Millennial Speech & Debate Plea Bargaining Core File

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Millennial Speech & Debate
Plea Bargaining Core File

Background 4

Most Cases are Plea Bargained 5

Pleas Fall Under Criminal Procedure Rules 6

Background 8

“Plea Bargaining Defined” 14

Negative 15

Ban Terrible 16

Reform Counterplans 17

Better to Improve Plea Process 18

General Improve Plea Bargaining Counterplans 23

Guidelines Counterplan 36

Brady Application 38

Court Monitoring Counterplan 45

Offset Prosecturial Advantage 46

Answers to: Supreme Court Won’t Allow Limits on Plea Bargaining 48

Plea Bargaining Generally Good 51

Plea Bargaining Good – General Benfits 52

Plea Bargaining Good for Defendant -- Dignity 56

Plea Bargaining Good for Defendant – Process Protections 57

Plea Bargaining Good – Restorative Justice 57

Answers to Objections to ____ Proposal – Plea Bargaining as Dialogue 57

Restorative Justice Good 57

Advantage Answers 57

General Fairness/Due Process Answers 57

Disadvantage Links 57

Terrorism DA Shell 57

Extensions – Lashout Impact 57

Terrorism DA – Resource Trade-Off Links 57

Terrorism DA – Resources Uniqueness 57

Court Clog Shell 57

Politics/Prosecutorial Resources Links Extensions 57

Court Clog IP Uniqueness 57

Court Clog Impact Extensions 57

Court Clog D-Rule 57

2NR Impact extensions 57

Economy – Patent Litigation 57

Economy – Generic 57

Small Business – Meltdowns 57

Innovation – Patent Litigation 57

2NC IPR Impact -- Link Module 57

2NC IPR Impact -- Economy Impact 57

2NC IPR Impact -- Competitiveness Impact 57

2NC IPR Impact -- Biotech 57

2NC IL –Democracy/Econ 57

2NC IL –Trade 57

2NC IL –Innovation 57

2NC IL –SCOTUS 57

Legal Reforms Fail to Solve 57

Affirmative 57

Mental Competence Flaw 57

Neoliberalism Bad Advantage 57

Racism Advantage – Prior Arrests Link 57

Racism – General Links 57

Racism – Disproportionate Incarceration Links 57

Injustice Advantage – General 57

Injustice Advantage – The Innocent Plead Guilty 57

Mass Incarceration Advantage 57

Incarceration Impacts 57

Racism Impacts -- Consequential 57

Racism Impacts -- Moral 57

Racism Outweighs Other Impacts 57

Racism Impacts -- Discrimination 57

Racism Impacts – Whites Responsible 57

Answers to: Courts Correct for Any Racial Bias 57

Answers to: Plea Bargaining Helps Defendants 57

Answers to: Defendants Can Challenge Bad Deals 57

Answers to: New Court Decisions (Frye/Lafler) Improve Plea Bargaining Fairness 57

Reforms Counterplan Answers 57

Court Clog Answers 57

1AR IP cases up/ SCOTUS Key 57

Flooded Now –Adaptation Solves 57

UQ –Rule 36 Triggers I/L 57

Clog Now– Patents 57

AT Clog –A/C 57

AT Floodgates 57

Background

Most Cases are Plea Bargained

Nearly all cases are plea-bargained

Rinat Kitai-Sangero, Professor of Law, College of Law and Business, 2016, Akron Law Review, Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413p. 63-4

To say that plea bargaining "is an essential component of the administration of justice" n1 is a trite understatement. Plea bargaining affects every aspect of the criminal justice system; n2 it constitutes to a large extent the course of criminal justice today. n3 Most trials are withdrawn, and the vast majority of convictions are attained through plea bargaining. n4 It is not surprising then, that the United States Supreme Court attaches procedural protections to the plea bargaining process, such as the right to effective assistance of counsel.

Plea bargaining makes up most of criminal justice system

Rinat Kitai-Sangero, Professor of Law, College of Law and Business, 2016, Akron Law Review, Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413

Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992) (stating that "it is the criminal justice system."); Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1150 (2001) (stating that "our world is no longer one of trials, but of guilty pleas."). n4. John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 9 (1978); Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 Stan. L. Rev. 547, 551-52 (1997); Bibas, supra note 3, at 1100. See especially Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (stating that "ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.").

97% of federal cases are resolved by plea bargain

Holly P. Pratesi, JD, Spring 2016, Brooklyn Law Review, Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, https://brooklynworks.brooklaw.edu/blr/vol81/iss3/7/, p 1244-5

Although jury trials are championed in American jurisprudence, defendants may forego a trial in favor of entering a plea of guilty or nolo contendere. n46 In fact, over 95% of all criminal cases in state courts are resolved by a guilty plea, n47 and up to 97% of federal criminal cases are disposed of by plea bargains.

Pleas Fall Under Criminal Procedure Rules

Please under the federal rules of criminal procedure

Federal Rule of Criminal Procedure 11 governs the process of entering a plea. n49 It sets out stringent guidelines a court must follow before accepting a plea of guilty or nolo contendere. The court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, a litany of rights. n50 First and foremost, the defendant must be advised that he or she has the right to plead not guilty and persist in such a plea. n51 The defendant must be made aware of the rights he or she would be guaranteed at trial: the right to representation by counsel (appointed by the court if necessary), the right to a trial by jury, the right to "confront and cross-examine adverse witnesses," the right to testify and present evidence (as well as the competing right not to be compelled to be a witness against himself or herself), and the right to compel the appearance of witnesses. n52 The court must also include in its colloquy with the defendant that the defendant waives the aforementioned trial rights, the nature of any charge to which the defendant is pleading, any maximum possible penalties the defendant may face--fine, imprisonment and post release supervision--as well as any mandatory minimum penalties, applicable forfeiture, and the court's ability to order restitution or "obligation to impose a special assessment." n53 The court must ensure that the defendant is aware of the method by which the court will compute the defendant's sentence. n54 It is also incumbent upon the court to inform the defendant of any provisions in the plea agreement in which the defendant waives the right to appeal or "collaterally attack the sentence." n55 Finally, a defendant who is not a U.S. citizen must understand that if convicted, the defendant may face a host of immigration consequences. n56 The court is also required to ensure that a plea is voluntary and determine the factual basis for the plea. n57 A defendant may withdraw a guilty plea "(1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence" if the court rejects the plea or the defendant shows just cause. n58 After the court has imposed a sentence, the defendant may not withdraw a plea of guilty; it can only be set aside on direct appeal or collateral attack. n59 The Supreme Court outlined the potential benefits of the guilty plea and often concomitant plea bargain in Blackledge v. Allison. n60 The Court noted that the defendant "avoids extended pretrial incarceration and the anxieties and uncertainties of a trial, he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation." n61 Furthermore, it promotes judicial economy and conservation of prosecutorial resources. n62 Finally, the general public need not be further subjected to the risk of offenders "who are at large on bail while awaiting completion of criminal proceedings." n63 The Supreme Court has not, however, focused solely on the benefits of the plea bargaining process. In Brady v. United States, where the Supreme Court held that a guilty plea must be knowing and voluntary, the Court cautioned that "a guilty plea is a grave and solemn act to be accepted only with care and discernment." n64 The Court further emphasized that "[c]entral to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." n65 Thus, where a criminal defendant is forced to stand as a witness against himself, though normally shielded by the Fifth Amendment from being compelled to do precisely that, there must be a "minimum requirement that his plea be the voluntary expression of his own choice." n66 A defendant's plea is not only an admission of past conduct, but it is his or her "consent that judgment of conviction may be entered without a trial--a waiver of his right to trial before a jury or a judge." n67 Despite this rhetoric, guilty pleas are usually not accepted with such solemnity. n68 Criminal defendants often lack the resources, sophistication, and adequate representation n69 to proceed to trial or negotiate the best possible bargain. Therefore, the government's inclusion of waivers of appellate rights further isolates the plea-bargaining process and written plea agreements from adequate oversight and judicial review.

Background

FYI – Background

Schehr & French, 2016, Dr. Robert Schehr is a Professor of Criminology and Criminal Justice at Northern Arizona University, Chelsea French recently graduated with a Master's degree in psychology with an emphasis in neuroscience from San Diego State University. Her research focused on "Signal Detection Theory and Cross-Modal Priming: Sensory Memory in Alzheimer's Disease" and "Hippocampal and Orbitofrontal Involvement in Taste, Cognition and BMI." Albany Law Review, Mental Competency Law And Plea Bargaining: A Neurophenomenological Critique, https://law-journals-books.vlex.com/vid/mental-competency-law-and-671770325, p. 1101-02

Despite the Supreme Court's enthusiasm for plea bargaining expressed in Brady, the case law associated with plea bargaining cautions against accepting guilty pleas without first assessing whether the plea was made "knowingly and voluntarily." n35 A [related concern pertains to mental competency. These requirements for accepting a guilty plea are codified into Federal Rule of Criminal Procedure 11(b)(1), where under oath and before a judge in open court, a defendant will be informed of the abdication of rights brought about by a guilty plea, the right to plead not guilty and proceed to trial, the charges being brought against him or her, and the minimum and maximum sentence. n36 The court must also determine whether there is a factual basis for the plea. n37 Defendants may withdraw a plea prior to the court's acceptance of it, or prior to the imposition of sentence if the court rejects the plea under 11(c)(5); n38 or the defendant can show a fair and just reason for the withdrawal. n39

A. The "Knowing" Criteria

A plea that is knowingly entered into is made by a defendant whom is, "fully aware of the direct consequences" of the plea n40 as reflected by the record; in other words, the transcript must show that the defendant is aware of the constitutional rights they are relinquishing by pleading guilty. n41 Additionally, the defendant must also understand the nature of the charges against him and the record must also reflect this. n42 In Bousley v. United States n43 the plea was considered intelligent so long as the defendant received ""real notice of the ... charges against him,'" in satisfaction of Federal Rule 11. n44 No cognizable comprehension of the charges was required. n45 Important, in Bradshaw v. Stumpf n46 the plea was considered knowing despite the defendant's post-sentencing claim that he didn't understand the specific intent requirement for aggravated murder. n47 The Court held that because the defendant's [*1099] attorneys had explained the elements of the charge to him, and that this was affirmed in open court, the defendant's acceptance of the plea was knowingly made. n48 Of course, the gulf between explanation and understanding may be quite wide indeed. The mere fact that attorneys for the defendant explained the intent requirement by no means guarantees that the defendant understood that explanation. But consistent with Federal Rule 11(b)(1), all that is required of the judge when accepting a plea is the elucidation of the charges being brought against the defendant, and the minimum and maximum sentence. n49 Once recited in open court, and affirmed by the defendant, the knowing criteria is satisfied. n50

B. The "Voluntary" Criteria

The Supreme Court has deemed pleas voluntary when they are made absent threats and misrepresentation, n51 and requires the plea to be "an intentional relinquishment" of constitutional rights. n52 According to Federal Rule 11(b)(2), the court must also assess the voluntariness of the plea. Recitation of the Federal Rule simply requires the judge in open court to receive an affirmative response from the defendant to the statement: "the plea is voluntary and did not result from force, threats, or promises (other than promises in [the] plea agreement)." n53 The Supreme Court has noted that "the concept of "voluntariness' contains an ambiguous element." n54 In Parker v. North Carolina the majority decision dictated that a plea is not involuntary if the defendant enters the plea seeking to avoid the death penalty if convicted at trial, and that even if a defendant involuntarily confesses, the plea is constitutional and voluntary because of the significant amount of time that had lapsed between the confession and a plea. n55 In addition to ruling that the state's threat of a harsher punishment does not undermine the voluntariness of a plea, the Supreme Court has also ruled that the threat of capital punishment with a verdict of guilty when pursuing trial does not constitute an involuntary plea, n56 despite the ruling in United States v. Jackson n57 two years earlier that the Federal Kidnapping Act, which could only have the death penalty imposed by a jury, was unconstitutional "because it makes "the risk of death' the price for asserting the right to [a] jury trial, and thereby "impairs ... free exercise' of that constitutional right." n58 Ultimately the reasoning in Brady influenced subsequent Supreme Court decisions regarding the voluntariness of pleas.