Resolved: Plea bargaining ought to be

abolished in the United States criminal

justice system
Protest Aff
 Definitions

Plea bargaining: the negotiation of an agreement between a prosecutor and a

defendant whereby the defendant is permitted to plead guilty to a reduced
charge (Merriam-Webster, 2018)

Abolish: to end the observance or effect of : annul (Merriam-Webster, 2018—

Legal definition)

CJS: “The system of law enforcement that is directly involved in apprehending,

prosecuting, defending, sentencing, and punishing those who are suspected or
convicted of criminal offenses” (Oxford, 2018)

Ought: Webster’s Revised unabridged Dictionary, G. & C. Merriam, 1913

Modal Verb; A statement of what is the case contrasted with what should be the
case
 Framework

The affirmative supports the value of morality.

The criterion with which to achieve morality is the rejection of acquiescence.

Acquiescence is “to accept, comply, or submit tacitly or passively” (Merriam-
Webster, 2018).

Acquiescence allows violence and is a stumbling block to morality. Bell, ’93:

Bell, Linda A. "Rethinking Ethics in the Midst of Violence." Google Books. Rowman & Littlefield
Publishers, Inc, 1993. Web. 24 Oct. 2017.
<https://books.google.com/books?id=kUaZq9Uvmb8C&pg=PA207&lpg=PA207&dq=passivity%2
Bmaintains%2Bviolence&source=bl&ots=3Ylyeblzez&sig=VJnkp4cyByoP_57fubL3FyOjX9E&hl=en
&sa=X&ved=0ahUKEwidl6qV1IrXAhUG5GMKHdcyBDgQ6AEISTAJ#v=snippet&q=inaction&f=false
>.

What one says about morality thus can make the already untenable position of the
revolutionary all the more untenable. Oppression stands in the way of moral action that would
create even a slightly better society, in which the freedom of all respected. It stands in the way
of developing an ethics, too, since its ideals and its principles all too easily can be used and co-
opted by systems of oppression to support the status quo. Upholders of the status quo and
thus of oppression will use the revolutionary’s ethics to condemn any opposing violence.
Conflating inaction with not at acting and thereby placing it beyond the purview of ethics,
they ignore individual responsibility for perpetuating through inaction the prior violence on
which the status quo is founded. They thus place much existing oppression, certainly that
which is institutionalized, beyond the purview of moral judgment. Other oppression may be
condemned because there are actual and identifiable oppressors engaging in concrete acts of
oppression: but even so, the oppression is protected from effective resistance by reminders that
violence resistance is unacceptable and by reiteration of the claim accepted even by the
revolutionaries themselves: two wrongs do not make a right.

To combat the conflation of inaction with not acting, we must make very clear that inaction
generally is tantamount to action, that to do none of the acts we could do to oppose
oppression is to act on the side of the oppressors, that is to collaborate in the oppression. Only
if our ethics makes this clear will it become apparent that inaction supporting the status quo—
and thereby tacitly endorsing the violence that underlies it—is subject to moral
condemnation. Only then can ethics acknowledge the impossibility in which some are placed—
that violence is sometimes an inevitable aspect of their choice, no matter which way they turn.
Burdens: the affirmative will confidently show that abolishing plea-bargaining
creates a critical discourse essential to addressing the systematic racism of the
USCJS. To win this debate, the negation must prove that plea bargaining
actually better allows the rejection of acquiescence.
C1: the USCJS is a institution built on racial discrimination
Subpoint A: The CJS is based on the systematic oppression of people of color.
Roberts ’07:
Roberts, Dorothy E. "Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist
Framework," Columbia Human Rights Law Review vol. 39, no. 1 (Fall 2007): p. 261-286.

The U.S. criminal justice system has always functioned, in coordination with other institutions
and social policy, to subordinate [people of color] black people and maintain the racial caste
system. Racial bias does not rest only or even primarily in the minds of those who implement
the system; racism is engrained in the very construction of the system and implicated in its
every aspect—how crimes are defined, now suspects are identified, how charging decisions
are made, how trials are conducted, and how punishments are imposed. It would be hard to
conjure up a mechanism that more effectively subjugates a group of people than state-
imposed mass incarceration, capital punishment, and police terror, which not only confines
and disenfranchises a staggering proportion of black people, but also devastates the
communities they come from.

Subpoint B: the criminal justice system coerces acquiescence. Alexander ‘12:

Alexander, Michelle. "Opinion | Go to Trial: Crash the Justice System." The New York Times. The
New York Times, 10 Mar. 2012. Web. 12 Jan. 2018.

I launched, predictably, into a lecture about what prosecutors would do to people if they
actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic
safeguards, including the right to be informed of charges against them, to an impartial, fair
and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a
few decades partly as a result of the war on drugs and the “get tough” movement — these
rights are, for the overwhelming majority of people hauled into courtrooms across America,
theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people
charged with crimes forfeit their constitutional rights and plead guilty.
 C2: protest against the system is an a priori obligation

Subpoint A: the only way to create change is to remaster institutional tools,

reformation does not solve. Ferguson ‘11. Ferguson ‘11
(James, The Uses of Neoliberalism, Antipode, Vol. 41, No. S1, pp 166–184)
If 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. “[I]f 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 v́ i- 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.

Subpoint B: only through critical examination of the system can we create

change. Alexander ’12:
Alexander, Michelle. "Opinion | Go to Trial: Crash the Justice System." The New York Times. The
New York Times, 10 Mar. 2012. Web. 12 Jan. 2018.

On the phone, Susan said she knew exactly what was involved in asking people who have been
charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking
what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the
cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his
constitutional rights, there would not be enough judges, lawyers or prison cells to deal with
the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an
impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial
rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy
makers, leaving them only two viable options: sharply scale back the number of criminal cases
filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial
“emergency” fiat). Either action would create a crisis and the system would crash — it could no
longer function as it had before. Mass protest would force a public conversation that, to date,
we have been content to avoid.
 Contention 3: court clog is a critical protest unearthing
acquiescent power dynamics

Subpoint A: abolishing plea bargains is an act of resistance. Hunter, ’15:

Hunter, Daniel. "Building a Movement to End the New Jim Crow." New Jim Crow Organizing.
Building a Movement to End the New Jim Crow, 2015. Web. 10 Jan. 2018.
<http://www.newjimcroworganizing.org/ebooks/Building%20a%20Movement%20to%20End%2
0the%20New%20Jim%20Crow.pdf>.
Susan Burton, a formerly incarcerated woman who runs A New

Way of Life, a comprehensive re-entry program in California, has

offered one striking example of how the mass incarceration movement

might topple a key pillar of support.28 She’s noted that the vast

majority of people in the court system take plea bargains—about

90%. This is a practical and rational choice, even if they are innocent,

rather than risk the harsh sentencing of mandatory minimums.

The old view of power looks at this and sees people trapped in the

system, powerless in the face of district attorneys and mandatory

minimums. Yet Susan’s “crash the system” tactic could flip the script

and remove our collusion with the system: Instead of accepting [refusing] plea

bargains, large numbers of people collectively demand their constitutional

right to a jury of their peers.

Such an action could indeed crash the system, which is already

overloaded. The courts need people accepting plea bargains to function

smoothly. In that way, the system depends on the cooperation of

the oppressed.
Imagine how this might play out: In a small city, 100 people refuse

to accept plea bargains. They collectively demand jury trials. The already

stretched and overloaded city judiciary scrambles to arrange

jury trials. Those who are unable (or who refuse) to pay their bond

are stuck in jails. (This tactic, as any to shift a system this huge,

would require suffering.) Others who are released tour the country to

rally support.
Hearing about this, a few thousand more join in this “crash the

They argue that the system has no intention of supporting their constitutional
system” tactic.
rights and that it was never designed to
do so. Unable to quickly process people, cities fill all their jail beds
and flail around to deal with the overwhelming numbers.

People are inspired. Soon tens of thousands across the nation (still

a small number overall) refuse plea bargains. Courts around the

country grind to a halt as overloaded justice systems cannot

accommodate the demands. Supportive lawyers file federal appeals

to challenge the courts’ inability to implement constitutionally

required jury trials. Public protests ensue around the country,

demanding immediate release of all those who are being (and were)

denied their constitutional right for a trial by a jury of their peers.

The overburdened criminal justice system cannot cope, lacking

enough jurors, lawyers, or judges to continue to function. The system

falls into chaos.

We could keep imagining. Scrambling, politicians offer minor

concessions or try various measures to keep the system afloat. In response,

the tens of thousands crashing the system build a sort of “defendants’

union,” which refuses the minor concessions. The union

instead negotiates on behalf of hundreds of thousands for major,

fundamental reforms.

Perhaps the negotiations break down, and the “union” calls for a

complete change, escalating its goals and tactics in order to remove

more pillars of support until radical demands are met. Hunger

strikes inside sweep through prisons, people in jail refuse bail so as to

occupy beds and further destabilize the system, jurors add pressure

by slowing down court proceedings, ally lawyers and public defenders

strike until all demands are met, taxpayers refuse to pay taxes,

ally guards walk off their jobs, governors are hounded until they

grant wide immunity, and so on. The system collapses, and the union
becomes the leader in a transitional system built on restorative

justice principles.
All this because people took big collective risks by removing their

cooperation with the system.

The visioning here is important, because without it we dream

small and of only the tiniest incremental changes. One activist said it

this way: “If I don’t believe I have the power to change something,

then I won’t think about it.” Through analyzing our own power us

ing the upside-down triangle, we can help our groups think bigger,

recognizing the power we have when we refuse to cooperate with the

system as it currently functions.

Subpoint B: Eliminating plea deals will clog the courts. Hessick and Saujani ’02:
02 F. Andrew III Hessick; Reshma M. Saujani. Andrew Hessick-A.B. 1998, Dartmouth College; J.D.
Candidate 2002, Yale Law School. Fall 2002, a clerk for Judge Raymond Randolph of the United
States Court of Appeals for the District of Columbia Circuit. Reshma Saujani-B.A. 1996, University
of Illinois, Urbana-Champaign; M.P.P. 1999, John F. Kennedy School of Government, Harvard
University; J.D. Candidate 2002, Yale Law School. Fall 2002, an associate at Davis Polk &
Wardwell. “Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the
Defense Counsel, and the Judge.” 16 BYU J. Pub. L. 189 (2002)
http://heinonline.org/HOL/Page?handle=hein.journals/byujpl16&div=13&g_sent=1&casa_token
=&collection=journals [Premier]

The rising caseload of each individual state and federal judge has created a disincentive for a
more exacting analysis by the judge. Since 1938, the federal courts have experienced an
increasingly large caseload. 235 This growth can be attributed to the increase in the population,
the creation of new rights and wrongs, the increase of lawyers, and the expansion of attorney
fee incentives to litigate.236 Beginning in the 1960s, social scientists and commentators began
to describe the judiciary's looming backlog as a "crisis in the courts" created by "lazy judges
devoting little time to their work., 237 It has been said that most trial judges look for guilty pleas
the way "a salesman looks for orders."2'38 The pressures for judges to be efficient and
effective have led many judges to embrace the plea bargaining process. While judges point to
their administrative need to process a large number of cases with limited resources as their
greatest reason for plea bargains, growing criticism of case backlog has undoubtedly pressured
widespread acceptance. 239 A judicial system that works at a maximum level of efficiency
generates social utility in an already overloaded judicial system. A mere reduction of ten
percent in the number of defendants plea bargaining would require more than twice the
amount of judicial manpower and resources.240 While a surge in new trials would generate
administrative complications for the judiciary [because], the utility of foregoing this cost is
contingent upon the assumption that citizens spend fewer resources for pleas than trials while
getting the same result. If scholars and commentators are correct in maintaining that plea
bargaining facilitates the incarceration of innocent defendants, then this perverse result would
reduce any social utility gained by cost savings from foregoing trial. Additionally, some
supporters of plea bargaining may argue that if caseloads were increased they would prevent
judges from making an exacting analysis of the facts. This obstacle would have devastating
effects for the plight of innocents because it would hinder the search for actual guilt or
innocence. Some commentators argue that trials would become less stringent and more casual,
thereby increasing the possibility that innocents will be found guilty. 241