating new institutions. Du Bois was very insistent that in order to abolish slavery in modern times, new democratic institutions have to be established and maintained. Because that did not occur, slavery found anew home in Jim Crow, convict lease systems, second class education andmass incarceration. Thus, the abolition of slavery was only successful on thenegative aspect, but no new institutions were created to successfully incorpo-rate black people into the existing social order. Prisons today have thrived precisely because of the lack of such resources that Du Bois was arguing for.Prisons today can’t be abolished until such equality-ensuring mechanisms are in place (Davis, 2005). Being free of chains is only the beginning.K Prison Abolition / RaceIncarceration rates are only recently declining. Geiger 17Geiger, Abigail. “U.S. private prison population has declined in recent years.” Pew Research Center, 11 Apr. 2017, fact-tank/2017/04/11/u-s-private-prison-population-has-declined-in-recent-years/. Accessed 29 Sept. 2017.In more recent years, however, both the private and overall U.S. prison populations have declined at modest rates. The private prison population has shrunk by 8 since its peak in 2012, while the overall prison population has fallen by 5 since its peak in 2009. (The state private prison population peaked in 2012 with 96,774 prisoners, while the federal private prison population reached its peak a year later in 2013, with 41,159 prisoners.) For the purposes of this analysis, the prison population refers to inmates under the jurisdiction of state and federal authorities. That definition means state or federal authorities have the legal authority over a prisoner, regardless of where the prisoner is physically being held. This analysis excludes inmates held in local facilities, such as county jails, as well as those held in federal detention facilities for unauthorized immigrants, which are also sometimes privately operated. In addition, some states do not use private prisons. Since 1999 – the first year BJS began collecting data on private prisons – inmates in privately run facilities have made up a small share of all U.S. prisoners. In 2015, just 8 of the nearly 1.53 million state and federal prisoners in the U.S. were in private facilities, up slightly from 5 in 1999. State inmates make up the majority of the U.S. private prison population, as well as the overall U.S. prison population. In 2015, state prisoners made up 72 of the U.S. private prison population and 87 of the overall U.S. prison population.Plea Bargain Ban increases pre-trial incarceration and guilty pleas. Acevedo 95 Roland Acevedo, 1995, “Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx County, New York Case Study”, Fordham Law Review Vol 64 I 3 Article 14, Pages 998-1000, Roland Acevedo, Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx County, New York Case Study, 64 Fordham L. Rev. 987 (1995). Available at: Accessed December 2017B. The Effects of the Ban The plea bargaining ban has not had its intended effect of reforming the sentencing practices of Bronx judges. Under the ban, Bronx judges have become more lenient and appear to be imposing shorter sentences on the highest counts of indictments. 7 According to the Bronx District Attorney's theory,9 8 this additional leniency should result in a further disincentive to plea bargain and an increase in the backlog of cases. Indeed, since the imposition of the ban, guilty pleas have decreased by eleven percent, 99 and the backlog of pending cases in the Bronx has increased by twenty-four percent. 100 As a direct result of the increase in the backlog of pending cases, the average time defendants remain in custody has also increased. Since the imposition of the ban, Bronx defendants average in excess of 160 days in custody, compared to the 120 day average for other New York City boroughs. 101 There has also been a forty-seven percent increase in the number of Bronx defendants incarcerated for over one year.'02 These additional days of incarceration cost New York City taxpayers three to four million dollars annually. 3Taking away plea bargaining raises incarceration times Smith ‘86 (Smith, A. Douglas, “The plea bargaining controversy”, The Journal of Criminal Law and Criminology) 1980 DB Considering incarceration decisions, 71 of the 279 defendants convicted at trial received prison sentences of one year or longer compared to only 42 of defendants who pled guilty. On the surface this finding would appear to supports claims that considerable sentencing discounts are exchanged for guilty pleas. Additional support for sentence differentials between pled and tried cases appears in Uhlman and Walker's study of dispositions of 29,295 convicted felons. Substantial sentence differentials existed between defendants who pled guilty and those convicted at trial. For example, pled cases were 53 less likely to result in incarcera-tion than cases where the defendant was convicted by a jury. When the researchers controlled for severity of charge and crime type, the relationship between dis comes was smaller, but not eliminated.23 The authors suggested that charge severity and type of offense influenced the decision to plead guilty or to proceed to trial, and they noted that defendants convicted at jury trials were charged with more serious crimes than those convicted by plea.24 Thus, while their findings showed that defendants receive a bargain in exchange for a plea of guilty, they concluded that the benefits may be somewhat exaggerated, since de- fendants who opt for trial may be acquitted.Plea Bargains ensure less people are in jailNolo ()For most defendants, the principal benefit of plea bargaining is receiving a lighter sentence for a less-severe charge than might result from taking the case to trial and losing. Also, the outcome of any given trial is usually unpredictable -- but a plea bargain provides both prosecution and defense with some control over the result. There are other benefits as well: Saving money. Defendants who are represented by private counsel can save a bundle on attorneys' fees by accepting a plea bargain. It almost always takes more time and effort to bring a case to trial than to negotiate and handle a plea bargain. Getting out of jail. Defendants who are held in custody -- who either do not have the right to bail or cannot afford bail, or who do not qualify for release on their own recognizance -- may get out of jail immediately following the judge's acceptance of a plea. Depending on the offense, the defendant may get out altogether, on probation, with or without some community service obligations. Or, the defendant may have to serve more time but will still get out much sooner than if he or she insisted on going to trial. Resolving the matter quickly. A plea bargain provides resolution to the stress of being charged with a crime. Going to trial usually requires a much longer wait -- and causes much more stress -- than taking a plea bargain.When people see plea bargaining as bad, that makes whites more likely to treat blacks unfairly – the more they think the CJS is overly-punitive to blacks, the more they’ll incarcerate blacksHolloway 15 Kari, freelance writer and independent documentary film producer. Salon, “10 ways white people are more racist than they realize,” 3-4-15White people are more likely to have done illegal drugs than blacks or Latinos, but are far less likely to go to to jail for it. A 2011 study from the Substance Abuse and Mental Health Data Archive found white people were more likely to use illegal and prescription opiates (heroin, oxycontin), hallucinogens, and cocaine than blacks and Hispanics by significant margins. Black people just edged out white people on marijuana and crack use (which incurred disproportionate sentences for decades). Yet, a 2009 Human Rights Watch study found that each year from 1980 to 2007, blacks were arrested on drug charges at rates 2.2 to 5.5 percent higher than whites.? 4. Black men are sentenced to far lengthier prison sentences than white men for the same crimes. A 2012 study by the United States Sentencing Commission found black men were sentenced to prison terms nearly 20 percent longer than white men for similar crimes. To break those numbers down further, from January 2005 to December 2007, sentences for black males were 15.2 percent longer than those of their white counterparts. From December 2007 to September 2011, that number actually increased, with differences in sentencing growing to 19.5 percent.? 5. White people, including police, see black children as older and less innocent than white children. A UCLA psychological study surveyed mostly white, male police officers to determine “prejudice and unconscious dehumanization of black people.” Researchers found a correlation between officers who unconsciously dehumanized blacks and those who had used force against black children in custody. The study also found that white female college students saw black and white children as equally innocent until age 9, after which they perceived black boys as significantly older — by about four and half years — and less innocent than their white peers. UCLA researcher Phillip Atiba Goff wrote, “Our research found that black boys can be seen’’’ as responsible for their actions at an age when white boys still benefit from the assumption that children are essentially innocent.” Which leads right to our next stats.? 6. Black children are more likely to be tried as adults and are given harsher sentences than white children. A Stanford University study uncovered this sobering information: ”Simply bringing to mind a black (vs. white) juvenile offender led white study participants to view juveniles in general as significantly more similar to adults in their inherent culpability and to express more support for severe sentencing.” That is, when white respondents thought the child on trial was black, they were more like to endorse “sentencing all juveniles to life without parole when they have committed serious violent crimes.” That might explain why, of the roughly 2,500 juveniles in the U.S. who have been sentenced to life without parole, nearly all (97 percent) were male and (60 percent) black. Interesting study note: for black kids, killing a white person was a good way to end up behind bars for their entire adult life. For white kids, killing a black person actually helped their chances of ensuring their prison stay would be temporary. From the report: “The proportion of African American juveniles sentenced to life without parole for the killing of a white person (43.4 percent) is nearly twice the rate at which African American juveniles overall have taken a white person’s life (23.2 percent). What’s more, we find that the odds of a juvenile life without probation sentence for a white offender who killed a black victim are only about half as likely (3.6 percent) as the proportion of white juveniles arrested for killing blacks (6.4 percent).”? 7. White people are more likely to support the criminal justice system, including the death penalty, when they think it’s disproportionately punitive toward black people. That’s right: white people agree with criminal justice outcomes more when they think race disproportionately targets black people for incarceration. According to a 2012 Stanford study conducted in “liberal” San Francisco and New York City, when white people were told that black people were unfairly impacted by punitive criminal justice policies like three-strikes laws and stop-and-frisk, they were less likely to advocate for criminal justice reform. In a similar vein, researchers found in 2007 that telling whites about racist sentencing laws made them favor harsher sentences. That is, racism made them like those sentences more. The study authors write: “Our most startling finding is that many whites actually become more supportive of the death penalty upon learning that it discriminates against blacks.”? 8. The more “stereotypically black” a defendant looks in a murder case, the higher the likelihood he will be sentenced to death. This is perhaps one of the most horrifying findings in a list of horrifying findings. To quote the study, “the degree to which the defendant is perceived to have a stereotypically black appearance (e.g., broad nose, thick lips, dark skin)” could mean the difference between a sentence of life or death, particularly if his victim was white. Read the whole study; it’s fascinating.? 9. Conversely, white people falsely recall black men they perceive as being “smart” as being lighter-skinned. Here’s another incredible, though not entirely surprising study finding. When white people encounter the faces of African American men they are primed to believe are “educated,” they later recall those individuals as being lighter-skinned than they actually were. The researchers developed a name for this phenomenon: “skin tone memory bias.” This compulsion was chalked up to stereotypical beliefs about dark skin and its correlation with negative traits. To reckon with the cognitive dissonance created by perceiving a black man as “educated,” white participants unconsciously realigned that intelligence with skin that more closely approximated whiteness.? 10. A number of studies find white people view lighter-skinned African Americans (and Latinos) as more intelligent, competent, trustworthy and reliable than their darker-skinned peers. A 2006 study found that dark-skinned black men with MBAs were less likely to be hired than lighter-skinned black men who only possessed bachelor’s degrees. A 2010 study in North Carolina found that light-skinned black women received shorter prison terms than darker-skinned black women. And a 2012 Villanova University study found that, “African American and Latino respondents with the lightest skin are several times more likely to be seen by whites as intelligent compared with those with the darkest skin.”? The implications of these findings are hugely significant, and lend credence to the often expressed feeling of tokenization by black people who are deemed smart, successful or intelligent by whites. That is, the feeling that white people perceive certain African Americans as exceptional or “not like the others.” It also adds an important layer to the conversation around colorism, which privileges light skin above darker skin both within and outside of communities of color. (And has helped skin lightening products become a booming global industry in places like India, the Philippines and some parts of Africa.)? Unfortunately, I could go on and on. About how, for example, black students — even preschoolers — are far more likely to be suspended from school than white students. (That fact is even truer for dark-skinned black students.) The same products, when displayed by black hands on the Internet, are less likely to sell than when they are held by white hands. One study even found that white people basically think black people are paranormal entities, an idea so ludicrous it begs that you read an explanation, here.? Racism is comfortable and easy; it helps us make quick, baseless decisions without the taxing act of thinking. The next time you catch yourself having a racist thought or feeling, try not brushing it off. Ask yourself where it came from, what it means and how you can unpack it. Because if the evidence above suggests anything, it’s that critical self-examination is our only hope of moving the needle at all on this thing. Stop imagining that being racist is something that only other people do, and start looking closely at your own beliefs.? Especially the ones you’ve never admitted to yourselves that you hold.Prisons are fundamental to and indispensable to global racialized violence – it causes a dehumanization and authorization of violence that makes all violence permissible, Rodríguez 7Professor and Chair of Ethnic Studies @ UC Riverside Dr. Dylan Rodríguez, “American Globality and the US Prison Regime: State Violence and White Supremacy from Abu Ghraib to Stockton to Bagong Diwa,” Kritika Kultura 9 (2007): pg. 22-48To consider the US prison as a global practice of dominance, we might begin with the now-indelible photo exhibition of captive brown men manipulated, expired, and rendered bare in the tombs of the US-commandeered Abu Ghraib prison: here, I am concerned less with the idiosyncrasies of the carceral spectacle (who did what, administrative responsibilities, tedium of military corruption and incompetence, etc.) than I am with its inscription of the where in which the worst of US prison/state violence incurs. As the bodies of tortured prisoners in this somewhere else, that is, beyond and outside the formal national domain of the United States, have become the hyper-visible and accessible raw material for a global critique of the US state—with Abu Ghraib often serving as the signifier for a generalized mobilization of sentiment against the American occupation—the intimate and proximate bodies of those locally and intimately imprisoned within the localities of the United States constantly threaten to disappear from the political and moral registers of US civil society, its resident US Establishment Left, and perhaps most if not all elements of the global Establishment Left, which includes NGOs, political parties, and? sectarian organizations. I contend in this essay that a new theoretical framing is required to critically address (and correct) the artificial delineation of the statecraft of Abu Ghraib prison, and other US formed and/or mediated carceral sites across the global landscape, as somehow unique and exceptional to places outside the US proper. In other words, a genealogy and social theory of US state violence specific to the regime of the prison needs to be delicately situated within the ensemble of institutional relations, political intercourses, and historical conjunctures that precede, produce, and sustain places like the Abu Ghraib prison, and can therefore only be adequately articulated as a genealogy and theory of the allegedly “domestic” US prison regime’s “globality” (I will clarify my use of this concept in the next part of this introduction). Further, in offering this initial attempt at such a framing, I am suggesting a genealogy of US state violence that can more sufficiently conceptualize the logical continuities and material articulations between a) the ongoing projects of domestic warfare organic to the white supremacist US racial state, and b) the array of “global” (or extra-domestic) technologies of violence that form the premises of possibility for those social formations and hegemonies integral to the contemporary moment of US global dominance. In this sense, I am amplifying the capacity of the US prison to inaugurate technologies of power that exceed its nominal relegation to the domain of the criminal juridical. Consider imprisonment, then, as a practice of social ordering and geopolitical power, rather than as a self-contained or foreclosed jurisprudential practice: therein, it is possible to reconceptualize the significance of the Abu Ghraib spectacle as only one signification of a regime of dominance that is neither (simply) local nor (erratically) exceptional, but is simultaneously mobilized, proliferating, and global. The overarching concern animating this essay revolves around the peculiarity of US global dominance in the historical present: that is, given the geopolitical dispersals and dislocations, as well as the differently formed social relations generated by US hegemonies across sites and historical contexts, what modalities of “rule” and statecraft give form and coherence to the (spatial-temporal) transitions, (institutional-discursive) rearticulations, and (apparent) novelties of “War on Terror” neoliberalism? Put differently, what technologies and institutionalities thread between forms of state and state-sanctioned dominance that are nominally autonomous of the US state, but are no less implicated in the global reach of US state formation? The intent of this initial foray into a theoretical project that admittedly exceeds the strictures of a self-contained journal article is primarily suggestive: on the one hand, I wish to examine how the institutional matrix and technological module of the US prison regime (a concept I will develop in the next section of the essay) is a programmatic (that is, strategic and structural rather than conspiratorial or fleeting) condensation of specific formations of racial and white supremacist state violence and is produced by the twinned, simultaneous logics of social ordering/disruption (e.g. the prison as both and at once the exemplar of effective “criminal justice” law-and-order and culprit in the mass-based familial and community disruption of criminalized populations). On the other hand, I am interested in considering how the visceral and institutionally abstracted logic of bodily domination that materially forms and reproduces the regime of the American prison is fundamental, not ancillary, to US state-mediated, state-influenced, and state-sanctioned methods of legitimated “local” state violence across the global horizon. To put a finer edge on this latter point, it is worth noting that given the plethora of scholarly and activist engagements with US global dominance that has emerged in recent times, and the subsequent theoretical nuance and critical care provided to treatments of (for example) US corporate capital, military/warmaking capacity, and mass culture, relatively little attention has been devoted to the constitutive role of the US prison in articulating the techniques, meanings, and pragmatic forms of state-building within post-1990s social formations, including those of the US’s ostensible peer states, as well as places wherein militarized occupation, postcolonial subjection, and proto-colonial relations overdetermine the ruling order. In place of considering the US prison as a dynamic, internally complex mobilization of state power and punitive social ordering, such engagements tend to treat the prison as if it were, for the most part, a self-evident outcome or exterior symptom of domination rather than a central, interior facet of how domination is itself conceptualized and produced. In this meditation I am concerned with the integral role of the US prison regime in the material/cultural production of “American globality.” In using this phrase I am suggesting a process and module of state power that works, moves, and deploys in ways distinct from (though fundamentally in concert with) American (global) “hegemony,” and inaugurates a geography of biopolitical power more focused than common scholarly cartographies of American “empire.” For my purposes, American globality refers to the postmodern production of US state and state-sanctioned technologies of human and ecological domination—most frequently formed through overlapping and interacting regimes of profound bodily violence, including genocidal and protogenocidal violence, warmaking, racist and white supremacist state violence, and mass-scaled imprisonment— and the capacity of these forms of domination to be mobilized across political geographies all over the world, including by governments and states that are nominally autonomous of the United States. American globality is simultaneously a vernacular of institutional power, an active and accessible iteration of violent human domination as the cohering of sociality (and civil society) writ large, and a grammar of pragmatic immediacy (in fact, urgency) that orders and influences statecraft across various geographies of jurisdiction and influence. It is in this sense of globality as (common) vernacular, (dynamic, present tense) iteration, and (disciplining) grammar that the current formation of global order is constituted (obviously) by the direct interventions of the US state and (not as obviously) by the lexicon (as in the principles governing the organization of a vocabulary) of US statecraft. American globality infers how the US state conceptualizes its own power, as well as how these conceptualizations of power and American state formation become immediately useful to—and frequently, structurally and politically overbearing on—other state formations and hegemonies. The prison regime, in other words, is indisputably organic to the lexicon of the US state, and is thus productive of American globality, not a by-product or reified outcome of it. In the remainder of this essay, I raise the possibility that the US conceptualization of the prison as a peculiar mobilization of power and domination is, in the historical present, central to how states, governments, and social orderings all over the world are formulating their own responses to the political, ecological, and social crises of neoliberalism, warfare, and global white supremacy. Pg. 22-25Voting negative is a pedagogical act. Your ballot contributes to a larger continuum of liberation movements that are not constrained by what is “practical” or “possible.” A radical break from the prison is prior to any other question---policy changes need to be put on the backburner. As teachers you are obligated to betray the modern technologies of genocide management present in the prison. Rodríguez 10(Dylan, Professor and Chair of the Department of Ethnic Studies at UC Riverside, “The Disorientation of the Teaching Act: Abolition as Pedagogical Position,” Radical Teacher, Number 88, Summer 2010, Project MUSE)a-bergFinally, the horizon of the possible is only constrained by one’s pedagogical willingness to locate a particular political struggle (here, prison abolition) within the long and living history of liberation movements. In this context, “prison abolition” can be understood as one important strain within a continuously unfurling fabric of liberationist political horizons, in which the imagination of the possible and the practical is shaped but not limited by the specific material and institutional conditions within which one lives. It is useful to continually ask: on whose shoulders does one sit, when undertaking the audacious identifications and political practices endemic to an abolitionist pedagogy? There is something profoundly indelible and emboldening in realizing that one’s “own” political struggle is deeply connected to a vibrant, robust, creative, and beautiful legacy of collective imagination and creative social labor (and of course, there are crucial ways of comprehending historical liberation struggles in all their forms, from guerilla warfare to dance). While I do not expect to arrive at a wholly satisfactory pedagogical endpoint anytime soon, and am therefore hesitant to offer prescriptive examples of “how to teach” within an abolitionist framework, I also believe that rigorous experimentation and creative pedagogical radicalism is the very soul of this praxis. There is, in the end, no teaching formula or pedagogical system that finally fulfills the abolitionist social vision, there is only a political desire that understands the immediacy of struggling for human liberation from precisely those forms of systemic violence and institutionalized dehumanization that are most culturally and politically sanctioned, valorized, and taken for granted within one’s own pedagogical moment. To refuse or resist this desire is to be unaccountable to the historical truth of our moment, in which the structural logic and physiological technologies of social liquidation (removal from or effective neutralization within civil society) have merged with history’s greatest experiment in punitive human captivity, a linkage that increasingly lays bare racism’s logical outcome in genocide.18 Abolitionist Position and Praxis Given the historical context I have briefly outlined, and the practical-theoretical need for situating an abolitionist praxis within a longer tradition of freedom struggle, I contend that there can be no liberatory teaching act, nor can there be an adequately critical pedagogical practice, that does not also attempt to become an abolitionist one. Provisionally, I am conceptualizing abolition as a praxis of liberation that is creative and experimental rather than formulaic and rigidly programmatic. Abolition is a “radical” political position, as well as a perpetually creative and experimental pedagogy, because formulaic approaches cannot adequately apprehend the biopolitics, dynamic statecraft, and internalized violence of genocidal and proto-genocidal systems of human domination. As a productive and creative praxis, this conception of abolition posits the material possibility and historical necessity of a social capacity for human freedom based on a cultural-economic infrastructure that supports the transformation of oppressive relations that are the legacy of genocidal conquest, settler colonialism, racial slavery/capitalism,19 compulsory hetero-patriarchies, and global white supremacy. In this sense, abolitionist praxis does notsingularly concern itself with the “abolition of the prison industrial complex,” although it fundamentally and strategically prioritizes the prison as a central site for catalyzing broader, radical social transformations. In significant part, this suggests envisioning and ultimately constructing “a constellation of alternative strategies and institutions, with the ultimate aim of removing the prison from the social and ideological landscape of our society.”20 In locating abolitionist praxis within a longer political genealogy that anticipates the task of remaking the world under transformed material circumstances, this position refracts the most radical and revolutionary dimensions of a historical Black freedom struggle that positioned the abolition of “slavery” as the condition of possibility for Black—hence “human”—freedom. To situate contemporary abolitionism as such is also to recall the U.S. racist state’s (and its liberal allies’) displacement and effective political criminalization of Black radical abolitionism through the 13th Amendment’s 1865 recodification of the slave relation through the juridical reinvention of a racial-carceral relation: Given the institutional elaborations of racial criminalization, policing, and massive imprisonment that have prevailed on the 13th Amendment’s essential authorization to replace a regime of racist chattel slavery with racist carceral state violence, it is incumbent on the radical teacher to assess the density of her/his entanglement in this historically layered condition of End Page 15 violence, immobilization, and capture. Prior to the work of formulating an effective curriculum and teaching strategy for critically engaging the prison industrial complex, in other words, is the even more difficult work of examining the assumptive limitations of any “radical pedagogy” that does not attempt to displace an epistemological and cultural common sense in which the relative order and peace of the classroom is perpetually reproduced by the systemic disorder and deep violence of the prison regime. In relation to the radical challenging of common sense discussed above, another critical analytical tool for building an abolitionist pedagogy entails the rigorous, scholarly dismantling of the “presentist” and deeply ahistorical understanding of policing and prisons. Students (and many teachers) frequently enter such dialogues with an utterly mystified conception of the policing and prison apparatus, and do not generally understand that 1) these apparatuses in their current form are very recent creations, and have not been around “forever”; and 2) the rise of these institutional forms of criminalization, domestic war, and mass-scale imprisonment forms one link in a historical chain of genocidal and proto-genocidal mobilizations of the racist state that regularly take place as part of the deadly global process of U.S. nation-building. In other words, not only is the prison regime a very recent invention of the state (and therefore is neither a “permanent” nor indestructible institutional assemblage), but it is institutionally and historically inseparable from the precedent and contemporaneous structures of large-scale racist state violence. Asserting the above as part of the core analytical framework of the pedagogical structure can greatly enable a discussion of abolitionist possibility that thinks of the critical dialogue as a necessary continuation of long historical struggles against land conquest, slavery, racial colonialism, and imperialist war. This also means that our discussions take place within a longer temporal community with those liberation struggles, such that we are neither “crazy” nor “isolated.” I have seen students and teachers speak radical truth to power under difficult and vulnerable circumstances based on this understanding that they are part of a historical record. I have had little trouble “convincing” most students—across distinctions of race, class, gender, age, sexuality, and geography—of the gravity and emergency of our historical moment. It is the analytical, political, and practical move toward an abolitionist positionality that is (perhaps predictably) far more challenging. This is in part due to the fraudulent and stubborn default position of centrist-to-progressive liberalism/reformism (including assertions of “civil” and “human” rights) as the only feasible or legible response to reactionary, violent, racist forms of state power. Perhaps more troublesome, however, is that this resistance to engaging with abolitionist praxis seems to also derive from a deep and broad epistemological and cultural disciplining of the political imagination that makes liberationist dreams unspeakable. This disciplining is most overtly produced through hegemonic state and cultural apparatuses and their representatives (including elected officials, popular political pundits and public intellectuals, schools, family units, religious institutions, etc.), but is also compounded through the pragmatic imperatives of many liberal and progressive nonprofit organizations and social movements that reproduce the political limitations of the End Page 16 nonprofit industrial complex.22 In this context, the liberationist historical identifications hailed by an abolitionist social imagination also require that such repression of political-intellectual imagination be fought, demystified, and displaced. Perhaps, then, there is no viable or defensible pedagogical position other than an abolitionist one. To live and work, learn and teach, and survive and thrive in a time defined by the capacity and political willingness to eliminate and neutralize populations through a culturally valorized, state sanctioned nexus of institutional violence, is to better understand why abolitionist praxis in this historical moment is primarily pedagogical, within and against the “system” in which it occurs. While it is conceivable that in future moments, abolitionist praxis can focus more centrally on matters of (creating and not simply opposing) public policy, infrastructure building, and economic reorganization, the present moment clearly demands a convening of radical pedagogical energies that can build the collective human power, epistemic and knowledge apparatuses, and material sites of learning that are the precondition of authentic and liberatory social transformations. The prison regime is the institutionalization and systemic expansion of massive human misery. It is the production of bodily and psychic disarticulation on multiple scales, across different physiological capacities. The prison industrial complex is, in its logic of organization and its production of common sense, at least proto-genocidal. Finally, the prison regime is inseparable from—that is, present in—the schooling regime in which teachers are entangled. Prison is not simply a place to which one is displaced and where one’s physiological being is disarticulated, at the rule and whim of the state and its designated representatives (police, parole officers, school teachers). The prison regime is the assumptive premise of classroom teaching generally. While many of us must live in labored denial of this fact in order to teach as we must about “American democracy,” “freedom,” and “(civil) rights,” there are opportune moments in which it is useful to come clean: the vast majority of what occurs in U.S. classrooms—from preschool to graduate school—cannot accommodate the bare truth of the proto-genocidal prison regime as a violent ordering of the world, a primary component of civil society/school, and a material presence in our everyday teaching acts. As teachers, we are institutionally hailed to the service of genocide management, in which our pedagogical labor is variously engaged in mitigating, valorizing, critiquing, redeeming, justifying, lamenting, and otherwise reproducing or tolerating the profound and systemic violence of the global-historical U.S. nation building project. As “radical” teachers, we are politically hailed to betray genocide management in order to embrace the urgent challenge of genocide abolition. The short-term survival of those populations rendered most immediately vulnerable to the mundane and spectacular violence of this system, and the long-term survival of most of the planet’s human population (particularly those descended from survivors of enslavement, colonization, conquest, and economic exploitation), is significantly dependent on our willingness to embrace this form of pedagogical audacity.PIC Child AbuseCP Text: abolish plea bargaining in all instances except for child rape and abuse casesDemarest 94- United States Supreme Court Justice Carolyn E., Plea Bargaining Can Often Protect the Victim, April 15, 1994, , December 9, 2017 CLI believe the public is ill served by perpetuation of the myth that plea bargaining is a copout by the criminal justice system that provides cover for lazy judges, prosecutors and defense counsel alike. As a Supreme Court Justice assigned to the criminal term in Brooklyn, I am committed to due process for all, including not only the accused, but especially the victim and the community. I believe all cases ought to be tried on the merits, but the numbers do not permit this. Apart from the simple reality of too many cases for the limited resources available, there are substantial benefits to be derived from plea bargaining that better serve the community than taking every case to trial. Often a crime victim is very young or elderly, or otherwise infirm and does not want to be subjected to the rigors of trial, to have to relive in the presence of the accused the detailed horrors of victimization. In rape and abuse cases particularly, an accuser is often treated on the witness stand as the accused and must have great fortitude to endure cross-examination. In such cases, acceptance of a plea to a lesser crime, with a less-than-maximum sentence, may be mercy not only for the accused but also for the accuser, even as it exacts reasonable retribution and seeks to prevent future crime. In some cases, the judge and lawyers know of compelling evidence of guilt (for example, a confession), but know the jury will have to decide the case without such evidence because it has been suppressed as improperly obtained under applicable rules of law. At times a witness or complainant may be unreliable, unavailable, uncooperative or inherently incredible because of life-style, character or criminal history, or even, unfortunately, physical impediments, which will render his or her testimony less credible before a jury. In those cases a plea will insure a conviction where a trial may result in acquittal. To insure against wrongful conviction through coercion of the innocent, a plea requires the accused to admit the details of criminal acts, following a waiver of rights described by the court. Only when the court is satisfied, based on the accused's own statements, that he is guilty of a crime, may a plea be accepted.Children experience lasting psychological and emotional trauma from having to testify with their abusers in court- having access to plea bargains in this instance means these children will never face the courtoomWeiss and Burg 80- associate clinical professor of psychiatry, Georgetown, coordinator of clinical services, Child Sexual Abuse Victim Assistance Project Edward and Regina, Child Victims of Sexual Assault: Impact of Court Procedures, October 1980, (09)60804-9/pdf, 9 December 2017 CLBecause of the way in which the legal system is structured, the child often experiences much stress and anxiety during legal proceedings. During the law enforcement process, the child will be expected to relate the details of their sexual abuse many times to the police, medical and social work personnel, prosecutor, grand jury, and at the trial itself. Children are naturally reluctant to repeat the details of the sexual abuse and often give stories that are inconsistent or unclear. With the younger child, repression and denial may cause the child to have difficulty remembering accurately the details of their assault each time he or she is interviewed. These defenses normally called into play in order to protect the child from further emotional insult may cause law enforcement personnel to disbelieve the child's statements. In turn, they often react to the child with impatience, hostility, or blame, causing additional emotional trauma to the child. Trips to the police station, court buildings, and other unfamiliar places disrupt the child's routine and can be frightening. Court procedures themselves may also intimidate the child and family. Lack of preparation of the child by the prosecuting attorney and the last minute postponements of the court trial, coupled with the child's general anxiety about testifying in court and fear of seeing the alleged offender, all place additional stress on the child. B.L., a 7-year-old girl, was sexually molested by her mother's boyfriend, who threatened to harm her physically if she told her mother. The incident was discovered by her mother, who reported it to the police, and her boyfriend was jailed. The trial was postponed several times with only a few hours' notice given to the mother. B.L. began to experience increased stress at each court delay. She had nightmares of her mother's boyfriend trying to kill both her and her mother. She experienced separation anxiety fears such as fearfulness of her mother leaving her alone in the house and fearfulness of going to school. For this child, postponement of the trial was interpreted as meaning her mother's boyfriend was going to be released from jail and carry out his threats of killing both her and her mother.28 Brentwood ELi Aff RacePlea bargaining is the criminal justice system and the criminal justice system is the modern plantation. Plea bargaining undergirds the transformation of chattel slavery and black codes to sentencing regimes manifesting as mandatory minimums and the prison industrial complex Heiner 16 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIn his autobiographical texts, … and racially oppressed. Best and most recent statistics prove plea bargaining is unquestionably discriminatory - it controls black incarceration and criminalizationBerejo 17 Berdejó, Carlos (Before joining the faculty at Loyola Law School, Carlos was a graduate student at Harvard University, where he obtained his PhD in Economics. As a doctoral student, he devoted much of his scholarship to the interaction of law and economics, and in particular to understanding the impact of judicial institutions on judges' behavior. Prior to beginning his graduate studies, he practiced as a corporate attorney in New York, representing Latin American clients in various types of financings and in related securities law matters. His current research employs economic tools to further our understanding of the regulation of securities and other investments and of how legal regimes influence corporations' financing decisions.), Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39. Available at SSRN: BWSWJThe racial disparities … later in the article. 174Plea bargaining is the procedural entrapment that sustains mass incarceration - the unreviewable power of the prosecutor strips bodies of rights and sediments racial dominationHeiner 2 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJThe systematic practice of … people of color.82The intricate mechanics of the misdemeanor process racialize crime and mark black folks as criminals absent the presumption of innocence. Prioritizing efficiency over truth creates the stereotype of the black offender and causes mass incarceration.Natapoff 12 Natapoff, Alexandra (Professor of Law UC Irvine Law School; Expertise: Criminal law and procedure, misdemeanors, informants, public defense, law and inequality Background: Professor Natapoff's scholarship has won numerous awards, including a 2016 Guggenheim Fellowship, the 2013 Law and Society Association Article Prize, and two Outstanding Scholarship Awards from the AALS Criminal Justice Section. Her original work on criminal informants has made her a nationally-recognized expert: her book Snitching won the 2010 ABA Silver Gavel Award Honorable Mention for Books. Professor Natapoff's current work-including her new book-focuses on misdemeanors and their powerful influence over the criminal system as a whole. She has presented her misdemeanor work at numerous institutions including Harvard, the University of Chicago, the ABA, and the National Science Foundation. Professor Natapoff is a member of the American Law Institute; in 2015 she was appointed as an Adviser to the ALI Policing Project. She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets. Prior to joining the academy, Professor Natapoff served as an Assistant Federal Public Defender in Baltimore, Maryland, and was the recipient of an Open Society Institute Community Fellowship. She clerked for the Honorable David S. Tatel, U.S. Court of Appeals, District of Columbia, and for the Honorable Paul L. Friedman, U.S. District Court, Washington, D.C.), Misdemeanors (February 24, 2012). 85 Southern California Law Review 101 (2012); Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: BWSWJThe misdemeanor process … the penal system.PlanPlan Text: The Supreme Court of the United States, in the next available test case, ought to rule the practice of plea bargaining unconstitutional on the basis that it violates the equal protection analysis established in State v. Russell.Kruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJSimilarly, courts could … arbitrary or illegitimate. 27 "Crash the system and let its ruthless efficiency collapse under its own weight. The aff causes a wide scale restructuring of the CJS.Alexander 12 MICHELLE ALEXANDER (Michelle Alexander is a highly acclaimed civil rights lawyer, advocate, and legal scholar. In recent years, she has taught at a number of universities, including Stanford Law School, where she was an associate professor of law and directed the Civil Rights Clinics. In 2005, she won a Soros Justice Fellowship, which supported the writing of The New Jim Crow, and that same year she accepted a joint appointment at the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University. Since its first publication,The New Jim Crow has received rave reviews and has been featured in national radio and television media outlets, including MSNBC, NPR, Bill Moyers Journal, Tavis Smiley, C-SPAN, and Washington Journal, among others. In March, the book won the 2011 NAACP Image Award for best nonfiction.); ; MARCH 10, 2012; NYTIMES; BWSWJAFTER years as a … to risk our lives."Absent plea bargaining, the politics of carcerality become unsustainable - the aff opens up space for decriminalization and exposing the contradiction of the lawHeiner 3 Brady Heiner (Affiliated Faculty of African American Studies, California State University, Fullerton, CA); ; "The procedural entrapment of mass incarceration: Prosecution, race, and the unfinished project of American abolition"; Philosophy and Social Criticism 2016, Vol. 42(6) 594-631BWSWJIt would be difficult … leased convict laborers.139Davis precedent allows judicial racism to go unchecked - Russell analysis opens the floodgates to challenge discriminatory policiesKruse 93 summarizes Jeffery A. Kruse, Kruse doesn't think the plan is the optimal strategy, but explains how it would be possible, ubstantive Equal Protection Analysis Under State V. Russell, And The Potential Impact On The Criminal Justice System, 50 Wash . and L ee L. Rev . 1791 (1993), ; BWSWJIn State v. Russell, 2 … of many criminal procedures.FramingThis round should be centered on mass incarceration - Ethics in the age of the prison industrial complex require a stance against its specific violence Roberts 4 Roberts, Dorothy E. (Dorothy Roberts, an acclaimed scholar of race, gender and the law, joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science and Society in the Center for Africana Studies. Her pathbreaking work in law and public policy focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans. Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.), "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. 583.; BWSWJThus, the unprecedented … ' sense of justice.Reject neg args - We're subconsciously primed towards a continuation of plea bargaining Gocha 16 Alan J. Gocha (Alan's practice is primarily focused on complex intellectual property litigation in electrical, mechanical and software matters. He has experience in both defending against and asserting copyright, trademark, and patent rights. Alan has served as lead counsel in a number of cases, both in state and federal court. He also has experience in appellate advocacy and arbitration. His experience touches a broad range of practice areas, including employment, civil rights, corporations, nonprofit, and bankruptcy law. As an attorney, Alan has provided hundreds of hours of pro bono legal services. Alan has a Bachelor of Arts in Philosophy from the University of Michigan and received his Juris Doctor from Georgetown University Law Center in 2016 where he was an editor for the Georgetown Journal of Legal Ethics. He also received a full tuition scholarship to study Communications at Wayne State University, where he ranked nationally on the university policy debate team. While in law school, he was named an Exceptional Pro Bono Pledge Honoree and winner of the first annual Justin Hansford Student Essay Contest, hosted by the Georgetown Journal on Law and Modern Critical Race Perspectives, for his essay titled The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice.), The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 Geo. J. L. and Mod. Critical Race Persp. (2016) Hein BWSWJAt a cursory glance, the … for state-sponsored oppression. 9Prioritize slow violence---obsession with short timeframe impacts obscures structural factors. Rob Nixon 10. Rachel Carson Professor of English, University of Wisconsin-Madison. "Slow Violence and the Environmentalism of the Poor." Pages 1-14. 2010.When Lawrence Summers, then president of the World Bank, advocated that the bank develop a scheme to export rich nation garbage, toxic waste, and heavily polluting industries to Africa, he did so in the calm voice of global managerial reasoning.' Such a scheme. Summers elaborated, would help correct an inefficient global imbalance in toxicity. Underlying his plan is an overlooked but crucial subsidiary benefit that he outlined: offloading rich-nation toxins onto the world's poorest continent would help ease the growing pressure from rich-nation environmentalists who were campaigning against garbage dumps and industrial effluent thai they condemned as health threats and found aesthetically offensive. Summers thus rationalized his poison-redistribution ethic as offering a double gain: it would benefit the United States and Europe economically, while helping appease the rising discontent of rich-nation environmentalists. Summers' arguments assumed a direct link between aesthetically unsightly waste and Africa as an out-of-sighl continent, a place remote from green activists' terrain of concern. In Summers' win win scenario for the global North, the African recipients ot his plan were triply discounted: discounted as political agents, discounted as long-term casualties of what 1 call in this book "slow violence," and discounted as cultures possessing environmental practices and concerns … ongoing, belated casualties.No counterplans - negatives must defend the squoPlants 89 COUNTERPLANS RE-VISITED: THE LAST SACRED COW? J. Daniel Plants, Baylor University 1989 - Punishment Paradigms : Pros and Cons; BWSWJThe notion of "as compared … object to such strategies.28 Brentwood ELi Neg Blocks CircumventionPlea bargaining bans will be circumvented – drives underground which is net worseBarkow 5 Barkow, Rachel E (Rachel Elise Barkow is an American professor of law at the New York University School of Law. She is also faculty director of the Center on the Administration of Criminal Law.) . "Separation of powers and the criminal law." Stan. L. Rev. 58 (2005): 989.Hein BWSWJThere are two...fact exacerbate them.Past attempts to ban were circumventedThe Economist, 11-9-2017 "The troubling spread of plea-bargaining from America to the world," Economist, BWSEKLAnd yet so... was eventually rescinded.Every ban on plea bargaining in U.S. history has been circumvented Scott Howe 2005 Professor of Criminal Law @ Chapman University 'The Value of Plea Bargaining' Oklahoma Law Review. Vol. 58:599. BWSEKLEfforts to simply...of eliminating bargaining.74CP ReformCP Text: Instead of abolishing plea bargaining, the United States criminal justice system should reform plea bargaining to require written plea agreements, prohibit waivers of critical rights, provide broad pre-plea discovery, strengthen judicial oversight, adopt limits on Plea Discounts Courts, and limit sentencing concessions offered by prosecutors. Turner is the solvency advocateTurner 3/17 – Jenia Iontcheva Turner is a professor of law at Southern Methodist University (Dedman School of Law). “Plea Bargaining,” March 13, 2017 Written...to consider them.“Crashing the system” is unrealistic—reform is much better and has already been successful on the state level.Walsh 12/17 – Daniel Walsh is a writer for the Atlantic. “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” May 2, 2017 theory, abolishing...however that’s defined.”DA Court ClogCourts not overwhelmed now – reforms like plea bargaining mean judges can handle caseloadPryor 11/29 William Pryor (William H. Pryor Jr. is a judge on the United States Court of Appeals for the 11th Circuit and acting chairman of the United States Sentencing Commission.); NOV. 29, 2017; ; “Conservatives Should Oppose Expanding the Federal Courts”; NYT Op-Ed; BWSWJBIRMINGHAM, Ala. — A...should be opposed.The aff creates a 30x increase in trialsKim 2015, Andrew Chongseh Kim (Assistant Professor, Concordia University School of Law; B.A., University of Chicago), “UNDERESTIMATING THE TRIAL PENALTY: AN EMPIRICAL ANALYSIS OF THE FEDERAL TRIAL PENALTY AND CRITIQUE OF THE ABRAMS STUDY,” Mississippi Law Journal, 2015, The greatest and...to a halt.32Abolishing plea bargaining would increase resource demand by 1,000- 10 reduction in guilty pleas = doubling in resources- 10 x 10 = 1000 increaseSavitsky 9 Savitsky, Douglas (Department of Economics, University of Conneticut), 2009, Doctoral Thesis, The problem with plea bargaining: Differential subjective decision making as an engine of racial disparity in the United States prison system. Cornell University. BWSWJPlea bargaining is...percentage of victories.Plea bargaining would create a massive jam in the court systemWalsh 17 Dylan Walsh; May 2, 2017; ; Why U.S. Criminal Courts Are So Dependent on Plea Bargaining; BWSWJShondel Church was...system “less awful.”Court clog turns caseRoss 6 Ross, Jaqueline E. (2006). The Entrenched Position of Plea Bargaining in United States Legal Practice. The American Journal of Comparative Law, 54, 717-732. Retrieved from BWSWJRobert Scott and ...trials and illegitimacy. A clogged court creates shoddy trials and illegitimacy. Stern 03, J.D. Candidate, 2003, (Toby J. Stern, “Federal Judges and Fearing The ‘Floodgates of Litigation’,” University of Pennsylvania Law School; B.A., 2001, The Johns Hopkins University, (2003).pdf, accessed on 7/12) ABThere are myriad effects of the rise in litigation over the past forty years. This section considers some of the effects that the caseload rise has had on federal judges and their work.In analyzing the...of profound uncertainty."0 8 sDA Impeachment (?? Where’s the link?)Uniqueness/LinkTrump’s impeachment odds are at an all time high – betting markets proveJason Le Miere, 12-1-2017, "Trump impeachments odds skyrocket after Michael Flynn agrees to cooperate with Mueller investigation," Newsweek, BWSEKLThe odds of...and for all.Trump’s delusions and recklessness will compel him to start a nuclear war with North Korea – multiple psychiatrists agreeJason Le Miere, 11-29-2017, "Trump’s conspiracy theory delusions will likely lead to nuclear war with North Korea, psychiatrists warn," Newsweek, BWSEKLPresident Donald Trump’s... millions of lives.”Soft Power remains intact after Trump, but is on the decline and risks catastrophe -USNWR US News and World Report, 7-25-2017, "The Strength in Soft Power," , experts say.Soft power is an impact filter Rieffel 5 –Brookings Institution, writing fellow “REACHING OUT: AMERICANS SERVING OVERSEAS By Lex Rieffel Visiting Fellow The Brookings Institution” 1775 Massachusetts Avenue, NW Washington, DC 20036-2103 December 2005http:brookings.edu//media/research/files/papers/2005/12/07volunteering20rieffel/20051207rieffelThe devastation of...or police force. Theory Spec PBSpecInterp: The affirmative must specify what forms of plea bargaining they abolish with minimally a delineated text in the 1AC. To clarify, it is not sufficient to just say all plea bargaining29 HW JC Aff Stock (c&p)ACAdvantage 1 DiscretionSessions repressive criminal justice system results from heavy-handed prosecutors entrusted with a wide range of discretion. This makes reform and grassroots organizing impossible without addressing prosecutorial power.Pendergrass 5/26 - Taylor Pendergrass, Strategic Advisor, Smart Justice Campaign MAY 26, 2017 | 4:15 PM May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move was quickly denounced by dozens of locally elected prosecutors. But Sessions’ recent actions should also make clear that there is more fundamental problem with prosecutorial power than simply how it is used. Sessions’ policy is not actually new. In 2003, then-Attorney General John Ashcroft first issued memos directing federal prosecutors to pursue the most serious charges against people accused of federal drug crimes. Holder then rescinded that policy in 2010. Sessions’ memo this month revokes Holder’s policy and essentially returns to the Ashcroft approach. The freedom, dignity, and lives of tens of thousands of Americans should not see-saw back-and-forth based only on policy prerogatives of a single prosecutor. Put simply, that is just far too much power for anyone to have, regardless of whether that person is Jeff Sessions, Eric Holder, or Larry Krasner. For that reason, the long view for prosecutorial reform must also be equally focused on across-the-board changes reducing prosecutorial power. Those reforms must include far more transparency, accountability, and oversight of prosecutorial offices; closer scrutiny by policymakers before approving prosecutorial budgets; permanently diverting public health issues, including drug use, entirely outside the criminal justice system; and sentencing reforms that vastly reduce the severity of punishments available to prosecutors and dramatically increase the availability of non-incarceration alternatives like restorative justice.Plea Bargaining incentivizes defendants waiving their rights through coercion. Green, from Stein Center for law and ethics, 13 - Bruce A. Green* BIO: * Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham University School of Law. Plea Bargaining After Lafler and Frye: Article: The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process "Too Long, Too Expensive, and Unpredictable. . . in Pursuit of Perfect Justice"? Summer, 2013 51 Duq. L. Rev. 735First, prosecutors often require defendants to waive criminal procedure rights other than trial rights in exchange for a lenient plea deal. For example, some prosecutors require defendants to waive the right to appeal and to seek other post-conviction relief, n28 including the right to redress sentencing errors that have not yet occurred. n29 The prosecu-tor's asserted objective is to conserve administrative and judicial resources and achieve finality by assuring that no more proceedings ensue. This means, however, that even past, unidentified errors and future, unanticipated ones cannot be corrected--for example, legal and factual errors that will later occur in sentencing. One might argue that these waivers reflect an abuse of prosecutorial power, given the public interest in ensuring that criminal proceedings are fair and that significant procedural errors are corrected. Prosecutors routinely seek to vindicate this fair-process interest when they appeal to correct [*743] purportedly illegal sentences that they believe to be too low. If the public interest in cor-recting procedural errors outweighs the countervailing public interests when sentences are too low, then one would think that the same interest in correcting errors would be paramount when sentences are too high, particularly given the liberty interest that is also implicated. Prosecutors also extract waivers of rights designed not simply to promote procedural fairness but to rectify con-victions of the innocent. In particular, prosecutors have sometimes required defendants to waive the right to DNA test-ing to attempt to establish their innocence. n30 The Supreme Court has allowed the prosecution also to use its leverage to extract waivers of civil rights. For example, the Court has held that it is constitutional to condition the dismissal of criminal charges on the defendant's waiver of the right to bring a civil rights claim to redress abuses by law enforcement officers. n31 Prosecutors have also conditioned leniency on non-citizens' consent to deportation, n32 on professionals' relinquishment of licenses, n33 or on the relinquishment of other rights unrelated to the criminal proceedings. It is interesting to contemplate whether there are any rights that the Supreme Court would not permit criminal de-fendants to waive, or that prosecutors as a matter of ethics or self-restraint would never compel defendants to waive, in exchange for leniency. The Court has left open the question of whether prosecutors can negotiate for defendants to waive the due process right to receive pre-trial disclosures of exculpatory evidence. n34 Although the American Bar Association has concluded that prosecutors have a non-negotiable ethical duty to disclose favorable evidence to the defense, n35 prosecutors do not necessarily accept the bar association's assessment. Perhaps the most fundamental pro-cedural right, and one not waived by a guilty plea, is the right to counsel. [*744] Suppose the prosecutor, to con-serve state resources, required the defendant to forgo appointed counsel and proceed pro se, on the theory that if a de-fendant can waive the right to counsel, n36 the defendant can accept an inducement to do so. One would hope that the Court would regard such a waiver as involuntary or otherwise unacceptable, and that prosecutors would consider it an abuse of power to secure waivers of counsel in any event, but the extant opinions and practices do not guarantee such outcomes. Second, waivers of rights may be extracted not only in exchange for actual leniency but in exchange merely for the opportunity to be considered for lenient treatment that may never materialize. n37 For example, although the evi-dence rules protect against the admission of statements made in plea negotiations, the Supreme Court has held that this protection may be waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be con-sidered for a favorable plea offer to submit to questioning and to agree that, at least in certain circumstances, the prose-cution may offer the defendants' statements in evidence if no plea bargain is concluded. n39 One might question wheth-er this practice accords with prosecutors' duty to ascertain all the relevant facts in order to exercise charging discretion fairly. The traditional proffer agreement (sometimes known as a "queen for a day agreement") protected the prosecution from being disadvantaged by the defendant's proffer. It authorized the prosecution to use the defendant's statements for investigative leads, thereby foreclosing future suppression motions. But the agreement did not allow prosecutors to of-fer the defendant's statements in evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors' unwill [*745] ingness to listen to a defendant's account, which might justify lenient treatment, unless the prosecutor is given this procedural advantage. Prosecutors should not ignore information relevant to their charging and plea-bargaining decisions. n40 But they effectively do so when they refuse to listen to a defendant who does not waive the protection of the evidentiary rule. A controversial example of the pressure to waive procedural rights simply in exchange for the possibility of es-caping harsh outcomes occurs in the context of corporate criminal investigations and prosecutions. A so-called "culture of waiver" n41 of the corporate attorney-client privilege has arisen in response to federal policy governing corporate prosecutions. Corporations are easy to prosecute under statutes providing for vicarious corporate criminal liability for criminal wrongdoing by corporate representatives. n42 Under federal policy, companies can typically avoid prosecu-tion if they cooperate with criminal investigators. Knowing this, companies whose representatives are suspected of wrongdoing routinely hire lawyers to conduct expensive internal investigations and provide the results to the prosecu-tion in exchange for leniency. n43 Exploiting the leverage afforded by corporate criminal statutes, prosecutors have transformed the investigation and prosecution of corporate crime in a manner that, from the prosecution's perspective, is undoubtedly cheaper, quicker, more effective, and unrestrained by procedural restrictions on investigative methods. Finally, waivers of rights may be extracted in exchange for benefits other than lenient charging and sentencing. n44 For example, low-level defendants may be required to waive their rights as a condition of diversion to prob-lem-solving and specialized courts. Mental health courts, drug courts, veterans courts and other specialized courts are praiseworthy in many respects, including in their recognition of low-level offenses as symptomatic of broader [*746] individual problems, such as addiction or mental illness, and in offering alternatives to incarceration, including treat-ment. But, in some jurisdictions, defendants who seek to have their cases diverted to these alternative courts are re-quired to relinquish procedural rights in exchange, and some defendants ultimately end up worse off for having done so. For example, defendants in some drug courts are required to plead guilty and face harsher punishment if they are un-successful in their drug treatment program than if they had simply gone to criminal court and participated in the tradi-tional plea bargaining process. n45 As a condition of obtaining treatment in lieu of incarceration, defendants in some problem-solving courts also tacitly forgo the right to counsel, who will function as a zealous advocate, because defense counsel is expected to join the therapeutic team. n46 It is fatuous to suggest that defendants waiving rights in the contemporary criminal process are seeking relief from a rights-driven trial process rather than from harsh outcomes. One might even question whether prosecutors are sacri-ficing anything meaningful in this system of waivers in order to obtain relief from the length, expense and unpredicta-bility of the trial process occasioned by overly protective judicial decisions. Criminal defendants are sacrificing proce-dural protections, but prosecutors give up little. Rather, prosecutors use their leverage, in a manner legitimized by judi-cial decisions, to achieve results they generally regard as just. Although the system promotes prosecutors' administra-tive interests, they are impelled to give up little in exchange. [*747] Deconstructing the efficiency mindset that guides plea bargaining is capable of subverting the fundamental unfairness of the entire CJS.Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24, 2009. Dr. Weil has published more than seven books on education in the past 20 years. November 07, 2012 What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state. If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked: What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit? From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos." The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need. One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.This results in cycles of criminalization, dehumanization, and structural violence. TONY N. BROWN AND EVELYN PATTERSON [they’re both assistant professors of sociology @ Vanderbilt] June 28, 2016 bias and disparities It gets worse: Lady Justice is far from colorblind. Michelle Alexander memorably labeled mass incarceration “The New Jim Crow” in her landmark book of the same name. African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American men will experience prison; white men’s risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars. Collateral damage and scarring effects The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems. In addition, women partnered with inmates suffer from depression and economic hardship. One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not, despite what many people believe. Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking and even premature death. The psyche of the formerly incarcerated Our new study looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated. Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery. Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars. We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up. But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And – even more surprisingly – lower than formerly incarcerated men without imprisoned relatives. How could this be possible? After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison. Empathetic inurement Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this “empathetic inurement” follows these men back into the community. We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers. How incarceration injures humanity Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime. But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one’s ability to secure certain federal benefits or get a job. These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or “marked” with a felony conviction. Prospects for the future The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States. Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities. Policy makers soon discovered that there was nothing simple about reducing the incarceration rate. Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.Interpedently, rights violations result in rampant totalitarianism and an inability to critique power. Inga Ivsan, University of Miami School of Law & Philip E. Heckerling Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. (2017)Plea bargaining is not necessarily bad in and of itself, but its extreme overuse raises concerns about the U.S. criminal justice system.7 The pleabargaining process does not afford any constitutional or ethical protections.' For example, suppose police obtain evidence illegally, without a warrant. Prosecutors would prefer to keep a case built on warrantless evidence out of court rather than have the illegal police conduct exposed at trial. 9 A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.'o Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on questionable evidence, and accepts a lesser punishment in exchange for sacrificing the defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the subjects of bargaining and barter."" The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had indeed incorporated it into the Sixth Amendment.12 While plea bargains originally were used as a practical compromise between an overburdened prosecutor and a defendant of certain guilt, modernday plea bargains resemble one-sided contracts of adhesion 3 favoring a prosecutor too often holding insufficient evidence14 against a criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being sentenced to purgatory under current sen- tencing guidelines." A rational defendant, particularly in federal court, cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking additional charges' 6 and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size of the financial loss without any requirement that the defendant be found to have intended the loss.' 7 On average, the defendant who turns down a plea offer and is later convicted receives a sentence three times longer than under a plea agreement." Combined with a growing list of vague and poorly drafted statutes defining various crimes, prosecutors can target individuals and coerce them into plea bargains by promising to drop charges against family members' 9 and freezing assets.20 By punishing the defendant with a sentence three times longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary" and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v. United States.2 ' While acknowledging the utility or impossibility of getting rid of plea bargains in the modem criminal justice system, this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors when coupled with incredibly long sentences for those who risk conviction at trial, especially in complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial legal system. First conceived as a convenient procedural tool of expediency, modem plea bargain practice has supplanted trials altogether, severely punishing those few who dare exercise their Sixth Amendment right to trial.2 2 This article proposes a practical solution, one borrowed from the business world, to restore parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in which the government has absolute, unfettered discretion to selectively punish anyone and every- one.23 Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize government power at the expense of individual rights.24 The government enjoyed immense discretion to apply vaguely-written laws to political opponents and other disfavored individuals. 25 Even today, countries such as Iran continue to exploit such prosecutorial mechanisms to suppress freedom of discourse.2 6 The sad irony is that, while the United States may have won the Cold War, its legal institutions have gravitated toward resembling the inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modem American society can possibly know all of his or her individual legal obligations. For example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print.27 With over 5,000 federal criminal laws on the books, one legal scholar has determined that the average person unknowingly commits three felonies every day. 28 Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers, among other white-collar professionals, often operate in perpetual fear of the regulation state. Should their behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of justice or conspiracy, to threaten in order to gain cooperation.2 9 Thus, under the current system of plea bargaining, the adversary legal system is being severely undermined and an innocent individual is sacrificed for the pretense of the public good and its insatiable need to regulate every aspect of individual life. As the hero in Arthur Koestler's Stalinist critique novel Darkness at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind."3 0Advantage 2 Legitimacy Judicial legitimacy and independence threatened now, but federal judges are trying to push back – plea bargains are the crucial way executive branch side steps judges. Alison Frankel legal columnist @reuters, Dartmouth college. NOVEMBER 21, 2017 its face, the decision rejects a misdemeanor plea agreement between Boston federal prosecutors and Aegerion, which stands accused of marketing an extremely expensive high-cholesterol drug to patients who derived no benefit from it. The plea deal was part of a broader pact that required Aegerion to pay $40.1 million to resolve the government’s civil and criminal claims. Judge Young took exception to the terms of the plea because it allowed him no discretion in sentencing the company. Prosecutors and Aegerion reached what is known as a “C plea,” in which they pre-negotiated the pharma company’s sentence, restricting the judge’s options to imposing the agreed-upon sentence or rejecting the plea altogether. (The phrase is a reference to the provision in the Federal Rules of Criminal Procedure that allows these agreements.) Judge Young, who previously rejected a C plea in 2013’s U.S. v. Orthofix, said Aegerion’s plea didn’t adequately address, among other things, the size of the $7.2 million criminal penalty, the sophistication of the alleged fraud and the vulnerability of its victims. “What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” he wrote. “Perhaps these questions do not make economic, real world sense. The point is, I do not know and the proffered ‘C’ plea does not begin to explain the financial picture in detail. Apparently the parties think their representations suffice. They do not.” Like other federal judges in the past decade – most famously, U.S. District Judge Jed Rakoff of Manhattan, to whom Judge Young paid heed in the Aegerion opinion – the judge highlighted the court’s duty of independence. “The moral authority of the third branch of our government,” he said, rests on judges performing the “vital roles” of trying cases and sentencing offenders. Courts ought to be skeptical, he said, of plea agreements that call for judges to exercise neither of those roles. And they have been: Young cited other judges who have rejected C pleas, including U.S. District Judge Donovan Frank of St. Paul in 2010’s U.S. v. Guidant and U.S. District Judge James Donato of San Francisco in a trio of rulings last summer in the government’s price-fixing probe of the electrolytic capacitor industry. It’s after that discussion that Judge Young pushes his thinking beyond what other judges have said about upholding the judiciary’s independence. After the judge first expressed doubts last month about the Aegerion plea agreement, the company and the government tweaked the deal to add a probation period. On Nov. 1, the company’s lawyers at Ropes & Gray submitted a memo justifying the agreement. Among its arguments: The “vast majority” of corporate plea deals are just like Aegerion’s. Pre-negotiated sentences give corporate shareholders and employers certainty about the future of the business, Aegerion said, and serve the government’s interest in encouraging corporations to cooperate in holding accountable the individuals who have actually done wrong. As proof of the benefits of C pleas, Aegerion’s memo listed more than a dozen cases just against pharma companies in Boston federal court in which prosecutors agreed to pre-negotiate corporate sentences. That argument backfired, in a big way, with Judge Young. He looked at the list of pharma defendants that negotiated C pleas with the government and saw something he’d previously overlooked: the “glaring inequity” of a “shocking disparity between the treatment of corporations and individuals in our criminal justice system.” He continued: “Aegerion proves beyond peradventure that a forbidden two-tier system pervades our courts. Corporations routinely get C pleas after closed door negotiations with the executive branch while individual offenders but rarely are afforded the advantages of a C plea. Instead, they plead guilty and face a truly independent judge. This is neither fair nor just; indeed, it mocks our protestations of ‘equal justice under law.’” By accepting C pleas from corporations, Judge Young said, prosecutors imply that the government considers the interests of shareholders and investment bankers more important than those of the “innocent wives, children, neighbors and colleagues” of individual offenders. Why should corporations be allowed effectively to skirt the courts? The American jury system, in Judge Young’s view, is “the purest and most incorruptible justice humankind has ever conceived.” Yet Americans have been infected with what the judge called “a deep and pervasive sense of injustice,” stemming from gender, race and economic disparities. Judge Young said he has never experienced, in nearly 40 years on the bench, the sort of systemic challenge the judiciary seems to face today. In a barbed footnote, the judge cited both Russian attempts to spread fake news about the courts and President Donald Trump’s recent comment that our justice system “is a joke and … a laughingstock.” In that context, the judge said, the judiciary’s legitimacy is undermined by every corporate plea agreement that allows businesses to evade sentencing by a federal judge. Judge Young said he doesn’t understand why prosecutors buckle to corporate demands for C pleas, but he urged the government to stop thinking it has no choice. Prosecutors always have the option of going to trial. “The verdict of an American jury has a moral force incomparably greater than any plea,” he wrote. “That’s why corporations are so desperate to avoid them.” I don’t know if Judge Young’s cri de coeur will hold up on appeal. (Both Aegerion and the Boston U.S. attorney’s office told my Reuters colleague Nate Raymond that they’re still weighing their options.) As you probably remember, the 2nd U.S. Circuit Court of Appeals did not look kindly in 2014 at Judge Rakoff’s concern for the public interest in the Securities and Exchange Commission’s settlement with Citigroup. More recently, the D.C. Circuit rejected U.S. District Judge Richard Leon’s attempt to block a corporate deferred prosecution agreement in 2016’s U.S. v. Fokker Services. When trial judges push the bounds of their authority, appellate courts sometimes push back. But if you care about the courts, you should think about what Judge Young says. He’s a passionate believer in our justice system. He’s given the last 40 years of his life to it. And he’s gravely worried about its perceived legitimacy. Don’t ignore him.A ban on plea bargaining would boost overall perception of legitimacy and community participation. Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials Oct 25, 2012. If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict. Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong. Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most? Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst. The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing. Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors. Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.A compromised judicial system allows rampant fascismFrankel 11/16 - Richard E Frankel is associate professor of modern German history at the University of Louisiana at Lafayette and the author of Bismarck's Shadow. This piece originally appeared on History News Network 16 November 2017 It was a horrifying moment as the President of the United States, perhaps more clearly than at any previous time, expressed the thoughts and desires of an autocrat. And with the announcement that Attorney General Jeff Sessions will explore the possibility of creating a new special counsel to investigate Hillary Clinton, those thoughts and desires have moved that much closer to being realised. Such open calls for criminal investigations of political opponents are truly unprecedented in American history — and for good reason, since they would undermine the very foundation of liberal democracy. If the president could order the FBI to investigate Hillary Clinton, where would it stop? Anyone who spoke out to criticise such a brazen act would be vulnerable to the same treatment. And then any individual or any group — regardless of whether they had actually done anything — would be at the mercy of Trump’s politicised justice system. The President would be able to exclude anyone he wished from the national community. The road to dictatorship would be wide open to him. We know this because it was such a system that helped destroy democracy in Germany and helped Hitler establish his Nazi dictatorship. One of most significant challenges the new Weimar Republic faced was a politicised judicial system — an important element in the weakening of German democracy. One of the key failings of the revolution that toppled the German Empire in 1918 was the failure of the revolutionaries to establish a truly republican judiciary by allowing the judges from the old imperial system to remain on the bench. These were men who’d been trained and established their careers under the old authoritarian system. They had no sympathy for the new liberal, democratic regime. And the verdicts they rendered made this exceedingly clear. Political crimes committed by individuals on the left consistently received longer prison sentences than those committed by people on the right. The best-known example of this skewed system of justice is the case of Adolf Hitler. Arrested in 1923 after having attempted to overthrow the government, he was tried and convicted of treason. The conservative judge sympathised with the young Nazi leader’s goal, if not with his methods, and therefore sentenced him to a mere five years in a rather comfortable prison. He would end up serving only nine months. A justice system that openly flouted the republic’s liberal, democratic values seriously undermined the government’s legitimacy and gave hope to those who continued to work for its destruction. In less than a decade, the battered republic would succumb, thanks in no small measure to the aid and comfort provided to the forces of the right by a politicised illiberal, anti-democratic system of justice. Under Hitler, the justice system became a tool for the establishment of his dictatorship and for the policies of exclusion he pursued. Immediately after coming to power, Adolf Hitler targeted his main political opponents: the German Communist Party. With his fellow Nazi Hermann Goering heading the Interior Ministry, members of the SA were now deputised as auxiliary police and, along with the traditional police forces, tasked with the assault on Germany’s communists. Storm Troopers attacked communists in the streets, arrested them, and brought them to makeshift jails where they beat, tortured, and sometimes killed them. After the communists, it was the Socialists’ turn to experience Hitler’s brand of justice. Those not beaten or tortured to death were driven underground, into exile, or were sent to the new concentration camps being built and operated by the SS. To the new Chancellor, the communists and socialists were not simply political opponents. They were enemies, traitors who had already betrayed the nation in the First World War and toppled the old regime in revolution. As a result, those who participated in this bloody state-sponsored rampage would face no legal consequences. Not only that, but “enemies” accused of crimes could face punishments far more severe than the law would normally allow. The man accused of setting the Reichstag building ablaze as the first step in a communist uprising, for example, should have faced a straightforward prison sentence. But Hitler’s desire for what he considered justice led him to pressure the Justice Minister Franz Gürtner (also a judicial holdover from the Empire) to write a new law — an ex post facto law that made the alleged arsonist’s crime a capital offense. Hitler had begun to subvert the law to serve his political goals. Police and judicial authority had to be subordinated to the will of the leader. A politicised justice system would allow him to target and eliminate any and all groups he considered outside the bounds of the German national community. One of the most important steps for any would-be autocrat is to gain control of the justice system and turn it into a tool for the elimination of any and all opposition. Normally that’s something that Americans observe from a distance — in the pages of history books or newspapers telling of coups and show trials and the exiling or execution of political challengers in some distant country or from some other period. Perhaps such distance has lulled Americans into a false sense of security. That’s something that only happens “over there,” or “back in those times.” The American tradition of liberalism and democracy will protect us. We’re exceptional. But it’s precisely that self-confidence — more like self-delusion — that can work to Donald Trump’s advantage. His clearly anti-democratic statements and wishes can be shrugged off as mere rhetoric. How many people early on dismissed Hitler as a buffoon? How many people doubted he’d last any longer in office than his two most recent predecessors? Far more quickly than anyone would have imagined possible — helped greatly by the unforeseen Reichstag fire — Hitler had succeeded in bending the courts and the police to his will. By that point it was too late. German democracy was not destroyed in a coup or a violent revolution. It was undermined from within. Circumstance and Hitler’s determination did the rest.And, checking trump is key to prevent existential riskBaum 16 — Seth Baum, Co-Founder and Executive Director of the Global Catastrophic Risk Institute, Affiliate Researcher at the Center for Research on Environmental Decisions at Columbia University, and Affiliate Scholar at the Institute for Ethics and Emerging Technologies, and a Research Scientist at Blue Marble Space Institute of Science, earned a Ph.D. in Geography from Pennsylvania State University, an M.S. in Electrical Engineering from Northeastern University, and a B.S. in Optics and a B.S. in Applied Mathematics from the University of Rochester, 2016 (“What Trump means for global catastrophic risk,” Bulletin of Atomic Scientists, December 9th, Available Online at )In 1987, Donald Trump said he had an aggressive plan for the United States to partner with the Soviet Union on nuclear non-proliferation. He was motivated by, among other things, an encounter with Libyan dictator Muammar Qaddafi’s former pilot, who convinced him that at least some world leaders are too unstable to ever be trusted with nuclear weapons. Now, 30 years later, Trump—following a presidential campaign marked by impulsive, combative behavior—seems poised to become one of those unstable world leaders. Global catastrophic risks are those that threaten the survival of human civilization. Of all the implications a Trump presidency has for global catastrophic risk—and there are many—the prospect of him ordering the launch of the massive US nuclear arsenal is by far the most worrisome. In the United States, the president has sole authority to launch atomic weapons. As Bruce Blair recently argued in Politico, Trump’s tendency toward erratic behavior, combined with a mix of difficult geopolitical challenges ahead, mean the probability of a nuclear launch order will be unusually high. If Trump orders an unwarranted launch, then the only thing that could stop it would be disobedience by launch personnel—though even this might not suffice, since the president could simply replace them. Such disobedience has precedent, most notably in Vasili Arkhipov, the Soviet submarine officer who refused to authorize a nuclear launch during the Cuban Missile Crisis; Stanislav Petrov, the Soviet officer who refused to relay a warning (which turned out to be a false alarm) of incoming US missiles; and James Schlesinger, the US defense secretary under President Richard Nixon, who reportedly told Pentagon aides to check with him first if Nixon began talking about launching nuclear weapons. Both Arkhipov and Petrov are now celebrated as heroes for saving the world. Perhaps Schlesinger should be too, though his story has been questioned. US personnel involved in nuclear weapons operations should take note of these tales and reflect on how they might act in a nuclear crisis. Risks and opportunities abroad. Aside from planning to either persuade or disobey the president, the only way to avoid nuclear war is to try to avoid the sorts of crises that can prompt nuclear launch. China and Russia, which both have large arsenals of long-range nuclear weapons and tense relationships with the United States, are the primary candidates for a nuclear conflagration with Washington. Already, Trump has increased tensions with China by taking a phone call from Taiwanese President Tsai Ing-wen. China-Taiwan relations are very fragile, and this sort of disruption could lead to a war that would drag in the United States. Meanwhile, Trump’s presidency could create some interesting opportunities to improve US relations with Russia. The United States has long been too dismissive of Moscow’s very legitimate security concerns regarding NATO expansion, missile defense, and other encroachments. In stark defiance of US political convention, Trump speaks fondly of Russian President Vladimir Putin, an authoritarian leader, and expresses little interest in supporting NATO allies. The authoritarianism is a problem, but Trump’s unconventional friendliness nonetheless offers a valuable opportunity to rethink US-Russia relations for the better. On the other hand, conciliatory overtures toward Russia could backfire. Without US pressure, Russia could become aggressive, perhaps invading the Baltic states. Russia might gamble that NATO wouldn’t fight back, but if it was wrong, such an invasion could lead to nuclear war. Additionally, Trump’s pro-Russia stance could mean that Putin would no longer be able to use anti-Americanism to shore up domestic support, which could lead to a dangerous political crisis. If Putin fears a loss of power, he could turn to more aggressive military action in hopes of bolstering his support. And if he were to lose power, particularly in a coup, there is no telling what would happen to one of the world’s two largest nuclear arsenals. The best approach for the United States is to rethink Russia-US relations while avoiding the sorts of military and political crises that could escalate to nuclear war. The war at home. Trump has been accused many times of authoritarian tendencies, not least due to his praise for Putin. He also frequently defies democratic norms and institutions, for instance by encouraging violence against opposition protesters during his presidential campaign, and now via his business holdings, which create a real prospect he may violate the Constitution’s rule against accepting foreign bribes. Already, there are signs that Trump is profiting from his newfound political position, for example with an end to project delays on a Trump Tower in Buenos Aires. The US Constitution explicitly forbids the president from receiving foreign gifts, known as “emoluments.” What if, under President Trump, the US government itself becomes authoritarian? Such an outcome might seem unfathomable, and to be sure, achieving authoritarian control would not be as easy for Trump as starting a nuclear war. It would require compliance from a much larger portion of government personnel and the public—compliance that cannot be taken for granted. Already, government officials are discussing how best to resist illegal and unethical moves from the inside, and citizens are circulating expert advice on how to thwart creeping authoritarianism. But the president-elect will take office at a time in which support for democracy may be declining in the United States and other Western countries, as measured by survey data. And polling shows that his supporters were more likely to have authoritarian inclinations than supporters of other Republican or Democratic primary candidates. Moreover, his supporters cheered some of his clearly authoritarian suggestions, like creating a registry for Muslims and implying that through force of his own personality, he would achieve results where normal elected officials fail. An authoritarian US government would be a devastating force. In theory, dictatorships can be benevolent, but throughout history, they have been responsible for some of the largest human tragedies, with tens of millions dying due to their own governments in the Stalinist Soviet Union, Nazi Germany, and Maoist China. Thanks to the miracles of modern technology, an authoritarian United States could wield overwhelming military and intelligence capabilities to even more disastrous effect. Return to an old world order. Trump has suggested he might pull the United States back from the post-World War II international order it helped build and appears to favor a pre-World War II isolationist mercantilism that would have the United States look out for its unenlightened self-interest and nothing more. This would mean retreating from alliances and attempts to promote democracy abroad, and an embrace of economic protectionism at home. Such a retreat from globalization would have important implications for catastrophic risk. The post-World War II international system has proved remarkably stable and peaceful. Returning to the pre-World War II system risks putting the world on course for another major war, this time with deadlier weapons. International cooperation is also essential for addressing global issues like climate change, infectious disease outbreaks, arms control, and the safe management of emerging technologies. On the other hand, the globalized economy can be fragile. Shocks in one place can cascade around the world, and a bad enough shock could collapse the whole system, leaving behind few communities that are able to support themselves. Globalization can also bring dangerous concentrations of wealth and power. Nevertheless, complete rejection of globalization would be a dangerous mistake. Playing with climate dangers. Climate change will not wipe out human populations as quickly as a nuclear bomb would, but it is wreaking slow-motion havoc that could ultimately be just as devastating. Trump has been all over the map on the subject, variously supporting action to reduce emissions and calling global warming a hoax. On December 5th he met with environmental activist and former vice president Al Gore, giving some cause for hope, but later the same week said he would appoint Oklahoma Attorney General Scott Pruitt, who denies the science of climate change, to lead the Environmental Protection Agency. Trump’s energy plan calls for energy independence with development of both fossil fuels and renewables, as well as less environmental regulation. If his energy policy puts more greenhouse gas into the atmosphere—as it may by increasing fossil fuel consumption—it will increase global catastrophic risk. For all global catastrophic risks, it is important to remember that the US president is hardly the only important actor. Trump’s election shifts the landscape of risks and opportunities, but does not change the fact that each of us can help keep humanity safe. His election also offers an important reminder that outlier events sometimes happen. Just because election-winning politicians have been of a particular mold in the past, doesn’t mean the same kind of leaders will continue to win. Likewise, just because we have avoided global catastrophe so far doesn’t mean we will continue to do so.Plan TextThe Supreme Court of the United States ought to abolish plea bargaining in the United States Criminal Justice System. Jeff Palmer *Executive Editor UT law review, Volume 27, American Journal of Criminal Law; B.S. 1994, West Point; J.D. candidate 2000, The University of Texas School of Law “Abolishing Plea Bargaining: An End to the Same Old Song and Dance” 26 Am. J. Crim. L. 505 1999 Plea bargaining must be abolished. "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." n173 The justifications for plea bargaining are outweighed by the justifications for its abolishment, especially in light of Bailey and the inconsistent treatment of plea agreements. So long as the negotiation of pleas is permitted, it will continue, in actual effect, to deprive great numbers of persons of their right to trial, to hide corruption of public officials by wealthy and pow-erful kingpins of organized crime, and to serve as an escape hatch for the affluent or politically powerful violators of our criminal laws. n174 Rather than being faced with the predicament of letting criminals circumvent the justice system or being coerced to enforce the contract laws of this nation to its detriment, we must return to a system in the not so distant past, where plea bargaining did not exist.Vote AFF to challenge status quo group think – heavily discount neg evidence. Schehr 15 - Robert Schehr* a professor in the department of Criminology and Criminal Justice at Northern Arizona University The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. (2015) Recently an exasperated Professor Albert Alschuler, responding to the Supreme Court's decisions in Lafler and Frye, concluded, "Now, however, the criminal justice system has gone off the tracks, and the rails themselves have disappeared."' The system has become so broken according to Alschuler that "the time may have come for criminal justice scholars to abandon the search for ways to make the criminal justice system fair and principled. The principal mission today should be to make it less awful."2 With great admiration for Alschuler (and a thorough understanding and more than a little angst-ridden commiserating with his palpable discontent), so long as human beings make decisions, they can, through reasoned argument, be influenced to make proper decisions. In steadfastly maneuvering to create a "less awful" criminal-justice system, we may just bump headlong into systemic change. However, in order for that to happen, we will have to unearth the tracks that have long gone missing and avoid careening into the ever-intensifying whirlpool.2 " To that end, the Author joins Professor Stephanos Bibas, who in response to Bowers's anguished recommendation, said the following: It is awfully tempting to give in to the punishment assembly line, to make it speedier and more efficient and surrender any pretense of doing justice. But our conscience cannot brook that. We must fight; we must continue to proclaim our commitment to exonerating the innocent, however inconsistent we are in pursuing that in practice. 30 One of the reasons for systemic stasis is the prevalence of groupthink; the rationalizations for it signify a strong human tendency. Besides, plea-bargaining benefits defense attorneys, prosecu- tors, and quite often defendants.31 But the Author joins the late Christopher Hitchens in his contention that: It is true that the odds in favor of stupidity or superstition or unchecked authority seem intimidating and that vast stretches of human time have seemingly elapsed with no successful challenge to these things. But it is no less true that there is an ineradicable instinct to see beyond, or through, these tyrannical conditions. 2 History is replete with examples of those who refuse to accept the hypocritical or the unjust.3 3 It is the role of the disputant, the rebel, the clever, and the truth-seeker to unmask the Emperor. Their disputations are juxtaposed to the normative platitudes offered up by judges, lawyers, and politicians who recycle well-worn phrases like, "efficiency and necessity," "voluntary contract," "free will," "rational actor," "presumption of innocence," "due process," "public policy," "just result," and "voluntary waiver of rights." Each concept is an empty signifier that must be infused with meaning.3 ' As a matter of legal currency, it is the Court's responsibility to provide us with that meaning.35 With regard to plea-bargaining, the Court has donned the cloak of the weaver and has seen fit to provide a rationalization for plea-bargaining that is driven by the effects of heavy case loads while scurrilously masquerading as defenders of constitutionally protected rights. As Justice Kennedy explained in Frye, "To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. ''36 In both Lafler and Frye, the Supreme Court spuriously situated plea-bargaining as an equitable contract, one where defendants often "game the system." 3 ' To which Alschuler has remarked, "This process ... benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."38 True, the fortunate defendant in a plea context receives a benefit, but only after having been threatened with far harsher punishment upon prospective conviction at trial (a topic addressed in greater detail in Section III). Anyone seriously suggesting that choice exists in this context is at a minimum naive, and at worst manifestly dishonest.FrameworkRights are a prerequisite to any moral system because they secure the possibility daily existence. Abstract defenses of rights fail the purpose of rights by fixing them in objective social contexts. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.Moreover, we cannot respond adequately to problems faced in life by? generating abstract moral categories. Discussion of moral and legal choices? must focus on the rich context in which those problems occur. For some? purposes, it may be useful to characterize two persons as "employer" and? "employee" and to develop generalizations to describe and govern their? relationships. But it is important to remember that these are real people? we are talking about, and when we describe them in this way for the? purpose of judging what their relations should be like, we are closing our-? selves off from their actual life experiences. We can think impersonally? about a busboy as simply representing the table-clearing function; or we? can describe him, say, as a forty-year-old man, recently divorced, with? back trouble and money problems. As Robert Gordon argues, we need "to? unfreeze the world as it appears to common sense as a bunch of more or? less objectively determined social relations and to make it appear as (we? believe) it really is: people acting, imagining, rationalizing, justifying."'179? It may indeed be useful to develop general models to describe social life.? But when it comes time to make decisions, we should recognize that we? are making decisions rather than discovering ourselves. In making those? decisions, it is right to focus on the particular social context, to decide? whether our descriptive model actually applies in that case and whether? we are allowing the model to turn our attention away from facts that we? would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding? how to characterize situations, and in deliberating, conversing, intro-? specting, and judging.180 Expressive theory also emphasizes the communal? nature of theory and its complex relations with social life. The kernel of? truth in the idea of rational consensus is that all ideas and actions involve? relations among people. "Individuals do not simply 'have' opinions, they? form opinions. . . . The formation of opinions is not a private activity? performed by a solitary thinker."'' Traditional theorists have reified the? idea of rational consensus by treating it as a basis for what we do, as a? source of answers, as a generator of outcomes. But consensus, if it exists,? is not something that just happens to be there, that we could describe? accurately. It must be created, and the work of creating it is the work and? play of daily life, of living, contending, sharing, and being with other peo-? ple. Like law, consensus must be made, not found.182? Emphasis on the creative, communal nature of common understanding? creates an appropriate relationship between thought and action. The proc-? ess of generating values is something we do with others in the context of? relationships that continue over time.? Democratic politics is an encounter among people with differing in-? terests, perspectives, and opinions-an encounter in which they re-? consider and mutually revise opinions and interests, both individual? and common. It happens always in a context of conflict, imperfect? knowledge, and uncertainty, but where community action is neces-? sary. The resolutions achieved are always more or less temporary,? subject to reconsideration, and rarely unanimous. What matters is? not unanimity but discourse. The substantive common interest is? only discovered or created in democratic political struggle, and it re-? mains contested as much as shared. Far from being inimical to de-? mocracy, conflict-handled in democratic ways, with openness and? persuasion-is what makes democracy work, what makes for the? mutual revision of opinions and interest.'83? Legal theory can help create communal ties and shared values by freeing? us from the sense that current practices and doctrines are natural and? necessary and by suggesting new forms of expression to replace outworn? ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our? focus from viewing individuals as abstract citizens whose relations to each? other are governed by rights enforced by the state to viewing them as? active participants in shaping their relations in daily life. Such changes in? language may help focus our attention on facts we had previously ignored? and make us more keenly aware of alternative social arrangements.'85A focus on purely intent based frameworks crush our ability to respond to violence. McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo(Martha, “How the "Unintended Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi: dx.doi:10.15779/Z381664)By similarly making structures of inequality appear beyond the reach of law reform, the "unintended consequences" message helps update and reinforce the narrowing of protections against intentional racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and in what form and to whom. Power is centrally about being able to act without having to take harm to others into account. This power to gain by harming others is strongest when it operates through systems and structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the "unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice requires careful attention to both harmful intent and to complex harmful effects. But the concept of "unintended consequences" inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that message promotes the theme that those who have power to ignore their harmful effects on others need not-indeed should not-be induced by law to care about this harm, because this caring is what is harmful. One right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites should reject stories of "unintended consequences" and instead scrutinize the power and laws that have so effectively achieved the intention of making devastating losses to so many of us seem natural, inevitable, and beneficial.29 HW JC Neg Agamben (c&p)K AgambenIn Moulmein, in Lower Burma, I was hated by large numbers of people — the only time in my life that I have been important enough for this to happen to me. I was sub-divisional police officer of the town, and in an aimless, petty kind of way anti-European feeling was very bitter. No one had the guts to raise a riot, but if a European woman went through the bazaars alone somebody would probably spit betel juice over her dress. As a police officer I was an obvious target and was baited whenever it seemed safe to do so. When a nimble Burman tripped me up on the football field and the referee (another Burman) looked the other way, the crowd yelled with hideous laughter. This happened more than once. In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. The young Buddhist priests were the worst of all. There were several thousands of them in the town and none of them seemed to have anything to do except stand on street corners and jeer at Europeans.All this was perplexing and upsetting. For at that time I had already made up my mind that imperialism was an evil thing and the sooner I chucked up my job and got out of it the better. Theoretically — and secretly, of course — I was all for the Burmese and all against their oppressors, the British. As for the job I was doing, I hated it more bitterly than I can perhaps make clear. In a job like that you see the dirty work of Empire at close quarters. The wretched prisoners huddling in the stinking cages of the lock-ups, the grey, cowed faces of the long-term convicts, the scarred buttocks of the men who had been flogged with bamboos — all these oppressed me with an intolerable sense of guilt. But I could get nothing into perspective. I was young and ill-educated and I had had to think out my problems in the utter silence that is imposed on every Englishman in the East. I did not even know that the British Empire is dying, still less did I know that it is a great deal better than the younger empires that are going to supplant it. All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny, as something clamped down, in saecula saeculorum, upon the will of prostrate peoples; with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. Feelings like these are the normal by-products of imperialism; ask any Anglo-Indian official, if you can catch him off duty.One day something happened which in a roundabout way was enlightening. It was a tiny incident in itself, but it gave me a better glimpse than I had had before of the real nature of imperialism — the real motives for which despotic governments act. Early one morning the sub-inspector at a police station the other end of the town rang me up on the phone and said that an elephant was ravaging the bazaar. Would I please come and do something about it? I did not know what I could do, but I wanted to see what was happening and I got on to a pony and started out. I took my rifle, an old .44 Winchester and much too small to kill an elephant, but I thought the noise might be useful in terrorem. Various Burmans stopped me on the way and told me about the elephant's doings. It was not, of course, a wild elephant, but a tame one which had gone ‘must’. It had been chained up, as tame elephants always are when their attack of ‘must’ is due, but on the previous night it had broken its chain and escaped. Its mahout, the only person who could manage it when it was in that state, had set out in pursuit, but had taken the wrong direction and was now twelve hours’ journey away, and in the morning the elephant had suddenly reappeared in the town. The Burmese population had no weapons and were quite helpless against it. It had already destroyed somebody's bamboo hut, killed a cow and raided some fruit-stalls and devoured the stock; also it had met the municipal rubbish van and, when the driver jumped out and took to his heels, had turned the van over and inflicted violences upon it.The Burmese sub-inspector and some Indian constables were waiting for me in the quarter where the elephant had been seen. It was a very poor quarter, a labyrinth of squalid bamboo huts, thatched with palmleaf, winding all over a steep hillside. I remember that it was a cloudy, stuffy morning at the beginning of the rains. We began questioning the people as to where the elephant had gone and, as usual, failed to get any definite information. That is invariably the case in the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes. Some of the people said that the elephant had gone in one direction, some said that he had gone in another, some professed not even to have heard of any elephant. I had almost made up my mind that the whole story was a pack of lies, when we heard yells a little distance away. There was a loud, scandalized cry of ‘Go away, child! Go away this instant!’ and an old woman with a switch in her hand came round the corner of a hut, violently shooing away a crowd of naked children. Some more women followed, clicking their tongues and exclaiming; evidently there was something that the children ought not to have seen. I rounded the hut and saw a man's dead body sprawling in the mud. He was an Indian, a black Dravidian coolie, almost naked, and he could not have been dead many minutes. The people said that the elephant had come suddenly upon him round the corner of the hut, caught him with its trunk, put its foot on his back and ground him into the earth. This was the rainy season and the ground was soft, and his face had scored a trench a foot deep and a couple of yards long. He was lying on his belly with arms crucified and head sharply twisted to one side. His face was coated with mud, the eyes wide open, the teeth bared and grinning with an expression of unendurable agony. (Never tell me, by the way, that the dead look peaceful. Most of the corpses I have seen looked devilish.) The friction of the great beast's foot had stripped the skin from his back as neatly as one skins a rabbit. As soon as I saw the dead man I sent an orderly to a friend's house nearby to borrow an elephant rifle. I had already sent back the pony, not wanting it to go mad with fright and throw me if it smelt the elephant.The orderly came back in a few minutes with a rifle and five cartridges, and meanwhile some Burmans had arrived and told us that the elephant was in the paddy fields below, only a few hundred yards away. As I started forward practically the whole population of the quarter flocked out of the houses and followed me. They had seen the rifle and were all shouting excitedly that I was going to shoot the elephant. They had not shown much interest in the elephant when he was merely ravaging their homes, but it was different now that he was going to be shot. It was a bit of fun to them, as it would be to an English crowd; besides they wanted the meat. It made me vaguely uneasy. I had no intention of shooting the elephant — I had merely sent for the rifle to defend myself if necessary — and it is always unnerving to have a crowd following you. I marched down the hill, looking and feeling a fool, with the rifle over my shoulder and an ever-growing army of people jostling at my heels. At the bottom, when you got away from the huts, there was a metalled road and beyond that a miry waste of paddy fields a thousand yards across, not yet ploughed but soggy from the first rains and dotted with coarse grass. The elephant was standing eight yards from the road, his left side towards us. He took not the slightest notice of the crowd's approach. He was tearing up bunches of grass, beating them against his knees to clean them and stuffing them into his mouth.I had halted on the road. As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant — it is comparable to destroying a huge and costly piece of machinery — and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow. I thought then and I think now that his attack of ‘must’ was already passing off; in which case he would merely wander harmlessly about until the mahout came back and caught him. Moreover, I did not in the least want to shoot him. I decided that I would watch him for a little while to make sure that he did not turn savage again, and then go home.But at that moment I glanced round at the crowd that had followed me. It was an immense crowd, two thousand at the least and growing every minute. It blocked the road for a long distance on either side. I looked at the sea of yellow faces above the garish clothes-faces all happy and excited over this bit of fun, all certain that the elephant was going to be shot. They were watching me as they would watch a conjurer about to perform a trick. They did not like me, but with the magical rifle in my hands I was momentarily worth watching. And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly. And it was at this moment, as I stood there with the rifle in my hands, that I first grasped the hollowness, the futility of the white man's dominion in the East. Here was I, the white man with his gun, standing in front of the unarmed native crowd — seemingly the leading actor of the piece; but in reality I was only an absurd puppet pushed to and fro by the will of those yellow faces behind. I perceived in this moment that when the white man turns tyrant it is his own freedom that he destroys. He becomes a sort of hollow, posing dummy, the conventionalized figure of a sahib. For it is the condition of his rule that he shall spend his life in trying to impress the ‘natives’, and so in every crisis he has got to do what the ‘natives’ expect of him. He wears a mask, and his face grows to fit it. I had got to shoot the elephant. I had committed myself to doing it when I sent for the rifle. A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing — no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at.But I did not want to shoot the elephant. I watched him beating his bunch of grass against his knees, with that preoccupied grandmotherly air that elephants have. It seemed to me that it would be murder to shoot him. At that age I was not squeamish about killing animals, but I had never shot an elephant and never wanted to. (Somehow it always seems worse to kill a large animal.) Besides, there was the beast's owner to be considered. Alive, the elephant was worth at least a hundred pounds; dead, he would only be worth the value of his tusks, five pounds, possibly. But I had got to act quickly. I turned to some experienced-looking Burmans who had been there when we arrived, and asked them how the elephant had been behaving. They all said the same thing: he took no notice of you if you left him alone, but he might charge if you went too close to him.It was perfectly clear to me what I ought to do. I ought to walk up to within, say, twenty-five yards of the elephant and test his behavior. If he charged, I could shoot; if he took no notice of me, it would be safe to leave him until the mahout came back. But also I knew that I was going to do no such thing. I was a poor shot with a rifle and the ground was soft mud into which one would sink at every step. If the elephant charged and I missed him, I should have about as much chance as a toad under a steam-roller. But even then I was not thinking particularly of my own skin, only of the watchful yellow faces behind. For at that moment, with the crowd watching me, I was not afraid in the ordinary sense, as I would have been if I had been alone. A white man mustn't be frightened in front of ‘natives’; and so, in general, he isn't frightened. The sole thought in my mind was that if anything went wrong those two thousand Burmans would see me pursued, caught, trampled on and reduced to a grinning corpse like that Indian up the hill. And if that happened it was quite probable that some of them would laugh. That would never do.There was only one alternative. I shoved the cartridges into the magazine and lay down on the road to get a better aim. The crowd grew very still, and a deep, low, happy sigh, as of people who see the theatre curtain go up at last, breathed from innumerable throats. They were going to have their bit of fun after all. The rifle was a beautiful German thing with cross-hair sights. I did not then know that in shooting an elephant one would shoot to cut an imaginary bar running from ear-hole to ear-hole. I ought, therefore, as the elephant was sideways on, to have aimed straight at his ear-hole, actually I aimed several inches in front of this, thinking the brain would be further forward.When I pulled the trigger I did not hear the bang or feel the kick — one never does when a shot goes home — but I heard the devilish roar of glee that went up from the crowd. In that instant, in too short a time, one would have thought, even for the bullet to get there, a mysterious, terrible change had come over the elephant. He neither stirred nor fell, but every line of his body had altered. He looked suddenly stricken, shrunken, immensely old, as though the frightful impact of the bullet had paralysed him without knocking him down. At last, after what seemed a long time — it might have been five seconds, I dare say — he sagged flabbily to his knees. His mouth slobbered. An enormous senility seemed to have settled upon him. One could have imagined him thousands of years old. I fired again into the same spot. At the second shot he did not collapse but climbed with desperate slowness to his feet and stood weakly upright, with legs sagging and head drooping. I fired a third time. That was the shot that did for him. You could see the agony of it jolt his whole body and knock the last remnant of strength from his legs. But in falling he seemed for a moment to rise, for as his hind legs collapsed beneath him he seemed to tower upward like a huge rock toppling, his trunk reaching skyward like a tree. He trumpeted, for the first and only time. And then down he came, his belly towards me, with a crash that seemed to shake the ground even where I lay.I got up. The Burmans were already racing past me across the mud. It was obvious that the elephant would never rise again, but he was not dead. He was breathing very rhythmically with long rattling gasps, his great mound of a side painfully rising and falling. His mouth was wide open — I could see far down into caverns of pale pink throat. I waited a long time for him to die, but his breathing did not weaken. Finally I fired my two remaining shots into the spot where I thought his heart must be. The thick blood welled out of him like red velvet, but still he did not die. His body did not even jerk when the shots hit him, the tortured breathing continued without a pause. He was dying, very slowly and in great agony, but in some world remote from me where not even a bullet could damage him further. I felt that I had got to put an end to that dreadful noise. It seemed dreadful to see the great beast Lying there, powerless to move and yet powerless to die, and not even to be able to finish him. I sent back for my small rifle and poured shot after shot into his heart and down his throat. They seemed to make no impression. The tortured gasps continued as steadily as the ticking of a clock.In the end I could not stand it any longer and went away. I heard later that it took him half an hour to die. Burmans were bringing dash and baskets even before I left, and I was told they had stripped his body almost to the bones by the afternoon.Afterwards, of course, there were endless discussions about the shooting of the elephant. The owner was furious, but he was only an Indian and could do nothing. Besides, legally I had done the right thing, for a mad elephant has to be killed, like a mad dog, if its owner fails to control it. Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. Criminal justice reform efforts ignore culture and ideology by portraying miscarriages of justice as “accidents” when in reality they are features of the system. Perceived inevitability of the existing legal order is a disciplinary tactic Doyle, JD/LLM, 16(James M., Of Counsel, Bassil, Klovee, & Budreau, ORWELL'S ELEPHANT AND THE ETIOLOGY OF WRONGFUL CONVICTIONS Albany Law Review 2015 / 2016 Albany Law Review 79 Alb. L. Rev. 895)Criminal justice reform is having its moment. The gatekeepers around the public square - the editors, the publishers, the producers, the bloggers, and the "most-followed" social media posters - have decided to grant criminal justice issues some attention. In the accompanying wave of punditry familiar facts are treated as discoveries. The system's impacts are racially biased. n2 The innocent are often convicted. n3 Unwarranted law enforcement violence is common. n4 Legions of unnecessary prisoners fill our prisons. n5 Chronic mental illness has been effectively criminalized. n6 [*896] This media moment will fade; these media moments always do fade. Can something useful be left behind? The criminal justice system is a target-rich environment for empirical study. Many factors await data-oriented examination in (and around) our courtrooms, and it seems natural to seize this opening to mobilize evidence-based inquiries analyzing a range of specific questions. As Michael Jacobson has noted, criminal justice policy is "a field that over the last several decades has been almost immune to evidence and knowledge in the face of its overwhelming politicization." n7 Perhaps in this new atmosphere we are ready to learn the lessons that the data teach. Still, any exclusively data-oriented approach to wrongful convictions will face challenges as a remedial tool where preventing wrongful convictions is concerned. No individual evidence-based exploration of the criminal justice system is likely to minimize the frequency of miscarriages of justice unless it takes place within a general etiology of wrongful conviction that recognizes the reciprocal impacts of the system's components - including its human components - on each other, and the impact on those system components of their surrounding environment. The potential implications of that general etiology - that is, of the manner of causation of criminal justice system errors - are overlooked issues. A version of such an etiology is available for adaptation. n8 Safety experts in aviation, medicine, and other high-risk fields would argue that, like the Challenger launch decision, n9 a "wrong patient" surgery, n10 or the Chernobyl meltdown, n11 wrongful convictions are [*897] system n12 errors: "organizational accidents." n13 In this conception, miscarriages of justice are not single-cause events but, rather, result from discrete, small mistakes, none of which is independently sufficient to cause the harm that combine with each other and with latent system weaknesses, and only then cause a tragedy. Miscarriages of justice can never be fully explained by the failures of a single component or a lone operator. The right answer to the question "Who was responsible for this wrongful conviction?" is usually "Everyone involved, to one degree or another," either by making an error or by failing to anticipate or intercept someone else's error. In this view "everyone" includes actors far from the scene of the event who set the budgets, did the hiring, wrote the laws, developed the jurisprudence, and designed the incentives for the apparent culprits on the frontlines. "Everyone" includes those who created the environment in which the sharp-end actors operated. "Everyone" even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others. The hardest case for this approach is presented by the recurrent situation in which the miscarriage of justice seems to have resulted from a moral failure - often a spectacular one - on the part of an individual criminal justice actor. Even people who accept the organizational accident explanation as a general theory resist applying it to those events. For example, when a prosecutor hides exculpatory Brady n14 material, that act is a proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. n15 Disciplining the individual actor seems to be both a sufficient response and an emergency. To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded: to generate bogus extenuation where all that is required is a plain statement of culpability. The assumption, "Good man, good result," once formed the basis [*898] of medicine's attitude towards its own tragic failures. n16 Even now it characterizes much of the commentary on wrongful convictions. n17 A similar dependence on good men, n18 and therefore on reform strategies focused on the discovery, denunciation, and excision of the bad men, characterizes criminal justice reform discourse. n19 But if wrongful convictions are "organizational accidents," can disciplining and punishing an individual be enough to reduce future risk? Can we punish our way to safe verdicts? Is there a way to balance accountability for misconduct and the non-blaming, "forward-looking accountability" n20 we need in order to minimize future risk? Should we be searching for a new practice rather than a new structure? Can we develop a vehicle for holding the data-rich statistical findings and the complex individual narratives in permanent productive tension? I. A famous essay of George Orwell's, "Shooting an Elephant," focuses on an individual's moral failure: on the bad choice of an actor who zigged when he should have zagged, and who fully understood that he was doing the wrong thing as he acted. n21 Orwell's narrative might illuminate an issue implicit in the organizational accident etiology of error: is the challenge presented by wrongful convictions one best approached as protecting a presumptively safe system from amoral and incompetent people, or one of repairing an inherently vulnerable system that necessarily relies on ordinary human beings? George Orwell has been regarded as the quintessential "good man" for over half a century. To V.S. Pritchett, Orwell was "the [*899] wintry conscience of a generation." n22 Robert Conquest, the historian of Stalin's purges, n23 described Orwell as "[a] moral genius." n24 In 1922, at the age of nineteen, at loose ends after leaving Eton, and unlikely to obtain a university scholarship, Orwell passed the necessary examinations and followed his father into imperial service: in Orwell's case, into the Burma Police. n25 Reflecting on that experience he produced "Shooting an Elephant," n26 first published in New Writing in 1936. n27 "In Moulmein, in Lower Burma, I was hated by large numbers of people - the only time in my life that I have been important enough for this to happen to me," Orwell begins. n28 In an aimless, petty kind of way anti-European feeling was very bitter... . As a police officer I was an obvious target and was baited whenever it seemed safe to do so... . In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. n29 By the time of the incident he describes, Orwell had "made up [his] mind that imperialism was an evil thing and the sooner [he quit his] job ... the better." n30 "Theoretically - and secretly, of course - [he] was all for the Burmese and all against their [*900] oppressors, the British." n31 But that didn't mean Orwell's immediate situation was simple. As he explains in the essay: All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny ... with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. n32 In this state of mind Orwell is called out to deal with a rampaging elephant: a working animal that has been maddened by "must" (heat), broken its chain, and eluded its keeper. n33 Arming himself and arriving in the quarter where the elephant had been destroying everything within reach, Orwell "failed to get any definite information ... . In the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." n34 But soon he is told that the elephant has trampled an Indian coolie to death, and he is shown the corpse. n35 Followed by a growing crowd of Burmese, Orwell tracks the animal down. n36 As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant - it is comparable to destroying a huge and costly piece of machinery - and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow... . Moreover, I did not in the least want to shoot him. n37 But at that moment Orwell looks around at the Burmese who had followed him: a crowd of "two thousand" people and "growing," all - according to Orwell - "happy and excited over this bit of fun, all certain that the elephant was going to be shot." n38 This was a turning point: "And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to [*901] do it; I could feel their two thousand wills pressing me forward, irresistibly." n39 In Orwell's recounting, he zigged when he knew he should have zagged because his role required it: A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing - no, that was impossible. The crowd would laugh at me. And my whole life, every white man's life in the East, was one long struggle not to be laughed at. n40 Orwell shoots the elephant. n41 Unable to endure the sight of the animal's agonized death throes, Orwell leaves the scene while the elephant is still alive. n42 Later he learns that its body has been stripped to the bone, and that: Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. n43 In the end, the opinions of the Europeans, back in the Club, were what mattered to young Orwell. n44 II. John Thompson was convicted of murder in New Orleans in 1985. n45 After a trial where he opted not to testify, Thompson was sentenced to death and spent the next eighteen years in prison, [*902] fourteen of them on death row. n46 A few weeks before Thompson's scheduled execution in 1999, a defense investigator learned that a cancer-stricken member of the prosecution team had confessed on his deathbed to having withheld crime lab results from the defense, as well as removing a blood sample from the evidence room. n47 In addition, Thompson's defense learned that the New Orleans district attorney's office had failed to disclose that Thompson had been implicated in the murder by a person who received a reward from the victim's family, and that an eyewitness identification did not match Thompson. n48 Thompson's conviction was overturned on appeal. n49 On retrial, a jury exonerated Thompson in thirty-five minutes. n50 Reviewing Thompson's experience with Orwell's in mind suggests that the problem we face is neither people, nor systems, but, rather, people in systems. The rule that prosecutors must turn over exculpatory evidence material to guilt or punishment to defense counsel is a "best practice" that the Supreme Court held in Brady v. Maryland is also a minimum requirement of the Constitution. n51 As Thompson indicates, it is a "best practice" that is not reliably followed. n52 According to at least one noted federal judge, violations of the Brady rule are "epidemic." n53 We tend to think of the Brady violation cases as uncomplicated events: a prosecutor, driven by an excess of the All-American will to win, n54 is encouraged to go too far by the apparently total absence of [*903] accountability, and conceals exculpatory evidence. As Marvin Schechter, chairman of the criminal justice section of the New York State Bar Association and a defense attorney put it: "Prosecutors engage in misconduct because they know they can get away with it." n55 Introducing the credible threat of punishment seems to be the simple answer to this simple problem. n56 But the Brady (and other misconduct) cases are, like the episode in Shooting an Elephant, more complicated. Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream failure by the defenders to uncover the Brady violation or to compensate for its impact, n57 much remains to be explained about the prosecutors' actions. What if the Brady cases involve a problematic - but not abnormal - prosecutor who makes a faulty decision while playing, under intense pressure, the hand he has been dealt by others? What if the problem is not the will to win, but the fear of losing and exposure; not the absence of accountability, but the distorting power of a peculiarly intense, all-embracing, and acutely local accountability that eclipses well-known general constitutional norms? Safety experts in aviation, medicine, and other high risk fields find that these questions indicate that we should pivot from our focus on writing new rules - and punishing the violations of old ones - to a new focus on developing a culture of safety that has reducing future risk through continuous, collaborative, quality improvement as its goal. n58 No system can survive without sanctions for its conscious rule [*904] breakers, and advocates for "non-blaming" approaches to accountability must keep that reality in mind. n59 Still, it ought to be possible to see the young Orwells in the criminal system as potential resources, not exclusively as dangerous toxins. The most productive question could be not why prosecutors believe they can get away with cheating, but why they feel any desire to cheat in the first place. The question that the Thompson narrative raises is not whether the choices of either the District Attorney's office as an agency or the individual frontline prosecutors who hid the evidence were wrong. n60 Of course those choices were wrong. The real question is why did the mistaken choices seem to the agency and to the individuals to be good choices at the time? Or, at least, why did the mistaken choices seem from their perspectives to be the only, or "least bad" choices available. Exculpatory evidence has to be turned over. n61 Why didn't the prosecutors know this? (In fact, as the deathbed confession indicates, at least one did know it.) n62 Why, knowing that withholding the evidence was wrong (as fully as Orwell knew shooting his elephant was wrong) did they decide not to act as the Brady rule required? Safety experts reviewing "operator error" events believe that the operators' choices may have been mistaken, may have violated rules - may even have been immoral - but they were locally rational. n63 They promised to solve, at least for a moment, a pressing local problem, and the same choices will seem rational to the operators who next face the same problems unless their circumstances are changed. To understand why this can happen in a Brady exoneration case it is not enough to go "down and in" to find the broken procedural component or the rogue Assistant District Attorney. The problem [*905] cannot be fully encompassed within the character of any individual prosecutor. That prosecutor is reacting to the conventional demands within his office. And his office is reacting to pressures from the larger society. What we see in the Brady exoneration cases are choices typical of organizations and individuals reacting to the compelling pressure to provide outputs under conditions of resource scarcity. It may be disappointing but it should not be shocking that prosecutors in the wrongful conviction cases, like workers in many production processes, adopted a "covert work system." n64 They decided to evade well-known formal disclosure requirements and buried alternative narratives because they believed sharing the exculpatory facts would interfere with achieving the "real" production goals assigned to them by people to whom they were accountable, namely, superiors who demand "outputs" in the form of convictions, and, therefore, to the unpredictable lay jurors, who will require persuasion before those "outputs" can be generated. n65 Were the prosecutors so starved of resources by the city or state that they felt they could not successfully prosecute guilty violent offenders by following the rules? Had their caseloads crept up to a level where competent, thorough practice seemed impossible? Did they feel that they were so swamped that they needed to bluff Thompson into a guilty plea by withholding the evidence that might have demonstrated his innocence? n66 Did supervisory oversight slacken for the same reasons? Did tunnel vision and other cognitive biases set in? n67 Did the prosecutors feel acutely vulnerable to irresponsible media or political pressure? Or did the prosecutors believe that the police department was so under-resourced or ill-managed that no prosecutors could ever convict anyone, no matter [*906] how guilty, if they dutifully played the woeful cards the police dealt them? Were they right about that? Did the see-no-evil attitude of local trial judges and the vulnerability of overwhelmed appointed defenders encourage them? Had the prosecutors moved by small increments down the inculpatory-to-exculpatory spectrum over the years, withholding progressively more exculpatory material but seeing no negative local impacts (such as exonerations) from doing so? n68 Did they learn to tolerate ever-widening margins of error in making guilt/ innocence judgments? Had deviation from the Brady rule been "normalized"? n69 It is common to speak of the prosecutors' offices as "black boxes," a reference to their characteristic absence of transparency. n70 But it is important to remember that within that black box local norms are well-known and conveyed with great force. n71 Young prosecutors learn very early their local version of "[a] sahib has got to act like a sahib." n72 The prosecutors who figured in the high profile Brady-driven exoneration cases are not lone wolf outcasts in their offices; typically, they are the rising local stars n73 who had successfully managed the conflicts between the formal legal rules and their office culture and have been rewarded with progressively more visible and important case assignments. The prosecutors feel intensely accountable to the role requirements imposed by the [*907] culture n74 within their office. Inevitably, some prosecutors will do what workers in other fields do when confronted by the end-of-process inspections. (In this case, the inspection is provided by adversary trials.) They will develop "workarounds" that allow them to get on with their "real" job, n75 no matter what the formal rules instituted by the Supreme Court at 30,000 feet (or the Board of Bar Overseers at 10,000) require. n76 As Barbara O'Brien has demonstrated, these prosecutors, driven by criteria of outputs (not processes) and persuasion (not comprehension) find themselves in a cognitive position that degrades not only their willingness to turn over Brady material, but their ability to recognize it. n77 A Brady violation seen from this perspective is a mundane workaround; a well-traveled shortcut through a thicket of rules that if meticulously followed would frustrate the attainment of "higher" goals. n78 In fact, within the prosecutors' "black box" familiarity with these workarounds begins to seem to be the essence of veteran workmanship and professionalism. n79 Impose an improved rule without changing either the internal culture or the external demands on that culture and that new rule will be under immediate attack from its environment: new workarounds will be generated very quickly. Encapsulation in a local black box dilutes the deterrent efficacy of punitive gestures applied to other prosecutors outside the local world. n80 The disciplining of a prosecutor in Texas will have limited impact on the conduct of prosecutors in Philadelphia. The informal sanctions for violating the local "covert work rules" and then losing a trial as a consequence are immediate, personal, and public: enforced by the people in the next office. Any official sanction for withholding Brady material is - and will remain even if some novel enthusiasm for disciplining prosecutors gradually takes hold in [*908] scattered jurisdictions - theoretical. n81 Punishment is necessarily contingent on your concealment being discovered by an actually innocent defendant who insisted on a trial, an eventual official finding that the particular defendant really was innocent, that the withheld evidence was "material," and that your violation was knowing. n82 For all of the reasons that disciplinary actions against prosecutors have not become normal (to put it mildly) up until now, some skepticism about the likelihood of their multiplying any time soon is in order. III. We admire George Orwell because of his willingness to subject his own beliefs and actions to unsparing critical examination: a rare quality. This capacity of Orwell's is on full display in "Shooting an Elephant," but that essay also illuminates the limits of even Orwell's very rigorous introspective scrutiny. By focusing on his own experience and canvassing the "within-silo" reactions of his European peers while ignoring the Burmese community he was assigned to serve, Orwell misses the fundamental question underlying his choice: that is, whether it was ever sane to shoot the harmless elephant on the basis of an assumption that, "the people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly." n83 In fact, the first of the Five Precepts accepted by most strains of Buddhism is a requirement to abstain from killing either humans or animals. n84 Orwell's Buddhist crowd likely never wished to see the elephant killed, and believed the killing was wrong. The members of the crowd would not have killed the elephant, or would have been ashamed if they had killed it. But the Buddhist crowd may well have expected Orwell - or any sahib - to do something violent and stupid, and that is exactly what Orwell did, by his own account. By living down to Burmese [*909] expectations Orwell actually undermined the legitimacy of the British colonial rule he believed he was (reluctantly) acting to bolster. He showed (or confirmed) that the best that Burmese could anticipate from the British was the destructive, uncomprehending, exercise of raw power. Like Orwell and his colleagues, young frontline prosecutors in the United States operate in environments devised for them by others, and it is dangerous to ignore the fact that it is the larger American society, not the local district attorney's office, that has contrived a socially constructed reality in which a recognizably colonialist vision of the inner city exerts steady pressure on its frontline criminal justice actors. n85 The unwavering conventions of the news and entertainment media have turned the American inner city - especially the African-American inner city and the criminal justice system - into permanent Elsewheres: places where ordinary white Americans never go, largely because they feel supremely confident of what they would find if they did go. n86 Practitioners who take jobs in this distant zone share with Orwell's peers a rhetoric of isolation, service, sacrifice, burden-bearing. Both groups chose careers that "promised early autonomy in exotic surroundings." n87 Their autobiographical writings recount a disorienting plunge into a world where they struggle to find a role for the values in which they were raised. n88 Similar to the young colonial officers who were thrown into strange and foreign surroundings, a young lawyer's professional life begins "alone, ignorant, and responsible." n89 Isolation and vulnerability plague the functionaries in the courthouses - not unlike Orwell's [*910] "Kipling-haunted little clubs" n90 - and they are menaced by locals and policy-makers, by editorial boards back home or "downtown," who can wreck careers from the safety of their office desks. They feel constrained by wild legalities and utopian standards: "Young Assistant District Attorneys, like young Assistant District Commissioners in the old empires, hurriedly seize, then vehemently defend, a conventional wisdom as protection against these threats." n91 They adopt a "professional code" that sees an environment in which people are divided into collectives. n92 Indeed, instead of seeing individuals, they often see "races, types, and colors" instead. n93 Facing defendants, defenders, even (sometimes) witnesses, and communities, they gradually embrace a "rigidly binomial opposition of "ours' and "theirs.'" n94 A defendant such as John Thompson seems, as did an individual Burmese to Orwell, a featureless face in an anonymous crowd of "them." As William Stuntz put it: One reason black criminals from poor city neighborhoods have been treated with so much more severity than criminals from white immigrant communities in America's past is that the former are more easily categorized as The Other, as a people whose lives are separate from the lives of those who judge them. n95 In other words, the mental world of our criminal justice practitioners has come to have something in common with that of the White Man whom Kipling extolled and Orwell exemplified. It is not a question of race. In the criminal justice system, there are whites who are not White Men, and African-Americans (and women) who are. n96 Despite the overwhelming statistical evidence of imbalance in the system's treatment of the races, its White Men in deny any racist intent. n97 Very few would ever sign on to an [*911] explicitly racist project, and most read the aggregated figures indicating wildly disparate results for the races with bewilderment and dismay: this is not what they intended. But as Edward Said observed of Orwell's imperial generation: "being a White Man was ... an idea and a reality. It involved a reasoned position towards both the white and the non-white worlds. It meant ... speaking in a certain way, behaving according to a code of regulations, and even feeling certain things and not others." n98 In the criminal justice system, as on the frontiers of empire, something like this "impersonal communal idea of being a White Man rule[s;]" it becomes "a very concrete manner of being-in-the-world, a way of taking hold of reality, language, and thought." n99 This is not a situation that frontline criminal justice practitioners can easily remedy by themselves. It is not obvious that statistical studies of their "outputs" or checklists generated from those studies will remedy it for them either. n100 This is not a situation that more training about, or tinkering with, the Brady rule will resolve. n101 The problem does not lie in our having no rule, or in the nature of the existing rule; it lies in persuading people that personally following the rule is a crucial element of their individual responsibility for a just collective outcome. This looming environment generates perpetual pressure to clear the docket and produce convictions, as well as accelerates the routine dehumanization of the people whose lives the practitioners impact so powerfully. n102 The reduction of defendants, victims, and communities into faceless crowds can allow the practice of mass incarceration to run very smoothly. n103 As bad as its consequences are in the spectacular capital felony exonerations that make news, they may be even worse in the submerged street crime dockets, where factual accuracy is treated as largely irrelevant, guilty pleas are the rule, and thousands of black lives are taken on the [*912] installment plan. n104 Orwell's experience is replayed constantly not only in the courtrooms, but also on the streets, where people, not tame elephants, pay the price. On the streets it is enacted in humiliating stops and frisks; sometimes in fatal violence. n105 Exiling or punishing one erring practitioner, or even a string of erring practitioners, will not change this environment, and the environment will envelope the next practitioner who comes along. This system is in crisis and desperately needs reform, but not because of an explicitly racist ideology. Throughout the system, in many roles, thousands of beleaguered young Orwells are trying to get through their days, doing what they believe is expected of them, with the tools at hand, oblivious to the appalling collateral damage they are inflicting. n106 The lesson that Orwell might have learned by seeking the perspective of the Burmese in his review of his action resonates with the lesson William Stuntz urged us to learn in the final paragraph of his magisterial The Collapse of American Criminal Justice: The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals' neighborhoods. Neither side of this divide is "them." Both sides are us. Democracy and justice alike depend on getting that most basic principle of human relations right. n107 The question is whether by recognizing a deeper etiology of wrongful convictions we might move in that direction. [*913] IV. If it is true as a matter of fundamental etiology that even so seemingly simple an event as a wrongful conviction after a Brady violation is actually a complex "organizational accident" implicating many contributing factors that ultimately combined and cascaded, we are in a position to capitalize on an insight mobilized by Donald Berwick, one of the pioneers of the modern patient safety movement: n108 "Every defect is a treasure." n109 The basic manner of causation of wrongful convictions argues that we should amend our standard criminal justice response to disasters, and say when one occurs, "Something to see here: don't move along." n110 The recognition that there is something to be learned from past criminal justice events has begun to gather some momentum. The National Institute of Justice, borrowing a phrase n111 from the Joint Commission on Hospital Accreditation, has launched a Sentinel Events Initiative n112 that attempts to promote the exploration of non-blaming, all-stakeholders reviews of wrongful convictions, wrongful releases, "near misses" and other meaningful incidents. n113 The National Commission on Forensic Science has recommended "Root Cause Analysis" as a standard practice in forensic laboratory error reviews. n114 The Presidential Task Force on 21st Century Policing [*914] has recommended the practice of Sentinel Event Reviews of critical events. n115 These efforts share a determination to move beyond performance reviews of individuals (including searches for "bad apples") to press for system-oriented event analyses. n116 This approach aims to avoid the tendencies of the "bad apple" disciplinary review or civil lawsuit to drive reports of significant events underground and to narrow the lense to scrutinize only the conduct of a lone individual rather than the system's various contributing weaknesses. n117 It accepts the fact that a full understanding of what went wrong is (to at least a degree) dependent on the insights from the perspective of the "second victim;" n118 for example, the nurse who was the last in the chain that delivered a fatal medication dose, or the defense lawyer who failed to intercept the Brady violation in a wrongful conviction [*915] case, or even - however much it may rankle - a prosecutor who after having been seduced the by local office culture has contributed to a Brady exoneration. The criminal justice system is an organization which, like many others, has a lot invested in its practitioners. As Sidney Dekker argues: Paying off the first victim and sending off the second denies the humanity and reality of the relationship that existed between the two victims... . Where first victims are given the impression that their lives had been entrusted to a dispensable, disposable cog in the organizational machine, what does that say about the organization's own duty ethic in relation to its patients, passengers, clients? n119 The "second victim" focus is one particular example of a general principle of analysis more or less dictated by the organizational accident etiology of error; the need for the perspectives of all of those implicated in the event. As John Chisholm (the District Attorney of Milwaukee County, Wisconsin and a N.I.J. "Sentinel Event" participant) put it: Creating a better justice system requires us to expand our definition of the critical actors involved in any event, from citizens, police, corrections, pretrial services, public defenders and the defense bar, as well as prosecutors and judges. And we have to create a process where everyone feels empowered to speak the truth about his or her role in any given event. n120 Chisholm does not mean by this that he plans to turn the running of his office or the education of his assistants over to outsiders; nor should he: outsiders are not well-equipped for the task. n121 But he does recognize the value to him, and to all criminal justice system leaders, of a new feedback loop that can draw attention to system weaknesses and begin to prepare the way for cultural change. n122 The "all stakeholders" aspect of these reviews requires not only the participation of representatives of all agencies, but also of all ranks from within the implicated "silos." n123 Elements of the foot [*916] soldiers' working environment - for example, caseloads and resource shortages - that would be shrugged off as excuses or evasions in a disciplinary or tort proceeding can be given their deserved explanatory weight in these event reviews. n124 Moreover, the potential contributions of scholars and researchers from a variety of disciplines can be mobilized in these reviews to supplement the basic narratives with insights into the role that, for example, unconscious biases or census pressures may have played. The researchers will receive in return new challenges for empirical research of increased salience: the good questions that are at the heart of the research enterprise. And although we are most concerned with the problem of wrongful convictions, we should not ignore the fact that the universe of available lessons about the sources of wrongful conviction includes not only those learned from completed exonerations, but also others, gathered from "near misses," n125 and other "high frequency/low impact" events. But, perhaps most importantly, the "all-stakeholders" event reviews that the logic of the organizational accident etiology requires access to the perspective of community stakeholders. Among other things, a community presence may indicate that many "low impact" events - humiliating stops and frisks, pretrial detentions, misdemeanor processing and the collateral consequences of records - are not, for defendants, families, and communities the "low impact" practices that from the practitioners' perspective they seem to be. n126 Besides, "Shooting an Elephant" also illustrates why, although the perspectives of the young Orwells at the sharp end of the criminal system are indispensable to an understanding of an event, their professional accounts - even when these seem to be confessional accounts - are not sufficient if our aim is "forward-looking accountability." For all of Orwell's sincere contrition for his role in the imperial project, it is not clear that Orwell's version of this particular event can be trusted. Orwell had lived in Burma for some time and his father was a career imperial civil servant. n127 Orwell was a curious [*917] and intelligent man. Orwell probably knew very well that Buddhism abhors killing, but counted on his audience's ignorance of that fact when he enlisted "the will" of the crowd tactically as a motivator in order to mitigate, even partly obscure, his personal role. n128 If we rely solely on Orwell we will learn that imperialism was a bad thing and that one of its officers was acutely ashamed of his role. n129 We would still not know why Orwell's elephant was destroyed. n130 The presence of community stakeholders in the process can be a crucial guard against the influence of these blind spots in a review: an important tool for preventing reoccurrence. William Stuntz believed that: "the [criminal] justice system stopped working when a particular kind of local democracy - the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets - ceased to govern the ways police officers, prosecutors, and trial judges do their jobs." n131 It may be that the determined, routine practice of including community voices in the learning from error event reviews can begin to repair this situation, and to erode the Manichean separation of "Us" from "Them." It is very easy to sympathize with Joseph Margulies's statement that "reform proposals aimed at population-cutting rather [than] principle are dangerously incomplete," that, "halving the prison population is a laudable goal, but population-cutting initiatives mistake a symptom for [a cause]." n132 If our current reform tide recedes leaving only a drop in prison census behind, we can be pretty sure that the population will soon be replenished. Something more fundamental, something such as Margulies's call for the elevation of the three principles of human dignity, thriving communities, and fair government officials and processes n133 - something that emulates hospital medicine's paradigm shift toward a "culture of safety" n134 - is called for. [*918] Such a sweeping change in the world of American criminal justice cannot be imposed from the rarefied heights of the think tanks and law reviews; it must come from the bottom up. As John Griffith's observations about the early Twentieth Century's doomed attempt to impose a "Family Model" of juvenile justice on the "Battle Model" culture of criminal justice make clear, a culture change of this magnitude cannot be achieved by fiat. n135 The advantage of the practice of non-blaming, all-stakeholders event review is that it enlists the frontline practitioners in a collaborative review of processes, not only outcomes, and with researchers and community members participating as equals. In this process the map of the criminal justice process as it is appears in the vision comprised of statistical findings and the living criminal justice process as it appears in the narratives of the citizens and communities entangled in it are not simply complementary (although they are that) but dynamic and reciprocal. "Narrative," as Edward Said observed, writing about the colonial system that enmeshed Orwell, "asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change ... ." n136 We need the narratives of the Orwells, but also of the Burmese; of the prosecutors, police, defenders, and judges, but also of the exonerees, the crime survivors, the stopped and frisked, their families, and their communities. No "fix" is permanent. We need constantly to gather both narratives and statistical analyses and to take account of them in a continuous practice if we are going to create resilience and heal the system. Criminal justice practitioners have to learn to allow others to learn about our lives: to suffer the pain of being known along with the pleasure of knowing. n137 We also have to learn - as Orwell did, in his dogged, imperfect way - to be willing to risk discovering uncomfortable facts about ourselves.The AC buys into a theory of “constituent power”- this model assumes the state exercises rational, juridical control that can be challenged and overthrown by a legal revolution. But modern societies aren’t disciplinary, they are control based. Legal reform is simply a new mechanism of this control-it is a depoliticized and hollow form of resistance. Instead we need “destituent power”, a strategy that deposes the law permanently to open space for new modes of political engagement Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)You will probably know that Michel Foucault, in his book Surveiller et punir and in his courses at the Collège de France sketched a typological classification of modern States. He shows how the State of the Ancien regime, that he calls territorial or sovereign State and whose motto was faire mourir et laisser vivre, evolves progressively in a population State and in a disciplinary State, whose motto reverses now in faire vivre et laisser mourir, as it will take care of the citizens life in order to produce healthy, well-ordered and manageable bodies. The state in which we live now is no more a disciplinary State. Gilles Deleuze suggested to call it ?Etat de contr?le?, control State, because what it wants, is not to order and to impose discipline, but rather to manage and to control. Deleuze’s definition is correct, because management and control do not necessarily coincide with order and discipline. No one has told it so clearly as the Italian police officer, who, after the turmoil of Genoa in July 2001, declared that the government did not want that the police maintains order, but that it manages disorder. American politologists, who have tried to analyze the constitutional transformation involved in the Patriot Act and in the other laws which followed September 2001, prefer to speak of a Security State. But what does security here mean? It is during the French revolution that the notion of security — sureté, as they used to say — is linked to the definition of police. The laws of March 16, 1791 and August 11, 1792 introduce thus in the French legislation the notion of ?police de sureté? (security police), which was doomed to have a long history in modernity. If you read the debates which preceded the voting of these laws, you will see that police and security define one another, but no one among the speakers (Brissot, Heraut de Séchelle, Gensonné) is able to define police or security by themselves. The debates focused on the situation of the police with respect to justice and judicial power. Gensonné maintains that they are ?two separate and distinct powers?; yet, while the function of the judicial power is clear, it is impossible to define the role of the police. An analysis of the debate shows that the place and function of the police is undecidable and must remain undecidable, because, if it were really absorbed in the judicial power, police could no more exist. This is the discretionary power which still today defines the action of the police officer, who, in a concrete situation of danger for the public security, acts so to speak as a sovereign. But, even when he exerts this discretionary power, he does not really take a decision, nor prepares, as is usually stated, the judge’s decision. Every decision concerns the causes, while the police acts on effects, which are by definition undecidable. The name of this undecidable element is no more today, like it was in XVII century, ?raison d’Etat?, State reason: it is rather ?security reasons?. The Security State is a police State: but, again, in the juridical theory, the police is a kind of black hole. All we can say is that when the so called ?Science of the police? first appears in XVIII century, the ?police? is brought back to its etymology from the Greek ?politeia? and opposed as such to ?politics?. But it is surprising to see that Police coincides now with the true political function, while the term politics is reserved to the foreign policy. Thus Von Justi, in his treatise on Policey Wissenschaft, calls Politik the relationship of a State with other States, while he calls Polizei the relationship of a State with itself. It is worthwhile to reflect upon this definition: (I quote): ?Police is the relationship of a State with itself?. The hypothesis I would like to suggest here is that, placing itself under the sign of security, modern State has left the domain of politics to enter a no man’s land, whose geography and whose borders are still unknown. The Security State, whose name seems to refer to an absence of cares (securus from sine cura) should, on the contrary, make us worry about the dangers it involves for democracy, because in it political life has become impossible, while democracy means precisely the possibility of a political life. But I would like to conclude –or better to simply stop my lecture (in philosophy like in art, no conclusion is possible, you can only abandon your work) with something which, as far as I can see now, is perhaps the most urgent political problem. If the State we have in front of us is the Security State I described, we have to think anew the traditional strategies of political conflicts. What shall we do, what strategy shall we follow? The Security paradigm implies that each dissention, each more or less violent attempt to overthrow its order, become an opportunity to govern them in a profitable direction. This is evident in the dialectics which binds tightly together terrorism and State in an endless vicious spiral. Starting with French revolution, the political tradition of modernity has conceived of radical changes in the form of a revolutionary process that acts as the pouvoir constituant, the ?constituent power? of a new institutional order. I think that we have to abandon this paradigm and try to think something as a puissance destituante, a ?purely destituent power?, that cannot be captured in the spiral of security. It is a destituent power of this sort that Benjamin has in mind in his essay On the critique of violence when he tries to define a pure violence which could ?break the false dialectics of lawmaking violence and law-preserving violence?, an example of which is Sorel’s proletarian general strike. ?On the breaking of this cycle? he writes in the end of the essay ?maintained by mythic forms of law, on the destitution of law with all the forces on which it depends, finally therefore on the abolition of State power, a new historical epoch is founded?. While a constituent power destroys law only to recreate it in a new form, destituent power, in so far as it deposes once and for all the law, can open a really new historical epoch. To think such a purely destituent power is not an easy task. Benjamin wrote once that nothing is so anarchical as the bourgeois order. In the same sense, Pasolini in his last movie has one of the four Salò masters saying to their slaves: ?true anarchy is the anarchy of power?. It is precisely because power constitutes itself through the inclusion and the capture of anarchy and anomy, that it is so difficult to have an immediate access to these dimensions, it is so hard to think today something as a true anarchy or a true anomy. I think that a praxis which would succeed in exposing clearly the anarchy and the anomy captured in the Security government technologies could act as a purely destituent power. A really new political dimension becomes possible only when we grasp and depose the anarchy and the anomy of power. But this is not only a theoretical task: it means first of all the rediscovery of a form-of-life, the access to a new figure of that political life whose memory the Security State tries at any price to cancel.While the AC attempts to criticize the law, it does so within the confines of existing ideological investments and institutions, this is constituent power. Destutuency is a an active no: it rejects the terms of the 1AC in order to divest our political and affective investments that sustain this system. Bougtsy-Marshall, JD, 16(Skye, Climate Activist, “Flooding Wall Street: Echoes from the Future of Resistance around Climate Change,” Capitalism Nature Socialism Volume 27, 2016 - Issue 3, Pages 64-82, )The concept of destituent power (poder destituyente), on the other hand, originates from the Colectivo Situaciones’ (2011) analysis of the uprisings in Argentina on 19 and 20 December 2001. Destituent power exhibits potency similar to constituent power, but operates as a continual process of openended withdrawal from, or refusal of, the juridical, institutional order (Laudani 2013, 4). It functions completely outside the law – extrainstitutionally – seeking to dismantle sovereign, constituted power altogether rather than to reform it or overthrow it and then re-institute it in a different form. Destituent power undermines and erodes the obedience that is fundamental to and presupposed by the constituted order for its continued existence. However, destituent power is not a purely reactive or nihilistic force, but instead is creative – not in the sense of producing new institutions to replace the old, but through its deactivation of the legal order. This, in turn, opens new horizons of possibilities for egalitarian and holistic social and ecological relationships far exceeding what is practicable under the current destructive political order (Laudani 2013, xv, n. 23). Benjamin (1978, 300) also envisaged this immanent creative potential within destituent power as he attempted to identify a pure violence that could “break the false dialectics of lawmaking violence and law-preserving violence.” Following this line of reasoning, he argued that: [o]n the breaking of this cycle maintained by mythical forms of law, on the suspension [destitution] of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. Thus, although a constituent power destroys law only to re-institute it again in a new form (merely perpetuating the cycle), insofar as destituent power dismantles and deposes the law once for all, it can function to open onto the terrain of a new epoch characterized by radically new possibilities (Agamben 2014). In deposing the political order, destituent power opens becomings, enabling experimentation with new practices and the development of new knowledges that will, in turn, themselves be de-instituted in the continual and open-ended process unfolding (Colectivo Situaciones 2011, 64, 87). Constituent power’s direct confrontation with the state – through terrorism or revolution – simply reinforces the security apparatus and invites greater levels of repression. As destituent power, disobedience can be conceived not as a direct clash with constituted power but instead as the withdrawal of consent to the political order, as a direct negation of its legitimacy (Laudani 2013, 37). Early twentieth-century German anarchist Gustav Landauer (2010, 214) deployed a similar argument in maintaining that all social and political institutions depend for their existence on the choices of individuals to continue to give them their support, and, thus, removal of this support and constituting ourselves apart from these institutions, thereby rendering them redundant, is the key to dissolving them. Furthermore, Landauer extended this insight concerning the extent to which our obedient practices and behaviors serve as the basis of the state, arguing that “[t]he state is a condition, a certain relationship among human beings, a mode of behavior between men; we destroy it by contracting other relationships, by behaving differently toward one another” (qtd. in Lunn 1973, 226). This view of the basis of the power of the state and capitalism as sets of relations anticipates and finds consonance in the poststructuralist understanding of power articulated by Foucault (referenced above). The network of power relations forms a “dense web that passes through apparatuses and institutions, without being exactly localized in them” (Foucault 1978, 95). Thus, power is not like an object that is acquired or held, but rather it is exercised from innumerable points in a network of shifting relations. This understanding of social and political space as exhaustively comprised by a complex web of intersecting power relationships does not preclude particular lines and points in the network, like the state, from being bolder, so to speak, or more socially determinative than others; however, these points or lines do not act as a central locus from which the other lines emanate or through which they must pass (May 1995, 52–53). The state is not a “thing” exterior to us that can be seized and wielded by a dominant class or group without thereby merely reproducing the intricate network of power relations that manifests in exploitation, domination, irreducible forms of oppression (e.g. patriarchy, racism, heteronormativity, etc.), and deterioration of the biosphere. We are not controlled by a state or capital as institutions apart from us, set above or outside a “civil society,” but instead “we all govern each other through a complex web of capillary relations of power” (Day 2005, 124–125). This is not to say the state or capital are not real or do not have material effects, that the profane violence wrought by each and in tandem is an illusion, or that they can simply be wished away. Rather it is to reveal the critical foundation of their existence. Macropolitical practices or relations like the state and global capitalism are products of the manifold intersections and confluence of specific local, or micropolitical, practices, and must be understood and assayed on their basis. The intersecting local power relations and practices on which the macropolitical is founded cannot be subsumed and absorbed by the latter. This recognition is crucial to avoiding the theoretical and historical error of assuming that the destruction or replacement of dominating macropolitical arrangements will result in the dissolution of the composite power relations and the oppressive effects reflected in them. There remains a heterogeneity between micropolitical and macropolitical practices notwithstanding their entanglement through reflexive interplay and mutual supposition and reinforcement (May 1995, 99–100). Even as the relations comprising the state and global capital are traceable to and constituted by myriad local practices and power relationships, the macropolitical is not completely reducible to these local dynamics either. Rather it is an agglomeration of different lines in the network of mobile power relations that makes it more than the sum of its parts – not a mere mechanical transposition in scale of the local practices on which it is founded – but also not separate from the microrelations, from the confluence of micropolitical practices that constitute it and on which it depends for its functioning. In analyzing capitalism and the state form not as “things” but as particular sets of relations among subjects and the local practices yielded through the innumerable interactions of such relations, we can see how deactivating and reconceiving these relationships through the connection of experiments (even if initially small in scale) in the construction of alternative modes of social, political, and economic relations and organization can offer a way to avoid both the indefinite wait for the ripening of the moment for revolution to arrive – which, in aspiring to totalizing transformation through enacting a changing of the guard at the helm of the state, will leave unaddressed the underlying power relations – and the perpetuation of existing forms of domination by injecting energy into them anew through reformist demands (Day 2005, 16). To the extent that we continue to come to the state to mediate and redress our grievances, we remain circumscribed within the horizons of state logic. We perpetuate the set of relationships constitutive of the state each time we make claims or demands upon it for the conferral of recognition, inclusion, or gifts of heretofore denied rights. This is not necessarily to maintain that struggling for reforms can never be advantageous – perhaps to achieve short-term palliatives to mitigate the most severe depravities of capitalism – but it is to accentuate the consequences of this politics of demand that both provides the state system with positive energy which could be directed towards building alternatives, and serves to relegitimize and further sediment the set of social relationships constituting the dominant global political order. Armed with this conceptual lens for apprehending the manifold ways local power relations constitute macropolitical practices of the state and global capital, we can orient ourselves to evaluate the various molecular bonds, specific practices, psychic attachments, idealizations, investments of desire, modes of subjectification that traverse individuals, and the social order as specifically contributing to the macropolitical functioning of the state and capital or, in contrast, as eroding and undermining their operation, weaving different relationships that do not sustain those constituting capitalism and the state. Destituent power deposes the political order through withdrawing the vital energy and reconfiguring the social relationships and practices on which the system depends and which serve as its basis for perpetuation. If we are the state and capitalism and each is in all of us, then we must disentangle ourselves from this condition thereby creating openings in which we can begin to define ourselves through alternative relations (Day 2005, 188). The state and capitalism will persist only and as long as individuals continue to relinquish their autonomy to give their support to them, as their existence is sustained through psychic attachments to and codependency on their power, through the persistent acknowledgement and idealization of the dominant authority of each, and the local microrelations that crisscross the social body constituting these attachments, dependencies, and idealizations (Newman 2010, 42). Change will come through individuals withdrawing their collective support and deactivating at a micropolitical level the multifarious ways in which we are bound to the prevailing organization of power at the level of our social relationships and subjectivities. Thus, against the criticism that this approach of destituent power merely evinces an impotent allergy to state power, we can see we cannot reestablish a legal and political order without reproducing the subjectivities and power relations on which the former is predicated and from which the latter are derived in a dynamic relation of mutual codetermination. Some may also worry that embracing destituent power is naively unrealistic, that we need a legal and institutional order to functionally organize the social, especially at increasing geographic scales. While undoubtedly a critical challenge for the coming communities, this issue of administering complex systems is ultimately more a problem of imagination rather than logistics (though it is certainly that too). Destituent power pushes our collective imaginaries to develop approaches to organize political life that do not rely on establishing a legal and institutional order. Constituted power, wielding its law-preserving violence, functions as a machine for its own reproduction. Distancing itself from the historical and theoretical trappings of constituent power, destituent power operates ceaselessly to disperse power – for example, through developing mechanisms for rotating individuals who temporarily occupy a position of executing the communal will, or of “leading by obeying” (mandar obedeciendo), as with the Zapatistas or Aymaras in Bolivia – to prevent its accumulation, concentration, and reinstitutionalization (Zibechi 2010, 14–16). Drawing on these autonomous and indigenous communal forms can help us imagine modes of community that are non-institutional, non-legal, nonorganizational, in which the ostensibly distinct domains of the economic, social, political, cultural, etc. are not separated but woven together in the same field of the unfolding, indefinite communities-in-process. We do not yet know what a destituent body is capable of. The concept of destitution should be understood as a “positive no” rather than a pure negation, a “no” that in rejecting representation at once “produces a ‘self-changing’ affirmation that engenders new practices and modes of subjectification, from which the ‘no’ first derives its force” (Nowotny 2007). Destituent power dissolves sovereignty, institutions, and representation, thereby expanding “the field of the thinkable” as if manipulating an aperture (Colectivo Situaciones 2011, 53). The flight from the system does not carry with it a hegemonic, universal program for constructing new social and ecological relations in destituent territories, but will be a ceaseless process of experimentation with alternatives developed through recursive (re)negotiation of common social values using participatory democratic practices.(7-11)Depoliticization spreads annihilating value to life. The affirmative’s conception of free/unfree is based on the physical location of the prison which obscures the omnipresence state “indifference” Agamben, PhD, 14(Giorgio, Philosophy@Accademia di Architettura di Mendrisio, 2-5)But the extreme step has been taken only in our days and it is still in the process of full realization. The development of new digital technologies, with optical scanners which can easily record not only finger prints but also the retina or the eye iris structure, biometrical apparatuses tend to move beyond the police stations and immigration offices and spread to everyday life. In many countries, the access to student’s restaurants or even to schools is controlled by a biometric apparatus on which the student just puts his hand. The European industries in this field, which are quickly growing, recommend that citizens get used to this kind of controls from their early youth. The phenomenon is really disturbing, because the European Commissions for the development of security (like the ESPR, European security research program) include among their permanent members the representatives of the big industries in the field, which are just armaments producers like Thales, Finmeccanica, EADS et BAE System, that have converted to the security business. It is easy to imagine the dangers represented by a power that could have at its disposal the unlimited biometric and genetic information of all its citizens. With such a power at hand, the extermination of the jews, which was undertaken on the basis of incomparably less efficient documentation, would have been total and incredibly swift. But I will not dwell on this important aspect of the security problem. The reflections I would like to share with you concern rather the transformation of political identity and of political relationships that are involved in security technologies. This transformation is so extreme, that we can legitimately ask not only if the society in which we live is still a democratic one, but also if this society can be still considered as political. Christian Meier has shown how in fifth century a transformation of the political conceptuality took place in Athens, which was grounded on what he calls a “politisation” (politisierung) of citizenship. While till that moment the fact of belonging to the polis was defined by a number of conditions and social status of different kind — for instance belonging to nobility or to a certain cultual community, to be peasant or merchant, member of a certain family etc — from now on citizenship became the main criterion of social identity. “The result was a specifically greek conception of citizenship, in which the fact that men had to behave as citizens found an institutional form. The belonging to economical or religious communities was removed to a secondary rank. The citizens of a democracy considered themselves as members of the polis, only in so far as they devoted themselves to a political life.Polis and politeia, city and citizenship constituted and defined one another. Citizenship became in that way a form of life, by means of which the polis constituted itself in a domain clearly distinct from the oikos, the house. Politics became therefore a free public space as such opposed to the private space, which was the reign of necessity”. According to Meier, this specifically greek process of politisation was transmitted to western politics, where citizenship remained the decisive element. The hypothesis I would like to propose to you is that this fundamental political factor has entered an irrevocable process that we can only define as a process of increasing depolitisation. What was in the beginning a way of living , an essentially and irreducibly active condition, has now become a purely passive juridical status, in which action and inaction, the private and the public are progressively blurred and become indistinguishable. This process of depolitisation of citizenship is so evident, that I will not dwell on it. I will rather try to show how the paradigm of security and the security apparatuses have played a decisive role in this process. The growing extension to citizens of technologies which were conceived for criminals has inevitably consequences on the political identity of the citizen. For the first time in the history of humanity, identity is no longer a function of the social personality and its recognition by others, but rather a function of biological data, which cannot bear any relation to it, like the arabesques of the fingerprints or the disposition of the genes in the double helix of DNA. The most neutral and private thing becomes the decisive factor of social identity, which lose therefore its public character. If my identity is now determined by biological facts, that in no way depends on my will and over which I have no control, then the construction of something like a political and ethical identity becomes problematic. What relationship can I establish with my fingerprints or my genetic code? The new identity is an identity without the person, as it were, in which the space of politics and ethics loses its sense and must be thought again from the ground up. While the greek citizen was defined through the opposition between the private and the public, the oikos , which is the place of reproductive life, and the polis, place of political action, the modern citizen seems rather to move in a zone of indifference between the private and the public, or , to quote Hobbes terms, the physical and the political body. The materialization in space of this zone of indifference is the video surveillance of the streets and the squares of our cities. Here again an apparatus that had been conceived for the prisons has been extended to public places. But it is evident that a video recorded place is no more an agora and becomes a hybrid of public and private, a zone of indifference between the prison and the forum. This transformation of the political space is certainly a complex phenomenon, that involves a multiplicity of causes, and among them the birth of biopower holds a special place. The primacy of the biological identity over the political identity is certainly linked to the politicization of bare life in modern states. But one should never forget that the leveling of social identity on body identity begun with the attempt to identify the recidivist criminals. We should not be astonished if today the normal relationship between the state and its citizens is defined by suspicion, police filing and control. The unspoken principle which rules our society can be stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a principle? Can we still define it as democratic State? Can we even consider it as being something political? In which kind of State do we live today?Constituent thought is the scaffolding that enables modern violence. Violence is no longer war between states but a war on distinctions themselves- war/peace, guilty/innocent are roadbumps on the way to total annihilation. Only a destitutent strategy offers a way out of unending destruction Lazzarato and Alliez, PhDs, 16(Maurizio, researcher at Matisse/CNRS, Pantheon-Sorbonne University , Eric, professor at Universite Paris 8 and at the Centre for Research in Modern European Philosophy “To Our Enemies,” e-flux, Journal #78 - December 2016 )22. If the fall of the Wall delivered the death certificate of a mummy whose Communist prehistory ’68 made us forget, and if it is to be considered a nonevent (as the thesis of the End of History states in its melancholic way), the bloody fiasco of the imperial war machine’s first post-Communist wars made history. In part because of the debate that it started inside the military, where a new paradigm of war appeared. An antithesis of the industrial wars of the twentieth century, the new paradigm is defined as a “war amongst the population.” This concept, which inspired an improbable “military humanism,” is one we make our own by returning its meaning to the source and real terrain of wars of capital, and by rewriting this “war within the population” in the plural of our wars. The population is the battlefield in which counter-insurrectional operations of all kinds are underway. At the same time, and indistinguishably, they are both military and nonmilitary because they also carry the new identity of “bloody wars” and “non-bloody wars.” Under Fordism, the State not only guaranteed State territorialization of Capital but also of war. As a result, globalization cannot not free capital from State control without also freeing war, which passes to a superior power of continuity by integrating the plane of capital. Deterritorialized war is no longer inter-State war at all, but an uninterrupted succession of multiple wars against populations, definitively sending “governmentality” to the side of governance in a common enterprise of denial of global civil wars. What is governed and what allows governing are the divisions that project wars into the heart of the population at the level of the real content of biopolitics. A biopolitical governmentality of war as differential distribution of instability and norm of “daily life.” The complete opposite of the Great Narrative of the liberal birth of biopolitics taking place in a famous course at the Collège de France in the break between the 1970s and 1980s. 23. Accentuating divisions, aggravating the polarization of every capitalist society, the debt economy transforms “global civil war” (Schmitt, Arendt) into interconnected civil wars: class wars, neocolonialist wars on “minorities,” wars on women, wars of subjectivity. The matrix of these civil wars is the colonial war. Colonial war was never a war between States but, in essence, a war in and against the population, where the distinctions between war and peace, between combatants and noncombatants, between economy, politics, and military were never used. Colonial war in and against populations is the model of the war that financial Capital unleashed starting in the 1970s in the name of a neoliberalism of combat. Its war is both fractal and transversal: fractal, because it indefinitely produces its invariance by constant changes of scale (its “irregularity” and the “cracks” it introduces operate at different scales of reality); and transversal, because it is simultaneously deployed at the macropolitical level (by playing on all of the major binary oppositions: social classes, whites and nonwhites, men and women) and the micropolitical level (by molecular “engineering” privileging the highest interactions). It can also connect the civilian and military levels in the Global South and North, in the Souths and Norths of everyone (or almost everyone). Its first characteristic is therefore to be less indiscriminate war than irregular war. The war machine of capital which, in the early 1970s, definitively integrated the State, war, science, and technology, clearly declares the strategy of contemporary globalization: to bring to an end the very short history of reforming capital—Full Employment in a Free Society, according to the manifesto of Lord Beveridge published in 1944—by attacking everywhere and with all means available the conditions of reality of the power struggle that imposed it. An infernal creativity is deployed by the neoliberal political project in pretending to grant the “market” superhuman qualities of information processing: the market as the ultimate cyborg. 24. The newfound consistency of neofascisms starting with the financial “crisis” in 2008 represents a turning point in the waging of wars amongst populations. Their dimensions, both fractal and transversal, take on a new and formidable effectiveness in dividing and polarizing. The new fascisms challenge all of the resources of the “war machine,” because if the “war machine” is not necessarily identified with the State, it can also escape the control of Capital. While the war machine of Capital governs through an “inclusive” differentiation of property and wealth, the new fascist war machines function through exclusion based on racial, sexual, and national identity. The two logics seem incompatible. In reality, they inevitably converge (see “national preference”) as the state of economic and political emergency takes residence in the coercive time of global flow. If the capitalist machine continues to be wary of the new fascisms, it is not because of its democratic principles (Capital is ontologically antidemocratic!) or the rule of law, but because, as it happened with Nazism, post-fascism can claim its “autonomy” from the war machine of Capital and escape its control. Isn’t this exactly the same thing that has happened with Islamic fascisms? Trained, armed, and financed by the US, they turned their weapons against the superpower and its allies who had instrumentalized them. From the West to the lands of the Caliphate and back, the neo-Nazis of all allegiances embody the suicidal subjectivation of the capitalist “mode of destruction.” It is also the final scene of the return of the colonial repressed: the jihadists of generation 2.0 haunt Western cities like their most internal enemy. Endocolonization also becomes the generalized conjugation of “topical” violence of the most intense domination of capitalism over populations. As for the process of convergence or divergence between the capitalist and neofascist war machines, it will depend on the evolution of the civil wars now underway and the risks that a future revolutionary process could run for private property, and more generally for the power of Capital. 25. Prohibiting the reduction of Capital and capitalism to a system or a structure, and of the economy to a history of self-enclosed cycles, wars of class, race, sex, and subjectivity also challenge every principle of autonomy in science and technology, every highway to “complexity” or emancipation forged by the progressive (and now accelerationist) idea of the movement of History. Wars constantly inject the indeterminacy of conflict into open strategic relationships, making inoperable every mechanism of self-regulation (of the market) or every regulation by feedback (“man-machine systems” open their “complexity” to the future). The strategic “opening” of war is radically other than the systematic opening of cybernetics, which was not born in/of war for nothing. Capital is not structure or system; it is “machine” and war machine, of which the economy, politics, technology, the State, the media, and so forth are only the articulations informed by strategic relations. In the Marxist/Marxian definition of General Intellect, the war machine integrating science, technology, and communication into its functioning is curiously neglected for the sake of a hardly credible “communism of capital.” 26. Capital is not a mode of production without being at the same time a mode of destruction. The infinite accumulation that constantly moves its limits to recreate them again is at the same time unlimited, widespread destruction. The gains in productivity and gains of destructiveness progress in parallel. They manifest themselves in the generalized war that scientists prefer to call “Anthropocene” rather than “Capitalocene,” even if, in all evidence, the destruction of the environments in and through which we live does not begin with “humans” and their growing needs, but with Capital. The “ecological crisis” is not the result of a modernity and humanity blinded to the negative effects of technological development but the “fruit of the will” of some people to exercise absolute domination over other people through a global geopolitical strategy of unlimited exploitation of all human and nonhuman resources. Capitalism is not only the deadliest civilization in the history of humanity, the one that introduced us to the “shame of being human”; it is also the civilization through which labor, science, and technology have created—another (absolute) privilege in the history of humanity—the possibility of (absolute) annihilation of all species and the planet that houses them. In the meantime, the “complexity” of (saving) “nature” still offers the prospect of healthy profits combining the techno utopia of geoengineering and the reality of the new markets of “polluting rights.” At the confluence of one and the other, the Capitalocene does not send capitalism to the Moon (it has been there and back); it completes the global merchandizing of the planet by asserting its rights to the well-named troposphere. 27. The logic of Capital is the logistics of an infinite valuation. It implies the accumulation of a power that is not merely economic for the simple reason that it is complicated by strategic power and knowledge of the strength and weakness of the classes struggling, to which it is applied and with which they are in constant explanation. Foucault tells us that the Marxists turned their attention to the concept of “class” to the detriment of the concept of “struggle.” Knowledge of strategy is thus evacuated in favor of an alternative enterprise of pacification (Tronti offers the most epic version of this). Who is strong and who is weak? In what way did the strong become weak, and why did the weak become strong? How to strengthen oneself and weaken the other to dominate and exploit it? We propose to follow and reinvent the anticapitalist path of French Nietzscheism. 28. Capital came out the victor in the total wars and in the confrontation with global revolution, for which the number for us is 1968. Since then, it has gone from victory to victory, perfecting its self-cooled motor, where it verifies that the first function of power is to deny the existence of civil wars by erasing even the memory of them (pacification is a scorched earth policy). Walter Benjamin is there to remind us that reactivating the memory of the victories and defeats from which the victors take their domination can only come from the “defeated.” Problem: the “defeated” of ’68 threw out the bath water of civil wars with the old Leninist baby at the end of the “Hot Autumn” sealed by the failure of the dialectic of the “party of autonomy.” Entry into the “winter years” on the edge of a second Cold War that ensures the triumph of the “people of capitalism” (“‘People’s Capitalism’—This IS America!”), the End of History will take the relay without stopping at a Gulf War that “did not take place.” Except there is a constellation of new wars, revolutionary machines, or mutant militants (Chiapas, Birmingham, Seattle, Washington, Genoa …) and new defeats. The new writing generations describe “the missing people” dreaming of insomnia and destituent processes unfortunately reserved for their friends. 29. We will cut it short, in addressing our enemies. Because this text has no other object, under the economy and its “democracy,” behind the technological revolutions and “mass intellectuality” of the General Intellect, than to make heard the “rumble” of real wars now underway in all of their multiplicity. A multiplicity which is not to be made but unmade and remade to charge the “masses or flows,” which are doubly subjects, with new possibilities. On the side of relations of power as subject to war or/and on the side of strategic relationships that are capable of projecting them to the rank of subjects of wars, with “their mutations, their quanta of deterritorialization, their connections, their precipitations.” In short, it is a question of drawing the lessons from what seems to us like the failure of the thought of ’68 which we have inherited, even in our inability to think and construct a collective war machine equal to the civil war unleashed in the name of neoliberalism and the absolute primacy of the economy as exclusive policy of capital. Everything is taking place as if ’68 was unable to think all the way, not its defeat (there are, since the New Philosophers, professionals in the matter), but the warring order of reasons that broke its insistence through a continuous destruction, placed in the present infinitive of the struggles of “resistance.” 30. It is not a question, it is not at all a question of stopping resistance. It is a question of dropping a “theoricism” satisfied with a strategic discourse that is powerless in the face of what is happening. And what has happened to us. Because if the mechanisms of power are constitutive, to the detriment of strategic relationships and the wars taking place there, there can only be phenomena of “resistance” against them. With the success we all know. Graecia docet.Prefer negative evidence- sociolegal study proves incremental reform efforts like the AC are counterproductive- they reinforce tropes/assumptions that underly mass incarceration and the CJS Beckett, PhD, et al., 16(Katherine, Sociology@Washington, Anna Reositi, PhD Candidate, Emily Knaphus, PhD Candidate, The End of an Era? Understanding the Contradictions of Criminal Justice Reform The Annals of The American Academy of Political and Social Science March, 2016)There is, then, considerable evidence that the criminal justice zeitgeist is in flux and that meaningful criminal justice reform is under way. On the other hand, sociolegal scholarship provides ample reason to suspect that once created, mass incarceration may prove difficult to reverse, even with the enactment of meaningful reforms. There are several reasons for this. In some cases, reforms simply trigger adaptation by institutional actors. For example, following the Supreme Court's invalidation of vagrancy and loitering statutes, local authorities across the country created novel social control tools that enabled them to regulate the movement of the socially marginal but are comparatively difficult to challenge in the courts n2 (Beckett and Herbert 2010). Similarly, the Supreme Court's 1972 [*241] Furman v. Georgia decision--in which the Court determined that the administration of capital punishment violated several constitutional protections--triggered the widespread adoption of statutes authorizing the imposition of LWOP sentences. Because these statutes were not rescinded after the Court reinstated the death penalty in 1976, n3 the unintended consequence of the temporarily successful challenge to capital punishment was the spread of "the other death penalty" (Gottschalk 2012; McCann and Johnson 2009; Ogletree and Sarat 2012). Similarly, prison litigation efforts in Florida backfired when court orders to reduce overcrowding were (re)interpreted by political actors as mandates to build additional prisons rather than to reduce prison populations (Schoenfeld 2010). And as Petersilia and Cullen (2015, 12) note in their recounting of instances in which good intentions went awry, efforts to reduce prison populations through the adoption of intermediate sanctions in the early 1990s did not reduce prison populations, and in some cases actually increased them. These studies remind us that criminal justice reform may not unfold in a linear or unidirectional manner, and often has paradoxical consequences, in part because institutional dynamics may undercut or complicate criminal justice reform efforts. Indeed, as the vast literature on path dependence shows, developments such as mass incarceration create vested interests that seek to perpetuate favorable institutional arrangements. Path dependence refers to "the tendency for courses of political or social development to 'generate self-reinforcing processes'" (Pierson 2000, 810) that frustrate efforts to change direction. For example, the creation of Sweden's generous social welfare programs created a large population of public sector social service workers who were well suited (and motivated) to mobilize politically around policies that sustained or expanded the national welfare state (Pierson 2000, 810; see also Mahoney 2000). Similarly, institutions that have flourished as a result of mass incarceration often work to ensure its continued existence. For example, private corporations that own and operate prisons (or profit from them), prison officers' unions, the bail industry, and even county clerks often seek to block progressive criminal justice reform (Gottshalk 2015; Mason 2012; Page 2011a, 2011b; Petersilia and Cullen 2015). These policy fights may play out in relatively public ways, as efforts by the prison officers' union to prevent reform of California's "Three Strikes" law did (Page 2011a, 2011b). Organizations such as prison officer unions also make campaign donations, fund victims groups, and engage in effective public relations campaigns in pursuit of their political goals. Institutional developments such as mass incarceration thus create powerful institutions that may engage in overt policy battles to protect their interests. But efforts to blunt or reverse reforms may also take subtler and less visible forms (Beckett and Murakawa 2012; Hacker 2004). As sociolegal scholars have long emphasized, the exercise of legal discretion can create a notable gap between the "law on the books" and the "law in action" (Halliday et al. 2009; Silbey and Sarat 1987). Moreover, legal discretion is ubiquitous throughout the criminal justice process (Davis 2008). For example, police scholars have long noted that police organizations and officers possess significant discretion that shapes not only criminal justice outcomes but urban landscapes as well (Bittner 1967). Similarly, prosecutorial discretion is enormously consequential but notoriously difficult to [*242] monitor (Davis 2008; Stuntz 2011). And in states with in-determinant sentencing systems (in which judges impose open-ended sentences and parole boards determine actual release dates), parole boards also exercise substantial discretion and notably impact the amount of time inmates serve in prison (Gottshalk 2015). In short, institutional dynamics may undermine the impact of criminal justice reform efforts. But sociolegal scholarship also suggests that criminal justice reformers are also likely to encounter--and may even perpetuate--important cultural obstacles. Mass incarceration is a highly racialized phenomenon, one that both reflects and perpetuates racial stereotypes, especially the cultural association between blackness and criminality (Muhammad 2010). Indeed, rhetorical justifications for the wars on crime and drugs have relied heavily on racialized images and discourses (Alexander 2010; Beckett 1997; Provine 2007; Simon 2007); criminal justice institutions now serve, in part, as "race-making" institutions (Pager 2007). Institutional and political actors opposed to criminal justice reforms will therefore find a plethora of racially inflected images and discourses that may be effectively deployed in an effort to buttress antireform efforts. Moreover, there is reason to suspect that these racialized tropes and images will continue to resonate with large sectors of the public (Eberhardt and Goff 2005; Eberhardt et al. 2004). Indeed, recent studies suggest that white citizens actually become more supportive of "tough" criminal justice policies when they are informed that those policies disproportionately impact people of color (Hetey and Eberhardt 2014; see also Ghandnoosh 2014). In addition, as theorists ranging from Durkheim (1984) and Mead (1918) to Garfinkel (1956) and Goffman (1956) have emphasized, penal practices are inherently expressive and symbolic acts. The expressive dimension of penal rituals and the judgment, condemnation, and punishment of criminal offenders means that public discussions of penal practices are emotionally and morally loaded (Garland 1990). Discussions of crime and punishment, then, are intensely symbolic phenomena; crime talk generally, and reassertions of the need to punish "real criminals" and "predators," are highly subject to "symbolic politics" (Edelman 1985). For these reasons, policy-makers may feel compelled to reassert the moral boundaries that differentiate deserving citizens from "predators" and to reassure the public that they remain committed to the idea that "real criminals" must be aggressively punished--even as they embrace certain (limited) criminal justice reforms. Indeed, reformers themselves sometimes juxtapose the comparatively sympathetic target of their reform efforts--usually "nonviolent drug users"--with "serious and violent" criminals (see also Gottshalk 2015). One example of this kind of rhetoric comes from the I75 campaign that took place in Seattle in the early 2000s, in which reformers sought to deprioritize marijuana enforcement. In justifying this policy shift, reformers emphasized that the initiative would save scarce resources and "free our police and prosecutors--who are already over-worked and deserve our strong support--to concentrate on protecting us against serious and violent crime" (Licata et al. n.d.). Similarly, the U.S. Department of Justice's recent (2013) campaign for policies that are "smart on crime" highlights the need to ensure "just punishments" for "non-violent offenders"--implying, it would seem, that unjust punishments for people convicted of a violent offense are "smart" and acceptable. [*243] In short, as Seeds (2015) argues, the national discourse on crime and punishment may reflect a new, bifurcated way of thinking and talking about punishment that draws a sharp line between nonviolent and violent offenders and depicts the former as worthy of reform but the latter as deserving of even greater punishment. These observations lead us to suspect that neither the emergence of discourses associated with the "Right on Crime" and "Smart on Crime" campaigns, nor the recent adoption of drug and parole reforms, nor even the dramatic "realignment" of California's correctional populations, necessarily signal a comprehensive rethinking of the nature, scope, and intensity of U.S. penal practices. Instead, we explore the possibility that these developments may constitute a comparatively minor adjustment of the boundaries that delineate "real criminals" from more sympathetic others. Ironically, reformers may reaffirm the collective commitment to severely punishing those who remain firmly entrenched in the "real criminal" category even as they make the case for particular reforms. For these reasons, the enactment of drug and parole reforms and the spread of discourses that highlight the validity of such reforms may be accompanied by subtle shifts in penal discourse in which the use of nonconfinement sanctions for some offenders is legitimated even as the imposition of increasingly severe penalties for less sympathetic criminal defendants is justified. To the extent that this occurs, the prospects of comprehensive sentencing reform that would significantly reduce levels of incarceration are weakened. These insights leads us to hypothesize that recent calls for criminal justice reform--and policy reforms themselves--are not comprehensive but, rather, consistently identify nonviolent, nonserious, and nonrepeat offenders as the intended beneficiary of penal reform. We also expect that calls for such reforms frequently entail assertions of the need to maintain or intensify the penalties imposed on "serious" and "violent" criminals. Empirical support for these hypotheses would suggest that the reach (and potential impact) of criminal justice reform is circumscribed; it would also suggest that contemporary debates--and even calls for reform--reinforce the idea that penalties for repeat, serious, and violent offenders should be maintained and perhaps even intensified. Finally, we suspect that reforms will be primarily framed as a way of reducing state expenditures on corrections rather than as a way to promote fairness, proportionality, and/or human rights in the criminal justice system. To the extent that this is the case, policy "solutions" aimed at minimizing correctional costs--but not reducing correctional populations or improving prison conditions--may be seen as sufficient. We assess these hypotheses by analyzing recent criminal justice policy reforms as well as newspaper stories about criminal justice reform. In what follows, we briefly describe the data and methods employed in these analyses.The alternative is whatever being: a mode of life that resists political classification. Since sovereignty exercises power through classification, resistance should focus on modes of living rather than acts Caldwell, PhD, 04(Anne, Political/Feministtheory@Louisville, Bio-Sovereignty and the Emergence of Humanity Theory & Event Volume 7, Issue 2, 2004)Can we imagine another form of humanity, and another form of power? The bio-sovereignty described by Agamben is so fluid as to appear irresistible. Yet Agamben never suggests this order is necessary. Bio-sovereignty results from a particular and contingent history, and it requires certain conditions. Sovereign power, as Agamben describes it, finds its grounds in specific coordinates of life, which it then places in a relation of indeterminacy. What defies sovereign power is a life that cannot be reduced to those determinations: a life “that can never be separated from its form, a life in which it is never possible to isolate something such as naked life.” (2.3). In his earlier Coming Community, Agamben describes this alternative life as “whatever being.” More recently he has used the term “forms-of-life.” These concepts come from the figure Benjamin proposed as a counter to homo sacer: the “total condition that is ‘man’.” For Benjamin and Agamben, mere life is the life which unites law and life. That tie permits law, in its endless cycle of violence, to reduce life an instrument of its own power. The total condition that is man refers to an alternative life incapable of serving as the ground of law. Such a life would exist outside sovereignty. Agamben’s own concept of whatever being is extraordinarily dense. It is made up of varied concepts, including language and potentiality; it is also shaped by several particular dense thinkers, including Benjamin and Heidegger. What follows is only a brief consideration of whatever being, in its relation to sovereign power. “Whatever being,” as described by Agamben, lacks the features permitting the sovereign capture and regulation of life in our tradition. Sovereignty’s capture of life has been conditional upon the separation of natural and political life. That separation has permitted the emergence of a sovereign power grounded in this distinction, and empowered to decide on the value, and non-value of life (1998: 142). Since then, every further politicization of life, in turn, calls for “a new decision concerning the threshold beyond which life ceases to be politically relevant, becomes only ‘sacred life,’ and can as such be eliminated without punishment” (p. 139). This expansion of the range of life meriting protection does not limit sovereignty, but provides sites for its expansion. In recent decades, factors that once might have been indifferent to sovereignty become a field for its exercise. Attributes such as national status, economic status, color, race, sex, religion, geo-political position have become the subjects of rights declarations. From a liberal or cosmopolitan perspective, such enumerations expand the range of life protected from and serving as a limit upon sovereignty. Agamben’s analysis suggests the contrary. If indeed sovereignty is bio-political before it is juridical, then juridical rights come into being only where life is incorporated within the field of bio-sovereignty. The language of rights, in other words, calls up and depends upon the life caught within sovereignty: homo sacer. Agamben’s alternative is therefore radical. He does not contest particular aspects of the tradition. He does not suggest we expand the range of rights available to life. He does not call us to deconstruct a tradition whose power lies in its indeterminate status.21 Instead, he suggests we take leave of the tradition and all its terms. Whatever being is a life that defies the classifications of the tradition, and its reduction of all forms of life to homo sacer. Whatever being therefore has no common ground, no presuppositions, and no particular attributes. It cannot be broken into discrete parts; it has no essence to be separated from its attributes; and it has no common substrate of existence defining its relation to others. Whatever being cannot then be broken down into some common element of life to which additive series of rights would then be attached. Whatever being retains all its properties, without any of them constituting a different valuation of life (1993: 18.9). As a result, whatever being is “reclaimed from its having this or that property, which identifies it as belonging to this or that set, to this or that class (the reds, the French, the Muslims) — and it is reclaimed not for another class nor for the simple generic absence of any belonging, but for its being-such, for belonging itself.” (0.1–1.2). Indifferent to any distinction between a ground and added determinations of its essence, whatever being cannot be grasped by a power built upon the separation of a common natural life, and its political specification. Whatever being dissolves the material ground of the sovereign exception and cancels its terms. This form of life is less post-metaphysical or anti-sovereign, than a-metaphysical and a-sovereign. Whatever is indifferent not because its status does not matter, but because it has no particular attribute which gives it more value than another whatever being. As Agamben suggests, whatever being is akin to Heidegger’s Dasein. Dasein, as Heidegger describes it, is that life which always has its own being as its concern — regardless of the way any other power might determine its status. Whatever being, in the manner of Dasein, takes the form of an “indissoluble cohesion in which it is impossible to isolate something like a bare life. In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into existence over which power no longer seems to have any hold” (Agamben 1998: 153). We should pay attention to this comparison. For what Agamben suggests is that whatever being is not any abstract, inaccessible life, perhaps promised to us in the future. Whatever being, should we care to see it, is all around us, wherever we reject the criteria sovereign power would use to classify and value life. “In the final instance the State can recognize any claim for identity — even that of a State identity within the State . . . What the State cannot tolerate in any way, however, is that the singularities form a community without affirming an identity, that humans co-belong without a representable condition of belonging” (Agamben 1993:85.6). At every point where we refuse the distinctions sovereignty and the state would demand of us, the possibility of a non-state world, made up of whatever life, appears.30 MVLA VP Aff Kant1AC – FWFirst, Ideal theory’s A) inevitable, which non-uniques disads and B) frames non-ideal judgments. Arvan ’14: Posted by Marcus Arvan on 05/03/2014 at 11:05 AM What's not wrong with ideal theory is fallacious. I entirely agree that it is important not to confuse the ANDto do nonideal theory inevitably -- if only tacitly -- appeals to ideals.Second, Moral claims must be a priori—our perceptions are inherently suspect, since we can’t verify if our experiences are correct except through these experiences Kant: We have therefore wanted to say that all our intuition is nothing but the representation of appearance; that the things that we intuit are not in themselves what we intuit them to be, nor are their relations so constituted in themselves as they appear to us; and that if When we remove our own subject or even only the subjective constitution of the senses as with sleep in general, then all constitution, all relations of objects in space and time, indeed space and time themselves would disappear, and as appearances they objects cannot exist in themselves, but only in us. What may be the case with objects in themselves and abstracted from all this receptivity of our sensibility remains entirely unknown to us. since We are acquainted with nothing except our way of perceiving them, which is peculiar to us, and which therefore does not necessarily pertain to every being, though to be sure it pertains to every human being. We are concerned solely with this. Space and time are its pure forms, sensation in general its matter. We can cognize only the former a priori, i.e., prior to all actual perception, and they are therefore called pure intuition; the latter, however, is that in our cognition that is responsible for its being called a posteriori cognition, i.e., empirical intuition. The former adheres to our sensibility absolutely necessarily, whatever sort of sensations we may have; the latter can be very different.Thus, the meta-ethic is procedural moral realism. Korsgaard ONE clarifies:All cards are from Sources of Normativity by KorsgaardWhat distinguishes substantive from procedural realism is a view about the relationship between the answers ANDfacts that exist independently of those procedures, which those procedures track.35Prefer since substantive realism relies on an implausible epistemology. Korsgaard TWO:Substantive realism conceives the procedures for answering normative questions as ways of finding out about a certain part of the world, the normative part. To that extent, substantive moral realism is distinguished not by its view about what kind of truths there are, but by its view of what kind of subject ethics is. It conceives ethics as a branch of knowledge: knowledge of the normative part of the world. Substantive moral realism has been criticized in many ways. It has been argued that we have no reason to believe in intrinsically normative entities or objective values. They are not harmonious with the Modern Scientific World View, nor are they needed for giving scientific explanations. Since the time of Hume and Hutcheson, it has been argued that there is no reason why such entities should motivate us, disconnected as they are from our natural sources of motivation. Many of these criticisms have been summed up in John Mackie’s famous “Argument from Queerness.” Here it is in Mackie’s own words: If there were objective values, then they would be entities or qualities or relations of a very strange sort, utterly different from anything else in the universe known. Correspondingly, if we were aware of them, it would have to be by some special faculty of moral perception or intuition, utterly different from our ordinary ways of knowing everything else. Plato’s Forms give a dramatic picture of what objective values would have to be. The Form of the Good is such that knowledge of it provides the knower with both a direction and an overriding motive; something’s being good both tells the person who knows this to pursue it and makes him pursue it. An objective good would be sought by anyone who was acquainted with it, not because of any contingent fact that this person, or every person, is so constituted that he desires this end, but just because the end has to-be-pursuedness somehow built into it. Similarly, if there were objective principles of right and wrong, any wrong (possible) course of action would have not-to-be-doneness somehow built into it.36 And nothing, Mackie suggests, could be like that. Of course Mackie doesn’t really prove that such entities couldn’t exist. But he does have a point, although I think it is not the point he meant to make.analyticHere’s the procedure: it’s practical reason. Korsgaard THREE: The reflective structure of the mind is a source of “selfconsciousness” because it forces us to have a conception of ourselves. As Kant argues, this is a fact about what it is like to be reflectively conscious and it does not prove the existence of a metaphysical self. From a third person point of view, outside of the deliberative standpoint, it may seem look as if what happens when someone makes a choice is that the strongest of his conflicting desires wins. But that isn’t the way it is for you when you deliberate. When you deliberate, it is as if you there were something over and above all of your desires, something that is you, and that choosinges which desire to act on. This means that the with principle or law by which you determine your actions is one that you regard as being expressive of yourself. To identify with such a principle or law is to be, in St. Paul’s famous phrase, a law to yourself.6 An agent might think of herself as a Citizen in the Kingdom of Ends. Or she might think of herself as a member of a family or an ethnic group or a nation. She might think of herself as the steward of her own interests, and then she will be an egoist. Or she might think of herself as the slave of her passions, and then she will be a wanton. And how she thinks of herself will determine whether it is the law of the Kingdom of Ends, or the law of some smaller group, or the law of the egoist, or the law of the wanton that is the law that she is to herself. The conception of one’s identity in question here is not a theoretical one, a view about what as a matter of inescapable scientific fact you are. It is better understood as a description under which you value yourself is, a description under which you find your life to be worth living and your actions to be worth undertaking. So I will call this a conception of your practical identity. Practical identity is a complex matter and for the average person there will be a jumble of such conceptions. You are a human being, a woman or a man, an adherent of a certain religion, a member of an ethnic group, someone’s friend, and so on. And all of these identities give rise to reasons and obligations. Your reasons express your identity, your nature ; your obligations spring from what that identity forbids. Our ordinary ways of talking about obligation reflect this connection to identity. A century ago a European could admonish another to civilized behavior by telling him to act like a Christian. It is still true in many quarters that courage is urged on males by the injunction “Be a man!” Duties more obviously connected with social roles are of course enforced in this way. “A psychiatrist doesn’t violate the confidence of her patients.” No “ought” is needed here because the normativity is built right into the role. But it isn’t only in the case of social roles that the idea of obligation invokes the conception of practical identity. Consider the astonishing but familiar “I couldn’t live with myself if I did that.” Clearly there are two selves here, me and the one I must live with and so must not fail. Or consider the protest against obligation ignored : “Just who do you think you are ?” The connection is also present in the concept of integrity. Etymologically, integrity is oneness, integration is what makes something oneANDIf reasons arise from reflective endorsement, then obligation arises from reflective rejection.analyticsThat implies intersubjectivity—Reasons must be public, explaining why we can understand the reasons others have, while still identifying primarily with our own. Thus reasons must be universal since they stem from humanity. Korsgaard FOUR: There are reasons for caring about these things, reasons which are communicable and therefore at least potentially shareable. Ask a mountain climber why she climbs and she need not be mute: she may tell you things about the enlarged vistas, the struggle with the elements, the challenge of overcoming fears or surpassing physical limitations. She takes her desire to climb mountains to be a motivated desire, movtivated by recognizably good features of the experience of climbing. She does not take the value of the climb to be conferred on it simply by her desire to do it. Someone who says “I just want to” isn’t offering you his reason; he is setting up a bulwark against incomprehension. You may be the problem or he may feel himself inarticulate: many people do. But listen to the articulate talk about their projects and you hear the familiar voice of humanity, not the voice of alien idiosyncrasies. Or if you don’t, perhaps you should. For it is at this point that the difference between Objective Realism and Intersubjectivism becomes important. An Objective Realist interpretation of the value of climbing mountains, or of collecting stamps or coins or barbed wire, or of excelling at bowling or billiards, is not very tempting. xxxi Neither, as I think, is an Objective Realist interpretation of the value of a good book on Kant’s ethics. These These are not intrinsic values, already there in the universe, which we have discovered, but rather are expressions of our own distinctively human capacity to take an interest, and to find something interesting, in whatever we find around us. To share another’s ends, or at least to grant that they could be shared, is to see them as expressions of that capacity, and so as expressions of our common humanity. The Intersubjectivist sees the other as human, and therefore shares or tries to share the other’s ends. That is why she helps others to pursue their ambitions. But the Objective Realist sees no reason to help unless he first sees the other’s ends as ones that he can share. His relationship to others is mediated by his relationship to their ends. According to the Intersubjectivist this is not only a mistake in moral theory but a moral wrong. We should promote the ends of others not because we recognize the value of those ends, but rather out of respect for the humanity of those who have them.analytics1) The nature of laws implies the state must look to the united will. Ripstein 09 Bracketed for clarityAll people have the right to act for themselves. Kant argues that provision for the poor follows directly from the very idea of a united will. He remarks that the idea of a united lawgiving will requires that citizens regard the state as existing in perpetuity. By this he does not mean to impose an absurd requirement that people live forever,or even the weaker one that it must sustain an adequate population, or make sure that all of its members survive. The state does need to maintain its material preconditions, and as we saw in Chapter 7, this need generates its entitlement to “administer the state’s economy and finance.The state’s existence in perpetuity, however, is presented as a pure normative requirement, grounded in its ability to speak and act for everyone. That ability must be able to survive changes in the state’s membership. You are the same person you were a year ago because your normative principle of organization has stayed the same through changes in the matter making you up. As a being entitled to set and pursue your own purposes, you decide what your continuing body will do. That is why your deeds can be imputed to you even after every molecule in your body has changed, and even if you have forgotten what you did. The unity of your agency is created by the normative principle that makes your actions imputable to you. In the same way, the state must sustain its basic normative principle of organization through time, even as some members die or move away and new ones are born or move in. As we saw in Chapter 7, its unifying principle—“in terms of which alone we can think of the legitimacy of the state”—is the idea of the original contract, through which people are bound by laws they have given themselves through public institutions. The state must have the structure that is required in order for everyone to be bound by it, so that it can legitimately claim to speak and act for all across time. The requirement of unity across time is clear in the cases of legislation by officials: if the official’s decision were only binding while a particular human being held office, a citizen would be entitled to regard laws as void once the official’s term ended. Because each person is master of him- or herself, one person is only bound by the authority of another through the idea of a united will. sustains the legitimacy of So the idea of a united will presupposes some manner in which it exists through time. Past legislation, like past agreement, can only bind those who come after if the structure through which laws are made is one that can bind everyone it governs.analytics2 ) Kant solves racism Farr 02 Arnold Farr (phil prof @ UKentucky, focusing on German idealism, philosophy of race, postmodernism, psychoanalysis, and liberation philosophy). “Can a Philosophy of Race Afford to Abandon the Kantian Categorical Imperative?” JOURNAL of SOCIAL PHILOSOPHY, Vol. 33 No. 1, Spring 2002, 17–32.Whereas most criticisms are aimed at the formulation of universal law and the formula of ANDto deepen our understanding of it and its place in Kant’s critical philosophy.Thus, the standard is consistency with a system of equal and outer freedom. 1AC – Contention Retribution is the only form of punishment that satisfies autonomy. ShusterShuster, Arthur. “Kant on the Role of the Retributive Outlook in Moral and Political Life.” The Review of Politics, vol. 73, no. 3, 2011, pp. 425–448. JSTOR, JSTOR, stable/23016518. MSIn the section of the Doctrine of Right titled "Preliminary Concepts of the Metaphysics ANDto have uncovered through his critical philosophy (contained in his three Critiques). Plea bargaining can’t be retributive. KipnisKipnis, Kenneth. “Plea Bargaining: A Critic's Rejoinder.” Law and Society Review, vol. 13, no. 2, 1979, pp. 555–564. JSTOR, JSTOR, stable/3053268. MSIn my earlier article (1976:102 ff.) I argued that our system ANDthis structural injustice, is what discredits the le gitimacy of plea bargain.And, it’s intrinsically coercive. BrunkBrunk, Conrad G. “The Problem of Voluntariness and Coercion in the Negotiated Plea.” Law and Society Review, vol. 13, no. 2, 1979, pp. 527–553. JSTOR, JSTOR, stable/3053267. MSCritics of plea bargaining, however, have continued to voice earlier judicial and legislative ANDv. Alford, 400 U.S. 25, 40, 191AC – Underview1 ) Making discourse and reps an independent voting issue is counterproductiveJay and Graff, 95 - * Professor in the department of English at University of Wisconsin professor of English and Education at University of Illinois at Chicago (Gregory and Gerald, “Critique of Critical Pedagogy” Higher Education Under Fire, p. 207-9)jmlThe premise that teachers should unmask the ideologies of their students—or that they AND" politics, and even accepting the risk that they may change us.2 ) Prefer epistemic confidence—3 ) If both sides have offense on theory affirm – 4 ) Even if the state’s oppressive, pragmatic legal reform is bestLobel, Assistant Law Prof at Univ. of San Diego, ‘7(Orly, “THE PARADOX OF EXTRALEGAL ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS,” 2007, )In all of these cases, it is the act of engagement, not lawAND, and in turn serve to facilitate and ? stabilize the process.185Aff Non-Citizens1AC – DeportationsContention 1 is deportations – Prosecutors use plea bargains in cases against noncitizens to coerce them into signing away immigration hearing rights – leads to unjustified deportations, violations of international treaties, and mass oppression of undocumented immigrants.Williams and Musgrave 11/5Brooke Williams, Shawn Musgrave, 11-15-2017, "Federal Prosecutors Are Using Plea Bargains as a Secret Weapon for Deportations," Intercept, GENERAL JEFF Sessions is pushing federal prosecutors to bypass immigration courts as part of ANDwaivers. “Politics,” he said, “has superseded common sense.”Even when immigrants don’t get deported, their plea bargains result in sentences of unjustified length – both outcomes are badCade, Georgia Law, 13Jason A. Cade, University of Georgia School of Law, The Plea Bargain Crisis for Noncitizens in Misdemeanor Court , 34 Cardozo L. Rev. 1751 (2013), Available at: I describes how recent changes to immigration law have expanded the range of criminal ANDavoid contact with immigration authorities than by the strength of the prosecutor’s case.Leads to convictions of innocents, unnecessarily high sentences, and increased risk of deportation even in misdemeanor casesCade, Georgia Law, 13Jason A. Cade, University of Georgia School of Law, The Plea Bargain Crisis for Noncitizens in Misdemeanor Court , 34 Cardozo L. Rev. 1751 (2013), Available at: misdemeanor system works poorly for all defendants, but noncitizens may fare worst of ANDeven if they are innocent or have been subject to unlawful police practices.The ability to plea quickly and go home leads judges to induce defendants to plead within minutes – destroys due process – uniquely worse for juvenile defendantsCade, Georgia Law, 13Jason A. Cade, University of Georgia School of Law, The Plea Bargain Crisis for Noncitizens in Misdemeanor Court , 34 Cardozo L. Rev. 1751 (2013), Available at: also coerce defendants to waive counsel in petty cases.160 Judges tell defendants ANDpossession offense can put the defendant in a much worse immigration situation.1661AC – PlanThe United States should abolish plea bargaining in cases with non-citizen defendants in the criminal justice system. 1AC – SolvencyContention two is solvency – Plan solves – puts burden of proof on governments, significantly reduces unjust prosecutionsWeil 3 Danny Weil is a writer for Project Censored and Daily Censored. He received the AND, as Alford, Banks, Burton and far too many others know.Michigan proves abolition works – decreases sentence severity and length; also doesn’t cause court clog – other quick measures like bench trials solveHeumann and Loftin 79Heumann, Milton, and Colin Loftin. “Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute.” Law and Society Review, vol. 13, no. 2, 1979, pp. 393–430. JSTOR, JSTOR, stable/3053261.Increasing concern about the substantial discretion accorded prosecutors in plea negotiations and judges in sentencing ANDabbreviated bench trials, were often employed to circumvent the mandatory sentencing provision.Aff spills over globallyBowcott 2017. Bowcott, Owen. Bowcott is the legal affairs correspondent for the Guardian. He was formerly the Guardian's Ireland correspondent and also worked on the foreign news desk. “Global epidemic' of US-style plea bargaining prompts miscarriage warning.” The Guardian, April 27, 2017. PremierThe adoption of US-style plea bargaining has reached “epidemic proportions” as ANDit argues there should be more safeguards such as mandatory access to lawyers.No reforms solve the aff, especially for non-citizen defendantsKing and Speir 13Nancy J. King, Lee S. and Charles A. Speir Professor of Law, Vanderbilt University Law School, Summer 2013, Suquesne Law Review, Plea Bargaining After Lafler and Frye: Article: Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Frye, , p. 681-92Albert W. Alschule, Julius Kreeger Professor of Criminal Law and Criminology, EmeritusANDsometimes quote the line, "Half a loaf is better than none."1AC – FramingFraming – State immigration enforcement imposes racial apartheid and repression – spills over from marginalized groups to everyone – combating it is uniquely keyFernandez, 5/14/14. Belen, Al Jazeera. “The creeping expansion of the Border Patrol.” couple of years ago, a chatty Border Patrol Agent in Texas told me AND-equipped drone to see that the Border Patrol is overstepping its bounds.That perpetuates racism and dehumanizationHinton 2 - Prof. of Anthropology at Rutgers – (Alexander Laban, August 19 2000, “Annihilating Difference: The Anthropology of Genocide” pgs. 32-33)Kbuck - Border patrol killed innocent immigrants at the borderA violent Identity of the latino ANDbeing victimized by forms of symbolic and physical violence that often precede genocide. Dehumanization is historically the cause of war and genocides – it makes us morally culpable to any atrocity Livingstone-Smith 11 (3/29/11, David, Livingstone Smith is a co-founder and director of the Institute for Cognitive Science and Evolutionary Psychology at the University of New England. “’Less Than Human’: The Psychology of Cruelty” DOA 6/21/15, Google) kbuckWhen people view groups as less-than-human it makes It easier to ANDthe author and reprinted by permission of St. Martin's Press, LLC. Prefer a consequentialist focus on combating structural violence and exclusionMills 97 – Associate Prof of Philosophy @ U Illinois, Chicago (Charles-; The Racial Contract)The Racial Contract has always been recognized by nonwhites as the real determinant of (AND, part of the population covered by the moral operator, or not.Issues of oppression come first1AC – Underview1 ) This discussion is uniquely important – outweighs TCade, Georgia Law, 13Jason A. Cade, University of Georgia School of Law, The Plea Bargain Crisis for Noncitizens in Misdemeanor Court , 34 Cardozo L. Rev. 1751 (2013), Available at: Chin, supra note 17 (describing generally how state criminal process laws take ANDprograms on noncitizens’ plea-bargain choices has garnered no academic focus whatsoever.2 ) Theory and T are reasons to reevaluate under the neg interp when neg runs it since:A. Infinite number of interps means aff will hit theory every round because overwhelming the aff with tons of layers is always strategic. Minimizing strategic incentive to run frivolous theory is key to solving it. Aff doesn’t have the same incentive to abuse theory since one, the neg is reactive and two, the 4 minute 1AR goes up against the 6 minute 2NR, so the neg always has a positive time-tradeoff on theory and any other argument on the flow. B. Reciprocity-the aff doesn’t get to read T, so there need to be some checks on it, otherwise neg will just read binary T every round for a fast track to the ballot. 3 ) Pragmatic legal reform is best Lobel, Assistant Law Prof at Univ. of San Diego, ‘7(Orly, “THE PARADOX OF EXTRALEGAL ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS,” 2007, )In all of these cases, it is the act of engagement, not lawAND, and in turn serve to facilitate and ? stabilize the process.18530 MVLA VP Neg CrimeWhite collar crime trend increasing now Holly Ellyatt, 8-1-2013, "Why white-collar financial crime is here to stay ," CNBC, criminals are still one step ahead of the authorities, according to a criminal lawyer, who argues it will be impossible to eradicate economic crime completely despite increased scrutiny of the financial industry. White collar crime is estimated to cost the global economy more than $2 trillion a year, according to the U.K.'s Financial Conduct Authority (FCA) – with the cost to the U.K. alone at more than ?40 billion ($61.9 billion) a year. The types of crime range from fraud and bribery to insider trading and embezzlement, experts told CNBC, and cybercrime is increasingly becoming part of its evolution. (Read more: Cybercrime threat? 'You ain't seen nothing yet') "We're seeing much more sophisticated criminals around the globe now and we're seeing technology playing a big part in that," Aaron Stephens, financial crime partner at law firm Berwin Leighton Paisner, said. "We're still in a period of flux when it comes to cybercrime and there's still a lot of scope for the criminals to be one step ahead of the authorities and more needs to be done in that regard." Michael Levi, professor of criminology at Cardiff University, agreed that cybercrime was one of the biggest challenges facing regulators, and added that accounting fraud was also an "endemic problem." (Read more: Global drugs trade 'as strong as ever' as fight fails) "The biggest white collar crimes are really the big accounting fraud risks," he told CNBC.Plea bargaining key to organized crime prosecutionsMohr 11 Aaron, Professor of Law at Drake University, “The Necessity of Plea Bargaining”, Published by the Drake University Social Science Journal, , Date Published: January 1 2011White collar and organized crime inevitably rise to the surface of the debate surrounding plea bargains. Those opposed to plea bargaining contend too much sentencing leniency is granted in order to catch criminals at the top of organized crime rings. The opposition’s argument refers to those who are lower on the criminal ladder being let off with very light sentences—often times even immunity—in order to secure testimony that incriminates leaders (Natapoff 992). As with plea bargaining in general, those with testimony benefit more than anyone else. Pleas are necessary though, to incriminate the decision makers in such institutions where “victimless crimes” occur. They are often the most conniving criminals and the hardest to catch, so pleas are hardly a disservice to the people they wrong. Without such testimony, “the government is in a poor position to obtain incriminating information without inside help” (993). Crime kills soft power. Falk 12Falk 2012 - “When soft power is hard,” Richard Falk, United Nations Special Rapporteur on Palestinian human rights. Al Jazzera Opinion. , 7/28/12This unabashed avowal of imperial goals is the main thesis of the article, perhaps most graphically expressed in the following words: "The United States can increase the effectiveness of its military forces and make the world safe for soft power, America's inherent comparative advantage." As the glove fits the hand, soft power complements hard power within the wider enterprise of transforming the world in the United States' image, or at least in the ideal version of the United States' sense of self. The authors acknowledge (rather parenthetically) that their strategy may not work if the US continues much longer to be seen unfavourably abroad as a national abode of drugs, crime, and violence, fiscal irresponsibility, family breakdown, and political gridlock. They make a rather meaningless plea to restore "a healthy democracy" at home as a prelude to the heavy lifting of democratising the world, but they do not pretend medical knowledge, and offer no prescriptions for restoring the health of the American body politic. And now, 16 years after their article appeared, it would appear that the adage, "disease unknown, cure unknown", applies.Soft power is an impact filter Rieffel 05 –Brookings Institution, writing fellow “REACHING OUT: AMERICANS SERVING OVERSEAS By Lex Rieffel Visiting Fellow The Brookings Institution” 1775 Massachusetts Avenue, NW Washington, DC 20036-2103 December 2005http:brookings.edu//media/research/files/papers/2005/12/07volunteering20rieffel/20051207rieffelLADIThe devastation of New Orleans by Hurricane Katrina at the end of August 2005 was another blow to American self-confidence as well as to its image in the rest of the world. It cracked the veneer of the society reflected in the American movies and TV programs that flood the world. It exposed weaknesses in government institutions that had been promoted for decades as models for other countries. Internal pressure to turn America’s back on the rest of the world is likely to intensify as the country focuses attention on domestic problems such as the growing number of Americans without health insurance, educational performance that is declining relative to other countries, deteriorating infrastructure, and increased dependence on foreign supplies of oil and gas. A more isolationist sentiment would reduce the ability of the USA to use its overwhelming military power to promote peaceful change in the developing countries that hold two-thirds of the world’s population and pose the gravest threats to global stability. Isolationism might heighten the sense of security in the short run, but it would put the USA at the mercy of external forces in the long run. Accordingly, one of the great challenges for the USA today is to build a broad coalition of like-minded nations and a set of international institutions capable of maintaining order and addressing global problems such as nuclear proliferation, epidemics like HIV/AIDS and avian flu, failed states like Somalia and Myanmar, and environmental degradation. The costs of acting alone or in small coalitions are now more clearly seen to be unsustainable. The limitations of “hard” instruments of foreign policy have been amply demonstrated in Iraq. Military power can dislodge a tyrant with great efficiency but cannot build stable and prosperous nations. Appropriately, the appointment of Karen Hughes as Under Secretary of State for Public Diplomacy and Public Affairs suggests that the Bush Administration is gearing up to rely more on “soft” instruments.2 The soft instruments of power can be thought of as including a vast array of public sector and private sector activities. They range from the government’s position in the international debate about global warming to the Fulbright program of academic exchanges to the behavior of American tourists overseas. For the purposes of this paper they are defined as the residual set of instruments after excluding hard instruments, with hard instruments being defined as all instruments involving any kind of armed military or police force.DA Court ClogFederal judicial caseloads are stable and declining nowAdministrative Office of the U.S. Courts 16 (United States Courts, "Federal Judicial Caseload Statistics 2016", ) This report presents data on the work of the appellate, district, and bankruptcy courts and on the probation and pretrial services systems. Below is a summary of key findings provided for the year ending March 31, 2016. In the U.S. courts of appeals, filings held steady, dropping 1 percent. The bankruptcy appellate panels reported a 20 percent reduction in filings. Filings in the U.S. Court of Appeals for the Federal Circuit grew 6 percent. In the U.S. district courts, filings of civil cases decreased 2.5 percent, while filings for defendants charged with crimes fell less than 1 percent. The U.S. bankruptcy courts received 9 percent fewer petitions. The number of persons under supervision by the federal probation system on March 31, 2015, was 3 percent higher than the total reported one year earlier. The number of pretrial services cases activated in the past 12 months dropped 3 percent. U.S. Courts of Appeals Filings in the 12 regional courts of appeals remained relatively stable, falling by 595 to 53,649 (down 1 percent). Plea bargaining props up the courts now – abolitions results in collapseDevers 11 Lindsey, Ph.D and Research Analyst of Criminal Justice for CSR Incorporated, "Plea and Charge Bargaining: Research Summary", Published by the Bureau of Justice Assistance for the U.S. Department of Justice, Summary.pdf, Date Published: January 24, Date Accessed: December 13, 2017The overwhelming majority (90 to 95 percent) of cases result in plea bargaining. f Prosecutorial discretion in plea bargaining is known to cause discrepancies in sentencing outcomes. f Those who go to trial rather than accept a plea are more likely to receive harsher sentences. f Legal variables, including the seriousness of the current offense and prior record, are important factors in determining whether a charge will be reduced and by how much. f The majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas. f Evidence concerning gender and age in this research has been inconclusive. f Both legal and extralegal characteristics are heavily influenced by prosecutorial discretion and by the region where the case is processed. POLICY IMPLICATIONS AND FUTURE RESEARCH Prosecutorial discretion and legal and extralegal characteristics affect the plea bargaining process. Several avenues of concern arise when abolishing or reforming this process is considered. To date, two studies have investigated the impact of what happens to the system when plea bargaining is abolished. These studies found an increase in the number of cases brought to trial when plea bargaining was limited, and over time the number of convictions became more consistent (Heumann and Loftin, 1979; Holmes et al., 1992). Plea bargaining is an inherent part of the criminal justice system. An official ban on plea bargaining is therefore impractical. This has even been recognized by various scholars and policymakers who argue that the system is in need of reform (Barkow, 2006; Bibas, 2001, 2004; Bohm, 2006; Bowen, 2009; Brown, 2005; Gorr, 2000; Guidorizzi, 1998; Ma, 2002; Stuntz, 2004; Wright, 2005; Zacharias, 1998).Turns case: court clog means no justice. Bannon 13 (Alicia Bannon Counsel, Brennan Center for Justice at NYU School of Law, 9-10-2013, "Testimony: More Judges Needed in Federal Courts," Brennan Center, )The growing workload in district courts around the country negatively impacts judges’ ability to effectively dispense justice, particularly in complex and resource-intensive civil cases, where litigants do not enjoy the same “speedy trial” rights as criminal defendants. For example, median time for civil cases to go from filing to trial has increased by more than 70 percent since 1992, from 15 months to the more than two years (25.7 months). Older cases are also increasingly clogging district court dockets. Since 2000, cases that are more than three years old have made up an average of 12 percent of the district court civil docket, compared to an average of 7 percent from 1992-1999. For a small company in a contract dispute or a family targeted by consumer fraud, these kind of delays often mean financial uncertainty and unfilled plans, putting lives on hold as cases wind through the court system. All too often, justice delayed in these circumstances can mean justice denied. These patterns of delay are starkly reflected in the districts for which additional judgeships are recommended, many of which lag behind the national average in key metrics. In the Eastern District of California, for example, the median time for civil cases to go from filing to trial is almost four years (46.4 months). This district would receive six additional permanent judgeships and one additional temporary judgeship under the Act. In the Middle District of Florida, over 23 percent of the civil docket is more than three years old. This district would receive five additional permanent judgeships and one additional temporary judgeship under the Act. The federal courts are a linchpin of our democracy, protecting individual rights from government overreach, providing a forum for resolving individual and commercial disputes, and supervising the fair enforcement of criminal laws. In order for judges to perform their jobs effectively, however, they must have manageable workloads. The Brennan Center urges Congress to promptly pass the Federal Judgeship Act of 2013, so as to ensure the continued vitality of our federal courts. Spills over internationallyKommers ’09 Donald P. Kommers, professor of political science and law, Notre Dame, M.A. and Ph.D. in political science, Wisconsin-Madison. : "US Supreme Court: International Impact of Court Decisions,” written: 7/19/09 v. Madison (1803) held that the power of a court to say what the Constitution means was implicit in an independent judiciary. This power of judicial review was a unique feature of American constitutionalism well into the twentieth century. The perceived success of this experiment prompted several nations emerging from the ruins of World War II to include explicit provisions for courts of judicial review in their new constitutions. By the end of the century, almost every constitutional democracy in the world had adopted judicial review in one form or another. In explicit recognition of the American tradition of judicial review, many nations conferred this power on special constitutional courts. But several common law countries, following the American model, empowered all judges to decide constitutional issues subject to final review by their highest appellate courts. Among the world's most notable constitutional tribunals, apart from the United States Supreme Court, are the constitutional courts of Germany, Italy, Hungary, and South Africa, along with the highest appellate courts of countries such as Canada, India, Australia, and Japan. In the beginning, as fledgling institutions, these courts had few if any precedents to look to when interpreting their constitutions. It was only natural, then, that many of them would turn to the American experience for guidance in shaping their own law. As Aharon Barak, president of Israel's Supreme Court, said in 2003, “We foreign jurists all look to developments in the United States as a source of inspiration.” The constitutional case law of Canada, Australia, India, South Africa, and other national high courts is studded with references to American judicial precedents, especially in the areas of speech, press, association, and criminal procedure. New York Times Co. v. Sullivan (1964)—a free speech decision—is just one example of an important case that has received substantial attention in nearly all these courts. Even when such decisions are not cited, foreign courts often employ terminology clearly borrowed from American case law; they have also borrowed heavily from the rhetoric of liberty found in the judicial dissents of justices like Louis Brandeis, Oliver Wendell Holmes, Earl Warren, and William Brennan. The fierce independence associated with the exercise of judicial review by these and other justices has served as a model of constitutional justice around the world.CP ReformsCounterplan: Expand the judiciary, abolish mandatory minimums, reform prisons, and establish focused zero tolerance policing.McArdle 17, Megan. “Plea Bargains Are a Travesty. There's Another Way.” , Bloomberg, 26 Sept. 2017, view/articles/2017-09-26/plea-bargains-are-a-travesty-there-s-another-way.The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities. It can operate no other way, because the volume of cases is far larger than the court system can actually handle. So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial. As this suggests, there are real benefits to the plea-bargaining system, even for the defendants. But there is a drawback as well. In 1979, law professor Malcolm Freeley published “The Process Is the Punishment,” a book in which he used the lens of the New Haven, Connecticut, court system to show the ways in which the trial itself -- as separate from any sentence imposed -- can function to punish people. This can be a problem even if the defendant turns out to be guilty, but at least we have the option of compensating for this extra-judicial punishment by reducing the formal sentence. But when the system gets out of control, it produces Kafkaesque results even for guilty defendants: How many of us think that three years behind bars is the right sentence for the theft of a backpack? And of course, when the defendant is innocent, this jail term is not merely excessive, but something close to a crime itself. This is not what the machine was designed to produce. The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial. We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties. Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” These factors aggravate the flaws of the plea-bargaining system. Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence. Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great. And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice. Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system. We should do these things. Unfortunately, they won’t be enough. While the popular picture among de-incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent drug offenders, in fact, the system handles an immense amount of real, harmful crime. We’re not going to decriminalize theft or assault or robbery, nor should we. If we really want a justice system that is not too overwhelmed to provide justice, we are going to have to focus on reducing crime. Step one is to recognize and avoid the “solutions,” like harsher sentences, that created the current problem. Instead we’re going to have to spend the money and change the law to create a criminal justice system that can provide more intensive, but less impersonal, attention to crime and criminals. Fortunately, there are ways to do this. Mark Kleiman of NYU, who has taught me most of what I know about crime policy, wrote a brilliant book called “When Brute Force Fails,” on the ways we can retool the justice system to actually reduce crime, rather than simply punishing it more harshly. Kleiman is liberal, but conservatives should have no fear: This is not a book about how we need loads more social spending and liberal policies to address the “root causes.” This is a book about how we can police and punish more effectively. The sort of proposals that should be welcomed by left and right alike. Kleiman’s ideas and insights are too many to sum up in a column, so I’ll focus on a core observation: Bad policing, and bad prison policy, can create more crime. Our current justice system provides what Kleiman calls “randomized draconianism”: Your odds of getting caught and punished are not very high, but if you are caught, you’ll get treated very harshly. The likelihood of punishment is so low that there is no deterrent effect to prevent crime, and the severity of punishment is so harsh that it may simply make those who are caught more likely to commit further crimes. Putting people in jail cuts them off from their families, deprives them of any opportunity to get integrated in the non-criminal economy, and oh yes, introduces them to many criminals with whom they can pursue future crime-related business opportunities. Our current system seems almost purpose-built to create a large class of disaffected people who commit a lot of crime. What’s the alternative? Raise the odds of punishment, and lower the severity. That means more police on the streets, focused on steadily reducing crime hot-spots and making it unattractive to take up a life of crime in the first place. It means probation and parole systems that provide much more intensive monitoring, but use lighter sanctions like a night or two in jail, rather than revoking someone’s parole and sending them back to prison for five years. It means exploring new technologies that allow us to put people under “house arrest” of varying intensity. In the short term, this will mean spending more money and effort on the system. But there’s good news: Prison is so expensive that even many expensive programs can save money on net if they keep people out of long prison terms. Better still, effective reforms may reduce recidivism, so that we can spend less money on all these things in the future. And best of all, the innocent majority in the U.S. who do not commit crimes will experience safer communities and less fear -- less fear of criminals, and less fear of one day being caught up in a system that so often punishes the innocent along with the guilty.NC ContractualismFirst, what is good must motivate us. Scanlon ONE: Attempts to explain how the fact that an action is wrong provides a reason not to do it face a difficult dilemma. \ANDexternal incentives for being moral).analyticSecond, contractualism meets this obligation. Scanlon TWO: So we need a further explanation. ANDthe consideration that morality describes just in virtue of being a person.Justification to others is more important than the average value because all of our relations with others rest on it. For example, I prioritize justification to others over friendship because if I do not value justification, I lose the possibility of friendships rather than a certain friendship. Justification is also motivating because we are motivated to be able to have interpersonal interactions such as friendship and society.Justification is important, so if people can reject a principle on grounds that we feel count as reasons, I ought to consider that principle invalid in order for my actions to be justifiable to them. This makes the standard consistency with principles that others could not reasonably reject. To clarify, you can’t object on the be3half of others – only they can determine whether an action is justifiable to them.Individuals choose plea bargaining as the best option available – foreclosing that path denies a) their choice and b) removes an opportunity they currently haveEasterbrook 69Frank H. Easterbrook, "Plea Bargaining as Compromise," 101 Yale Law Journal 1969 (1992)Part I of the Scott and Stuntz article shows the extent to which plea bargains ANDcould have obtained. So bargains are ethically attractive as well as efficient.Theory Spec PBInterpretation: Debaters on the Jan/Feb 2017 Topic must specify the kind of plea bargain There are two types of plea bargains that vary drasticallyCornell Law 11 LII / Legal Information Institute. "Rule 11. Pleas." LII / Legal Information Institute. 30 Nov. 2011. Web. 15 Dec. 2017. (c) Plea Agreement Procedure.(1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government willemoticon_unhappyA) not bring, or will move to dismiss, other charges;(B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.(3) Judicial Consideration of a Plea Agreement.(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or(C), the agreed disposition will be included in the judgment.(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera)emoticon_unhappyA) inform the parties that the court rejects the plea agreement;(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.Violation:Standards:Ground – The 1AR can shift out of DA and K inherency claims. Any DAs involving longer sentences after court review or Ks about power dynamics are moot under 11c1C but valid under 11c1B. Uniquely worse since it happens once I’ve already read them, mooting the time I’ve spent on the issue. 2. Strat Skew – I can’t decide what positions or T to read if I don’t know what policy the Aff is defending.3. Resolvability – we can’t resolve whether the 1AC’s arguments are true if the policy is not clarifiedEducation is a voter it’s the reason why schools fund debateProcedural fairness is a voter it’s key to mitigating substantive inequalities.Theory Narrow Standards BadInterpretation: The standard/criterion text must be a logical extension of the framework syllogism. This means they can’t read a standard text is arbitrarily narrow when their framework justifies a broader standard.Standards:Strat Skew- Turn Ground- Phil Education- ................
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